LegCo Panel on Information Policy
Review of Legislation Having an Impact on Press Freedom
(Meeting on 5 July 1996)
This paper informs Members of the current position of the review of laws which may affect press freedom or freedom of expression.
2. The Administration has introduced the Telecommunication (Amendment) Bill 1996 into LegCo on 22 May 1996. The Bill seeks to repeal S13C(3)(a) of the Telecommunication Ordinance under which the Broadcasting Authority may require a radio licensee to refrain from broadcasting any programme. This amendment will place the control of radio licensees on the same footing as the control of television licensees. The Bill also amends S28 of the Ordinance, which makes it an offence to transmit messages known to be false by telecommunication. The amendment will enable us to comply with Article 47 of the Constitution of the International Telecommunication Union which requires steps to be taken to prevent the transmission or circulation of false or deceptive, distress, urgency, safety or identification signals.
3. The Governor in Council on 2 July has ordered that Prison Rules 76(a) and (b), which restrict the disclosure of information by CSD staff, should be amended to narrow the application to the disclosure of information affecting prison security or interfering with prisoners' privacy. The Governor has also ordered that Prison Rules 239(1)(e)(i) and 239(1)(e)(ii), which make it a disciplinary offence for CSD staff to divulge information, should be repealed. These amendments will be tabled in the usual manner at the LegCo sitting on 10 July for negative vetting.
4. The issue of interception of telecommunications and mail has been addressed in the Law Reform Privacy Sub-committee's consultation paper. The consultation period concluded on 15 June 1996. We understand that the Sub-committee will collate the various views received and produce a final report which, after endorsement by the Law Reform Commission, will be passed to the Government. The Government will then need to study the final Report before reaching a view on what changes to existing legislation may be necessary. We will then bring forward the necessary legislative proposals at the earliest possible date.
5. S30 of the Prevention of Bribery Ordinance has been ruled by the Privy Council to be consistent with the Bill of Rights Ordinance. Nonetheless, when the second reading debate on the Prevention of Bribery (Miscellaneous Provisions) (No.2) Bill 1995 resumes on 10 July 1996, the Administration will move a Committee Stage Amendment (CSA) to S30 which will limit the effect of the section in the following ways -
- the offence will be limited to disclosures made by a person who knows or suspects that an ICAC investigation is taking place;
- it will only apply to disclosures relating to an investigation into an offence under Part II of the Ordinance;
- a disclosure will no longer be an offence if it is made after a warrant has been issued for the arrest of the person who is the subject of the investigation, or after a restraining order has been served on any person under S14C(3) of the Ordinance; and
- in the three situations (set out in subsection (2)(b), (c) and (d) of S30) in which the Commissioner may now disclose the identity of the person who is the subject of the investigation, it will be permissible for the Commissioner, or the subject person, or any other person with the consent of the Commissioner or the subject person, to disclose the identity of the subject person or any other details of the investigation. The amendments also provide that, where the Commissioner or the subject person has consented to a disclosure being made by a particular person to the public or a section of the public, he is to be treated as having consented to such a disclosure by any other person (and thus it will not be necessary for each newspaper or broadcaster to obtain the consent of that person before it can run the story).
6. The CSA will also make it clear that a person who has a reasonable excuse for making a disclosure if, but only to the extent that, the disclosure reveals -
- any unlawful activity, abuse of power, serious neglect of duty, or other serious misconduct by the Commissioner, the Deputy Commissioner or any officer of the Commission; or
- a serious threat to the health or safety of the public, or to public order, or to the security of Hong Kong.
7. In addition to limiting section 30 in the ways described in paragraphs 5 and 6 above, the Administration's CSA will ensure that the section applies to all investigations into Part II offences, regardless of whether there is any particular person who is under investigation. According to the recent decision in the Ming Pao case, the existing section only applies if a particular person is under investigation. This is illogical. It means that the early, and particularly vulnerable, stages of an investigation can sometimes be prejudiced by a disclosure that falls outside the section. The Administration wishes to plug this loophole.
8. The Administration has put proposals to the Chinese side through the JLG which -
- balance the need to protect freedom of expression by the individual with the need to protect public order and security;
- are consistent with the Joint Declaration, the Basic Law, the Bill of Rights and the International Covenant on Civil and Political Rights as applied to Hong Kong; and therefore
- provide a practical basis for legislation that would be capable of continuing in force after 1997.
9. We have been pressing the Chinese side for an early and satisfactory agreement based on these proposals. We will continue to press the Chinese side for an early response.
10. A checklist of our law review exercise is attached.
Home Affairs Branch
July 1996
Annex
Checklist
(as at July 1996)
(1) Television Ordinance (S.14, 27, 29, 33, 35, 36, 39, R4, R6);
(2) Telecommunication Ordinance (S.13M);
(3) Broadcasting Authority Ordinance (S.18);
(4) Places of Public Entertainment Ordinance and Regulations (S.8(2), R174(1));
(5) Registration of Local Newspapers Ordinance (3 regulations);
(6) Emergency Regulations Ordinance (subsidiary legislation);
(7) Summary Offences Ordinance (S.8(d), S.4(29));
(8) Public Order Ordinance (S.6, 9, 13, 14, 17, 17D);
(9) Complex Commercial Crimes Ordinance (S.19);
(10) Criminal Procedure Ordinance (S.123);
(11) Judicial Proceedings (Regulations of Reports) Ordinance (S.3(1)(a));
(12) Defamation Ordinance (S.6);
(13) Juvenile Offenders Ordinance (S.3D(4)); and
(14) Police Force Ordinance (S.50(7)) - Interpretation and General Clauses (Amendment) Bill 1995
(1) Telecommunication Ordinance (S.13C, S.28)
(2) Prison Rules (Rules 76(a)(b), 239(1)(e))
(3)* Prevention of Bribery Ordinance (S.30)
(1) Official Secrets Act;
(2) Crimes Ordinance (S.2, 9);
(3) Post Office Ordinance (S.32(1)(h), S.13); and
(4) Telecommunication Ordinance (S.33)
(1) Television Ordinance (S.25A, 38);
(2) Judicial Proceedings (Regulations of Reports) Ordinance (S.3(1)(b));
(3) Contempt of Court Laws (Common Law);
(4)** Film Censorship Ordinance (S.10(2)(c));
(5) Undesirable Medical Advertisements Ordinance;
(6) Fire Services Ordinance (S.10);
(7) Dangerous Drugs Ordinance;
(8) British Nationality (Miscellaneous Provisions) Ordinance (S.3A);
(9) Juvenile Offenders Ordinance (S.20A);
(10) Rehabilitation of Offenders Ordinance (S.6);
(11) Smoking (Public Health) Ordinance; and
* - the Court of Appeal and the Privy Council have ruled that S.30(1) of the Prevention of Bribery Ordinance is consistent with the BORO. Nonetheless, the Administration intends to limit the effect of the section.
** - repealed by a Private Member's Bill in December 1994
Last Updated on 20 Aug, 1998
