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

Minutes of the last meeting

The minutes of the third meeting held on 4 March 1996 were issued to Members vide LegCo Paper No. HB 919/95-96 on 27 March 1996. No amendment was received. The minutes were taken as confirmed.

Meeting with Administration

Issue of "fault element"

2. Miss Michelle TSANG said the Administration had considered Members’ views on the appropriateness of including "fault element" in the definition of the offence of attempt. The Administration acknowledged Members’ concern that the term might create problems in operation and was seeking the opinion of the English Law Commission in this regard. She would inform Members in writing of the reply in due course. In this connection, Miss Margaret NG urged the Administration to consider the possibility of excluding such term in the Bill. Mr Stephen WONG agreed to consider other alternatives if such term were to be deleted.

Adm

Adm

Issue of "recklessness"

3. Members noted AGC’s letter dated 19 March 1996 (issued vide LegCo Paper No. HB 882/95-96) which answered Members’ questions raised at the last meeting about (a) "recklessness" in the proposed section 159H(2) and (b) the Administration’s position in respect of codification of "incitement".

4. Mr Martin LEE queried the meaning of the expression "recklessness with respect to a circumstance". He asked whether it had the inference that a person must have intended the consequence of his act having regard to all circumstances. Mr Stephen WONG said it would be so if an offence required a specific intent or some specific circumstances. He explained that it was a common law position regarding recklessness where recklessness as to circumstances sufficed for the substantive offence.

5. Mr Martin LEE then asked how the element of "recklessness" could come into an offence of attempt to deceive. Miss Michelle TSANG drew Members’ attention to the information extracted from Smith & Hogan’s Criminal Law, attached to AGC’s letter. She supplemented that "recklessness" would be relevant to an offence of criminal damage where the accused might have been acting recklessly in causing the damage although he might not have a specific intent to do so. In this regard, Miss Margaret NG took the view that the original definition of attempt might be more desirable, where the "mens rea" required for the substantive offence would suffice for the attempt.

6. Mr Stephen WONG suggested and Members agreed to wait for the reply from the English Law Commission before further discussion on the issues of "recklessness" and "fault element".

Abolition of the two common law offences

7. The Chairman referred to page 6 of AGC’s letter dated 26 February 1996 (issued vide LegCo Paper No. HB 738/95-96) and asked if there was any remedy if the two common law offences of "conspiracy to corrupt public morals" and "conspiracy to outrage public decency" were abolished, having regard to the specific circumstances in the Shaw and Knuller cases. Mr STOKER pointed out that the mere publication of a directory of names with nothing more would not amount to an offence. As regards the Knuller’s case, Mr STOKER said that there were existing statutory provisions to deal with such offences involving children and homosexual acts. The Law Reform Commission favoured the abolition of these two common law offences in order to remove uncertain and oppressive offences.

8. At the Chairman’s request, Mr STOKER agreed to identify the existing offences which could cover circumstances such as those in the Shaw and Knuller cases, for consideration at the next meeting in writing. LA would then comment on their responses in this respect.

Adm

LA

9. The Chairman further referred to para. 3.27 of the LRC Report which stated that the charge of "corrupting public morals" would rely solely on the judge’s interpretation and might fail to fully reflect the prevailing public sentiment. He opined that it seemed to give an impression of not trusting the Judiciary. Mr STOKER responded that the LRC favoured abolition of these two offences not because of a mistrust of the Judiciary but because the offences were too uncertain and their scope had not been clearly defined. He drew Members’ attention to page 25 and page 26 of the LRC Report which set out the factors in favour of the abolition. Lack of jury trial was only an additional factor of consideration. Miss Michelle TSANG added that there was no record of such offences being charged which seemed to suggest that the offences served little purpose. She reiterated that the purpose of codification was to make the law clearer and more certain. If these two offences were to be retained, it would leave an undefined scope of area in law. However, Miss Margaret NG opined that codification of preliminary criminal offences and the abolition of these two offences were separate issues. These two offences could still be retained even if it was decided to proceed with the work of codification.

10. In response to the Chairman’s enquiry, Miss Michelle TSANG said there were different opinions in England as to whether or not these two offences should be abolished, and the English Law Commission recommended that they should be retained. Mr STOKER pointed out that the English Law Commission’s recommendation in this respect was only an interim measure because it was undertaking a comprehensive review of this whole area of the law. Members also noted that the Hong Kong Bar Association and the Law Society of Hong Kong supported the recommendation of the LRC to abolish these two offences. Nevertheless, the Chairman took the view that strong justification should be needed for Hong Kong to abolish such offences.

11. Miss Margaret NG held a different view and said that retaining these two offences could be very dangerous because of their uncertain ambit and lack of clear case law. Mrs Miriam LAU shared this view. She remarked that public morals would change from time to time and there were existing statutory provisions to deal with the vice activities as in the Shaw and Knuller cases. Miss NG added that there were strong "public interest" reasons to be very cautious about vague offences such as corrupting public morals.

Principle of the Bill

12. Mr Stephen WONG reiterated that it was a fundamental principle that the law relating to all criminal offences should be made accessible to members of the public. The purpose of the Bill was to enhance the accessibility, as recommended by the Law Reform Commission after years of study on the subject. He asked Members to consider the Bill from the angles of (a) whether the Bill would create new offences; and (b) whether the position would be improved with its enactment.

13. Miss Margaret NG said that codification might create more problems than it could solve despite the good intention for codification. She maintained that although the principle of codification was accepted, the Bills Committee had to be satisfied that codification as proposed in the Bill would clarify the position of the law before it could support its enactment.

14. Legal Adviser (LA) suggested and Mr Stephen WONG agreed to provide judicial comments calling for remedy of deficiencies in the (English) Criminal Attempts Act 1981.

Adm

Codification of incitement

15. Members noted that the legislative work to codify "assisting" and "encouraging" the commission of a crime, i.e. incitement, would be a low priority in the U.K. and it would not be processed in the foreseeable future.

16. Mr Martin LEE remarked that an incitement to commit an impossible offence would not bring great hardship to the community. Miss Margaret NG also pointed out that there should be other justifications for codifying incitement than the recommendation of the Law Reform Commission.

17. In this connection, the Chairman asked about the other reasons for codifying "incitement", apart from those as set out in para. 8 of AGC’s letter dated 19 March 1996, namely that the decision to codify all three related preliminary offences at one time was for the sake of consistency and to avoid an odd result. Mr Stuart STOKER responded that the law would be stated in statutory form by codification and this would enhance its accessibility. He emphasised that the Law Reform Commission in the past had considered codifying all criminal offences and concluded that codification itself was a desirable goal. The Commission had insufficient resources to carry out this task and had instead recommended a limited codification in respect of the preparatory offences.

18. LA asked the Administration to advise whether it would not be possible to change the common law position, for the sake of consistency, by removing the defence of impossibility for the offence of incitement in the Bill if the Bills Committee decided not to proceed with codification of incitement. Mr STOKER responded that it was possible although not desirable. He emphasised that the advantage of codification was not only to rectify such an anomaly in law but also to restate the position of existing law in statutory form.

19. After discussion, Members agreed to decide at the next meeting as to whether the Bills Committee was supportive of the provisions of the Bill in broad terms and whether the Bills Committee should proceed with further scrutiny of the Bill. The Clerk was asked to inform Members not present accordingly.

Clerk

Date of next meeting

20. The next meeting would be held on Tuesday, 23 April 1996 at 10:45 a.m..

21. There being no other business, the meeting ended at 9:45 a.m..