PLC Paper No. CB(2) 318
(These minutes have been seen
by the Administration and cleared with the Chairman)
Ref : CB2/BC/17/96

Bills Committee on
Long-term Prison Sentences Review Bill

Minutes of the Sixth Meeting
held on Tuesday, 3 June 1997 at 12:30 pm.
in Conference Room B of the Legislative Council Building

Members present :

    Hon Ronald ARCULLI, OBE, JP (Chairman)
    Hon LEUNG Yiu-chung
    Hon Bruce LIU Sing-lee
    Hon TSANG Kin-shing
    Hon Lawrence YUM Sin-ling

Members absent :

    Hon Emily LAU Wai-hing
    Hon James TO Kun-sun
    Hon Andrew CHENG Kar-foo

Public officers attending :

Mr Alex FONG
Deputy Secretary for Security
Mr Gilbert KO
Assistant Secretary for Security
Mr Kelvin PANG
Assistant Commissioner of Correctional Services
(Operations)
Mr Samson CHAN
Senior Superintendent of Correctional Services
(Programme Development)
Mr Peter WONG
Acting Senior Assistant Solicitor General
Mr Geoffrey FOX
Senior Assistant Law Draftsman

Clerk in attendance :

Mrs Sharon TONG
Chief Assistant Secretary (2)1

Staff in attendance :

Mr Jimmy MA
Legal Adviser
Mr Paul WOO
Senior Assistant Secretary (2)5


I. Meeting with the Administration

Continue with clause-by-clause examination of the Bill

Schedule 1 section 13 (2)(a)

The Administration advised that a draft Committee stage amendment (CSA) had been proposed to substitute " 7 days " with " 14 days".

Schedule 1 section 14 (2)

2. In response to the Chairman‘s question, the Administration replied that under existing practice records of proceedings of the Board of Review, Long Term Prison Sentences (BOR, LTPS) were kept for a period of seven years.

Outstanding issues - points raised by members on 19 May 1997 and 28 May 1997

    (LegCo Paper No. CB(2) 2470/96-97 (01)
    LegCo Paper No. CB(2) 2530/96-97 (01)
    LegCo Paper No. CB(2) 2530/96-97 (02))

Legal aid

3. Deputy Secretary for Security (DS(S)) informed members that legal aid was not granted to prisoners appearing before the BOR, LTPS or to prisoners making written representations to the Board. This, however, did not rule out the possibility that legal aid might be made available in the future. In this connection, the Administration had proposed to amend clause 13(2) and (6) respectively to allow prisoners no less than 14 days to read the relevant material, thus providing flexibility particularly where legal aid might be made available to the prisoners.

Clause 4

4. The Bills Committee noted a technical amendment proposed by the Administration to delete the words " µ¥­Ô " from the Chinese translation for " detention at Executive discretion ".

Clause 8

5. DS(S) advised that in response to the Bills Committee‘s suggestion, a new subclause 8 (ba) had been proposed to require the Board to have regard to whether the prisoner had served a sufficient part of his sentence, in particular given the nature of the offence for which the prisoner was sentenced.

Clause 12(7)

6. DS(S) said that the intention of clause 12(7) was not to turn the Board‘s proceedings into court proceedings. There was no similar provisions in other legislation.

7. Legal Adviser (LA) said that the prime concern was whether a prisoner’s rights would be adequately safeguarded under the Ordinance during a review of his sentence. He considered that in this respect clause 12(7) did not seem to serve any useful propose. The Chairman opined that clause 12(7) was an unusual provision. He was of the opinion that a provision to specify that the Board had authority to determine its own review proceedings would suffice.

8. In response, DS(S) said that the Administration had no objection to have clause 12(7) removed from the Bill. He suggested that the review proceedings of the Board should be more detailedly set out by regulations after the enactment of the Bill. The Bills Committee agreed.

Admin

Clause 23

9. DS(S) said that the Administration was of the view that it was not necessary to provide for the making of temporary recall orders in clause 23 concerning conditional release, similar to the provisions in clause 37(3). He explained that different from prisoners under the post-release supervision scheme, prisoners in respect of whom a conditional release order was in force were still serving indeterminate sentences and therefore they should be subject to more stringent conditions of release. If these prisoners failed to comply with their conditional release orders, the orders should be suspended, without the need for an intermediate step of making a temporary recall order. DS(S) added that the differential treatment for prisoners under the post-release supervision scheme and the conditional release scheme was in line with the provisions in the Post-Release Supervision of Prisoners Ordinance and the Prisoners (Release under Supervision) Ordinance respectively.

Clause 25

10. The Administration advised that a technical amendment had been proposed to include a general provision in clause 15, instead of in clause 25, to expressly provide that the Board might review a conditional release order at any time before its expiry. The proposed CSA was agreed.

Clause 38

11. DS(S) informed members that the Administration had accepted the Bills Committee’s view that the Commissioner (including the Acting Commissioner) should not delegate his power to recall a prisoner to prison under clause 38. A draft CSA had been proposed to that effect.

Clause 43

12. In response to members’ suggestion to change the approval of regulations of the Bill by legislature to positive vetting procedures, DS(S) pointed out that the regulations associated with the Prisoners (Release under Supervision) Ordinance and the Post-Release Supervision of Prisoners Ordinance, on which this Bill was modelled, were made through negative vetting procedures. He said that the negative vetting process ensured a more definite time-frame for scrutiny of subsidiary legislation by the legislature. Senior Assistant Law Draftsman added that by virtue of sections 34 and 35 of the Interpretation and General Clauses Ordinance, the legislature had authority to amend or repeal subsidiary legislation in whole or in part, thus providing safeguards for scrutiny. On the drafting side, subject to policy and operational considerations, routine matters or matters of a more controversial nature could be grouped under different sets of regulations, and be dealt with separately according to priorities. It was also possible to deal with subsidiary legislation partly by negative vetting procedures and partly by resolution of the legislature.

13. LA pointed out that regulations made under negative vetting procedures as proposed in the Bill might come into effect upon being gazetted, whereas under positive vetting procedures a piece of subsidiary legislation could not commence operation until a resolution was passed in the legislature. The key issue therefore was for members to decide whether the regulations in question were of a routine or technical nature that they could commence operation as soon as they were gazetted, or whether the regulations were of such importance that time was required for detailed study before they actually came into effect. The Chairman opined that the setting of a specified period for scrutiny under the negative vetting process imposed pressure on both the legislature and the Administration. He was in favour of making regulations of the Bill through the approval of the legislature.

14. On deliberation, the Administration agreed to submit draft CSA for clause 43 to specify that the regulations would be made subject to the approval of the Legislative Council.

Admin

15. In view of the very detailed subject matters already covered under clause 43(2) as regards the purposes of making regulations, the Administration agreed to delete clause 43(1) from the Bill.

Admin

Draft CSAs proposed by the Administration

(LegCo Paper No. CB(2) 2530/96-97(03)
LegCo Paper No. CB(2) 2531/96-97(01)
LegCo Paper No. CB(2) 2547/96-97(01))

Clause 14

16. DS(S) informed members that the proposed CSA for clause 14(1) was made after taking into account the views of the Judiciary Administrator (JA). According to JA, " court record " in the original clause 14(1)(c) of the Bill was not the proper terminology to describe court documents. JA had suggested to re-draft clause 14(1)(c) and (d). DS(S) said that the Administration believed that the newly proposed subclause 14(1)(c)(i) and (ii) more accurately described the documents required for the purposes of clause 14.

17. The Chairman was concerned that one might read the wordings literally and problem would still exist as to whether there were documents properly named and identified as " copy of the summing up by the judge " or " copy of any plea in mitigation " etc. as specified in the new subclause. The Administration undertook to further clarify with JA on this point and revise the drafting, if necessary.

Admin

18. The Bills Committee agreed to the other draft CSAs proposed by the Administration.

II. Legislative timetable

19. The Chairman advised that he would give a verbal report to the House Committee on 6 June 1997, followed by a written report of the Bills Committee on 13 June 1997. Resumption of the Second Reading debate of the Bill would take place at the Legislative Council sitting commencing on 23 June 1997. The Administration would give notice of resumption on 6 June 1997. The deadline of giving notice of CSAs was 13 June 1997.

20. The Administration undertook to submit the final draft CSAs by 6 June 1997.

Admin

III. Close of meeting

21. There being no other business, the meeting ended at 1:30pm.

Provisional Legislative Council Secretariat
3 September 1997

Last Updated on 20 October 1997