LegCo Paper No. CB(2)2638/96-97
Ref: CB2/BC/6/96

Paper for the House Committee
meeting on 13 June 1997

Report of the Bills Committee on the Crimes (Amendment)(No. 2) Bill 1996


Purpose

This paper reports on the deliberations of the Bills Committee on the Crimes (Amendment)(No. 2) Bill 1996 and seeks Members' support for the Bill to resume Second Reading debate on 23 June 1997.

Background

2.Article 23 of the Basic Law (Article 23) provides that the Hong Kong Special Administrative Region (HKSAR) shall enact laws on its own to prohibit, inter alia, any acts of treason, secession, sedition, subversion against the Central People's Government. The LegCo Brief on the Bill has provided the Administration's account of the consultation with the Chinese side of the Joint Liaison Group on the proposals contained in the Bill and the justifications for introducing the Bill.

The Bill

3.The main objects of the Bill are to add the offences of subversion and secession into Part I of the Crimes Ordinance (Cap 200)(the Ordinance) to bring it in line with Article 23 and to modify the existing provisions relating to the offences of treason and sedition in the Ordinance to reflect the common law position.

The Bills Committee

4.At the House Committee meeting on 6 December 1996, Members agreed that a Bills Committee should be formed to study the Crimes (Amendment) (No. 2) Bill 1996. The Bills Committee first met on 18 December 1996 and Hon Albert HO was elected Chairman. The membership list of the Bills Committee is at Appendix I.

5.The Bills Committee has held 13 meetings. In addition to meetings with the Administration, the Bills Committee has met representatives of the Hong Kong Bar Association (the Bar Association), the Law Society of Hong Kong (the Law Society), Justice, Hong Kong Human Rights Monitor and the Hong Kong Journalists Association to listen to their views on the Bill and has sought their comments on the amendments proposed by the Bills Committee.

Deliberations of the Bills Committee

6.The Bills Committee notes that the Administration believes that it has proposed realistic, reasonable and workable amendments to the Ordinance which are, within the context of the Basic Law, consistent with the International Covenant on Civil and Political Rights (ICCPR) and the local legislation. It also believes that the duly amended legislation, after adaptation, could in principle, straddle the Handover. At the same time it emphasizes that it does not intend to bring about any degradation in the existing rights and freedom enjoyed in Hong Kong as a result of the introduction of the Bill.

7.Members also note that the majority of the deputations' view is that Article 23 only imposes a constitutional duty on HKSAR to enact laws to prohibit any acts of treason, secession, sedition and subversion and that it does not itself create statutory offences or prohibit the acts of subversion and secession. In the absence of clear statutory provisions on the offences of subversion and secession, there could not be such offences.

8.The main issues considered by the Bills Committee are summarized in the following paragraphs.

The offences of subversion and secession

9.The legal profession and the other deputations do not support the creation of the offence of subversion on grounds as follows -

  1. It is neither obligatory nor necessary for the Hong Kong Government to legislate on the offence. There is no such offence as subversion and secession in other common law jurisdictions;

  2. Public order is sufficiently safeguarded by a variety of measures and offences including those in the Public Order Ordinance; and

  3. Section 2 of the Ordinance, in its unamended but appropriately adapted form, contains elements of subversion and secession as proposed in the new sections 5 and 5A.

10.As regards the offence of secession, the Law Society, while not directly rejecting the need for legislation, suggests that if the offence is to be created, exclusion provisions should be provided to clarify the areas of activity which are not liable for prosecution and overt acts referred to in the provision should be qualified by the need to establish "clear and present danger" in order to prove the offence. The other deputations do not support the creation of the offence for the same reasons as the offence of subversion. In addition, the Bar Association has pointed out that it is not a criminal offence to plan to supplant the lawful authority of the Government of the United Kingdom by force in respect of any part of the United Kingdom or any dependant territory other than in a treasonable context. The Hong Kong Journalists Association considers that Article 23 should be amended to excise the concepts of subversion and secession which would pose serious threats to the freedom of expression.

11.In the light of the deputations' views and after deliberations, a majority of members conclude that the offences of subversion and secession should not be created. Following further discussion, the Bills Committee unanimously agree to move amendments to delete clauses 4 and 5. They note that in accordance with Article 8 of the Basic Law, the laws previously in force in Hong Kong, inter alia, the common law, shall be maintained after the transfer of sovereignty. Since Hong Kong and most of the other common law jurisdictions do not have such offences and the offensive acts under the proposed provisions can be dealt with under the existing legislation, it is not necessary to add the two offences into the statute.

12.Although the Democratic Party (DP) does not agree to create the two new offences and maintains that Article 23 should be amended to take out subversion and secession, it nevertheless proposes to incorporate the concepts of subversion and secession into the provisions on treasonable offences, taking into consideration the political reality. It considers that the proposal must be in full compliance with the ICCPR and the Hong Kong Bill of Rights Ordinance (BORO) and after due adaptation, would be workable after the transfer of sovereignty. Therefore the future legislature of HKSAR need not legislate on these 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, may be limited or taken away by future legislation.

13.Other members consider that there is no need to set benchmarks or concede the principle for the sake of satisfying the requirements of Article 23. They agree that Article 23 on its own does not have the effect of creating the offences and no case has been made for an immediate need to add such offences in the statute. Furthermore, full and searching discussions in the Bills Committee have failed to reveal any formulation of these offences which does not endanger the rights and freedom of Hong Kong people.

Provisions on treason and treasonable offences

14.Members note that although the Bar Association and Hong Kong Human Rights Monitor support, in principle, the liberalization of the existing law on treason, Justice considers that the modernization and liberalization of the provisions will do more harm than good because the provisions, once amended, will be regarded as new legislation and as a result, the benefit of past judicial interpretations may not be available to an accused person.

15.Members generally agree that the provisions on treason and treasonable offences should not be reformed because of the constraint of time and resources. Such work should be done by a law reform commission instead of a bills committee. Instead the Administration's proposals, which are relatively minor and which would not have a significant impact on the existing understanding of the legal concepts, should be adopted.

16.In order to prepare the legislation for easy adaptation, the Administration proposes in clause 2 to replace the inapplicable reference to Her Majesty by the reference to the state, i.e. the United Kingdom , in section 2(1)(c). A majority of members support the proposal. However, one member considers that section 2(1)(c)(i) should remain intact because the meaning of the substitution is not clear and therefore its legal effects are uncertain. A majority of members agree that section 2(1)(d) and (f) and section 2(2) should remain unchanged while the reference to Her Majesty in section 2(1)(e) should likewise be replaced by the reference to the United Kingdom as proposed by the Administration.

17.Members note that under the existing section 3, the manifestation of an intention to effect any one of the purposes set out in subsection (1)(a) -(c) by an overt act or by publishing any printing or writing shall be guilty of an offence. Since an intention cannot simply be deduced from an overt act and the provision criminalises speech or writing, a majority of members agree to repeal the section.

The offence of sedition

18.Members note that the Bar Association, the Law Society and the Hong Kong Journalists Association support the repeal of sections 9 and 10 on seditious intention and offences because they are in contravention of the basic rights enshrined in the ICCPR. In addition, both the Law Society and Justice consider that the offence of sedition is archaic, has notorious colonial connotations and is contrary to the development of democracy. It criminalises speech or writing and may be used as a weapon against legitimate criticism of the government. Justice also points out that the offence of sedition has been progressively narrowed by judicial interpretations over the years and that the Administration's proposed addition of the new element to section 10, i.e., an intention to cause violence, create public disorder or public disturbance, makes the provision more restrictive.

19.Following deliberations in the Bills Committee, Hon Emily LAU proposes to repeal sections 9 and 10 because the offence is outdated and draconian. It criminalises expression and the provision on seditious intention can be so broadly interpreted that it is threatening to human rights. She also considers that the Public Order Ordinance already contains adequate provisions on public meetings and processions for the maintenance of public order. Her proposal is supported by Hon Christine LOH, Hon Margaret NG and Hon Mrs Elizabeth WONG.

20.Members of the DP and the Association for Democracy and People's Livelihood (ADPL) hold different views from the above. Although the DP supports, in principle, the deletion of the offence, in view of the political reality that the future legislature of HKSAR would very likely legislate on the offence in accordance with Article 23 and since the offence also exists in some other common law jurisdictions, it considers it desirable to formulate the baseline for the offence which can comply with the ICCPR and the BORO. It therefore proposes that the provision on sedition should not be deleted at the present stage but should instead be amended by -

  1. narrowing the definition of seditious intention in section 9:

  2. providing an additional element of having the purpose of disturbing the "constituted authority" in section 9 to make prosecutions more difficult; and

  3. incorporating Principle 6 of the Johannesburg Principles on National Security, Freedom of Expression and Access to Information (the Johannesburg Principles) in section 10 for better protection of human rights.

Members note that the term "constituted authority" appears in a common law case dealing with provisions similar to section 9(1)(d) and (e) where no target or purpose is stated. In order to give the provisions some meaning and to narrow the scope of the otherwise broad concept, it has been held that the raising of discontent or disaffection, or the promotion of feelings of ill-will and enmity, is for the purpose of disturbing the "constituted authority". Although the term is used in the case laws of other common law jurisdictions such as Australia and Canada, it has remained undefined. For this reason, members consider that if it is agreed that the Bills Committee should move amendments along these lines, the draft amendments should be referred to legal profession and the other deputations for comments.

21.The ADPL also considers that the provision on sedition should not be deleted but should instead be amended by incorporating the Johannesburg Principles and by bringing it in line with the ICCPR so that speech or writing will not be criminalised. It is of the view that any further amendments should be left to the future legislature of HKSAR.

22.As the DP and the ADPL's proposed amendments are similar and they represent the majority view of the Bills Committee, members agree that the Chairman should, on behalf of the Bills Committee, move amendments to sections 9 and 10. They note that Hon Emily LAU will move amendments to repeal sections 9 and 10.

Members' concluding remarks

23.Members wish to put on record that although they unanimously decide against the proposal to introduce the offences of subversion and secession, they would like to reiterate their support for the introduction of the Bill by the Administration as it has provided the text for discussion and has allowed the public the opportunity to be aware of the discussion

Committee Stage Amendments (CSAs)

24.Copies of the CSAs to be moved by Hon Albert HO, Chairman, on behalf of the Bills Committee are at Appendix II while the CSAs to be moved by the DP and Hon Emily LAU are at Appendices III and IV respectively.

Recommendation

25. The Bills Committee recommends that the Second Reading debate on the Bill be resumed on 23 June 1997.

Advice Sought

26.Members are invited to support the recommendation of the Bills Committee in paragraph 25 above.


LegCo Secretariat
13 June 1997



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