Legislative Council

LC Paper No. LS215/98-99

Objects of the Bill

To amend -

1. the Dangerous Drugs Ordinance (Cap. 134) to make provisions for the taking of urine samples from individuals;
   
   
2. the Independent Commission Against Corruption Ordinance (Cap. 204) to make provisions for the taking of non-intimate samples from individuals; and
   
   
3. the Police Force Ordinance (Cap. 232) to make provisions for the taking of intimate and non-intimate samples from individuals and the maintenance of a DNA database and to provide for related matters.

LegCo Brief Reference

2. SBCR 11/2801/88 (98) Pt.22 issued by the Security Bureau on 15 June 1999.

Date of First Reading

3. 30 June 1999.

Comments

Amendments to the Dangerous Drugs Ordinance

4. The Bill would introduce provisions allowing the taking of urine samples from individuals upon the fulfilment of the following conditions -

1. the individual concerned or whose parent or guardian consents;
   
   
2. a police officer or a member of the Customs Excise Service of or above the rank of superintendent authorises; and
   
   
3. a magistrate approves.

5. Although the authorizing officer may only give the requisite authorization if he has reasonable grounds for suspecting the involvement of the person from whom a urine sample is to be taken in an offence relating to dangerous drugs that carries a term of imprisonment for not less than 5 years, the information derived from the forensic analysis of the urine sample may be used in any proceedings for an offence in relation to dangerous drugs.

6. The urine sample taken and all information derived from the forensic analysis of the sample will only be destroyed -

1. at the expiry of 12 months after the taking of the sample if the person concerned is not charged with any offence in relation to dangerous drugs; or
   
   
2. after the conviction, discharge or acquittal of the person concerned,

whichever occurs first. The period of 12 months may be extended by an officer of or above the rank of chief superintendent for not more than 6 months for each extension if he is satisfied on reasonable grounds that the retention of the sample taken and the information derived from the forensic analysis are necessary to the continued investigation of the offence(s) in relation to which the sample was taken.

Amendments to the Independent Commission Against Corruption Ordinance

7. Provisions similar to the amendments to the Dangerous Drugs Ordinance would be added to the Independent Commission Against Corruption Ordinance allowing the taking of non-intimate samples.

8. Non-intimate samples means a sample of hair other than pubic hair, a sample taken from or from under a nail, a swab taken from any part of a person's body (excluding private parts and all body orifice other than the mouth), saliva and an impression of any part of a person's body.

Amendment to the Police Force Ordinance

9. The Police would be allowed to take an intimate sample from a person for forensic analysis if an officer above the rank of superintendent authorises, the person consents, and a magistrates approves. An intimate sample means a sample of blood, semen or any other tissue fluid, urine or pubic hair, a dental impression, or a swab taken from a person's body orifice other than the mouth or from a private part of a person's body.

10. The Police would be empowered to take a non-intimate sample from a person in police detention or in custody without his consent and use necessary force to achieve the purpose upon the authorization of a superintendent or above.

11. The Police would be empowered to take a non-intimate sample of a swap from the mouth of a person convicted of an offence that carries a term of imprisonment of not less than 5 years and store the DNA information derived from the sample permanently in a DNA database to be set up pursuant to the provisions of the Bill. Provisions would also be made for the voluntary giving of a non-intimate sample by a person who has attained the age of 18 years.

12. A DNA database would be maintained by the Government Chemist to store DNA information derived from samples obtained pursuant to the provisions of the Bill with access granted to the police and the ICAC for forensic comparison with any other DNA information in the course of an investigation of any offence.

13. Members may note that the use of DNA information of a suspect or an ordinary citizen for general investigation of undetected crimes may contravene provisions of the International Covenant of Civil and Political Rights. According to the LegCo Brief, it is justifiable in wider public interest to provide such power for law enforcement needs. It is also open to question whether adequate procedural requirements and safeguards have been in place to govern the operation of law enforcement agencies and prevent possible abuse of power.

Public Consultation

14. The LegCo Brief states that the Privacy Commissioner for Personal Data has been consulted and the Bill has incorporated, where appropriate, comments of the Commissioner.

Consultation with LegCo Panel

15. Members of the Panel on Security have been consulted on the legislative proposals on 11 February 1999.

Recommendation

16. The Bill represents a significant legislative initiative in the collection of evidence for law enforcement purposes. Members may wish to set up a Bills Committee to study in detail the policy and practical aspects of the Bill. The Legal Service Division is seeking clarification on certain drafting aspects of the Bill from the Administration and would issue a further report if necessary.


Prepared by


KAU Kin-wah
Assistant Legal Adviser
Legislative Council Secretariat
28 June 1999