Bills Committee to study the
Criminal Procedure (Amendment) Bill 1996 and the
Mental Health (Amendment) Bill 1996

Confirmation of the Minutes of the First Bills Committee Meeting

(LegCo Paper No. CB(2) 953/95-96)

The minutes of the first Bills Committee meeting held on 27 March 1996 were confirmed.

Meeting with the Administration

Briefing by the Administration

2. Mr Andrew KLUTH briefed Members on the major provisions of the Criminal Procedure (Amendment) Bill 1996 and the Mental Health (Amendment) Bill 1996 (the two Bills) as follows:

1. where the accused person was found unfit to plead in court, it was proposed that the jury should be empowered to determine whether the accused person did the act or made the omission charged. If the jury was not satisfied that the accused person did the act or made the omission charged, a verdict of acquittal should be returned ;
2. where the accused person was found unfit to plead and to have done the act or made the omission charged, or where the accused person was found not guilty by reason of insanity, it was proposed that the court should be given a wider range of disposal options than currently available. The proposed new options included a guardianship order, a supervision and treatment order and, an order for absolute discharge. This proposal was to give persons who were unfit to plead a range of rehabilitative orders which would be far more in their interests and in the society’s interests than the existing disposal option ;
3. It was also proposed to extend the new disposal options to magistrates, in addition to the High Court and the District Court judges ; and
4. The Criminal Procedure (Amendment) Ordinance 1995 was intended, among other things, to enhance the protection for child witnesses in respect of an offence of "sexual abuse". However, the definition of this term did not include the offence of incest. It was therefore proposed to amend the legislation to accord the same protection to child witnesses when testifying in court in incest cases.

Discussions

Definition of "unfitness to plead"

3. In response to Miss Margaret NG’s enquiry, Mr Geoffrey FOX advised that there was no definition of "unfitness to plead". This phrase meant that the accused person was not capable of understanding sufficiently the proceedings being taken against him for making a defence. This phrase did not necessarily mean that the person who was being charged with the offence was mentally handicapped or suffering from a psychiatric disorder at the time he committed the offence, because a person could become mentally handicapped or mentally disordered after the offence.

4. Mr Andrew KLUTH pointed out that under section 75(4) of the Criminal Procedure Ordinance (CPO)(Cap. 221), it was stated that "The question of fitness to be tried shall be determined by a jury ....". As such, the question of "unfitness to plead" should be determined by the jury and the court, after taking into account circumstances of each individual case.

The existing and proposed disposal options available to persons unfit to plead

5. In response to Mr Michael HO’s enquiry, Mr Andrew KLUTH explained that under the existing CPO, the only option to deal with an accused person found unfit to plead in court or not guilty by reason of insanity was to send that person to Siu Lam Psychiatric Centre or a mental hospital for indefinite detention. Since an accused person found unfit to plead was incapable of being tried and there was no requirement for the court to determine whether such a person did the act or made the omission charged, it was possible that an innocent person could be detained in a mental hospital indefinitely because he suffered from a mental disability and was unfit to plead. Such indefinite detention could happen no matter how minor the alleged offence was or how harmless the accused person might be. The period of detention might greatly exceed the maximum sentence for the alleged offence. Moreover, while persons who were fit to plead had the opportunity to be tried and to receive the appropriate sentence, those unfit to plead were detained indefinitely. In these circumstances, the existing provisions were considered as unsatisfactory. The Administration therefore proposed to introduce a range of disposal options so that persons who were unfit to plead would be given proper treatment for their disability, instead of being detained indefinitely. The basis for deciding on the mode of options was to have the best treatment for rehabilitation of the person concerned.

Application of the proposed disposal options to the mentally handicapped persons fit to plead

6. Members noted that in the Hong Kong Council of Social Service (HKCSS)’s written submission (LegCo Paper No. CB(2) 986/95-96), there was concern about whether the proposed disposal options were applicable to the mentally handicapped persons who were fit to plead and found guilty by the court and, whether there was any special arrangements or rehabilitative services for them. In response to Mr Michael HO’s enquiry, Mr Andrew KLUTH confirmed that the proposed disposal options were only applicable to persons who were unfit to plead, but not to persons fit to plead.

7. Mr Geoffrey FOX advised that persons who were fit to plead and found guilty by the court, including mentally handicapped persons, would be sentenced according to the penalty provisions for the offence in question. Penalties for offences varied from imprisonment to fine. In addition, the court had the power of absolute discharge under section 36 of the Magistrates Ordinance (Cap. 227) and, permitting conditional release of offenders under section 107 of the CPO.

8. Mr Augustine CHOI added that under the Probation of Offenders Ordinance (Cap. 298), the court might make a probation order on a person who was fit to plead and convicted, including mentally handicapped persons, requiring him to be under the supervision of a probation officer for a specified period. The probation order might also require the offender to comply during the whole or any part of the probation period with such requirements as the court considered necessary for securing the good conduct of the offender or for preventing a repetition by him of the same offence or the commission of other offences. ALA4 pointed out that detailed requirements were not specified in the existing legislation.

9. Mr PANG Sung-yuen added that at present, mentally handicapped persons who were fit to plead and convicted could be granted a sentence of detention in prisons or training centres. If they were detained in prisons, they would be put into those institutions where psychologists were available to follow-up their cases. If they were detained in training centres, arrangements would be made for them to be grouped into a tailor-made educational and vocational class where experienced and specially trained officers would monitor their progress. When the situation warranted, they would be taken care of at a psychological care unit.

Distinction between mentally handicapped and mentally disordered persons

10. Dr LAW Chi-kwong and Miss Margaret NG were concerned that under the existing legislation, there was no distinction between mentally handicapped and mentally disordered persons. Dr LAW considered that it could be possible for a mildly mentally handicapped person who was fit to plead and convicted be put into Siu Lam Psychiatric Centre or a mental hospital. Miss NG wondered whether the Administration had, in drafting the two Bills, taken this distinction into consideration.

11. Mr Geoffrey FOX advised that in drafting the two Bills, the Administration basically followed the UK legislation with some modifications. In the UK, there was no such distinction. As the Administration intended to bring the local provisions in line with those of the UK, this distinction was not considered in the context of the two Bills. In response to the Chairman’s enquiry, Mr Augustine CHOI confirmed that such distinction would be included in the next bill to amend the Mental Health Ordinance (MHO).

The proposed new section 75A of the CPO - Determination on the question of guilt

12. Members noted that under the proposed new section 75A(1) of the CPO, "Where in accordance with section 75 it is determined by a jury that an accused person is under disability, then -

1. the trial shall not proceed or further proceed ;
2. the jury shall determine -
   1. on the evidence (if any) already given in the trial; and
   2. on such evidence as may be adduced or further adduced by the prosecution or adduced by a person appointed by the court for the purpose of this section to put the case for the defence,

   whether they are satisfied, as respects the count or each of the counts on which the accused person was to be or was being tried, that he did the act or made the omission charged against him as the offence;......."

13. Dr LEONG Che-hung wondered how the jury could determine whether the accused person was guilty or not, having regard to the fact that he was unfit to plead. Mr Geoffrey FOX clarified that under the proposed new section 75A(1)(b) quoted at para. 12 above, the jury was to determine whether the accused person did the act or made the omission charged, but was not to determine whether he was guilty or not. Ms Emily LAU asked what was the purpose of the former procedures if it was not for the determination on the question of quilt. Mr FOX explained that the jury would first determine whether the accused person did the act or made the omission charged and if it was confirmed so, it would proceed to determine how to deal with the person who was unfit to plead. Ms LAU wondered whether this sort of arrangement was very exceptional. Mr FOX advised that it was modelled on the UK legislation.

14. Regarding subsection (1)(b)(ii), Ms Emily LAU asked whether it was possible for the relatives or friends of the accused person to adduce further evidence to the court to prove his innocence. Mr Geoffrey FOX undertook to clarify with the Prosecutions Division of the Attorney General’s Chambers to ascertain the full ambit of this subsection. Mr Andrew KLUTH confirmed that the Administration would provide a written response to the Bills Committee on this point.

Adm

15. Miss Margaret NG pointed out that under subsection (1)(a), the trial should not proceed. As such, she wondered why it was then stated in subsection (1)(b) that evidence might be adduced or further adduced. Mr Geoffrey FOX confirmed that the trial ceased once the accused person was found under disability. However, evidence or further evidence might be adduced to facilitate the jury’s determination on whether he did the act or made the omission charged.

16. Miss Margaret NG considered that after the trial had stopped under subsection (1)(a), then the procedures involved under subsection (1)(b) would not be part of the trial. She wondered whether the relevant procedures, such as the calling of witnesses, would be the same as those of a trial. The Chairman requested a written response from the Administration on this point.

Adm

Meeting with the Administration and the Deputation

Briefing by the deputation

17. Mr William CHANG pointed out that the HKCSS and the concerned organizations (the deputation) had been striving for the relevant legislative amendments since 1987 and would therefore urge for the early passage of the two Bills. Nevertheless, they requested the Administration to refine the two Bills by taking into account the points raised in their written submission (LegCo Paper No. CB(2) 986/95-96). Mr William CHANG, Mrs CHAN TSANG Muk-lun and Mrs Julie LEE took Members through their written submission.

Discussion on the deputation’s written submission

Point A3 of the written submission - Evidence of 2 or more registered medical practitioners for assessing an accused person’s fitness to plead

18. The deputation noted that it was proposed under the two Bills that written or oral evidence of 2 or more registered medical practitioners were required for assessing the accused person’s fitness to plead. They requested to state explicitly in the two Bills that at least one of the registered medical practitioners should be a registered psychiatrist or psychologist.

19. Dr LEONG Che-hung supported the deputation’s request. He considered that a general medical practitioner might not have the knowledge of a specialist to assess the accused person’s fitness to plead. Dr John TSE shared his view. However, Dr TSE considered that all of the "2 or more registered medical practitioners" should be psychiatrists. Mr Andrew KLUTH undertook to look into the deputation’s request and Dr TSE’s proposal.

Adm

20. Regarding the deputation’s request, Ms Emily LAU pointed out that while psychiatrists were registered medical practitioners, psychologists were not. Mr Andrew KLUTH undertook to look into this point.

Adm

Point B1 of the written submission - The proposed new section 76(3) of the CPO - Interpretation of "fixed by law"

21. The deputation was concerned that under the proposed new section 76(3) of the CPO, the new disposal options including a guardianship order, a supervision and treatment order and, an order for absolute discharge "shall not apply where the offence to which the special verdict or the finding relates is an offence the sentence for which is fixed by law." They would like to know the types of offences the sentences for which were fixed by law. Mr Geoffrey FOX advised that the types of offences involved were those serious offences which carried a life sentence. The most common example of such offence was murder. Other examples were incitement to mutiny, piracy with violence and non-consensual buggery.

22. Miss Margaret NG wondered whether the phrase "an offence the sentence for which is fixed by law" should be interpreted as meaning those offences the penalty for which was clearly stated in the law, such as life imprisonment for murder or, interpreted in a broader sense to cover those offences the range of sentence for which was restricted by the law, such as custodial sentence for possession of offensive weapons. Mr Geoffrey FOX undertook to provide the clarification in writing.

Adm

Point B2 of the written submission - Section 83M of the CPO - Right of appeal against finding of disability

23. The deputation was concerned about the types of cases in which an accused person had no right of appeal against finding of disability under section 83M of the CPO. Mr Geoffrey FOX explained that the only case when an appeal could not be made was when the Court of Appeal refused to grant leave under section 83M(2)(b) of the CPO, which was in fact a provision in the existing legislation. Clause 6 of the Criminal Procedure (Amendment) Bill 1996 only added subsections (3) and (4) to section 83M of the CPO and did not touch on subsection (2). In any case, clause 6 was only a technical amendment which did not affect the right of an accused person in appealing against the finding of his disability.

Point C1 of the written submission - The proposed new sections 44A(2) and 44D(2) of the MHO - willingness of the Director of Social Welfare and the supervising officer

24. The deputation was concerned that under the proposed new section 44A(2) of the MHO, "A guardianship order shall not be made unless the court or magistrate is satisfied that the Director of Social Welfare is willing to receive the person concerned into guardianship or to authorize a person to so receive the person concerned." Mrs Julie LEE pointed out that similarly, under the proposed new section 44D(2)(a) of the MHO, " A supervision and treatment order shall not be made unless the court or magistrate is satisfied that the supervising officer intended to be specified in the order is willing to undertake the supervision." They wondered why it was necessary to accord priority to the willingness of the Director of Social Welfare and the supervising officer and, what would be the consequences if they were not willing to do so.

25. Mr Augustine CHOI explained that before a guardianship order or a supervision and treatment order was to be granted by the court, the Director of Social Welfare had to ensure that there were sufficient and appropriate rehabilitative facilities for the execution of such an order. Normally, the Director would not refuse to accept the court’s decision.

Point C2 of the written submission - The proposed new section 44B(1) and 44D(1) of the MHO - Applicability of guardianship order and supervision and treatment order to mentally handicapped persons

26. The deputation pointed out that under the proposed new section 44D(1)(b)(ii) of the MHO, 2 or more registered medical practitioners were required to give evidence that the mental disorder of the person concerned "is susceptible to treatment" for the court to grant a supervision and treatment order to him. Under subsection (1)(ii), this order was granted "with a view to the improvement of his mental condition". They wondered if this order was applicable to mentally handicapped persons who were in need of rehabilitative treatment. Mr Geoffrey FOX considered that if a person was mentally handicapped and his mental state was permanent, no treatment would ever change it. It therefore seemed to have no point to make such an order on him because the treatment would have no effect. Nevertheless, this should be something for the registered medical practitioners to advise the court and it would be up to the court to decide whether such an order would be appropriate for the mentally handicapped person concerned.

27. In the circumstances, Mrs Julie LEE considered that the supervision and treatment order might only be applicable to mentally disordered, but not to mentally handicapped persons. Moreover, she pointed out that the guardianship order was also not appropriate for mentally handicapped persons. Under the proposed new section 44B(1) of the MHO, "A guardianship order shall confer on the Director of Social Welfare as guardian the same powers as a guardianship application made and accepted under Part III." Mrs LEE considered that the Director of Social Welfare, as the guardian, had only the power to control the person who was placed under guardianship, but not to take care of him. As such, it seemed that both the guardianship order and the supervision and treatment order could not offer sufficient protection and care to mentally handicapped persons.

28. Mr Augustine CHOI pointed out that the term "treatment" of the supervision and treatment order could mean both "treatment" and "education". In order to address the deputation’s concern, Mr Geoffrey FOX suggested to define the term "treatment" with references to "education" so that the supervision and treatment order could be applicable to mentally handicapped persons. Mr Andrew KLUTH assured Members that the Administration would introduce suitable amendments to this effect.

Adm

29. Mr Michael HO considered it insufficient to provide such a definition of "treatment" because the aspect of "care" was left out. To his understanding, "treatment" did not mean "care". He therefore requested the Administration to provide information on how far mentally handicapped persons would be cared for under the supervision and treatment order. Mr Andrew KLUTH considered that "care" and "supervision" was more or less synonymous in this context. The level of supervision/care and treatment should be determined by the person making the order. Nevertheless, Mr KLUTH confirmed that the Administration would further look into this point to ensure that mentally handicapped persons would have a fair level of supervision/care as opposed to treatment under the supervision and treatment order.

Adm

Point C3 of the written submission - The proposed new section 44H of the MHO - List of institutions

30. The deputation noted that under the proposed new section 44H, "A supervision and treatment order may include requirements as to the residence of a supervised person and, where the supervised person is required to reside in an institution, the period for which he is so required to reside shall be specified in the order." They wondered what institutions it referred to and requested the Administration to gazette the list of the relevant institutions. Mr Andrew KLUTH advised that in broad terms, the types of institutions it referred to were hostels, half-way houses, nursing homes, etc. In response to the deputation’s request, Mr KLUTH said the Administration could ensure that there would be a published list of the relevant institutions for reference. However, it would not be necessary to include the list in the legislation.

Adm

Further Discussions

Assessment of an accused person’s fitness to plead

31. Dr LEONG Che-hung asked for clarification that if an accused person was seen to have certain mental problems, who should determine whether a specialist should be called for to assess his fitness to plead. Mr Geoffrey FOX advised that normally, the accused person, his friends or his lawyers might make the court aware that he was under disability. The court or the magistrate could determine whether he was behaving in such a fashion that reports on his fitness to plead should be called for. If so, the magistrate could adjourn the proceedings until the report was available.

Definitions of "fitness to plead" and "unfitness to plead"

32. Miss Margaret NG considered that at present, it seemed that there was no clear criteria for assessing an accused person’s fitness to plead. It was up to the registered medical practitioners to make their own assessments, which were normally accepted by the court. She suggested the Administration to put definitions of "fitness to plead" and "unfitness to plead" in the two Bills. Mr Augustine CHOI considered it difficult to state in the legislation the criteria under which the accused person should be assessed as "fit to plead" or "unfit to plead". Moreover, the professional judgement of the registered medical practitioners should be respected. Mr Geoffrey FOX also pointed out that the implementation of this proposal would involve an extensive consultation process with the Hong Kong Bar Association, the Law Society of Hong Kong and the Judiciary.

33. Miss Margaret NG remarked that she had no intention to hold up the two Bills but she considered it very important for the Administration to look into the subject. Mr Andrew KLUTH considered the subject beyond the scope of the two Bills. Nevertheless, he agreed to reflect Members’ views within the Administration.

Adm

Next Step

34. The Administration would provide a written response to the Bills Committee to address the points raised at paras. 14, 16, 19, 20, 22, 28, 29, 30 and 33 above.

Adm

Date of Next Meeting

35. The next meeting would be held on Monday, 29 April 1996 at 10 :45 a.m. in Conference Room B of the Legislative Council Building.

Close of Meeting

36. The meeting ended at 10 : 45 a.m.

LegCo Secretariat
25 April 1996