Minutes of the Third Meeting of the Bills Committee
to study the Crimes (Amendment) Bill 1995

Minutes of the last meeting

The minutes of the second meeting held on 19 January 1996 had been issued to Members vide LegCo Paper No. HB 766/95-96 on 29 February 1996. No amendment was received. The minutes were taken as confirmed.

Resignation of Hon Emily LAU

2. Members noted that Hon Emily LAU tendered her resignation from membership of the Bills Committee, due to other official commitments.

Written submissions

3. Members noted that the Law Society of Hong Kong had given a "no comment" reply again (issued vide LegCo Paper No. HB 713/95-96) in response to further enquiry about its stance on the Bill.

4. Members also noted the reply from the Hong Kong Bar Association which raised the following two points about the Bill in their letter dated 23 February 1996 (issued vide LegCo Paper No. HB 730/95-96) :

1. the element of "fault" which had no place in the Criminal Law should be replaced by "the same state in mind as is required for the offence or offences"; and
2. clause 159H(2) did not make sense since a person could not "recklessly" attempt a criminal act.

Meeting with Administration

Comments by the Bar Association

5. The Attorney General’s Chambers (AGC) had responded to the comments by the Bar Association in their letter dated 4 March 1996 which was tabled at the meeting and subsequently issued to Members not present vide LegCo Paper No. HB 810/95-96.

6. At the invitation of the Chairman, Mr Stuart STOKER briefed Members on the written responses. Members also raised a number of queries. The gist of their deliberations is summarised in paragraphs 7 - 13.

Element of "fault"

7. Mr Stuart STOKER acknowledged the argument put forward by the Bar Association that the term "fault element" was new to criminal legislation in Hong Kong but a definition of the "fault element" had been included in the Bill and thus it did not necessarily cause any difficulty. He further explained that the proposed formulation by the Bar Association was not accepted because the meaning of the term "fault element" in clause 159G (which was modelled on the English Law Commission Report on the Draft Criminal Code Bill) embraced both factors of state of mind and non-compliance with standards. He conceded that there might be little practical difference in effect between the two approaches. Both were concerned with covering a course of action leading to a completed offence.

8. Mr Martin LEE was of the view that "non-compliance with standard" should apply to substantive offences only and queried the justification for its inclusion into the context of "attempt" as a "fault element" in clause 159G(b). Miss Margaret NG suggested also that the "fault element" should not be included in the offence of attempt because it might create possible problems and confusion and the term "fault" had been replaced by "same state of mind" in clause 159M of the Bill regarding the offence of incitement. In this regard, Mr STOKER referred Members’ attention to para. 8.1 of the English Law Commission Report on the Commentary on draft Criminal Code Bill (enclosure attached to the letter of 4 March 1996). He explained that the intention of the Crimes (Amendment) Bill was to adopt the English statutory provisions regarding the offences of attempt and conspiracy, and to follow the draft Code prepared by the English Law Commission in their Report, A Criminal Code for England and Wales, for the offence of incitement. Miss NG said that the Law Reform Commission (LRC) had been asked to have regard to whether the draft Criminal Code Bill should be adopted in Hong Kong but it eventually decided to recommend to follow English statutory provisions. She therefore queried the need for following the draft Criminal Code Bill to include the "fault element" in the definition of the offence of attempt.

9. In response to Miss Margaret NG, Mr STOKER confirmed that "a standard of conduct" was not a defined term, whether by case or by statute. It only referred to offences of strict liability or failure to comply with regulations or provisions. In this connection, Mrs Miriam LAU and Mr Martin LEE suggested that the word "statutory" should be expressly stated in the legislation.

10. Legal Adviser (LA) said that the (English) Criminal Attempts Act 1981 did not include any "fault element". This enacted legislation on which precedents had been built since 1981 was not the same as the Bill. Miss Margaret NG remarked that the purpose to follow the English legislation, so as to base on their precedents, would be defeated if the proposed definition regarding the offence of attempt differed from the English legislation.

Issue of "recklessness"

11. Miss Margaret NG supported the Bar Association’s view that recklessly to attempt was a non-sensical concept. Mr STOKER explained that the Administration disagreed with the Bar Association’s interpretation of the English Law Commission’s stance as to whether "recklessness" as to a circumstance should suffice to constitute attempt where it sufficed for the completed offence. The Administration took the view that the English Law Commission had changed its position and had been persuaded after careful deliberation that recklessness as to a circumstance should suffice to constitute an attempt where it sufficed for the substantive offence. He pointed out that "recklessness" in clause 159H(2) was related to a circumstance rather than to the attempt itself. The Chairman and Mrs Miriam LAU also pointed out that "recklessness" was only a mental element. They supported the view that where "recklessness" as to circumstances was sufficed for the substantive offence, it should suffice for the statutory offence of attempt.

12. LA urged Members and the Administration to consider that the object of codification was to clarify but it might not be able to clarify complicated concepts such as recklessness and intention in the space of a few statutory lines. Hence the common law had developed to deal with relevant circumstances of the time. The argument about "recklessness" had proceeded with precedents building up from case to case but "recklessness" had not been referred to in the English legislation. In this regard, Mr Martin LEE opined that although recklessness as a mental element could be required to constitute an attempted rape as well a substantive offence of rape, it might not be appropriate to include recklessness in the proposed statutory definition of attempt. He further suggested that it should be left to the common law to prove "mens rea" and a substantive offence. Difficulty in defining recklessness could therefore be avoided by adopting the English definition. Mr STOKER responded that the Bill did not seek to define recklessness, but only the circumstances in which it would be sufficient to constitute attempt.

13. Mr Martin LEE also referred to clause 159H(2) and queried the meaning of the drafting. Mr STOKER responded that recklessness would suffice for the offence of attempting to commit an offence in case there was no fault element. The provision of recklessness was to overcome the phrase "intending to commit an offence" in subsection (1). In this connection, Mr LEE proposed subsection (2) to be drafted as "for the purpose of subsection (1), an intention to commit an offence would consist of (a) fault elements as defined in clause 159G or (b) recklessness". Mr STOKER concurred that, subject to the Law Draftsman’s view, the proposed drafting would achieve the same purpose. LA then suggested that Members might also consider the justification to define intention and recklessness statutorily.

Points raised at the last meeting

14. In response to the points raised by Members during the last meeting, the Administration had set out their replies in the letter dated 26 February 1996 which had been issued vide LegCo Paper No. HB 738/95-96. Mr STOKER went through the paper with Members. The gist of the ensuing deliberations is summarised in paragraphs 15 - 21.

Comparison with the relevant English Acts

15. LA suggested and Members agreed that the relevant reply would be more appropriately studied when the Bills Committee proceeded to its clause-by-clause examination.

Clerk

Delay in the enactment of the Draft Code

16. Members noted the explanation given by the Administration regarding the reasons for the delay in the enactment of the draft Criminal Code Bill in England. Mr Martin LEE worried that Hong Kong would be in a difficult position if it adopted the draft Code in advance of England where the enactment might experience a long delay or even be aborted. Mr STOKER responded that the draft Code just restated the existing law in respect of incitement. However, LA cautioned that although the Bill did not propose any change on incitement, the English Law Commission might be moving towards a statutory concept of assisting and encouraging. In this connection, he drew Members’ attention to para. 7 of AGC’s note (issued vide LegCo Paper No. HB 738/95-96) and para. 2.22 of the LRC’s Report.

17. Miss Margaret NG expressed reluctance to proceed with the legislative work regarding codification of incitement because (a) there was a lack of re-assurance for the merit of codifying incitement (para. 5.5 of the LRC’s Report referred); (b) possible lack of consistency if the draft Criminal Code Bill in England was not enacted or enacted in a different form; and (c) figures provided by the Administration (para. 21 of the letter referred) did not show that the offence of incitement was not commonly employed. Mr STOKER reiterated that provision regarding incitement was only a statement of the existing law in statutory form. In addition, codification of incitement in the present legislative exercise did not preclude any subsequent amendment in the light of the future development in English legislation.

18. LA reminded Members that if the Bills Committee decided not to proceed with codification of incitement, the proposed change in law regarding the removal of the defence of impossibility of fulfilment (for the three preliminary offences including attempt, conspiracy and incitement) had to be dealt with.

Multiple preliminary offences in one charge

19. Members noted that although it was theoretically possible to charge a person with triple inchoate offences, there was no record of any person being prosecuted for such offences in the past. Moreover, a triple inchoate offence was probably too remote to substantiate. The Administration therefore concluded that statutory abolition of these offences was not necessary. Mr Martin LEE held the view that although no person had been prosecuted for such offences, it did not necessarily mean that such prosecution would not happen in the future. In this regard, LA suggested that the issue as to whether the position had changed after codification could be discussed in the clause-by-clause examination.

Clerk

Court’s residual power to create offences

20. The Chairman asked what would happen in relation to the case of Shaw v DPP [1962] if the offence of conspiracy to corrupt public morals was abolished. Mr STOKER responded that there were existing statutory provisions which would adequately deal with obscene public performances, displays and publications as set out in para.6(6) of the LegCo Brief (issued by AGC in November 1995). However, LA concurred with Mr James TO’s observation that publication of a directory of prostitutes as in the Shaw’s case would not fall within the scope of these provisions.

Statistics on the offence of incitement

21. With reference to the statistics on the offence of incitement, Miss Michelle TSANG explained that it was difficult to ascertain the figures because the statistics were kept for the purpose of principal or substantive offences only. Statistics would not be kept for separate items. Members were therefore reminded that the statistics were provided for general information only. She supplemented that there was no incitement offence in relation to section 3 and section 4 of the Prevention of Bribery Ordinance.

Way forward

22. In view of Members’ concerns and comments, the Administration was asked

1. to consider the appropriateness of including the "fault element" and "recklessness" in the definition of the offence of attempt (in particular with special reference to how the English legislation dealt with the definition); and
2. to review the appropriateness of codifying the offence of incitement (in the light of recent development of English legislation).

23. At LA’s suggestion, Members agreed that a policy decision could be made at the next meeting as to whether codification of incitement should be proceeded with once additional information was provided by the Administration. LA also undertook to work with the Clerk to crystallise relevant issues for Members’ consideration.

Adm

LA

Clerk

Date of next meeting

24. The next meeting would be held on Friday, 29 March 1996 at 8:30 a.m..

25. There being no other business, the meeting ended at 6:25 p.m..

LegCo Secretariat
27 March 1996