LegCo Paper No. CB(2)2305/96-97
(These minutes have been seen by
the Administration)
Ref : CB2/BC/6/96

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

held on Saturday, 22 March 1997 at 9:00 am
in Conference Room A of the LegCo Building

Members Present :

    Hon Albert HO Chun-yan (Chairman)
    Hon Emily LAU Wai-hing
    Hon Christine LOH Kung-wai
    Hon Margaret NG

Members Absent :

    Hon CHEUNG Man-kwong
    Hon Frederick FUNG Kin-kee
    Hon James TO Kun-sun
    Hon Andrew CHENG Kar-foo
    Hon Bruce LIU Sing-lee
    Hon TSANG Kin-shing
    Hon Mrs Elizabeth WONG, CBE, ISO, JP

Public Officers Attending :

Security Branch

Mr Andrew KLUTH
Principal Assistant Secretary for Security

Legal Department
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.Confirmation of minutes of meetings

The minutes of meetings held on 18 January, 21 January and 19 February 1997 were confirmed without amendment.

II.Meeting with the Administration

2. Mr Ian DEANE briefed members on the Administration’s paper (tabled at the meeting and subsequently issued to members vide CB(2) 1632/96-97).

The proposal of the United Kingdom Law Commission

3. Ms Emily LAU and Miss Margaret NG asked and Mr Ian DEANE told the meeting that the United Kingdom Law Commission (the UK Law Commission) was of the view that the common law of treason did not adequately cover conduct which aimed at overthrowing or supplanting by force the constitutional government in peacetime. Moreover, even though the existing criminal law might cover some aspects of such conduct, it was desirable to create a separate offence to deal specifically with it. An Australian Law Reform Committee also made a similar recommendation in 1991, which involved building the existing offence of treachery in the Australian Crimes Act.

4. In further reply to Ms Emily LAU and Miss Margaret NG, Mr Ian DEANE confirmed that no action had been taken to create the offence as suggested by the UK Law Commission, probably because the government of the United Kingdom did not consider it as a priority. As for Australia, although the proposed offence had been formulated by the Law Review Committee, the Australian Government was still considering that recommendation. He remarked that the treason law of most countries was just left intact on the statute book because there was no need to invoke it or agitation to reform it.

5. The Chairman then requested and the Administration undertook to make available a copy of Working Paper No. 72 of the UK Law Commission at the LegCo Secretariat for members’ reference. Adm

The definition of "overthrowing the government"

6. Mr Andrew KLUTH referred to the Hong Kong Bar Association’s submission and pointed out that it was difficult to institute any prosecution if the act of overthrowing the government was achieved. The offence should therefore focus on the attempt, rather than the act, of overthrowing the government. Miss Margaret NG resonanted that it was not the act of overthrowing the government, but rather the commission of an act with an intention to overthrow the government, which would amount to an offence. In this respect, she opined that it was necessary to have clear guidance on the definition of "overthrowing the government"; otherwise, a lot of acts would be prohibited under the pretext to the extent that any person holding a seminar on the history of how other governments had been overthrown might be charged for having an intention to overthrow the government. The Chairman shared Miss Margaret NG’s view that any unlawful act, no matter how trivial, might be liable for prosecution.

7. In response, Mr Ian DEANE pointed out that it would need to be proved beyond reasonable doubt that an accused had an intention to overthrow the government before the charge could be established. In case of a trivial act, the court and the jury would have no difficulty in concluding that the requisite intention was missing. Mr Andrew KLUTH added that evidence had suggested that when the offence was prosecuted in court, the court would take into account the actual scale of the act involved in adjudicating the case. Mr Ian DEANE then indicated that it was difficult to list out a range of qualifiers for the act which, with the requisite intention, would constitute the offence of subversion.

8. Miss Margaret NG asked and Mr Ian DEANE said that except in South African, there was no case law relating to the concept of attempting to overthrow the government available for reference.

Necessity to legislate on the offences of subversion and secession

9. Miss Margaret NG remarked that according to the Administration, since the offence of subversion existed, though not in identical form, in the jurisdiction of Australia under the offence of treachery, such offence might exist in a democratic society, and the individual’s protection against abuse was guaranteed by the following:

  1. that a democratic government would not rely on such offence to prosecute wantonly; and

  2. that the court had the ability in making a right decision when such offence was brought before the court.

She opined that unless the above safeguards were available against the possible abuse of power, and that there was absolute necessity of enacting the law of subversion and secession, she would not support the inclusion of the two offences in the local statute book.

10. Mr Andrew KLUTH reiterated that the Crimes (Amendment) (No. 2) Bill 1996 (the Bill) was introduced in response to the public’s requests, as reflected by the Legislative Council, in late 1995 and early 1996 that the Administration should take early action to amend the Crimes Ordinance (the Ordinance) in the light of the provisions under Article 23 of the Basic Law (Article 23). The Administration had therefore considered that the best way to address the issue and to take the matter forward was to propose the offences in line with the concepts as laid down in Article 23 with a view to providing benchmarks to facilitate the Special Administrative Region (SAR) government/legislature in enacting or adapting law in that area. The Administration did not intend to bring about any degradation in the existing rights and freedom enjoyed in Hong Kong as a result of the introduction of the Bill.

11. Ms Emily LAU said that the motion debate held in 1996 was to urge the Administration to address Article 23 but not to impose a necessity on creating the offences of subversion and secession. In the light of the deputations’ views and after the legislative deliberations, if it was concluded that the offences of subversion and secession should not be created, there was no need to set benchmarks or concede the principle for the sake of satisfying the requirements of Article 23. The Frontier held the view that it was not necessary to legislate on the offences of subversion and secession, nor was it fait accompli that the Ordinance must be amended to fulfil the requirements of Article 23. If it was considered necessary, the Basic Law should also be amended to exclude the offences of subversion and secession.

12. Miss Christine LOH then asked whether the Bill could be drafted to make reference to the relevant provisions of the existing legislation which covered the offensive acts to be included in the proposed provisions on subversion and secession, instead of creating two new offences. Mr Andrew KLUTH explained that the Administration had tried to formulate the provisions on subversion and secession within the context of the existing legislation. Care had been taken to avoid the duplication of existing offences: if an offensive act was covered in another ordinance, the Bill would not encompass the same type of actions/behaviour. Miss Christine LOH then indicated that she could not yet have a definitive view on whether it was necessary to legislate on the two proposed offences.

13. In this connection, Miss Margaret NG suggested that if the Bills Committee decided not to legislate on the offences of subversion and secession, it was not necessary to deliberate on how the proposed provisions could be improved. Yet, the Chairman said that the legislative exercise conducted to study the Bill would be useful to provide for future reference.

The premise of Article 23

14. Mr Ian DEANE pointed out that many other states devoted parts of the criminal code to the crimes against the state, and it was on that basis that the UK Law Commission had recommended the need to create separate offences to cover acts which were directed at the government or the institutions of the government/the state, despite the fact that some of the offences might have been covered by public order or ordinary criminal offences. Similarly, the premise of Article 23 also seemed to be to deal with the activities of treason, subversion, secession and sedition, which activities threatened the security of the government/the state, separately and in a specific manner by legislation of the HKSAR.

15. In reply to Ms Emily LAU, Mr Andrew KLUTH said that the Hong Kong Government had no formal input in drafting the Basic Law and the Administration did not necessarily support the concepts stipulated in Article 23.

Clear and present danger test

16. Upon the Chairman’s invitation, Miss Christine LOH briefed members on her paper (tabled at the meeting and subsequently issued to members vide LegCo Paper No. CB(2) 1632/96-97), which set out her preliminary recommendations for reform of the offences of treason, sedition, subversion and secession. She stressed that the clear and present danger test, which provided statutory safeguard, was applicable to all the offences against the state, and the recommendations aimed at preserving the freedom of political expression on which Hong Kong’s further evolution as a free and democratic society depended.

17. In reply to Miss Christine LOH as to whether the legislature should provide guidance in the legislation to facilitate the court’s interpretation, the Legal Adviser advised that although the legislature could do so in principle, in practice, the legislation might become unworkable as it left no room for judicial involvement. Under the common law system, it would be an exception rather than a rule that guidelines were provided in the legislation. The Legal Adviser further advised the meeting that in strict legal terms, the case law in other jurisdictions did not have any binding effect on Hong Kong. To borrow expressions used in other jurisdictions should only be a starting point. It was for the legislature to satisfy itself as to what was going to be provided in the law that would accurately reflect its intention, and it should not legislate with the hope that when the provisions were examined in court, the court would make reference to case law in other common law jurisdictions. He added that the Hong Kong Bill of Rights Ordinance had specific provision which guided the court to look at jurisprudence from other jurisdictions on the International Covenant on Civil and Political Rights.

18. The Chairman then said that the courts of the United States required the fulfilment of the clear and present danger test to ensure that there must be approximate correlation between the act and the intention. He suggested that the provisions on treason, sedition, subversion and secession could be drafted to provide for evidential proof to the effect that the government must adduce evidence that there was proximate danger or immediate risk of terminating the effective rule of the constitutional government before it could institute any prosecution.

III.Internal discussion

Meeting with the Hong Kong Journalists Association

19. The Chairman told the meeting that the Hong Kong Journalists Association (HKJA) had forwarded to him a submission regarding the Bill. Copies of the submission would be issued to members for information. He then suggested and the meeting agreed that HKJA would be invited to present their views to members at the next meeting.

(Post-meeting note : Copies of HKJA’s submission were issued to members vide LegCo Paper No. CB(2) 1632/96-97.)

Way forward

20. The Chairman suggested and the meeting agreed that members should formulate their stance and provide a paper setting out their views/their party’s views on the following by the next meeting:

  1. whether there should be legislation on the offences against the state, vis a vis the existing provisions on treason and sedition, and the proposed provisions on subversion and secession;
  2. if so, how the legislation, in consideration of the amendments proposed by the Administration, should be drafted to narrow the definition of the respective offences; and
  3. what legislative safeguards were to be included in the Bill.

Moreover, members present agreed that the Bills Committee would commence the clause by clause examination of the Bill at the next meeting, and Committee stage amendments would be considered with a view to, as far as possible, bringing the principal Ordinance into line with the International Covenant on Civil and Political Rights.

21. In addition, Miss Margaret NG suggested and the meeting agreed that the Bills Committee would discuss with the Administration paragraphs 1(b) to (h) of the Explanatory Memorandum of the Bill.

IV.Dates of future meetings

22. The next meeting would be held on 1 April 1997 at 10:30 am to receive HKJA and to continue discussion with the Administration.

23. Another meeting would be held on Wednesday, 16 April 1997 at 12:30 pm to meet the Administration.

24. There being no other business, the meeting ended at 10:30 pm.

LegCo Secretariat
16 May 1997

Last Updated on 15 October 1997