Minutes of the second meeting of the Bills Committee
to study the Crimes (Amendment) Bill 1995

Minutes of the last meeting

The minutes of the first meeting held on 5 January 1996 were issued to Members vide LegCo Paper No. HB 467/95-96 on 16 January 1996. No amendment was received. The minutes were taken as confirmed.

Resignation of Hon Albert HO

2. Members noted that Hon Albert HO tendered his resignation from membership of the Bills Committee, due to other official commitments. His letter of resignation dated 10 January 1996 was tabled at the meeting.

Written submissions

3. Members noted that the Clerk had written to the Hong Kong Bar Association, the Law Society of Hong Kong and Justice on 8 January 1996 for views on the Bill before 30 January 1996. The Law Society of Hong Kong had given a "no comment" reply which was tabled at the meeting for Members’ information and subsequently issued to Members not present vide LegCo Paper No. HB 545/95-96. Members suggested and the Clerk was asked to clarify with the Law Society of Hong Kong whether or not they were in support of the Bill and the reasons for their position.

Clerk

[Post-meeting note : The Clerk wrote to the Law Society of Hong Kong on 22 January 1996.]

Meeting with Administration

4. The Chairman welcomed the representatives of AGC to attend the meeting. At the invitation of the Chairman, Mr Stephen WONG briefed Members on the background and objectives of the Bill which had been set out in the LegCo Brief issued by AGC in November 1995. The Chairman suggested and Members agreed that the Bills Committee should in the first place discuss whether Members supported in principle the codification of the three preliminary offences, namely, conspiracy, attempt and incitement. If so, Members could then proceed to consider the detailed drafting of the three preliminary offences. The gist of the ensuing discussions was summarised in the following paragraphs.

Policy of codification

5. Mr Martin LEE asked and Mr WONG responded that it was not a general policy of the Administration to codify all common law criminal offences. The laws governing the preliminary offences of conspiracy, attempt and incitement in Hong Kong were based largely on judicial precedents in U.K. where imprecision and inconsistencies were detected. It was therefore considered beneficial for Hong Kong to follow the development in U.K. to codify those preliminary offences. Mr LEE further asked and Mr WONG confirmed that such codification would not affect other offences at common law. In this regard, Mr LEE remarked that there might not be a need for codification if statistics indicated that these three preliminary offences had rarely been used for prosecution in the past ten years. He queried whether problem would actually arise if these preliminary offences were not codified.

6. The Chairman asked whether the English Law Commission and the Law Reform Commission had considered possible problems arising from codification. Mr WONG confirmed that they had considered whether such codification would affect the development of common law and both concluded to recommend the adoption of codification. He further drew Members’ attention to Chapter 5 (options for reform) of the LRC Report which set out how the Commission reached the recommendation to adopt models based on the (English) Criminal Law Act 1977 and (English) Criminal Attempts Act 1981, and the English Law Commission’s draft Criminal Code on the law of incitement.

7. Mrs Miriam LAU asked what would be the impact if there was no codification in view of the fact that courts in Hong Kong had been making reference to judicial decisions in U.K. where the offences of attempt and conspiracy had been codified in 1981. Mr WONG responded that it would bring more confusion if Hong Kong courts could not follow U.K. precedents. He pointed out that the Hong Kong Bar Association, the Law Society of Hong Kong and other bodies had been consulted and the response indicated support for codification. In this connection, Mr Martin LEE remarked that court cases could be brought to the Privy Council for final judgement. He referred to the application of the new definition of the offence of attempt in the case mentioned in para. 4.31(b) of the LRC Report and wondered whether codification could actually help the judge/jury to arrive at a conclusion. Mr Andrew CHENG suggested and the Administration agreed to provide court judgements, judicial comments or academic comments related to and about the codification of the offences of attempt and conspiracy in England to facilitate Members’ consideration about the effectiveness of codification. The Chairman also asked and the Administration agreed to study the possible impact if these three preliminary offences were not codified.

Adm

Adm

8. Legal Adviser (LA) reminded Members that (a) codification could not provide all the answers but could only clarify legal principles, and thus there would always be arguments on either side; and (b) the courts might be able to create new offences by filling the possible or perceived gaps in the criminal law if there were no codification of the preliminary offence of conspiracy as suggested in the LRC Report. The Administration agreed to elaborate with examples of new offences that had been created by the courts due to the fact that there was no codification of these preliminary offences. LA also undertook to assist in providing relevant information.

Adm

LA

Merit of a new codified formulation for incitement

9. Miss Margaret NG queried the desirability of a new codified formulation for incitement. She pointed out that (a) it might be impractical to codify such a concept of uncertain width; (b) the adverse effect of codification would be that the offence would lose the assistance of existing case law; (c) it might create unnecessary suspicion in the community that the offence would be revived since it had rarely been invoked; (d) the new definition of the offence of incitement, particularly the Chinese version, might lead to more confusion upon codification; and (e) the term "incite" was not defined even in the definition of the offence of incitement in the new section 159M.

10. Addressing the last point raised by Miss NG, Miss Linda WONG explained that basically drafting followed the instructions provided by the Policy Branch so that the contents of new section 159M represented a legal policy stance. Mr LEE then queried whether that meant following the common law, Miss WONG indicated that the effect of the new section would appear to be so. Mrs Miriam LAU referred to para. 2.39 and para. 2.40 of the LRC Report which set out the advantages and drawbacks of codifying the offence of incitement. She stressed that the LRC had already balanced the arguments for and against before reaching such a conclusion. Miss Margaret NG then asked the Administration to provide statistics about prosecution cases related to the offence of incitement (or if it was difficult to ascertain, to give statistics about Independent Commission Against Corruption using the offence to prosecute).

Adm

Codification of the offence of Attempt

11. Mrs Selina CHOW shared the view of Miss Margaret NG. She also expressed worry that codification of the offence of attempt might also make it more difficult to prosecute because of the many variables involved and might create more problems than it could solve. Mr WONG drew Members’ attention to para. 4.31 of the LRC Report which set out a number of criticisms to the existing offence of attempt at common law. There was an acknowledgement that codification could bring greater consistency and certainty. Mr WONG remarked that the offence was subjected to different interpretations by the court (due to the fact that it had not been codified) and thus led to inconsistencies in standard. In this regard, Miss Margaret NG pointed out that it was common in common law jurisdictions that different interpretations would be applied to different cases and the judicial precedents were open to be quoted for argument in future court cases. Mr WONG reminded that a number of common law offences had been codified in the Theft Ordinance which had not caused negative impact.

12. Mr Francis LO referred to para. 4.33 of the LRC Report relating to the definition of attempt and pointed out that the relevant provisions of the Bill were to achieve a balance between flexibility and certainty. The definition of attempt proposed in the Bill was recommended by the LRC after full consideration of relevant juridical decisions. At the request of Miss Margaret NG, Mr LO outlined two tests for the offence of attempt in common law: (a) the last act test and (b) the proximity test, which had been referred to in para. 4.31 and para. 4.9 (footnote no. 8) and para. 4.12 of the LRC Report respectively. Mr WONG emphasised that the new definition after codification required more than a preparatory act, which balanced the above two tests. In this connection, Mr Martin LEE referred to the last sentence of para. 4.8 of the Report : "and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime" and suggested that it could be helpful to add the sentence to the new definition. The Administration agreed to consider this suggestion when the Bills Committee proceeded to consider the detailed drafting.

Adm

The offence of conspiracy

13. Mr Martin LEE asked and Mr WONG confirmed that the common law rule that a person could not conspire with his or her spouse was preserved due to the sanctity of marriage. Mr LEE further referred to the preservation of another common law rule that a person could not conspire with a person under the age of criminal responsibility and queried the justification for maintaining such age at seven years. Mr WONG responded that the Administration had in fact proposed to review the age of criminal responsibility in the 1970’s but received negative response from the legislators at that time. In this regard, Mr LEE remarked that present sentiment of legislators should be considered.

Additional information to be provided by the Administration

14. To facilitate Members’ discussion at the next meeting, the Chairman asked and the Administration agreed to provide the following information :

1. to list out those provisions (regarding the last sentence of para. 3 of the LegCo Brief) that the LRC had recommended to modify because the English versions were ill-suited to local needs;
2. to list those recommendations of the LRC which the Bill had not followed (regarding para. 4 of the LegCo Brief); and
3. to advise why the offence of incitement was still in the form of Draft Criminal Code in England, when it was to be enacted, and why should Hong Kong adopt the Draft Code in advance of England.

Adm

15. Mr Martin LEE further asked the Administration to advise on the distinction of different scenario and whether they would constitute an offence when the three offences were committed at the same time, viz : (a) to attempt to incite to conspire to murder; (b) to incite to attempt to conspire to murder; and (c) to attempt to conspire to incite to murder.

Adm

Date of next meeting

16. The next meeting would be held on Monday, 4 March 1996 at 4:30 p.m.. The Administration would provide the information requested in paragraphs 7, 8, 10, 14 and 15 by 23 February 1996.

Clerk

17. There being no other business, the meeting ended at 10:25 a.m..

LegCo Secretariat
29 February 1996