Bills Committee on the
Immigration Service (Amendment) Bill 1996

Matters Arising

In the previous two meetings held on 23 May and 11 June 1996 respectively, the Chairman had expressed her concern that with the new powers to be conferred on members of the Immigration Service by the Bill, the Administration should ensure the provision of :

Action

(a) relevant training and guidelines to members of the Immigration Service so that they would exercise the new powers properly; and

(b) a redress system for the public to lodge complaints against abuse of power by members of the Immigration Service, if any.

In response to the Chairman's request at the meeting held on 23 May 1996, the Administration had agreed to provide an information paper to the LegCo Panel on Security in due course on items (a) and (b) above.

2. In respect of item (a) above, the Chairman clarified that the relevant training and guidelines should cover all new powers to be conferred on members of the Immigration Service by the Bill, such as investigatory power, detention power and power to arrest. The Administration confirmed that it would provide the required information paper to the LegCo Panel on Security in due course.

Adm

Discussion on the Administration's Written Response

(LegCo Paper No. CB(2) 1657/95-96)

3. Ms Ingrid HO briefed members on the Administration's written response to the points raised by members at the last meeting.

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

Section 12(1)(b)

4. Members noted the Administration's proposal to stipulate a maximum detention period of 12 hours in the proposed section 12(1)(b). In general, members supported to state expressly in the law a maximum detention period for inquiry. However, they were concerned :

(a) that members of the Immigration Service might abuse their power by detaining a person up to the maximum detention period unnecessarily; and

(b) whether "12 hours" was an appropriate time limit for detention for inquiry.

5. Regarding para. 4(a) above, Mrs Selina CHOW considered it essential to ensure that members of the Immigration Service would start the inquiry immediately after the person was detained but not after he had been detained for 11p hours. Mr IP Kwok-him shared her concern. Mr Ambrose LEE advised that the spirit of the provision of the proposed section 12(1)(b) was to detain a person for a reasonable period for inquiry. The essence of this provision was "reasonable". It would be unreasonable if members of the Immigration Service did not start the inquiry right after the person was detained.

6. Regarding para. 4(b) above, Miss Margaret NG referred to the Administration's advice at previous meetings that the detention period for inquiry before formal arrest would normally last less than 20 minutes (para. 10 and para. 21 of LegCo Paper Nos. CB(2) 1539 and 1644/95-96 respectively) and queried the Administration's proposal to set the maximum detention period at 12 hours. Mr YIM Kwan-hoi explained that the intention was to meet operational need under circumstances where members of the Immigration Service required more time to conduct the inquiry. He quoted an example in which a person was suspected to be in possession of a forged visa stamped on his travel document. It might then be necessary for members of the Immigration Service to go to his home and/or office to search for the relevant evidence. In the circumstances, they would need time to travel from one place to another, to conduct the search and to deliver the relevant evidence (e.g. documents) back to their office.

7.To meet the operational need under normal and special circumstances, Mr Bruce LIU suggested to adopt an approach similar to that provided under section 26(a) and (b) of the Immigration Ordinance (Cap. 115). He proposed that under normal circumstances, a person might be detained for not more than 2 hours and that under special circumstances where any member of the Immigration Service of or above the rank of Principal Immigration Officer considered it justified for further detention, the person concerned might be detained for a further period, say, 10 hours. Mr IP Kwok-him supported this approach.

8. Mr Ambrose LEE advised that the Administration had already looked into the provisions of section 26(a) and (b) of the Immigration Ordinance but considered those provisions not an appropriate model for the proposed section 12(1)(b) in view of the operational difficulties that might be caused. Firstly, if a short initial detention period was set, e.g. 2 hours, members of the Immigration Service had to be mindful about the timing so that a person would not be detained for more than 2 hours. This would hamper the efficiency in operations. Secondly, it might not be possible for them to get a senior official's approval within a very short period of time for further detaining the person. Mr Ambrose LEE assured members that the Administration had considered the matter carefully and concluded that "12 hours" was a reasonable time limit.

9. Miss Margaret NG was concerned that a person might be detained by members of the Immigration Service for 12 hours for inquiry before formal arrest under the proposed section 12(1)(b) and then, for 48 hours after arrest under the proposed new section 13A(7). As a result, the person would be detained for a total of 60 hours, which would be longer than the maximum detention period of 48 hours by the Police. To address Miss NG's concern, Mr Ambrose LEE proposed to add a proviso to state that a person should not be detained for an overall period (before and after formal arrest) of more than 48 hours without being charged and brought before a magistrate. Mrs Selina CHOW was concerned that this proposal might mix up the detention period before and after formal arrest. Mr Bruce LIU shared her view and was concerned that the proposal might give rise to a situation where a person was detained for 47 hours and 1 hour respectively before and after formal arrest.

10. After discussions, members and the Administration reached a consensus that :

(a) "reasonableness" should be the prime consideration in determining the length of a detention period;

(b) detention under section 12(1)(b) for inquiry before formal arrest should not exceed 12 hours; and

(c) the overall detention period (before and after formal arrest) should not exceed 48 hours.

The Administration undertook to prepare the relevant CSAs accordingly.

Adm

Section 12(1)(d)

11. Mr Bruce LIU considered that normally, it would only take a very short period of time to search a suspect. He therefore queried the purpose of imposing a maximum detention period of 12 hours in the proposed section 12(1)(d).

12. However, Mrs Selina CHOW was concerned that if a maximum detention period was provided in the proposed section 12(1)(b) but not in (d), the Administration might make use of the provision of (d) for detaining a person for inquiry. ALA4 advised that under the proposed section 12(1)(d), a person might be detained for a period "reasonably required for the purpose of effecting such a search". ALA4 pointed out that "such a search" referred to the "search" mentioned in the proposed section 12(1)(c), which was a search on the person for anything that was likely to be of value to the investigation of the offence. The reasonable time required to conduct such a search on the person should be much less than that required to conduct an inquiry under the proposed section 12(1)(b). Hence, it would be unlikely for the Administration to make use of the provision of (d) for detaining a person for inquiry.

13. The Chairman and Miss Margaret NG pointed out that under the proposed section 12(5), a person had the right to object being searched in a public place. If he raised his objection, he would be brought to somewhere else, for example, the office of the Immigration Service, for the search. In the circumstances, members of the Immigration Service might need more time than usual to conduct the search. The Chairman and Miss NG therefore had no objection to set the limit at 12 hours.

14. After discussion, members accepted the Administration's proposal to stipulate a maximum detention period of 12 hours in the proposed section 12(1)(d).

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

15. Members accepted the Administration's proposed amendments to the proposed section 13(1) and (2).

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

Section 13A(2)(a)

16. Regarding the Administration's proposed amendment to replace the phrase "at any other place" in the proposed new section 13A(2)(a) by "at a designated place", but not by "at any designated places of detention" as agreed at the last meeting, Mr Bruce LIU sought clarification on the meaning of "designated place" if the word "detention" was left out. Ms Sherman CHAN advised that the Administration had prepared a CSA to add a subsection (10) to the proposed new section 13A under which "the Secretary for Security may, by order published in the Gazette, designate any place as a designated place for the purposes of this section".

Section 13A(3)(b)

17. Members noted that the Administration had looked into the proposed amendments to the Independent Commission Against Corruption Ordinance under the Prevention of Bribery (Miscellaneous Provisions) (No. 2) Bill 1995 but considered it not appropriate to make similar amendments to the proposed new section 13A(3)(b). The Administration preferred not to allow a person on bail to have a choice to continue to be released on bail or be detained during the bail period. Mr James TO remained of the view that similar amendments should be made. However, he accepted the Administration's decision on the grounds that he had not come across any complaints against the ID in this aspect.

18. In response to Mr Ambrose LAU's enquiry, Mr Ambrose LEE confirmed that the Police, same as the ID, did not allow a person on bail to have such a choice.

Section 13A(3) and (4)

19. In response to ALA4's enquiry, Ms Sherman CHAN advised that the Administration's proposed amendments to the proposed new section 13A(3) and (4) were to tighten the relevant provisions to make it clear that "a person" referred to the one who had been released on bail but not any other third party.

Section 13A(8)

20. Members noted that the Administration had agreed to delete the proposed new section 13A(8).

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

21. Members noted the Administration's proposed amendment to the proposed section 14 so that the amended section would be consistent with the relevant provision of the Police Force Ordinance, Cap. 232.

Clause 9 - Schedule Added

The proposed new Schedule 2

22. Mr YIM Kwan-hoi briefed members on the draft Immigration Service Standing Order attached at Annex C to the Administration's written response. It provided instructions to members of the Service on how to handle investigation of suspected offences under the Crimes Ordinance as listed in the proposed new Schedule 2. In response to the Chairman's enquiry, Mr YIM Kwan-hoi advised that the Departmental Order would be issued internally after the passage of the Bill.

Next Step

23. The Administration undertook to revise the CSAs (Annex A to LegCo Paper No. CB(2) 1657/95-96) to take account of what had been agreed at the meeting and to pass the revised set of CSAs to the LegCo Secretariat by 24 June 1996. The Clerk would circulate the CSAs to members for consideration.

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Clerk

Legislative Timetable

24. Subject to members' agreement to the revised set of CSAs, the Bills Committee would report its deliberations to the House Committee on 28 June 1996, recommending resumption of the Second Reading debate of the Bill on 10 July 1996. The deadline for giving notice of CSAs would be 1 July 1996.

Clerk

Adm

Close of Meeting

The meeting ended at 10:30 a.m.
LegCo Secretariat
8 July 1996