| (1) |
why it is necessary to include within treason
an offence of "instigating foreigner armed
forces to invade", given that it is a sedition
offence to incite treason; and |
| (2) |
whether the former offence would be covered
by the latter, as it is possible for someone
to incite an offence in circumstances where
the commission of that offence is impossible. |
| Relevant provisions |
| 2. |
The treason offence under the proposed
section 2 of the Crimes Ordinance is cast
as follows -
| "A Chinese national commits
treason if he - |
| (a) |
..... |
| (b) |
instigates foreign armed forces
to invade the People's Republic of
China with force; or |
| (c) |
....." |
|
| 3. |
"Foreign armed forces" are defined to
mean -
| (a) |
armed forces of a foreign
country; |
| (b) |
armed forces which are under
the direction or control of the government
of a foreign country; or |
| (c) |
armed forces which are not
based in, and are not armed forces
of, the People's Republic of China. |
|
| 4. |
The sedition offence under the proposed
section 9A is cast as follows -
| |
" A person commits sedition if .....
he ..... incites others to commit an
offence under section 2 (treason) ....." |
|
| 5. |
As has previously been explained "instigate"
has a meaning of "urge on, incite (person
to action)"; or "to cause something to happen
by own effort". It therefore has a similar
meaning to "incite", which appears in the
sedition offence. |
| 6. |
The question is whether the offence
of inciting treason covers all situations
in which a person instigates foreign armed
forces to invade the People's Republic of
China (PRC). For the reasons given below,
the Administration believes that it does
not. |
| Non-Chinese nationals cannot
commit treason |
| 7. |
Under the Bill, only Chinese nationals
can commit treason. Foreign armed forces
that do not contain Chinese nationals cannot
commit treason. An invasion of the PRC
by such armed forces would not amount to
treason.
|
| A person cannot incite non-Chinese
nationals to commit treason |
| 8. |
A person who incites such armed forces
to invade the PRC would not therefore be
inciting an offence of treason. |
| 9. |
Even a person who incites non-Chinese
nationals armed forces to invade the PRC,
believing it is an offence for them to do,
could not be convicted of inciting treason.
That mistake is one of law, which cannot
make the person guilty of a non-existent
offence. |
| 10. |
And a person who incites non-Chinese
armed forces to invade the PRC, believing
them to be Chinese nationals, could not be
convicted of inciting treason, since a person
cannot be guilty of inciting an offence where
some element of the offence is in fact missing. |
| Instigating foreign armed forces
to invade |
| 11. |
It is considered appropriate to
make it an offence to instigate foreign
armed forces to invade the PRC, regardless
of their nationality. This being so, it
is necessary to have an offence separate
from, and additional to, the offence of
sedition. That offence is one head of the
proposed offence of treason.
|
| 12. |
A similar point was made by the Canadian
Law Reform Commission in its Working Paper
on Crimes Against the State (at p.47) in
respect of the offence of aiding an enemy.
| "When a person aids an enemy at war
with Canada, he does not aid the commission
of a crime because it is not a crime
under domestic law for an enemy to
wage war against Canada. Thus, the
offence of assisting the enemy is a
primary offence, just like the offence
of engaging in war." |
|
| Practical examples |
| 13. |
In practice any "instigation" would
be directed at those in control of the foreign
armed forces, i.e. those who give the orders. |
| 14. |
For the first and second legs of the
definition of "foreign armed forces" in the
treason offence, the "instigation" would
in practice need to be directed to the foreign
country or the foreign government controlling
the armed forces. The instigation or incitement
would not be directed at the individuals
who make up the "foreign armed forces" and
who would be expected to carry out the act
of invasion of the People's Republic of China. |
| 15. |
The third leg of the definition covers
"armed forces which are not based in, and
are not the armed forces of, the People's
Republic of China. This third category would
cover forces which were not under control
of a government and are not part of the armed
forces of a country which would not otherwise
be covered (Taleban forces in Afghanistan
would be an example). |
| 16. |
Where "instigation" was directed at
a foreign government or a foreign country
it would not be caught by the sedition offence.
In the sedition offence the subject of the
incitement is the individual who would carry
out the offensive act. A foreign government
or a foreign country could not directly commit
the offence of treason against the PRC. Treason
can only be committed by individuals who
are Chinese citizens. For a person to commit
an offence of incitement, as the sedition
offence is cast, the course of conduct incited
must constitute an offence by the person
incited. That would not be the case for a
foreign government or a foreign country.
Nor would it be the case where no Chinese
national was involved. |
| Justification |
| 17. |
In most situations, the offence of
instigating foreign armed forces to invade
the PRC by force would not amount to the
offence of sedition. It therefore needs to
be included as a head of treason. |
