I. Resignation of Hon CHAN Kam-lam from the Bills Committee

Members noted that Hon CHAN Kam-lam had tendered his resignation from membership of the Bills Committee, due to his other official commitments.

II. Confirmation of Minutes of the Last Meeting

2. The draft minutes of the meetings held on 29 March and 23 April 1996 had been issued to members on 8 May 1996 vide LegCo Paper Nos. CB(2) 1250/95-96 and CB(2) 1254/95-96 respectively. No amendment was received. The minutes were taken as confirmed.

III. Meeting with the Administration

Codification of the Offence of Attempt

3. Members noted that the Administration had proposed to delete sections 159G and 159J(4) by way of Committee Stage Amendments (LegCo Paper Nos CB(2) 1129/95-96 and CB(2) 1233/95-96 refer). The deletion would remove references to "fault elements" and "recklessness" in relation to the offence of attempt.

4. Mr Martin LEE asked if the provisions in relation to the offence of attempt, as amended, would be workable in a court of law. Legal Adviser (LA) responded that the amended provisions reflected exactly the relevant provisions of the Criminal Attempts Act 1981, which had been reasonably understood in England, as explained by the Court of Appeal in Attorney General's Reference (No. 3 of 1992) [1994] 1W.L.R. 409 at 412. (LegCo Paper No. CB(2) 1034/95-96)

5. The Chairman reminded members that Mr Martin LEE had suggested to add the last phrase of para. 4.8 of the Report of the Law Reform Commission of Hong Kong (LRC) which set out the judgement of Parker CJ in Davey v Lee to the new definition at the meeting held on 19 January 1996. Mr LEE remarked that the new definition in the Bill seemed to be a slightly lower threshold.

6. LA pointed out that the original presentation of the Bill was on the basis of codification of the existing common law. The proposed addition of the phrase would mean an alteration of the law. The Chairman asked and LA confirmed that the new definition was in line with the Criminal Attempts Act 1981.

7. Mr Martin LEE then asked whether Davey v Lee was still good law in England. Mr Stephen WONG explained that the case, by implication, could be regarded as being overruled by the Criminal Attempts Act 1981. However, the position might be different in Hong Kong where the case could still be argued as good law. In this connection, the Chairman drew members' attention to para. 4.30 and para. 4.31(a) of the LRC's Report which stated that the test in Davey v Lee was not a clear guide and it was unclear whether there was a material difference between the formulation describing proximity in Eagleton and Davey v Lee. In his view, the Criminal Attempts Act 1981 was to reconcile all the differences. Mr Martin LEE agreed not to take the issue further.

Codification of the Offence of Incitement

8. Members present agreed at the last meeting that the provisional view of the Bills Committee was not to support the codification of the offence of incitement, with a dissenting view from Mrs Miriam LAU. The Administration tabled a paper on prospects for codification written by Mr Justice Beldam for members' reference (which was subsequently issued to absent members vide LegCo Paper No. CB(2) 1282/95-96).

9. Mr Stephen WONG highlighted the judgement of the R v Curr's case in 1968 which illustrated the lack of clarity as to whether the inciter should have knowledge of the state of mind of the incitee under the present law in England. Miss Margaret NG referred to proposed section 159M(1)(b) and asked what the reference to "state of mind" reflected. Mr WONG said that the term did not solely reflect the case of R v Curr but also the mental elements required for the relevant offence. Miss NG further asked and Mr WONG responded that the formula was based on the English Law Commission Draft Code. Miss Michelle TSANG added that the formula has the effect of removing the consequence of the case of R v Curr which required the prosecution to prove the state of mind of the inciter in relation to that of the incitee. In this connection, Miss NG expressed concern about the implication that the codification of the offence of incitement did not reflect the present law in England. Miss TSANG clarified that as incitement remained a common law offence in England, therefore, there were different authorities in respect of the offence of incitement depending on the nature of the substantive offence. It was not true to say that the provisions regarding the offence of incitement did not reflect the present law in England.

10. Miss Margaret NG cautioned that it would be a matter of policy, whether codification of the offence of incitement was appropriate or not. The issue therefore warranted more careful consideration. LA supplemented that the recent response of U.K. Law Commission to the Administration showed that it was not at all certain whether the relevant clauses of the Draft Code would actually be adopted in the U.K.. He therefore queried whether it would be more appropriate to monitor developments in U.K. rather than for Hong Kong to base its legislation on the Code in advance. In view of members' views expressed at the meeting, the Chairman asked and the Administration agreed to reconsider the issue and revert to members at a future meeting.

Adm

Clause-by-clause examination of the Bill in relation to the offence of attempt

11. At the suggestion of the Chairman, members agreed to study the Bill clause by clause, with reference to the proposed Committee Stage Amendments attached to LegCo Paper No. CB(2) 1233/95-96. LA further suggested and Miss Michelle TSANG undertook to highlight any departure from the Criminal Attempts Act 1981 and to explain the rationale for departure for members' consideration.

12. Miss Michelle TSANG drew members' attention to the paper attached to the letter dated 26 February 1996 from the Attorney General's Chambers (issued vide LegCo Paper No. HB 738/95-96) which had compared the provisions of the Bill with the relevant English Acts. Reasons for non-adoption of the relevant sections of the Criminal Attempts Act 1981 had also been set out.

13. Miss Michelle TSANG pointed out that the major difference between the law of Hong Kong and England was in relation to summary offences. LRC recommended to retain the offence of attempt to conspire since it was considered as a useful provision to deal with triad and organised crime. LA also highlighted para. 4.58 of the LRC Report which recommended that section 1(4) of the Criminal Attempts Act 1981 should be modified to the effect that the offence of attempt should also apply to summary offences in light of the fact that an offence of a summary nature did not necessarily mean that it was not serious. Mr Martin LEE asked and LA confirmed that one could only be guilty of an attempt to commit an indictable offence in England while it was a crime to attempt to commit any offence in Hong Kong. Mr LEE then commented that the rationale for the policy decision in the U.K. to exclude the offence of attempt being applied to summary offences might have been because those offences were less serious in substance.

14. Miss Michelle TSANG further drew members' attention to the fact that whereas the offences of attempt were covered by the Criminal Attempts Act 1981 in England, there were other statutory offences of attempt, for example, in the Offences against the Person Ordinance (Cap. 212), in Hong Kong. The Bill proposed to retain these statutory offences of attempt in the light that incorporation of these offences into the Bill would be a very complicated exercise. Mr Martin LEE then queried that it was not a real codification. Miss TSANG explained that those statutory offences of attempt were exceptions and she had actually come across very few cases of these offences. Mr LEE further asked whether such cases would be covered by the general law if they were to be repealed. The Chairman suggested and Miss TSANG undertook to study further in this respect. Mr LEE opined that it might be more appropriate to repeal these statutory offences of attempt and to incorporate them into one piece of legislation with a view to achieving real codification.

Adm

15. In response to Miss Margaret NG's enquiry, Miss Michelle TSANG referred to para. 4.60 and para. 4.61 of the LRC's Report which explained why the LRC recommended to retain the offence of attempting to conspire but recommended to abolish the offence of attempting to aid and abet. Miss Margaret NG queried why England did not keep the offence of attempting to conspire. In this connection, LA drew members' attention to para. 4.59 of the LRC Report which explained that the English Law Commission had reversed its original proposal to delete the offence of attempting to conspire.

16. As regards the example cited in para. 4.60, Mr Martin LEE disagreed with the rationale for retaining the offence of attempting to conspire. He held the view that immunity could be arranged for the police officer involved. Miss TSANG responded that the police officer arguably should be equally guilty if he had nearly completed all the acts required for the conspiracy. In addition, if the person involved was not a police officer, there was no good reason why that person should not be prosecuted.

17. In response to Miss Margaret NG's query about the proposed section 159H(6), Miss Michelle TSANG pointed out that its drafting was similar to that of section 1(4) of the Criminal Attempts Act 1981. She further explained that the section excluded a person from being prosecuted for the offence of attempt to aid, abet, counsel or procure the commission of an offence, even if it were completed. The section, however, did not apply to the offence of conspiracy. The Chairman asked and Miss TSANG replied that the term "suborning"

18. Members agreed to continue the discussion by studying the paper attached to the AGC's letter dated 26 February 1996 in greater detail at the next meeting.

IV. Date of next meeting

19. The next meeting would be held on Wednesday, 29 May 1996 at 8:30 a.m..

20. The meeting ended at 12:15 p.m..