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

Action

Confirmation of the Minutes of the Second Bills Committee Meeting

(LegCo Paper No. CB(2) 1118/95-96)

The minutes of the second Bills Committee meeting held on 12 April 1996 were confirmed.

Meeting with the Administration

(LegCo Paper No. CB(2) 1121/95-96)

Question (a) - Institutions where supervised persons may reside

2. Mr Andrew KLUTH advised that the Administration proposed to gazette a notice to describe the types of institutions that might accommodate persons under supervision and treatment orders. It would include those major institutions operated by public organizations, but not an institution operated by the Correctional Services Department, nor a mental hospital operated by the Hospital Authority. They would be institutions providing training or care, or both, for the rehabilitation of persons from any mental disorder, including the mentally handicapped persons. The Director of Social Welfare (DSW) would consider the need to update the list from time to time.

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

3. Miss Margaret NG noted the Administration’s written reply to Question (b) that it did not intend to include the definition of "fitness to be tried" in the proposed legislation. Miss NG reiterated her concern raised at the last meeting (para. 32 of LegCo Paper No. CB(2) 1118/95-96) that at present, as there were 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. However, Miss NG considered that "fitness to plead" was a legal concept and should not be left to medical practitioners to decide. She wondered if the Legal Department could follow up the subject by defining "fitness to plead" or by other means so that the question of an accused person’s fitness to plead would not be left to medical practitioners. Miss NG also wondered why it was stated in para. 4 of the LegCo Brief that " A magistrate has no jurisdiction to make a finding of unfitness to plead or not guilty by reason of insanity." She considered this statement surprising as it appeared that the magistrates had been doing so all the time.

4. Miss Margaret NG requested the Administration to follow up this issue and provide a written reply to members in due course advising what action it would take to address the issue.

5. Mr Geoffrey FOX clarified that at present, it was not stated in the law that the accused person’s fitness to plead was determined by the registered medical practitioners. It should be a matter for the court to decide. However, Mr Ronald ARCULLI pointed out that in practice, unless there were two sets of different medical advice given to the court, the court would be hard pushed to disagree with the medical advice available. Therefore it appeared as if the medical practitioners were deciding on the accused person’s fitness to plead. Moreover, it would be difficult for the accused person, being a layman, to gain access to test the accuracy of the medical opinion. Mr ARCULLI considered this a practical problem that the Administration should address.

6. Dr LAW Chi-kwong wondered whether the jury, comprising lay persons, was given any guidelines to help them decide on the accused person’s fitness to plead based on the evidence of the medical practitioners. Mr Ronald ARCULLI considered that in the jury trial, the judge would give directions. Moreover, the prosecution and defence counsel would put forth their views in layman terms. Dr LAW was still concerned about how the judge would guide the jury to make the decision.

7. Mr Andrew KLUTH confirmed that he would reflect members’ views to the Legal Department. Miss Margaret NG proposed and the Chairman concluded that the issues involved (paras. 3 to 6 above) should be followed up by the LegCo Panel on Administration of Justice and Legal Services (AJLS Panel). The Administration would report in writing to the AJLS Panel in due course on how the issues would be addressed.

Adm

Adm

Question (c) - Proceedings and Question (d) - Relatives and friends as witnesses

8. Miss Margaret NG reiterated her concern raised at the last meeting (para. 16 of LegCo Paper No. CB(2) 1118/95-96) that after the trial had stopped under the proposed new section 75A(1)(a) of the Criminal Procedure Ordinance (CPO), the procedures involved under subsection (1)(b) would not be part of the trial. She wondered what rules of proceedings would be followed and whether the relevant procedures, such as the calling of witnesses, would be the same as those of a trial.

9. Mr Geoffrey FOX advised that under the proposed new section 75A(1)(a) of the CPO, the trial should stop after the jury had determined that the accused person was under disability. This had no effect on the proceedings under subsection (1)(b) to decide whether the person did the act or made the omission charged. In order to clarify this point, the Administration proposed to amend section 75A(1)(a) by adding "without prejudice to any proceedings for the purposes of paragraph (b)(ii) ". The Administration had also consulted the Judiciary on whether it required any extra rules-making power for the proposed new section 75A of the CPO. The Judiciary considered that it had enough ambit of rules-making power under the Supreme Court Ordinance for the rules they wanted to make. To address members’ concern, however, the Administration proposed to add a new subsection (3) to read "For the avoidance of doubt it is hereby declared that evidence that may be adduced under subsection (1)(b)(ii) includes testimony of witnesses." The Judiciary had no objection to this proposed Committee Stage Amendment but did not consider it necessary.

10. Miss Margaret NG was not satisfied with the Administration’s reply and requested clarification on the questions she raised at para. 8 above. Moreover, it appeared from the Administration’s written reply to Question (d) that witnesses could be called. Miss NG wondered whether the witnesses could be cross-examined and if so, what rules would be followed.

11. Mr Geoffrey FOX advised that the relevant provisions followed the UK legislation which had been enacted for 5 years. However, Mr FOX did not know whether the UK adapted its existing rules or introduced specific rules to cover this particular point. He undertook to look into it and provide the relevant UK legislation and rules for the reference of the Bills Committee.

Adm

Question (e) - Psychiatrists

12. Members noted the Administration’s proposal to amend the proposed provisions so that not less than one of the medical practitioners for assessing the accused person’s fitness to plead was a psychiatrist.

13. Dr John TSE reiterated his view expressed at the last meeting that the "2 or more registered medical practitioners" for assessing the accused person’s fitness to plead should be psychiatrists because a general medical practitioner might not have the relevant specialist knowledge to make the assessment ( para. 19 of LegCo Paper No. CB(2) 1118/95-96). Dr LAW Chi-kwong also considered that if 1 of the 2 registered medical practitioners was a general medical practitioner and the other one was a psychiatrist, it would be difficult for the former to disagree with the latter. He therefore supported Dr TSE’s proposal.

14. Mr Andrew KLUTH explained that as there was no definition of the term "psychiatrist" in the law, the Administration could not make it a legal requirement that all of the registered medical practitioners for making the assessment must be psychiatrists. However, the Administration could make it clear to the court that it was expected to take qualified medical opinion in deciding on an accused person’s fitness to plead.

15. Dr LAW Chi-kwong appreciated the difficulties involved. However, he pointed out that the problem should be resolved in a few months’ time when the Medical Registration (Amendment ) Ordinance 1996 became effective, after which there would be a Specialist Register in the Medical Council of Hong Kong where qualified psychiatrists should be included. Mr Geoffrey FOX considered that there might still be difficulties because it was not known how many psychiatrists who applied for inclusion in the Specialist Register would be accepted. If the number accepted was small and yet the proposed provisions were amended to the effect that not less than two of the medical practitioners for assessing the accused person’s fitness to plead were psychiatrists, there might not be enough psychiatrists to meet the legal requirement.

16. In response to the Chairman’s enquiry on the existing practice, Mr Augustine CHOI advised that at present, the assessment was normally made by two medical practitioners in the Psychiatric Ward. Mr PANG Sung-yuen added that the medical practitioners concerned were normally visiting doctors from Castle Peak Hospital to Siu Lam Psychiatric Centre.

17. In order to facilitate members’ consideration on the subject, Miss Margaret NG requested the Administration to provide information on the number of persons in Hong Kong who regarded themselves as psychiatrists and the number of cases that they had been asked to give medical opinion on the accused persons’ fitness to plead. Mr Andrew KLUTH undertook to consult the Secretary for Health and Welfare and provide the relevant information to the Bills Committee.

Adm

18. Mr Andrew KLUTH advised that the Administration had also looked into the question of whether psychologists should be included for treatment of people on behavioural means. The Administration suggested to amend the proposed new section 44D(1)(ii) and 44G(1) of the Mental Health Ordinance (MHO) by adding "(or other appropriately qualified person)" after "a registered medical practitioner" so that psychologists could be asked to give advice as and when necessary.

Question (f) - Penalty which is fixed by law

19. Members noted the Administration’s written reply that the only offence the sentence of which was fixed by law was murder.

Question (g) - Refusal to receive a person into guardianship

20. Mr Andrew KLUTH advised that the intention of the proposed new section 44A(2) of the MHO was for the DSW to advise the court but not for him to refuse to receive a person into guardianship if so directed by the court. The Administration proposed to add a new section 44A(1)(c)(iv) to the MHO to make it clear that the DSW was required to give advice to the court on the suitability of the guardianship order in the case of the person concerned and the availability of a suitable guardian. It was ultimately for the court, not the DSW, to decide whether to make a guardianship order on the person concerned.

Question (h) - Supervision and treatment orders

To add a further definition of "mental disorder"

21. Mr Geoffrey FOX advised that the definition of "mental disorder" in section 2 of the existing MHO already covered mentally handicapped persons. However, in order to address the Hong Kong Council of Social Service (HKCSS)’s concern raised at the last meeting on the treatment of mental retardation which was a permanent condition, the Administration proposed to add a further definition of "mental disorder" in the proposed new section 44C of the MHO so that in relation to treatment under the supervision and treatment orders, the term had an extended meaning to cover behaviour manifested by a mental disorder. In response to Mr Ronald ARCULLI’s enquiry, Mr FOX explained that "behaviour manifested by a mental disorder" would be behaviour manifested by someone suffering from mental retardation.

To add a definition of "treatment"

22. Mr Andrew KLUTH advised that the Administration proposed to add a definition of "treatment" in the proposed new section 44C of the MHO so that it included education, training and behaviour management. With this definition, supervision and treatment orders would be applicable to mentally handicapped persons.

To replace "mental condition" by "mental disorder"

23. Dr LAW Chi-kwong wondered why the Administration proposed to replace "mental condition" in the phrase "with a view to the improvement of his mental condition" in the proposed new sections 44D(1)(ii) and 44G(1) of the MHO by "mental disorder". Mr Geoffrey FOX explained that there was no legal definition of "mental condition". Moreover, an improvement in a person’s mental condition actually meant an alleviation of mental disorder from which he was suffering. Mr Ronald ARCULLI asked whether the change was really necessary. Mr Andrew KLUTH explained that the change was proposed to address the HKCSS’s concern expressed at the last meeting that there might be some conditions that could not be improved, such as the mental condition of the mentally retarded persons. Mr FOX added that with this proposed change and the newly added definition of "mental disorder" mentioned at para. 21 above, the improvement of the behaviour of the mentally retarded persons would be covered.

Questions from the Law Society of Hong Kong (Law Society)

24. Members noted that the Law Society was concerned that under the proposed section 75(4) of the CPO, the same jury was to determine the accused person’s fitness to plead and whether he was guilty or not. In response to Miss Margaret NG’s enquiry, Mr Geoffrey FOX confirmed that the Administration had, after considering the Law Society’s views, agreed to bring the proposed section 75(4) of the CPO back into line with the extant section 75(4) insofar as the High Court was concerned.

25. Members also noted the Law Society’s views that there should be a distinction made between an accused person who was not guilty by reason of insanity and an accused person under disability who did the act or made the omission charged. The Administration had responded in writing that it did not intend to make such a distinction in this exercise but would examine the proposal in detail in a separate exercise. Miss Margaret NG asked for the details of the separate exercise and when it would be conducted. Mr Geoffrey FOX clarified that what the Administration meant was that the matter would be looked at. Miss NG requested the Administration to keep members informed of the developments of the issue, such as which department would look at the issue and when a preliminary decision on the way forward could be reached. After discussion, members agreed that the Administration should provide the required information in writing to the AJLS Panel and the Law Society in 6 months’ time. Mr Andrew KLUTH undertook to refer the matter to the Legal Department.

Adm

Adm

Next Step

26. Mr Andrew KLUTH undertook to take follow up action on paras. 7, 11, 17 and 25 above.

Adm

27. Regarding the issues raised at paras. 7 and 25 above, the Chairman considered that members of the LegCo Panel on Welfare Services should be invited to attend the relevant AJLS Panel meetings for the discussion of the issues in due course.

CAS(2)4

Date of Next Meeting

28. The next meeting would be held on Monday, 20 May 1996 at 4:30 p.m. in Conference Room A of the Legislative Council Building.

Close of Meeting

29. The meeting ended at 12:05 p.m.

LegCo Secretariat
8 May 1996