LegCo Paper No. CB(2) 2182/96-97
(These minutes have been seen by the Administration)
Ref : CB2/BC/7/96
Bills Committee on Official Secrets Bill
Minutes of the 6th Meeting held on
Tuesday, 8 April 1997 at 10:30 am
in Conference Room A of the Legislative Council Building
Members Present :
Hon Christine LOH Kung-wai (Chairman)
Hon Emily LAU Wai-hing
Hon Ambrose LAU Hon-chuen, JP
Hon Bruce LIU Sing-lee
Members Absent :
Hon Margaret NG (Deputy Chairman)
Hon Mrs Selina CHOW, OBE, JP
Hon Ronald ARCULLI, OBE, JP
Hon James TO Kun-sun
Hon Howard YOUNG, JP
Hon Andrew CHENG Kar-foo
Hon LEUNG Yiu-chung
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
Attendance by Invitation:
- Hong Kong Human Rights Monitor
- Mr Paul HARRIS
- Hong Kong Journalists Association
- Miss LAI Pui-yee, Carol
- Mr Cliff BALE
- Executive Committee Member
- Hong Kong BAR Association
- Mr P Y LO
- The Law Society of Hong Kong
- Mr Patrick MOSS
- Secretary General
Clerk in Attendance :
- Mrs Anna LO
- Chief Assistant Secretary (2) 2
Staff in Attendance :
- Ms Kitty CHENG
- Assistant Legal Adviser 2
- Mr Raymond LAM
- Senior Assistant Secretary (2)6
I. Resignation of Hon Albert HO Chun-yan
The meeting noted the resignation of Hon Albert HO from the Bills Committee due to other heavy commitments.
II. Confirmation of minutes of meeting and matters arising
(LegCo Paper No. CB(2) 1612/96-97 and Paper No. CB(2) 1709/96-97(01)))
The minutes of the meeting held on 4 March 1997 were confirmed.
Members noted the information provided by Hong Kong Human Rights Monitor and the Administration on the cases of George BLAKE and Geoffrey PRIME in response to a members request at the last meeting.
III. Meeting with deputations and the Administration
Hong Kong Bar Association (BAR)
Representative of BAR commented that the Administrations arguments against the suggested inclusion of a public interest defence in Part III of the Official Secrets Bill (the Bill) was unacceptable (The Administrations paper at LegCo paper No. CB(2)1709/96-97 (02) referred). He added that clauses 3(2) and (3) contravened Article 14 of the International Covenant on Civil and Political Rights (ICCPR). The presumption of innocence was reversed. Allowing prosecution on the basis of doubt was dangerous. He considered that clause 3(2) should be deleted. He would refer the question of whether clause 3(3) and (4) should be deleted to the relevant committee of BAR for consideration.
As regards a members question on whether the Johannesburg Principles provided by Hong Kong Journalists Association should be incorporated in the Bill, representative of BAR stated that as the principles were conceptual, it would take time to consider incorporating them in the provisions of the Bill.
In response to a member, representative of BAR stated that a "harm test", which existed in clause 20, should be incorporated in clause 13, while such a test might not be necessary in clause 21(4). He also commented that proof of a reasonable damage or substantial damage was required in clause 14(2)(a).
Hong Kong Human Rights Monitor (HKHRM)
(Paper No. CB(2) 1548/96-97(01))
Representative of HKHRM referred to paragraph 2 of the Administrations paper and opined that there was no contradiction between a public interest defence and the possibility that a disclosure would harm the public interest. The court should weigh public interests against the harm resulting from a disclosure.
In response to a members question on the consistency of the Bill with ICCPR or the Bill of Rights Ordinance (BORO), representative of HKHRM stated that the Bill was inconsistent with the presumption of innocence in ICCPR and BORO.
As regards a members question on precedent cases regarding the interpretation of whether a disclosure was in public interests, representative of HKHRM commented that it was not a matter of legal definition. Whether a disclosure was in public interests was to be determined by the jury, taking into account all the facts of the case.
The Law Society of Hong Kong (LawSoc)
(Paper No. CB(2) 1781/96-97(01))
Representative of LawSoc highlighted LawSocs further submission and concern about the lack of definition and particularity regarding "safety or interests" of Hong Kong.
Representative of LawSoc shared HKHRMs view that the court should weigh public interests against the harm resulting from a disclosure. He remarked that the Bill contained presumption of guilt and doubted the Administrations view that the Bill was compatible with ICCPR.
In response to a members question on proposed amendments to the Bill, representative of LawSoc suggested that clause 3(1)(a) should be considerably narrowed, while clause 3(2), (3) and (4) should be deleted or substantially revised.
Hong Kong Journalists Association (HKJA)
(LegCo Paper No. CB(2) 1752/96-97)
Representative of HKJA presented HKJAs submission and highlighted the following points -
- HKJA shared HKHRMs view that the court should weigh public interests against the harm resulting from a disclosure. There was a need for the judge to balance the competing claims between harm and public interests. This was clearly laid down in the Johannesburg Principles.
- There was a need for a public interest defence and a prior publication defence in the Bill.
- HKJA was pleased to note the Administrations view that the special provisions in the Interpretation and General Clauses Ordinance concerning the search and seizure of journalistic material would apply to the investigation of offences under the Bill.
- HKJA was identifying the proposed amendments to the 1989 UK Act. Such information would be provided to the Bills Committee once available.
- HKJA was of the view that the spirit of the Johannesburg Principles, especially Principle 15 (General rule on disclosure of secret information), should be written in the law.
Mr Bruce LIU commented that there might be some difficulties for a prior publication defence to be written in the law. He added that such a defence could not be found in other common law jurisdictions. He questioned whether a prior publication defence would be necessary, if there was a harm test and a public interest defence. Representative of HKJA reiterated the argument did not apply to all clauses, as some offences were absolute. Both a prior publication defence and a public interest defence should be written in the law so as to ensure that the court would take them into account. Further, the inclusion of such a defence would not alter the law, if indeed a judge had to take prior publication into account.
Meeting with the Administration
(Paper No. CB(2) 1709/96-97(02))
Principal Assistant Secretary for Security (PAS(S)) stressed that the Bill was a localization bill. The Administration was of the view that it was consistent with ICCPR and BORO. The Chinese side of the Sino-British Joint Liaison Group had been consulted on the Bill and agreed to its presentation to LegCo. Apart from the possibility of minor technical amendments, the Administration did not propose to initiate any amendments to the Bill.
Senior Assistant Solicitor General (SASG) stated that it was not necessary to incorporate a prior publication defence. The matter of prior publication would be taken into account by the court in any event. If there was a prior disclosure, it would be extremely difficult for the prosecution to prove that a subsequent disclosure had caused harm or damage. This was indicated in the "Spycatcher" litigation in the UK.
As regards the suggested inclusion of a public interest defence, SASG stated that the issue was throroughly debated in the resumption of Second Reading debate of the 1989 UK Act, the relevant hansards of which had been provided to the Bills Committee. At that time, the legislature of UK concluded that the six areas of official information covered by the Bill needed particular protection over and above what was ordinarily given to official information. Once harm was proved in these areas, it should not be necessary for the court to weigh that harm against some other public interest claimed by the defendant.
Draft Committee stage amendments
(LegCo Paper No. CB(2) 1661/96-97)
Assistant Legal Adviser 2 presented the draft Committee stage amendments (CSAs) prepared by the LegCo Legal Service Division in response to members request at the last meeting. She informed members that, in both amendments, the burden of proof was on the defendant.
Representatives of HKHRM and LawSoc were supportive of the draft CSAs and suggested that the words "so to do" could be deleted. Representative of HKJA was also supportive of the draft CSAs. However, he stated that HKJA recognized the Administrations objection to a wide-ranging public interest defence and therefore supported the approach adopted in section 30 of the Prevention of Bribery Ordinance (PBO).
The Chairman cautioned that the inclusion of a public interest defence in PBO was a difficult and lengthy process, which might not be realistic for the Bill.
PAS(S) stated that the Administration did not consider the draft CSAs to be necessary. SASG added that the draft CSAs were too wide and quite different from the public interest defence in PBO. However, the Administration was not prepared to compromise to a narrower public interest defence similar to that in the PBO.
A member commented that while he was supportive of including a public interest defence in the Bill, the draft CSAs were somewhat too wide. He suggested that reference might be made to the proposed amendments to the 1989 UK Act.
The Chairman thanked the deputations for their views on the Bill and invited them to submit further views, if any, in two weeks time. Members agreed to commence clause-by-clause examination of the Bill at the next meeting. The Chairman requested the Clerk to tabulate the proposed amendments of the deputations for consideration at the next meeting.
Members noted Mr LEUNG Yiu-chungs submission on the Bill, which was tabled at the meeting.
IV. Date of next meeting
The Chairman reminded members that the next meeting would be held on 15 April 1997 from 2:30 pm to 6:30 pm.
The meeting ended at 3:50 pm.
6 May 1997
Last Updated on 16 October 1997