LegCo Paper No. CB(2) 1221/96-97
(These minutes have been seen by the Administration)
Ref : CB2/BC/7/96
Bills Committee on Official Secrets Bill
Minutes of the 1st Meeting held on
Thursday, 16 January 1997 at 2:30 pm
in Conference Room B of the Legislative Council Building
Members Present :
Hon Christine LOH Kung-wai (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 Andrew CHENG Kar-foo
Hon Ambrose LAU Hon-chuen, JP
Hon LEUNG Yiu-chung
Hon Bruce LIU Sing-lee
Hon Margaret NG
Members Absent :
Hon Albert HO Chun-yan
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. Election of Chairman
Miss Christine LOH was elected Chairman of the Bills Committee.
II. Meeting with the Administration
(LegCo Paper Nos. CB(3) 341/95-96 & LS 70/96-97, LegCo Brief ref. SBCR 3/1162/94)
At the invitation of the Chairman, Principal Assistant Secretary for Security (PAS(S)) briefed members on the Bill which was introduced to localize the existing Official Secrets Acts 1911 - 1989 (the Acts) of United Kingdom (UK) as applied to Hong Kong. On the question of the Administrations choice for a localization bill rather than a law reform bill, he explained that various approaches had been examined and localization of the Acts with minor modifications to reflect local circumstances was considered more appropriate. The Bill, which mainly covered two broad categories of offences - espionage and unlawful disclosure of information, was consistent with Article 23 of the Basic Law (BL), which provided for the enactment of laws prohibiting theft of state secrets. The Bill did not reproduce from the Acts the presumption of purpose in relation to espionage since such presumption was out of step with the legislative practice in Hong Kong. As regards the inclusion of public interest and prior disclosure defences, the Administration considered that such inclusion was inappropriate as these defences did not exist in other common law jurisdictions and were not a feature of existing legislation in Hong Kong. It was also not consistent with the purpose of the Bill, which mainly involved localization. With regard to prior disclosure, it would be open for the defendant to argue that, because of a prior disclosure, the disclosure forming the subject of the prosecution had done no further harm. The judgement on whether there was any harm rested with the court. The Chinese side, through the Sino-British Joint Liaison Group (JLG), had been consulted on the Bill in the context of Article 23 of BL. The Chinese side had agreed to the presentation of the Bill to LegCo and reserved the right, as was their normal practice in such cases, for the Hong Kong Special Administration Region to introduce amendments, if necessary, in the future. The Bill was drafted in such a manner that, with suitable adaptation, the ordinance would continue beyond 30 June 1997.
Members were concerned about the scope of amendments that could be made to the Bill, given that agreement had been reached between the Administration and the Chinese side. A member commented that the Administration should give serious consideration to any law reform amendments proposed by members. PAS(S) responded that in drafting the Bill, the Administration had adopted a reasonable and sensible approach. The provisions of the Bill were similar to relevant legislation overseas. In line with the usual practice for the localization of other legislation, the Bill was introduced into LegCo through the normal legislative process. It was up to Members to decide whether to propose amendments. As regards a members question on whether there was a bottom line for amendments to the Bill, he stated that the Administration was not in a position to disclose discussions of JLG. It was also not in a position to make comments until it had received and examined the proposed amendments. For the same reason, it would set out its views on the proposed inclusion of the public interest defence after receiving and studying the proposed amendments.
Compatibility of the Bill with human rights treaties and the Bill of Rights Ordinance
In response to a member, representatives of the Administration stated that the Bill was consistent with the International Covenant on Civil and Political Rights (ICCPR), the Bill of Rights Ordinance (BORO), and existing practice in Hong Kong. Senior Assistant Solicitor General (SASG) added that the Bill followed closely the UK Acts and there was comparable legislation in other common law jurisdictions. To his knowledge, there had not been successful challenges to the Acts. The provisions of the Acts on unlawful disclosure were enacted in 1989, having regard to human rights considerations and public interest. The member requested the Administration to set out in writing the compatibility of the Bill with ICCPR and BORO. PAS(S) remarked that the Administration had studied laws in other jurisdictions and found that the Bill was comparable with them. A member commented that the other jurisdictions were in the context of an elected parliament, while that of Hong Kong would be in the context of the Provisional Legislature.
Offences committed before and prosecuted after the change of sovereignty
As regards the arrangements for cases on "offences prejudicial to the interests of UK" committed before 1 July 1997 and prosecuted after the change of sovereignty on 1 July 1997, SASG stated that the position was not absolutely clear. At the Chairmans request, he undertook to look into the issue and furnish a reply at the next meeting.
Relevance of the Bill to Article 23 of the Basic Law
A member questioned how "unauthorized disclosure of official information" referred to in the Bill was related to "theft of state secrets" referred to in Article 23 of BL. Another member added that "theft of state secrets" had a narrower meaning than "unauthorized disclosure of official information". PAS(S) responded that, after careful study, in the Administrations view, the Bill covered the concept of theft of state secrets. He reiterated that the main purpose of the Bill was to localize the existing Acts as applied to Hong Kong and to ensure consistency with Article 23 of BL. SASG added that damage to the interests of a state was usually caused by unlawful disclosure of information, regardless of whether the information was disclosed by theft or other means. He believed that Article 23 of BL referred not only to the protection of state secrets from theft in the strictest sense. ALA4 commented that, on the face of it, "unauthorized disclosure of official information" might not be the same as "theft of state secrets", as a person who obtained state secrets by theft might not necessarily disclose them. The Chairman requested both the LegCo Legal Service Division and the Administration to look into the issue and set out their views for consideration at the next meeting.
Overseas experiences and precedent cases
As regards the Chairmans question on whether precedent cases were available for the Committees reference in examining the Bill, SASG stated that Australia and Canada had copied the UK Acts virtually word-for-word, but there were very few precedent cases. He undertook to provide members with further information. He added that a Criminal Law Reform Committee in Australia had examined the provisions of the Acts in detail and recommended that, apart from the removal of certain presumptions, it should basically remain unchanged. It did not think that the provisions equivalent to clause 3(2) would be interpreted as a departure from the common law. Members requested the Administration to provide the following materials for their reference -
- Relevant reports and recommendations of the Australian Criminal Law Reform Committee;
- Records of proceedings of the UK Bills Committees on the Official Secrets Acts (1911 to 1989);
- Hansard of the resumption of Second Reading debates on the Official Secrets Acts of UK (1911 - 1989);
Members also requested the LegCo Legal Service Division to search some articles of law journals on the Acts.
Clause 3 - Spying
A member remarked that the presumptions in clauses 3(2) and 3(3) were not in proportion. Many employees of consulates might be regarded as foreign agents; thus the addresses of consulates could be interpreted as those of foreign agents. A visit to consulate offices, or lunch/dinner with their employees, although without knowing that they were foreign agents, would, according to clause 3 (4) and in the absence of evidence to the contrary, be deemed to have been in communication with a foreign agent. This would be prejudicial to the safety and interests of UK or HK and constitute an offence. SASG responded that clause 3(1) set out the crux of the offence. The prosecution would be required to prove that a person committed an offence for a purpose prejudicial to the safety or interests of UK or HK. Clauses 3(2) and 3(3) were not presumptions and were intended to facilitate proof of such a purpose. The presumption in Section 1 of the 1991 Act had not been reproduced in the Bill. Clause 3(2) was just a re-statement of laws about circumstantial evidence. It stated that in proving a persons prejudicial purpose, there was no need to prove a particular act and it could be made circumstantially. Clause 3(3) only stipulated that communication with a foreign agent would be evidence of prejudicial purpose and did not mean that a prejudicial purpose could be presumed. Clause 3(4) set out the circumstances under which contact with foreign agents could be inferred. It could be rebutted by the defendant providing or pointing to evidence to the contrary. Such evidential burdens were common in Hong Kong legislation in recent years.
A member commented that "conduct" in clause 3(2) and its Chinese translation " " were inappropriate. In her view, "conduct" was more specific and referred to a behaviour at a particular time, while " " referred to a more general behavioural pattern over a longer period of time. She added that clause 3(2) seemed to allow the court to convict a person without proof. She was concerned that under such circumstances, a person who came from a bad family, was known to be against the Government, and had been demonstrating on the streets could be convicted without the requirement to prove that he was guilty of any particular act. SASG responded that the legislative intent was not to alter the common law or the onus of proof for an offence. The Australian Criminal Law Reform Committee had examined this provision in detail and formed the view that it could be interpreted in accordance with the common law. He undertook to follow-up the Chinese translation of "conduct" in clause 3(2).
III. Dates of subsequent meetings
Members agreed that the next meeting with the Administration would be held on 27 January 1997 at 4:30 pm. The following meeting would be held at 10:45 am on 18 February 1997 to gauge the views of deputations. It was agreed that a press release should be issued to invite public views on the Bill.
(Post-meeting note : The meeting on 27 January 1997 was subsequently cancelled to give way to a meeting of the Select Committee to Inquire into the Circumstances Surrounding the Departure of Mr LEUNG Ming-yin. The press release was issued on 19 January 1997)
The meeting ended at 3:35 pm.
17 February 1997
Last Updated on 16 October 1997