2.The Deputy Director of Administration ( DD(A) ) reported that, on the advice of the Privacy Commissioner for Personal Data, consent of witnesses was required for the release of their personal particulars to the properly interested persons in accordance with principle 3 under the Personal Data (Privacy) Ordinance Cap. 486. In view of the fact that only few requests were received in the past for the provision of death reports, the Administration considered that the coroner could seek consent of the witnesses for releasing their personal particulars only when the coroner received such requests.

3.In response to the Chairmans enquiry, the Assistant Director of Administration ( AD(A) ) replied stating that based on the legal advice obtained, the consent of the witnesses could be sought either by the police at the time of collecting evidence or by the coroner after receiving requests for the death reports. However, to save manpower, the Administration preferred to have the coroner to seek the witnesses consent for disclosing their personal particulars only when the coroner was requested to provide the death report.

4.The Senior Assistant Legal Advisor (SALA) read out from the Personal Data (Privacy) Ordinance and elaborated his view that, if the data was to be used for a purpose other than that it was collected, the Ordinance required the data user both to inform the data subject of the purpose of collecting the data and to seek the data subjects consent at the time of collecting the data. In response, DD(A) explained that based on the advice obtained from the Privacy Commissioner for Personal Data, it was not necessary to seek the data subjects consent to the use of the data at the time of collecting it. He pointed out that consent subsequently sought from the subject would be also acceptable. The principle was that consent from the subject had to be obtained before the data was released for any other use.

5.Miss Margaret NG enquired the formula currently used by the police in collecting evidence from witnesses. AD(A) stated that the police only explained to witnesses about the general purpose of collecting the evidence which was for investigatory use. He understood that the police currently did not explain to witnesses of the possibility of releasing their personal particulars to properly interested persons when no inquest was held.

6.Mr Albert HO queried why consent from witnesses for releasing their particulars was specially required when no inquest was held. In response, DD(A) said that in case an inquest was held, the witness might receive some notifications to summon him to court and to seek his consent for releasing the information he gave to the concerned parties. However, Miss Margaret NG dismissed this possibility and pointed out that there was no such procedure for the police to seek any consent from the witness again for releasing the information he had already given.

7.Miss Margaret NG was of the view that the police should develop simple formulas to tell the potential witness that the evidence he gave and his personal particulars collected were for investigatory use and would be disclosed if necessary. She considered it unnecessary to stress to the witnesses that their statements and particulars would be released to other people when no inquest was held.

8.In recognition of the Administrations concern for compliance with the principle 3 of the Personal Data (Privacy) Ordinance, members agreed to add a provision stipulating that consent from the witnesses had to be obtained for releasing the information provided by them. However, members insisted that a full copy of the death report, including the particulars of the witnesses, should be made available upon request irrespective of whether inquests were held or not.

9.Regarding the role of the police, DD(A) agreed that the police, at the time of collecting the evidence, could be responsible for seeking consent from the witness for the possible use of the evidence and other details he gave. However, the coroner could also seek the consent from the witness when the coroner received a request for the death report, if this had not been done at the time of collecting the evidence. DD(A) explained that through this arrangement, all properly interested persons could obtain copies of the death reports and compliance with the Personal Data (Privacy) Ordinance was ensured as well.

10.However, Miss Margaret NG considered that under no circumstances should the coroner be required to seek consent from the witnesses. She reiterated that it should be the polices role to do it and they should complete this procedure at the time of collecting evidence in order to avoid any delay in releasing the death reports when it was requested.

11.The Deputy Judiciary Administrator (DJA) also agreed that there would be practical difficulties for the coroner to be responsible for seeking consent from the witnesses. She also shared members view that for better use of resources and to enhance administrative convenience, it should be for the police to handle the work of seeking the consent when they collected evidence from witnesses.

12.DD(A) supplemented that the Administration would request the police to do this job of seeking consent from the witnesses as far as possible, so that there would not be a need for the Judiciary to follow up and trace back the witnesses for obtaining consent. DD(A) proposed that the aforesaid arrangements could be carried out administratively rather than by legislative means.

13.Miss Margaret NG did not accept that the police would be required to do the job of seeking consent only "as far as possible". She opined that this arrangement should be stipulated under the legislation so as to ensure that consent was sought from the witnesses by the police officer prior to the taking of statements. She considered that the proposed arrangement of the Administration would only create "grey area" and the police would be confused about their role in the execution of duty.

14.In addition, Miss Margaret NG queried why the Administration, on the one hand desired for greater flexibility, but on the other hand had proposed to add a provision to clause 12A(2) which rigidly required the coroner to "delete from the copy (of the death report) to be supplied any particulars" of the witnesses.

15.In response, DD(A) explained that the new clause was proposed taking into account that the death report was in the custody of the coroner who had the full discretion to decide whether or not to release the report. Since the coroner would oversee the process of releasing the death report, he would be obliged to ensure compliance with the Personal Data (Privacy) Ordinance in releasing the death report.

16.Members were generally not supportive of the proposed arrangement. Mr Albert HO demanded that in case no inquest was held, the properly interested persons should have access to the death report which should be a full copy when released. He also supported that it should be the police to explain to the potential witnesses about the possible use of their evidence and particulars at the time of collecting evidence so that there would be no problem in releasing their personal particulars when the death report was issued.

17.DD(A) proposed that the provision to clause 12A(2) could be amended to read " ...... the coroner shall comply with the request but in so doing shall ensure compliance with data protection principle 3 in Schedule 1 to the Personal Data (Privacy) Ordinance". If members agreed with this principle, the Administration would change the wording of the new clause.

18.Members doubted the need to specify compliance with the Personal Data (Privacy) Ordinance since it had already come into effect and been promulgated. Nevertheless, they generally accepted DD(A)s proposal in the preceding paragraph.

19.SALA pointed out that proposal of DD(A) in para. 17, however, did not resolve the point as to whether the responsibility of seeking consent should fall on the police or the coroner. He reiterated that based on his interpretation of principle 3 of the Personal Data (Privacy) Ordinance, consent for the use of the data should be sought from the data subject at the time of collecting the data. Thus it was clear that it should be the police to be responsible for seeking consent.

20.Miss Margaret NG also ascertained with DJA that the Court was confined to handling the proceedings which took place within the Court and it was therefore not the coroners role to make contacts with the witnesses outside the Court to seek their consent for releasing their data. The Senior Assistant Law Draftsman (SALD) supported the view that the coroner should not be responsible for going back to track the witness down to seek his consent.

21.AD(A) would review clause 12A(2) to accommodate members views as summarized below -	Adm

it should be the police to be responsible for seeking consent from the witnesses to release their particulars; and
there was no need to state principle 3 of the Personal Data (Privacy) Ordinance in the Bill.

22.SALD advised that the police should devise a short sharp statement telling the witness that the information he gave might be released to the properly interested persons whether or not inquests were held. If the witness still agreed to give evidence, it meant that the witness accepted the arrangement of releasing the information he gave. Miss Margaret NG agreed with SALDs suggestion and added that there was no need to divide it into different cases with inquests held or not and get the witness separate consent to the use of the information on each occasion.

23.Mr Albert HO and Miss Margaret NG reiterated that it was necessary to release a full copy of the death report including the personal particulars of the witnesses. They considered that it should not be presumed beforehand that the respondent would harass the witness.

24.The Administration would review the case and make amendments to take into account the views expressed by members. Members would decide whether to move committee stage amendments (CSAs) after receiving those proposed by the Administration.	Adm

III.Procedure for correction of errors in the death register

(Paper No. CB(2)1043/96-97 (01))

25.AD(A) reported that at present there was no legislative provision for the Registrar to correct an error in the death register relating to the cause of death based on the information provided by a coroner. Although Clause 71 of the Bill makes a consequential amendment to section 27 of the Births and Deaths Registration Ordinance (Cap. 174), the proposed amendment still did not enable the Registrar to correct any error relating to the cause of death.

26.The Administration proposed to add a new provision after the proposed section 27(d) in clause 71(b) setting out the following procedure for amending errors in the death register -	Adm

where the error was a clerical error, the coroner might certify to the Registrar the nature of the clerical error and that error might then be corrected by the Registrar in the death register; and
where the error was not a clerical error and the coroner had not held an inquest, the coroner might certify to the Registrar the nature of the error after an inquest had been held.

27.Members supported the proposal in principle. SALA would follow up any drafting points with the Administration.	SALA

IV. Committee stage amendments

(Papers Nos. CB(2)1043/96-97 (02) and CB(2)1170/96-97)

28.SALA reported that the English text of the CSAs prepared by the Administration was in order. He would further examine the Chinese text of the CSAs.	SALA

V. Clause by clause examination of Bill

Clause 11 - Pre-inquest review

29.The Administration would delete "economical" from clause 11(1) to read "...that inquest, when held, may be disposed of in a just and expeditious manner."	Adm

Clause 14 - Deaths in official custody

30.Mr Albert HO proposed to add a sub-clause in clause 14 to provide that where a person died during the course of a police officers discharge of his duty and the death was a reportable one, a coroner could request the Commissioner of Police to take the necessary measures to ensure that the investigation into the death was conducted impartially and independently. DD(A) agreed to give thought to it.

Adm

Clause 41 - Majority findings

31.Mr Albert HO proposed and SALD agreed to consider adding a provision in clause 41 to allow the coroner, at the end of the hearings, to make recommendations on top of the findings of an inquest. DD(A) agreed to the proposal.	Adm

Schedule 1 - Part 1

32.Mr Albert HO proposed to add the following item to Schedule 1-

"Any death of a person where the death occurred during the course of the discharge of his duty by a person having statutory powers of arrest and detention." DD(A) agreed to consider the proposal.	Adm

VI. Way forward

Members indicated their wish to resume the second reading as early as possible. In the meantime, the CSAs to be moved by the Administration as mentioned in paras. 24, 26, and 29 to 32 were awaited.

34. The meeting ended at 10:30 am.

Legislative Council Secretariat

24 April 1997

Last Updated on 10 December 1998