The Chairman informed the meeting that the Secretariat had, upon members' request, summarised the views of the Hong Kong Bar Association, the Law Society of Hong Kong, Justice and the Hong Kong Human Rights Monitor along the following lines in a tabular form:

the deputations' stance;
the deputations' comments on the amendments proposed by the Administration; and
the deputations' suggestions.

The Chairman reminded members that the summary was for internal reference only.

II.Continuation of clause by clause examination of the Bill

Section 4

2. Members unanimously agreed that section 4 of the Crimes Ordinance (the Ordinance) should be retained without amendment.

Section 5

3. Members unanimously agreed to the Administration's proposal as to repeal section 5.

Proposed sections 5 and 5A

4. Mr James TO and Mr CHEUNG Man-kwong told the meeting that although the Democratic Party did not agree to the Administration's proposal to create the two new offences of subversion and secession, it nevertheless proposed to incorporate the concepts of subversion and secession, which also existed in other common law jurisdictions, into the re-written provision on treasonable offences. Under the proposed provision on treasonable offences, the element of using violence to overthrow or subvert the government and to take permanent control of any part of the territory by supplanting the lawful authority of the government was included. In order to ensure better protection of human rights, it was proposed that legislative safeguards should be provided to the effect that no person shall be convicted of treasonable offences unless it was proved that the unlawful acts so committed involved substantial planning and organisation, the acts posed an imminent threat against the government and the acts were committed with a clear intention to overthrow or supplant the authority of the government.

5. In reply to Miss Margaret NG, Mr James TO and Mr Andrew CHENG said that the Democratic Party maintained that Article 23 should be amended to take out subversion and secession. However, in view of the political reality, the Democratic Party had put forth a proposal, which covered the concepts of Article 23 of the Basic Law, inter alia, the requirement to legislate on the offences of subversion and secession. The proposal, after due adaptation, would be workable after the transfer of sovereignty. The future legislature of the Hong Kong Special Administrative Region needed not legislate on those offences again, and hence the removal of the uncertainty that the present freedom and rights enjoyed in Hong Kong, in particular the freedom of expression, would be taken away by future legislation.

6. Mr James TO then asked and Mr Andrew KLUTH confirmed that the Administration maintained that there should be separate offences of subversion and secession as drafted in the Bill, and that it would not consider incorporating those concepts in other provisions as suggested by the Democratic Party.

7. Miss Margaret NG indicated that she did not support the Democratic Party's proposal to incorporate the concepts of subversion and secession into the Ordinance, which in effect added to the statute book two severe offences. Miss NG, Miss Christine LOH and Ms Emily LAU also did not agree to the Administration's proposal to create two new offences of subversion and secession.

8. After discussion, members unanimously agreed that the Administration's proposal to include the proposed sections 5 and 5A in the Ordinance should not be adopted. As to whether the concepts of subversion and secession should be incorporated into the legislation, Miss Margaret NG, Ms Emily LAU and Miss Christine LOH ruled out the necessity, while members of the Democratic Party indicated that they would move Committee stage amendments for such inclusion.

Sections 6 and 7

9. In reply to Mr James TO, Miss Margaret NG and the Chairman said that due to the difference in the level of crimes committed, the penalties for incitement to mutiny and incitement to disaffection were different, in that the former was punishable by life imprisonment whereas the latter by imprisonment for two years.

10. Mr CHEUNG Man-kwong then asked and the Legal Adviser advised the meeting that section 6(a) and section 7(1)(a) and (b) were different, in that the former provided for seduction of any member of Her Majesty's forces or any member or officer of the Royal Hong Kong Regiment from his duty and allegiance to Her Majesty, whereas the latter sections provided for the seduction of the same either from his duty or allegiance to Her Majesty. Thus, they had different levels of punishment. In the United Kingdom, incitement to mutiny was also punishable by life imprisonment whereas incitement to disaffection was, under summary proceedings, punishable by fine and imprisonment for six months.

11. Mr James TO opined that in consideration of the penalty provided in section 7(1)(a) and (b), any person, who had seduced any member of the military forces from his duty and allegiance to the Queen under section 6(a), should only be punishable by imprisonment of four years instead of life imprisonment. Moreover, since the level of crime committed under section 6(b) was less serious than that under section 6(a), their penalties should not be the same as provided in the existing legislation. However, Mr Andrew KLUTH said that similar to other common law jurisdictions, the punishment for the offence of incitement to mutiny was life imprisonment, and the Administration considered that such penalty was appropriate.

12. Concerning section 7(1)(ab), Mr James TO pointed out that the Government Flying Service, unlike the military forces, was not a law enforcement unit. He suggested and the meeting agreed that the Administration would provide after the meeting written responses as to: (a) the reason for including the Government Flying Service in the provision; and (b) whether there was a case in lowering the punishment for the offence under section 6(b). In this connection, Miss Margaret NG requested the Administration to address whether the difference in penalties provided for in sections 6 and 7 was to facilitate the prosecution or due to the different enactment dates of the respective provisions.

Section 7(6)

13. Members unanimously agreed to the Administration's proposal to repeal section 7(6).

Section 8

14. Members unanimously agreed that section 8 should be retained without amendment.

Retention of sections 9 and 10

15. Ms Emily LAU agreed to the deputations' view to delete sections 9 and 10.

16. Mr James TO referred to the International Covenant on the Elimination of All Forms of Racial Discrimination which provided for criminalisation of intention to promote enmity between different races. He asked the Administration to confirm whether section 9(1)(e) was to meet the aforesaid requirement. The Chairman pointed out that section 9(1)(e) provided for ill-will and enmity between different classes of the population of Hong Kong, instead of enmity between different races as required in the said international covenant. Moreover, the Legal Adviser advised that section 9 dealt with the offences against the state, and that the said international covenant was not binding on Hong Kong.

17. After discussion, a majority of the members supported to retain sections 9 and 10 in the legislation. Moreover, members requested and the Administration agreed to provide after the meeting clarification on whether section 9(1)(e) was to meet the requirement of the said international covenant.

Amendments to sections 9 and 10

18. Mr James TO asked and Mr KLUTH told the meeting that the Administration proposed to modify the seditious activities in the legislation in order to reflect the common law, which required that there must be an intention to causing violence or creating public disorder or public disturbance before the activities would be considered as seditious. The Legal Adviser pointed out that the Administration did not intend to change its existing policy as far as sections 9 and 10 were concerned. The amendments proposed to section 9 were only amendments to the wording, such as replacing the inapplicable reference to "Her Majesty's subjects or inhabitants of Hong Kong" by the reference to "Hong Kong residents", so as to reflect the situation in Hong Kong. In section 10, the proposed addition of the phrase "with the intention of causing violence or creating public disorder or a public disturbance" was to reflect the common law in the United Kingdom and Canada. The Chairman then asked and Mr Andrew KLUTH confirmed that the Administration would not consider incorporating the Johannesburg Principles in sections 9 and 10.

19. Miss Margaret NG referred to Justice's view that the offence of sedition had been progressively narrowed by judicial interpretations over the years. The existing provision was outdated. In this respect, she suggested to amend sections 9 and 10 by using a minimalist approach and that the definition of seditious intention be defined in accordance with the case law. In her proposal, seditious intention was defined on the basis of a Canadian case, namely Boucher v. R (1951), that an intention was to promote ill-will and enmity between different classes of the population of Hong Kong with the purpose of inciting violence against the "constituted" authority thereby. In section 10, she suggested to add the requirement of "with the intention of causing violence" instead of "with the intention of causing violence or creating public disorder or a public disturbance" as proposed by the Administration to make the provision less restrictive. Moreover, the acts and words referred to in sections 10(1)(a)-(d) should be qualified by providing that they had a tendency to provoke disorder and violence. The Chairman then asked and Miss Margaret NG indicated that she would support, in principle, the inclusion of the "clear and imminent danger" test and exclusion provisions to narrow the definition of the offence, but she did not favour the approach proposed by the Hong Kong Journalists Association to incorporate the Johannesburg Principles into the legislation, which would in effect amend substantially the existing provisions.

20. Mr CHEUNG Man-kwong and Mr James TO expressed that in consideration of Miss Margaret NG's proposal, in order to narrow the ambit of the offence further, Principle 6 of the Johannesburg Principles should be added to the provision, which provided that a person was only liable to prosecution if there was evidential proof that his expression was intended to incite imminent violence, that it was likely to incite such violence, and that there was a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

21. In this connection, Miss Christine LOH suggested to include a new provision "offence committed only where intention is immediate", which provided that in Parts I and II, where an intention to do or cause an act was an element of an offence, a person committed the offence only if he intended immediately to do or cause that act.

22. In response, Miss Margaret NG pointed out that in adjudicating whether a person had an intention to causing violence, the court would abide by the basic legal principle to consider the connection between the act/expression and the occurrence of the violence, as well as the time gap between the two. She would not object, in principle, to stipulating the said legal principle clearly in the legislation.

23. With reference to Miss Christine LOH's suggestion to provide the definition of government in the legislation, the Legal Adviser advised that "government" was an abstract concept. In Australia, there was a case law which defined that "government" meant the established system of political rule. Government must be formed by persons in order to express the intention of the political system and to implement its policies. In interpreting the meaning of "government", the court would refer to the abstract meaning of government, instead of construing it as a particular person or a group of persons. Moreover, the court would interpret the provisions in the context of the legislation. In Chapter 1 of Hong Kong law, "government" was defined as the government of Hong Kong, and the word "government" was widely used in the local legislation. In his opinion, it was not desirable to provide a definition of government in this legislation; otherwise, it would need to define the word "government" all through other local legislation in which the word "government" appeared.

24. In further reply to Miss Christine LOH, the Legal Adviser advised that section 9(2) provided that an act, speech or publication was not seditious if it fell under the ambit of sections 9(2)(a)-(d). He shared Miss LOH's view that the provision could have been drafted more clearly.

25. After discussion, a majority of the members agreed that the Legal Adviser would draft the amendments to sections 9 and 10 along Miss Margaret NG's proposal and Principle 6 of the Johannesburg Principles in order to narrow the ambit of the offence, and to provide clearly that anyone who had mixed motives, such as the intention to point out a governmental error to raise discontent amongst the local population, would also be covered under section 9(2). Subject to the Legal Adviser's draft Committee stage amendments, the meeting would decide whether further clarification to the provisions, such as Miss Christine LOH's proposal to include legislative safeguards to ensure that the chanting of a slogan "Down with a certain government official" would not amount to any offence, would be necessary.

26. Concerning section 9(2), a majority of the members agreed to the Administration's proposal to modernise the provision.

IV.Date of next meeting

27. The next meeting would be held on Tuesday, 6 May 1997, to be followed by another meeting on Tuesday, 13 May 1997.

28. There being no other business, the meeting ended at 6:35 pm.

LegCo Secretariat
23 June 1997

Last Updated on 15 October 1997

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

held on Tuesday, 22 April 1997 at 4:30 pm in Conference Room B of the LegCo Building

I.Summary of deputations' views