LegCo Paper No. CB(2) 2183/96-97
(These minutes have been seen by the Administration)
Ref : CB2/BC/7/96
Bills Committee on Official Secrets Bill
Minutes of the 7th Meeting held on
Monday, 14 April 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 Mrs Selina CHOW, OBE, JP
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 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. Clause-by-clause examination
Members noted a further submission from Hong Kong Journalists Association (HKJA) (LegCo Paper No. CB(2) 1829/96-97) and a summary of proposed amendments by deputations (Appendix A) tabled at the meeting.
PART II - ESPIONAGE
Miss Emily LAU doubted whether the heading of "espionage" was appropriate for Part II because some clauses therein, such as clause 6(1)(b), were not related to espionage. They should be separated and put under a new heading. Miss Margaret NG added that while a heading had no legal effect, an inappropriate heading had the disadvantage of possible abuse by the prosecution.
The Chairman requested the Administration to consider the issue and advise at the next meeting whether they intended to introduce amendments to the heading.
Miss Emily LAU requested ALA4 to examine each clause in Part II to see if they were all related to espionage. Provisions which were not should either be deleted or put under another part or heading.
Clause 2 - Interpretation
Miss Margaret NG expressed concern on the lack of a definition for "enemy" in clause 2(1)(e).
Mr Bruce LIU pointed out that, according to the Administrations paper for the meeting on 24 March 1997 (Paper No. CB(2) 1584/96-97(02)), two definitions could be found for "enemy", one in the Trading with the Enemy Ordinance of Hong Kong and the other in the precedent case of R v Parrott (1913) of United Kingdom. It was difficult to integrate these two definitions, as the former referred to enemies in war time, while the latter included also "a potential enemy with whom we might be some day at war".
Senior Assistant Solicitor General (SASG) responded that it was not possible to define "enemy". He added that the relevant legislation in the United States (US) was even more stringent in that it prohibited the disclosure of official information to any foreign nation.
Miss Margaret NG accepted that it was difficult to define "enemy". She stated that she would agree to such a lack of definition, provided that behaviours giving rise to an offence in the relevant provisions were narrowly defined.
Clause 3 - Spying
Mr LEUNG Yiu-chung commented that the UK Official Secrets Act was passed in a hurry in 1911. The "safety or interests of the United Kingdom (UK) or Hong Kong (HK)" was not defined in the Bill. He doubted the adequacy of such an out-dated legislation to the present-day world. As other legislation in Hong Kong had offered protection in respect of offences stated in clause 3, further legislation in this area was not necessary and in contravention of the Bill of Rights Ordinance (BORO). He proposed to delete clause 3. ALA4 advised that there was no other legislation in HK on spying offences. Other members considered that spying was a serious offence which should not be allowed; hence there should be a provision prohibiting spying.
Miss Emily LAU suggested adding "and" after clause 3(1)(a), thus requiring a combination of clause 3(1)(a) and (b), or 3(1)(a) and (c) to commit an offence. She also suggested deleting "or might be" in clause 3(1)(b).
Mr Bruce LIU commented that clause 3 should be rewritten in such a way that prohibited spying, but with protection from abuse by the prosecution. The requirement for proof of a prejudicial purpose was important. The phrase "in the neighbourhood of" in clause 3(1)(a) should be deleted. He added that a person could enter a prohibited place and see a lot of things without making sketches, records, or anything stated in clauses 3(1)(b) or (c). Taking into account the way in which other legislation in HK was written, amending the existing provision was more appropriate than copying relevant provisions from the US legislation.
Miss Margaret NG commented that she would accept the existing disjunctive relationship between clauses 3(1)(a), (b) or (c), if there was a strict requirement for proof of a prejudicial purpose. She stated that it was very difficult to convict a person who was simply in the neighbourhood of a prohibited place. An alternative to the addition of "and" was to rewrite the provision, taking into consideration relevant provisions of equivalent legislation in the US. She stated that the relevant provisions in Chapter 37 of the Criminal Code in the US (Paper No. CB(2) 1584/96-97(02)) were narrower and clearer. There was a clear requirement for specific intent.
In response to Miss Margaret NG, SASG confirmed that clause 3(1)(a), (b), and (c) were exhaustive lists. In view of this, Miss Margaret NG commented that the retention of these lists might have the advantage of confining the scope of the clause.
In conclusion, members agreed to -
- rewrite clause 3(1) incorporating the requirement of specific intent, as in the relevant US legislation. The exhaustive lists of acts in clause 3(1)(a), (b), and (c) should be retained, but the phrase "in the neighbourhood of" in clause 3(1)(a) should be deleted;
- delete clause 3(2), (3), (4) as suggested by the deputations; and
- delete clause 3(5) consequential to the deletion of clause 3(3) and 3(4).
Clause 5 - Unauthorized use of uniforms, forgery, etc.
Members agreed to amend "any other purpose prejudicial to the safety or interests of the UK or HK" in clause 5(1) in line with amendments made to clause 3(1) incorporating the requirement of specific intent. Clause 5(2) should be deleted as in the case of clause 3(2).
Clause 6 - Unauthorized use of official documents, etc.
Miss Emily LAU suggested that the word "knowingly" should be added to the beginning of clause 6(1)(a). Miss Margaret NG opined that, as in clause 3, there should be a requirement for specific intent in clause 6. Mr Bruce LIU stated that amendments to clause 6 should be consistent with those made to clause 3. SASG stated that the court would take mens rea into consideration. While he would not object to the addition of "knowingly", he was of the view that a person could not allow another person to possess a document without doing it knowingly.
Miss Margaret NG stated that the use of "allows" in clause 6(1)(b) would result in too much burden on the accused. It should be replaced by "permits". Mr Ronald ARCULLI commented that "allows" imposed a responsibility on a person to take care of the official documents. It sought to prevent secret information from falling, as a result of his carelessness, into the hands of unauthorized people. PAS(S) said that "permits" had a narrower meaning and contained an intention to allow a specific event to take place. To his knowledge, the Administration had not undertaken any prosecution in this area. Investigations on leakage of information to unauthorized persons revealed that they were invariably due to people leaving papers inadvertently around or making unguarded comments. While the actions taken were administrative in nature, legislation was a deterrent. SASG suggested the alternative of adding "without unlawful authority or excuse" to the beginning of clause 6(1)(b). Miss Margaret NG reiterated that "allows" should be replaced by "permits". The Chairman suggested that the issue might be considered again at the next meeting.
In response to the Chairman, PAS(S) explained that the Administration had clear instructions for officers on the handling of different classifications of official documents.
Members agreed that clause 6(2) should be deleted in line with the deletion of clause 3(2).
Clause 7 - Obstruction
PAS(S) stated that a person who was in the vicinity of a prohibited place but did not obstruct, knowingly mislead, interfere with or impede the persons mentioned in clause 7(1)(a) and (b) did not commit an offence under the provision. On the question of whether "and" should be added before "obstructs", he considered that it was not necessary, as the word "and" was implied. ALA4 shared the same view.
Mr LEUNG Yiu-chung opined that it was easy for persons stated in clause 7(1)(a) and (b) to claim that the participants of a peaceful demonstration obstructed, knowingly misled, interfered with or impeded them.
Mr Bruce LIU commented that "knowingly mislead" was very unlikely and should be deleted.
Miss Emily LAU asked whether demonstration in the vicinity of the airport, which was presently allowed, could continue after the Official Secrets Acts of UK was localized. PAS(S) assured that the Administration had no intention to change the ground rules concerning behaviour currently accepted in Hong Kong. Miss Emily LAU requested that the Secretary for Security (S for S) should assure, in the resumption of Second Reading debates on the Bill, that the existing practices concerning demonstration would not be affected by the enactment of the Bill. PAS(S) undertook to refer the request to S for S.
Clause 8 - Duty to give information
Miss Emily LAU suggested that "any police officer not below the rank of inspector" should be deleted from clause 8(2) because the authority should not be delegated to a level below superintendent of police. PAS(S) responded that such wordings might be a standard practice. He undertook to look into the issue and provide a response at the next meeting.
In response to Miss Margaret NG, SASG commented that the reference made in clause 8(7)(a) to section 36 of the Crimes Ordinance (Cap. 200) was a standard provision also found in other legislation in Hong Kong.
Clause 9 - Provisions as to trial of offences
Miss Margaret NG suggested that "except with the consent of the Attorney General" should be deleted from clause 9(2).
Miss Margaret NG questioned the protection for the defendant in clause 9(3) and whether the application would be heard in open court. While she recognized the need for confidentiality of some official information, she was concerned about possible abuse by the Administration.
SASG responded that the clause was concerned with protection of the interests of UK or HK; therefore the question of protection of the defence was irrelevant. On the question of whether the application would be heard in public, he stated that the judge could clear the court when sensitive matters were put forward by the prosecution. It was the court, not the government, which made judgement on applications. This was in line with Article 10 of BORO.
Miss Margaret NG commented that "would be prejudicial to the safety of UK or HK" in clause 9(3) should be more explicitly stated. Clear provisions would assist the court to understand what was encompassed under the law. Miss Emily LAU suggested that the court should be reminded of transparency considerations. SASG responded that the phrasing was adequate.
Miss Margaret NG noted that there was a lack of consistency on the drafting of "safety of the UK or HK" and "safety or interests of the UK or HK" in different provisions. Miss Emily LAU suggested that "safety" might be consistently used in all relevant provisions. ALA4 suggested that "prejudicial to the safety or interests of Hong Kong" might be replaced by "prejudicial to the national defence of UK or HK". SASG commented that HK did not have national defence.
The Chairman requested ALA4 to advise, at the next meeting, whether using "safety" was appropriate. Miss Margaret NG suggested ALA4 to provide advice on the yardstick for and precedent cases on "safety".
Miss Emily LAU suggested that an addition should be made to clause 9 requesting the court to give consideration to the publics right to know. ALA4 advised that clause 9 had allowed sufficient flexibility to the court. While the court would consider safety of UK and HK, it would also consider public interest. The suggested addition was therefore not necessary.
Clause 10 - Penalties
SASG undertook to check on and provide a reply at the next meeting to Mr Bruce LIUs question on whether the penalty of 14 years imprisonment in clause 10(1) was directly copied from the UK Acts.
SASG explained that summary proceedings in connection with clause 10(2)(b) were intended for less serious offences.
Miss Margaret NG remarked that while it was desirable to just impose a fine for minor offences, she was concerned about the possible abuse of summary proceedings. She asked whether the court would only impose a fine in some cases. SASG undertook to respond at the next meeting.
Clause 11 - Search Warrants
Miss Margaret NG noted that in clause 11(2), it was stipulated that only "a superintendent of police" was authorized to issue a written order. This supported the Bills Committees proposal to amend clause 8(2) (paragraph 24 refers). She also considered that "interests" in clause 11(2) should be consistently amended to "safety". PAS(S) responded that clause 11(2) differed from clause 8(2). In clause 11(2), a superintendent of police issued a written order for any police officer to carry out his duties. In clause 8(2), a superintendent of police, or any police officer not below the rank of inspector was authorized by the Commissioner of Police to require a person to furnish information. Similar provisions as in clause 11(2) existed in the Post-release Supervision of Prisoners Ordinance. SASG added that a similar provision was also found in the Dangerous Drugs Ordinance.
PART III - UNLAWFUL DISCLOSURE
Clause 12 - Interpretation
In response to Mr James TOs question on what were the "prescribed bodies" in (d) and (e), and whether their employees know that they were working for "prescribed bodies", PAS(S) explained that he thought there was a standard list of organizations or authorities subject to the Official Secrets Acts. They were therefore aware that they were working for "prescribed bodies". The Chairman requested the Administration to provide the list at the next meeting.
Mr James TO commented that the meaning of "defence policy and strategy", and "intelligence" in (c) was vague. He also questioned whether "intelligence" referred to defence intelligence or military intelligence. The Chairman stated that the sentence structure in the English version suggested referral to both kinds of intelligence, while the Chinese version suggested referral to military intelligence only. SASG considered that it should be military intelligence. He added that, to prove an offence under clause 15, it was necessary to prove that the information concerned was defence information and the disclosure was damaging. The final decision rested with the court. Miss Margaret NG pointed out that the Chinese translation of the three "and"s in (c) was inconsistent. The Chairman suggested the Administration to clarify this at the next meeting.
Mr James TO stated that "essential supplies" in (d) should be clearly defined. PAS(S) responded that it included any supplies required for the functioning of the society in a war. Besides military supplies, water, oil and electricity supplies could also be important.
Clause 13 - Security and intelligence information - members of services and persons notified
Members agreed to adopt the Hong Kong BAR Associations (BARs) suggestion of adding a harm test in clause 13. It was agreed that a harm test similar to the one in clause 20(1)(c) should be incorporated.
Clause 14 - Security and intelligence information - public servants and contractors
Members recalled BARs suggestion that "damage" in clause 14(2)(a) should be changed to "reasonable damage" or "substantial damage".
Miss Margaret NG was concerned that "damage" alone might include very minor damage. She could make a case in which any disclosure was damaging by merely arguing that damage was made to confidence or integrity. ALA4 advised that, although negligible damage might be excluded, the court might interpret "damage" in a wide sense.
SASG stated that the damage should be proved over and above the disclosure. Clause 14(2)(a) referred to damage to the work of security and intelligence services of UK or HK. It was necessary for the prosecution to prove tangible damage to the work of these services.
Members concluded that "damage" should be amended to "serious damage".
Clause 16 - Information related to international relations
Miss Emily LAU suggested that "endangers" in clause 16 should be amended to "seriously endangers" where it appeared, while "seriously obstructs the promotion or protection by the UK or HK of those interests" in clause 16(2)(a) should be deleted. Corresponding amendments should also be made to clauses 14 and 15.
Miss Margaret NG stated that even without clause 16(3), it would still be the court which determined whether any effect under clause 16(2)(b) had been satisfied or not. Clause 16(3) was therefore not serving any useful purpose. SASG responded that it was included to facilitate proof of the damage mentioned in clause 16(2)(b). It could be made by establishing the fact that it was confidential, or by establishing the sensitivity of the information.
Clause 17 - Information related to commission of offences and criminal investigations
Members considered HKJAs suggestion of incorporating a harm test in clause 17(2)(c), (d), and (e).
SASG questioned what the damage test would be and to whom the damage related. He stated that clause 17 was directed at public servants or government contractors. The purpose of clause 17 (c) and (d) was to protect the state as well as the privacy of people whose communication were intercepted.
Miss Margaret NG stated that her only concern of this clause was that the person referred to in clause 17(1) might not be related to the information mentioned in clause 17(2)(b), (c), (d) and (e). SASG responded that the provision, which also existed in other jurisdictions, was directed at protecting highly sensitive information.
The Bills Committee agreed not to pursue HKJAs suggestion.
Clause 18 - Information resulting from unauthorized disclosures or information entrusted in confidence
Members considered Options A and B in the submission of HKJA (LegCo Paper No. CB(2) 1829/96-97) on the inclusion of a prior publication defence. Option A was broad in scope while Option B was far narrower.
Miss Emily LAU commented that both a public interest defence and a prior publication defence should be included in the Bill. With regard to the latter, she would prefer Option A.
Mr Bruce LIU considered that a prior publication defence would not be necessary as long as there was a harm test. ALA4 commented that clause 18(3) provided a harm test. Miss Margaret NG opined that prior publication was more objective and easier to prove, while "damage" was more subjective.
The Chairman requested ALA4 to draft amendments in accordance with options A and B for consideration at the next meeting.
Clause 19 - Information resulted from spying
Members considered that as the clause was concerned with information resulting from spying, which should be prohibited, the inclusion of a harm test or public interest defence was not appropriate.
Clause 21 - Authorized disclosures
Members were of the view that the harm test in clause 21(4), which was not necessary in BARs view, should be retained as it was a defence for the accused.
Clause 22 - Safeguarding of information
Mr James TO expressed concern on the drafting of clause 22(2). He questioned whether the phrase "and had no reasonable cause to believe otherwise" was a repetition of "he believed that he was acting in accordance with his official duty". If so, it should be deleted. If not so, the burden of proof on the defendant was too heavy. He also questioned whether such drafting existed in other legislation. PAS(S) quoted an example to illustrate that "trial balloon" or deliberate leakage of information was regarded as authorized disclosure. He assured that such issues had been taken into account by the Administration. The Chairman suggested that the issue might be discussed again at the next meeting after checking by the Administration.
Clause 23 - Acts done abroad
In response to Mr James TOs question on whether an officer on an overseas official trip would commit an offence under the clause, if he was forced to disclose official information under overseas legislation, SASG stated that such circumstance should be regarded as reasonable excuse.
Clause 24 - Provisions as to trial of offences
Members agreed that clause 24(2) should be similarly amended as in clause 9(3).
Clause 25 - Penalties
Mr LEUNG Yiu-chung questioned whether the fine of $500,000 in clause 25(1)(a) was a standard amount. SASG responded that he thought that there was a relationship between the monetary penalty and the length of imprisonment. He undertook to provide information on this at the next meeting.
II. Date of next meeting
The next meeting would be held on 5 May 1997 from 2:30 pm to 6:30 pm to examine the draft Committee stage amendments. Members agreed that, apart from the heading for Part II, ALA4 should prepare all the draft Committee stage amendments for consideration at the next meeting. The Chairman reminded members to submit further views in writing, if any, on the Bill before the next meeting.
The meeting ended at 6:50 pm.
6 May 1997
Last Updated on 16 October 1997