Minutes of the Eighth Meeting of the Bills Committee to study
the Prevention of Bribery (Miscellaneous Provisions)(No. 2) Bill 1995

Papers tabled at the meeting

The following papers were tabled at the meeting for Members’ reference and subsequently issued to Members not present vide LegCo Paper No. 546/95-96 :

1. LegCo Paper No. HB 532/95-96 which was the minutes of meeting (in English and Chinese) held on 12 January 1996;
2. Chinese translation of Mr. ALLCOCK’s letter dated 20 January 1996 issued to Members vide LegCo Paper No. HB 510/95-96; and
3. Chinese translation of LegCo Paper No. LS 69/95-96 dated 24 January 1996.

Meeting with the Administration

2. The Chairman welcomed representatives of the Administration, particularly Mr LEUNG Man-kin, the new Commissioner of ICAC, to the meeting.

Matters arising

Anonymity of Tax-payers

3. The Chairman referred the meeting to paragraphs 2 to 5 of Mr ALLCOCK’s letter dated 20 January 1996 (issued to Members vide LegCo Paper No. HB 510/95-96 dated 22 January 1996) which invited views from Members on the proposal of adding a provision to the Bill about preserving the anonymity of any taxpayer who was not a defendant, but whose tax records were produced in evidence in court. Mr ALLCOCK said that the proposal would create a restriction on the press.

4. Mr Eric LI provisionally welcomed the proposal. He remarked that the criteria of public interest were well-defined and would enable the Court to perform its duties. He was however still concerned that the added provision did not carry the same strength as that of section 4 of the Inland Revenue Ordinance which preserved the secrecy of tax-records, because it did not protect the identity of an additional party who had business dealings with the tax-payer and whose identity together with the terms of business contract were there in his tax-record. In response to the Chairman’s enquiry, Mr LI confirmed that, apart from the identity, the tax payer should be allowed to apply for court order to protect the secrecy of information regarding sensitive commercial matters and professional privilege. Mr ALLCOCK replied that the Administration could consider including another provision to preserve such anonymity in the Bill, if Members agreed.

5. Miss Christine LOH said she needed time to consider the issue of preserving the anonymity of a party beyond the third party and wished to reserve her position on the matter. Mr Ambrose LAU pointed out that the introduction of such provision could mean opening the floodgate for secret trials. He urged the Bills Committee to deliberate the matter carefully. He remarked that the existing legal system was coping well with all cases with similar features. He suggested the Administration should undertake research on the justification of the matter and to revert to Members with their findings before the Bills Committee made a decision. In this respect , the Chairman asked the Administration also to provide precedents. Mrs Selina CHOW expressed the view that the open court system should be maintained as a matter of principle and that the suggestion of extending anonymity, particularly if the protection covered information, should be carefully considered in this light. Mr Albert Ho said he was inclined to support the proposal to preserve the anonymity of a third party and no further, but he would further consider the matter upon receipt of additional information from the Administration. He pointed out that it would be difficult to define in practice what kind of information would disclose the identity of a third party and queried the practical need of such a suggestion since much information collected elsewhere could disclose the identity of other parties. Mr Andrew CHENG said that he supported the principle to preserve the anonymity of a third party and no further. However, he did not find the matter of preserving anonymity of a person in court to have the same degree of seriousness as that of a secret trial.

Adm

6. The Legal Adviser (LA) then suggested that Members should consider 2 principles in this regard : (a) what criteria should the judge apply in considering an application for anonymity before the trial (for example, if the anonymity of a person was not preserved, the defence in the trial would be substantially prejudiced); & (b) what criteria to allow the judge to lift an order of anonymity during the course of trial, as contained in section 156(4) of the Crimes Ordinance (Cap. 200) (for example, if anonymity would impose a substantial and unreasonable restriction upon the reporting of the court proceeding, and it would be in the public interest to remove such an order). He pointed out that "prejudice to the defence" as a criteria would not often be relevant.

7. The Chairman suggested and Members agreed that the matter be deferred for decision at the next meeting. He also requested Mr Eric LI to consider providing Members with a relevant paper in order to expedite the deliberation process.

Mr Eric LI

Discussion Papers Submitted to the ICAC Review Committee

8. Mr ALLCOCK said that the Administration could not support the Chairman’s request to provide the discussion papers which had been submitted to the ICAC Review Committee to the Bills Committee. The reasons were three-fold: (a) it would be tantamount to another comprehensive review of the ICAC which would mean duplication of efforts and wasteful use of resources; (b) the study would delay the enactment of the Bill, which was needed by the community and which had already been delayed at Members’ request in the last LegCo session by allowing it to lapse; and (c) the discussion papers might not represent the current position of the Administration. The Administration recommended that Members should accept the provisions of the Bill as a basis for study and should raise specific concerns on other sections of the Ordinance, such as that on section 30, if they found it necessary. The Administration would provide new papers to justify any provision that was the subject of concern

Adm

9. The Chairman expressed great disappointment with the reply. He said that the Legislative Council had the power to review the powers of the ICAC and LegCo Members were entrusted with such a responsibility especially when they were elected by the people of Hong Kong from 1995 onwards. He did not agree that the study of such papers would delay the enactment of the Bill if there were an agreed study period. He felt that as Chairman of the Bills Committee, he must ensure that Members had discussed and agreed all important principles regarding the powers of the ICAC before the Bills Committee could recommend or not recommend the Bill to the Legislative Council. In this regard, he considered that studying the background papers would be most fruitful and he would be highly suspicious that there had been cover-ups if the Administration refused to provide such papers to the Bills Committee.

10. Mr Albert HO shared the Chairman’s view and said that the Bills Committee must know the background leading to the recommendations of the ICAC Review Committee, have access to all related papers and have considered all important issues before it could recommend the enactment of the Bill, which would then guide the ICAC into the 21st century. The Bills Committee had no wish to go over the comprehensive review again and would strive to complete all considerations within a reasonable time-frame unless there had been ill-founded decisions. Mr Andrew CHENG raised four reasons to support the Chairman’s request, namely: (1) it would be worthy to spend even a further six months to study the case given that ten years had passed to give birth to the idea of reforms of the ICAC powers; (2) the Ordinance was very embracing and the Bills Committee should study all relevant suggestions carefully in order to be able to cast a vote of confidence on the comprehensive review; (3) Members would like to be assured of the standing of the ICAC Review Committee and its recommendations; and (4) there were different roles as between the Legislative Council and the Administration, and both parties should respect each other. He said that Members would like to take the matter forward as soon as possible because the pressure on them to move forward with the Bill from all quarters was much greater than that on the Administration. Mr Lawrence YUM remarked that if there was really a need to study the papers, the point about delay would be a non-issue.

11. Miss Selina CHOW said that it was a matter of principle that the Administration should not obstruct the Bills Committee to obtain relevant discussion papers. However, she accepted that the Administration had made out a case for the Bill to proceed forward on the basis of its provisions. She suggested that Members should consider dealing with the issue flexibly by focusing on the provisions of the Bill now and entrusting either the Security Panel or a Subcommittee to study the wider aspects of the Ordinance later. Mr Eric LI was supportive of the principle that the Administration should provide papers to Members. He agreed with the Chairman that LegCo Members should study the review carefully. Yet time was also crucial in this case. Therefore he suggested that the study should be undertaken in stages, with the present one focusing on the provisions of the Bill, and the later one on other sections of the Ordinance in a relevant LegCo Panel or a subcommittee (so that other Members could join) with an indicative time-table and a clear understanding that amendments to the sections would be permitted. In this relation, he pointed out that it would be difficult for Members to move Private Members’ Bill which had policy implications and which would involve a considerable amount of legal drafting work. Mr Ambrose LAU agreed that there was no need to study each and every section of the Ordinance at the moment. Yet he said that the Administration should supply the discussion papers to the Bills Committee on the condition that the discussion would not be delayed and the purpose was not for a detailed examination. Miss Christine LOH also shared the view that the study be undertaken in stages and the papers be supplied.

12. In response to Members’ enquiry, LA said that for Members to raise an amendment to a section of the Ordinance, the test was whether such amendment was relevant and whether major or new principles would be introduced, and the question of whether an amendment was relevant would depend on the provisions of the bill, and in the present case, the Bill was a wide-ranging amending bill. He then referred Members to the introductory sentence of the Explanatory Memorandum of the Bill which was "The object of this Bill is to implement certain recommendations of the report of the ICAC Review Committee .....". In deciding what amendments were relevant, a wide and liberal view could therefore be taken because of the original context in which the Bill was set. As a result, amendment to section 30 of POBO was within the scope of the Bill in his view. As regards the relevance of other amendments, it could be a question for the Bills Committee to consider, which would be subject to the ruling of the President ultimately.

13. Mrs Selina CHOW still queried: (a) whether in the present case, the proposed amendment to section 30 raised by Miss Christine LOH would be regarded as relevant given that the Bill did not cover section 30 of the Ordinance, (b) whether as a matter of principle, Members could propose other amendments to other sections of the Ordinance which were not covered by the Bill and (c) whether this principle applied to other Bills too. The Chairman said that it was a question of procedure on which he would consider seeking the views of the President. LA advised that the Chairman, as a point of order, could put the question of relevance to the Bills Committee to consider. Mr ALLCOCK said that the Administration had not yet taken any technical point that amendments to other sections of the Ordinance, including that to section 30, could not be considered. LA advised that it was important for the Bills Committee to proceed ahead within a reasonable time-frame and there might be a number of areas of concerns (regarding the POBO) that needed to be addressed. He therefore suggested that Members should bring their concerns to the Bills Committee for it to decide on their relevance. Miss Christine LOH also agreed that it would be an appropriate direction for the Bills Committee to proceed.

14. Mr Albert HO then said that the supply of previous discussion papers would help Members to discover all expressed concerns and to be assured that these concerns had been allayed and therefore would shorten the scrutiny period. The Chairman said he had identified a considerable number of issues in other sections of the Ordinance and he would like to check whether these issues had been considered before. Mr ALLCOCK said the Administration would fully cooperate with Members and would brief them on any specific issues they would like to raise in connection with the Ordinance and would prepare new discussion papers which would take into account all views expressed, including the arguments for and against an issue, and the current line of thinking. He would support the proposal that the Bills Committee should study specific issues and the Panel should study the general aspects. The Administration would however refrain from supplying the old papers because, in addition to the reasons advanced at the beginning of meeting, this would involve legal professional privilege and some papers contained operational details and cases of the ICAC. However, the Chairman insisted to read the original papers and argued that the Administration could waive the legal privilege as in the case of the Court of Final Appeal Bill. In this connection, Mr ALLCOCK pointed out that the case was different because the Court of Final Appeal Bill was only related to future law to be enacted. In the present situation, POBO was subjected to challenge in court everyday. LA then advised that he was not aware of any committees of the LegCo that had requested for the supply of all original discussion papers which had been intended for and supplied to the original committee (e.g. the Law Reform Commission). He noted that at this meeting there had been an express offer of co-operation from the Administration in case of specific queries. He was concerned that the discussion papers for the ICAC Review Committee could be a bundle of unfocused papers and would suggest that Members should read up-to-date papers on specific points. The Chairman said he might consider moving a motion in the Legislative Council sitting to demand for the supply of these papers under the Legislative Council (Powers and Privileges) Ordinance. However, he agreed to consider the matter further at the next meeting.

Dates of next meetings

15. The next meetings would be held on Friday, 2 February 1996 at 8:30 a.m. and Thursday, 8 February 1996 at 10:45 a.m.. The Clerk was asked to inform Members that if they had specific views on other provisions of POBO which were not covered by the Bill and which they wished the Bills Committee to consider, they should give such views in writing to the Secretariat before the next meeting.

16. The meeting ended at 10:40 a.m.

LegCo Secretariat
7 March 1996

Clerk