**********************************************************
Following is the speech (English translation) by the Secretary for Security, Mr Ambrose S K Lee, in moving the motion on the Code of Practice prepared under United Nations (Anti-terrorism Measures) Ordinance in the Legislative Council today (July 7) :
President,
I move that the motion on the Code of Practice prepared under United Nations (Anti-Terrorism Measures) Ordinance be passed by this Council.
The Legislative Council passed the United Nations (Anti-Terrorism Measures) Ordinance in 2002 and subsequently the United Nations (Anti-Terrorism Measures) (Amendment) Ordinance in 2004. The purpose of the amended United Nations (Anti-Terrorism Measures) Ordinance (collectively referred to as "the Ordinance") is to fulfill Hong Kong's international obligations to combat terrorist financing and acts of terrorism under United Nations Security Council Resolution 1373 and the Special Recommendations of the Financial Action Task Force on Money Laundering.
Section 12A of the Ordinance provides that the Secretary for Justice may make an application to the Court for an order to require the relevant persons to answer questions, furnish information or produce materials relevant to the investigation of an offence under the Ordinance (a section 12A order). Section 12A(14) requires the Secretary for Security to prepare a Code of Practice in connection with the exercise of the powers and the discharge of the duties under section 12A. This Code is required to be laid before the Legislative Council (LegCo) for approval before promulgation.
The Code of Practice regulates the manner in which the law enforcement agencies conduct its interviews with persons who are required to answer questions, furnish information or produce material under section 12A. It also sets out the rights of the persons who furnish information. The main provisions of the Code of Practice are to set out:
(a) the procedures for the interviews of persons subject to an order under section 12A of the Ordinance who is required to answer questions or otherwise furnish information;
(b) the guidelines for the production of material under section 12A of the Ordinance; and
(c) the complaint procedures for persons subject to an order under section 12A of the Ordinance.
The Subcommittee set up by the LegCo has completed scrutiny of the Code of Practice. I would like to take this opportunity to thank the Chairman of the Subcommittee, the Honourable Ip Kwok-him, and other members of the Subcommittee for their efforts and valuable suggestions in the process as well as for giving support to the Administration in the submission of the revised Code of Practice to this council for approval.
When scrutinising the Code of Practice, the Subcommittee has provided valuable suggestions, which have enhanced further the procedures and manner for handling a person subject to a section 12A order under the Code of Practice; as well as the improvement in the textual presentation of the Code of Practice. We have already incorporated the suggestions of the Subcommittee by providing in the Code of Practice that the person subject to a section 12A order should be provided with a copy of Code of Practice and its Annexes at the same time when the Secretary for Justice's Notice issued pursuant to section 12A(5) or (6) of the Ordinance is served; and that a Braille copy of the Code of Practice be provided to visually impaired interviewees; or translated copies of the Code of the Practice in languages other than Chinese and English be provided to interviewees who do not understand Chinese and English.
When scrutinising the Code of Practice, the Subcommittee has asked the Administration to explain the privileges and responsibilities of a person under a section 12A order and to set them out in laymen's terms in the Code of Practice. In response to the Subcommittee's comments, we revise paragraph 4 of the Code of Practice to clearly set out the responsibilities and privileges of a person under a section 12A order as follows:
(a) he or she has an obligation to comply with the requirements to furnish information or produce material under section 12A and if he or she fails to comply without reasonable excuse he or she will be guilty of an offence;
(b) an obligation of secrecy or restriction from furnishing information is not an excuse for refusing to comply with a section 12A order;
(c) legal professional privilege and the privilege against self-incrimination are overriding; in other words, nothing in the Ordinance would require the interviewee to disclose anything that is subject to legal professional privilege, or anything that is self-incriminating; and
(d) if an interviewee does voluntarily furnish information or produce material under a section 12A order, the information or material cannot be used against him in criminal proceedings except in proceedings under section 14(7F) or under section 36 of the Crimes Ordinance (Cap. 200) concerning the making of false statements, etc.
In parallel, for the avoidance of any doubt, we have provided in paragraph 1 of the Code of Practice that in the case there is any discrepancy between the Code of Practice and the Ordinance, the provisions of the Ordinance shall prevail.
The Subcommittee has also provided specific comments on the detailed arrangement for the conduct of interviews pursuant to a section 12A order. Having considered the suggestions of the Subcommittee, we agree that:
(a) more flexibility in considering the request of an interviewee in making phone calls during an interview pursuant to a section 12A order is allowed. In this regard, we have amended the content of paragraph 9 of the Code of Practice by removing the restriction on making one telephone call for a reasonable time while allowing the interviewee to make at least one telephone call for a reasonable time. If the interviewee can provide reasonable justification, he or she may make further telephone calls. The interviewee may also consult his or her barrister or solicitor over the telephone in the presence, but out of the hearing, of an authorised officer. For other telephone calls, they will be made under supervision;
(b) paragraph 10 of the Code of Practice should provide that the interviewee will be provided with interpretation service by a language interpreter qualified for court purposes if he or she does not understand Chinese and English;
(c) paragraph 17 of the Code of Practice should provide that authorised officers should record any special requests made by the interviewees and action taken in the course of interview; and
(d) paragraph 22 of the Code of Practice should provide that the interviewee is entitled, as soon as reasonably practicable, to receive a copy of the interview record there and then. Where the interview is video or audio recorded by the investigating authority, the interviewee is entitled, as soon as reasonably practicable, to receive a copy of the tape there and then. Paragraph 29 of the Code also specifies that a copy of the complaint record should, as soon as reasonably practicable, be provided to the person making the complaint there and then.
When scrutinising the Code of Practice, the Subcommittee, in particular, has expressed concern about the criminal liability of those under the age of criminal responsibility but under a section 12A order to answer questions or otherwise furnish information. We have explained that section 3 of the Juvenile Offenders Ordinance (Cap. 226) provides that "(i)t shall be conclusively presumed that no child under the age of 10 years can be guilty of an offence". Accordingly, a child under the age of 10 has no legal responsibility under the Ordinance or any other local legislation. It follows that an interviewee under the age of 10 will not be held liable for a criminal offence if the interviewee fails to comply with the requirements to furnish information or produce material under section 12A of the Ordinance. The interviewee's parent, guardian or accompanying adult will also not be held liable for an offence. For the sake of clarity, we provide in paragraph 3 of the Code of Practice that an authorised officer shall also explain that where the person subject to a section 12A order is under the age of 10, such person and his or her parent, guardian or accompanying adult will not be held liable for an offence if such person fails to comply with the section 12A order.
As for children between 10 and under the age of 16, they may be guilty of an offence under section 14(7E) of the Ordinance if he or she fails to comply with the section 12A order, or if he or she fails to comply with other local legislation to furnish information, he or she will commit the relevant offences under such local legislation. However, special arrangements are provided under the Code of Practice to safeguard the rights of persons under the age of 16. Such protection includes the presence of a parent, guardian or other person responsible for the care of the interviewee during an interview. If such a person is unavailable, in the presence of an adult who is independent of the investigating authority and, where reasonably practicable, knows the interviewee. An interviewee who is under the age of 16 and the accompanying adult, if he or she so wishes, is allowed to have a barrister or a solicitor to be present during the interview and to consult privately with the barrister or solicitor. Further, paragraph 12 of the "Statement of Prosecution Policy and Practice - Code for Prosecutors" of the Department of Justice deals with juvenile offenders. In the case of juvenile offenders under the age of 16, the prosecution policy should be to divert juveniles from court wherever possible, Department of Justice will therefore in general favour the methods of disposal which falls short of prosecution.
When scrutinising the Code of Practice, the Subcommittee has also expressed concern about the availability of legal assistance for a person subject to a section 12A order. We have explained to the Subcommittee that an interview arranged for the purpose of an order, for which the Secretary for Justice applied under section 12A(1), does not involve the court proceedings and thus legal aid under the Legal Aid Ordinance is not applicable. That notwithstanding, the interviewee may apply to the Court of First Instance with justifications under section 12A(13) of the Ordinance for the revocation or variation of the order. As such application is required to be examined at the Court of First Instance and legal aid is applicable to proceedings in the Court of First Instance, legal aid will be granted if the interviewee is able to satisfy the statutory criteria as to the financial eligibility and the merits for taking or defending the legal proceedings.
Further, a person subject to a section 12A order under the Ordinance may also seek free preliminary legal advice from volunteer lawyers under the Free Legal Advice Scheme operated by Duty Lawyer Service to understand his or her rights and responsibilities under the Ordinance. There is no means test under the Scheme. For those who wish to use the service of the Scheme, they may seek assistance through the Legal Advice Centres located in nine district offices. As a person subject to a section 12A order will be informed of the interview details in advance, he or she may choose to seek free legal advice under the Scheme prior to the interview.
I hope Members will understand that Hong Kong needs to make the Code of Practice the soonest possible to bring the remaining provisions of the Ordinance into operation so that we can fulfil our international obligations to combat terrorist financing and acts of terrorism under the United Nations Security Council Resolution 1373 and the Special Recommendations of the Financial Action Task Force on Money Laundering.
President, the Code of Practice has struck an appropriate balance between protecting the rights of persons subject to a section 12A order and ensuring the smooth conduct of investigations into terrorism offences. The Code of Practice will come into operation on the day appointed for the commencement of section 12A of the Ordinance. I invite Members to approve the Code of Practice so that the Administration can exercise the investigation powers conferred under section 12A of the Ordinance in accordance with the Code.
Thank you, President.
Ends/Wednesday, July 7, 2010
Issued at HKT 19:42
NNNN
