At the invitation of the Chairman, Principal Assistant Secretary for Security (PAS(S)) and Senior Assistant Solicitor General (SASG) highlighted the salient points of the Administrations paper. As pointed out in paragraph 2 of the Administrations paper, the presumption contained in the second part of section 1(2) of the United Kingdom (UK) Official Secrets Act (the Act) 1911 had not been included in the Bill. In short, this presumption stated that if a person possessed a document or information relating to a prohibited place, it would be presumed to have been obtained for a prejudicial purpose. The only presumption in clause 3, which had been changed from a legal to an evidential one, was in clause 3(4). In response to a member, SASG explained that in determining whether an offence was committed under clause 3(1), the key element was the proof of a prejudicial purpose rather than proof of damage.

Referring to the Administrations paper, a member made the following points -

Clauses 3(2) to (4), which were evidential provisions designed to facilitate proof of the offences set out in clause 3(1), would make the evidential burden too light. The provisions would be open to abuse and were therefore unacceptable.
To her knowledge, the Privy Council stated that "you know the best at home what kind of laws you need to protect your national security". It was therefore important for the Bills Committee to consider whether the provisions were necessary.
The words "known character as proved" should be removed for avoidance of doubt, as they might cause substantial damage if abused. Moreover, the Administration was of the view that these words did not appear to change significantly the ordinary rules as to proof by the prosecution.
Clauses 3(4) (a) and (b) contained deeming provisions. These, together with clauses 3(2) and 3(3), would result in a low threshold over which the Crown had to pass to put the evidential burden on the defendant. This was inconsistent with the principles of law that had been followed and therefore unacceptable.

SASG responded that the threshold was reasonable and there was no shifting of burden of proof. He stressed that an evidential burden was different from a legal burden as the former could be easily displaced. This significant difference would be taken into account by the court. He cited the Canadian case in paragraph 10 of the Administrations paper as an example and said that the court would read and apply the evidential presumptions in clause 3(4) in a sensible and narrow way. In response to a member, he stated that it would ultimately be the court which decided whether the provisions could be applied.

Meaning of "purpose prejudicial to the safety or interests of the UK or Hong Kong"

A member remarked that the meaning of "purpose prejudicial to the safety or interests of the UK or Hong Kong" in clause 3(3) was too broad. It should therefore be more clearly defined. She questioned the kind of evidence required for proof of such a prejudicial purpose. In the absence of concrete information, she was not in a position to support the Bill. SASG responded that some witnesses or concrete evidence was required for proof of a prejudicial purpose.

Another member commented that as the purpose of the Bill was to protect the community from spying, it was necessary for the Administration to draft the provisions in the widest possible terms. Nevertheless, the actual application of the provisions in clause 3 would have to be built within the framework of a prejudicial purpose. He added that it would be difficult to draw up an exhaustive list of circumstances covered by the words "purpose prejudicial to the safety or interests of the UK or Hong Kong".

A member stated that little guidance could be drawn from the very few precedent cases relating to official secrets. It would be unjustified if the Bill was drafted too broadly, as it would be very inhibitive.

Noting that the only precedent case relating to the interpretation of the words "purpose prejudicial to the safety or interests of the state" was that of "Chandler and others v DPP" (the Chandler case), members agreed to study the Chandler case at the next meeting. The LegCo Legal Service Division and the Administration would jointly identify the Chandler case in full and the head-notes of other cases listed in the Annex of the Administrations paper for circulation to members. In response to a member, SASG confirmed that the judicial decision on the Chandler case had not been affected by the introduction of the 1989 Act, as the latter involved amendments to provisions not relevant to the case.

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Admin

"Approach" Vs "in the neighbourhood"

In response to a member, SASG stated that "approach" and "in the neighbourhood" were inextricably linked and the latter referred to a more passive activity than the former. They had to be read sensibly and in the context of the purpose. "In the neighbourhood" meant being next to or very near to a prohibited place with a prejudicial purpose.

A member commented that clause 3(1) could possibly be abused, as protesting near a prohibited place would amount to "being in the neighbourhood of a prohibited place". He added that the objectives of the Bill would still be met with the removal of clause 3(1)(a). Alternatively, clause 3 should be drafted in such a way that an offence would only be committed under a combination of clauses 3(1)(a) and either 3(1)(b) or 3(1)(c).

SASG responded that with the deletion of clause 3(1)(a), the Bill would be considerably narrowed. It would not protect the physical integrity of a prohibited place, as a person could enter a prohibited place and see or hear a lot of things without making sketches, records or doing anything stated in clauses 3(1)(b) or 3(1)(c). A member remarked that whether an offence was committed depended not only on whether a person was in the neighbourhood of a prohibited place but also on the circumstances under which a person was found. For example, if a person on a high building had a telescope pointing at a sensitive installation located at a distance, it might be considered prejudicial even though he might not have committed an offence under clause 3(1)(a).

Freedom of expression

In response to a member, SASG stated that the issue of compatibility of the Bill with Article 19 of the International Covenant on Civil and Political Rights was addressed in paragraphs 12 to 14 of the Administrations paper. The issue could only be addressed in broad terms, as the principles were always broadly stated. At the members request, he agreed to provide information on the jurisprudence of the United States in this area.

Admin

Members agreed that the case of "The Observer and the Guardian v UK", which was related to violation of freedom of expression, should also be considered at the next meeting.

II. Submissions from deputations

(Paper No. CB(2) 1358/96-97(03))

The Chairman informed members that as agreed at the last meeting, the following organizations had been invited to give views on the Bill -

Among these, so far only HKJA had submitted written views. Members agreed that the deputations should be given an extended deadline to submit their written views and a meeting should be held with these deputations and the Administration to discuss the points raised in the submissions. Members also agreed that HKJA should be invited to give its views on the Chinese version of the Bill. The LegCo Legal Service Division was requested to raise any questions identified in the Chinese version of the Bill with the Administration.

Clerk
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III. Any other business

Election of Deputy Chairman

Members considered that there was a need to elect a Deputy Chairman. Miss Margaret NG was elected as Deputy Chairman of the Bills Committee.

IV. Dates of subsequent meetings

Members agreed to schedule the following meetings -

Date	Time	Purpose

10 March 1997	2:30 pm - 4:30 pm	Meeting with the Administration to study the cases

24 March 1997	2:30 pm - 4:30 pm	Meeting with deputations

8 April 1997	10:30 am - 12:30 pm	Meeting with the Administration

15 April 1997	2:30 pm - 6:30 pm	Meeting with the Administration

(Post-meeting note : The meeting on 15 April 1997 was subsequently re-scheduled to 14 April 1997 at 2:30 pm to give way to a meeting of the Select Committee to Inquire into the Circumstances Surrounding the Departure of Mr LEUNG Ming-yin from the Government and Related Issues.)

The meeting ended at 4:05 pm.

LegCo Secretariat
22 March 1997

Last Updated on 16 October 1997

Bills Committee on Official Secrets Bill

Minutes of the 3rd Meeting held on Tuesday, 4 March 1997 at 2:30 pm in Conference Room A of the Legislative Council Building

I. Meeting with the Administration