Minutes of the Joint Meeting of the LegCo Panel on
Administration of Justice and Legal Service
and LegCo Panel on Security

1. Election of Chairman

Miss Margaret NG was elected Chairman of the meeting.

2. Cross Border Co-operation on Legal and Judicial Matters

(LegCo Paper Nos. PL 1122/95-96 & CB(2) 1033/95-96 andnote dated 5 February 1996 from Hon Andrew CHENG)

2. Members noted the following relevant papers which were tabled at the meeting and subsequently issued to absent Members vide LegCo Paper No. CB(2) 1087/95-96 :

1. a copy of letter dated 15 February 1996 from the Secretary for Constitutional Affairs to Hon Emily LAU Wai-hing ;
2. a Chinese translation of LegCo Paper No. CB(2) 1171/95-96 dated 20 April 1996 ;
3. an mutual legal assistance (MLA) agreement in civil and criminal matters between China and the Mongolian People’s Republic in August 1989 (Chinese version only) ;
4. an extradition agreement between China and Thailand in August 1993 (Chinese version only) ; and
5. an MLA agreement in criminal matters between China and Canada in July 1994 (Chinese version only).

3. At the invitation of the Chairman, Mrs Carrie YAU briefed Members on the paper on cross border co-operation on legal and judicial matters issued by the Security Branch in April 1996. Members raised a number of questions and the Administration responded accordingly. The gist of the ensuing deliberations was summarised in paragraphs 4 - 13.

Surrender of fugitive offenders

Mutual legal assistance in criminal matters

4.Mr James TO asked whether the Government had prepared a complete package of legislative proposals on surrender of fugitive offenders (SFO) and mutual legal assistance (MLA) in criminal matters for discussion at the Joint Liaison Group (JLG) and whether it was ready for submission to the LegCo. He further suggested that reference could be made to the MLA agreement in criminal matters between China and Canada in July 1994 in the light that the latter was also a common law jurisdiction. Mrs YAU responded that with the agreement of the JLG, Hong Kong was negotiating a network of bilateral arrangements for SFO and MLA with other jurisdictions. As regards co-operation with China on SFO, Hong Kong provided information to the Guangdong authorities on the existing practice in handling a request for surrender from other jurisdictions. Mr John Hunter said that the draft localising legislation for SFO was being studied in the JLG while legislative proposal to implement the legislation for MLA was being drafted and would be ready for consultation with the Chinese side of the JLG soon. He pointed out that the MLA agreement between China and Canada was similar to our model MLA agreement for negotiation with other jurisdictions and it could form the basis for similar agreement between China and Hong Kong.

5.Ms Emily LAU expressed concern that the domestic legislation to give effect to the bilateral agreements signed/to be signed with other countries could not be enacted in time before 1 July 1997. She was also not satisfied with the slow progress of the bilateral agreement between China and Hong Kong regarding MLA in criminal matters and surrender of fugitive offenders. Mrs Carrie YAU said that the relevant legislative proposal had already been submitted to the JLG and the Administration hoped that it could be enacted as soon as practicable so that the SFO arrangements could continue after 30 June 1997.

6.Ms Emily LAU sought clarification whether criminal MLA between Hong Kong and China would be discussed in the JLG. Mrs Carrie YAU said that the matter had not yet been brought to the JLG for discussion. She stressed that to work out mutually acceptable arrangements between the two places was a difficult task given the differences in legal and judicial systems between China and Hong Kong. In this regard, LA drew the meeting’s attention to the Chinese Extradition Ordinance (Cap. 235) and sought the Administration’s comment as to whether it was considered an effective piece of domestic legislation for surrender of fugitive offenders to China. Mr Hunter responded that the Ordinance was in disuse and no request had ever been made by China under this Ordinance.

7.Mr Andrew CHENG wondered China would negotiate with Hong Kong on equal footing regarding SFO and criminal MLA. He expressed grave concern that cross border co-operation agreements in legal and judicial matters between China and Hong Kong would be in place before 1 July 1997. In light of the Article 95 of the Basic Law, the agreement of the Chinese side in the JLG in September 1994 and China’s various bilateral agreements for mutual legal assistance with other countries, he asked where the difficulties lay which led to the lack of progress in the past years. Mrs Carrie YAU reiterated that it was vital to ensure (a) a balance between effective law enforcement and an individuals’ rights in any arrangements reached with the Chinese authorities; and (b) no great departure from the Hong Kong’s present law and procedure in processing requests for surrender of fugitive offenders from other jurisdictions. She urged Members to appreciate the complication and difficulties involved on the matter.

8.Mr Andrew CHENG further requested to know what had been agreed in the JLG meeting in September 1994 for bilateral agreements for mutual legal assistance in criminal matters and whether a time-table had been agreed for drawing up such agreements. Mrs Carrie YAU replied that the 1994 JLG agreement enabled Hong Kong to negotiate arrangements on criminal MLA with other jurisdictions which could straddle 1997. But this agreement did not cover MLA between Hong Kong and China. She pointed out that it was not possible to set out a timetable for reaching agreement with China on this subject.

9.Mr Albert HO sought confirmation from the Administration whether the matter would be discussed in the JLG. He pointed out that the LegCo should be informed of any failure in negotiation and the reasons of such failure. Mrs Carrie YAU explained that local legislation would be required to underpin any agreement reached with the Chinese authorities. LegCo would have the opportunity to scrutinise such proposed legislation. Mrs YAU said that without prejudice to Hong Kong’s negotiation positions, she would be ready to keep LegCo informed when any progress was achieved in the discussions with Chinese authorities. In this regard, Ms Emily LAU reiterated her concern on the matter and would like to know about the legal position of Hong Kong after 30 June 1997 if no agreements could be reached before then and whether administrative arrangements could be legally enforceable.

Adm

Arrangements in civil matters between Hong Kong and China

10.Mrs Miriam LAU referred to the Annex of the Administration’s paper and queried why there was a difference in the list of documents to be served by the Hong Kong Court on behalf of the Guangdong Court and by the Guangdong Courts on behalf of Hong Kong parties. Mr Hunter said he believed that it did not involve any disparity in treatment and the difference probably might be attributed to the different processes of court proceedings in two places. Mr Clement LEUNG supplemented that further detailed information could not be given in this regard in the light that (a) the information was provided by the Office of Judiciary Administrator; and (b) Security Branch was not responsible for the legal co-operation in civil and commercial matters. Since the information was provided by Judiciary which was party to the Hong Kong/Guangdong agreement, Mrs Carrie YAU undertook to refer Mrs LAU’s question to the Judiciary Administrator for further clarification.

11. Mrs LAU also referred to the letter dated 15 February 1996 from the Secretary for Constitutional Affairs which highlighted five practical issues for handling civil and commercial dealings between Hong Kong and China and asked when resolution could be reached. Although public officers attending were unable to provide further information on these issues, they undertook to convey Members’ concern to the Secretary for Constitutional Affairs. Nevertheless, Members expressed dissatisfaction that no substantive answer was given every time they asked the Adminstration about the progress of the matter.

Adm

Adm

Way forward

12.At Ms Emily LAU’s suggestion, Members agreed that another joint meeting of the LegCo Panel on Administration of Justice and Legal Services, the LegCo Panel on Security and the LegCo Panel on Constitutional Affairs would be convened on 4 June 1996 for the Administration to brief Members on the up-to-date position of and on the time-table of negotiations leading to the signing of the various bilateral agreements for surrender of fugitive offenders and for mutual legal assistance in criminal matters and about the list of mutual assistance in the service of documents in civil proceedings.

13. Mr James TO further suggested and Members agreed to seek views of the House Committee on what step should be taken to urge the Administration to give more information about its action currently undertaken to ensure that, in respect of criminal and civl matters, there would be established a legal framework for legal and procedural co-operation between Hong Kong and China as well as for the coninuation of all bilateral agreements signed by Hong Kong with other parties after 1 July 1997. The following possible steps were suggested for consideration :

1. The Chairman of the House Committee to write to the Chief Secretary to express Members’ concern;
2. A Member to raise the issue at the Governor’s Question Time; and
3. A Member to initiate a motion debate at a LegCo sitting.

Clerk

3. Certificate of No-criminal Conviction

(LegCo Paper nos. PL 1130/95-96 & CB(2) 1033/95-96)

14.At the invitation of the Chairman, Mrs Carrie YAU briefed Members on the paper regarding certificate of no-criminal conviction (CNCC), issued by the Security Branch on 12 April 1996.

15.Mr Howard YOUNG asked and Mr D M Hodson responded that the processing of an application for CNCC would be completed within 28 days and the calculation of fee was based on cost-recovery principle. Mr YOUNG took the view that the present arrangement in issuing CNCCs should be retained unless there was obvious demand for a change in view of the fact that 97% of applicants on average were successfully granted CNCCs and their interest should also be considered.

16.Mr James TO referred to the fact that the list of recordable offences was only part of the administrative arrangements which had not actually covered all the convictions as expected by the Consulates in considering visa applications. Consulates’ views should therefore only be one of the many factors in striking a right balance to ensure the implementation of the spirit of rehabilitation of offender. Mr Hodson confirmed that the list of recordable offences was not exhaustive which only included those offences the fingerprint of a person convicted would be kept. The Police would conduct review of the list from time to time.

17.The Chairman referred to para. 11 of the Administration’s paper and expressed concern that deciding which offences should be included in the list of recordable offences seemed to be subject to the sole discretion of the Commissioner of Police without another level of review and yet it was vital for the applicant’s future whether he would be issued a CNCC or not. Mr Hodson explained that although it was the Commissioner of Police to decide what categories of offence would be recordable, his decision could be subject to judicial review. In this regard, LA commented that there were serious limitations on judicial review of the decision of the Commissioner of Police in this regard.

18.Ms Emily LAU enquired about the Administration’s stance toward the Consulates’ negative views on issuing CNCCs to person with spent conviction in the light that the purpose of issuing CNCCs was to assist the Consulates for considering visa application regarding emigration or adoptions from overseas. Mr Hodson referred Members’ attention to the High Court’s ruling that the Commissioner of Police must not issue a CNCC to a person with criminal conviction(s) even if the conviction(s) had been spent and the operational need of the Police to keep details of spent convictions. Failure to disclose all convictions on record might be against the judicial dictate.

19.As regards the sample of the letter stating spent conviction (Annex B of the paper and the draft revised letter (Annex D), the Chairman opined that the wording of the draft revised letter was not an improvement. Mr Hodson explained that the revised letter was drafted in response to Members’ concern expressed at the meetings of the Bills Committee to study the Rehabilitation of Offenders (Amendment) Bill 1995. In response to the Chairman’s enquiry, Mr Hodson agreed that format of an information letter instead of a certificate to certify no criminal conviction might be more appropriate in the view that not all records of conviction were kept. In this connection, LA cautioned that impact of any change from the existing "certificate" approach which might result in further query by the Consulates and delay in processing visa application. LA further referred to the last paragraph of the draft revised letter and suggested it to be highlighted to expressly reflect the fact that conviction had been spent. Mr Hodson undertook to consider LA’s suggestion.

Adm

4. Any other business

20.The Chairman brought up the issue regarding the progress of the formation of the Court of Final Appeal. Members of the LegCo Panel on Administration of Justice and Legal Services present agreed that it would be included as an agenda item for the meeting of the LegCo Panel on Administration of Justice and Legal Services to be held on 10 June 1996. The Clerk was asked to write to the Administration requesting an information paper on the subject matter.

Clerk

5. Date of next meeting

21.The next meeting of the joint meeting of the LegCo Panel on Administration of Justice and Legal Services, the LegCo Panel on Security and the LegCo Panel on Constitutional Affairs would be held on 4 June 1996 at 2:30 p.m..

22. There being no other business, the meeting ended at 6:10 p.m..

LegCo Secretariat
13 May 1996