Meeting with the representatives of AGC and ICAC

Proposed committee stage amendment to add a new section 14A (Savings) to the Prevention of Bribery Ordinance (POBO)

(LegCo Paper No. CB(2) 1341/95-96 issued on 20 May 1996)

At the invitation of the Chairman, Mr. ALLCOCK addressed the concern expressed by members during the last meeting that the proposed savings provision would enable current section 14A notices issued by the Commissioner of Independent Commission Against Corruption (the Commissioner) to be renewable indefinitely without court control. Mr. ALLCOCK told the meeting that there were six section 14A notices currently in force. Of these three related to proceedings commenced and accordingly would continue to exist until the final termination of these proceedings. The other three related to investigations concerning which proceedings had not yet been commenced and which were the subject of concern of members. All these three notices had an end date : one would expire in July 1996, and the other two in November 1996. In reply to the Chairman's question as to the position of the notice which would expire in July 1996, Mr. ALLCOCK said that if section 14A was not repealed by then, the Commissioner would issue another section 14A notice which would last for another 12 months until July 1997. However, if the new legislation was passed before the expiry date, the Commissioner would need to apply to court for the issue of a new notice. The savings provision was similar to the provision in the Interpretation and General Clauses Ordinance (Cap. 1) which protected existing rights and obligations. Moreover, the person to whom the notice had been served could after the change in the legislation, apply to court for variation of the notice. Mr. ALLCOCK then concluded that the savings provision should not be a matter for the concern of members. Having heard the explanation of Mr. ALLCOCK, members agreed to support the new section 14A as a committee stage amendment to be moved by the Administration.

Proposed committee stage amendment to add a new section 13C (Restriction on publication of information obtained under section 13B) to the POBO

(LegCo Paper No. CB(2)1310/95-96 issued on 15 May 1996)

2. At the invitation of the Chairman, Mr. ALLCOCK briefed members on the proposed new section 13C of POBO, which placed restrictions on publication of information obtained under section 13B. He pointed out that there was an error in proposed subsection (5) in that the phrase "which may lead to the information being public revealed" should be replaced by "which is likely to lead to members of the public being able to identify the person named". He said that the Administration had tried to meet members' concerns and was awaiting views from members about whether subsection (5) should cover only the identity of the person named or also any information which the person named reasonably regarded as confidential.

3. Mr. Eric LI thanked the Administration for their efforts in making the proposed amendment to the Bill. Nevertheless, he still had reservation about the Administration's proposal that restrictions or disclosures should be limited either to the information related to the identity of the taxpayer himself or information regarded as confidential by the taxpayer. He pointed out that the proposed provision did not extend to cover an innocent third person who could be identified from the taxpayer's records. Mr. ALLCOCK clarified that there would be practical difficulties if it were to cover a third person because there might be a large number of them in a taxpayer's records. Mr. LI however held the view that one could not rely on the taxpayer to defend a third person's rights, and that all confidential information in the taxpayer's records (whether it was related to the taxpayer or to an innocent third person, or whether it was related to the name or other information of a person) should be duly covered. He considered that the innocent third party should be given a chance to protect himself, and that there was therefore still a deficiency in the proposal. He would however provisionally accept the proposal of the Administration because despite its deficiency, it still represented an improvement. In this regard, the Chairman remarked that Mr. LI still had time to re-consider the matter and to draft the necessary Committee Stage Amendment for the Bills Committee to discuss if he subsequently found it appropriate to do so.

4. The Chairman then sought the views of other members present on whether proposed subsection (5) should concern the identity of the named person or whether it should cover information which the person named reasonably regards as confidential. They all agreed that it should cover the identity of the named person. The Chairman then so informed the representatives of the Administration present at the meeting.

5. Mr. Eric LI then sought the assistance of Legal Adviser to examine the drafting of the Committee Stage Amendments on behalf of the Bills Committee. Legal Adviser said he would do so now that members had agreed on the principle of the matter.

LA

Mr. Andrew CHENG's proposal for the establishment of a statutory appeal channel in respect of the termination of appointment of ICAC officers

(LegCo Paper No. CB(2) 1334/95-96 issued on 20 May 1996)

6. At the request of the Chairman, Mr. Andrew CHENG briefed the meeting about his proposal for the establishment of a statutory appeal channel in respect of the termination of appointment of ICAC officers (issued to members vide LegCo Paper No. CB(2) 1334/95-96). He was concerned that the Commissioner had, since the establishment of the ICAC until 1994, exercised his power under section 8(2) on 56 occasions for loss of confidence in an officer's loyalty or integrity. He said he still saw a problem in the proposed amendment to section 8 of the Independent Commission Against Corruption Ordinance (ICACO) regarding dismissal of officers because the Governor was still holding all important powers to himself as far as the matter was concerned, and it would not be possible for the Governor to objectively decide on an appeal which arose from a decision to terminate an officer's employment contract that he had already known about and agreed to. The situation would not improve even though the Administration had agreed to make a Committee Stage Amendment to require the Commissioner to consult the Advisory Committee on Corruption before he terminated the appointment of an officer. He therefore suggested amendments to section 8(2) of the ICACO and the establishment of an independent appeal board modelled on the one established under the Public Order Ordinance which would replace the Governor in the appeal process. He asked the Bills Committee to give views on his proposal, especially on the composition, structure and power of the appeal board.

7. At the enquiry of the Chairman, Mr. CHENG clarified that the composition of the appeal board could follow the example of that of the Appeal Board under the Public Order Ordinance although the power would be different.

8. Mr. ALLCOCK asked whether in Mr. Andrew CHENG's opinion, the appeal board's decision would have a binding effect on the ICAC. Mr. CHENG said the appeal board should have statutory power and should not be advisory. He sought members' comments on his view.

9. Mr. Albert HO said he supported the proposal to create an independent appeal mechanism. He wished to add one more reason to those already given by Mr. CHENG which was that since ICAC was an independent body from the executive, there was a need for it to maintain its independence by having in place an independent appeal board to review dismissal of officers, and should not leave the Governor to decide appeal cases since he was the head of the executive.

10. Mr. ALLCOCK gave the opinion that the proposed appeal board would undermine rather than underline the independence of the Commissioner because its decision would be binding on him, and would result in him being unable to control his own office. Mr. HO explained that the independent appeal mechanism was meant to make the ICAC independent from the executive as well as to give checks and balances to the Commissioner. Mr. ALLCOCK replied that appeal to the Governor would only take place when the Commissioner had decided to terminate an officer and until then the executive could not be said to have interfered with the work of the ICAC. He could not agree with Mr. HO that appeal to the Governor would undermine the independence of the Commissioner. He also said that the objective of the Bill and the proposed Committee Stage Amendments was to establish checks and balances on the Commissioner. In deciding the fairness aspect of termination of employment the focus should be centred on the decision-making process of the Commissioner and in this regard he considered that the Bill was seeking various appropriate procedures to be established. He pointed out that under the current law, the Commissioner was only responsible to the Governor and after 30 June 1997, to the Chief Executive, and the creation of a body in between would be inconsistent with the existing legislative structure.

11. Legal Adviser pointed out that Mr. CHENG's proposal, if passed, would have substantial and significant implications on existing principles of legal policy in respect of ICAC since corresponding amendments would have to be made to section 5(2) of the ICACO which read "The Commissioner shall not be subject to the direction or control of any person other than the Governor".

12. The Chairman then asked Mr. CHENG if he could explain to the meeting the functions, powers and parameters of the proposed appeal board and whether it was to determine whether there had been justification on the part of the Commissioner to have lost confidence in his staff. Mr. CHENG said that since there had been an appeal provision in the ICACO, he considered it important to ensure that the mechanism was independent. As regards the matter of independence of the ICAC, Mr. CHENG said he could not see how the independent appeal mechanism would affect the independence of the ICAC although he pointed out that since the establishment of the ICAC in 1974, the government of Hong Kong had become cleaner, and there had been changes in the community's perception and expectation on the independent role of ICAC. He felt that for each individual case, it would be up to the dismissed officer to justify that the Commissioner had wrongfully dismissed him.

13. Mr. Eric LI said he would examine the proposed establishment of the independent appeal mechanism from the angle of effectiveness. He pointed out that currently, there were already various means to check the decision of the Commissioner to dismiss an officer, such as the Advisory Committee on Corruption, the Governor and judicial review. He said that the appeal board must have public credibility for it to be useful. To achieve credibility, it must not operate as part of the administration, it must have a judicial status or it must be a statutory body, it must operate in public, have resources, staff and investigative power.

14. Mr. Zachary WONG said that in order to enable the appeal board to achieve credibility, it must have independence, power, the right membership and resources. He thought that the appeal board would possess all these if the Government recognised the need for the board. He supported that the composition of the appeal board should be modelled on the one established under Public Order Ordinance. He queried why it would affect the independence of the ICAC whilst the suggestion was simply to make the Commissioner accountable to the appeal board instead of to the Governor as far as dismissal of officers was concerned.

15. Legal Adviser asked the Administration if the proposed situation existed for any other public officers. He also asked the Administration to study the legal implication of the proposal in order to be satisfied of the effectiveness of such domestic legislation since constitutionally the Royal Instructions had provided that the Governor had the power to appoint and dismiss all public officers.

16. Mr. ALLCOCK said that according to section 8(2) of ICACO, the basis of dismissal of an officer by the Commissioner was "in the interests of the Commission". If the decision of the appeal board was binding on him, then it would interfere with a crucial part of his work, which was staff management. He shared the view of the Legal Adviser that it had been spelt out clearly in the constitution and in the Ordinance that the Governor had power in appointing and dismissing public officers and had power over ICAC. He pointed out that Article 47 of the Basic Law had conferred such power on the Chief Executive too. The proposal to transfer the appeal decision power from the Governor to the appeal board would mean taking away the constitutional power of the Governor or the future Chief Executive. It would also mean a fundamental change to the operation of the ICAC. He considered that the move was unwarranted.

17. The Chairman took the view that the proposal by Mr. CHENG was a serious proposal, as it would have policy implications on the authority of the Commissioner in appointing and dismissing staff and subsequently on the overall operational mechanism of ICAC. She regarded that the present safeguards against the Commissioner abusing his power were sufficient, provided implementation of the Committee Stage Amendment requiring consultation with the Advisory Committee on Corruption.

18. Mr. Albert HO said that there was already a variation in the constitution for the Governor to be the authority for appointing and dismissing public officers, in the appointment and dismissal of judges. He said that the Governor would consult the Secretary of State in England for the appointment of a judge and there was special hearing before dismissing a judge. He pointed out that there should be an additional safeguard for dismissal cases under section 8(2) of the ICACO which was the appeal board whose function would be to advise the Governor, and the Governor should accept such advice as a matter of practice . He then asked if there was internal hearing for disciplinary cases in the ICAC, as the Police had.

19. Mr. LI Ming-chak said it was the practice of ICAC to investigate all cases before dismissal. He recalled that the Commissioner had not invoked the power under section 8(2) to dismiss an officer for disciplinary reasons. The power was invoked when there were reasons to believe that the officer had been corrupt or had committed criminal wrongdoing and yet there was inadequate proof to institute prosecution against him. All section 8(2) dismissal cases were referred to the ICAC Operations Review Committee. For officers who had disregarded discipline and had not committed any criminal wrongdoing, they would be interviewed, counselled and warned by their superiors, and then referred to higher levels if they repeated their unwarranted behaviour.

20. Mr. ALLCOCK said that since there were different constitutional provisions governing the appointment and dismissal of judges as contrasted with public officers as a whole, no analogy could be drawn between dismissing a judge and an ICAC officer. He also pointed out that there was a fundamental difference between an appeal board whose decision had a binding effect on the Commissioner and an appeal board of an advisory nature. He said that the Administration would object to the establishment of the binding appeal board. At the request of the Chairman, he agreed to check whether in the civil service, there was any mechanism for staff to appeal against their dismissal.

Adm

21. Mr. Eric LI considered that if an appeal board was eventually established and if its members were to be appointed by the Governor, its scope of work and its power would then be very narrow and he doubted its likely effectiveness. He thought also that it would be more practicable and effective for the superiors and not for a third independent party to investigate into disciplinary cases. He pointed out that the ICAC Operations Review Committee had to report to the ICAC Advisory Committee on Corruption, and in this respect he considered that there were due checks. He would rather suggest improving the transparency aspect of the decision of the two ICAC committees in dismissal cases than support the establishing of the appeal board.

22. Legal Adviser then pointed out that the implications of section 8(4) needed to be taken on board too if the matter of the appeal board was to be pursued.

23. Miss Christine LOH said although she had been a member of the ICAC Review Committee and had endorsed the proposal to amend section 8(2) as the Bill now presented, she would support any proposal for improvement. She asked whether there would be sufficient transparency within the dismissal decision process to ensure that officers would not be dismissed due to political vetting.

24. Mr. ALLCOCK said the purpose of new section 8(2)(b) was to institute a fairer decision-making process. The proposed Committee Stage Amendment would enable the Advisory Committee on Corruption to hear the case from both sides i.e. the Commissioner and the officer.

25. Mr. Andrew CHENG said dismissal of ICAC officers and civil servants had different procedures. ICAC officers dismissed under section 8(2) would find it difficult to appeal by way of judicial review and he was trying to achieve a more independent appeal mechanism for them. He agreed that there was room for improvement of his proposal and he needed to study the constitutional implications of his proposal, if members agreed with its spirit.

26. The Chairman then asked the Administration to set out the constitutional implications of Mr. CHENG's proposal for members' consideration, in addition to the existing appointment and dismissal policy in the civil service.

Adm.

Section 30 of POBO

27. The Privy Council's judgement on the Ming Pao case, delivered on 20 May 1996 was tabled at the meeting for members' reference. (It was subsequently issued to absent members vide LegCo Paper No. CB(2) 1366/95-96 on 22 May 1996.) Mr. ALLCOCK said the Administration was still prepared to consider an amendment of the section and had outlined certain possible options at previous meetings of the Bills Committee. Members agreed that the Administration should be invited to draft the amendments for consideration.

28. Miss Christine LOH said that she would further pursue the matter of the role of the media, in revealing possible sloppy investigation by the ICAC, and whether as a matter of principle the legislation should be a bar to such role.

29. The Chairman then referred to the letter dated 15 May 1996 from the Hong Kong Journalists Association (issued to members under cover of LegCo Paper No. CB(2) 1324/95-96 on 17 May 1996) on section 30 of POBO. She invited members to consider the views expressed in the letter as well in the next meeting.

Dates of next meetings

30. The next meetings would be held on 10 June 1996 at 2:30 p.m. and 12 June 1996 at 8:30 a.m..

31. There being no business, the meeting ended at 10:20 a.m.