LegCo Paper No. CB(2)2749/96-97
(These minutes have been seen
by the Administration)
Ref : CB2/BC/6/96

Minutes of the ninth meeting of the Bills Committee on the
Crimes (Amendment) (No. 2) Bill 1996

held on Wednesday, 16 April 1997 at 12:30 pm
in Conference Room B of the LegCo Building

Members Present :

    Hon Albert HO Chun-yan (Chairman)
    Hon Emily LAU Wai-hing
    Hon James TO Kun-sun
    Hon Christine LOH Kung-wai
    Hon Bruce LIU Sing-lee
    Hon Margaret NG
    Hon Mrs Elizabeth WONG, CBE, ISO, JP

Members Absent :

    Hon CHEUNG Man-kwong
    Hon Frederick FUNG Kin-kee
    Hon Andrew CHENG Kar-foo
    Hon TSANG Kin-shing

    Public Officers Attending :

    Mr Andrew KLUTH
    Principal Assistant Secretary for Security
    Mr Ian DEANE
    Senior Assistant Solicitor General

    Clerk in Attendance :

    Ms Doris CHAN
    Chief Assistant Secretary (2)3

    Staff in Attendance :

    Mr Jimmy MA
    Legal Adviser
    Miss Erin TSANG
    Senior Assistant Secretary (2)7

I.Confirmation of minutes of meeting

(LegCo Paper No. CB(2)1787/96-97)

The minutes of meeting held on 28 February 1997 were confirmed without amendment.

II.Continuation of discussion on members’ submissions/stance

The Frontier

2. Ms Emily LAU said that the Frontier agreed to the approach suggested by Miss Margaret NG to bring the legislation into line with the International Covenant on Civil and Political Rights (ICCPR) and the Bill of Rights Ordinance (BORO), and it did not support the creation of the offences of subversion and secession.

The Democratic Party

3. Mr James TO briefed the meeting on the Democratic Party’s submission (tabled at the meeting and issued to members vide LegCo Paper No. CB(2) 1925/96-97). In gist, the Democratic Party maintained that:

  1. the labelling of an offence was secondary; it was more important to define clearly the acts to be prohibited;

  2. all offensive acts which sought to overthrow or subvert the government must contain clear substance, vis à vis the constituting element of violence;

  3. in order to balance the freedom of expression on the one hand and the upholding of national security on the other, legislative safeguards should be built in to provide that: (i) a person was only actionable for treason if he posed an imminent threat of invasion or war against the state and that he had a clear intention to cause an invasion or a war against the state; and (ii) a person would only be prosecuted for treasonable offences if the offensive activities that he had committed involved substantial planning and organisation, posed imminent and genuine threat to the government, and were committed with a clear intention to overthrow or supplant the authority of the government;

  4. the concepts of subversion and secession as proposed by the Administration could be covered under treasonable offences;

  5. the provision of sedition should be amended by incorporating the concept of "causing imminent violence" so that expression of extreme views in a liberal society as Hong Kong would not be restricted, and that more exclusion provisions should be provided to ensure that the following acts would not be prosecuted:

    1. to express a view of non-violent change of the Government of the United Kingdom or the Government of Hong Kong in good faith;

    2. to direct at transmitting information about alleged violations of international human rights standards or international humanitarian law; and

    3. to criticise, or express any disaffection against or insult the Government of the United Kingdom or the Government of Hong Kong or its symbols, its agencies, or public officer without the intention to causing imminent violence; and

  6. since the concepts of Article 23 of the Basic Law (Article 23) were all covered in the Democratic Party’s proposals , the proposals, after due adaptation, would be workable after the transfer of sovereignty, and the future legislature of the Hong Kong Special Administrative Region (HKSAR) needed not enact new laws in those areas again.

4. The Chairman added that the Democratic Party had made reference to the existing legislation and legislative provisions in other advanced countries in drafting the proposed amendments. The definitions of the offences were narrower than those proposed by the Administration.

5. Miss Margaret NG expressed reservation on the Democratic Party’s proposal which suggested substantial amendments and changes to the legislation and hence the uncertainty of their legal effects. She then asked and the Legal Adviser said that it was important to have clear drafting instructions. He shared Miss Margaret NG’s view that the legal profession and the relevant deputations might be consulted again on any major amendments proposed to the legislation. In reply to Ms Emily LAU, the Legal Adviser said that if any Committee stage amendment (CSA) proposed by a Bills Committee was technical in nature or involved any major change to the primary ordinance, the Bills Committee might consider consulting relevant deputations for comments. As to whether the Bills Committee should consult the deputations again, it was a matter for members to decide. He stressed that the clarity in defining the offences would have bearings on the legal effects of the legislation. It involved indepth technical study before the offences could be defined with clarity.

6. Miss Margaret NG then suggested and the meeting agreed that the Bills Committee should first decide the approach to be adopted in amending the respective provisions before consulting the legal profession and the deputations again.

III.Clause by clause examination of the Bill

Voting procedure of the Bills Committee

7. The Chairman asked and the Legal Adviser advised that pursuant to Order No. 60D(7) of the Standing Orders of the Legislative Council (the Standing Orders), all matters for the decision of the Bills Committee shall be decided by a majority of the members voting. The chairman or any other member presiding shall, if the votes be equally divided, have a casting vote in addition to his original vote. Notwithstanding the aforesaid, the Standing Orders also provided that subject to the Standing Orders, the Bills Committee had the authority to determine its procedure and practice. In further reply to the Chairman, the Legal Adviser said that the chairman or any other member presiding shall, in general, have the responsibility to break the tie.

Sections 2(1)(a) and (b)

8. The Democratic Party opined that in view of the transfer of sovereignty and the fact that the People’s Republic of China, unlike the United Kingdom, was not symbolised by an individual, it was unnecessary to retain section 2(1)(a) and (b) for future adaptation. Ms Emily LAU sided with the Democratic Party.

9. Mr Bruce LIU and Miss Margaret NG, however, opined that any amendments made to the existing sections 2(1)(a) and (b) should be left to a future adaptation exercise. Moreover, Miss Margaret NG and Miss Christine LOH were concerned that any amendment proposed to the legislation, which might change its substance or be interpreted as changing the legislative intent, was not desirable because the benefit of judicial interpretations under the common law might no longer be available. Ms Emily LAU then sought confirmation and the Legal Adviser said that it was a matter of interpretation as to the benefit of judicial interpretations under the common law. Any amendment to the statute law would bring about uncertainty as to the applicability of the existing case law, and the more drastic the amendments proposed to the legislation, the greater the possibility of it being inapplicable. It was for the Bills Committee to decide which should take priority: the necessity to amend the legislation substantively or the necessity to uphold the applicability of the existing case law. Miss Margaret NG then asked and Mr Ian DEANE said that the amendments proposed by the Administration to sections 2 and 3 were relatively minor and would not have significant impact on the existing understanding of the legal concepts.

10. A majority of the members then voted for the retention of section 2(1)(a) and (b) without any amendment.

Section 2(1)(c)

11. The Chairman explained that in the Democratic Party’s proposal, the offence of treason was divided into two categories: (a) involving foreign enemies; and (b) not involving foreign enemies, which embedded the concepts of subversion and secession as proposed by the Administration. To his understanding, the Basic Law also defined the commission of any treasonable offences with the assistance of foreign enemies as treason, and without as subversion. In reply to Ms Emily LAU, he said that there might not be a lot of case law available for reference regarding the above categorisation of the offence of treason. In other common law jurisdictions as New Zealand and Australia, the offence of treason was only defined as "overthrowing the government".

12. Ms Emily LAU then asked and Mr Ian DEANE said that "to overthrow" meant to displace or set aside. There was no case law definition of "overthrow". The word "overthrow" appeared in the Australian legislation and some other common law jurisdictions. Although it was not a new concept, it had never been put to the test. Ms Emily LAU then sought confirmation and the Legal Adviser said that the word "overthrow" was used in other common law jurisdictions, such as Australia. If the unlawful act of overthrowing the government was achieved, there would not be any prosecution in those circumstances and hence the application of the concept. Such offence was created for the protection of national security and it could be interpreted as a political crime. Its application had not been frequent in recent years.

13. In this connection, the Chairman asked and Mr DEANE explained that the unlawful conduct in the proposed section 2(1)(c)(i) was more serious than that in the proposed section 5(a) because the former dealt with levying war against the state. In further addressing as to whether anyone who did an unlawful act capable of overthrowing the government under the proposed section 5(a) would almost amount to levying war against the state, he said that under the common law definition, overthrowing the government involved a spectrum of unlawful activities; levying war against the state was only one type of it, and the seriousness of the unlawful acts was reflected in their penalties.

14. Mr James TO then quoted for members’ information the following paragraph extracted from the United Kingdom Law Commission Working Paper on the reform of the offence of treason:

"the war is not limited to the true war of international law but will include any foreseeable disturbance that is produced by considerable number of persons and is directed at some purpose which is not of a private but of a general character, e.g. to release the prisoner. It is essential that the offender should be armed with military weapons. It is quite sufficient if there be assembly or a large number of men who intend to debar the government from the free exercise of its lawful powers and are ready to resist with violence any opposition. That can amount to war."

Mr DEANE pointed out that the law quoted above was ancient and was criticised severely for its vagueness. In fact, the Commission went on to say in the report that the above definition and the case law were not satisfactory, and concluded that there should be a separate offence of undertaking activities or conduct with an intention of overthrowing the government in peace time. The Chairman also opined that it was dangerous to rely on old cases because they might not be applicable to the modern concepts in the society. Miss Margaret NG said that it should be for a law reform committee, and not the Bills Committee which had limited resources and time for indepth study, to do a law reform exercise on the offence of treason.

15. Mr Andrew KLUTH shared Miss Margaret NG’s view and said that the Administration was aware that there would be a lot of difficulties in taking a more extensive appraisal of the existing legislation. In view of the constraint of resources, the Administration did not favour to take a law reform approach in proposing drastic amendments to the legislation before substantial discussion in law reform context could have been made. To address Ms Emily LAU’s concern, Mr KLUTH said that the Administration’s proposal had attempted to bring the legislation into line with ICCPR and BORO as pledged.

16. Miss Margaret NG then asked and Mr Ian DEANE said that in order to prepare the legislation for easy adaptation, the Administration proposed to replace the inapplicable reference to Her Majesty as the constitutional authority with the reference to the state, i.e. the United Kingdom, in section 2(1)(c). The wording in the existing section 2(1)(c)(i), i.e. "with the intent to depose Her Majesty from the style, honour and royal name of the Crown of the United Kingdom or of any other of Her Majesty’s dominions" was equivalent to the new wording as proposed, i.e. "with the intention of overthrowing the Government of the United Kingdom". Miss Margaret NG did not agree to the Administration’s proposed amendments to section 2(1)(c)(i) on the grounds that the meaning of the substitution was not clear and hence the uncertainty of its legal effects. She maintained that the existing section 2(1)(c)(i) should remain intact.

17. Mr Bruce LIU, however, supported the Administration’s proposal to modernise the provision in accordance with needs since the concept of levying war against the Queen would not be applicable after the transfer of sovereignty.

18. Mr James TO, who was in favour of the Administration’s proposal, said that the new sections 2(1)(c)(i) and (ii) proposed by the Administration had narrowed the concept of war in the legislation. Miss Christine LOH and Ms Emily LAU also agreed to the Administration’s proposal.

19. After discussion, a majority of members agreed to the Administration’s proposed amendments to section 2(1)(c).

Sections 2(1)(d), (e) and (f) and section 2(2)

20. A majority of members agreed that 2(1)(d) and (f) and 2(2) should remain unchanged, and that the reference to "Her Majesty" in section 2(1)(e) should be replaced by the reference to "the United Kingdom" as proposed by the Administration.

Section 3

21. Miss Margaret NG referred to the views of the Hong Kong Bar Association and Justice that the court would interpret section 3 together with the relevant provisions of ICCPR and BORO. Even if section 3 was not amended, it would not amount to criminalisation of expression. She reiterated that although she would support a law reform exercise to modernise the provision, in view of the constraint of time and resources of the Bills Committee to conduct indepth and extensive research, it would not be desirable to adopt a law reform approach to amend the provision presently.

22. The Chairman indicated that under the existing section 3, the manifestation of an intention as set out in section 3(1)(a) - (c) by an overt act was liable to prosecution. Since the intention might never be realised by the overt act and that the provision criminalised speech or writing, the Democratic Party opined that the entire section should be amended. Ms Emily LAU and Miss Christine LOH agreed to the Democratic Party’s suggestion to repeal the existing section 3.

23. After discussion, a majority of members agreed to repeal the existing section 3.

Inclusion of exclusion provisions

24. Mr Bruce LIU and Mr James To then suggested and the Chairman said that the incorporation of exclusion provisions to the Ordinance would be considered after the Bills Committee had scrutinised the Administration’s remaining proposals, vis à vis the proposed offences of subversion and secession.

Summary of the deputations’ views

25. Ms Emily LAU suggested and the meeting agreed that the Secretariat would summarise for members’ reference the deputations’ views regarding the legislation in a tabular form.

(Post-meeting note: the summary was issued to members vide LegCo Paper No. CB(2) 1965/96-97 on 21 April 1997.)

IV.Dates of future meetings

26. The next meeting would be held on Tuesday, 22 April 1997. Two additional meetings would be held on 1 May 1997 and 6 May 1997.

(Post-meeting note: the meeting scheduled for 1 May 1997 was cancelled.)

27. There being no other business, the meeting ended at 2:30 pm.

LegCo Secretariat
23 June 1997

Last Updated on 15 October 1997