Meeting with the representatives of AGC and ICAC

Proposed Committee Stage Amendments drafted by the Administration

(LegCo Paper No. CB(2) 1071/95-96 issued on 25 April 1996)

At the invitation of the Chairman, Mr. ALLCOCK took the meeting through the paper. The gist of discussion is recorded below.

Clause 1. Short title and commencement

2. Mr. ALLCOCK said that the amendment provided for commencement for all the provisions of the Ordinance on a day to be notified in Gazette by the Attorney General and enabled different days to be appointed for different provisions, as there would be a few provisions which would require time for preparatory work. The Chairman asked whether the Administration had any time-frame in mind and whether they would give any undertaking to implement all provisions the soonest possible after the legislative enactment. Mr. ALLCOCK said the Administration intended to implement all provisions as soon as practicable and would, subject to further confirmation, give an undertaking to such effect in the Attorney General's speech when the Bill was to resume its Second Reading Debate. The Legal Adviser advised the meeting that the Interpretation and General Clauses Ordinance (Cap. 1) enabled different days to be appointed for different provisions.

Prevention of Bribery Ordinance (POBO)

Clause 4 amending section 13. Special powers of investigation

3. The Legal Adviser advised the meeting that the drafting was in order. The Chairman suggested to deal with the clause later as he was proposing separate amendments to section 13 to require the Commissioner or an investigating officer to make an ex parte application to the Court for an order before he could exercise the special powers authorised. (The Chairman's amendments were issued to members vide LegCo Paper No. CB(2)1155/95-96 on 29 April 1996.) He informed the meeting that he would further refine his proposed amendments and would delete sub-section (1A)(1)(aa).

Clause 5 adding new section 13A. Order to make material available and to render assistance and new section 13B. Disclosure of information obtained under section 13A

4. The Legal Adviser reminded members that proposed section 13A (2)(b) still retained the criteria "is likely to be relevant to the investigation". He said that members had previously considered whether it could be replaced by "of substantial value", similar to that adopted in the Drug Trafficking (Recovery of Proceeds) Ordinance (Cap. 405), for the sake of maintaining consistency in standard of test. He pointed out that since the Administration was proposing to add three sub-criteria to the public interest test in the Committee Stage which were "seriousness of offence", "whether or not the suspected offence could be effectively investigated" and "the benefit likely to accrue" (clause 5(b)), it could be argued that the Administration was trying to build in the "substantial value" concept in the standard of test. In reply to the question of the Chairman, he said that since different subject matter was dealt with under different Ordinances, it would be difficult for a court to take one single standard of test out of its own comprehensive setting in one Ordinance and compare it with another standard taken from another Ordinance. Mr. ALLCOCK said the Administration preferred to maintain the criteria which represented a more flexible test, especially since that there was a need to preserve secrecy and in the light that the new sub-criteria would ensure better fairness. The Chairman said he would have to further examine the clause.

Clauses 6(a) and 6(b) amending section 14. Power to obtain information

5. Members present agreed with the proposed amendments and noted that they did not have additional policy implications.

Clause 7 amending section 14C. Restraining orders

6. Members present agreed with the proposed drafting amendment consequential to the changes in the restraining orders. Members noted that it did not have additional policy implications.

Clause 10(a) amending section 17. Further powers of search and seizure

7. Members present agreed with the proposed amendment which was made in response to members' request.

New clause 12A. Further provisions relating to security, appearance, etc.

8. Members present agreed with the drafting amendment consequent to the repeal of section 17B. LA confirmed that there was no change in substance.

Adm

Chairman

LA

New clause 14A. Savings provision

9. Mr. ALLCOCK said that the clause was a savings provision to ensure that notices already served under section 14A (Restriction on disposal of property, etc) or section 14C (Restraining orders) would have continued effect. They would be treated as notices served under the new Ordinance and could therefore be varied on application. He pointed out that for other orders, there had been a provision in the Interpretation and General Clauses Ordinace (Cap. 1) to cater for their continuation The Chairman expressed concern that the Commissioner of ICAC could rely on the savings provision to renew the period of notices already served indefinitely and pointed out that there might be a need to restrict the provision to be a transitional measure and to be applicable only for say three months after the legislative enactment. Mr. KERSHAW invited members to consider the status of existing notices where proceedings had commenced if section 14A was repealed without the savings provision. He also said that the period of notice could not continue forever and would have an end date under the terms of the old Ordinance. Mrs Selina CHOW said that she could accept notices already issued by the ICAC to be retained until proceedings were finished for practical reasons since otherwise the cases would have to be referred to court unnecessarily, simply for the purpose of issue of notices. In this connection, the Chairman asked and Mr. KERSHAW replied that there were currently three section 14A cases in respect of which proceedings had been commenced and another three cases in respect of which no proceedings had been commenced. The Chairman accepted that there would be a practical need to apply the savings provision to cases in respect of which proceedings had been commenced but he cast doubt about its application on cases for which proceedings had not yet been commenced. The Chairman said that the matter was a policy matter. It might have implicatations on future amendments to other legislation and it needed careful consideration. The Legal Adviser agreed that it was a policy matter but said that to repeal the Commissioner's powers to issue restraining orders was already a rare incident and was therefore unlikely to have implications on other legislation. After discussing the provision further, members agreed to defer making a decision on it till the next meeting, and the Administration would in the mean time provide an explanatory note.

Adm

Independent Commission Against Corruption Ordinance

Clause 15 amending new section 8(2)

10. Mr. ALLCOCK said the proposed amendment provided for the Commissioner of ICAC to consult the Advisory Committee on Corruption before dismissing an ICAC officer. Mr. Andrew CHENG asked whether the recommendation of this Advisory Committee would have to be followed by the Commissioner and about the position of the Commissioner if there were dissenting views within this Advisory Committee. Mr ALLCOCK said the Commissioner would not be obliged to follow the recommendation of this Advisory Committee and if it held a majority dissenting view from that of the Commissioner, such view would be recorded and would have bearing in both the decision-making and review of appeal processes. Mr. Andrew CHENG said the Administration's amendment concerned the situation before dismissal of officers and he was concerned about the situation afterwards. He also considered it inappropriate for the Governor to act as the reviewing authority for appeal cases since he had been involved in the decision process when such officers were dismissed. He would consider moving Committee Stage Amendments for the establishment of an independent appeal board.

Mr. Andrew CHENG

New Clause 16A. Search Warrants

11. Mr ALLCOCK said the clause was a drafting amendment proposed to section 10B of ICACO to reflect the fact that section 16 of POBO was repealed and replaced. Members present agreed with the clause.

New Clause 16B. Power to take finger-prints and photographs

12. Members present agreed with new clause 16B so that the power to take finger-prints might be exercised when a person was served with a summons, as well as when he was arrested.

Clause 17. Powers of the Commissioner

13. Mr. ALLCOCK said the proposed amendment to section 13(2)(b) was to restrict ICAC officer's access to records, books and other documents of a public body to those, which he reasonably considered would reveal the practices and procedures of that public body. The Chairman said the proposed amendment could meet his concern. Yet when the Bill was to resume its Second Reading, he would mention in his speech that he still had reservation about whether ICAC should be given such mandatory information to enable it to give advice on how to prevent corruption.

Moving of Committee Stage Amendments

14. Members present agreed to consider the question of who was going to move the above Committee Stage Amendments later.

Proposed Committee Stage Amendments to section 13 of POBO. Special Power of Investigation by Hon James TO (LegCo Paper No. CB(2) 1155/95-96 issued on 29 April 1996)

15. The Chairman said the purpose of his amendments to section 13 (Special power of investigation) was to require the Commissioner to apply to court for an order to exercise the special powers of investigation. He would delete subsection (1)(aa) from the draft which should not be included in the first place. He said since both the grounds for and against this amendment had been covered during the last session as well as earlier this session, he would not repeat them. However, he agreed with the Legal Adviser that for the benefit of other members who were not in the Bills Committee, he would prepare an information note on his proposed amendments for inclusion in the Bills Committee's report. Mr. ALLCOCK summed up the Administration's stance by saying that ICAC regarded section 13 as their workhorse in the initial stage of investigation. They felt that court intervention would interfere with the efficiency of their organisation and confidentiality. They did not regard the power as sufficiently intrusive as those in section 14, which merited court control.

The Chairman

Draft Committee Stage Amendments in respect of Inland Revenue Department Materials that were used in Prosecutions, which the Administration intended to move (LegCo Paper No. CB(2) 1262/95-96 issued on 8 May 1996)

16. Mr. ALLCOCK brought members present through the proposed Committee Stage Amendments. He then sought the views of members present about the formula to use regarding the information in respect of which an order could be made under subsection (5), that was, whether it should be information likely to lead to members of the public to be able to identify the person named or whether it should be information which the person named reasonably regarded as confidential. He said that the provisions of Inland Revenue Ordinance in respect of reports of the Board of Review regarded the identity of the person as the key feature, not other information, and he said there was a case for limiting the subsection to the identity of the person. Mrs. Selina CHOW said members had considered the need to protect the identity of other persons mentioned in a tax-payer's records and she would urge members to consider the subsection carefully with a view to striking a right balance between the freedom of the press and the rights of an individual. She considered that there might be a case for the third person to be protected. The Legal Adviser said if other persons were involved, the ICAC had to study each person named in the tax records individually and in this connection, he felt that the Bills Committee needed to consider how the principle of covering other persons could be implemented and how a practical solution could be aimed at.

17. Regarding subsection (6), the Legal Adviser asked whether the concept that a court or a judge should consider it "desirable" to make an order was appropriate. The Administration agreed to consider the point.

Adm

18. Mr. Andrew CHENG sought clarification as to what mechanism the ICAC would use to ask the court to remove the original order made under subsection (5) before court proceedings actually started. Mr. ALLCOCK replied that the purpose of the provision was to allow variation of orders to be made during court proceedings.

19. The meeting would continue to discuss clause 5(c) at the next meeting. Mr. Eric LI would be informed of this.

Date of next meeting

20. The next meeting would be held on 21 May 1996 at 8:30 a.m., as scheduled.

Clerk

LegCo Secretariat

10 June 1996