LegCo Paper No. CB(2) 2018/96-97
(The minutes have been seen
by the Administration)
Ref : CB2/BC/53/95/S2

Bills Committee on the Independent Police Complaints Council Bill

Minutes of the Fifth Meeting held on Wednesday, 12 March 1997 at 10:45 am in Conference Room A of the Legislative Council Building

Members present :

Members absent :

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 Officer
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. Confirmation of minutes of meeting held on 9 January 1997

II. Meeting with the Administration

III. Dates of next meetings

IV. Close of meeting

I. Confirmation of minutes of meeting held on 9 January 1997

(LegCo Paper No. CB(2) 1383/96-97)

1. The minutes of meeting held on 9 January 1997 were confirmed.

II. Meeting with the Administration

(LegCo Paper No. CB(2) 1455/96-97(01)
LegCo Paper No. CB(2) 1455/96-97(02)
LegCo Paper No. CB(2) 1152/96-97
The Bill)

2. Members queried the Administrations rejection of the proposal to appoint a non-police personnel as head of the Complaint Against Police Office (CAPO). They pointed out that the Independent Commission Against Corruption (ICAC) and the Immigration Department were also headed by non-disciplined services officers. Principal Assistant Secretary for Security (PAS(S)) replied that the head of CAPO being responsible for the direction of investigation of complaints against the police and where necessary personally conducting investigation of some serious cases, he must be well familiar with the work of police officers and the operation of the Police Force at all levels. The work could not be done by a civilian. PAS(S) said that, as far as the complaints investigation and monitoring mechanisms were concerned, ICAC and the Police were adopting similar systems. Consequent to the independent review on CAPOs operation, a series of improvement measures were being implemented to enhance the credibility and transparency of the system. The Administration was of the opinion that the present machinery was basically effective in dealing with complaints against police officers.

3. Mr CHEUNG Man-kwong said that the Administration should seriously re-consider the Independent Police Complaints Council (IPCC)s refined proposals of appointing a civilian head of CAPO. The proposals were as follows :

Proposal 1 - the civilian head of CAPO, if appointed, would be administratively responsible to the Commissioner of Police but functionally responsible to the Chairman of IPCC.

Adm

Proposal 2 - the civilian head of CAPO, if appointed, would remain accountable to the Commissioner of Police in all aspects, but the CAPO/IPCC link could be strengthened by having the civilian head of CAPO meeting the Chairman of IPCC at regular intervals.

Mr CHEUNG Man-kwong opined that the above proposals represented a compromised position of IPCC on how to strengthen public confidence in CAPO, after taking into account the views of the Commissioner of Police. The proposals did not involve drastic changes to the existing police investigation system. They were also likely to be acceptable to the majority of Members of the Legislative Council (LegCo) who demanded a reform of CAPO. Dr LEONG Che-hung added that the proposal to introduce a non-police element in CAPO was not intended to interfere with CAPOs investigation function but to bring about an added mechanism to guard against chances of the Police operating in secrecy. PAS(S) responded that to help resolve the differences between members and the Administration as to the effectiveness of the present complaints handling mechanism, it might be helpful for members to see for themselves how CAPO actually conducted its investigation. Further discussion on how to improve the system would be more fruitful after the observation.

4. Concerning the proposed observation, Senior Assistant Commissioner of Police (SACP) added that the arrangements would be the same as that under the IPCC Observers Scheme. Under the existing practice, daily schedules of interviews fixed with witnesses (including the complainants and complainees) would be sent to IPCC for members of IPCC to conduct pre-arranged or surprise observations. CAPO could arrange for those schedules to be circulated to members of the Bills Committee who wished to participate in the observation exercise. In order to comply with the Personal Data (Privacy) Ordinance (Cap. 482) prior consent from the witnesses would have to be sought for members to observe the interviewing process. Information that might reveal the identity of the parties would be deleted from the documentations that would be provided for members reference.

5. Members accepted the Administrations invitation to observe CAPOs investigation. The Secretariat undertook to inform the Administration of those members who wished to take part.

(Post-meeting note : A total of eight members of the Bills Committee signify that they would take part in the observation.)

6. Mr James TO Kun-sun pointed out that the Administration had held that non-police personnel did not have the necessary expertise and knowledge to undertake investigation of complaints against the Police. He said that, on the basis of this argument, he would propose statutory provisions for an inspectorate scheme, under which several professionals (e.g. experienced investigators, retired judges and legal experts etc.) would be employed on a full-time, permanent basis to inspect or observe CAPOs investigation. These people were not lay observers but professional inspectors accountable to the Governor or the Secretary for Security. They would be at liberty to inspect or observe any activities which formed part of CAPOs investigation. Working in collaboration with the IPCCs Secretariat, these inspectors could make regular reports, with their findings and recommendations, to the Governor, the Commissioner of Police, the IPCC and LegCo. Mr TOs view was echoed by Dr LAW Cheung-kwok.

7. Mrs Selina CHOW expressed reservation about Mr James TO Kun-suns suggestion. She said that the original policy intention was that the monitoring function should rest with IPCC instead of another separate body. Attention should therefore be focused on ensuring that IPCC would be fully equipped, with enough resources and support from its Secretariat, to carry out its role effectively. IPCC should not duplicate the investigative function of CAPO.

8. PAS(S) undertook to revert to members regarding the Administrations view on Mr TOs proposal.

9. Members considered "tipping off" of a complaint to the complainee a serious offence which would undermine the credibility of the whole system and it should be strictly prohibited. They queried the need for the Administration to consult staff associations on amending the Police General Orders (PGO) to make "tipping off" a disciplinary offence. PAS(S) and SACP advised that the recommendation to make "tipping off" a disciplinary offence was part of the improvement measures arising from the Comparative Study of Complaints Against Police Systems. To set out the offence clearly in PGO would facilitate action to be taken against any prospective offender. SACP added that the purpose of staff consultation was to collect feedback on implementation problems that could arise. He emphasized that the Administration was firmly committed to the proposal and would press ahead with its implementation. The necessary amendment to PGO would be completed within a month. He further informed members that PGO had been under regular review, and where necessary, the relevant Orders would be revised. PAS(S) said that, arising from the Comparative Study of Complaints Against Police Systems and the independent review of CAPO, a total of 52 recommendations had been made. All these recommendations were being implemented. The great majority of these recommendations did not require any amendment to PGO.

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10. Mr James TO Kun-sun said that "tipping off" referred to the leakage of information about the material content of a complaint. He suggested that the taking of the initial statements from the complainants should be done by police officers other than members of the investigation teams. He also requested the Administration to consider making "tipping off" to police officers under complaint a criminal offence. SACP responded that under the existing law and depending on the facts of the case, an act of "tipping off" committed during the investigation of complaints with criminal element might be prosecuted under criminal charges such as perverting the course of public justice. The court required a high standard of proof for substantiation of the charge. PAS(S) advised that the Administration would seek the Attorney Generals advice on Mr TOs proposal.

11. Mr James TO Kun-sun said that the reasons for the Administrations rejection of the proposal to refer unresolved serious complaint cases where IPCC and CAPO held different views to ICAC for re-investigation, as set out in paragraph 8 of LegCo Paper No. CB(2) 1455/96-97(01), were not acceptable. He asserted that, under the proposal, any re-investigation by ICAC should be conducted at the request of IPCC or upon the instruction of the Governor. It therefore would not undermine the credibility of IPCC. On the other hand, with suitable amendment to the ICAC Ordinance (Cap. 204), empowering ICAC to conduct such re-investigation, the public would not be misled into believing that all the cases involved were corruption-related. In addition, he was of the view that under section 10 of the ICAC Ordinance, it might be possible for ICAC to investigate cases where there was suspicion of abuse of power of office.

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12. Secretary/IPCC informed members that the IPCC did not consider it appropriate for the ICAC to re-investigate unresolved complaints cases. The IPCC was accountable only to the Governor and ICACs re-investigation might be seen as IPCC being subject to the ICACs final decision. Under the Bill, IPCC also had authority to report cases to the Governor with its recommendations, where it disagreed with CAPO as to the outcome of investigation. Members of IPCC also found it not appropriate to refer non-corruption cases to ICAC for investigation.

13. Mrs Selina CHOW expressed her strong objection to the idea of ICAC investigating into unresolved cases, which in her opinion was not a viable solution to improving the police complaints system. She said that the proposal represented a major policy change from the Governments intention to set up ICAC to deal specifically with corruption-related offences. She saw no justification to expand the powers of ICAC to cover complaint cases with no corruption element. Dr LEONG Che-hung informed members that members of IPCC were unanimous in opposing to the proposal. They felt that the monitoring role should stay with IPCC and the proper way to tackle the matter was to provide IPCC with the means to discharge that role fully and effectively. Dr LEONG said that he, being a member both of IPCC and the Bills Committee, objected to the view of referring complaint cases to ICAC for investigation. Dr LAW Cheung-kwok said that the Association for Democracy and Peoples Livelihood also had reservation about this proposal. The Chairman remarked that the Bills Committee had yet to arrive at a stand on the matter.

14. In response to Mr IP Kwok-hims question, PAS(S) said that according to the 1995 Report of ICACs Complaints Committee, 24 cases of complaints against ICAC officers involving 82 allegations had been lodged in the year. The allegations were related to abuse of power (42), misconduct (25), neglect of duty (12) and work procedures (3).

15. Mrs Selina CHOW suggested for a mechanism to be introduced in IPCC to ascertain opinion from the complainants on various aspects of how complaint cases had been handled. The feedback so obtained would serve as an useful indicator of the fairness of the complaints system in the minds of the majority of the users and could facilitate IPCC in discharging its monitoring function.

16. Mr CHEUNG Man-kwong pointed out that there were only three regional CAPO offices at present. He proposed to increase the number of venues for receiving complaints and strengthen publicity on such venues. Strict security measures to safeguard the confidentiality of complaints must be taken. SACP said that the existing CAPO offices were situated at easily accessible locations. Yet, a large number of complainants still found it more convenient to lodge their complaints at police stations. The Administration noted Mr CHEUNGs suggestion.

Adm/IPCC

17. Referring to the revised draft of clauses 7, 9 and 10 of the Bill proposed by the Administration (Part VI of LegCo Paper No. CB(2) 1455/96-97(01)), Dr LEONG Che-hung said that IPCC was still concerned about whether it would be allowed, under these provisions, to seek expert opinion from professional witnesses, where it considered that such professional opinion was relevant to the investigation of the complaint concerned. PAS(S) and Senior Assistant Law Draftsman clarified that the amended drafting of the last part of clause 10(1) which read "the Council or any one or more of its members may, in connection with the complaint, interview any witness" clearly enabled IPCC to interview any witness including any independent expert witness. Clause 10(1) would not act against clause 7 as regards the functions of IPCC. PAS(S) further added that interview with witness itself was not equivalent to an investigation but was part of the reviewing process.

18. Senior Assistant Legal Adviser (SALA) said that a concern which had been raised by members was whether IPCC had authority to interview witnesses not previously seen by CAPO officers. To remove doubts and without narrowing the scope of "any witness", SALA suggested that the following sentence be added at the end of clause 10(1) -

"For the avoidance of doubt, a witness in this subsection includes a person who has not been interviewed by the Commissioner during the investigation of the complaint, and an independent expert witness."

19. PAS(S) advised that the objective of clause 10(1) was clear. He undertook to revert on SALAs suggestion.

20. The Chairman said that the Administrations responses to the submissions from the Hong Kong Human Rights Monitor and the Society for Community Organization respectively (LegCo Paper No. CB(2) 1455/96-97(02)) would be discussed at the next meeting.

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III. Dates of next meetings

21. The dates of the two following meetings were scheduled as follows :

24 March 1997 at 12:30 pm; and
9 April 1997 at 10:30 am

IV. Close of meeting

22. The meeting closed at 12:50 pm.

LegCo Secretariat
14 April 1997

* other commitments

Last Updated on 16 December 1998