LegCo Paper No. CB(2) 1936/96-97
(These minutes have been seen by the Administration)
Ref : CB2/BC/7/96
Bills Committee on Official Secrets Bill
Minutes of the 5th Meeting held on
Monday, 24 March 1997 at 2:30 pm
in Conference Room A 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 Emily LAU Wai-hing
Hon James TO Kun-sun
Hon Howard YOUNG, JP
Hon Ambrose LAU Hon-chuen, JP
Hon Bruce LIU Sing-lee
Hon Mrs Elizabeth WONG, CBE, ISO, JP
Members Absent :
Hon Ronald ARCULLI, OBE, JP
Hon Andrew CHENG Kar-foo
Hon LEUNG Yiu-chung
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 Christopher CHAN
- Mr Patrick MOSS
- Secretary 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. Meeting with deputations and the Administration
Hong Kong Human Rights Monitor (HKHRM)
(Paper No. CB(2) 1548/96-97(01))
At the invitation of the Chairman, representative of HKHRM highlighted the views of HKHRM as follows -
- The Official Secrets Bill (the Bill) should not strictly be a localization bill. LegCo should introduce its legislation on official secrets.
- It was important to maintain an element of proportion in the Bill. The precedent case of "Chandler and others v Director of Public Prosecutions" indicated that section 1 of the United Kingdom Official Secrets Acts (the UK Acts), which was reproduced as clause 3 of the Bill, could be used to prosecute behaviour not connected with spying.
- The Bill should encompass a "whistle-blower defence", which allowed a person to disclose information in the process of revealing some official wrong-doing.
- The burden of proof was partially reversed in the Bill. As regards unauthorized disclosure, the prosecution was simply required to prove that damage had been done. After that, the burden of proof was shifted back to the defendant to prove lack of knowledge or cause to believe that the disclosure would have such consequences.
- Clause 3 of the Bill contained a blatant presumption of guilt which allowed the jury to draw an inference of guilt on the basis of evidence of the accuseds character, conduct and circumstances of the case. This was very dangerous.
In response to a member, representative of HKHRM stated that a Mr George BLAKE was sentenced a total of 42 years imprisonment in 1961, while a Mr Goeffrey PRIME was sentenced a total of 35 years imprisonment in 1983, both for espionage. While there was no official report, there had been a lot of coverage in the press and law books. The Chairman requested HKHRM and the Administration to provide more information on the two cases.
Hong Kong Journalists Association (HKJA)
(Paper No. CB(2) 1358/96-97(03), LegCo Paper No. CB(2) 1638/96-97)
Representatives of HKJA presented HKJAs submission and highlighted the following -
- HKJA shared HKHRMs view that the Bill should not just be a localization bill. It called for both localization and liberalization of the UK Acts.
- There should be a proper balance between protection of official information and public interest in the disclosure of information under certain criteria.
- HKJA called for the introduction of a public interest defence, which was present in the Prevention of Bribery Ordinance (PBO), and a prior publication defence.
- There was a lack of "harm test", especially for provisions relating to spying and interception of communications.
- In examining the Bill, reference should be made to the Johannesburg Principles, especially principles 15 to 18.
- HKJA was very concerned that clause 3 was very broad, allowing prosecution of people in the vicinity of a prohibited place.
- The Administration should clarify whether the Interpretation and General Clauses Ordinance (Cap. 1), which allowed special procedures for the search and seizure of journalistic material, covered the seizure of journalistic material under the Bill. If it was not the case, the Administration should consider introducing appropriate amendments to safeguard journalistic materials.
- As secrecy laws in China were broader than those in Hong Kong, the Administration should -
- seek clarification on whether the Bill satisfied the requirement in Article 23 of the Basic Law (BL23) and confirmation from China that the enactment of a separate legislation on "theft of state secrets" would not be required;
- examine whether journalists who obtained "secret" mainland information from sources in Hong Kong could be prosecuted under secrecy laws in China; and
- examine whether a journalist who had been convicted under the Official Secrets Ordinance in Hong Kong could later be prosecuted in China, thus receiving double punishment.
A member referred to HKJAs submission and questioned how publishers and journalists could be charged under clause 13, which mainly applied to security and intelligence officers. Representative of HKJA responded that it was brought to HKJAs attention by a fellow journalist. At the Chairmans request, he undertook to provide further information in writing.
In response to a member, Senior Assistant Solicitor General (SASG) agreed to look into the issue raised by HKJA on Interpretation and General Clauses Ordinance (Cap. 1) and provide written response for the next meeting.
Hong Kong Bar Association (BAR)
(LegCo Paper No. CB(2) 1432/96-97)
Representative of BAR presented the following views -
- Apart from localization, there seemed to be no other reason justifying the need for the Bill. There had not been any prosecution under the Acts in Hong Kong, although there was one case in which the Attorney Generals consent for prosecution was sought and subsequently withdrawn. It was time to review whether a domestic legislation on official secrets was needed in Hong Kong.
- The Bill seemed to have gone beyond the requirement of BL23 on "theft of state secrets".
- BAR shared HKHRMs concern on clause 3, the provisions of which might cause journalists to submit information obtained for prior vetting by relevant authority before publication.
- BAR shared HKHRM and HKJAs view that a public interest defence was much needed.
He requested the Committee to introduce amendments bringing the Bill into consistency with recognized international human rights standards, the Bill of Rights Ordinance, and the International Covenant on Civil and Political Rights.
The Law Society of Hong Kong (LawSoc)
(LegCo Paper No. CB(2) 1580/96-97)
Representative of LawSo presented the following -
- As the UK Acts were enacted more than half a century ago, their relevance to the present-day world was questionable. For example, a person who was in the neighbourhood of a prohibited place might commit an offence under clause 3(1)(a). However, with modern technology, he doubted whether anyone needed to be in the neighbourhood of a prohibited place for spying.
- Clause 3(2), which allowed prosecuting a person for "known character", was very draconian.
- A presumption of guilt was not only found with provisions relating to spying, but also in clauses 5 and 6. While there was a need to maintain balance between protection of official information and the general principles of law, some basic principles of law, e.g. proof of guilt by the prosecution instead of proof of innocence by the defendant, should be preserved.
- Clauses 18 to 20 somewhat curtailed the reporting of information, although they were limited to the four areas of security, intelligence, defence and international relationship. With the experience in China that a person could be convicted 12 years imprisonment for disclosing economic information, the question of whether the four areas could be generalized to cover other areas should be carefully examined.
- While LawSo welcomed clause 8(7), it shared HKJAs concern on disclosing the source of information, as it would limit the method of obtaining information.
- While it was necessary to prevent spying and leakage of official information, the publics right to know should also be preserved.
The Administrations responses to the views of deputations
(Paper No. CB(2) 1584/96-97(02))
Principal Assistant Secretary for Security (PAS(S)) stressed that the Bill was a localization bill. The deputations views were somewhat idealistic. As regards prior disclosure and public interest defence, the Administration had provided the Committee with Hansards of the resumption of Second Reading debates on the 1989 Act, which concluded at that time that there was no need for such defences. The Administration had also explained how the prior disclosure and public interest defences could be taken into account by the court in prosecutions brought under the Bill. The Administration believed that the interests of any persons involved in such a matter would be adequately protected in the courts. The judiciary would give due weight to the nature of offences and to the level of harm that might have been created in considering whether any public interest or prior disclosure should be taken into account. He agreed to provide written response to HKHRMs views on "reversal of the burden of proof".
On the question of whether the requirement in BL23 was mandatory, PAS(S) stated that the Administrations position was the same as that on the Crimes (Amendment) (No. 2) Bill 1996. While he was not in a position to interpret the BL, he did not believe that BL23 would have been phrased in that particular way if there was not the intention for legislation in those areas. He reminded members that both bills were drafted following the publicity arising from particular cases in late 1995/early 1996. As regards the view that the Official Secrets Bill exceeded what was required in BL23, he stressed that it mainly involved localizing Acts which already applied Hong Kong. It happened that the Bill also covered the area of "theft of state secrets" in BL23. In response to a member, he confirmed that if the UK Acts were not localized, there would be no legislation on protection of official information in Hong Kong. In this connection, the Administration considered it important to protect official information in Hong Kong.
As regards the question of whether the Chinese side intended to introduce further legislation on "theft of state secrets", PAS(S) stated that while he could not disclose discussions of the Sino-British Joint Liaison Group (JLG) in view of the principle of confidentiality. However, the Administration had never got any impression that the Chinese side intended to introduce further legislation in this respect. The Chinese side had always reserved the right for the Hong Kong Special Administrative Region to introduce amendments to any ordinances.
In response to a question raised by the representative of BAR, PAS(S) stated that the Administration had not undertaken any prosecution under the Acts since 1992. It was not possible to confirm whether any prosecution had been contemplated.
Views on whether there should be legislation on official secrets in Hong Kong and interpretation of Article 23 of the Basic Law
In response to a members question on whether there should be legislation on official secrets in Hong Kong, representative of BAR opined that as most of the offences in the Bill were covered by current legislation, such as PBO and the Theft Ordinance, LegCo should consider whether there was a fundamental need for a local legislation on official secrets. Representative of BAR added that "theft of state secrets" was only one aspect of the Bill. Some parts of the Bill, such as those on "unlawful disclosure", seemed to exceed what was required in BL23 on "theft of state secrets". Another member enquired whether BARs position on the Bill was the same as that on the Crimes (Amendment) (No.2) Bill 1996, i.e. since Hong Kong had no need for such a legislation, Hong Kong should not enact any legislation of the kind simply to satisfy the requirement of BL23. Representative of BAR responded that BAR maintained the same position as that on the Crimes (Amendment) (No.2) Bill 1996 and doubted whether the requirement in BL23 was mandatory. The Chairman commented that the Bill was slightly different from the Crimes (Amendment) (No.2) Bill 1996 in that the Official Secrets Bill involved localization of what was already in place in Hong Kong .
Representative of HKJA commented that ideally there should be a legislation on access to information stipulating that, with certain exceptions, all information should be in the public domain. However, it was logical to have a legislation on official secrets. HKJA also realized the requirement in BL23 for legislation on "theft of state secrets". It therefore called for both localization and liberalization of the UK Acts. Representatives of HKHRM and LawSoc shared the same views. The latter added that, to a certain extent, the Administration needed protection of information in certain areas.
Public interest defence
In response to a member, representative of HKJA cited Principle 15 of the Johannesburg Principles and commented that as the Administration believed that the public interest defence would be taken into account by the judge, he saw no reason why it could not be written in the law. Representatives of HKHRM and LawSoc shared the same view. Representative of BAR also shared the same view and added that as the definition of damage was very closely related to the prevailing government policy, any act that interfered with the implementation of such policy could be considered as damaging. PAS(S) responded that the Administration had pointed out in the past that in dealing with the six areas of information in the Bill, disclosure of information without lawful authority under the six areas would cause or be likely to cause substantial harm to the public interest. This was one of the reasons for the Administrations decision not to include a public interest defence in the Bill.
A member suggested that in considering the inclusion of a public interest defence, reference should be made to section 30 of PBO, in which the Administration agreed to include a public interest defence in the areas of serious misconduct, illegality, and abuse of power. Representatives of HKJA stated that while HKJA called for a broad public interest defence encompassing all ordinances, it was aware of the Administrations objection to a wide ranging public interest defence. HKJA therefore supported the approach adopted in PBO. He hoped that a public interest defence, if included, would not be confined to specific provisions but form a new part of the Bill. Representative of BAR commented that since the Administration had accepted the inclusion of a public interest defence in PBO, it should not logically resist such a defence at least in relation to clause 17. A member remarked that basically there should not be any restriction on a public interest defence. However, should the Administration consider it too broad, the approach adopted in PBO might be a start.
Members requested the LegCo Legal Service Division to draft Committee stage amendment(s), one broader and one narrower, to include a public interest defence in the Bill. Where necessary, reference should be made to section 30 of PBO.
Members also requested the Administration to consider the inclusion of a public interest defence to offences under Part III of the Bill and the inclusion of a clause along the lines of section 30 of PBO.
Definition of "enemy"
A member referred to paragraph 2 of the Administrations paper and commented that the definition of "enemy" should be further discussed at a future meeting, particularly if it included "a potential enemy with whom we might some day be at war". A member stated that this inclusion of potential enemy was unacceptable, as todays friend might be tomorrows enemy, and vice versa. As there would be a change of sovereignty on 1 July 1997, a friend of the old sovereign power might be an enemy of the new sovereign power, and vice versa. Another member added that if "enemy" included potential enemy, it could mean any foreign nation. SASG responded that the timing of an act was important in considering such cases. The Administration was not suggesting the adoption of the definition mentioned in paragraph 2 of the Administrations paper. This definition was provided in response to members request at the last meeting and it was the only definition of "enemy" that he was aware of. The relevant UK Act was enacted in 1911. It was clear in those days that Germany was an enemy or potential enemy of the UK. This accounted for the 1913 decision to this effect, which was mentioned in the Administrations paper. He was confident that the court would exercise common sense in considering the meaning of "enemy". The Chairman recalled that another member had raised a similar question on possible prosecution after 1 July 1997 of "offences prejudicial to the interests of United Kingdom" committed before then. At that time, the Administration stated that while a prosecution normally depended on the law prevailing at the time of commitment of the offence, the new sovereign power was unlikely to prosecute offences prejudicial to the interests of the old sovereign power.
Protection of official secrets in the United States
A member commented that the UK Acts were enacted in 1911 and comparatively outdated. She referred to paragraph 5 of the Administrations paper and stated that reference should be made to modern overseas legislation, such as the United States, in examining the Bill.
A member questioned whether the "D" notices adopted by UK would be adopted in Hong Kong. PAS(S) responded that there had never been "D" notices in Hong Kong and the Administration had no plans to use them in Hong Kong. Nevertheless, upon members request, he would provide more information on such notices.
Consultation exercise on Interception of Communications Bill
On the question of whether clauses 17(2)(c) and (d) would be amended in accordance with the results of the consultation exercise on Interception of Communications Bill, PAS(S) stated that any necessary amendments arising from the consultation would be separately addressed.
Intelligence services in Hong Kong
A member pointed out that "intelligence services" was mentioned in some parts of the Bill. He requested the Administration to provide information on intelligence organizations in Hong Kong. If there was no such organization in Hong Kong, "intelligence services" should be removed from the Bill.
II. Date of next meeting
The Chairman reminded members that the next meeting would be held on 8 April 1997 at 10:30 am to continue discussion on the Bill. She welcomed the deputations to attend the meeting.
The meeting ended at 4:35 pm.
18 April 1997
Last Updated on 16 October 1997