This paper explains why the Administration does
not consider it appropriate to introduce a public
interest defence in respect of the offence of
unauthorized disclosure of protected information.
| UK Background |
| 2. |
Hong Kong's law in this area is based on
legislation enacted in the UK in 1989, which
does not include such a defence. The UK legislation
followed a White Paper, published in 1988,
which expressly considered and rejected the
idea of a public interest defence (see annex
1). |
| 3. |
There were two reasons given for rejecting
such a defence. First, a central objective
of the reforms was to achieve maximum clarity
in the law and in its application. A general
public interest defence would make it impossible
to achieve such clarity. Secondly, the intention
was to apply criminal sanctions only where
this was clearly required in the public interest.
No person should be allowed to disclose information
which he knows may, for example, lead to
loss of life simply because he has a general
reason of a public character for doing so. |
| 4. |
The issue was also discussed during the
Parlimentary debates preceding the enactment
of the English legislation. Some of the reasons
why such a defence was rejected by Parliament
are set out in annex
2. |
| Hong Kong law |
| 5. |
Hong Kong's laws on this subject were
enacted in 1997. The question whether a
public interest defence should be provided
was discussed in the Bills Committee and
in the debates in the full Council. Eventually,
no such defence was provided. Some of the
reasons given for rejecting the defence
are set out in annex
3.
|
| Human rights |
| 6. |
In the UK, following the enactment
of the Human Rights Act in 1998, questions
were raised as to whether offences relating
to unauthorized disclosure could be reconciled
with the guarantee of freedom of expression.
The concern was focused, in particular,
on the restrictions that applied to security
personnel, who can commit an offence of
unauthorized disclosure even if the disclosure
is not damaging. It was also focused on
the perceived need to allow "whistleblowers"
to reveal public wrongdoing.
|
| Whistleblowers |
| 7. |
Those concerns were answered
by the House of Lords in its recent decision
in Shayler. The relevant offence was held
to be consistent with the Human Rights
Act. The judgment contained a very detailed
account of the need to balance freedom
of expression and national security. The
court considered that the law provides
sufficient protection for a "whistleblower"
to reveal wrongdoings in appropriate cases.
|
| 8. |
It is considered that a similar result
would be achieved if Hong Kong legislation
were challenged on human rights grounds.
As a result, it is not considered that
even a limited form of "whistleblower"
defence is needed.
|
| 9. |
Some commentators have recommended a
limited form of defence along the lines of
section 30(3) of the Prevention of Bribery
Ordinance (Cap 201). Section 30(1) makes
it an offence for someone, "without lawful
authority or reasonable excuse", to disclose
the identity of a person who is being investigated
in respect of an offence alleged or suspected
to have been committed under Part II of Cap
201. Subsection (3) provides that -
| "Without affecting the
generality of the expression 'reasonable
excuse' in subsection (1) a person
has a reasonable excuse as regards
disclosure of any of the descriptions
mentioned in that subsection if, but
only to the extent that, the disclosure
reveals - |
| (a) |
any unlawful activity, abuse of power,
serious neglect of duty, or other serious
misconduct by the Commissioner, the
Deputy Commissioner or any officer
of the Commission; or |
| (b) |
a serious threat to public order
or to the security of Hong Kong or
to the health or safety of the public." |
|
| 10. |
The offence under section 30 of Cap
201 differs from offences of unauthorized
disclosure under the Official Secrets Ordinance
in that an offence under section 30 can be
committed even if it has no damaging effect.
In those circumstances, it may be reasonable
to allow a "whistleblower" defence to mitigate
the strictness of the offence. However, offences
of unauthorized disclosure generally involve
a damaging test which ensures that an offence
is only committed where the public interest
is harmed. Even in a case like Shayler, where
an unauthorized disclosure by a member of
the security and intelligence services can
be an offence even if it is not damaging,
the courts have held that the law provides
sufficient protection for whistleblowers. |
| Proposed amendments |
| 11. |
It is proposed to leave the Official
Secrets Ordinance largely as it is. The
two material changes in respect of unauthorized
disclosures are ¡V
| (1) |
to plug the loophole in respect
of the unauthorized disclosure of protected
information acquired by means of illegal
access; and |
| (2) |
to narrow the type of information
relating to the relationship between
Hong Kong and the Central Authorities
that is protected from unauthorized
disclosure. |
|
| 12. |
Neither amendment would create justifications
for a public interest defence that were not
previously considered and rejected. |
| 13. |
It is emphasized that a person who
makes an unauthorized disclosure of protected
information would only commit an offence
if he knows, or has reasonable grounds to
believe, that -
| (1) |
it is protected information; |
| (2) |
it has been acquired by means
of illegal access or had been the subject
of an unauthorized disclosure; and |
| (3) |
the disclosure by him is "damaging"
as defined. |
|
| 14. |
In the case of information relating
to Hong Kong affairs that is within the responsibility
of the Central Authorities, a disclosure
is only damaging if it endangers, or would
be likely to endanger "national security"
i.e. the safeguarding of the territorial
integrity and the independence of the PRC. |
| 15. |
The Administration does not believe
that it can ever be in the public interest
to make a disclosure that is damaging in
that way. |
