LegCo Paper No. CB(2) 1935/96-97
(These minutes have been seen by the Administration)
Ref : CB2/BC/7/96
Bills Committee on Official Secrets Bill
Minutes of the 4th Meeting held on
Monday, 10 March 1997 at 2:30 pm
in the Chamber of the Legislative Council Building
Members Present :
Hon Margaret NG (Deputy Chairman)(Chairman of the meeting)
Hon Ronald ARCULLI, 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
Members Absent :
Hon Christine LOH Kung-wai (Chairman)
Hon Mrs Selina CHOW, OBE, JP
Hon Andrew CHENG Kar-foo
Hon LEUNG Yiu-chung
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. Confirmation of minutes of meeting and matters arising
(LegCo Paper No. CB(2) 1452/96-97)
The minutes of the meeting held on 18 February 1997 were confirmed.
II. Meeting with the Administration
(LegCo Paper Nos. CB(2) 1439/96-97 and 1466/96-97)
Assistant Legal Adviser 4 (ALA4) highlighted the salient points of the following precedent cases -
- Chandler and others v Director of Public Prosecutions (the Chandler case);
- Attorney General v Guardian Newspapers Ltd and others and related appeals;
- Attorney General v Guardian Newspapers Ltd and others (No. 2) and related appeals;
- Attorney General v Times Newspapers Ltd and another;
- The Observer and the Guardian v United Kingdom (Violation of freedom of expression); and
- The Sunday Times v United Kingdom (No. 2) (Reporting : freedom of expression).
ALA4 informed members that the Chandler case involved, inter alia, the interpretation of the United Kingdom Official Secrets Act (the UK Act) 1911 in respect of "purpose prejudicial to the safety or interests of a state". It was concerned with a UK decision on an appeal to the House of Lords. Six persons were convicted of the offences of conspiracy to commit and to incite others to commit a breach of section 1 of the UK Act 1911 for a purpose prejudicial to the safety or interests of the state to enter a Royal Air Force station. The appellants, believing the possession of nuclear weapons should be forbidden everywhere, planned a demonstration at a Royal Air Force station to immobilize the aircraft there for a few hours. The station was a prohibited place for the purposes of the UK Act 1911. At the trial, the trial judge ruled that the appellants were not entitled to call evidence to establish that it would be beneficial for the country to give up nuclear armament, and evidence tendered on that issue was not admitted. The judge in effect directed the jury to convict, if satisfied, that the appellants immediate purpose was the obstruction of aircraft. The appellants were convicted at the trial. Their appeal against conviction to the Court of Criminal Appeal was dismissed. Another appeal concerning the proper construction of the words "for any purpose prejudicial to the safety or interests of the state" in section 1 of the UK Act 1911 was dismissed by the House of Lords.
ALA4 continued that the other precedent cases were not related to interpretation of the UK Act. Case (b) was related to a civil proceeding concerning the law relating to application for interlocutory injunction. Case (c) was related to an application by the government to restrain newspapers from publishing extracts from the "Spycatcher". Case (d) involved an Attorney Generals application to the court relating to criminal contempt against the Times Newspapers. Cases (e) and (f) involved appeals from various newspapers to the European Court concerning alleged violations of Article 10 of the European Convention on Human Rights.
As regards the Chandler case, the Chairman was concerned that whether a purpose was prejudicial was to be determined by the government and no one was entitled to challenge it in court. She was also concerned that, in determining whether there was a purpose prejudicial to the safety or interests of the state, the court only considered the immediate purpose. Senior Assistant Solicitor General (SASG) responded that this might be to prevent a defendant avoiding liability by arguing that, although his immediate purpose was prejudicial, his long term purpose or aim, e.g., to make money, was not. He was of the view that the court would contest any unconvincing view of the Government and correct abuse. The judicial decision in the Chandler case was made some 30 years ago. It was likely that, in a marginal case, the present day court with modern judicial thinking would take a different view. As regards a members suggestion of incorporating in the Bill the requirement that interpretation of any purpose prejudicial to the safety or interests of the state should be made objectively, he doubted whether an objective interpretation could be safeguarded by simply incorporating such a requirement.
Meaning of "safety or interests of the state"
In response to a members question on the definition of "safety or interests of the state", Assistant Legal Adviser 4 cited the interpretation of Lord Pearce in the Chandler case (page 160 of LegCo Paper No. CB(2) 1439/96-97), which stated that "In such a context the interests of the state must in my judgement mean the interests of the state according to the policies laid down for it by its recognized organs of government and authority, the policies of the state as they are, not as they ought, in the opinion of a jury, to be". SASG supported the interpretation and added that it was very difficult to define precisely what was prejudicial to the safety or interests of the state. A member was particularly concerned that "interests" in clause 3 was too broad and questioned whether it included political and economic interests, or was only confined to security-related interests. SASG responded that "safety or interests of a state" referred to the security and essential well-being of a state. The Chandler case itself was concerned with defence capability.
Meaning of "enemy"
A member questioned whether "enemy" could be specified and whether it included economic, political enemy or potential enemy in the absence of a war. Another member stated that the absence of diplomatic relations did not necessarily mean that a country was an enemy. SASG considered that "enemy" referred to an enemy or a potential enemy in a war-like context. In the Chandler case, it referred to a potential enemy in a war-like situation just before the First World War. At members request, he agreed to provide members with the definition of "enemy" in other jurisdictions and relevant precedent cases. The Chairman requested the Administration to identify the definition of "enemy", if any, in other ordinances of Hong Kong.
Meaning of "foreign agent"
A member commented that "foreign agent" in clause 3(5) was too embracing. He suggested that "foreign agent" should be clearly defined, as in other countries such as the United States (US) and Australia. SASG agreed to look into the issue and provide members with the definition of "foreign agent" in other jurisdictions.
Act of state
In response to a member, SASG stated that he did not consider the concept of act of state to have any bearing on clause 3(1) or the phrase "purpose prejudicial to the safety or interests of" the state. Another member remarked that, to his understanding, an act of state was related to an official or government.
Interpretation under Article 158 of the Basic Law
In response to a member, SASG stated that the court was not obliged under Article 158 of the Basic Law to seek an interpretation from the Standing Committee of the National Peoples Congress whenever interpretation of provisions in the enacted Official Secrets Ordinance was needed.
List of behaviour prejudicial to the safety or interests of the state
A member commented that the Administration should draw up a list of behaviour prejudicial to the safety or interests of UK or Hong Kong. Principal Assistant Secretary for Security (PAS(S)) responded that, particularly as there were very few precedent cases that could provide guidance in this area, any list to be drawn up by the Administration would necessarily be broad and embracing, which could well be counter-productive to the interests of the public at large. It was difficult to apply the same criteria towards a particular act under varying circumstances at different times. The extent of damage created by a certain behaviour might differ from one occasion to another. SASG added that, in deciding whether a prosecution should be made, the Attorney General would exercise his discretion responsibly and sensibly and would not consent to prosecution against behaviour not posing a serious threat to the safety or interests of the state.
PAS(S) informed members that, in drafting the Bill, the Administration had carefully studied the application of equivalent legislation in other countries as far as possible to determine -
- whether the UK Acts could be safely localized; and
- whether there were any issues making it necessary for the Administration to be more specific in any area of the Bill.
The Administration had not identified any countries where there were more precise definitions of such behaviour. It had followed a reasonable and rational approach broadly similar to those adopted in other common law countries. Given the experience in other countries with similar legislation, the Bill was reasonable and would be applied in an appropriate manner in Hong Kong. He reiterated that as the Bill was a localization bill, it was more appropriate to tackle the issues raised by members separately in the context of a future comprehensive law review exercise.
A member reminded the Administration to provide, as agreed at the last meeting, information on the jurisprudence of US in the area of freedom of expression and protection of official secrets.
Members were generally of the view that the provisions of the Bill were too broad and should be narrowed to prevent abuse. A member commented that clause 3(2) of the Bill was even more draconian that the UK Act. SASG responded that the provision in clause 3(2) was also in the 1911 UK Act. It was not used in the Chandler case because it was not necessary. He stressed that "appears" in clause 3(2) meant "appears to the court according to the ordinary rules on admissibility", not "appears to the Crown". He added that "known character as proved" in clause 3(2) meant as proved according to the ordinary rules. There were a number of precedent cases concerning the admission of character evidence in criminal proceedings. PAS(S) stressed that the judiciary should adopt a reasonable approach.
In response to a member, SASG stated that "prohibited place" in clause 3(1)(a) was defined in clause 2 of the Bill. Clauses 3(1)(b) and (c) were related to defence, security, or intelligence material/information intended to be directly or indirectly useful to an enemy. He added that both a prejudicial purpose and information/material intended to be directly or indirectly useful to an enemy were required for proof of an offence under clause 3(1).
III. Date of next meeting
The Chairman reminded members that the next meeting would be held on 24 March 1997 at 2:30 pm to gauge views of deputations.
The meeting ended at 4:05 pm.
18 April 1997
Last Updated on 16 October 1997