LegCo Paper No.CB(2)1203/96-97
(These minutes have been seen
by the Administration)
Ref : CB2/BC/6/96

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

held on Wednesday, 8 January 1997 at 8:30 am
in Conference Room A of the Legislative Council Building

Members Present :

    Hon Albert HO (Chairman)
    Hon CHEUNG Man-kwong
    Hon Emily LAU Wai-hing
    Hon James TO Kun-sun
    Hon Andrew CHENG Kar-foo
    Hon Bruce LIU Sing-lee
    Hon Margaret NG

Members Absent :

    Hon Frederick FUNG Kin-kee}
    Hon Christine LOH Kung-wai}other
    Hon TSANG Kin-shing }commitments
    Hon Mrs Elizabeth WONG, CBE, ISO, JP }

Public Officers Attending :

Mr Andrew KLUTH
Principal Assistant Secretary for Security

Senior Assistant Solicitor General

Mr Jeffrey GUNTER
Senior Crown Counsel

Clerk in Attendance :

Mrs Betty LEUNG
Chief Assistant Secretary (2) 3

Staff in Attendance :
Mr Jimmy MA
Legal Adviser

Miss Flora TAI
Senior Assistant Secretary (2) 3

I. Confirmation of minutes of the last meeting

The draft minutes of the first meeting held on 18 December 1996 had been issued vide LegCo Paper No. CB(2) 839/96-97 on 6 January 1997. No amendment had been received and the minutes were taken as confirmed.

2.Members noted that the Secretariat had placed advertisements on South China Morning Post and Ming Pao respectively to invite public views on the Bill on 23 December 1996. The Secretariat had yet to receive any public views on the Bill.

II. Meeting with the Administration

3. At the invitation of the Chairman, Mr Andrew KLUTH briefed members on the general background for introducing the Bill, as set out in the LegCo Brief (File Ref : SBCR 3/1162/94). Members also noted the paper provided by the Administration, as requested at the last meeting, on statutory provisions found in the laws of Australia, Canada, New Zealand and India in respect of treason, secession, sedition and subversion (issued under cover of LegCo Paper No. CB(2) 855/96-97 on 6 January 1997). The Chairman suggested and members agreed to discuss the general principles of the Bill first and examine relevant provisions relating to each offence later. The Chairman then invited questions from members and asked the Administration to respond accordingly. The gist of the ensuing discussion is summarized in the following paragraphs.

The English and Chinese texts of Article 23 of the Basic Law

4. With reference to the Chinese text of Article 23 of the Basic Law (BL 23) Mr Bruce LIU queried whether authorities other than the Hong Kong Special Administrative Region (HKSAR) were legally placed to enact laws to prevent treason, secession, sedition and subversion. He referred members to the legal opinion given by the Legal Sub-group of the Preliminary Working Committee which was that BL 23 clearly provided that the enactment of such laws should be made by the HKSAR itself and it would be infringing the legislative power of the HKSAR for the Hong Kong Government to introduce the Bill into LegCo. Other members present felt that the Hong Kong Government had a legislative power to enact such laws for its own administration of Hong Kong before 1 July 1997. Mr KLUTH reiterated that the action of the Hong Kong Government would not preclude the future HKSAR from making laws covering BL 23 concepts after 1 July 1997. He stressed that the proposed legislation reflected the views of the community, as expressed through the LegCo. Mr Ian DEANE supplemented that: (a) BL 23 was about the legislative competence of the HKSAR, and not that of the LegCo; (b) if BL 23 was interpreted in such a way that only the HKSAR had the legislative competence to enact laws in this area, all the provisions relating to treason and sedition in the Crimes Ordinance (Cap. 200) had to be enacted again by the HKSAR; and (c) introduction by the Hong Kong Government of the Official Secrets Bill, which dealt with theft of state secrets, had not been challenged, notwithstanding the fact that it was covered by BL 23. However, Mr LIU pointed out that the Official Secrets Bill was strict adaptation, but which was not the same as this Bill which proposed to create two new offences of secession and subversion.

5. Other members present were of the view that LegCo as a representative legislature should have the legislative power to enact laws in this area. Mr James TO further reminded members that the purpose of the relevant provisions of the Crimes Ordinance was to protect the Government of the United Kingdom. There should not be any doubt on the legal competency of the Hong Kong Government. There should be no possible contravention of the Basic Law too. In this connection, Mr Bruce LIU asked and Legal Adviser pointed out that the Chinese text of paragraph 9 in the LegCo Brief (which was different from the Chinese text of BL 23) did not seem to be the correct translation of the English text of "The HKSAR shall enact laws on its own". The Chinese text in the LegCo Brief seemed to give a discretion to the HKSAR. The Chairman suggested and members agreed to discuss the issue at a future meeting if necessary.

Legislative intent of the Bill

6. Miss Margaret NG asked and Mr KLUTH confirmed that it was the legislative intent of the Bill that expression of views would not constitute an offence. It would be necessary to prove both elements of unlawful act and intention beyond reasonable doubt in any prosecution. Messrs CHEUNG Man-kwong and Andrew CHENG queried why phrases such as "with the intention of causing violence", "to incite people to resort to force" and "to attempt by force" were added to the definitions of the offences of treason, secession, sedition and subversion, despite the basic principle of the Bill that mere expression of views and ways of thought could not constitute an offence. They expressed concern that freedoms of expression and peaceful demonstration might be unduly restricted. Mr CHEUNG further asked the difference between the provisions of the Bill and the provisions of relevant law in China is respect of the offence of subversion.
Mr DEANE responded that the provisions of the Bill were tightly drafted and no attempt had been made to compare them with relevant laws in China. He explained that these phrases were not uncommon in the definitions of most comparable offences in overseas legislation. Mr CHEUNG said that offences of subversion and secession which involved overthrowing a government and supplanting a lawful authority of a government should include either use of violence or intended use of violence as a necessary ingredient. Mr DEANE stressed that it would be of no offence for merely having the intention, and the offence must consist of elements of intention to commit the act proven by evidence, coupled with the act itself. The principle was in line with an English case law of 1990 on the element of intention in sedition and a recommendation of the 1984 Report of the Royal Commission on Australia’s Security and Intelligence Agencies. He would provide the details of these two sources to members.

7. The Chairman referred to proposed section 3(1) of the Bill and queried whether intention could be one element of the serious offence of treason. He said that intention would be very difficult to prove, and an overt act could be unrelated to that intention. He also observed that the terms ‘act", "overt act" and "unlawful act" were used in different provisions of the Crimes Ordinance. The Administration agreed to explain why different terms were used and the differences of these terms to members a later meeting. He further asked and the Administration undertook to provide: (a) other leading legal authorities and materials which stated that there must be both elements of intention and act before an offence was committed; (b) case laws to show that the element of violence was not required for the offence of an act with a seditious intention; and (c) relevant case laws on various terminologies used in the Bill. Adm


Chinese version of the provisions

8. Miss Margaret NG said that the Chinese version of the provisions (proposed section 5A was quoted as an example) might not reflect the legislative intent of the Bill. Miss NG further pointed out that the Chinese text of section 10 (which was different from the English text) seemed to suggest that intention could constitute an offence. She therefore suggested and the Administration agreed to compare the English and Chinese texts of the Bill, and those of the Ordinance as amended by the Bill, with a view to removing all ambiguities and grey areas in the Chinese text. In this regard, the Chairman asked and Legal Adviser agreed to advise in this respect. Adm


Possibility of improving existing sections 9 and 10 of the Crimes Ordinance (Cap. 200)

9. Miss Margaret NG asked whether the Administration would consider possible amendments to other provisions of the Crimes Ordinance (e.g. section 9 relating to seditious intention and section 10 relating to offences) which were not included in the Bill. Miss NG and Mr CHEUNG Man-kwong took the view that an overall review of the Crimes Ordinance would be more appropriate, having regard to the societal development, the provisions of the International Covenant on Civil and Political Rights (ICCPR) and the need to improve existing laws. Mr KLUTH responded that the Administration had already considered these three factors before introducing the Bill into LegCo. He said that the Administration had no intention to propose further revisions to section 9 and section 10 (other than those proposed in the Bill) because (a) the law was familiar in Hong Kong; (b) the aim of the present legislative exercise was only to make basic amendments with a view to bringing the law into line with BL 23; and (c) existing provisions of section 9 were considered compatible with other provisions of the Bill. However, Miss NG expressed concern that these two sections seemed to imply that it would be an offence for a person even if he performed a lawful act so long as he had a seditious intention. Mr James TO also asked whether section 10 would restrict legitimate trade union activities. Mr DEANE reiterated that the additional element of "with the intention of causing violence or creating public disorder or a public disturbance" proposed in the Bill had the effect of tightening up the provisions. He particularly drew members’ attention to section 9(2) of the Crimes Ordinance which sets out how an act, speech or publication would not be classified as seditious. However, Mr TO maintained that section 9(2) failed to address his concern because sections 9(2)(b) and (c) might not cover trade union activities of public utilities.

10. The Administration undertook to consider members’ views expressed at the meeting. Miss NG also suggested and the Administration agreed to provide information for future discussion on how section 9 had been applied and whether there were cases on it and whether there was similar legislation in the United Kingdom and if yes, whether it had been used. The Chairman also suggested Miss NG to propose improvements to the Crimes Ordinance for the Bills Committee to consider at a future meeting. Adm


Miss Margaret NG

Introduction of the offences of subversion and secession

11. With reference to the proposed addition "with the intention of causing violence or creating public disorder or a public disturbance" to proposed section 10 of the Bill, Mr Bruce LIU asked whether the thresholds for the two new offences of subversion and secession were the same as those for the existing offences of treason and sedition. Mr DEANE responded that the proposed additional element for the offence of sedition was to bring it into line with the common law and the position in other common law jurisdictions. It would have the efect of limiting the existing offence. Mr LIU therefore suggested the Administration to provide common law jurisdictions’ legislation which the Administration had referred to or based on in drawing up the Bill and relevant case laws for members’ consideration. Adm

12. Mr Bruce LIU asked and Mr DEANE confirmed that the offence of subversion involved the use or intended use of violence whereas the offence of sedition did not require the element of actual violence. Mr DEANE explained that the offence of sedition was less serious than the other three offences and this was reflected in the penalty. In this connection, the Chairman and Mr LIU asked the Administration to provide case law(s) in which element of violence was not required for the offences of treason and sedition in other common law jurisdictions. Adm

13. Mr Andrew CHENG asked and the Administration agreed to explain the terms used in proposed new section 5 and proposed section 5A of the Bill, such as the terms "supplant by force" and "overthrowing by force". The Administration was also asked to provide justifications for introducing the two offences of subversion and secession and how they were consistent with the ICCPR. Adm


Consistency of the Bill with the International Covenant on Civil and Political Rights

14. Mr KLUTH reiterated that the proposals in the Bill were consistent with ICCPR. Mr DEANE supplemented that "treason" and "sedition" were familiar concepts in common law jurisdictions. Although offences of "secession" or ‘subversion" did not exist in identical form in these common law jurisdictions, their elements were covered by their laws. The Administration was therefore confident that these offences were compatible with the ICCPR having regard to their precise definitions and the principle of not criminalizing advocacy of ideas and criticism of the government. Ms Emily LAU and Miss Margaret NG therefore asked and the Administration undertook to provide information on the basis (including relevant case laws and research papers) to conclude that the provisions of the Ordinance and the Bill (particularly section 9 and section 10 as amended) were consistent with the provisions of the ICCPR. In this connection, Legal Adviser drew members’ attention to Article XXVI(6) of the Royal Instructions which prescribed that the Governor should not assent to any Bill, the provisions of which appeared inconsistent with obligations imposed by Treaty. He therefore suggested the Administration to consider whether the provisions of the Bill appeared consistent with the obligations imposed upon the territory by Treaty. Adm


III. Dates of future meetings

15. The Chairman reminded members that the next meeting would be held on Saturday, 18 January 1997 at 9:00 am to meet with deputations. The Administration would also attend the meeting. Members also agreed to continue discussion with the Administration on Tuesday, 21 January 1997 at 2:30 pm.

16. There being no other business, the meeting ended at 10:35 am.

LegCo Secretariat

4 February 1997