Minutes of Meeting of the Bills Committee to study
the Immigration Service (Amendment) Bill 1996

I. Confirmation of minutes of last meeting

The minutes of meeting held on 12 April 1996 (Ref: LP No . LB(2) 1081/95-96) were confirmed.

Action

II. Meeting with the Administration

2. Ms Ingrid HO referred members to the LegCo Brief for the background to and details of the proposed amendments. Ms HO highlighted the following points:

1. The lack of clearly defined powers to members of the Immigration Service to investigate certain immigration-related offences had resulted in duplication of work. At present, members of the Immigration Service made initial enquiries on offences relating to registration of births, deaths and marriages. If there was prima facie evidence of an offence, the case would be referred to the Police for full investigation and prosecution. The Police, upon receipt of the referral, had to repeat certain part of the work of the Immigration Service in taking statements and gathering evidence. The proposed shift of the responsibility for investigating these offences from the Police to the Immigration Department (ID) would allow redeployment of police resources currently dedicated to this area. Such transfer would also enhance the effectiveness of investigation as the nature of the offences fell within the ID’s expertise.
2. The existing 12-hour time limit within which the ID had to deliver an arrested person to the Police, unless the person was released or brought before a magistrate, caused practical difficulties. To allow the ID sufficient time to complete the necessary enquiries, the Bill proposed to extend the limit of 12 hours to 48 hours.
3. To relieve the overcrowding conditions in detention cells generated by the statutory requirement for delivery of immigration offenders to police stations, the Bill proposed that the ID might decide whether an arrested person should be delivered to the police or be taken to an office of the ID for further enquiries.

Detention Facilities and manpower resources

3. Members were concerned about the adequacy of facilities in the ID for detention of arrested persons for the purpose of making enquiries. They queried if the ID would require additional resources to discharge the responsibilities. In response, Mr Ambrose LEE said that at present an office of the ID at Ma Tau Wai could accommodate about 80 persons. The Administration was planning to establish a new immigration detention centre with a capacity of 300 persons to replace the Victoria Immigration Centre, but the time-table for construction of the centre had yet to be finalised. Regarding the manpower resources, Ms Ingrid HO said that the implementation of simplified procedures in some aspects of ID’s work had saved some resources and the ID would redeploy these resources to absorb the additional work. Mr Ambrose LEE supplemented that the Administration envisaged that only minimal additional resources would be required as the ID currently completed quite in-depth enquiries before referring a case to the Police for investigation and prosecution. As a matter of fact, only about 250 referrals were made to the Police in 1995.

4.At members’ request, the Administration would provide further information on detention facilities and manpower resources.

Adm

Extension of investigating powers to the Immigration Service

5. Members questioned the need to extend the investigatory powers to members of the Immigration Service in respect of the immigration-related offences specified in the Bill. They were concerned about the scope of the investigatory powers and how these powers would be exercised.

6. The response of the Administration is summarised below.

1. The powers to be extended to members of the Immigration Service were not novel. The same powers were currently given to the Police in investigating the immigration-related offences specified in the Bill. Without such powers, members of the Immigration Service would have difficulties in proceeding with the investigation. Indeed, under the existing section 56 of the Immigration Ordinance (IO), Cap 115, members of the Immigration Service were empowered to enter a place to effect the arrest of an illegal immigrant. However, the exercise of such power applied only to offences under the IO and did not cover offences relating to registration of persons, deaths, births and marriages nor certain forgery offences.
2. Under the exiting IO, members of the Immigration Service could enter a place without warrant to investigate certain offences such as forgery of travel documents. This power was necessary as in some cases, any delay in taking immediate action would have the risk of destroying important evidence. Under the proposed section 13C, the ID had to apply for a warrant from a magistrate to search a place and to seize articles which were likely to be of value to the investigation of an offence under the principal Ordinance.
3. The ID and the Police had an understanding on delineation of work. Where an offence primarily concerned immigration services, such as forged travel documents and forged identity cards, the ID would be responsible for investigation and prosecution. Should the case touch upon other criminal elements which fell outside the jurisdiction of the Immigration Service, such as forged credit cards or fake bank-notes, the ID would refer the case to the Police for further action. The Administration pointed out that the Bill only proposed extending the investigatory powers to the Immigration Service in respect of the specified offences and the Police still retained such powers to investigate these offences.
4. The present training provided to members of the Immigration Service included self-defence and skills to effect arrest in resistance. The focus of the training was on the personal security of members. When circumstances warranted, Police’s assistance would be sought. The Administration did not envisage that the investigation into the offences specified under Schedule 2 to the Bill would necessitate the use of force as they were minor offences. As shown in past records, amongst the specified offences, the most "popular" one was false statement on birth place. Comparatively speaking, the arrest of illegal immigrants and illegal labour involved a higher level of confrontation and resistance.

7. ALA4 confirmed that the Bill would extend the investigatory powers to members of the Immigration Service in respect of offences under Schedule 2 to the Bill. ALA4 advised that under section 50 of the Police Force Ordinance, Cap 232, the Police had powers similar to those conferred to members of the Immigration Service under the Bill. This section provided that where the police officer reasonably suspected any person guilty of an offence for which the sentence was fixed by law or for which he might (on first conviction for that offence) be sentenced to imprisonment, or where the police officer considered it impracticable to serve a summons on the suspect, the police officer was empowered to apprehend a person without any warrant. The Police also had the powers similar to those under the proposed section 13 to enter a place without warrant to effect the arrest of a suspect.

Extension of custodial time from 12 hours to 48 hours

8. On the reason to extend the detention of an arrested person from the maximum of 12 hours to 48 hours, Mr Ambrose LEE said that the ID had experienced difficulties in completing enquiries within 12 hours for delivery of the arrested person to the Police, in particularly after an operation against illegal labour in which a large number of illegal workers were arrested. In these cases, the ID was bound to release the illegal workers on bail who then took up illegal employment again. Mr YIM Kwan-hoi said that as provided under the existing section 12(1), the 12-hour time limit applied to persons suspected of being guilty of an offence under section 17, 18, 19, 20 or 21. The offences under these sections related to disaffection in and management of the Immigration Service and they were not immigration offences in the strict sense. Mr Ambrose LEE added that the offences in question were light in nature. At present the arrest of persons suspected of guilty of these offences were effected by members of the Immigration Service. However, in the past few years, very few persons had been arrested for these offences.

9. At Mr James TO’s request, the Administration would advise members on the original legislative intent of requiring the delivery of arrested persons to the Police within 12 hours.

Adm

Clause 4 - proposed section 12

Subclause (3)

10. Members were concerned that under the present drafting of subclause (3), any person assisting a member of the Immigration Service would have the same power of the latter to search a person and a place without warrant. The proposed section 13 (3) gave the same effect.

11. The Administration acknowledged members’ concern and would review the drafting.

Adm

Subclause (5)

12. Mr James TO questioned the disparity between the Immigration Service and the Police regarding the right of a person to object to be searched in a public place. Under the Police Force Ordinance, a person could not refuse being searched in a public place. Mr TO was of the view that if the investigatory powers were to be extended from the Police to the Immigration Service, the two enforcement agencies should be on a par in respect of powers.

13. Mr Ambrose LEE said that the spirit of the subclause was in line with the internal guidelines of the ID to tighten its power. The ID had assessed the nature of the offences under Schedule 2 and considered it acceptable to respect the person’s wish if he refused to be searched in a public place. In that case, the member of the Immigration Service would either take the person in question to an ID’s office or to a private place should the person so wish to effect the search.

14. Notwithstanding the Administration’s explanations, Mr James TO still had reservations about the disparity in power between the Police and the ID. Mr To said that the possibility of losing material evidence on the way to an ID’s office or to a private place could not be ruled out. Mr Ambrose LAU shared the concern about the likelihood of losing evidence crucial to an investigation. Mr LAU, however, pointed out that it might be desirable to restrict the number and the category of law enforcement agencies having the power to search a person in a public place. The Chairman said that she considered subclause (5) agreeable.

15. At members’ request, the Administration would further consider the issue and advise whether there had been any problem encountered in the past in the course of taking a person to a certain place to effect the search.

Adm

Clause 9 - proposed Schedule 2

16. Mr Ambrose LAU was concerned that the present drafting of Schedule 2 did not restrict the power of the Immigration Service to investigate only offences relating to immigration matters and the ID might investigate a wide variety of offences under the Crimes Ordinance, Cap 200.

17. ALA 4 said that the present drafting, in theory, would allow the ID to investigate non-immigration offences but in practice the ID would only invoke its investigatory powers when it suspected an immigration offence in the course of its work.

18. Mr Ambrose LEE responded that the legislative intent was to empower members of the Immigration Services to investigate immigration offences only.

19. ALA4 would liaise with the Administration on the drafting of Schedule 2.

ALA4/Adm

Date of Next Meeting

20. The next meeting would be held on 23 May 1996 (Thursday) at 2:30 p.m.

The meeting ended at 5:45 p.m.

LegCo Secretariat
22 May 1996