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LegCo

National Security (Legislative Provisions) Bill :
unauthorized disclosure of
protected information and the public interest

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 íV

(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.

Department of Justice
April 2003

 

 

 

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Last Updated : 17-4-2003
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