| The Administration's response to the issues raised and information sought
at the joint meeting of the Panel on Security and Panel on Administration
of Justice and Legal Services on 17 January 2003
Introduction
This note sets out the Administration's response
to issues raised and information sought at the
joint meeting of the Panel on Security and Panel
on Administration of Justice and Legal Services
on 17 January 2003 in relation to treason, as
listed in Appendix I of the Background brief
on the Bill prepared by the Legislative Council
(LC Paper No. CB(2)1378/02-03(03)).
Responses
| C2. |
To explain the meaning of "levying
war" and the activities that would
amount to levying war, and the meaning
of "joining forces to levying war".
Administration's response to C2
As Members will note, the National Security
(Legislative Provisions) Bill uses the
term "at war" and "engage
in war", in which "war" is
defined in Section 2(4)(c) of Clause 4
to mean open armed conflict between armed
forces or publicly declared war. The term "levying
war" does not appear in the Bill.
As regards "levying war", which is a term used in existing statutory
offences and originally proposed to be retained in the Consultation Document,
we set out below its meaning under the common law.
The term includes "any foreseeable disturbance that is produced by a considerable
number of persons, and is directed at some purpose which is not of a private
but of a 'general' character". It would be sufficient if there be assembled
a large body of people who intend to debar the government from the free exercise
of its lawful powers and are ready to resist with violence any opposition. On
the other hand, it does not include a rising for a limited, local or private
purpose.
The expression used in the Consultation Document is "levying war by joining
forces with a foreigner" which appeared in paragraph 2.8 of the Document.
It refers to collusion with a foreigner to levy war, as defined above.
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| C3. |
To explain the meaning of "to instigate
any foreigner with force to invade the entire
territory of the state", in particular
the definition of "foreigner" and
whether it includes armed forces in Taiwan,
what amounts to "invasion", the
meaning of "acts of instigation", "entire
territory of the state" and whether
to invade a small part of the territory constitutes
invasion.
Administration's response to C3
For the meaning of the term "instigate",
there does not appear to be any judicial
authorities. The Black's Law Dictionary
(7th ed.) defines "instigate" as "goad
or incite (someone) to take some
action or course". The Ballentine's
Law Dictionary (3rd ed.) defines "instigate" as "stimulate
or goad to an action, especially
a bad act". The Collins Cobuild
English Language Dictionary (1992)
suggests "soneone who instigates
an event or situation causes it to
happen by their own effort or work".
This accords with the definition
in the Oxford Dictionary which gives
the meaning "urge on; incite
(person to action, to do something
esp. something evil); bring about
(revolt, murder etc)". In the
absence of a judicial interpretation
the term would be given its ordinary
dictionary meaning.
In the consultation document it
was proposed that "foreigner" be
given the meaning "armed forces
which are under the direction and
control of a foreign government or
which are not based in the PRC".
In the Bill the term "foreign
armed forces" is defined as
-
| |
(i) |
armed forces of a foreign country;
|
| |
(ii) |
armed forces which are under
the direction or control of the
government of a foreign country;
or
|
| |
(iii) |
armed forces which are not
based in, and are not armed forces
of, the People's Republic of
China". |
Taiwan is part of China and therefore
would not constitute a "foreign
country".
"Invade" has an ordinary
dictionary meaning of "making
hostile inroad into (country etc)".
The proposed intention in the consultation
document was to adopt the existing
law where the act of invasion is
qualified by "with force".
This qualification is adopted in
the corresponding provision in the
Bill and reinforced by the use of "foreign
armed forces". Invasion into
any part of the PRC with force should
constitute "invasion of the
PRC with force".
|
| C4. |
To clarify the policy intent of making "assisting
public enemy at war" an offence, the
definition of "public enemy" and
whether it is targetted at the nationals
or the foreign country concerned, the acts
that would be considered as "assistance" and
would be prohibited, and how the line would
be drawn in terms of "assistance".
Administration's response to C4
The intent is to adopt the existing
provisions of the existing treason
offence, which is widely adopted
in common law jurisdictions, with
necessary clarifications. There are
a number of authorities for the term "public
enemy" in common law. It could
include both a foreign state (including
its subjects) which is in actual
hostility against the PRC (whether
or not war has been formally declared)
and any alien who comes into the
PRC in open hostility (e.g. to invade
the PRC).1 To clarify the meaning,
the Bill has used the term "public
enemy at war with the PRC" which
is defined as -
| |
(i) |
the government of a foreign
country at war with the People's
Republic of China; or |
| |
(ii) |
foreign armed forces at war
with the People's Republic of
China. |
In the corresponding English law
the term "adherent to" is
used in place of "assist".
On the other hand, the term "assist" is
used in the equivalent provision
in Canada, where an authority has
pointed out that "there is
no reason to suppose that [assists]
has any more than the ordinary dictionary
meaning"2 , but that "[u]nder
the Treason Act 1351, the phraseology
was 'be adherent to the King's
enemies in his realm, giving to them
aid and comfort in the realm, or
elsewhere....'" 3
The relevant English authorities on "adherent to" are as follows: 4
| |
(i) |
An overt act which strengthens
or tends to strengthen the enemies
in war; |
| |
(ii) |
An overt act which weakens
or tends to weaken the powers
of the country to resist or attack
the enemies; |
| |
(iii) |
Provision of aid or comfort
to the enemies which, when given
to a rebel within the realm,
would make the subject guilty
of levying war; or |
| |
(iv) |
Commission of hostile acts
in conjunction with the enemies
upon an ally of the country who
is also at war with the enemies. |
Furthermore, the interpretation
of the words "giving aid and
comfort to" may also be of
reference to explain what is meant
by being "adherent to"5 .
The followings are precedents of "giving
aid and comfort to" an enemy
according to an authority6:
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(i) |
joins the enemies in acts of
hostility against the country;
|
| |
(ii) |
raises troops for the enemy;
|
| |
(iii) |
whilst a state of war exists,
endeavours in an enemy country
to persuade prisoners of war
in that enemy country to join
the armed forces of the enemy; |
| |
(iv) |
takes part in an attempt to
land arms and ammunition in any
part of the country for use of
the enemy; |
| |
(v) |
delivers up the castle, forts
or ships of war to the enemies
through treachery or in combination
with them;
|
| |
(vi) |
detains the castles, etc from
the Sovereign if it is done in
confederacy with the enemy; and
|
| |
(vii) |
sends money, arms, intelligence
of the like to the enemies. |
There
are also precedents that propaganda
broadcasting at
war time for an enemy7 ,
and assisting nationals of an
enemy country to leave one's country8
, could constitute "assisting
public enemy".
Nevertheless,
under English law, it
is not treason if a British
subject is in a foreign
country when war breaks
out between that country
and England, and continues
to reside there, or if
during a truce he goes
to a foreign country,
and
returns before the truce
expires, unless he actually
conspires with the enemy,
or aids him in forwarding
his measures in hostility9.
The intention of the defendant
in carrying out the relevant overt
acts is also important. That the
acts in fact assisted the enemy is
not enough to constitute treason
without proving the accused intended
to do so to aid and comfort10.
For avoidance of doubt, the Bill clearly
specified the intention element of the
offence. Only if the accused is proven
to have an intention to prejudice the
position of the PRC in the war in assisting
the public enemy could he be considered
guilty.
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| C5. |
To explain the scope of "non-violent
attack", the meaning of "electronic
sabotage", and whether e-mail "spam" would
fall under the scope of "non-violent
attack", and to clarify whether "non-violent
attack" is the same as "non-violent
threat".
Administration's response to C5
The terms as used in paragraph 2.12
of the Consultation Document refer to
the common understanding of the term. "Non-violent
attack" and "non-violent
threats" refers to acts that does
not directly involve violence, such as
electronic sabotage. The paragraph give
a general description that if such acts
are done as part of the conspiracy to
commit treason or to aid the commission
of treason, then they would be caught
under the corresponding conspiracy offence
or accomplice offences under common law.
These terms are not used in any proposed
provisions in the Consultation Document,
nor in any clauses in the Bill.
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| 1 |
See , for example, Smith and Hogan, Criminal Law (6th ed.) (London, Butterworths, 1988), at pp. 828-9
which discusses "Queen's enemies";
Baron Hume, Commentaries on the Law of Scotland Respecting Crimes, Vol. 1, 4th
ed., by Ben R. Bell, (Edinburgh, 1844), at
p.529; Archbold 2002 (London, Sweet & Maxwell), at para. 25-31; and Gerald
H. Gordon, The
Criminal Law of Scotland (Edinburgh, W.
Green & Son Ltd., 1978), at para. 37-13. |
| 2 |
Mewett and Manning, Mewett &
Manning on Criminal Law (3rd ed.) (Butterworths
Canada Ltd., 1994), at p. 601 |
| 3 |
ibid, note 11. |
| 4 |
See the explanation of "adherent to" in Halsbury's
Laws of England. |
| 5 |
Smith and Hogan, Criminal Law
(6th ed.) (London, Butterworths, 1988), at
pp. 828-9 |
| 6 |
Archbold 2002, at para. 25-28 |
| 7 |
Joyce v. D.P.P. [1946] A.C. 347 |
| 8 |
A Canadian case, Re Schaefer
31 C.C.C. 22 (1918) |
| 9 |
Archbold 2002, at para. 25-29 |
| 10 |
See Archbold 2002, at para. 25-29, and McLean and Morrish, Harris's Criminal Law (22nd ed.) (London,
Sweet & Maxwell, 1973) at p. 126. Also see the case of R
v. Ahlers [1915] 1 K.B. 616 in Gerald
H. Gordon, The Criminal Law of Scotland (Edinburgh, W. Green & Son Ltd.,
1978), at para. 37-12. |
Security Bureau
March 2003
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