PLC Paper No. CB(2)123
(These minutes have been seen
by the Administration and cleared
with the Chairman)
Ref : CB2/BC/53/95/S2

Bills Committee on
Independent Police Complaints Council Bill

Minutes of the Twelfth Meeting
held on Wednesday, 4 June 1997 at 8:30 am
in Conference Room A of the Legislative Council Building


Members Present :

    Hon Zachary WONG Wai-yin (Chairman)
    Hon Selina CHOW, OBE, JP
    Dr Hon LEONG Che-hung, OBE, JP
    Hon Eric LI Ka-cheung, OBE, JP
    Hon James TO Kun-sun
    Hon Christine LOH Kung-wai
    Hon IP Kwok-him
    Dr Hon LAW Cheung-kwok
    Hon LEE Kai-ming
    Hon Bruce LIU Sing-lee

Members Absent :

    Hon Ronald ARCULLI, OBE, JP
    Hon CHEUNG Man-kwong
    Hon Emily LAU Wai-hing
    Hon CHEUNG Hon-chung
    Hon Margaret NG
    Hon TSANG Kin-shing

Public Officers attending :

Mr Philip CHAN
Principal Assistant Secretary for Security
Mr Howard CHAN
Assistant Secretary for Security
Mr K H CHING
Senior Assistant Commissioner of Police
Director of Management Service
Mr S G CHANDLER
Chief Superintendent of Police
Complaints and Internal Investigation Branch
Mr H W HUNG
Senior Superintendent of Police
Complaints Against Police Office
Mr WAN Suet-ming
Secretary
Independent Police Complaints Council
Mr Vidy CHEUNG
Senior Assistant Law Draftsman (Acting)

Clerk in attendance :

Mrs. Sharon TONG
Chief Assistant Secretary (2)1

Staff in attendance :

Mr LEE Yu-sung
Senior Assistant Legal Adviser
Mr Paul WOO
Senior Assistant Secretary (2)5



I. Meeting with the Administration

Administration’s response to the issues raised at the meeting on 23 May 1997

(tabled at the meeting and circulated to absent members under LegCo Paper No. CB(2) 2575/96-97(01) after the meeting)

Action

IPCC Observers

Principal Assistant Secretary for Security (PAS(S)) informed members that the Administration did not see the need for full-time Independent Police Complaints Council (IPCC) Observers. The Administration maintained that the best way to enhance the effectiveness of the IPCC Observers Scheme was to expand the Scheme through co-opting suitably qualified people from the community as Observers. This would ensure adequate reflection of the views of different sectors on the handling of complaints against Police. On the other hand, the Administration would seek to provide honorarium to these Observers, having regard to the principles governing the remuneration of non-official members of government boards and committees. The Chairman expressed that in view of the substantial time involved in conducting observations, full-time Observers instead of volunteers would be more appropriate.

Clause 6 - Appointment of Secretary

2. PAS(S) said that existing arrangements of appointing civil servants to the IPCC Secretariat were satisfactory. Having regard to members’ concern, the Administration was prepared to amend clause 6(1) to "The Council shall appoint a Secretary of the Council who shall not be a member of the Council". The Administration did not agree to the proposal to extend the appointment of non-civil servants to other posts within the IPCC Secretariat, including the Legal Adviser, as the Secretariat only played a supporting role to IPCC and there would be difficulties to recruit staff from outside the civil service.

3. Members maintained that IPCC should be given the flexibility to appoint staff of its Secretariat, apart from the Secretary. The Bills Committee would move a Committee stage amendment (CSA) to that effect.

Chairman

Clause 11 - Secrecy

4. PAS(S) advised that as clause 11(3) was related to disclosure of report made by IPCC, it was logical and proper for IPCC to decide what should be covered in any such report. Mr James TO Kun-sun said that there must be an appropriate channel whereby the public would be informed of the fact that the Governor had made a certification under clause 11(3) each time the Governor had exercised such power. Mr TO said that he would move a CSA on this point.

Mr. James To

Clause 14 - Power of Governor to make regulations

5. PAS(S) and Senior Assistant Law Draftsman informed members that provisions similar to clause 14 were found in section 13(1)(b) of the Judicial Service Commission Ordinance, Cap. 92 and section 14(1)(b) of the Public Service Commission Ordinance, Cap. 93 (Extracts of such provisions were at Annexes A and B of LegCo Paper No. CB(2) 2575/96-97(01)). In view of members’ concern, in particular about clause 14(b), the Administration was prepared to remove this subclause from the Bill. PAS(S) reiterated that the power of the Governor to make regulations under clause 14 was intended to facilitate the carrying out of the provisions of the Ordinance. The policy intent was clearly set out under the clause. There was no question of the Governor making any regulation which would limit, for example, the functions and powers of IPCC under clauses 7 and 8, and that of its Chairman under clause 5(1). In addition, regulations made under clause 14(c) would not limit IPCC’s authority to interview any witness as provided for under clause 8(1)(c).

6. Senior Assistant Legal Adviser (SALA) advised that, where an Ordinance provided for something in a general manner, the operational aspects would be prescribed by subsidiary legislation. Thus it would be possible that a subsidiary legislation might specify how a power in the principal Ordinance should be exercised. If members were concerned that the subsidiary legislation made by the Governor might unduly restrict the exercise of power by the IPCC, clause 14 might be amended to require the Governor to consult the IPCC before making subsidiary legislation.

7. Mrs Selina CHOW queried if it would be ultra vires to make regulations under clause 14 to limit the powers of IPCC, which were given under the Ordinance. She suggested that subclause (e) might be placed at the beginning of clause 14 to spell out from the outset the policy intent.

8. Mr James TO Kun-sun and Mr Eric LI pointed out that it was not uncommon for statutory or professional bodies to have the autonomy to formulate regulations or by-laws on their own to help with their overall policy implementation. Mr LI said that it would be helpful if the Administration could clarify the principles applied in deciding the appropriate authority, i.e. the Governor or the individual organizations concerned, to make regulations under different circumstances. PAS(S) responded that as the whole police complaints system involved IPCC, the policy force and the public in general, the Administration was of the opinion that the power under clause 14 should rest with the Governor. He added that in actual practice, it was not foreseeable that IPCC would not be consulted before the Governor made such regulations as referred to in clause 14.

9. The Administration undertook to revert to members on the following two proposals with regard to clause 14 -

  1. that the Governor, after consultation with IPCC, may make regulations for the purposes of carrying out the provisions of this Ordinance (i.e. to bring forward clause 14(e) to the beginning of the clause); and
  2. that IPCC, after consultation with the Governor, may make regulations.

Expenditure of IPCC

10. PAS(S) said that the IPCC Secretariat already maintained its own Head of Expenditure under the General Revenue Account and the IPCC Secretary was the Controlling Officer. Expenditures were subject to LegCo scrutiny and vetting by the Director of Audit. These were established practices which had worked well. He stressed that he could not envisage the Government not providing sufficient funding for IPCC. Mr Eric LI said that expenditure provisions in ordinances of statutory bodies varied with the functions of the bodies concerned. Some were more complicated than others. The Chairman noted that the Legislative Council Commission Ordinance, for example, included a comprehensive part covering resources of Commission, financial year accounts and reports of the Commission and Director of Audit’s examination.

11. PAS(S) advised that the Administration required more time to consider the proposal to specify in the Bill that the expenditure of IPCC, after consultation with IPCC, should be borne by the general revenue. He opined that such provisions did not need to be covered in the Bill and could be examined in greater detail at a later stage.

Admin

Administration’s response to the draft CSAs proposed by the Hon James TO Kun-sun

(tabled at the meeting and circulated to absent members under LegCo Paper No. CB(2) 2575/96-97(02) after the meeting

LegCo Paper No. CB(2) 2424/96-97(01) - Hon James TO’s draft CSAs)

Clause 4 - Membership of the Council

12. Mr Bruce LIU Sing-lee informed members that according to a report released by a Subcommittee of the LegCo Panel on Home Affairs, about one-fourth to one-third of government boards and committees had mechanisms in place for nomination of members. Yet, there were rare cases requiring specifically the appointment of LegCo Members by the Governor. Mr LIU said that, as far as this Bill was concerned, the Association for Democracy and People’s Livelihood was supportive to Mr James TO’s proposal of specifying LegCo participation in the membership of IPCC. Mrs Selina CHOW also supported the proposal. Mr Eric LI and Dr LEONG Che-hung expressed reservation on the proposal.

13. PAS(S) said that at present there were already three LegCo Members serving as IPCC members. The Administration preferred to maintain the existing practice to leave the flexibility to the Governor to appoint members to IPCC on an ad personam basis.

14. Mr James TO Kun-sun said that historically there were LegCo Members acting as IPCC members. The purpose of his proposal was to establish a constitutional link between LegCo and IPCC in the form of a statutory safeguard binding upon the Governor in appointing members. Mr TO would move the CSA as proposed.

Mr. James To

15. Referring to para. 3 of LegCo Paper No. CB(2) 2575/96-97(02), Mr James TO Kun-sun commented that his proposal to make the Commissioner of Independent Commission Against Corruption (ICAC) an ex-officio member of IPCC should in no way distract ICAC from its principal objective of fighting corruption. According to his proposal, the Commissioner would only be serving in his personal capacity, rather than representing the entire ICAC.

16. With regard to para. 4 of LegCo Paper No. CB(2) 2575/96-97(02), Mrs Selina CHOW expressed that it was not necessary to rule out explicitly the possibility of appointing ex-members of the police force to IPCC. Mr James TO responded that the proposed amendment was necessary to enhance public perception of the independence and impartiality of the Council.

17. The majority of members present voted for the proposed new clause 4 (1A). The Administration agreed to move a CSA along that line.

(Post-meeting note: The CSA was further discussed at the meeting held on 10 June 1997. The Administration proposed and Mr James TO agreed that the CSA be moved by Mr TO because it was not the Bills Committee’s consolidated view that any person who has been a member of the police force shall not be appointed by the Governor under subsection 4(1)).

Mr. James To

Clause 5 - Meeting of the Council

18. Members agreed to the proposed new subclause (3) at para 6 of LegCo Paper No. CB(2) 2575/96-97(02). The Administration would move the CSA.

Admin

Clause 6 - Appointment of Secretary

19. The matter of appointment of Secretary by IPCC was covered in para 2 above.

20. Mr James TO Kun-sun explained that his proposed amendment providing for the appointment of other staff by IPCC in fact permitted a flexibility whereby the IPCC could decide whether certain posts in its Secretariat should be filled by seconded civil servants, or by people recruited from outside the civil service. As stated in para. 2 above, the Bills Committee would move the CSA as proposed by Mr TO.

Clause 7 - Functions of the Council

21. PAS(S) informed members that, other than the new subclause 7(aa) proposed by the Administration (para. 11 of LegCo Paper No. CB(2) 2575/96-97(02)) and the deletion of "where it considers appropriate" from clause 7(a), the Administration did not agree to the other amendments proposed by Mr James TO. Mr TO would move his CSAs to this clause.

Mr. James To

Clause 8 - Powers of the Council

22. With regard to the amendment to clause 8(1)(f) proposed by Mr James TO empowering IPCC to engage such persons to observe the handling of complaints against Police by the Force, PAS(S) reiterated that the Administration was considering expanding the IPCC Observers Scheme by co-opting non-IPCC members. The Administration proposed to deal with the detailed arrangements through a subsidiary legislation at a later stage. Members agreed that Mr TO’s proposal better revealed the policy intent. Subject to drafting improvements, the Bills Committee would move a CSA along the line of the new clause 8(1)(f) as proposed by Mr TO.

Chairman

23. Concerning the new clause 8(1)(a) proposed by Mr James TO which provided that IPCC could refer any matter in respect of a complaint to the Attorney General or the ICAC, PAS(S) and Secretary, IPCC advised that where a corruption-related complaint was received by the Complaints Against Police Office (CAPO), CAPO would immediately refer the complaint to ICAC for the necessary action. In the rare situation where such complaints were directed to IPCC, the cases would also be referred to ICAC. Mr James TO said that ICAC had power under the ICAC Ordinance to investigate cases of abuse of power which were not restricted to corruption-related issues. The objective of his proposal was to provide explicitly a flexibility to IPCC to refer any complaint to ICAC where it considered appropriate. This was a monitoring mechanism not available under the existing clause 8(1)(g). Mr TO emphasized that both IPCC and ICAC should be able to exercise common sense in dealing with such matters.

24. Commenting on new clause 8(1)(fb) proposed by Mr James TO, Senior Assistant Commissioner of Police pointed out that it might lead to unnecessarily cumbersome procedures under which even very minor amendments to the Police general orders or Headquarters orders would need to be brought to the attention of IPCC. He advised that it was already the existing practice of the Police to consult IPCC of substantive amendments to the rules and procedures related to the handling of complaints, and for IPCC to make recommendations where necessary. Mr TO responded that consultation on issues of a relatively trivial nature could in practice be done through circulation of documents and, where appropriate, paper resolution by the Council. Mr TO would move the relevant CSAs in respect of clause 8.

Mr. James To

II. Any other business

25. The Chairman reminded that the deadline for the Administration to give notice to resume the Second Reading debate of the Bill was 6 June 1997. The deadline for giving notice of CSAs and the date of report to the House Committee was 13 June 1997.

III. Date of next meeting

26. The date of the next meeting was scheduled for 10 June 1997 at 12:30 pm.

IV. Close of meeting

27. The meeting ended at 10:30 am.

Provisional Legislative Council Secretariat
6 August 1997

Last Updated on 15 October 1997