Committee on Members' Interests ( Minutes ) 14 Apr 99

Legislative Council

LC Paper No. CB(3) 1636/98-99(01)

Ref: CB(3)/C/2 (IV)

Committee on Members' Interests

Minutes of the fourth meeting
held on Tuesday 14 April 1999 at 4:30 pm
in Conference Room B of the Legislative Council Building

Members present :

Hon David CHU Yu-lin (Chairman)
Hon SIN Chung-kai (Deputy Chairman)
Hon HO Sai-chu, JP
Hon Cyd HO Sau-lan
Hon NG Leung-sing
Hon Bernard CHAN
Hon YEUNG Yiu-chung

Clerk in attendance :

Mrs Betty LEUNG: Chief Assistant Secretary (3)1

Staff in attendance :

Mr LAW Kam-sang, JP: Deputy Secretary General
Mr Ray CHAN: Assistant Secretary General 3
Mr LEE Yu-sung: Senior Assistant Legal Adviser
Mr Arthur LEUNG: Senior Assistant Secretary (3)1

The Chairman welcomed members to the fourth meeting of the Committee.

I. Confirmation of Minutes of the meeting held on 15 December 1998
(LC Paper No. CB(3)1284/98-99(01))

2. The minutes of the last meeting were confirmed without amendments.

II. Procedure for handling complaints about the registration and declaration of Members' interests or a failure to do so
(LC Paper No. CB(3)1284/98-99(02))

3. The Chairman invited members to examine section by section the draft procedure prepared by the Secretariat for handling complaints about the registration and declaration of Members' interests or a failure to do so ("the Procedure")(Annex to LC Paper No. CB(3)1284/98-99(02)). The Chairman suggested and members agreed that all decisions taken during this meeting would be reviewed at the next meeting.

Convening the first meeting & preliminary consideration

4. Mr. YEUNG Yiu-chung asked if paragraph 2 of the Procedure which set out the reason for the Chairman to decide not to hold a meeting to consider a complaint should include anonymity of a complaint as one of the reasons. If this is the case, the reason should be so listed. The Chairman clarified that since it was recommended that the Committee should not consider anonymous complaints, the Procedure did not cover anonymous complaints.

5. Mr. Bernard CHAN pointed out that the Chinese version of the phrase in paragraph 2 (c) was ambiguous. Members agreed that it should be amended to read.

6. Mr. SIN Chung-kai said that while he agreed that anonymous complaints should normally not be considered, he had reservations that as a rule, all anonymous complaints were to be excluded. He pointed out that the Committee might need to consider those anonymous complaints which contained substantial information. In order to spell out such intention in the Procedure, he suggested that the last sentence of paragraph 1 be amended to read "However, the Committee will normally not consider an anonymous complaint". Members agreed to his suggestion. Deputy Secretary General ("DSG") then suggested the following textual amendments: (a) that the last two sentences of paragraph 1 be deleted; (b) that a sub-paragraph be added to paragraph 2 to the effect that the Chairman may decide not to hold a meeting in respect of an anonymous complaint. Members agreed to his suggestion.

7. DSG invited the Committee to consider whether it was necessary to spell out in the Procedure how complaints addressed to the Committee, which concerned matters outside the jurisdiction of the Committee, should be handled. At the invitation of the Chairman, Senior Assistant Legal Adviser ("SALA") advised the meeting that a member of the public had no legal duty to report a crime. If he did so, he would not have to bear any legal consequence even if the defendant was subsequently cleared, except when he did it maliciously. Applying the same principle, the Committee had no legal duty to refer a complaint that it had received to another body. Mr. SIN Chung-kai said that as members of the public might not know which appropriate body of the Council he/she should address his/her complaints to, the Committee might need to refer such complaints it received to other committees within the Legislative Council. However, he would not consider it appropriate to refer complaints to bodies outside the Council. He said that referring complaints to bodies outside the Council by the Committee might give others the impression that the Committee considered that the complaint had some grounds. It might also betray the trust of the complainant placed in the Committee that the confidential information he provided would be kept within the Committee. The Chairman regarded a complaint addressed to the Committee as a matter between the complainant and the Committee, and it would be up to the complainant to decide whether to lodge a complaint directly with other committees of the Legislative Council or outside bodies. DSG also confirmed that the proposed Procedure was for handling complaints addressed to the Committee only. Mr. NG Leung-sing said that since it would be impossible to foresee all circumstances surrounding a complaint, it would be difficult to set out in detail how such complaints should be dealt with in the Procedure. Therefore he suggested that the Committee should only deal with such complaints on an individual basis. Members agreed.

8. SALA said that there might be practical difficulties encountered if anonymous complaints were accepted for consideration as the Procedure provided that the complainants might be asked to provide further information. The Chairman, Mr. SIN Chung-kai and Mr. YEUNG Yiu-chung considered that as the information contained in the original complaint might be sufficient for the Committee to start investigations, it might not be necessary to ask the complainant to provide additional information.

9. DSG invited members to consider whether paragraph 8 should be included in the Procedure. The paragraph provided that the complainant and the Member under complaint might be invited to attend meetings to make clarification and to provide information during the preliminary consideration stage. He said that one of the considerations would be that the media might learn of the invitations and report that a Member was being investigated by the Committee. The Chairman considered that paragraph 8 should be included in the Procedure and the Committee could not be blamed for leaking any information as long as it handled the complaint in a confidential manner. Mr. NG Leung-sing then suggested that the Member under complaint should be invited to "give explanations" rather than to "make clarification" as the latter connoted that the Member under complaint had a case to answer. The Committee agreed to his suggestion. SALA invited members to consider whether it should be spelt out in paragraph 8 that the Member under complaint should attend such meetings on a voluntary basis because under the spirit of law, a person should not be forced to provide information disadvantageous to himself. Mr. NG Leung-sing considered that there was no need to spell this out since the word "invite", rather than "summon", had already been used.

10. Ms HO Sau-lan, who just joined the meeting, expressed reservations about the decision just taken by the Committee to deal with substantiated anonymous complaints. She said that for anonymous complaints, no person would be able to affirm the allegation contained in the complaint. In agreeing to proceed with the investigation of an anonymous complaint, it would mean that the Committee had already taken a stance and considered the information provided reliable. This would unnecessarily place a burden on the Member under complaint to prove himself innocent, and was contrary to the spirit of common law whereby the burden of proof was on the prosecution. She said that she could only agree that the Committee could proceed with the investigation of a complaint by allowing the complainant not to reveal his identity outside the Committee. If the Committee did not know the identity of the complainant at all, then the Committee should not take any further action on it, since there would be no one to provide evidence.

11. Mr. SIN Chung-kai disagreed with Ms. HO Sau-lan. He said that the Committee's handling of anonymous complaints was similar to the Police's handling of tip-offs. The Police would conduct investigations even if the tip-offs came from anonymous sources. Mr. NG Leung-sing also said there was no need for the Committee to adopt the same stringent requirement on onus of proof as the court. He said that the Committee should not adopt a passive role in dealing with complaints and should not be seen to cover up for Members.

12. Ms HO Sau-lan said that she disagreed with the comparison made by Mr. SIN Chung-kai as the Committee was not a law enforcement body whereas the Police was. She added that whilst a person who initiated a case without grounds in a court of law would run the risk of being charged of abusing the judicial system, an anonymous person who lodged a complaint without grounds with the Committee would bear no such risk. Mr. SIN Chung-kai pointed out that meetings of the Committee deliberating on a complaint would be held in camera and the question was really on whether the Committee should deal with substantiated complaints from anonymous sources. Ms HO Sau-lan said that there would then be an inconsistency in the Committee's approach in that the Committee did not accept information in media reports etc. as evidence but was prepared to consider anonymous complaints.

13. The clerk pointed out that the manner for handling anonymous complaints as proposed in the Procedure was based on that adopted by the former Committee on Members' Interests in 1992. However, no information could be found on how the decision had been arrived at. It was also noted that current technological advances made it relatively easy for evidence to be forged. In paragraph 5 of the covering paper (LC Paper No. CB(3)1284/98-99(02)), it was suggested that where a member considered that a complaint, though anonymous, contained substantiated information, it would be for that member to consider taking up the case and lodging a formal complaint with the Committee. Ms HO Sau-lan agreed to this line of action. Mr. YEUNG Yiu-chung commented that this line would place undue risk on the member concerned; he saw no problem in asking the Member under complaint to give explanations in respect of an anonymous complaint. Ms HO Sau-lan said that she could not accept the arrangement since she found it ironic that whilst the Committee was permitted to consider an anonymous complaint, it did not feel comfortable that a member should take up a complaint in his own name.

14. Ms HO Sau-lan said that the role of the Committee as being the prosecutor and the judge in dealing with anonymous complaints was in need of clarity. SALA said that adopting such a dual role might be inconsistent with the principle of natural justice. He said that this could be resolved if the member of the Committee who took up an anonymous complaint could be regarded as the complainant and ceased attending meetings of the Committee as a member when the Committee was dealing with that particular case. Mr. SIN Chung-kai said that the member who ceased to attend meeting of the Committee in order to lodge a complaint could not use the confidential information which he had received as a member of the Committee. Mr. NG Leung-sing said that the Electoral Affairs Commission was playing a dual role too when handling a complaint like unauthorized publicity materials during elections, as it would first conduct investigations and make a ruling afterwards.

15. The Chairman invited members to vote on Mr. SIN Chung-kai's proposal to allow the Committee to handle anonymous complaints. The Chairman, Mr. SIN Chung-kai, Mr. YEUNG Yiu-chung, Mr. Bernard CHAN and Mr. NG Leung-sing voted in favour of the proposal; whilst Ms HO Sau-lan voted against. Ms HO Sau-lan suggested that members of the Committee should consult Members of their respective parties before the next meeting at which the final decision would be taken. Mr. NG Leung-sing suggested that when taking a decision on the above matter, the credibility of the Committee should be taken into account.

All members

The Committee's decision as to whether a complaint is substantiated

16. In respect of the follow-up action on paragraph 15 of the Procedure in relation to the Committee's recommendation to the Council to impose a sanction on the Member concerned under Rule 85 of the Rules of Procedure, members agreed to follow the normal practice for the Chairman to move a motion to that effect, and there would be no need to spell that out in the Procedure.

Confidentiality Requirement

17. Mr. SIN Chung-kai suggested to include in the Procedure a provision to the effect that in cases where the Member under complaint was cleared, the Committee should not be allowed to disclose any information regarding the case. Members agreed.

Clerk, SALA

18. In response to Mr. NG Leung-sing's question of whether the requirement in paragraph 17 could be enforceable with respect to non-Committee Members, SALA replied that the "any other person" could be construed to include non-Committee LegCo Members. Members agreed with the wording of the paragraph.

19. In respect of paragraph 18, Mr. SIN Chung-kai said that the Member under complaint should have a right to request the hearings to be held in public. DSG confirmed that under the proposed procedure, the Member under complaint might request meetings to be held in public. Ms HO Sau-lan said that the right of the Member under complaint should be respected except where public interests were involved. Members agreed with the wording of the paragraph.

20. DSG suggested and Members agreed to add "as far as possible" in paragraph 19 so that the Committee might decide to exclude certain information from being published in the transcript of evidence.

Clerk

Participation of members in the deliberations of the Committee

21. Members agreed to the wording in paragraph 20. Mr. SIN Chung-kai pointed out that, as there were only seven members in the Committee, the Committee might run into difficulties if one or more members of Committee were involved as complainant or under complaint. Ms HO Sau-lan said that other LegCo Members could be appointed by the President as Committee Members to investigate the complaints should the need arise.

Clerk, SALA

II. Date of next meeting

22. Members agreed that the next meeting would be held at 10:45 am on Tuesday, 25 May 1999.

23. The meeting ended at 5:40 pm.

Legislative Council Secretariat
May 1999