LegCo Paper No. CB(2)1344/96-97
Ref : CB2/BC/6/96

Minutes of the fifth meeting of the Bills Committee on the
Crimes (Amendment) (No. 2) Bill 1996

held on Wednesday, 19 February 1997 at 8:30 am
in Conference Room A of the LegCo Building

Members Present :

    Hon Albert HO Chun-yan (Chairman)
    Hon CHEUNG Man-kwong
    Hon Emily LAU Wai-hing
    Hon James TO Kun-sun
    Hon Christine LOH Kung-wai
    Hon Margaret NG
    Hon TSANG Kin-shing

Members absent :

    Hon Frederick FUNG Kin-kee
    Hon Andrew CHENG Kar-foo
    Hon Bruce LIU Sing-lee
    Hon Mrs Elizabeth WONG, CBE, ISO, JP

Public Officers Attending :

Mr Andrew KLUTH
Principal Assistant Secretary for Security
Mr Ian DEANE
Senior Assistant Solicitor General

Clerk in Attendance :

Miss Flora TAI
Senior Assistant Secretary (2)3

Staff in Attedance :

Mr Jimmy MA
Legal Adviser
Miss Erin TSANG
Senior Assistant Secretary (2)7

I. Purpose of the meeting

The Chairman said that the meeting was held to consider the general approach in studying the Crimes (Amendment) (No. 2) Bill 1996 (the Bill) and in reviewing the principal Ordinance (the Ordinance). He welcomed Mr Andrew KLUTH and Mr Ian DEANE for attending the meeting to hear members’ views.

II. Internal discussion

2. The Chairman said that there were three issues for the Bills Committee to resolve -

  1. whether it was necessary to legislate on the offences of subversion and secession;
  2. how the definitions of the offences of treason, secession, sedition and subversion could be tightened up (e.g. requirement of "clear and imminent danger"), having regard to the freedom of expression and freedom of speech; and
  3. whether it was necessary to add exclusion provisions to the Bill.

Necessity to legislate on the offences of subversion and secession

3. Ms Margaret NG referred to the majority of the deputations’ view that Article 23 of the Basic Law (Article 23) only imposed a constitutional duty on the Hong Kong Special Administrative Region (SAR) to enact laws to prohibit any act of treason, secession, sedition and subversion and that it did not itself create statutory offences on nor prohibit the acts of subversion and secession. In the absence of statutory provisions on the offences of subversion and secession, there could not be any such offences. Only when clear statutory provisions had been laid down then the act of subversion and secession could be prohibited in law. Moreover, public consultation on the terms to be adopted in the proposed provisions should be made and public response towards the issue should be taken into due consideration. Hence, she would only support the addition of the two offences to the Ordinance for the sake of absolute necessity and benefits.

4. Mr CHEUNG Man-kwong opined that Article 23 should be amended to delete the offences of subversion and secession. He expressed concern that no matter how the two offences were enacted from the point of law, the consequence could still be criminalisation of speech. Ms Margaret NG shared his concern. Mr CHEUNG said it was a political dilemma for the Legislative Council (the LegCo) to decide whether legislation should be enacted on the two offences before the transfer of sovereignty or whether legislation should be left for the Provisional Legislature to decide. He remarked that although the Bill, despite deliberations and scrutiny of the Bills Committee, might not be passed in the LegCo, the efforts of the Bills Committee would not be futile since it had provided a forum for the public to express views the various offences.

5. Mr TSANG Kin-shing echoed Mr CHEUNG Man-kwong’s view that Article 23 should be amended to exclude the offences of subversion and secession. The deliberations of the Bills Committee could adequately reflect public anxieties on the issue and could provide useful reference for the SAR Government and the Provisional Legislature when they enacted laws in accordance with Article 23 in future.

6. Miss Christine LOH supported Mr CHEUNG Man-kwong’s view that the debate on the Bill in the LegCo would allow members the opportunity to express their views on the issue. She agreed that it was necessary to have circumspect review on the Bill and to leave a detailed record of the deliberation, which should be easy for the general public to comprehend, for future reference.

7. Ms Emily LAU said that the Frontier inclined not to support the inclusion of the two offences of subversion and secession in the Bill. Pursuant to Article 8 of the Basic Law, the common law system would be maintained after the transfer of sovereignty. Since Hong Kong and most of the common law jurisdictions did not have such offences as subversion and secession, and the offensive acts under the proposed provisions could be covered in the existing legislation, it was not necessary to add these two offences to the Ordinance. These two offences should not exist in principle and should not be created for the sake of fulfilling the requirements of Article 23.

8. The Chairman reiterated that the objective of the Bills Committee was not only to consider the amendments proposed by the Administration but also to review the principal Ordinance on the basis of Article 23. He said that the meeting should first consider the intention for legislation and whether an act was unlawful, before deciding the type of offensive acts to be included in the Bill and how they should be termed. In this connection, members noted that the Democratic Party had not yet formulated its position on the matter.

9. Ms Margaret NG then suggested and members agreed that the Administration should be asked to clarify the acts to be prohibited under the proposed legislation before the Bills Committee considered whether it was necessary to legislate on the offences of subversion and secession so as to prohibit those acts.

Adm

Prohibited acts covered by existing provisions of treason and sedition

10. The Chairman expressed that the difference between the existing provision on treason and the proposed provisions on subversion and secession was that the former related to assisting foreign enemies to invade the country whereas the latter concerned conspiracy with any person, other than foreign enemies, to overthrow by force the government or supplant by force the legal authority of the government. The subversive and seceding acts under the proposed provisions might not be considered lawful in other common law jurisdictions, though they did not have these two offences. However, Mr James TO opined that the existing section on treason could not fully cover the offensive acts under the proposed sections because they dealt with violent acts of different levels.

11. Ms Emily LAU emphasized that the existing provisions on treason and sedition should be reviewed in order to liberalise them for better protection of human rights and to bring them into line with the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights.

Prohibited acts to be included in the proposed sections 5 and 5A of the Bill

12. Mr James TO and the Chairman pointed out that section 24AA of the Australian Crimes Act 1914 (LegCo Paper No. CB(2) 1001/96-97 referred) and section 73 (e) of the Crimes against Public Order of New Zealand (Annex C to LegCo Paper No. CB(2) 992/96-97 referred) were similar to the proposed section 5 of the Bill. Although the proposed offence of subversion did not exist in identical form in other common law jurisdictions, its elements were covered by the laws of those jurisdictions. Mr TO held the view that any act with intent to overthrow the government by force should be prohibited though the offensive act itself might be labelled differently in different common law jurisdictions. He then suggested and the meeting agreed that the Administration should:

Adm

  1. re-define the term "by force" to "by physical force" or "by armed force";
  2. define clearly the meaning of "overthrow the government";
  3. explain why the Administration departed from other common law jurisdictions to include an intention in an offence in a legislation, as proposed section 5(a) would be;
  4. confirm whether there were precedents in other common law jurisdictions in respect of the provision relating to secession; and
  5. explain the difference between section 2 and the proposed sections 5 and 5A, with a view to clarifying the respective sections and to clarifying whether the prohibited acts in existing section 2 could cover those in proposed sections 5 and 5A.

13. The Chairman pointed out that the Public Order Ordinance could cover the offensive acts under the proposed sections, though the level of punishment was different. Ms Emily LAU then asked the Administration to clarify whether the prohibited acts to be included in proposed sections 5 and 5A were already covered in existing legislation, other than section 2 of the Ordinance.

Adm

Use of "the United Kingdom" and "the Government of the United Kingdom"

14. Ms Margaret NG said that she was uncertain of the circumstances under which the Administration could use the phrases "the United Kingdom" and "the Government of the United Kingdom" in the Bill. She pointed out that whilst it was illegitimate to levy war against the state, any act to overthrow, replace or criticise a government should not be equated to an act of waging a war against the state. If the government could not be separated from the ruling party, she had reservation on creating an offence against overthrowing the government, which meant protecting the ruling party, not the state. She then suggested and the meeting agreed that the Administration should be asked to clarify the rationale for using the two expressions of "the United Kingdom" and "the Government of the United Kingdom" in the Bill.

Adm

Precedents for reference

15. Ms Emily LAU raised for consideration that since the proposed offences of subversion and secession did not exist in common law, there would not be any precedents for reference. This would upset the common law system to be adopted after the transfer of sovereignty. Mr James TO responded that some offences covered in the common law jurisdictions, such as spying and espionage, might have only a few or even no precedents for reference. Some precedents might date back to a distant past which provided little reference value. Hence, it was important to define the proposed offences clearly if they were to be added to the statute book.

Section 3 of the Ordinance

16. The Chairman expressed his reservation on retaining section 3 in the Ordinance, which subjected an intention manifested by an overt act to an offence. Treason should only be actionable if a person committed an act of treason rather than a person had formed an intention to effect the treasonable acts. He suggested and the meeting agreed to ask the Administration to explain the difference between sections 2 and 3 and the reason for retaining section 3 in the Ordinance.

Adm

Proposed amendment to section 10

17. With reference to the amendment proposed by the Administration to section 10 of the Ordinance, Miss Christine LOH suggested the Administration to explain why such amendment was proposed and the meaning of the phrase "with the intention of causing violence or creating public disorder or a public disturbance"; in particular the difference between "public order" and "public disturbance".

Adm

Detailed drafting of the Bill

18. Ms Margaret NG and Mr CHEUNG Man-kwong were of the view that the Bills Committee should take extreme care in studying the Bill in the light that after the transfer of sovereignty, Hong Kong would be affiliated with China, which adopted a different legal system and where the precedents of criminalisation of speech were numerous. Apart from reference to the legislation and case law of other common law jurisdictions, the local political climate and reality should also be paid heed to in considering the Bill. To address the concern and to avoid any possible abuse of power, the Chairman and Mr James TO suggested that the Bill could be drafted in a detailed manner by incorporating the interpretation rules adopted by overseas jurisdictions. The definition of all the offences covered in the Bill and the principal Ordinance should be narrowed down by the application of the "clear and imminent danger" test and the "proximity" test, so that the freedom of expression would not be curtailed and criminalised. The addition of exclusion provisions to the Bill would be considered in order to restrict the interpretation of the offences and to provide reasonable exemptions for defence.

Interpretation of Articles 17, 23 and 158 of the Basic Law

19. Ms Margaret NG cautioned that Article 23 required SAR, as well as providing it the authority, to enact laws on its own to prohibit any act of treason, secession, sedition and subversion against the Central People’s Government. Yet, it was difficult to conclude whether it was within the limits of SAR’s autonomy to interpret the provisions on those offences. Mr CHEUNG Man-kwong then asked and Legal Adviser advised that Article 17 provided for the legislative procedure, whereby the laws enacted by the SAR legislature had to be reported to the Standing Committee of the National People’s Congress (the Standing Committee) for record purpose. Any law not returned by the Standing Committee should deem to be valid. Article 17 could be considered separately in connection with Article 158 which stipulated the Standing Committee and the SAR courts’ power of interpreting the Basic Law. In adjudicating a case which involved the interpretation of the provision on secession, and if such interpretation would affect the judgement on the case, pursuant to Article 158, the SAR courts should, in principle, have the power of interpreting the relevant provision. Yet, it was difficult to conclude whether the Standing Committee would have an overriding power of interpreting the Basic Law in cases involving interpretation of these statutory provisions.

Report of the Bills Committee

20. Mr TSANG Kin-shing suggested that it would be useful to compile a simple report on the deliberations of the Bills Committee for public reference in due course. The Chairman said that he would invite the Bills Committee to consider Mr TSANG’s suggestion later, as and when appropriate.

III. The Administration’s response

21. In response to the Chairman’s question, Mr Andrew KLUTH said that the Administration would provide after the meeting a written response to the points raised by members during the discussion.

Adm

IV. Dates of future meetings

22. The next meeting would be held on 28 February 1997 to receive deputations. The Chairman suggested members to present their views on the Bill in writing for early transmission to the deputations for reference before the meeting. In addition, the minutes of the previous meetings and relevant discussion papers should be provided to the deputations to facilitate their discussion with the Bills Committee.

Clerk

23. Members agreed that a meeting would be held on Friday, 7 March 1997 at 8:30 am to meet with the Administration.

24. There being no other business, the meeting ended at 10:25 am.

LegCo Secretariat
21 February 1997

Last Updated on {{PUBLISH AUTO[[DATE("d mmm, yyyy")]]}}