Minutes of the Seventh Meeting of the Bills Committee
on the Crimes (Amendment) Bill 1995

Meeting with the Administration

Clause-by-clause examination of the Bill

(LegCo Paper No. HB 738/95-96)

Offence of Attempt

At the invitation of the Chairman, the Administration continued to take members through the Bill clause-by-clause as regards the offence of attempt. It also highlighted any departure from the Criminal Attempts Act 1981 (CAA) for members’ reference.

2. Miss Margaret NG asked why proposed section 159I(2)(g) which conferred a power to impose pecuniary penalties was needed in the light that no such provision existed in the CAA. Mr Stephen WONG replied that it was a point of local adaptation for consistency purpose. Miss Michelle TSANG supplemented that offences of attempt and conspiracy applied to summary offences in Hong Kong and thus such a provision was needed.

3. Members noted that proposed section 159J(4) would be deleted because of the reference to fault element.

4. Miss TSANG drew members’ attention to proposed section 159K(1)(a) that the phrase "mandatory life imprisonment" was used in place of "fixed by law" in the CAA. She pointed out that the only sentence fixed by law in Hong Kong was mandatory life sentence.

5. Miss TSANG explained that section 4(2) of the CAA was not adopted because of the policy intention for an offence of attempt to be triable summarily in Hong Kong, whether it was tried together with other offences or otherwise. Incorporation of section 4(2) in the Bill was considered to be unnecessary as the magistracies in England adopted different procedures for a joint trial of an offence of attempt and other substantive offences.

6. In response to the Chairman and Miss Margaret NG’s enquiry, Miss TSANG said that proposed section 159K(4) existed in the CAA, the intention of which was to safeguard the interest of the defendant. In this connection, Legal Adviser pointed out that the Criminal Procedure Ordinance (Cap. 221) also had a similar provision.

7. Miss TSANG informed members that reference to any offence of common law of procuring materials for crime in section 6(1) of the CAA was not followed in proposed section 159L because there was no such offence in Hong Kong.

8. Members agreed with the provisions and the proposed amendments for the offence of attempt as set out in the Bill.

Offence of Conspiracy

9. Miss TSANG took members through the Bill in relation to the offence of conspiracy clause-by-clause. She confirmed that the modifications were mainly for the purpose of local adaptation and there were no substantive differences compared with the provisions of the Criminal Law Act 1977 (CLA).

10. Members noted that section 1(3) of the CLA had not been adopted because the Law Reform Commission suggested that the position was preserved by section 48 of the Trade Unions Ordinance (Cap. 332).

11. Miss TSANG explained that section 3(2) of the CLA which referred to an indictable offence punishable with imprisonment for which no maximum term of imprisonment was provided had been modified because section 101(I) of the Criminal Procedure Ordinance (Cap. 221) limited penalty for such indictable offence to seven years.

12. Miss TSANG further explained that section 5(5) of the CLA which limited the penalty of conspiracy to murder to ten years was not adopted because the maximum penalty for such an offence in Hong Kong was life imprisonment.

13. Members agreed with the provisions and the proposed amendments for the offence of conspiracy as set out in the Bill.

Other outstanding issues

A unified code on the offence of attempt

14. Members had asked if it might be more appropriate to incorporate all statutory offences (including those statutory offences of attempt in the Offences against the Person Ordinance (Cap. 212)) into one piece of legislation. In response, the Administration had provided a paper on the issue of an unified code on attempt (issued vide LegCo Paper No. CB(2) 1386/95-96). Mr WONG reiterated that the present legislative exercise was to clarify the definition of the offence of attempt, not to specify whether a particular offence of attempt should be retained in the statute book.

Offence of attempting to conspire

15. Miss Margaret NG queried whether it was justifiable to retain the offence of attempting to conspire simply on the grounds that it was a useful provision to deal with triad and organised crime. Mr WONG replied that the reference to triad related offences or acts was only one example. Retaining such offence would help clarify the legal position.

Reasons for codification of incitement

16. Members noted the information paper setting out the reasons for codification of incitement (issued vide LegCo Paper No. CB(2) 1386/95-96). The Administration was informed that the Bills Committee’s provisional stance of not supporting codification of the offence of incitement, with a dissenting view from Mrs Miriam LAU, remained unchanged.

Removal of the defence of impossibility

17. Members had in principle accepted the proposal to remove the defence of impossibility for the offences of attempt and conspiracy at a previous meeting. In light of the Bills Committee’s provisional view of not supporting codification of incitement, Miss Margaret NG said that she preferred to retain the defence of impossibility for the offence of incitement on the grounds that an incitement to commit an impossible offence, as remarked by Mr Martin LEE at a previous meeting, would not bring great hardship to the community. In this connection, Legal Adviser said that the reason for retaining the defence of impossibility for the offence of incitement in the U.K. was not a matter of principle but probably the failure to legislate a "package deal" of the proposals of the English Law Commission. Miss NG held the view that it would be more appropriate to deal with the defence of impossibility together with the offence of incitement itself as an overall approach in the light that (a) the offence of incitement had rarely been used; and (b) incitement was not a very clear area of law. As regards the practical difficulties if such a defence was retained, Mr WONG cited an example in which a person was charged with the offence of incitement and if he was ignorant of the fact that one of the incitees was an undercover police officer, it would be against the interest of justice that he could plead the defence of impossibility. Legal Adviser agreed that such a possibility could exist. Mr WONG further urged members to consider removal of the defence of impossibility for all three preliminary offences.

18. As regards the defence of impossibility for the offence of attempt, Mr James TO expressed concern whether the removal would be justified in relation to other non-theft offences in view of the fact that the cases cited in the Law Reform Commission’s Report related to the offence of attempt were all theft offences. Mr TO wondered whether defence of impossibility should be removed for all prohibitive acts. Miss Margaret NG undertook to contact the Hong Kong Bar Association to ascertain whether such point had been considered.

Hon Margaret NG

19. The Chairman asked the Administration to provide further information, if any, on the deliberations of the English Law Commission which could be useful for Mr James TO’s reference. In this connection, Legal Adviser suggested and Mr TO agreed to pinpoint any specific substantive offence of concern in order to facilitate further discussion at the next meeting.

Adm

Hon James TO

Committee Stage Amendments

20. The Chairman asked and Mr WONG confirmed that it was the Administration’s intention to present the codification of all three preliminary offences and the removal of defence of impossibility in all three offences as a package. Members agreed to discuss the arrangement for actually moving amendments at the committee stage at the next meeting.

Date of next meeting

21. The next meeting would be held on Wednesday, 12 June 1996 at 4:30 p.m..

22. The meeting ended at 10:15 a.m..