LegCo Paper No. CB(2)2751/96-97
(The minutes have been seen by the
Ref : CB2/BC/6/96

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

held on Tuesday, 6 May 1997 at 4:30 pm
in Conference Room B of the LegCo Building

Members Present :

    Hon Albert HO Chun-yan (Chairman)
    Hon Emily LAU Wai-hing
    Hon Christine LOH Kung-wai
    Hon Andrew CHENG Kar-foo
    Hon Bruce LIU Sing-lee
    Hon Margaret NG

Members Absent :

    Hon CHEUNG Man-kwong
    Hon Frederick FUNG Kin-kee
    Hon James TO Kun-sun
    Hon TSANG Kin-shing
    Hon Mrs Elizabeth WONG, CBE, ISO, JP

Public Officers Attending :

Mr Andrew KLUTH
Principal Assistant Secretary for Security
Senior Assistant Solicitor General

Clerk in Attendance :

Ms Doris CHAN
Chief Assistant Secretary (2)3

Staff in Attendance :

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

I.Continuation of clause by clause examination of the Bill

The Administration’s response

In response to the points raised by members at the last meeting, the Administration provided the following answers:

  1. section 9(1)(e) was not necessary for meeting the requirement of the International Convention of All Forms of Racial Discrimination, and its deletion would not lead to violation of the said international convention;

  2. it was due to historical reasons that there were different levels of punishment for the similar offences in sections 6(a) and 7(1)(a) and (b). Section 6(a) was copied from section 1 of the Incitement to Mutiny Act 1797. It was considered to be a serious offence because it dealt with an offensive act which attempted to seduce a member of the military forces from his duty and allegiance to the state, and hence its maximum penalty was life imprisonment. The provision had not been invoked for many years. As to the provisions 7(1)(a) and (b), they were based on the Incitement to Disaffection Act 1934. They were less serious offences because they involved seduction of any member of the military forces either from his duty or allegiance, and hence their less severe penalties; and

  3. the reason for inclusion of the Government Flying Service in section 7 was also historical. It used to be the Royal Hong Kong Auxiliary Air Force but was later changed to the Government Flying Service, and it was considered appropriate to retain it.

Committee stage amendments to be moved by Hon Emily LAU

2. Ms Emily LAU briefed the meeting on her Committee stage amendments (CSAs), which were tabled at the meeting and subsequently issued to members vide LegCo Paper CB(2) 2202/96-97. She suggested to repeal section 9 because: (a) the offence of sedition was outdated and draconian, and it criminalised expression; (b) the provision on seditious intention could be so broadly interpreted that it was threatening to human rights; and (c) the Public Order Ordinance had already provided adequate regulation on public meetings and processions, and hence the maintenance of public order. Since sections 10 and 11 were consequential to section 9, they were proposed to be repealed as well.

Draft Committee stage amendments prepared by the Legal Adviser

3. The Legal Adviser briefed members on the draft CSAs (issued to members vide LegCo Paper No. CB(2) 2147/96-97), which incorporated the Bills Committee’s decisions made in the previous meetings. In gist, the draft CSAs proposed:

  1. to repeal section 3;
  2. to repeal section 5;
  3. to delete the proposed sections 5 and 5A in relation to the proposed offences of subversion and secession;
  4. to narrow the definition of seditious intention regarding sections 9(1)(b) and (d) in order to reflect the ruling of the House of Lords and the case law, which provided that the seditious intention was not established unless the purpose for exciting Hong Kong residents or raising discontent or disaffection amongst Hong Kong residents was to disturb a constituted authority in Hong Kong;
  5. to provide for the definition of "constituted authority" following a formulation made in the case of R v Chief Metropolitan Magistrate Ex parte Choudhury [1991] 1 QB 429 at 453, which meant a person or body holding public office or discharging some public function of the Government of the United Kingdom or the Government of Hong Kong;
  6. to provide the element of "in good faith" to the defences set out in section 9(2); and
  7. to incorporate Principle 6 of the Johannesburg Principles (the Johannesburg Principles) into section 10.

4. Mr Andrew KLUTH asked and the Legal Adviser explained that there must be evidence to substantiate that the relevant intention amounted to seditious intention before section 10 could be invoked. Mr Ian DEANE added that if an intention was positive and in good faith, and was not intended to cause violence, the fact that it might cause violence did not constitute it as an intention to causing violence.

5. The Chairman then asked and the Legal Adviser advised that the inclusion of the proposed sections 9(3) and (4) provided an additional element to be proved before the offence could be established. However, it was a matter of opinion as to whether the inclusion would make prosecution more difficult. He pointed out that the word "disturb" in proposed section 9(3), though followed the formulation in the House of Lords case, would only be interpreted in the context of the legislation. Without a definition provided for the word "disturbed" in the legislation, it would be for the court to interpret the provision and for it to decide on a case by case basis whether a certain act would fall within the ambit of the provision. In further reply to the Chairman, the Legal Adviser told the meeting that the term "constituted authority" was used in the case laws of other common law jurisdictions as well, such as Canada and Australia, but they did not define what "constituted authority" meant.

6. Mr Ian DEANE told the meeting that the term "constituted authority" appeared in a common law case dealing with sections 9(1)(d) and (e). In sections 9(1)(a), (b) and (c), there were clear targets at which the seditious intention was directed, such as the constitutional organ in section 9(1)(a), the lawfully established matters in section 9(1)(b) and the administration of justice in section 9(1)(c). However, in sections 9(1)(d)and (e), there was no target or purpose stated in the provisions. In this respect and in order to give the provisions some meaning and to narrow the scope of the otherwise broad concepts, the common law specified that the discontent or disaffection raised, or the feelings of ill-will and enmity promoted was for the purpose of disturbing the "constituted authority". Concerning sections 9(1)(f) and (g), they were added to the statute book in the wake of the 1967 disturbances. Since there was no clear target spelt out in the provisions, the seditious intention under the two provisions should also be interpreted as directing at the "constituted authority".

7. Miss Margaret NG opined that a person holding public office should not be equated to the government. A person was liable for prosecution only if he had threatened the social order; any discontented expression towards a person holding public office should not be actionable under the legislation. However, in the proposal, since "constituted authority" referred to, inter alia, a person holding public office of the Government of the United Kingdom or the Government of Hong Kong, anyone who, after the change of sovereignty, demanded LI Peng to step down or chanted a slogan "Down with the Chief Executive" might be charged for disturbing the constituted authority and hence the offence of sedition. She pointed out that since the Public Order Ordinance already covered the intention to provoke public disturbance of a serious kind, and that the offence of sedition was a typical offence used in colonial times to stifle legitimate political debate and freedom of expression, it was unnecessary and unsafe to retain it in the statute book, and hence her support for deleting it. Miss Christine LOH agreed with Miss Margaret NG.

8. The Chairman opined that under the proposal, the chanting of the slogan "Down with LI Peng/the Chief Executive" would not amount to an offence unless the Johannesburg Principles were satisfied.

9. Mr Bruce LIU agreed with Miss Margaret NG that the inclusion of proposed sections 9(3) and (4) might extend the range of the offence and hence offering less protection. Concerning the proposed inclusion of the element "in good faith" to section 9(2), he suggested not to include that element for the benefit of the defendants because a defendant had to prove that his act had been done in good faith before he could obtain the benefit of the exception. In addition, he opined that the incorporation of the Johannesburg Principles in proposed section 10(4A) would improve on the primary Ordinance by providing more legislative safeguards. He then concluded that the Association of Democracy and People’s Livelihood (ADPL) needed to consider again the desirability of deleting the offence of sedition as suggested by Ms Emily LAU.

10. Ms Emily LAU then asked and the Chairman opined that the inclusion of proposed section 9(3) and the incorporation of the Johannesburg Principles in proposed section 10(4A) would make prosecution more difficult and hence better protection of human rights. As to the term "constituted authority", since other common law jurisdictions, which used the same term, also did not define it, it could be left to the court for interpretation. However, Miss Margaret NG cautioned that the other common law jurisdictions might have balance elsewhere in their legislation, which could allow the term to remain undefined. In further reply to Ms Emily LAU, the Chairman told the meeting that the Democratic Party, in general, supported to have legislation guarding national security, and the legislation must be clearly and narrowly defined and in line with the International Covenant on Civil and Political Rights (ICCPR), and must not criminalise speech. In view of the political reality that the future legislature of HKSAR would very likely legislate on the offence of sedition, and that the offence of sedition also existed in other common law jurisdictions, it would be desirable to formulate the base line for the offence of sedition which could comply with ICCPR. Nevertheless, in light of members’ suggestion that the legislative safeguards proposed to be added to the legislation, vis à vis proposed sections 9(3) and (4), did not provide genuine protection, the Democratic Party would consider again Ms Emily LAU’s proposal as to delete the offence.

11. To address the Chairman’s concern that Article 23 of the Basic Law stipulated the requirement to legislate on, inter alia, the offence of sedition, Ms Emily LAU referred to the deputations’ view that Article 23 only imposed the constitutional duty to legislate on the offences as stipulated, but it did not require that such laws had to exist on the day the Hong Kong Special Administrative Region came into being. Moreover, if the Bills Committee were of the view that it was not necessary to retain the offence of sedition in the statute book, there was no need to concede the principle for the sake of satisfying the requirement of Article 23.

12. Miss Margaret NG opined that if it were considered necessary to fulfil the requirements of Article 23 and not to delete the offence of sedition, attention should be drawn to Justice’s view that the offence of sedition had brought with it several centuries of judicial interpretations. If the offence of sedition could not be reformed satisfactorily, it would be better to leave the existing provision intact so that the benefit of those judicial interpretations would still be available.

Consultation of the deputations

13. Ms Emily LAU asked and the Legal Adviser advised that since the Bills Committee had not come to a conclusion as to whether the element of "in good faith" should be included, and that the discussion on the offence of sedition had not been concluded, it would be more desirable for the Bills Committee to formulate a concrete proposal before consulting the deputations. Ms Emily LAU and Mr Andrew CHENG then suggested and the meeting agreed that the Democratic Party and ADPL should first consider whether it was necessary to retain the offence of sedition before the Bills Committee would decide and come up with a workable proposal for consulting the deputations. Moreover, the meeting agreed that all CSAs to be moved by members should be ready for consideration at the next meeting.

14. Ms Emily LAU then asked and the Legal Adviser advised that it was the normal procedure for the President to rule whether or not a CSA was beyond the scope of the Bill.

15. In this connection, Ms Emily LAU and the Chairman asked whether the Administration would consider withdrawing the Bill if members were to move CSAs to the Bill. Mr Andrew KLUTH said that he was not in a position to answer at the present stage since the Administration did not know what the CSAs would be. He stressed that the Administration was of the view that the Bill was presented at members’ request in late 1995 and early 1996. It was for members to consider the merits of the Bill and to decide how they wished to proceed on that basis. The Administration would allow the legislative process to run its course. The Chairman then remarked that it was indeed a very difficult Bill, which involved many concepts, and he appreciated that the Administration would need to consider carefully before reverting to the Bills Committee.

Marked-up copy of the Crimes Ordinance

16. Miss Margaret NG suggested and the meeting agreed that the Legal Adviser would, for members’ easy reference, prepare a marked-up copy of the Ordinance on the basis of the draft CSAs prepared by him.

II.Date of next meeting

17. The next meeting would be held on Tuesday, 13 May 1997.

18. There being no other business, the meeting ended at 6:30 pm.

LegCo Secretariat
23 June 1997

Last Updated on 15 October 1997