LegCo Paper No. CB(2)2317/96-97
(These minutes have been seen by the Administration)
Ref : CB2/BC/7/96
Bills Committee on Official Secrets Bill
Minutes of the 8th Meeting held on
Monday, 5 May 1997 at 2:30 pm
in Conference Room B of the Legislative Council Building
Members Present :
Hon Christine LOH Kung-wai (Chairman)
Hon Margaret NG (Deputy Chairman)
Hon Ronald ARCULLI, OBE, JP
Hon Emily LAU Wai-hing
Hon James TO Kun-sun
Hon Howard YOUNG, JP
Hon LEUNG Yiu-chung
Hon Bruce LIU Sing-lee
Members Absent :
Hon Mrs Selina CHOW, OBE, JP
Hon Andrew CHENG Kar-foo
Hon Ambrose LAU Hon-chuen, JP
Hon Mrs Elizabeth WONG, CBE, ISO, JP
Public Officers Attending :
- Mr Andrew KLUTH
- Principal Assistant Secretary for Security
- Mr Ian DEANE
- Senior Assistant Solicitor General
Clerk in Attendance :
- Mrs Anna LO
- Chief Assistant Secretary (2) 2
Staff in Attendance :
- Mr Stephen LAM
- Assistant Legal Adviser 4
- Mr Raymond LAM
- Senior Assistant Secretary (2)6
I. Confirmation of minutes of meetings and matters arising
(LegCo Paper Nos. CB(2)1935 and 1936/96-97)
The minutes of the meetings held on 10 and 24 March 1997 were confirmed.
Further submission from Hon LEUNG Yiu-chung
(Paper No. CB(2)2069/96-97(01))
Mr LEUNG Yiu-chung presented his further submission. He stated that the common law doctrine of confidentiality (breach of confidence) was adequate in protecting official information against unauthorized disclosure; hence there was no need to enact specific legislation to protect official secrets.
Other members of the Bills Committee were generally of the view that breach of confidence was only a civil wrong, the penalties for which were confined to sanctions and fines. The unauthorized disclosure of official information, especially defence information (clause 15 referred), could have very serious consequences. Such kind of offence should be prohibited through enactment of criminal law. Legislation on official secrets was therefore needed. The Chairman stated that Mr LEUNG Yiu-chung might move his own Committee stage amendments (CSAs), if he so wished.
Further submission from Hong Kong BAR Association (BAR)
(LegCo Paper No. CB(2)2148/96-97)
Members noted the further submission from BAR. Miss Margaret NG pointed out that BAR considered the presumptions of fact under clause 3(4) could be retained, if clause 3(3) was deleted. Apart from this, other suggestions of BAR were generally in line with what was agreed by members at the last meeting.
The Administrations response to the points raised at the last meeting
(Paper No. CB(2)2069/96-97(02))
Members noted the Administrations response to the points raised at the last meeting.
II. Examination of the draft Committee stage amendments
(Paper No. CB(2)2069/96-97 (03))
Members then considered the draft CSAs prepared by Assistant Legal Adviser 4 (ALA4).
PART II - ESPIONAGE
Members agreed that the heading for Part II should be amended to "ESPIONAGE AND OTHER MATTERS".
Clause 2 - Interpretation
ALA4 informed members that the proposed draft definition of "defence" was copied from that in clause 12.
Mr James TO was concerned that the meaning of "essential supplies and service" in (d) of the draft definition of "defence" might be too wide, e.g. if it included primary food, rice stores might be considered as a prohibited place. Miss Margaret NG pointed out that "prohibited place" was clearly defined in the Bill.
Mr James TO was concerned that "prohibited place" might include power stations and Mass Transit Railway stations. Miss Margaret NG pointed out that, according to the Bill, the places listed in (e), (f), (g) and (h) of "prohibited place" had to be declared by order of the Governor. Senior Assistant Solicitor General (SASG) confirmed that, to his knowledge, declaration of such kinds of "prohibited place" had not been made by the Governor; they were only likely to be made in wartime.
Members agreed to the draft CSA on clause 2.
Clause 3 - Spying
Miss Emily LAU suggested that the word "and" should be added after the revised clause 3(1)(a) so that merely "approaches, inspects, passes over or enters a prohibited place" would not constitute an offence under the clause. With such an addition, an offence would only be committed with a combination of clause 3(1)(a) and either clause 3(1)(b) or 3(1)(c). Other members were generally of the view that the addition of "and" was not necessary, as a harm test had already been incorporated in clause 3.
Members discussed the BARs view on the possible retention of clause 3(4), standing alone without clause 3(3). Noting that the BAR did not really object to the deletion of sub-clause (4), the Bills Committee decided that this sub-clause should be deleted.
Members agreed to the draft CSA on clause 3.
Clause 5 - Unauthorized use of uniforms, forgery, etc.
Members agreed to the draft CSA on clause 5.
Clause 6 - Unauthorized use of official documents, etc.
Members agreed to the draft CSA on clause 6. They considered that the addition of the phrase "without lawful authority or excuse" before sub-clause (1)(a) was not necessary, as a requirement for specific intent had already been incorporated in this sub-clause.
Clause 7 - Obstruction
As regards members request at the last meeting that the Secretary for Security (S for S) should assure, in the resumption of Second Reading debate on the Bill, that the existing practices concerning demonstration would not be affected by the enactment of the Bill, Principal Assistant Secretary for Security (PAS(S)) reassured that he would refer the request to S for S for his consideration. In the light of S for Ss previous statements on the Crimes (Amendment) Bill, he did not envisage any problem with meeting the request.
Clause 8 - Duty to give information
Mr James TO was concerned of the provisions in sub-clauses (1) and (2) that the Governor might grant permission to the Commissioner of Police to exercise the powers conferred. He considered that the permission should be granted by the court to avoid abuse of detention of a person. In the Organized and Serious Crimes Ordinance, there was better protection through restrictions on the requirement for disclosure of information and involvement of the court. SASG responded that in order to safeguard against abuse of this provision, the power was required to be exercised under the authority of the Governor. Sub-clauses (6) and (7), which were not in the Official Secrets Act of the United Kingdom (the UK Acts), had been incorporated to prevent any information obtained under this provision being used against a person in criminal proceedings.
Miss Margaret NG commented that sub-clause (2) seemed to contain a power of detention. The phrase "reasonable time and place" in sub-clause 2(b) was undefined. She considered that such power should be in proportion to the circumstances. The usual protection provided by the court should be incorporated. Mr James TO was concerned that sub-clause (3) allowed the Commissioner of Police to exercise, in cases of emergency, the powers mentioned in sub-clause (2) on an ex post facto basis. SASG responded that there was other legislation in which the power of detention did not require authorization of the court. He assured that the power could not be exercised without reasonable grounds and a clear purpose.
Members agreed that ALA4 should revise the draft CSA incorporating safeguards in line with those in the Organized and Serious Crimes Ordinance, while the Administration should provide more detailed response on this clause in writing.
The Bills Committee noted the Administrations views on the draft CSA to clause 8(2). This point would probably be taken care of with the revised CSA to clause 8 referred to in the preceding paragraph.
Clause 9 - Provisions as to trial of offences
ALA4 informed members that the draft amendment to sub-clause (3) was a consistent amendment of the phrase "prejudicial to the safety of the United Kingdom and Hong Kong" appeared in other parts of the Bill. He advised that he had not proposed similar amendments to clauses 8(3) and 11(2), as the circumstances in those clauses were different.
Mr James TO was concerned that the provisions in clause 9 might allow total exclusion of the public from the entire legal proceedings and therefore the public was not even aware of a trial. SASG responded that provisions in the clause were not intended to exclude public from all parts of the proceedings. ALA4 added that the public at least had a chance to know of the trial at the stage when an application for exclusion of public was filed with the court. In response to Mr James TOs question on whether the defendants counsel would be considered as a member of the public and excluded from the proceedings, SASG confirmed that the defendants counsel would not be considered as a member of the public. The Bill of Rights Ordinance guaranteed trial in the presence of the accused. The defendants counsel therefore had a right to be present at the proceedings.
In reply to Mr James TOs question on whether a person would commit a contempt of court if he disclosed the representations made by the defendant in the court when the public was excluded, SASG stated that unless the information disclosed was a verbatim report, it would not amount to contempt of court. If a court wished to prohibit the reporting of particular evidence, it could make an order to that effect.
Members agreed to the draft CSA on clause 9.
Clause 11 - Search Warrants
Mr James TO suggested that, as in the proposed warrant system of the White Bill on Interception of Communications, a superintendent of police should be required to apply for an ex post facto warrant from the court within 48 hours after the issuance of any written order under sub-clause (2). The word "appears" in sub-clause (2) should be replaced by "reasonable ground to believe". Members agreed to the suggestions and requested ALA4 to draft the CSAs.
PART III - UNLAWFUL DISCLOSURE
Clause 12 - Interpretation
Members agreed to the draft CSA on this clause.
Clause 13 - Security and intelligence information - members of services and persons notified
Miss Margaret NG expressed reservation on the phrase "likely to" in the proposed new sub-clause (1A)(b) and suggested to replace it by "tend to". SASG commented that the phrase "tend to" was imprecise. Mr James TO remarked that as the clause was concerned with members of services and persons notified, a stricter requirement was acceptable. Miss Margaret NG agreed to accept "likely to".
In reply to Mr James TOs question on who were the "persons notified" in clause 13(1)(b) referred to, SASG stated that they might include the family members and casual employees of the services.
Members agreed to the draft CSA on clause 13.
Clauses 14 - Security and intelligence information - public servants and contractors
Members agreed to the draft CSA on clause 14.
Clauses 15 - Defence information
Members agreed to the draft CSA on clause 15.
Clauses 16 - Information related to international relations
Members agreed to the draft CSA on clause 16.
Clauses 18 - Information resulting from unauthorized disclosures or information entrusted in confidence
Members agreed to the draft CSA on clause 18.
Clauses 20 - Information entrusted in confidence to territories, States or international organizations
Members agreed to the draft CSA on clause 20.
Clause 21 - Authorized disclosures
Public interest defence
SASG stated that the Administration considered it inappropriate to incorporate a public interest defence. The legislature of UK in 1989 concluded that disclosure of the six areas of information covered by the UK Acts was likely to be damaging to the public interest. It would therefore be contradictory to allow a defendant to argue that he should not be penalized because he was seeking to serve some other public interest.
Mr James TO reiterated that the Bill should set out a public interest defence (with reference to section 30 of the Prevention of Bribery Ordinance (PBO)) which included, but not necessarily confined to, a defence in the three areas of serious misconduct, illegality and abuse of power.
Members decided to adopt a broad public interest defence, and not to adopt the approach as stated in section 30 of the PBO, so that maximum discretion was allowed for the court.
Members generally agreed to adopt the new clause 21A as drafted by ALA4.
Prior disclosure defence
Members considered the two versions of prior disclosure defence prepared by ALA4.
Mr Bruce LIU reserved his position on the incorporation of a prior disclosure defence. He remarked that, in the presence of a prior disclosure, a further disclosure with wider circulation among the public could still cause further harm. This was further complicated by the time difference between different places of the world and the difficulty in classifying information transmitted through the Internet or by facsimile machines. If a prior disclosure defence had to be added, he would prefer the second version.
Miss Emily LAU reiterated her preference for the first version which was much wider.
The majority of members present agreed to adopt the second version of the proposed new clause 21B. It was also agreed to replace "A person does not commit an offence under section 17(2)(c),(d) or (e) or 19 if -" in clause 21B(a) with "It is a defence for a person charged with an offence under any of sections 13 to 20 to prove that"; and to delete clause 21B(b) because it was covered by new clause 21B(a).
Clause 22 - Safeguarding of information
ALA4 informed members that "subsection (7)" in the draft CSA should read "subsection (6)".
Referring to clause 22(1), Miss Margaret NG questioned whether carelessness in the safeguarding of official information should be criminalized. PAS(S) responded that while the Administration had clear administrative guidelines on safeguarding of information, which were known to public officers and contained in the Security Regulations, which were unclassified, the disclosure of official information, whether deliberately or through negligence, could lead to serious consequences and there were occasions when pure administrative measures could not serve as an adequate deterrent.
Members agreed to the CSA on clause 22.
Clause 24 - Provisions as to trial of offences
ALA4 advised that, as in the case of clause 9(3), it was inappropriate to replace the phrase "prejudicial to the safety of the United Kingdom or Hong Kong" in sub-clause (2) with the phrase "harmful to the defence of the United Kingdom or Hong Kong" because Part III was not confined to defence information. SASG shared the same view and stated that such replacement would confine the applicability of sub-clause (2) to clause 15 only. Members agreed that no amendment should be made to this clause.
Mr Bruce LIU considered that the phrase "prejudicial to the safety or interest of" should be replaced by "harmful to the safety and defence of" rather than "harmful to the defence of". The Chairman stated that the amendments had already been agreed by the Bills Committee. Mr LIU could move his own CSAs, if he so wished.
III. Legislative time-table
It was agreed that the revised draft CSAs by ALA4 should be circulated to members for consideration.
Members agreed on the following legislative time-table -
Report to House Resumption of Second Deadline for
|23 May 1997
|4 June 1997
|26 May 1997
The meeting ended at 5:50 pm.
16 May 1997
Last Updated on 16 October 1997