LegCo Paper No. CB(2) 1545/96-97
(The minutes have been seen
by the Administration)
Ref : CB2/PL/SE/1
LegCo Panel on Security
Minutes of meeting
held on Monday, 11 November 1996 at 10:45 am
in the Chamber of the Legislative Council Building
Members present :
Hon James TO Kun-sun (Chairman)
Hon Mrs Selina CHOW, OBE, JP (Deputy Chairman)
Hon CHEUNG Man-kwong
Hon Emily LAU Wai-hing
Hon Fred LI Wah-ming
Hon Howard YOUNG, JP
Hon Andrew CHENG Kar-foo
Hon CHEUNG Hon-chung
Hon IP Kwok-him
Dr Hon LAW Cheung-kwok
Hon Bruce LIU Sing-lee
Hon TSANG Kin-shing
Hon Lawrence YUM Sin-ling
Member attending:
Dr Hon Anthony CHEUNG Bing-leung
Members absent :
| Dr Hon Philip WONG Yu-hong*
|
| Hon Zachary WONG Wai-yin*
|
| Hon Albert HO Chun-yan *
|
| Hon LO Suk-ching*
|
| Hon Margaret NG *
|
Public Officers attending :
- Item III
- Mrs Carrie YAU
- Deputy Secretary for Security 1
- Mr Clement LEUNG
- Principal Assistant Secretary for Security
- Item IV
- Mr Philip CHAN
- Principal Assistant Secretary for Security
- Mr Howard CHAN
- Assistant Secretary for Security
- Mr K BRAITHWAITE
- Assistant Commissioner of Police (Support)
- Royal Hong Kong Police Force
- Item V
- Mr Philip CHAN
- Principal Assistant Secretary for Security
- Mr Howard CHAN
- Assistant Secretary for Security
- Mr D M HODSON
- Assistant Commissioner of Police (Crime)
- Royal Hong Kong Police Force
- Mr R J STOKER
- Assistant Police Research Officer (Crime)
- Royal Hong Kong Police Force
- Mr P K LEUNG
- Principal Immigration Officer
- Immigration Department
- Mr Michael CHIK
- Assistant Commissioner of Customs & Excise
- Customs and Excise Department
- Mr C J KERSHAW
- Principal Investigator
- Independent Commission Against Corruption
- Mr C K CHO
- Chief Investigator
- Independent Commission Against Corruption
Clerk in attendance :
- Mrs Sharon TONG
- Chief Assistant Secretary (2)1
Staff in attendance :
- Miss Salumi CHAN
- Senior Assistant Secretary (2)1
I. Confirmation of Minutes of the Meeting held on 7 October 1996
(LegCo Paper No. CB(2) 329/96-97)
The minutes of the Panel meeting held on 7 October 1996 were confirmed.
II. Date of Next Meeting and Items for Discussion
(LegCo Paper No. CB(2) 367/96-97(01))
2. The Chairman reminded members that a special meeting would be held on 2 December 1996 at 8:30 am. The agenda of that meeting had been issued under LegCo Paper No. CB(2) 265/96-97.
3. Members agreed to discuss the following items at the regular meeting to be held on 9 December 1996 :
| (a) | Follow-up on "Deployment of Mainland Troops in Hong Kong";
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| (b) | "Police Force Service Quality Programme and Anti-Corruption Strategy" proposed by the Administration;
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| (c) | "Proposed legislation related to the establishment and regulation of the Civil Aid Services and Auxiliary Medical Services" proposed by the Administration; and
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| (d) | "Review of penalties for sexual offences" proposed by the Administration.
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4. As there were a number of outstanding items for discussion, members agreed to hold another special meeting on 16 December 1996 at 2:30 pm. The agenda would be decided later.
5. Mrs Selina CHOW suggested and members agreed to follow up the subject of "Repatriation of Vietnamese Migrants" at that meeting. The Administration would be requested to update members on the progress and developments since the subject was last discussed on 30 September 1996.
III. Deployment of Mainland Troops in Hong Kong
(LegCo Paper No. CB(2) 367/96-97(02))
(LegCo Paper No. CB(2) 367/96-97(03))
6. The Chairman remarked that as the Chinese side had not yet published the official draft Garrison Law, discussion on the subject would be based on the draft published in a local newspaper on 24 October 1996.
7. Deputy Secretary for Security 1 advised that the Administration had just received the draft Garrison Law from the Chinese side and would need time to study it in detail. In principle, the Administration would like to have the existing legal framework governing the garrison to continue to apply after the transfer of sovereignty in 1997. This would reduce unnecessary worries by members of the public as the existing legal framework had worked well and widely accepted.
8. On criminal jurisdiction, Deputy Secretary for Security 1 advised that the Administration considered it necessary to clearly define the phrase "arise out of and in the course of his duties" ("執行職務"). Past experience had revealed that there might be cases where a member of the garrison committed a criminal offence whilst on duty, but not "arise out of and in the course of his duties". For example, a member of the garrison committed the offence of drink driving whilst driving a military vehicle on duty. Under the existing practice, he would be subject to the jurisdiction of the local courts because it was inconceivable that he was acting under the instruction of his commanding officer to be drunk. Therefore, the offence did not "arise out of and in the course of his duties".
9. On civil jurisdiction, Deputy Secretary for Security 1 advised that at present, members of the British Forces were subject to the jurisdiction of Hong Kong courts when acting in their private capacities. They were also liable for any acts or omissions in the course of performing their duties and could be sued locally. For example, a member of the British Forces driving a military lorry on duty crashed into a civilian vehicle because of his negligence. Civil claims against the military were normally dealt with by administrative settlement. Failing that, the civilian might sue the soldier in Hong Kong courts. The military would back him up in the case because a tort was committed in the course of performing his duties. If the civilian decided to sue the soldier's employer, i.e. the British Government, he would have to pursue his case in the civilian courts in the United Kingdom (UK) because the British Government was immune from suits in Hong Kong courts under the Crown Proceedings Ordinance (Cap. 300). Such arrangements could work because the common law system, in particular, the law of tort and the law of contract, was substantially the same in Hong Kong and the UK. However, similar arrangements might not be workable after 1997 if the case were to be heard in the Supreme Peoples' Court of the People's Republic of China (PRC), which operated under an entirely different legal and judicial system. The Administration hoped that the Chinese side would take this into consideration and agree to allow this type of cases to be heard in Hong Kong courts after 1997.
10. Members noted from paragraph 3 of the Administration's paper that at present, a member of the British Forces would normally be tried in Hong Kong courts if he committed an offence under Hong Kong law. However, under the UK Forces (Jurisdiction of Colonial Courts) Order 1965, if the alleged offence was against the property of the UK Government or other garrison members, or arose out of and in the course of performing his duty, the case would be dealt with under military jurisdiction. The Commanding Officer of the British Forces might waive military jurisdiction and hand over a case to be dealt with by Hong Kong courts even where one of the exceptions stated above applied. He would normally do so if an offence resulted in a serious incident or injury to a civilian, or if there was a civilian accomplice. Mr IP Kwok-him asked for examples of such cases. Principal Assistant Secretary for Security advised that about two years ago, two members of the British Forces were involved in a traffic accident while on duty. As they were suspected to have perverted the course of justice, the case was handed over to a civil court in Hong Kong to address public concern. They were finally found not guilty by the court.
11. At the request of the Chairman and Mr IP Kwok-him, Deputy Secretary for Security 1 agreed to liaise with the British Forces for the following information for members' reference :
| (a) | For the past ten years, the number and nature of cases that the Commanding Officer of the British Forces had waived military jurisdiction and handed over to Hong Kong courts; and
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| (b) | For the past ten years, the number and nature of cases that the Commanding Officer of the British Forces had not waived military jurisdiction and not handed over to Hong Kong courts.
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12. Mr IP Kwok-him pointed out that under Article 146 of the "General Principles of Civil Law" (GPCL) (《民法通則》) of China, "the law of the place where an infringing act is committed shall apply in handling compensation claims for any damage caused by the act". He asked for clarification on whether under this provision, the relevant cases involving a member of the Chinese garrison and a civilian of Hong Kong might be tried in the PRC's courts on the basis of the Hong Kong law. Deputy Secretary for Security 1 said that the Administration had looked into the provisions of the GPCL and would follow-up with the Chinese side. However, she pointed out that Article 146 was included under Chapter VIII of the GPCL on "Application of Law in Civil Relations with Foreigners". It was crucial to clarify whether civilians of Hong Kong would be regarded as "foreigners". If not, the provision of Article 146 would not be applicable to Hong Kong.
13. Referring to paragraph 5 of the Administration's paper, Mrs Selina CHOW requested the Administration to provide the number of cases involving civil claims against the military, which had been dealt with by administrative settlement through the claims branch of the British Forces.
14. Ms Emily LAU noted that under Article 9 of the draft Garrison Law, the Hong Kong garrison would not interfere in the local affairs of the HKSAR. She considered it essential to define clearly the terms "interfere" ("干預") and "local affairs" ("地方事務").
15. Mr CHEUNG Hon-chung considered it essential to define the term "military area" ("軍事禁區").
16. Ms Emily LAU noted that under Article 14 of the draft Garrison Law, the HKSAR Government might, when necessary, ask the Central People's Government (CPG) for assistance from the Hong Kong garrison in the maintenance of public order and in disaster relief. She considered it essential to define clearly the terms "when necessary" ("必要時"), "public order" ("社會治安") and "disaster relief" ("救助災害"). Mr Andrew CHENG shared her views. He also considered that there should be a mechanism for the HKSAR Government to ask the CPG for assistance from the Hong Kong garrison. For example, the HKSAR Government could only act upon a resolution of the HKSAR Legislative Council. He requested the Administration to convey members' concern to the Chinese side through the Sino-British Joint Liaison Group (JLG).
17. Dr Anthony CHEUNG sought the Administration's views on whether the Garrison Law would be regarded as national laws and hence, applied to Hong Kong through its inclusion in Annex III to the Basic Law. Deputy Secretary for Security 1 said that it was necessary to clarify the status of the Garrison Law with the Chinese side and how it would apply to the HKSARG.
18. Mr Fred LI noted from paragraph 7 of the Administration's paper that there were over 100 items of primary and subsidiary legislation in Hong Kong that contained provisions affecting the British Forces. He asked whether the Administration would introduce amendments to the relevant legislation so as to bring them compatible with the Garrison Law. Deputy Secretary for Security 1 responded that the relevant provisions would need to be carefully examined and adapted to ensure that they would suit the circumstances of the HKSAR after the handover. The matter was dealt with under the adaptation of laws exercise, being discussed by the JLG.
19. Mr Andrew CHENG expressed his concern about the recent statements by Mr CHENG Shousan, Deputy Director of the Chinese Ministry of Foreign Affair's Hong Kong and Macau Affairs Office, that members of the PLA advance party would carry weapons with them to Hong Kong. Mr CHENG queried on the need and the types of weapons involved. Deputy Secretary for Security 1 said that the issue of the stationing of PLA advance party in Hong Kong before the handover was still under discussions in the JLG and so far no agreement had been reached with the Chinese side.
20. In response to a follow-up question from Mr TSANG Kin-shing, Principal Assistant Secretary for Security advised that the possession of weapons in Hong Kong was governed by the Firearms and Ammunition Ordinance.
21. In response to some members' enquiries, Deputy Secretary for Security 1 advised that the Chinese side had given an informal briefing to the Administration on 17 October 1996 on the drafting of the Garrison Law. The Administration hoped that there were further opportunities to discuss with the Chinese side before the Garrison Law was finalized.
22. Members were concerned about the Administration's position and views on the Garrison Law, and whether the views expressed by the Hong Kong people would be fully reflected to the Chinese side. At the Chairman's request, Deputy Secretary for Security 1 agreed that within the bounds of JLG confidentiality, she would be prepared to advise members of the Administration's position and views on the Garrison Law in due course. She also confirmed that the Administration would reflect, as far as possible, the views expressed by the Hong Kong people to the Chinese side. The Administration would welcome any views from LegCo Members, the legal profession and members of the public.
23. Some members noted from press reports that the Chinese side would formally announce the finalized Garrison Law by the end of December 1996. In view of the limited time available, they considered that there was an urgent need to gather views from the legal profession and members of the public on the draft Garrison Law. Mr Bruce LIU proposed to hold a special Panel meeting for the purpose. Mrs Selina CHOW considered it more appropriate for the Administration to gather the public's views. Mr Howard YOUNG preferred to invite the public to submit their views in writing.
24. After discussions, a majority of members agreed to hold a special Panel meeting in early December 1996 to receive representations from the public on the draft Garrison Law. The Clerk to Panel would issue a press release accordingly.
| (Post-meeting note: | The special Panel meeting was held on 3 December 1996. The relevant submissions and minutes of meeting were then forwarded to the Chinese side.)
|
IV. Policy on Petition
(LegCo Paper No. CB(2) 367/96-97(04))
25. Mr CHEUNG Man-kwong noted from paragraph 2 of the Administration's paper that "the Police are under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity and to take such steps as they judge may be necessary for that purpose under the Police Force Ordinance (PFO)". It revealed that the PFO was the legal basis of the Police action in the handling of petitioners in recent incidents involving the Japanese Consulate premises. Mr CHEUNG sought clarification from the Administration on the following points :
| (a) | Under section 10 of the PFO, "the duties of the Police shall be to take lawful measures for preserving the public peace, ...... preserving order in public places and ...... at public meetings....." What were the lawful measures involved?
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| (b) | In considering whether the measures to be adopted under the PFO were lawful and reasonable, would the Administration make reference to other related ordinances, such as the Public Order Ordinance (POO)?
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| (c) | Under the POO, the term "procession" meant "a procession organized as such for a common purpose". Hence, the petitioners and reporters, being two groups of people with different purposes, should not be treated as one procession. However, in a recent incident on 22 October 1996, the Police had imposed a restriction under which a total of not more than 30 petitioners and reporters were allowed access to the Japanese Consulate. What was the legal basis for the Police to impose such a restriction on two different groups of people with different purposes?
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26. Assistant Commissioner of Police (Support) advised that in the handling of public processions, public gatherings and public meetings, the overriding consideration of the Police was to preserve public safety and public order. If the police officers on the scene considered that public safety and/or public order were likely to be endangered, they could exercise control, such as by restricting the number of people that were allowed access to the premises concerned. Principal Assistant Secretary for Security added that in the quoted incident, the Police had imposed such a restriction simply because the corridor outside the Japanese Consulate was not spacious enough to accommodate all the petitioners and reporters. For the sake of public safety, the Police had decided to allow not more than 30 people to gain access to the premises concerned. Assistant Commissioner of Police (Support) pointed out that the composition of that number was left up to the petitioners and reporters, not dictated by the Police.
27. The Chairman considered that while the Police had the responsibility under the PFO to preserve public order, the Police's power was restricted by the POO. He requested the Administration to provide an information paper on the subject, advising members on the legal basis of the Police's power in this respect, and the relationship between the PFO and the POO and whether the former overrode the latter. Assistant Commissioner of Police (Support) responded that it was common law power. The Chairman considered that common law power was not without limit. He requested the Administration to provide the required information.
28. Mr Andrew CHENG queried why the Police had, in the incident on 22 October 1996, excluded certain people from entering the lift lobby of the Exchange Square, which were outside the area of the Japanese Consulate premises. He considered such action discriminatory and asked whether the Police would take the same action in future similar incidents.
29. Principal Assistant Secretary for Security advised that as stated in the Secretary for Security's reply to a question raised at the LegCo Sitting on 6 November 1996, "in the light of an intrusion into the Japanese Consulate on 9 October 1996, the Police considered it necessary to take pre-emptive action to prevent any recurrence. Such action included the exclusion of those persons who had participated in the earlier incident from entering the lift lobby of the Japanese Consulate premises". Assistant Commissioner of Police (Support) added that as the Hong Kong Government was obliged to enforce the inviolability of consular premises in Hong Kong in accordance with Article 31 of the Vienna Convention on Consular Relations, the Police had to prevent similar incident on 9 October 1996 from happening again. The Police would take the same action until they were satisfied that there was no possibility of recurrence. The Chairman considered that there was no legal basis of such discriminatory action of the Police.
30. In response to Mrs Selina CHOW's enquiry, Assistant Commissioner of Police (Support) said that it was entirely up to the lawful occupiers in private premises to decide whether or not they would receive petitions. In case the lawful occupiers of private premises did not wish to receive the petitioners and so, called the Police, the Police would be there to maintain peace. If the petitioners were inside the private premises and refused to leave, the lawful occupiers had the right to evict them under the law of trespassers. In those circumstances, the Police could act as agents of the lawful occupiers and evict them.
V. Law Reform Commission Report on Arrest
(LegCo Paper No. CB(2) 257/96-97)
(LegCo Paper No. CB(2) 263/96-97)
31. Principal Assistant Secretary for Security briefed members on the Administration's paper and the "Proposals by an Interdepartmental Working Group on the Law Reform Commission (LRC) Report on Arrest". The Administration was conducting a public consultation exercise on the Working Group's proposals and the consultation period would end by 28 December 1996.
32. Mrs Selina CHOW supported most of the Working Group's proposals. However, she was concerned that some of the proposals might hinder the prevention of crime. For example, the Working Group had proposed that "the power to stop and search must be exercised under a test of reasonable suspicion where there is a current statutory requirement for it, when the subject is in a public place, and when the subject is suspected of having committed or being about to commit any imprisonable offence." Law enforcement officers must therefore make sure that the offence committed or being about to be committed by the subject was an "imprisonable offence" before exercising their power to stop and search. This requirement might hinder them from taking law enforcement action.
33. Principal Assistant Secretary for Security explained that the threshold of "imprisonable offence" was established to provide a yardstick for the front line officers to exercise their power to stop and search. Assistant Commissioner of Police (Crime) added that police officers were familiar with the concept of imprisonable offence, which was currently linked to the power of arrest. Hence, there should be no serious problem in linking it with the power to stop and search.
34. Dr LAW Cheung-kwok pointed out that some of the police officers were quite impolite in exercising their power to stop and search. He noted that the Working Group had proposed that a police officer should explain to the person affected, in layman terms, the reasons for the stop and search. He asked whether there were any concrete proposals to ensure that police officers would communicate politely and effectively with the persons affected. Principal Assistant Secretary for Security advised that as stated in the 1996 Policy Address, the Administration aimed to strengthen public confidence in the Police Force in 1997 by fostering a service culture through service quality projects, including streamlining procedures in report rooms and in other areas of contact with the public so that police officers would maintain their courtesy in their contact with the public. However, it would take time to implement the projects and for the results to be seen.
35. Mrs Selina CHOW noted that the Working Group had proposed that law enforcement officers with the exception of Customs and Excise and Immigration officers at control points should be required to keep written records of search by making entries in their official notebooks. Mrs CHOW was concerned that excessive paperwork might discourage law enforcement officers from taking enforcement action. Assistant Commissioner of Police (Crime) considered this a valid point. He informed members that after the introduction of the Police and Criminal Evidence Act 1984 (PACE) in the UK, it took the police officers on average 4 to 5 hours to process the paperwork after a simple arrest. The Administration would make sure that such things would not happen in Hong Kong.
36. Mr Bruce LIU supported the Working Group's proposal that "road checks should be retained as it is essential in curbing illegal immigration and as a crime prevention measure, e.g. anti-taxi robberies. There should not be any statutory requirement of "reasonable suspicion" for any officer to conduct such checks."
37. Mr Bruce LIU noted the Working Group's proposal that the delay of up to 48 hours for an arrested person to exercise his right to inform a friend or relative or consult a lawyer privately should only be permitted in case of an "arrestable offence". Mr LIU queried why the delay of up to 48 hours should be permitted.
38. Assistant Commissioner of Police (Crime) advised that at present, when a person was detained, he would be given a notice explaining what his rights were. If there was to be any delay in his access to a lawyer, it had to be based on very strong justifications and the police officers concerned were liable to explain this in court. One of the examples would be a kidnapping case where the life of the kidnapped person was still at risk, and there was good reason to believe that communication between the detained suspect and his friends/relatives might put the person's life at risk.
39. The Chairman considered that in order to be fair to the detainee, the Police should not take a cautious statement from him during the period he was deprived of the right to consult a lawyer. Assistant Commissioner of Police (Crime) agreed to look into this point.
40. The Chairman noted that the LRC had recommended the adoption of the same practice of PACE which required the Secretary of State to issue codes of practice on the exercise by police officers the powers of search of persons, detention, treatment, questioning and identification of persons, search of premises, and seizure of property found on persons and on premises. The draft code should be approved by the legislature. He asked why the Working Group had not accepted this recommendation of the LRC. Principal Assistant Secretary for Security explained that the codes of practice would need to be amended frequently in the light of day-to-day operational experience. The Working Group was of the view that if the PACE approach was adopted, it would be very inflexible and might hamper the responsiveness of the law enforcement agencies to changing circumstances because they had to go through the legislative process frequently when they found it necessary to amend the codes regardless how minor the proposed changes were. The Working Group had therefore proposed to maintain the status quo, i.e. to amend the codes through administrative means.
41. The Chairman was not convinced. He considered that the codes of practice should be tabled in the LegCo as subsidiary legislation. The negative vetting procedure in the LegCo was not inflexible. Assistant Commissioner of Police (Crime) pointed out that from the experience in the UK, non-compliance with the codes of practice would invariably invalidate the whole process. For example, if a person was not detained in accordance with the codes, the detention would become unlawful. This approach had dramatically changed the focus of defence lawyers in various trials in the UK, where the defence lawyers aimed to find a breach in procedure which then invalidated the process. Trials by and large became a search for an error in procedure rather than a search for truth or innocence.
42. The Chairman pointed out that at present, police officers would make a cautioning statement to a person under arrest, "You are not obliged to say anything unless you wish to do so." He considered that the wordings of the Chinese version of this cautioning statement were not easily understood and did not positively inform the person his right to remain silent. He therefore proposed to change the wordings to "You are entitled to remain silent." Principal Assistant Secretary for Security agreed to consider this suggestion.
VI. Close of meeting
43. The meeting ended at 1:30 pm.
LegCo Secretariat
10 March 1997
* other commitments
Last Updated on 15 May 2002
