Provisional Legislative Council
PLC Paper No. CB(2) 673
(The minutes have been seen by the Administration)
Ref. : CB2/PS/1/97

Provisional Legislative Council
Panel on Security

Subcommittee on Overcrowdedness in Penal Institutions

Minutes of the Second Meeting held on Tuesday, 21 October 1997 at 10:45 am in Conference Room B of the Legislative Council Building

Members present :

Hon Mrs Selina CHOW, JP (Chairman)
Hon Mrs Elsie TU, GBM
Hon Henry WU
Hon CHAN Choi-hi
Hon CHENG Kai-nam
Hon LAU Kong-wah

Members absent :

Hon Bruce LIU Sing-lee

Public officers attending:

Mr Alex FONG, JP

Deputy Secretary for Security

Mr Kelvin PANG

Assistant Commissioner of Correctional Services

Mr Patrick CHEUNG

Deputy Principal Government Counsel

Mr LEE Chan-yeung

Senior Social Work Officer

Mr Gilbert KO

Assistant Secretary for Security

Clerk in attendance :

Mrs Sharon TONG

Chief Assistant Secretary (2) 1

Staff in attendance :

Mr Paul WOO

Senior Assistant Secretary (2)5

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I. Follow-up on issues of overcrowding in penal institutions
(PLC Paper Nos. CB(2) 300(02), 409(01) and 462(01))

Non-custodial sentencing options

In response to members?enquiries regarding the sentencing of juveniles, the Administration said that the objective was rehabilitation and the court generally would not sentence a person of or over 16 and under 21 years of age to imprisonment unless the court was of the opinion that no other method of dealing with such person was appropriate.

2.. At members?request, the Administration agreed to provide information and analyses regarding the following :

1. in the past five years, the number of young offenders arrested who were aged below 21, the number of prosecutions initiated, the number of young offenders imprisoned or under non-custodial sentences and the number of acquittal; and

2. the number of young prisoners who had repeated an offence as compared with the number of young re-offenders under the non-custodial sentences.

3.. Referring to the selected non-custodial sentencing options at Annex A of PLC Paper No. CB(2) 462(01), the Administration advised that these options produced effective rehabilitative results. Senior Social Work Officer informed members that a recent research on the effectiveness of rehabilitation programmes for young offenders conducted by the City University of Hong Kong indicated good public support for the Community Service Order Scheme and the Probation Service. The Administration undertook to provide the report findings for members?information.

Admin

4.. Members noted that under the Police Superintendent'sDiscretion Scheme, about one-third of the juveniles arrested in 1996 were cautioned In response to members, Deputy Secretary for Security

Admin

(DS(S)) proposed to invite representatives from the Police Force could be invited to brief members on the Scheme at the next meeting. (Post-meeting note : A pamphlet on the Police Superintendent'sDiscretion Scheme has been circulated to members vide PLC Paper No. CB(2) 475.)

5.. The Administration took members through the review of the non-custodial sentencing options in other countries (Annex B of PLC Paper No. CB(2) 462(01)). DS(S) and Assistant Commissioner of Correctional Services (ACCS) said that the Administration had studied the options carefully and considered that they were not suitable for Hong Kong. For example, the compact living environment in Hong Kong would severely limit the effectiveness of certain options such as foster care, home detention, curfew and use of electronic monitoring. In addition, a large part of the non-custodial schemes adopted in overseas countries were provided for young offenders only and they could not be used to relieve overcrowding which involved mainly adult prisons in Hong Kong.

6.. Members considered that the Administration should keep an open mind in reviewing various options to tackle the problem. In particular, the day in prison programme and weekend detention were worthy of further study, despite the drawbacks as set out in the paper. Members requested the Administration to advise on the types of offences that could be dealt with by these two options and the estimated number of prisoners involved.

Admin

7.. Members also asked the Administration to further examine the feasibility of foster care and extending the provision of family services to young offenders.

Admin

Prisoners of foreign nationality

8.. ACCS provided the end-of-year figures of foreign prisoners, excluding Mainland Chinese prisoners, in the previous five years as follows :

Illegal immigrants (IIs) taking up illegal employment

9.. ACCS informed members that under the Immigration Ordinance (Cap. 115) people could be prosecuted for offences such as landing and remaining without permission and breach of condition of stay. The Correctional Services Department had not maintained statistics on the number of Mainland IIs who had repeated the offence of taking up illegal employment in Hong Kong. DS(S) clarified that Mainland IIs landing unlawfully would be repatriated immediately upon arrest. Mainland IIs found taking up illegal employment would be prosecuted and imprisoned. Visitors, who entered Hong Kong legally subject to conditions of stay which prohibited them from working, were prosecuted for breach of condition of stay should they take up illegal employment. For the first nine months in 1997, about 160 foreign nationals, excluding Mainland IIs, were prosecuted for taking up illegal employment and were given custodial sentence. The number of Mainland II workers being imprisoned was about 500. The Administration undertook to provide extracts of the relevant provisions of the Immigration Ordinance for members?information.

Admin

10.. DS(S) said that imprisonment was an effective deterrent to IIs trying to enter unlawfully with the intention to work in Hong Kong. The Government had also taken other preventive measures concurrently to combat the influx of illegal immigrant workers, such as stepping up border surveillance, increasing the fines and penalties for employers employing illegal workers, strengthening publicity as well as administrative means which included the introduction of W-prefixed Identity Cards for imported workers. These measures were also found to be effective. DS(S) said that any proposed changes in policy such as relaxing on the imprisonment sentence for illegal workers had to be carefully examined as to the likely consequences.

11.. Members considered that it would not be possible to assess accurately the deterrent impact of custodial sentence without information on the number of Mainland IIs who had repeated the offence of taking up illegal employment. DS(S) agreed to follow-up the matter with the Immigration Department to see if relevant statistics could be collected.

Admin

12.. Mrs Elsie TU said that II workers were normally imprisoned for 15 months. In her opinion, the courts, in handing down the verdict, merely acted in accordance with the immigration policy rather than judging on the merits of the case. DS(S) replied that the law laid down the penalties and it was up to the court to impose the sentence within the confine of the law. The Administration had no authority to interfere with the court'sdecision. Deputy Principal Government Counsel (DPGC) advised that guideline sentences applied to certain categories of crimes where the nature of the offence was very similar in the cases concerned. For example, there were guideline sentences for illegal immigrant cases, drug cases and robbery cases. The purpose of a guideline sentence was to provide consistency in sentencing to avoid unnecessary confusion. As far as II workers were concerned, since they had no alternative accommodation in Hong Kong, the choice was very limited in terms of sentencing options. In most cases, it was either imprisonment or otherwise. The guideline sentence of 15 months was introduced in 1988 by the Court of Appeal. However, it was not a strait-jacket. In some cases, the magistrates had imposed a lighter sentence taking into account other factors such as health or humanitarian considerations. DPGC added that the 15-month sentence applied to cases of illegal workers who landed unlawfully. People prosecuted for breach of condition of stay, e.g. illegal workers with the right to stay for a prescribed period of time but banned from working, would be subject to a lighter sentence than 15 months.

13.. Mrs Elsie TU pointed out that the problem of II workers should be tackled from the employers?end. The Administration said that the Government was acting along this line. Legislative amendments had been introduced last year imposing stiffer fines and penalties for employers employing illegal workers. Such employers could also be sentenced to 15 months?imprisonment as with II workers.

Non-violent prisoners of foreign nationality

14.. The Administration provided additional information as follows :
(As at 10 October 1997)

Transfer of prisoners

15.. Members noted that matters relating to transfer of foreign prisoners who wished to go back to their home countries to serve their sentence would be discussed at the Security Panel meeting on 20 November 1997. The Administration said that the number of such foreign prisoners was small as compared with the existing population of foreign prisoners of 600. Transfer of foreign prisoners was not possible without the consent of the prisoners concerned and bilateral arrangements between the countries concerned. At members?request, the Administration agreed to include in the discussion paper for the Security Panel on 20 November 1997 information on the number of foreign prisoners who had requested for transfer to their countries of origin and whether transfer arrangements were in place with these countries.

Admin

16.. As regards arrangements for the transfer of sentenced persons between Hong Kong and the Mainland, DS(S) said that the Administration had yet to take up the issue with the Central People'sGovernment. The Administration had decided on the priority of first dealing with countries which had similar judicial system with Hong Kong, i.e. the common law jurisdictions. Before 1 July 1997, Hong Kong had bilateral agreements with some 20 countries. One of the major considerations relating to transfer of prisoners was that Hong Kong would have to be satisfied that the sentenced person upon transfer would be subject to treatments which would be comparable to the treatment they received in Hong Kong. DS(S) added that negotiation with countries with different judicial systems would be more difficult.

Members urged that discussion with the Mainland should start as soon as possible as the outcome of negotiation would affect prisoners in both Hong Kong and the Mainland. The Chairman opined that to ascertain the urgency of the matter, the Administration should find out how many Mainland prisoners in Hong Kong were willing to serve their sentence in the Mainland if transfer arrangements were in place.

New projects to increase penal capacity

17.. Members noted that despite the current redevelopment projects and the planned new prison complex at Yam O, which was expected to be completed in 2003, the present forecast indicated there could still be a shortfall of about 3 000 penal places in 2003. Members were concerned that without additional facilities, the situation of overcrowding would deteriorate in the very short term. DS(S) responded that the estimated figures of shortfall were regularly reviewed and updated and a more sophisticated model for forecast was being developed. The model would take into account factors such as changes in the crime rate, the rate of successful arrests and sentences imposed by the courts etc. The Administration was concurrently working on long-term supply side solutions to provide additional penal facilities. It would report back to the Panel on Security when it was in a position to put forward concrete proposals. DS(S) assured members that any approved new projects would proceed without delay. ACCS added that penal overcrowding was a common problem with places over the world. Most countries approached the problem through taking reactive measures to increase penal capacity to cater for the actual shortfall, rather than to provide new facilities in anticipation of a shortfall.

18.. Members pointed out that a major works project normally required a lead-time of five to six years before completion. In view of the immediate pressing shortage of penal places, members called upon the Administration to explore every possible means to tackle the problem before the situation worsened.

II. Date of next meeting

19.. The next meeting would be held on Thursday, 6 November 1997 at 2:30 pm.

III. Close of meeting 20.. The meeting ended at 12:45 pm.

Provisional Legislative Council Secretariat
17 November 1997

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