LegCo Paper No. CB(2)2748/96-97
(These minutes have been seen
by the Administration)
Ref : CB2/BC/6/96

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

held on Tuesday, 1 April 1997 at 10:30 am
in Conference Room B of the LegCo Building

Members Present :

    Hon Albert HO Chun-yan (Chairman)
    Hon CHEUNG Man-kwong
    Hon Frederick FUNG Kin-kee
    Hon Christine LOH Kung-wai
    Hon Bruce LIU Sing-lee
    Hon Margaret NG
    Hon TSANG Kin-shing

Members Absent :

    Hon Emily LAU Wai-hing
    Hon James TO Kun-sun
    Hon Andrew CHENG Kar-foo
    Hon Mrs Elizabeth WONG, CBE, ISO, JP

Attendance by invitation:

Hong Kong Journalists Association
Mr Kevin LAU
Vice-chairman
Mr LO Wing-hung
Convenor, Press Freedom Sub-committee

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 Attendance :

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


I.Meeting with the Hong Kong Journalists Association (HKJA)

The Chairman welcomed the representatives from HKJA to attend the meeting and invited them to express their views on the Crimes (Amendments) (No.2) Bill 1996 (the Bill). Members then raised several points for discussion with them. The gists of their views and the discussion are summarised in the ensuing paragraphs.

2. Mr LO Wing-hung briefed the meeting on the HKJA’s submission (issued to members vide LegCo Paper No. CB(2) 1632/96-97 (03)). In gist, HKJA was of the view that:

  1. Article 23 of the Basic Law (Article 23) should be amended to excise the concepts of subversion and secession, in particular that the concepts of subversion and secession were unknown to the common law and would pose serious threats to the freedom of expression;

  2. if the requirements of Article 23 were to be fulfilled, i.e. to legislate on, inter alia, the offences of subversion, secession, treason and sedition, the Administration’s proposal to add the use of violence as an ingredient of the offences was acceptable, though not sufficient;

  3. all national security legislation must be consistent with the highest standards of international jurisprudence, and the Johannesburg Principles on National Security, Freedom of Expression and Access to Information provided clear guidelines on how national security legislation should be made consistent with the right to freedom of speech. In accordance with the Johannesburg Principles, expression might be punished as a threat to national security only if the government could demonstrate that:

    1. the expression was intended to incite imminent violence;

    2. the expression was very likely to incite such violence; and

    3. there was direct and immediate connection between the expression and the likelihood or occurrence of such violence;

  4. although the Bill had improved on the existing Crimes Ordinance (Cap.200) (the Ordinance), notably on the provision relating to sedition, the proposed inclusion of the offences of subversion and secession would menace the freedom of expression. For instance, any person who wrote an editorial commenting on the independence of Tibet and Taiwan might be liable for prosecution under the proposed section of secession; and

  5. since it was difficult for journalists to differentiate between "report" and "comment", it was necessary to build in legislative safeguards to ensure that any person who commented on politics would not be prosecuted in the name of upholding the national security in order to ease the worry of the press.

3. In reply to Ms Margaret NG, Mr LO and Mr Kevin LAU explained that the prime advocacy of HKJA was to amend Article 23 to excise the offences of subversion and secession. Yet, if the offences of subversion and secession were to be added to the statute book, no matter before or after the transfer of sovereignty, the ambit of the offences should be narrowed down, by reference to the benchmarks listed in paragraph 2(c)(i)-(iii) above, in order to minimise their menace to the freedom of expression. In further reply to Ms Margaret NG, Mr Kevin LAU said that the Administration’s proposal failed to protect the freedom of press and expression. As to how the requisite safeguards could be built into the legislation, it was for the Administration and the Legislative Council (LegCo) to consider, and HKJA was of the opinion that the Johannesburg principles could provide and useful practical reference. In this connection, the Chairman asked and Mr Ian DEANE pointed out that the Johannesburg Principles, which were similar to the principles adopted by the Supreme Court of the United States in deciding when statute could criminalise a speech, were not applicable to all the offences in Part I and II of the Ordinance since not all of them involved mere speech, such as the offence of treason. Those principles appeared to be more applicable to the offence of sedition where the requisite criminal intention, namely the seditious intention, could be inferred solely from a speech.

4. Mr Kevin LAU pointed out that the element of incitement in the existing provision on sedition and the proposed provisions on subversion and secession was not clearly defined to the extent that it was dubious as to whether anyone, who expressed opinions in a public gathering or press and whose opinions were considered to be inciting, would be liable for prosecution. If so, those provisions would be in contravention of the International Covenant on Civil and Political Rights because they criminalised speech and writing. Moreover, HKJA was concerned that anyone who chanted the slogan "Down with a certain government official" might be interpreted as inciting others to overthrow the government. Mr LAU then raised for members’ consideration: (a) whether anyone, whose speech was considered to be inciting, would be liable for prosecution, even though the possibility for inducing violence was remote and far from genuine; and (b) whether it was necessary to have an objective consequence arising from the act of incitement in order to constitute the primary offence.

5. In response to HKJA’s concerns, Ms Margaret NG pointed out that the benmarks listed in paragraph 2(c)(i)-(iii) were basic legal principles in the common law. When anyone was accused of inciting others to commit an illegal act by force, there must be a direct correlation between the act of incitement and the illegal act itself. The court would not rule that a person was guilty if there was only a remote connection between the expression and the act. Concerning the definition of incitement, she said that no jurisdiction had ever come up with a satisfactory and reasonable definition. Incitement was a common law concept and the threshold of incitement was very low in the common law; anything that tended to encourage others could amount to incitement. Though incitement itself was not an offence, anyone who incited others to commit a crime would be liable for prosecution. Hence, she opined that in the absence of a satisfactory definition of incitement, it was important to define the primary offences clearly. The Chairman shared Ms Margaret NG’s view.

6. In response, however, Mr Andrew KLUTH said that it would be counter-productive to produce definition of any word of the Bill because the ambit of the definition would become too wide to include all those acts which could be construed as offensive under the legislation. Moreover, the legislation was dealing with situations which did not often happen and which could happen in many different forms, and hence the difficulty for categorization. He reiterated that the Administration did not intend to introduce any legislation, which would change or remove the present freedom enjoyed in Hong Kong, whereby any person could express opinion on the government or any institution within the authority framework. He stressed that the interpretation of the legislation would be subject to the court, and in adjudicating a case, the court would take into consideration the actual scale of the act, the possible consequences in terms of violence against the authority and also the relationship between them. Any act that would be prosecuted under this legislation would have to involve a clear intention. An aimless act, though in itself sparking off reaction, would not be regarded as an offence under this legislation, unless there was a demonstrable intention to do so.

7. Mr Kevin LAU then quoted for illustration that a former Crown Counsel of the Legal Department was prosecuted for inciting an undercover policeman to procure for him unlawful sexual services. The former Crown Counsel was later convicted of incitement because he had believed that the one he talked to could provide the unlawful services, though in actuality, no unlawful act could have occurred. Mr LAU was concerned that irrespective of the result as to whether there would be any offence committed, anyone, who merely had the intention of incitement, made inciting speech and believed that such speech would result in commission of an illegal act, would be liable to prosecution. To an extreme, anyone who attempted to incite others to overthrow the Government of the United Kingdom in the Victoria Park might be prosecuted for treason under section 2 of the Ordinance, even though his speech was never taken heed to. In response, Mr Andrew KLUTH said that because of the minute scale of the act and the unlikely consequence of overturning the government, it was extremely difficult for anybody to reasonably prosecute a person under those circumstances. He reiterated that in deciding whether an offence had been committed, the court would evaluate the actual act or speech, the intention and the possible consequences.

8. Ms Margaret NG disagreed with Mr Andrew KLUTH by pointing out that the court had to judge according to the law. Incitement could be just a sentence and was so broad to the extent that a person could be charged for inciting someone even if no crime had been committed. She opined that the sole protection against charging someone for incitement for something ridiculous lied in the hands of the prosecution, and it was not a matter for the court.

9. The Chairman and Mr CHEUNG Man-kwong shared HKJA’s view that since speech or writing was prone to be criminalised under the existing and proposed legislation, the Johannesburg Principles, which provided similar protection as the "clear and imminent danger" test, could provide the necessary legislative safeguards for protection of the freedom of expression. They then requested and the Administration agreed to consider the feasibility and impacts of incorporating the Johannesburg Principles, the "clear and imminent danger" test and exclusion provisions in the Bill, as well as deleting the element of incitement from the relevant offences.

Admin

II.Members’ discussion/ meeting with the Administration

Members’ stance and proposals on the Bill

10. Members noted the submission from the Frontier which was tabled at the meeting and subsequently issued to members, together with the submissions from Hon Margaret NG and the Democratic Party vide LegCo Paper CB(2) 1837/96-97.

11. Ms Margaret NG briefed the meeting on her paper (which was tabled at the meeting), which set out her stance and proposals on the Bill. They are summarised as follows:

  1. the provisions on treason and treasonable offences should not be reformed because of the constraint of time, resources and nature of the Bills Committee. Although members might formulate principles for future review, the Administration’s proposals on the two provisions should, in general, be adopted for the time being. However, she did not agree, in particular, to the Administration’s following proposed amendments:

    1. proposed section 2(1)(c)(i) -- its effect was uncertain;

    2. section 2(1)(c)(ii) -- the meaning of the substitution, i.e. "the Government of the United Kingdom to change its policies or actions", was unclear, and the phrase "policies or actions" suggested a wide range of things and hence its implication; and

    3. section 3(1)(b) -- the meaning of the substitution, i.e. "the Government of the United Kingdom or of such territory to change its policies or actions" was unclear. If the meaning of "measures or counsels" was the same as "policies or actions", it was preferable that the section remained intact;

  2. the proposed provisions on subversion and secession should not be included in the statute on the grounds that:

    1. no case had been made out for the immediate need to add such offences in the statute;

    2. Article 23 on its own did not have the effect of creating those offences; and

    3. full and searching discussion in the Bills Committee had failed to reveal any formulation of those offences which did not endanger the rights and freedoms of Hong Kong people;

  3. section 9(1) and (2) should be re-written with the common law definition, in which "seditious intention" meant an intention to promote hostility and ill-will and enmity between different classes of the population of Hong Kong, and to incite violence against the "constituted" authority thereby;

  4. the offences as contained in section 10 should be narrowed down by adding the requirement of "with the intention of causing violence", and by providing such acts and words referred to in section 10(1)(a) to (d) "have a tendency to provoke disorder and violence".

In reply to the Chairman, Ms Margaret NG indicated that since the reform of the provision on treason would require a broad and in-depth revision, it should be left to a future exercise. She would only support those adaptation amendments which were within the minimalist approach and clearly within the ambit of the present law. Miss Christine LOH sided with Ms Margaret NG as not to create the offences of subversion and secession.

12. Mr Bruce LIU said that the Hong Kong Association for Democracy and People’s Livelihood (HKADPL) also did not support the inclusion of the offences of subversion and secession in the statute book. However, under the notion of "one country, two systems", it was necessary to retain the offences of treason and sedition in the law and amendments should be made to ensure that they would not criminalise speech or writing. HKADPL maintained that it should be for the first legislature of the Hong Kong Special Administrative Region (HKSAR) to legislate or amend the existing legislation in accordance with the requirements of Article 23. Since the searching discussion of the Bills Committee might provide useful reference and directions for future legislative amendments, the deliberations of the Bills Committee should be compiled in a report for future reference.

13. The Chairman briefed members on the Democratic Party’s submission (which was tabled at the meeting), setting out the Democratic Party’s stance and proposals on the Bill as follows:

  1. apart from the Administration’s proposal, the whole Ordinance should be reviewed to ensure, in particular, that the existing provisions on treason and sedition would be in line with the developments of a modern democratic society and the requirements of the international covenants on human rights, and that speech or writing would not be criminalised;

  2. though the titles of the offences were secondary, the offences themselves must be defined in a clear and specific manner, and in a narrow sense. Incorporation of the Johannesburg Principles and the "clear and imminent danger" test should be considered so as to provide the necessary legislative safeguards;

  3. the following elements must be present in order to constitute the treasonable offences:

    1. the use of, including abetting, conspiring or attempting to use, organised armed force or collusion with foreign enemy;

    2. acting against the legally established government of the state; and

    3. attempting to levy war in order to overthrow the government by force or terminate its legitimate and effective administration of the state as a whole or in part of the territory;

  4. concerning the offence of sedition, the criminal acts must include:

    1. the incitement to anyone to use illegal force against the government and government officials;

    2. the imposition of immediate and direct danger by such seditious speeches and acts on national security and peace; and

    3. the accused must have seditious intention;

  5. exclusion provisions, which exempted the following cases from prosecution, must be provided in the legislation to ensure that the legislation on national security would not be abused by the government in suppressing dissidents:

    1. the person concerned was just expressing his political views in a faithful manner without any intention of getting involved in or advocating any particular act of treason;

    2. the person concerned was just exercising his civil rights of peaceful assembly, freedom of association and to take part in procession without any intention of advocating or getting involved in any act of violence, so as to jeopardise national security and peace; and

    3. it was unlikely that the acts and words of the person concerned would constitute any immediate and genuine threat to national security; and

  6. the following provisions in the Ordinance should be repealed:

    1. treason acts against Her Majesty;

    2. treasonable offences (which were directed against an intention or acts like making speeches in the public and etc, and the acts of which might be far from adequate in effecting any rebellion against the government, or even had no actual and close relationship with treason); and

    3. other offences which only directed against criminal intention, and certain legal or illegal overt acts which might be impossible of jeopardising national security, such as attempt, prepare or conspire with anyone to commit acts with seditious intention.

14. In reply to Ms Margaret NG and Miss Christine LOH, the Chairman and Mr CHEUNG Man-kwong said that the Democratic Party was in support of amending Article 23 to exclude the offences of subversion and secession. However, since it was a political reality that the legislature of the future HKSAR would very likely legislate on those two offences, the Democratic Party suggested to continue scrutinising the Administration’s proposal relating to the offences of subversion and secession to see if they could be amended to the satisfaction of members and the public, or at least certain guidelines could be drawn up for future assessment on those legislation to enacted by the HKSAR legislature.

15. The Chairman and Miss Christine LOH then suggested and the meeting agreed that the Legal Adviser would prepare for the Bills Committee’s consideration draft Committee stage amendments along the lines as suggested by members above for the offences of subversion and subsession.

Examination of the Bill and way forward

16. Ms Margaret NG asked and Mr Ian DEANE explained that the police could rely on the Police Force Ordinance (Cap.232) for search power even if section 13, i.e. the provision on search warrant, were to be repealed as suggested by the Administration.

17. The Chairman pointed out that certain provisions of the Bill, such as sections 6 and 7 which related to incitement to mutiny and disaffection respectively, might fall outside the scope of the Bill, and thus might not be subject to the Bills Committee’s scrutiny. Ms Margaret NG then expressed that since the provisions involved the military force and the like only, and that they would not encroach upon the freedom of the public, she would not suggest to amend them.

18. The Chairman then asked and the Legal Adviser said that it was within the Bills Committee’s terms of reference to consider the general principles and the detailed provisions of, as well as relevant amendments to, the Bill. The Bills Committee could also consider other provisions which had direct relevance to the Bill. As to whether the proposed amendments would be considered during the Committee Stage of the LegCo, it was subject to the President’ ruling. In considering the way forward, the Legal Adviser advised that the Bills Committee should take note of the following legal principles:

  1. the legal effects of the statutes were subject to the court’s interpretation on the cases and their application;

  2. precedent cases could affect the court’s interpretation on subsequent cases;

  3. the court would interpret the legislative intent on the basis of the prevailing legislation. From the legal point of view, if the legislation had only been amended to modernise its wordings, without changing its substance nor the legislative intent, the relevant case laws and precedents would still apply. Yet, if there were substantive amendments to the legislation to the extent that the court was satisfied that the legislative intent had changed, the precedents might not apply.

  4. case laws relating to the offences of treason and sedition were available in the United Kingdom and Hong Kong, and it could be applied to interpret the existing provisions on the two offences. For instance, the seditious intention to incite persons to violence in section 9 was defined in the common law. Similarly, the common law also defined that the defendant’s allegiance owed to the Queen was an essential element of the treasonable offence.

The Legal Adviser cautioned that , though it was within the Bills Committee’s terms of reference to adopt a law reform approach in scrutinising the Bill, it was not advisable to do so at the peril mentioned at paragraph 20(c) above.

19. In reply to Ms Margaret NG as to whether the cases passed by the Privy Council prior to the transfer of sovereignty would still be binding on Hong Kong after 30 June 1997, the Legal Adviser said that as enshrined in Article 8 of the Basic Law, the laws previously in force in Hong Kong, inter alia, the common law, shall be maintained. To his understanding, all case laws and precedents, which were applicable before 1 July 1997, shall continue to apply after the transfer of sovereignty. In general, as long as the case law and the common law had become part of the law previously in force in Hong Kong, they should be maintained after 30 June 1997. For instance, the case law relating to the Privy Council’s judgement on an appeal from Hong Kong in 1960’s should, in principle, continue to be applicable to Hong Kong after 30 June 1997. The Administration in general shared the Legal Adviser’s views.

20. The Chairman then raised for consideration as to whether a case, which was binding on Hong Kong before 1 July 1997, would continue to have such legal effect when it was later overturned in the United Kingdom after 1 July 1997. He opined that the issue should be left to the local courts for judgement. He then suggested and the Legal Adviser agreed to provide after the meeting the local cases, as well as the landmark cases in the United Kingdom, in relation to treason and sedition for members’ reference.

LA

III.Date of next meeting

21. The next meeting would be held on Wednesday, 16 April 1997 at 12:30 pm for the clause-by-clause examination of the Bill and the review of the Ordinance.

22. There being no other matter, the meeting ended at 12:40 pm.

LegCo Secretariat
23 June 1997

Last Updated on 15 October 1997