LegCo Paper No. CB(2) 1452/96-97
(These minutes have been seen by the Administration)
Ref : CB2/BC/7/96

Bills Committee on Official Secrets Bill

Minutes of the 2nd Meeting held on
Tuesday, 18 February 1997 at 10:45 am
in the Chamber of the Legislative Council Building

Members Present :

    Hon Christine LOH Kung-wai (Chairman)
    Hon Mrs Selina CHOW, OBE, JP
    Hon Emily LAU Wai-hing
    Hon Ambrose LAU Hon-chuen, JP
    Hon LEUNG Yiu-chung
    Hon Bruce LIU Sing-lee
    Hon Margaret NG

Members Absent :

    Hon Ronald ARCULLI, OBE, JP
    Hon James TO Kun-sun
    Hon Howard YOUNG, JP
    Hon Andrew CHENG Kar-foo
    Hon Albert HO Chun-yan
    Hon Mrs Elizabeth WONG, CBE, ISO, JP

Public Officers Attending :

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

Clerk in Attendance :

Mrs Anna LO
Chief Assistant Secretary (2) 2

Staff in Attendance :

Mr Jimmy MA
Legal Adviser
Miss Connie FUNG
Assistant Legal Adviser 3
Mr Raymond LAM
Senior Assistant Secretary (2)6

I. Confirmation of minutes of meeting and matters arising

(LegCo Paper No. CB(2) 1221/96-97)

The minutes of the meeting held on 16 January 1997 were confirmed.

The Chairman informed members that, as agreed at the last meeting, a press release inviting public views on the Bill was issued on 19 January 1997. As no response had been received, she invited members to suggest names and contact numbers of organizations interested in presenting their views to the Bills Committee. A member suggested to invite views on the Bill, in particular on clauses 3(2) and 3(3), from the Law Society of Hong Kong and the Hong Kong Bar Association. Another member added that views should also be invited from the Hong Kong Journalists Association, Hong Kong Human Rights Monitor, Human Rights Watch, Asia and other human rights organizations.

II. Papers issued since the last meeting

(LegCo Paper No. CB(2) 1124/96-97)

It was noted that two articles and an extract from a book relating to the United Kingdom Official Secrets Acts (1911-1989) (UK Acts) had been identified by the LegCo Legal Service Division and circulated to members.

III. Meeting with the Administration

(Paper No. CB(2) 1195/96-97(01))

At the invitation of the Chairman, Principal Assistant Secretary for Security (PAS(S)) and Senior Assistant Solicitor General (SASG) highlighted the salient points of the Administration’s response to the points raised at the last meeting.

Offences committed before and prosecuted after the change of sovereignty

As regards the possible prosecution after 1 July 1997 of "offences prejudicial to the interests of United Kingdom (UK)" committed before then, SASG 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 want to prosecute offences prejudicial to the interests of the former sovereign power. One practical consideration was that such a prosecution would require co-operation of the latter in the proof of damage to its interests.

Compatibility of the Bill with the International Covenant on Civil and Political Rights and the Bill of Rights Ordinance

A member pointed out that a person who committed an offence under clause 3 was liable on conviction on indictment to imprisonment for 14 years. In view of this heavy sentence, the provisions in clause 3 should not be so broad and loose. She questioned the Administration’s view that the Bill was consistent with the International Covenant on Civil and Political Rights (ICCPR) and the Bill of Rights Ordinance (BORO). She referred to paragraphs 42.41, 42.42 and 42.43 of Annex A to the Administration’s paper and stated that the Criminal Law Reform Committee of Australia (CLRC) had reservations on the consistency of provisions equivalent to clauses 3(2) and 3(3) of the Bill with ICCPR. CLRC formed the view that such provisions should be excluded.

In response, SASG referred to paragraphs 42.47 and 42.48 of Annex A and stated that CLRC was of the view that a provision equivalent to the second part of sub-section 1(2) of UK Act 1911 was inconsistent with ICCPR. Such provision had already been excluded from the Bill. As regards provisions equivalent to the first part of section 1(2) of UK Act 1911, he referred to paragraphs 42.36, 42.38 and 42.40 of the same annex and pointed out that there were views both for and against consistency with ICCPR. While CLRC considered that the provision might be interpreted in such a way as to erode the principle on presumption of innocence in Article 14(2) of ICCPR and should be excluded, it did not conclude affirmatively that such exclusion was necessary because it was inconsistent with ICCPR. Furthermore, this recommendation of CLRC had not been implemented, possibly due to the new government taking a different view. The Administration took the view that clause 3 of the Bill could be read consistently with the common law and according to the general rules. At the resumption of the Second Reading debate on the UK Act 1911, the Attorney General at that time also took this view and explained that "appears to the court" referred to "appears to the court according to the ordinary rules". It merely referred to the drawing of inferences from evidence duly admitted and it was not intended to make admissible what was inadmissible under common law rules. The Legal Adviser made reference to the case of SIN Yau-ming and related cases and requested the Administration to comment whether clause 3(2) could have the effect of watering down the main offence provision in clause 3(1).

A member commented that the Bill was among the laws pledged by the Governor to be examined in relation to ICCPR and BORO. It should therefore not only be a localization bill. PAS(S) responded that the Administration had examined the Bill in a global context and re-affirmed that it was consistent with ICCPR and BORO. In determining how the existing UK Acts as applied to Hong Kong should be localized, the Administration had taken into account a wide range of views and opinions, as well as how similar problems had been handled overseas. On the question of whether amendments of a law reform nature could be introduced to the Bill, he stated that a localization bill would, according to practice, not undergo any major law reform exercise. He reiterated that the Administration would not itself propose such amendments. However, it was not appropriate for him to pre-empt anything members wished to do. At members’ request, he undertook to provide written explanations on -

  1. the Administration’s conclusion that clause 3(1) to (3) of the Bill was compatible with ICCPR and BORO; and
  2. why the Bill did not contravene Article 16 of BORO (Article 19 of ICCPR) on freedom of expression.

On the question of whether it would be out of order for a member to introduce amendments of a law reform nature to the Bill, the Legal Adviser stated that an amendment would be out of order if it was irrelevant to the subject matter of the bill or the subject matter of the clause to which it related. The ultimate decision on whether an amendment was relevant remained with the President of LegCo. He added that "localization of law" was not a legal expression in the laws of Hong Kong. Bills introduced to LegCo were subject to the Letters Patent, which stipulated that no law should be inconsistent with ICCPR as applied to Hong Kong. In the light of this, it would be within the Bills Committee’s remit to examine the consistency of clauses 3(2) and 3(3) with ICCPR.

A member referred to clause 3(1) and remarked that "neighbourhood" of a prohibited place should be clearly defined and preferably specified so as to ensure compatibility with articles in ICCPR and BORO on freedom of movement. SASG undertook to respond in writing. Another member added that the terms in clause 3(1), such as "safety", "interests", "approaches" and "inspects" were not specific enough and should be clearly defined.


"Theft of state secrets" Vs "unlawful disclosure"

A member stated that "theft of state secrets" referred to in Article 23 of the Basic Law (BL) might not be the same as "unlawful disclosure" in Part III of the Bill, as a person who obtained state secrets by theft might not necessarily disclose it. He remarked that even without Part III, the Bill still satisfied the requirements under Article 23 of BL. PAS(S) responded that the Official Secrets Bill was concerned with protection of official information, as was Article 23 of BL. There was no requirement to apply the concept of "theft of state secrets" in an explicit and exclusive manner. The Bill had been argeed at the Joint Liaison Group on the basis that it was consistent with BL.

Precedent cases

In response to members, SASG agreed to provide precedent cases on the application of UK Acts. He added that since there were very little criminal precedent cases in the area, the Administration might also provide precedent civil cases. A member suggested the Administration to provide precedent cases before and after the introduction of UK Act 1989 so as to facilitate comparison.


Public interest defence

In response to a member, SASG confirmed that a public interest defence had never been adopted in the UK Acts. Another member requested the Administration and the LegCo Legal Service Division to provide information on the Spycatcher Case and the Freedom of Publication Bill 1968, which was a Private Member’s Bill, referred to in page 621 of Public Law (LegCo Paper No. CB(2) 1124/96-97). The Legal Adviser pointed out that the Spycatcher Case involved a series of civil cases which involved issues not relevant to the Bill.


Chinese translation of "conduct" in clause 3(2)

As regards the Chinese translation of "conduct" in clause 3(2), SASG explained that the translation was based on the understanding that it referred to general behavioural pattern over a period of time. The member expressed concern over such an interpretation of "conduct".

IV. Date of next meeting

Members agreed that the next meeting with the Administration would be held on 4 March 1997 at 2:30 pm.

The meeting ended at 12:05 pm.

LegCo Secretariat
7 March 1997

Last Updated on 16 October 1997