LegCo Paper No. CB(2)1757/96-97
(These minutes have been seen by the Administration.)
Ref : CB2/BC/6/96
Public Officer Attending :
- Mr Andrew KLUTH
- Principal Assistant Secretary for Security
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.Meeting with the deputations
The Chairman welcomed Mr Andrew KLUTH to attend the meeting to hear the deputations views on the Crimes (Amendment) (No.2) Bill 1996 (the Bill). He then invited the deputations to express their views on the Bill. Members raised several points for discussion with them. The gist of the deputations views and the discussion are summarised in the ensuing paragraphs.
The Hong Kong Bar Associations submission
2. Mr Philip DYKES briefed the meeting on the Hong Kong Bar Association (the Bar Association)s submission (issued to members vide LegCo Paper No. CB(2) 1309/96-97). In gist, the Bar Association held the following views:
- it was inappropriate to decant English legislation into the situation of Hong Kong, where there would be political and constitutional changes;
- depending upon the political will, the offences of treason, subversion, secession and sedition could be made as instruments for suppression;
- historically speaking, the offence of treason could only be justified in cases of levying war against the sovereign state;
- in considering the application of treason law to Hong Kong, the notion of allegiance was an important ingredient and a list of uncertainties would probably arise, such as (i) whether the treason law applied to everyone in Hong Kong; (ii) to whom people should owe allegiance, and (iii) for Chinese residents and for people who did not have residence in Hong Kong, what kind of allegiance they owed to their own states.
3. Mr Philip DYKES said that the offence of treason as stipulated in the Ordinance could be traced back to the Treason Act 1351, in which the Crown was the embodiment of the State. In Treason Act 1351, the concept of criminal liability involved the breaking of allegiance to the monarch. In Australian legislation, the Government of the State or the Commonwealth became the focus of allegiance. In Canada, the offence of treason was defined as "levying war against the sovereign state or assisting the enemies at war". In reply to Mr Andrew CHENG, Mr Philip DYKES said that the offence of treason was unique, in that it could only subject an attempt to an offence. If the treasonable act was successful and the objective of overthrowing the government was achieved, there would not then be any prosecution in those circumstances.
4. Mr Lawrence LOK pointed out that the proposed amendments regarding treason and treasonable offences equated the Government of the United Kingdom with the Sovereign. It was a gross oversimplification of the constitutional position. He opined that it was inappropriate to propose any changes to the Crimes Ordinance (the Ordinance), without a clear understanding of the constitutional monarchy of the United Kingdom, since it was not a simple transposition exercise. Any person who chanted a slogan "Down with the government", "Down with the Queen" or even discussed about the possibility of abolishing the constitutional monarchy should not be actionable for treason. Dr Nihal JAYAWICKRAMA shared Mr LOKs view and added that the Queen was the symbol of the State, whose position was different from the Head of the Government, such as the Prime Minister.
5. Concerning the offence of sedition, Mr Philip DYKES said that it basically comprised three elements, namely:
- an intention to promote hostility and ill-will between different classes of , in the English context, Her Majestys subjects;
- an intention to incite violence against "constituted" authority thereby; and
- the acts and words used had a tendency to provoke disorder and violence.
The above mentioned elements could provide reasonable markers for legislating on the offence of sedition.
6. Dr Nihal JAYAWICKRAMA said that the existing provisions of the Ordinance, in their unamended but appropriately adapted form, would meet the requirements of Article 23 of the Basic Law (Article 23) relating to the offences of treason, subversion, sedition and secession, and thus no further legislation was required to satisfy Article 23. It was not advisable to try to amend the Ordinance at the present stage and to anticipate the work which had been entrusted to the future legislature of the Special Administrative Region (SAR). It would be for the future SAR government and legislature to deliberate and decide whether the adaptation of the Ordinance was sufficient, and whether the offences of subversion and secession should be created under Article 23.
7. He pointed out that all the four offences brought with them several centuries of judicial interpretations. Any person, who was brought before the court and asked to respond to a charge, should have the benefit of the judicial interpretations of the past centuries. With reference to the offence of sedition, it had been progressively narrowed by judicial interpretations over the years. Yet, if the Legislative Council (LegCo) were to resurrect the archaic law by re-enacting it, which in effect became a new offence, the benefit of those judicial interpretations might not be available to an accused person. He further opined that in view of the development of multi-party representative government and the emergence of the human rights law, the offence of sedition no longer appeared to be appropriate.
Hong Kong Human Rights Monitors submission
8. Hong Kong Human Rights Monitor agreed to the views of the Bar Association and the Justice that there was no justification for legislation introducing the offences of subversion and secession. There was no immediate need for those offences in the society. It was wrong in principle to pass an unnecessary law. Such legislative exercise would likely be futile because it would not bind the future SAR legislature in any respects.
9. Nonetheless, Mr Paul HARRIS said that there were merits in tidying up the existing offences of treason and sedition since those provisions were in breach of the International Covenant on Civil and Political Rights (ICCPR), such as section 3(1) which criminalised the freedom of speech and section 9 which, if applied literally, criminalised lawful political activities. If the Bill of Rights Ordinance (BORO) was going to remain in its present form, those provisions would stand repealed because of their inconsistency with the BORO. Yet, if section 3 of the BORO were to be repealed as suggested by the Preparatory Committee, those provisions would need to be reformed so that they would not infringe the ICCPR.
Necessity to review the Ordinance and to scrutinise the Bill
10. In light of the deputations views that some of the existing provisions were in breach of the ICCPR, the Chairman suggested that the Bills Committee should study every section of the Ordinance to bring it into line with the ICCPR. However, Ms Emily LAU opined that in view of the imminence of the changeover of sovereignty and the fact that the Chinese government might not support the amended version of the Ordinance, the Bills Committee should strike a right balance between the time and resources allocated to scrutinise this Bill and other important bills, such as the proposed bill on habeas corpus. She then asked the deputations opinion on whether it was necessary to review the Ordinance, given that the amended version, if passed in the LegCo, might not straddle 1 July 1997. In response, Dr Nihal JAYAWICKRAMA opined that the LegCo should prioritise the scrutiny and hence the passage of the law on habeas corpus before it focused on this Bill. It was unlikely that the provisions relating to treason, subversion and secession, even after being tidied up, would be invoked before the transfer. He further pointed out that in some jurisdictions, like India, the entire offence of sedition had already been struck down due to its incompatibility with the constitution and the human rights law. It would be counter-productive for the Bills Committee to even tidy up the Ordinance. Mr Paul HARRIS said that although the Hong Kong Human Rights Monitor, in principle, supported the liberalisation and modernisation of the Ordinance, it was for the LegCo to decide whether it could devote time to scrutinise the Bill. The Hong Kong Human Rights Monitor also held the view that the proposed bill on habeas corpus appeared to be more urgent and pressing. The Chairman said that the Bills Committee would decide the matter at a later stage.
Necessity to liberalise the existing provisions on treason and sedition
11. Ms Margaret NG referred to the divergent views between the Hong Kong Human Rights Monitor and the Justice, in that the former supported the liberalisation of the existing provisions to bring them into line with the BORO, whereas the latter considered that it would do more harm than good because once the existing provisions were amended, they would be regarded as new legislation; when the court interpreted them in future, the court would assume that the discrepancy between the amended version and the BORO, if any, had been taken into consideration during the re-enactment process. She then sought the Bar Associations advice on whether the existing provisions on treason and sedition should not be amended in order that the case law could be relied upon for reference after the transfer of sovereignty. Mr Lawrence LOK replied that the Bar Association did not object, in principle, if the LegCo decided to amend the existing provisions, though whatever amendments made to the existing provisions might be repealed or reviewed extensively after the change of sovereignty.
12. Dr Nihal JAYAWICKRAMA opined that section 3(2) of the BORO operated on the Ordinance to the effect that any provision which was inconsistent with the BORO stood repealed. Even if section 3(2) of the BORO were to be repealed after the transfer, the legislative provisions which were repealed by that section would not be revived. Mr Philip DYKES told the meeting that if a new ordinance were enacted after 30 June 1997, the question of repeal by the BORO might not arise because it was a new law effective from that date, though it might just repeat the old law with the appropriate adaptations or modifications.
13. Mr Paul HARRIS expressed that it would be better for the LegCo, if it had time, to narrow the definitions of treason and sedition, than leaving the matter for the court to decide, which would allow the uncertainties to generate for a long time.
The proposed offences of subversion and secession covered by the existing provision of treason
14. Dr Nihal JAYAWICKRAMA said that the law of Sri Lanka had been adapted to the effect that the references to Her Majesty and the Crown were replaced by the reference of the Republic. Any person, who waged war against the Republic of Sri Lanka or attempted to wage such war, shall be punished with death or imprisonment of 20 years. There had been prosecutions in the past 20 years against persons who attempted to overthrow the lawfully established government and the attempt to overthrow the government was considered as equivalent to waging war against the Republic of Sri Lanka. There had also been prosecution against a secessionist movement, in which a group of secessionists had occupied a certain part of the territory and attempted to secede from the country, and the secessionists were charged with the same offence of waging war against the Republic. Henceforth, he pointed out that section 2 of the Ordinance, in its unamended form, contained the elements of treason, and also subversion and secession as proposed in new sections 5 and 5A. However, Mr Paul HARRIS expressed that it was difficult to determine whether or not the proposed offences of subversion and secession fell within the existing definition of treason under section 2. It was a matter of interpretation that the existing law of treason encompassed the offences of subversion and secession.
15. Ms Margaret NG then sought confirmation from Dr Nihal JAYAWICKRAMA as to whether it was viable to add two labels of "subversion" and "secession" to the Ordinance, which in essence did not create new substances to the statute book as suggested by him. Dr Nihal JAYAWICKRAMA remarked that it was not so simple as adding new names. The offences relating to the attempt to overthrow the government or to secede from the state, as proposed in new sections 5 and 5A, were already actionable under section 2 of the Ordinance. If a prosecution for secession was brought against any individual, the accused could rely on many principles of the international law for defence. However, if the LegCo were to create a new offence as secession, the court, in adjudicating the case, would presume that the LegCo, which was conscious of the aforesaid legal position under the domestic and international law, had deliberately chosen to create a new offence. As for the proposed offence of subversion, it was essentially a Chinese offence and there was no such offence in many common law jurisdictions.
16. In this connection, Mr Philip DYKES informed the meeting that in the United Kingdom (UK), the treason law had not been invoked against secessionists, such as the Irish Republican Army (IRA), in the past 20 years. Most IRA prosecutions in the UK over the past two decades concerned conspiracies to murder and offences relating to the possession and use of firearms and explosives. The relevant criminal law had been invoked and used with a high degree of success. He pointed out that the existing local law was adequate to deal with the offences which sought to overthrow the established government by violence and it was not necessary to invoke section 2 of the Ordinance or to introduce new provisions on the offences of subversion and secession.
17. The meeting then took note of Ms Margaret NGs view that unless it was clear that the proposed offences of subversion and secession had already existed in the prevailing legislation and were not new substances, the Bills Committee should not initiate any amendments to the Ordinance or to adopt the amendments proposed by the Administration in that respect.
Combination of "unlawful act" and "intention" in proposed section 5
18. The Chairman opined that the combination of "unlawful act" and "intention" in the proposed section 5(a) might bring more acts, no matter how trivial they were, within the scope of the proposed offence of subversion. He then asked and Mr Philip DYKES said that the drafting of the said provision was based on Treason Acts in the fourteenth and fifteenth centuries when the drafting techniques were old-fashioned. As to why it did not spell out clearly the nature of the unlawful acts to be prohibited under the proposed provision, it should be for the Administration to explain the legal policy behind the legislation.
19. In this connection and in reply to the Chairman, Mr Philip DYKES said that the inclusion of 5(b) to the proposed offence of subversion would extend the range of the offence. Dr Nihal JAYAWICKRAMA added that if there was evidence that there were people collecting arms or training others to use the arms to the effect that their unlawful act could be connected with the intention of overturning the government, they could be actionable under the proposed section 5(c).
The "clear and imminent danger" test
20. Mr CHEUNG Man-kwong was concerned that since the proposed provision on subversion was unnecessarily wide, any person who knocked his head against the door of the New China News Agency might be charged for having an intention to overthrow the Government of the Peoples Republic of China. He asked whether the inclusion of the "clear and imminent danger" test could narrow the definition of that provision. In response, Mr Philip DYKES agreed that the proposed section 5(a) was potentially wide, which might even implicate persons who only provided reluctant mininum support instead of committing the offence himself. Yet, he remarked that the action described by Mr CHEUNG Man-kwong should not be charged for subversion.
21. The Chairman said that the "clear and imminent danger" test was adopted by the Supreme Court of the United States. He wondered whether the "clear and imminent danger" principles should be incorporated into the local statute book to provide clear legislative guidance to the court. Mr Philip DYKES said that it was a matter of legal policy for the Bills Committee to decide.
Prohibition to overthrow the government by violence
22. Ms Margaret NG asked whether it was prohibited under the existing legislation to overthrow the government by violence. Mr Lawrence LOK replied that in general, it would not be an offence under the existing law for any person to overthrow the government by violence. That was what happened in war time and aliens were not charged with treason. If any person pointed a gun at a government official, the accused would be charged with an attempt to murder. If any person called upon people with the connotation to act violently, the accused would be charged under the Public Order Ordinance. The Bar Association was of the view that subject to sections 2 and 3 of the Ordinance, there was no such offence as attempting to overthrow the government by violence.
23. Mr Paul HARRIS said that any attempt to overthrow the government by violence, such as a group of people surrounding the Government House and killing government officials, would amount to the offence of treason under the existing legislation.
24. Dr Nihal JAYAWICKRAMA pointed out that there were precedents in former colonial jurisdictions for invoking the provision similar to section 2(1)(c)(ii) of the Ordinance to prosecute persons who attempted to overthrow the lawfully established government. Mr Andrew CHENG then suggested and the meeting agreed that the Administration should provide after the meeting the relevant case law relating to the overthrow of the government for members reference.
(Mr Paul HARRIS and Mr LAW Yuk-kai left the meeting at this juncture.)
Criminalisation of speech and writing
25. Mr Andrew CHENG referred to paragraph 2 of the Law Society of Hong Kong (Law Society)s submission (issued to members vide LegCo Paper No. CB(2) 1357/96-97) and asked whether the Bar Association and the Justice shared the Law Societys view that the proposed provisions on subversion and secession would criminalise speech and writing. Dr Nihal JAYAWICKRAMA said that the Ordinance itself and the proposed amendments had the effect of criminalising speech and writing. Section 3 of the Ordinance subjected an intention, which was manifested by publishing any printing or writing, to a treasonable offence. Under the proposed sections 5 and 5A, an act of incitement, which must be conducted through speech or writing, was actionable for subversion and secession. Under sections 9 and 10, the requisite criminal intention was inferred solely from speech or writing.
26. Mr Philip DYKES agreed with Dr Nihal JAYAWICKRAMA that pure expression of opinion should not be criminalised. However, he pointed out that many offences could be committed in an auxiliary manner through words or deeds, though the words or deeds themselves were not the causes of the event. Moreover, it was an offence under the criminal law if: (a) any person incited an unlawful act by way of speech or writing; and (b) there was sufficient nexus between the words and the deeds and the criminal offence.
27. In view of the deputations aforesaid views, Mr Andrew CHENG asked the Administration to clarify if the proposed amendments would encroach upon the freedom of speech in Hong Kong. Mr Andrew KLUTH said that the purpose of the Administration in developing the provisions of the Bill was not to, and the Bill itself would not, restrict any existing freedom enjoyed in Hong Kong. In drafting the Bill, the Administration had taken recognition of the existing freedom enjoyed locally and enshrined in the international covenants of human rights, and had taken into consideration members concerns as well as the requirements under Article 23. The Administration had adopted a pragmatic approach in proposing amendments to the Ordinance, which would be capable of adaptation after the transfer of sovereignty. The early introduction of the Bill to the LegCo would allow Members more time to scrutinise and fully debate the Bill, and an opportunity to gauge the publics opinions towards the issue.
28. Mr Andrew CHENG then suggested and the meeting agreed that the Administration should provide after the meeting a paper responding to the points raised by the deputations, in particular that certain provisions were in contravention of the BORO.
(Mr Lawrence LOK, Mr Philip DYKES, Dr Nihal JAYAWICKRAMA and Mr Andrew KLUTH left the meeting at this juncture.)
29. Mr CHEUNG Man-kwong suggested that the Bills Committee could adopt a two-prong approach in studying the Bill, namely (a) to modernise, tidy up and narrow the existing provisions on treason and sedition; and (b) to decide whether it was necessary to legislate on the offences of subversion and secession.
30. Mr Andrew CHENG said that since the Bills Committee would study the Ordinance clause by clause, the existing provisions on treason and sedition could be dealt with at that stage. The Bills Committee should first discuss and decide whether it was necessary legislate on the offences of subversion and secession.
31. In light of the deputations views that the existing provisions on treason and sedition had been modified by the case law and were subject to the BORO, Ms Margaret NG opined that the two provisions could be left intact and it might not be necessary to introduce any amendments to them. Since there was insufficient time for indepth study into the relevant law and for public consultation on the issue, it was not judicious for the Bills Committee to initiate any major amendments to the legislation, such as creating the offences of subversion and secession, or to propose a new package of amendments to replace the Administrations proposal. Concerning the amendments proposed by the Administration, unless the Bills Committee was satisfied that the amendments made were in the public interest, they should not be adopted. After scrutiny of the Bill, the Bills Committee might consider furnishing detailed comments on the legislation and suggesting directions for future amendments.
32. After discussion, the Chairman summed up members views and decisions as follows:
- amendments would only be proposed to the legislation if they were necessary;
- the Ordinance should be amended, if practicable, to bring it into line with the international covenants on human rights;
- incorporation of the "clear and imminent danger" test would be considered to qualify acts, such as an overt act; and
- subject to the Administrations response, the Bills Committee would decide, from the point of legal policy, whether it was appropriate to create the offences of subversion and secession.
II. Date of next meeting
33. The meeting agreed that the next meeting would be held on 7 March 1997 for the Administration to respond to the points raised by members and the deputations.
(Post-meeting note: the meeting was re-scheduled for 22 March 1997 at 9:00 am.)
34. There being no other business, the meeting ended at 6:25 pm.
14 March 1997
Last Updated on 5 May, 1997