LegCo Paper No. CB(2)1314/96-97
(These minutes have been seen by the Administration)
Ref : CB2/BC/6/96

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

held on Tuesday, 21 January 1997 at 2:30 pm
in Conference Room A of the LegCo Building

Members Present :

    Hon Albert HO Chun-yan ( Chairman )
    Hon CHEUNG Man-kwong
    Hon Frederick FUNG Kin-kee
    Hon Emily LAU Wai-hing
    Hon James TO Kun-sun
    Hon Christine LOH Kung-wai
    Hon Andrew CHENG Kar-foo
    Hon Bruce LIU Sing-lee
    Hon Margaret NG
    Hon TSANG Kin-shing
    Hon Mrs Elizabeth WONG, CBE, ISO, JP

Public Officers Attending :

Mr Andrew KLUTH
Principal Assistant Secretary for Security
Senior Assistant Solicitor General
Mr Jeffrey GUNTER
Senior Crown Counsel
Mr Gilbert MO
Senior Assistant Law Draftsman
Miss Sherman CHAN
Senior Assistant Law Draftsman

Clerk in attendance :

Mrs Betty LEUNG
Chief Assistant Secretary (2)3

Staff in attendance :

Mr LEE Yu-sung
Senior Assistant Legal Adviser
Miss Erin TSANG
Senior Assistant Secretary (2)7

I.Internal discussion

Mr Andrew CHENG suggested that the Bills Committee should consider the general approach in studying the Crimes (Amendment) (No. 2) Bill 1996 (the Bill). Mr CHEUNG Man-kwong added that indepth discussion with the Administration should also be made regarding the terms used in the principal Ordinance (the Ordinance) and the Bill since the Bills Committee intended to review the whole Ordinance as well. The meeting agreed to the two members’ suggestions and further agreed to invite deputations to express their views on the Ordinance and the Bill again in a future meeting.

II.Meeting with the Administration

2. In reply to the Chairman as to the Bills Committee’s intention to review the whole ordinance, Mr Andrew KLUTH said that the Bill was designed to bring the principal Ordinance in line with Article 23 of the Basic Law by introducing the offences of subversion and secession, and to modify the provisions on sedition to reflect the common law position. The Bill was in compliance with the Hong Kong Bill of Rights Ordinance (BORO) and the International Covenants on human rights. The Administration would not undertake a comprehensive review of the existing legislation because it believed that this course of action would be counter-productive in the context of the aims of the Bill and would only create uncertainties and confusion when the aim was to provide reassurances. It would be undesirable to introduce further amendments to the Bill, though the Administration could not object to any members proposing Committee Stage amendments.

3. Mr Andrew KLUTH then briefed members on the Administration’s papers (issued to members vide LegCo Paper Nos. CB(2) 992/96-97 and CB(2) 1001/96-97). Mr Ian DEANE explained that Annex B to the Administration’s paper (LegCo Paper No. CB(2) 1001/96-97 refers) was an extract from the Royal Commission on Australia’s Intelligence and Security Agencies which argued in favour of a provision required in the offence of sedition, i.e. the intention to create violence or public disturbance or disorder. The recommendation was implemented in Australia in 1986 and the provision concerned was similar to the amendment proposed to section 10 of the Ordinance. Chapter 6 of the Article 19 of the Freedom of Expression Manual contained case law from around the world which supported the Administration’s stance that offences similar to the existing offences of treason and sedition, and the proposed offence of subversion, existed in other jurisdictions as well.

Proposal to add "clear and imminent danger" to qualify an overt act

4. In reply to the Chairman, Mr Ian DEANE said that the United States had the strictest approach since case law there applied a "clear and present danger" test in sedition cases. The Human Rights Committee and the European courts were less stringent in their approaches and gave the states greater margin of appreciation in defining the test. Miss Christine LOH pointed out that the requirement of "clear and imminent danger" was not proposed in the Bill. She suggested the Administration to consider adding "to cause present and imminent danger" to qualify an overt act so as to give clear legislative guidance to the court. Mrs Elizabeth WONG supported the definition with clarity to qualify the time frame. Mr James TO requested the Legal Adviser to provide legal opinion in that respect for members’ reference.


5. Mr Andrew KLUTH said that the Administration would not consider proposing a range of qualifying criteria to define the exact scope of each offence. This would fail the purpose of the Bill, which was to allow a proper and objective assessment on whether or not the behaviour in each case was reasonable. The court could decide on the merits of each case. It was conceivable that getting stringent criteria might mean bringing acts within the scope of the legislation which would otherwise clearly not be proper issue for action under the proposed legislation. The Administration considered that drastic amendments to the existing legislation would not be productive.

The use of "unlawful act" and "overt act’ in the Ordinance and the definition of "violence" and "force"

6. In reply to Mr Andrew CHENG as to the necessity to tidying up the use of "unlawful act" and "overt act" in the Ordinance and to defining the word "violence" and "force", Mr Ian DEANE explained that the Administration did not intend to have a major review on the Ordinance and the term "overt act" in the existing legislation would remain intact. When the new offence of subversion was created, the Administration wished to define narrowly the act which triggered the offence and the term "unlawful act" was proposed to restrict the circumstances in which an act with the requisite intention would constitute an offence. The terms "violence" and "force" were self-explanatory in meaning and they had not been defined in other jurisdictions. Nevertheless, the Administration undertook to find case laws relating to the definition of these two words and to consider re-defining the terms "violence" and the phrase "an intention of (doing a certain act) by force" to provide clearer legislative guidance and to facilitate prosecution and court adjudication. Mr James TO then suggested that the Administration could consider re-defining the term "by force" to "by physical force" or "by armed force".


Combination of "intention" and "force" in proposed section 5

7. To address Mr CHEUNG Man-kwong’s concern that the combination of "intention" and "force" in the proposed section 5 of the Bill might bring more acts within the scope of the proposed offence of subversion, Mr Andrew KLUTH said that it was difficult to list out a range of qualifications for the acts which would constitute the offence of subversion. If violence occurred during a peaceful demonstration and the violence was not directed against the constitutional authority, the act would not be actionable for subversion under the legislation. Subversion was only actionable if both the intention and the violent consequence were an integral part of the process and were directed against the authority. Mr Ian DEANE added that the prosecution had to prove beyond reasonable doubt an intention, such as the treasonable intention under section 2 of the Ordinance, before an offence could be established. Chanting slogans could not be inferred as having an intention to levy war against the government. The Chairman then referred to the jurisdiction of New Zealand which subjected an act, instead of an intention, to an offence and requested the Administration to consider refining the proposed section 5 on that basis.


8. Mr Andrew KLUTH remarked that it was acknowledged in the Joint Declaration and the Basic Law that the future Hong Kong Special Administrative Region (SAR) would have its legal system which would base on the common law system. Comparison between Hong Kong and China in terms of the practice in applying legislation, such as how an act could be inferred as having a particular intention, was not meaningful and any reference to the Chinese legal system would not provide a meaningful basis for judging the Bill.

Necessity to legislate on "subversion" and "secession"

9. Ms Margaret NG referred to the majority of the deputations’ view that the Administration need not legislate on the offences of subversion and secession at the present moment. In reply, Mr Andrew KLUTH said that the deputations’ arguments were from an academic and idealistic angle. In response to the LegCo motion passed in 1996 for early action to be taken on amending the Ordinance and in view of the provisions under Article 23 of the Basic Law, the Administration had proposed realistic, reasonable and workable amendments to the Ordinance which were within the context of the Basic Law and were consistent with the International Covenants on human rights and the existing local legislation. The early introduction of the Bill to the LegCo would allow Members more time to scrutinise and debate the Bill. The Administration believed that the duly amended legislation, after adaptation, could, in principle, straddle the handover.

10. Mr James TO asked and Mr Ian DEANE explained that the phrase "overthrowing the Government of the United Kingdom by force " in the proposed section 5 meant the overturning of the Government of the United Kingdom by unconstitutional means. Any intention to bring the government to an early election or to persuade parliament members to change side with a view to bringing the government down would not be actionable for the offence of subversion.

11. Mr James TO and Mr CHEUNG Man-kwong then requested and the Administration agreed to consider adding exclusion provisions to spell out the areas of activities that could be exempted under the proposed offences of subversion and secession in order to restrict their interpretation. The meeting also agreed to consider at the next meeting the exclusion provisions to be proposed to the Bill and the sections where exclusion provisions could be added in the Bill.


Seditious intention under section 9 of the Ordinance

12. Mr Bruce LIU asked and Mr Ian DEANE said that section 9 of the Ordinance probably provided greater protection than the Australian legislation. Under section 9, the defendant need not show he had done an act in good faith whereas the Australian Act required that the act be done in good faith before the defendant could obtain the benefit of the exception.

13. With reference to Mr Andrew CHENG’s enquiry on the difference between sections 9(2)(a) and 9(2)(b), Mr Ian DEANE clarified that the former referred to the mistakes in the day-to-day policies or actions of the government whereas the latter referred to the defects in the constitutional structure or administration of justice. The Chairman opined that the exceptions under section 9(2) were narrowly defined, which restricted the expression of extreme views in a liberal society

14. Mr TSANG Kin-shing then asked and Mr Andrew KLUTH said that any political activity without involvement of and incitement to violence would not be actionable under the provisions relating to sedition.

Adaptation of the reference "Her Majesty"

15. Mr Bruce LIU asked and Mr Jeffrey GUNTER said that minor textual changes on references to Her Majesty and the like were proposed to enable the legislation to be readily adapted for the change of sovereignty. At present, there was no equivalence for the reference "Her Majesty" and it would be a matter of policy to decide what substitutions could be made for such and similar references after the transfer.

Chinese side’s objection

16. In reply to Miss Christine LOH, Mr Andrew KLUTH told the meeting that the Chinese side’s objection did not focus on the substance of the Bill but the principle that it was for the Hong Kong Special Administrative Region, not the Hong Kong Government, to introduce legislation on these concepts.

III. Date of the next meeting

17. Members present agreed that the next meeting would be held on 19 February 1997 at 8:30 am for internal discussion and the meeting with the deputations was scheduled for 28 February 1997 at 4:30 pm.

18. There being no other business, the meeting ended at 4:30 pm.

LegCo Secretariat
5 February 1997

Last Updated on 5 May, 1997