LegCo Paper No. CB(2)1313/96-97
Senior Assistant Solicitor General, Legal Department
Ref : CB2/BC/6/96
Clerk in Attendance :
- Mrs Betty LEUNG
- Chief Assistant Secretary (2)3
Staff in Attendance :
- Mr Jimmy MA
- Legal Adviser
- Miss Erin TSANG
- Senior Assistant Secretary (2)7
I. The Meeting
The Chairman welcomed the deputations who attended the meeting and invited them to express their views on the Crimes (Amendment)(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.
The Hong Kong Bar Associations stance
2.. Mr Philip DYKES briefed members on the Hong Kong Bar Association (the Bar Association)s submission (issued to members vide LegCo Paper No. CB(2)893/96-97) on the Bill, as follows:
- the Bar Association maintained that it was not necessary to provide special protection by legislation for the physical security of the Sovereign or Head of State or to the person in a representative or symbolic capacity by defining any violence or attempt at violence as treason since the existing laws were adequate;
- the Bar Association supported repeal of sections 2(1)(a) and (b), 3(1)(a), 5, 9 and 10 of the Crimes Ordinance, to accord with basic rights recognised in Articles 18, 19, 21, 22 and 25 of the International Covenant on Civil and Political Rights;
- it was legitimate for individuals to criticise the government and to have political debate. The Public Order Ordinance had already provided adequate regulation on public meetings and processions. The only limitation justifiable in the offence of subversion might be that the expression of such ideas should not incite violence; and
- there was no need for the present Administration to draft laws on the offences of subversion and secession; the matter should be left for deliberation of the Hong Kong Special Administrative Regions Administration after 30 June 1997. Existing section 5 of the Ordinance should be repealed and there was no need for proposed sections 5 and 5A relating to the offences of subversion and secession.
3. With reference to the Administrations proposal to add the use of violence as an ingredient of the offences for subversion and secession, Mr Lawrence LOK added that it would create difficulties for prosecution. He quoted some Chinese slogans used in demonstrations, like "Down with a government" , which could be interpreted as having an intention to causing violence. Hence, the proposed clause might implicate more persons than restrict more actions, as intended. Regarding the Administrations proposal to add "with the intention of causing violence or creating public disorder or a public disturbance" to section 10 of the Crimes Ordinance, Mr Bruce LIU asked and Mr Lawrence LOK said that the addition of the phrase "with the intention of causing violence" was sufficient and the rest could be deleted. At the invitation of the Chairman, Dr Nihal JAYAWICKRAMA said he would consider the Administrations proposal as more restrictive since two new intentions, namely the intention to causing public disorder and the intention to causing public disturbance, were to be added to the provision.
The Law Society of Hong Kongs submission
Mr Christopher CHAN informed members that the Law Society of Hong Kong (the Law Society) had considered that the Bill presented no technical problems from the legal point of law. The Law Society might further deliberate the policy aspects of the Bill and if necessary, it would send further submission to the Bills Committee.
4.Mr Christopher CHAN then quoted three incidences for members to consider whether legislation should be or should not be amended in the interest of the public. These incidences were: (a) open declaration in sympathy with an independent Irish Republic Government and whether this would amount to committing the offence of secession, under proposed section 5; (b) the June 4 incident where slogans were used and whether this would constitute adequate seditious intention, under section 9; and (c) processions against the new land rental policy in Hong Kong and whether this would constitute adequate seditious intention, under section 9(1)(g). He considered it the duty of a well-represented legislature to monitor the performance of the government and to enact laws to rectify any governmental misdemeanour.
The Justices submission
5. Dr Nihal JAYAWICKRAMA briefed members on the Justices submission (issued to members vide LegCo Paper No. CB(2)982/96-97). The Justice held that there was no need to propose substantial amendments to the Ordinance at the present stage since it considered that the Ordinance, after adaptation, would be adequate for present day purpose. It would be a futile exercise and a waste of legislative time for the LegCo to consider such amendments. If there were a need to strengthen the law in accordance with the requirements of Article 23 of the Basic Law after the transfer, it would be for the future Special Administrative Region (SAR) legislature to take legislative action. The Chairman then said that the Bills Committee was formed to consider not only the localisation aspect of the Ordinance but also the liberalisation aspect for better protection of human rights. Therefore, apart from the Administrations proposed amendments, the Bills Committee would consider any necessary amendments in order to bring the Ordinance update and consistent with the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (the two International Covenants).
6. Dr Nihal JAYAWICKRAMA pointed out that the proposed amendments might have the effect of criminalising speech and writing. The Justice strongly objected to such legislation. The Justice felt that it was only legitimate for a government to criminalise any attempt to overthrow the government by violence.
Hong Kong Human Rights Monitors submission
7. Mr Paul HARRIS briefed members on Hong Kong Human Rights Monitors submission, tabled during the meeting and subsequently issued to absent members vide LegCo Paper No. CB(2)993/96-97. Hong Kong Human Rights Monitor had divergent views on whether there would have any purpose to propose inclusion of the offences of subversion and secession in the Ordinance. It was however unanimous that the changes to the law on treason and sedition would only be justified if they were to narrow the ambit of the offences. With regard to specific provision, the reference to "Her Majesty" should not be changed to "the Government of the United Kingdom". The phrase "sovereign power" could be used so that further amendment was not necessary in the foreseeable future. The Chairman said that there would be a general adaptation proposal so that all references to Her Majesty and the like could be adapted to straddle 1 July 1997.
9. Mr Paul HARRIS pointed out that the existing legislation contained provisions which were difficult to reconcile with the modern concepts of human rights. Attempts should be made to narrow the ambit of offence of sedition, and to ensure that there were adequate statutory defences to safeguard legitimate political activity and protest. Freedom of speech should not be penalised unless it involved incitement to violence. Seditious intention provisions such as the promotion of enmity and ill-will feelings, in existing section 9(1)(f) of the Ordinance, were considered too vague.
Necessity to enact laws on offences of subversion and secession
10. In reply to Ms Emily LAU, Mr Philip DYKES said that from the legal point of view, the notion of secession was legitimate under the existing legal and constitutional system. If a law relating to secession had to be enacted, it was necessary to define the term with qualifications. The Bar Association maintained that it was neither obligatory nor necessary for HKG to legislate on the offences of subversion and secession. Mr Christopher CHAN shared the view of the Bar Association.
11. To address Ms Emilys query, Mr Philip DYKES pointed out that according to the international human rights law, the enjoyment of individual rights, such as the freedom of expression and the freedom of association, should not be curtailed in order to preserve the physical autonomy of a state except in times of emergency. Mr Andrew CHENG then asked and Dr Nihal JAYAWICKRAMA said that any legislation enacted by the SAR legislature would have to conform to the Basic Law, including its Article 39, which provided that the two International Covenants would remain in force after 30 June 1997 and should be implemented through the laws of the Hong Kong Special Administrative Region. Any breach of the said provisions could become a legal issue to be decided by the court.
12. In reply to Ms Margaret NG, Mr Philip DYKES said that prohibition of a persons conduct must be statute-based. Article 23 of the Basic Law only imposed a constitutional duty on the SAR to enact laws to prohibit acts of treason, secession, sedition and subversion and did not create statutory offences on nor prohibit the acts of secession and subversion. In the absence of any statutory provisions on the offences of secession and subversion, there could not be any such offence. Only when clear statutory provisions were laid down could the act of secession and subversion be prohibited in law. Failure to enact laws in that respect could only amount to the breach of constitutional duty.
Interpretation of Article 23 of the Basic Law
13. Mr Bruce LIU enquired whether Article 23 of the Basic Law should be interpreted as that the SAR Government must legislate on the offences as listed in the said Article or that it was for the SAR Government, not other authorities, to legislate on those offences. Mr Philip DYKES said that pursuant to the English version of the Basic Law, Article 23 should be interpreted as that the future SAR legislature shall, in order to avoid any legal vacuum, enact laws in the respective aspects.
Criminalisation of speech and writing
14. According to the Justice, many of the amendments proposed by the Administration sought to criminalise speech and writing, such as new sections 5 and 5A of the Bill, which were incompatible with the statutory protection of human rights. Members then requested and the deputations agreed that they would provide opinions after the meeting as to whether the criminal provisions in the Bill were in accordance with the standards prescribed by the two International Covenants. The Administration would also be requested to provide justifications on the proposed amendments.
Meaning of the phrase "to compel the Government of the United Kingdom to change its policies or actions"
15. In reply to Ms Margaret NG, Mr Philip DYKES said that the source of the phrase "to compel the United Kingdom to change its policies or actions", which appeared in proposed sections 2(1)(c)(ii) and 3(i)(b) of the Bill, dated back to the fourteenth century. Since LegCo Members prerogative was to question and monitor the governments policies and actions, Ms Margaret NG indicated that the Administration should be requested to explain how such actions could amount to a treasonable offence.
Adaptation of the Ordinance
16. As pointed out by the Bar Association, it was constitutionally wrong and dangerous to equate the Sovereign with the Government of the day. Mr Bruce LIU requested and Mr Lawrence LOK said that the Bar Association would need to deliberate further before reverting back to the Bills Committee on how the reference "Her Majesty" could be adapted if the Sovereign should not be equated with the Government of the day.
17. With regard to the majority of the deputations view that it was not necessary nor appropriate to add the offences of secession and subversion to the Ordinance, Ms Emily LAU suggested and members agreed that the Bills Committee would consider whether it should concentrate in scrutinising the Ordinance as a whole for the purpose that the freedom of press and speech would not be encroached upon. The Administration would be asked to take note of the deputations suggestion and revert to the Bills Committee its response. In addition, the deputations were requested to advise the Bills Committee of their recommendations on how the Ordinance should be amended in accordance with Article 23 of the Basic Law and the two International Covenants.
II. Date of next meeting
18. The next meeting was scheduled for 21 January 1997 at 2:30 pm to meet the Administration.
19. There being no other business, the meeting ended at 12:00 noon.
5 February 1997
Last Updated on 5 May, 1997