Confirmation of the Minutes of the Third Meeting

(LegCo Paper No. CB(2) 1539/95-96)

The minutes of the third meeting held on 23 May 1996 were confirmed.

Action

Discussion on the Administration's written response

(LegCo Paper No. CB(2) 1536/95-96)

2. Ms Ingrid HO and Mr Ambrose LEE briefed members on the Administration's written response to the points raised by members at the last meeting.

Relevant training to be provided to members of the Immigration Service

3. Some members expressed concern about the need to provide relevant training to members of the Immigration Service so that they could exercise properly the investigatory and detention powers conferred on them by the Bill.

4. On investigatory powers, Mr Ambrose LEE pointed out that at present, there were about 400 officers working in the Investigation Division of the Immigration Department (ID). They were entrusted with the duties of investigation into immigration offences and were required to undergo special training in the ID and various training courses organized by other law enforcement agencies. With all these training on investigation, the Administration was confident that they should be able to exercise properly the new powers conferred on them by the Bill to investigate offences relating to the registration of births, deaths and marriages, and the registration of persons, and certain forgery offences. In fact, most of the new investigatory powers were similar to existing powers exercised under the Immigration Ordinance, Cap. 115.

5. In respect of detention powers, Mr Ambrose LEE advised that at present, persons arrested by members of the Immigration Service would be detained in the office of the ID for taking statements and then delivered into the custody of the officer in charge of a police station within 12 hours of the arrest, unless he had been released or brought before a magistrate. Members of the Immigration Service had been provided with the relevant training and guidelines on the proper procedures in detaining offenders in the office of the ID. In preparation for the establishment of its own detention centre, the ID had liaised with the Commissioner of Correctional Services who agreed to provide training to members of the Immigration Service on management of detention centre.

6. The Chairman reminded the Administration that as agreed at the last meeting (para. 7 of LegCo Paper No. CB(2) 1539/95-96), it should provide an information paper to brief the LegCo Panel on Security in due course on the provision of training, guidelines to members of the Immigration Service and, a redress system for the public to lodge complaints against their abuse of power, if any.

Adm

Detention centre of the Immigration Department

7. Mr Bruce LIU noted from para. 8 of the LegCo Brief on the Bill that " in 1994, a monthly average of 214 immigration offenders were detained at various police stations......... The figure has increased to 242 up to September in 1995." He therefore wondered whether the establishment of only one temporary detention centre at Ma Tau Kok Road Government Offices would be sufficient for the detention of immigration offenders. He also considered it inconvenient to deliver those immigration offenders arrested in the New Territories to this temporary detention centre in Kowloon. He asked whether the Administration would plan for the establishment of detention centres in various districts in the long term to cope with the demand.

8. Mr Ambrose LEE advised that the temporary detention centre at Ma Tau Kok Road Government Offices would only be used for detention of immigration offenders for not more than 48 hours. For the time being, the Administration considered it sufficient to establish only one centre for the purpose and had no plans for the establishment of detention centres at various districts. Mr LEE also confirmed that all immigration offenders, irrespective of the place of arrest, would be detained at the temporary detention centre at Ma Tau Kok Road Government Offices. At Mr LIU's request, Mr LEE agreed to inform the Kowloon City District Board of the establishment of this temporary detention centre before it came into operation.

Adm

In response to the Chairman's enquiry, Mr Ambrose LEE confirmed that before the temporary detention centre came into operation, the existing arrangement under which immigration offenders detained under the provisions of the Immigration Ordinance were placed at police stations would continue. The Police would also follow up with escorting those who had been charged by the ID to court.

The proposed section 12(3)

9. In response to the Chairman's enquiry, ALA4 advised that the Administration's proposed amendment to add "at the request of a member of the Service" after the phrase "any person acting in his aid" was reasonable. Members accepted the proposal but pointed out that it might be necessary to introduce similar amendments to other relevant ordinances, such as the Customs and Excise Service Ordinance, Cap. 342, and the Fire Services Ordinance, Cap. 95. Ms Ingrid HO agreed that the Administration would review the relevant ordinances and advise members the outcome of the review in due course.

Adm

The proposed section 12(5)

10. Members were pleased to note that the ID would lay down departmental procedures to require immigration investigators to inform a person to be searched of his right under the proposed section 12(5), i.e. the right to object being searched in a public place, before the search was conducted. Mr Bruce LIU pointed out that the person being searched in a public place might complain afterwards that he had not been informed of his right under the proposed section 12(5). Mr Ambrose LEE advised that immigration investigators were required to record their actions in their own notebooks. This record could show whether they had complied with the relevant departmental procedures.

The proposed new Schedule 2

12. Members noted that the Administration, after careful consideration, still considered it undesirable to add such words as "immigration-related" to narrow down the proposed new Schedule 2 with reasons detailed in pages 4, 5 and 6 of the Administration's written response.

13. In response to the Chairman's enquiry, ALA4 advised that the Administration had rightly pointed out two things in its written response. Firstly, in some other ordinances, such as the Customs and Excise Service Ordinance, Cap. 342, members of the Customs and Excise Service were given powers to investigate offences not necessarily customs and excise related. For example, under the Organized and Serious Crimes Ordinance, Cap. 455, a Customs and Excise officer was given a general authority to investigate offences which might or might not be related to customs and excise matters. Secondly, it was a positive duty on the part of members of the Immigration Service to investigate some non-immigration-related offences under the Crimes Ordinance as listed in the proposed new Schedule 2. The proposed drafting of the new Schedule 2 would allow them more flexibility in discharging this positive duty. However, it would be a policy consideration for members as to whether members of the Immigration Service should be given unqualified power under the Bill to investigate non-immigration-related offences.

14. In response to Mr James TO's enquiry, Ms Ingrid HO advised that the proposed new Schedule 2 served two purposes as follows :

1. In the first place, it empowered members of the Immigration Service to investigate other offences not within their purview but were disclosed in the course of investigation. It enabled them to freeze the scene of crime, detain the suspects and call for the appropriate authorities to take over the investigation ; and

2. it also empowered them to investigate offences under the Crimes Ordinance as listed in the proposed new Schedule 2 which were immigration-related but could not be prosecuted under immigration-related legislation. These offences were not discovered during the investigation of a suspected offence under the immigration related ordinances.

Ms Ingrid HO considered that the present drafting of the proposed new Schedule 2 could achieve these two purposes.

15. In connection with para. 14(a) above, Mr James TO agreed that members of the Immigration Service should be empowered to freeze the scene etc. However, it appeared from the present drafting of the Bill that they would also have the power to conduct further investigation into such cases. ALA4 considered that the investigatory powers conferred on members of the Immigration Service by the Bill were not restricted to initial inquiry. However, the ID might issue departmental guidelines to restrict their power in this respect. Mr Ambrose LEE assured members that after the passage of the Bill, the Director of Immigration would issue departmental guidelines under which members of the Immigration Service would be required to deliver person arrested in such cases to the Police for follow up action.

Adm

16. In response to Mr James TO's enquiry on para. 14(b) above, Mr YIM Kwan-hoi quoted an example where the airline staff at the airport check-in counter discovered that a certain passenger was in possession of a forged visa stamped on a genuine travel document. This involved an offence under the Crimes Ordinance which was immigration-related but could not be prosecuted under immigration-related legislation. At present, members of the Immigration Service, after receiving such a report from the airline staff, would refer the case to the Police for follow up action. The Bill would enable such cases to be followed up by members of the Immigration Service.

17. In response to Mr James TO's enquiry, Ms Ingrid HO confirmed that from the Security Branch's point of view, it was more appropriate for the ID than the Police to follow up this type of cases because the former possessed the relevant knowledge and expertise. It was one of the reasons why the Administration had proposed to include in the new Schedule 2 offences under the Crimes Ordinance. In this connection , Mr Howard YOUNG advised that from the operational point of view, airline companies would normally refer such cases to the ID, instead of the Police, for follow up actions.

18. Mr James TO had no objection to the Administration's proposal to maintain the original drafting of the new Schedule 2. However, he considered that the ID should exercise self-control by setting clear departmental guidelines to define the limit of the investigatory powers of members of the Immigration Service. Mr Bruce LIU and Mr IP Kwok-him supported this approach. Mr Ambrose LEE confirmed that the Director of Immigration would issue a departmental order under section 9 of the Immigration Service Ordinance for the purpose. Mr LEE agreed to prepare a draft order for members' consideration.

Adm

19. Mr Bruce LIU asked whether the ID or the Attorney General's Chambers would be responsible for the prosecution of the offences listed in the proposed new Schedule 2. Mr Ambrose LEE advised that at present, investigation officers of the ID handling immigration offence cases were also responsible for the prosecution work involved. The same would apply to those offences under the Crimes Ordinance listed in the proposed new Schedule 2. In response to Mr Bruce LIU's enquiry, Mr Ambrose LEE advised that at present, the ID handled more than 20,000 prosecution cases each year. After the passage of the Bill, it was expected that there would be an increase of about 400 prosecution cases. He envisaged that the ID should have no difficulty in absorbing the additional workload.

Clause by Clause Examination of the Bill

Clause 4 - The proposed section 12 - Power to arrest and search suspects, etc.

20. Mr James TO expressed his grave concern about the proposed section 12(1)(b) under which a member of the Immigration Service might detain a person "for a reasonable period while the member inquires about the suspected commission of the offence." He quoted an example where a member of the Immigration Service suspected the possession of a forged travel document by a person who was leaving Hong Kong at the airport. He might then detain the person for inquiry under the proposed section 12(1)(b) while he made use of the detention period to gather the relevant evidence. However, it might take him several days or even more time to verify the authenticity of the travel document by seeking clarification with the relevant embassy in Hong Kong and the government authorities in the relevant country. Mr TO considered it highly inappropriate and dangerous to allow detention of a person for inquiry before formal arrest for an uncertain time period. He therefore considered it essential to add a time limit in the proposed section 12(1)(b).

21. In response to Mr Bruce LIU's enquiry, Mr Ambrose LEE advised that as pointed out in the last meeting, the detention period for inquiry before formal arrest would normally last less than 20 minutes. The situation quoted by Mr James TO should not occur as the person concerned would be released if no relevant evidence could be gathered within a short period of time.

22. In response to the Chairman's enquiry, Ms Sherman CHAN and ALA4 advised that Mr James TO's proposal was legally in order. However, Ms CHAN pointed out that the original drafting of the proposed section 12(1)(b) was not peculiar. In fact, it was not uncommon to state "for a reasonable period" in the law, leaving flexibility for the court to decide on the reasonableness of the time period based on special circumstances of each particular case. ALA4 advised that whether a certain period of time was reasonable was an objective judgement. It was not to be judged from the ID's point of view but from a point of view of a man on the street.

23. Mr IP Kwok-him and Mr Bruce LIU had reservations on the proposed addition of a time limit in the proposed section 12(1)(b). Mr IP considered that this proposal implied that the specified time limit was a reasonable period of time for detention for inquiry before formal arrest. The Chairman shared his view.

24. Mr James TO pointed out that under the proposed new section 13A(7), "a person who is detained at an office of the Service under subsection (2)(a) shall be charged and brought before a magistrate within the period of 48 hours immediately following his arrest unless......". As there was a specified time limit in the provision for detention after arrest, Mr TO could not see why the same could not be done for detention for inquiry before formal arrest.

25. After discussion, Ms Ingrid HO proposed that after the passage of the Bill, the Director of Immigration would issue a departmental order under section 9 stating that under normal circumstances, members of the Immigration Service would be required to complete the inquiry and release the person concerned within a specified time limit. Under special circumstances where it was necessary to detain the person beyond the specified time limit, members of the Immigration Service should seek the approval of a senior official of the ID. Mr James TO considered this proposal unacceptable. In order to protect individual freedom, he strongly requested the Administration to further consider adding a time limit in the proposed section 12(1)(b).

26. To draw a comparison, Mr James TO pointed out that under the proposed section 12(1)(d), members of the Immigration Service might "detain the person during such period as is reasonably required for the purpose of effecting such a search." He would accept this provision because normally, it only took a very short period of time for searching a suspect. It was therefore not necessary to add a time limit in this subclause.

27. To facilitate members' consideration on the subject, Mr Bruce LIU requested the Administration to provide the following information :

1. the relevant provisions in other ordinances ; and
2. the time taken to detain a person for inquiry under the proposed section 12(1)(b) in previous operations.

Adm

28. The Chairman requested the Administration to look into Mr James TO's proposal and if considered agreeable, to propose a time limit based on the information at para. 27(b) above.

Adm

Clause 4 - The proposed section 13 - Power to enter and search for suspects

29. Some members expressed concern on how to ascertain who was the person "appearing ....... to have control of the place" as stated in the proposed section 13(1) and (2). Mr Ambrose LEE advised that normally, members of the Immigration Service would first press the door bell. They would then ascertain from the person answering the door who was the one having control of the place. If there was no response, they would break in to search for the suspect. Ms Sherman CHAN advised that if there was only one person in the place, he would be regarded as the person having control of the place, even if he was only a visitor.

30. Mr James TO noted that under section 50(3) of the Police Force Ordinance, Cap. 232, the phrase "or in charge of such place" was used instead. He considered this drafting not so loose as that of the phrase "appearing..... to have control of the place" in the proposed section 13(1) and (2). He wondered what was the policy intent in using different phrases in similar provisions of the Immigration Service Ordinance and the Police Force Ordinance.

31. Ms Sherman CHAN advised that when drafting this provision, she had also made reference to the Customs and Excise Service Ordinance where the phrase "having apparent control of such premises" was used. Mr James TO requested the Administration to look into the then policy intent in introducing the relevant provisions of the Police Force Ordinance and the Customs and Excise Service Ordinance. Mr Ambrose LEE agreed to introduce amendments to the proposed section 13(1) and (2) with reference to the wordings of the relevant provisions of the Police Force Ordinance.

Adm

Adm

Clause 4 - The proposed new section 13A - Procedure after arrest

Section 13A(2)(a)

32. Mr James TO asked for clarification on what places the phrase "at any other place" was referring to. Mr YIM Kwan-hoi advised that it referred to places like the temporary detention centre at Ma Tau Kok Road Government Offices. Mr TO suggested to replace the phrase by stating the relevant places expressly in the law. Mr Ambrose LEE proposed and members agreed to replace the phrase by "at any designated places of detention".

Adm

Section 13A(2)(b)(i)

33. The Chairman wondered why it was the Immigration Officers to determine the sum of money that a person was required to deposit for the purpose of release on bail. Mr YIM Kwan-hoi advised that the Immigration Officer would determine the sum based on the seriousness of the offence and the likelihood of the person to abscond. In response to the Chairman's enquiry, Mr YIM advised that in most cases, the sum involved was normally small, just a few thousand dollars or less.

Section 13A(3)(b)

34. Mr James TO suggested the Administration to review the proposed section 13A(3)(b) by making reference to the Prevention of Bribery (Miscellaneous Provisions)(No. 2) Bill 1995 under which the relevant provisions of the Independent Commission Against Corruption (ICAC) Ordinance were proposed to be amended.

Adm

Section 13A(8)(a)

35. Mr James TO wondered whether it was necessary to have the provision of the proposed new section 13A(8)(a). As far as he understood, the Police could perform similar function as stated in this subclause even though there was no such provision in the Police Force Ordinance. As members' request, the Administration would look into the entire subsection (8).

Adm

Section 13A(9)

36. In response to the Chairman's enquiry, Ms Sherman CHAN advised that the provision of the proposed new section 13A(9) was modelled on the ICAC Ordinance. Mr Ambrose LEE advised that the purpose of this provision was to enable the Governor to give directions on how the detention centre should be run.

Clause 4 - The proposed new section 13B - Arrest of persons granted bail

Section 13B(2)

37. The Chairman noted that under the proposed new section 13B(2), "a person who is arrested under subsection (1) shall be brought before a magistrate within the period of 24 hours immediately following his arrest or, if he is not so brought within that period, as soon as practicable after its expiry, .......". She wondered why the person was not brought before a magistrate within the period of 24 hours immediately following his arrest. Mr Ambrose LEE advised that this was likely to happen when the court was closed, such as on public holiday or on the day of typhoon.

Section 13B(4)

38. The Chairman noted that under the proposed new section 13B(4), "nothing in this section shall derogate from or otherwise affect the powers of arrest conferred by section 9K of the Criminal Procedure Ordinance (Cap. 221)." She wondered why section 9K of Cap. 221 was related to this section. Ms Sherman CHAN advised that under section 9K of Cap. 221, a police officer might, in certain situations, arrest and detain without warrant any person admitted to bail. The provision of the proposed new section 13B(4) was to ensure that the powers of arrest conferred on the Police by section 9K of Cap. 221 would not be affected by this new section.

Clause 4 - The proposed new section 13C - Power of search and seizure

Section 13(C)(1)

39. In response to the Chairman's enquiry, Mr YIM Kwan-hoi advised that the provision of the proposed new section 13C(1) was mainly about the search of a place for evidence. It was different from the proposed section 12 in the sense that it was not about the search/arrest of suspects and that the search must be conducted with warrant.

Clause 5 - The proposed section 14 - Power to take photograph, etc. of arrested person

40. In order to be consistent with the relevant provision of the Police Force Ordinance, Mr James TO suggested to add ", if the person prefers," after "shall be destroyed forthwith or" in the last sentence of the proposed section 14(2). The Administration agreed to introduce the amendments accordingly.

Adm

Next Step

41. The Administration would provide a written response to address the points raised by members at the meeting.

Adm

Date of Next Meeting

42. The next meeting would be held on Saturday, 22 June 1996 at 9:00 a.m. in Conference Room B of the Legislative Council Building.

Close of Meeting

43. The meeting ended at 1:05 p.m.

LegCo Secretariat 19 June 1996