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

Action

Discussion among Members

Response from the Administration

(LegCo Paper No. CB(2) 1325/95-96)

The Chairman invited members to review the progress of the Bills Committee and conveyed the message from the parents organisations that they would like the Bills Committee to accept the Bill.

2. Regarding the Administration’s response to her question on the procedures to be followed after the trial had stopped under the proposed new section 75A(1)(a) of the Criminal Procedure Ordinance, Miss Margaret NG pointed out that it dealt only with part of the question, namely that witness might be called and the standard of proof and was therefore not a proper and satisfactory answer. She suggested that the Administration should revise the CSA to make it clear that the procedure for a criminal trial would apply save that it did not involve the finding of guilt or that it excluded a criminal liability. After stating her stance, Miss NG said that she was concerned that she did not put too much obstruction in the way of the enactment of the Bill and therefore would let other members decide what to do. She also raised her concern about the definition of "disability", which was a very wide definition, and wondered if it would fit in well with the Bill.

3. Dr LAW Chi-kwong concurred with Miss NG’s comments and suggested that the Administration should revise the CSA on that basis and to include important matters such as the burden of proof and the calling of witnesses.

4. Members also noted the contents of the letter dated 20 May 1996 from Dr Hon LEONG Che-hung regarding the definition of psychiatrists and the letter dated 20 May 1996 from the Law Society tabled at the meeting.

Meeting with the Administration

Question(1) - Definitions of "disability" and "fitness to be tried"

5. Mr Geoffrey FOX briefed the members on the Administration’s reply. Miss NG worried whether the wide definition as adopted from the UK by the Administration would work and requested the Administration to assure her that there was no problem with the adoption of this definition and that the rest of section 75 would still make sense.

6. Mr Patrick CHEUNG advised that since its adoption in 1964, the application of this definition in UK had not met with problem, and assured members that it would work well in Hong Kong. Miss NG said that she was not happy with the answer because that no independent assurance was given, but she did not wish to further pursue the matter.

Question (2) - UK rules governing certain procedure

7. Following Mr FOX’s brief explanation of the Administration’s reply, Miss NG clarified out that she did not specifically ask about the UK procedure but in response to her question on what procedure, the Administration answered that there was no problem in the UK and in that context, she asked what exactly the UK procedures were. The question was still a matter of the procedures to be followed. She did not consider that the proposed CSA answered the question completely as it only took out two aspects of it, namely whether the testimony of witnesses could be adduced and the burden of proof, which did not cover the procedure entirely. Miss NG suggested a provision to clearly define the procedure, by saying that the usual procedure for a criminal trial would apply except that it was not for the determination of guilt. Dr LAW supported Miss NG’s proposal. Mr FOX explained that since the new section 73A(3)(b) provided that the standard of proof should be beyond all reasonable doubt, all court proceedings applicable to a criminal trial would follow as a matter of course. He therefore assured members that the CSA submitted would achieve the same purpose but agreed to consider Miss NG’s proposal for a revised CSA.

Adm

8. Miss NG remarked that her personal preference was for a simple and all embrasive general provision that the procedure of a criminal trail applied for the purpose of clarification so that all parties involved had a clear picture and no inference would be necessary. Mr FOX suggested the formulation that "the law applicable to determination of fact in criminal proceedings shall be applicable". Members agreed that the Administration should put it in writing and Mr Stephen LAM, Assistant Legal Adviser 4, would look at it.

ALA4

Mr Stephen LAM raised his concern about which party would be responsible for proving a suspected criminal act beyond reasonable doubt. Mr FOX replied that it was for the Crown to prove it.

Question (3) - Psychiatrists

10. The Administration accepted the Bills Committee’s suggestion that at least 2 psychiatrists should give evidence and proposed to amend the relevant sections accordingly and to define psychiatrists as those on the list of approved doctors under section 2 (2) of the Mental Health Ordinance.

11. Dr LAW Chi-kwong referred to Dr LEONG Che-hung’s letter dated 20 May 1996 regarding the definition of "psychiatrist" and pointed out that the psychiatrists as listed in section 2(2) of the Mental Health Ordinance might not be the same group of people under the Specialist Register to be set up in the near future as they might not have the specialist training for accreditation by the Hong Kong Academy of Medicine and therefore wondered if Dr LEONG’s request for an undertaking from the Administration that amendments would be made to redefine "psychiatrist" if and when the Specialist Register of the Medical Council was set up could be entertained.

12. Mr Andrew KLUTH explained that the Specialist Register did not yet exist and it was therefore not clear what criteria would have to be met for acceptance to the Register. The proposal put by the Administration reflected the best definition currently available. Nevertheless, the Administration shared Dr LEONG’s concern and would reconsider the situation once the Register was established.

Question (4) - Distinction between insanity and disability

13. Mr FOX briefed the members on the Administration’s stance and the five disposal options for accused persons found not guilty by reason of insanity and for accused persons under disability who did the act or made the omission charged.

14. The Chairman referred to the letter dated 20 May 1996 from the Law Society to the Secretary for Security concerning the submission of the Society’s views in due course. Mr KLUTH believed that the point previously raised by the Law Society had been addressed in his reply of 15 May 1996. It was agreed that the Administration would follow up on the reply from the Law Society.

Adm

Next Step

15. The Chairman asked Mr Stephen LAM to review the revised version of CSA to be submitted by the Administration, and to communicate with Miss NG if necessary.

16. The Chairman requested Mr KLUTH to submit to the Bills Committee of a complete set of CSAs incorporating the revised CSA proposed by Miss NG.

Adm

17. Members also agreed that Mr LAM should examine the Bills clause by clause in the meantime and to bring to members’ attention should there be any problems.

ALA4

Date of Next Meeting

18. A meeting was tentatively scheduled for 3 June 1996 at 8:30 a.m. in Conference Room B of the Legislative Council Building in the event that there was a need for further discussion..

[Post-meeting notes: The meeting scheduled for 3 June 1996 was cancelled as further discussion was not required, with the concurrence of the Chairman.]

Close of Meeting

19. There being no other business, the meeting ended at 5:20 p.m.

LegCo Secretariat
12 June 1996