LegCo Paper No. CB(2)2753/96-97
(These minutes have been seen
by the Administration)
Ref : CB2/BC/6/96

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

held on Thursday, 29 May 1997 at 12:30 pm
in Conference Room B of the LegCo Building

Members Present :

    Hon Albert HO Chun-yan (Chairman)
    Hon CHEUNG Man-kwong
    Hon Bruce LIU Sing-lee
    Hon Margaret NG
    Hon Mrs Elizabeth WONG, CBE, ISO, JP

Members Absent :

    Hon Frederick FUNG Kin-kee
    Hon Emily LAU Wai-hing
    Hon James TO Kun-sun
    Hon Christine LOH Kung-wai
    Hon Andrew CHENG Kar-foo
    Hon TSANG Kin-shing

Public Officers Attending :

Miss Agnes TSE
Assistant Secretary for Security
Mr Peter WONG
Senior Assistant Solicitor General (Acting)

Clerk in Attendance :

Ms Doris CHAN
Chief Assistant Secretary (2)3

Staff in Attendance :

Mr Stephen LAM
Assistant Legal Adviser
Miss Erin TSANG
Senior Assistant Secretary (2)7


I. Confirmation of minutes of meeting held on 22 March 1997

The minutes of meeting held on 22 March 1997 were confirmed without amendment. In this connection, the Chairman informed members that the Secretariat had prepared the draft minutes of meetings held on 1, 16 and 22 April 1997 and 6 and 13 May 1997 respectively. Since the draft minutes of meetings prepared by the Secretariat had been of very good quality, the Chairman suggested and members present unanimously agreed that the Chairman should be authorised to vet the draft minutes of meetings, to notify the Secretariat direct of the amendments, if any, and to confirm them as appropriate before they were issued to members and the Administration for retention.

II. Consideration of the deputations’ comments on the draft Committee stage amendments (CSAs)

2. The Chairman asked and Miss Agnes TSE reconfirmed that the Administration’s stance on the Crimes (Admendment)(No. 2) Bill 1996 (the Bill) remained unchanged and that the Administration had no intention to interfere with the legislative process. With reference to the Hong Kong Bar Association (the Bar Association)’s view that section 7(6) should not be deleted, because it provided for the Attorney General’s consent before prosecutions of treason, kindred and sedition offences could be instituted, Miss TSE explained that the proposed amendments made to section 11 already covered section 7(6).

Addition of the element of "in good faith" and definition of the phrase "to disturb the constituted authority"

3. The Chairman referred to the Bar Association and the Hong Kong Journalists Association’s views that the present section 9(2) restated the common law in England, which did not contain any element for the defence to prove "good faith". The proposed addition of such element in section 9(2) was unnecessary and would only burden a defendant in his defence, hence failing to achieve members’ intention to make the provision less restrictive. In view of the comments, members agreed to delete the element of "in good faith" in clause 7. As regards the Bar Association’s comments that the phrase "to disturb the constituted authority" in clause 7 of the draft CSAs should be defined clearly with a sense of proportion, the Chairman and Miss Margaret NG suggested that it should be re-defined along the following lines:

  1. "disturb" should generally refer to an action to produce public mischief to upset the social order or the established system of the society to the effect that any person who chanted a slogan "Down with LI Peng" or even made him temporary unable to execute public functions would not be liable for prosecution;
  2. "constituted authority" should refer to public officers of senior rank, who represented the state’s power or authority; and
  3. "state" should denote the Central Government, and in the case of the future Hong Kong Special Administrative Region, it should be defined to refer to the Chief Executive only.

The Assistant Legal Adviser agreed to relate members’ concerns to the Legal Adviser for preparation of considered legal opinion on the matters. LA

4. The meeting then took note of Miss Margaret NG’s opinion that since it was difficult to define the aforesaid the words/phrase with clarity, the offence of sedition should be deleted in its entirety.

Members’ stance

5. The Chairman reiterated that the Democratic Party would move CSAs on treasonable offences in order to incorporate the concepts of subversion and secession as proposed by the Administration, and to include the "clear and imminent danger" test in the provision. He understood that Ms Emily LAU would also move CSAs to repeal the existing provision on sedition and the consequential provisions. Miss Margaret NG and Mrs Elizabeth WONG indicated their support to Ms Emily LAU’s CSAs because they also considered it unnecessary to retain the offence of sedition in the statute book.

6. In reply to the Chairman, Mr Bruce LIU said that subject to the definitions of "disturb" and "constituted authority" to be prepared by the Legal Adviser, he would support the Bills Committe’s decision made at the last meeting, which was to retain the offence of sedition but amended it for better protection of human rights. The Chairman said that the Democratic Party’s stance was the same.

III. Any other business

Legislative Timetable

7. The meeting agreed that a verbal report to the House Committee would be made on 30 May 1997 in order to release the time slot. The Chairman reminded the meeting that in order that the Second Reading debate could be resumed on 23 June 1997, notice of the Second Reading debate and notice of CSAs had to be given on 6 June 1997 and 13 June 1997 respectively.

8. The Chairman said that the draft CSAs to be prepared by the Legal Adviser would be circulated to members for consideration once available. In case members had any queries, they could approach him direct for discussion.

9. Miss Margaret NG suggested and the meeting agreed that the minutes of meeting and the Bills Committee report should reflect members’ support for the Administration to introduce the Bill into the Legislative Council for scrutiny, though the Bill was amended substantially by the Bills Committee.

Clerk

10. In this connection, the Chairman requested and members present unanimously agreed that they would give a detailed account of their views in their speeches during the Second Reading debate so as to put their views on record, in particular with regard to the need to ensure better protection of human rights.

11. The Chairman then thanked members, the Administration, the Secretariat and the deputations for their contributions to the Bills Committee.

12. There being no other business, the meeting ended at 1:30 pm.

LegCo Secretariat
23 June 1997

Last Updated on 15 October 1997