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This paper explains:
| (1) |
whether section 3(2) of the Official
Secrets Ordinance (Cap 521) ("OSO")
is subject to Article 39 of the Basic
Law; and |
| (2) |
whether the section is in contravention
of human rights and the common law
principle of presumption of innocence. |
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| 2. |
Article 8 of the Basic Law provides
that the laws previously in force in Hong
Kong, such as the OSO, shall be maintained,
except for any that contravene the Basic
Law. Article 160 further provides that,
if any laws are discovered to be in contravention
of the Basic Law, they shall be amended
or cease to have force in accordance with
the procedure as prescribed in the Basic
Law. It is therefore clear that section
3(2) of the OSO is subject to Article 39
of the Basic Law and the ICCPR as applied
to Hong Kong.
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| 3. |
The issue as to whether section 3(2)
of OSO was consistent with the presumption
of innocence was well canvassed when the
Official Secrets Bill was examined by the
Bill Committee in early 1997. The provision
reads:-
"In any proceedings against a
person for an offence under this section,
it shall
not be necessary to show that he was
guilty of any particular act tending
to show a purpose
prejudicial to the safety or interests
of the United Kingdom or Hong Kong and,
notwithstanding
that no such act is proved against him,
he may be convicted if, from the circumstances
of the case, or his conduct, or his known
character as proved, it appears that
his
purpose was a purpose prejudicial to
the safety or interests of the United
Kingdom
or Hong Kong."
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| 4. |
This provision is modeled on the first
part of section 1(2) of the Official Secrets
Act 1911 in the UK. Virtually identical
provisions also exist in the official secrets
legislation of Australia1 and Singapore2
.
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| 5. |
Both the common law principle of presumption
of innocence and Article 14(2) of the ICCPR
require, in general, that the prosecution
should prove the guilt of the accused beyond
reasonable doubt. Whether an exception to
this general rule (e.g. a reverse onus provision)
is consistent with ICCPR Article 14(2) will
depend on whether the substantive effect
of a legislative provision is that it remains
primarily the responsibility of the prosecution
to prove the guilt of an accused to the required
standard and whether the exception is reasonably
imposed3. |
| 6. |
Section 3(2) of the OSO does not create
any presumption and it does not impose
any burden of proof (not even an evidential
burden) on the accused. This provision
is just a re-statement of laws about circumstantial
evidence. It states that in proving the
accused's prejudicial purpose, there
is no need to prove a particular act and
it could be established circumstantially.
The burden of proving, beyond reasonable
doubt, that the accused committed all elements
of the offence of spying, including the
element of acting "for a purpose
prejudicial to the safety or interests
of the [PRC] or Hong Kong" rests
with the prosecution.
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| 7. |
The Australian Commonwealth Criminal Law Review Committee,
when examining the Australian equivalent
of section 3(2), also indicated that the provision did not appear
to change significantly
the ordinary rules as to proof by the prosecution.
Even without the provision, it would not be necessary to prove
the defendant
guilty of a particular act tending to show
such a prejudicial purpose and in any event the existence of
the purpose could
be established by the circumstances of
the case and from the defendant's conduct4. There is nothing
unusual about a
prosecution based on circumstantial evidence.
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| 8. |
As to the reference to the defendant's "known character
as proved" in section 3(2), it is strongly arguable that "as
proved" means as proved in accordance with the ordinary common
law rules. The reference is not intended to overrule or vary the
general rules governing the admission of evidence of character of
the defendant . The effect of these rules in the present context
would be that the prosecution could not adduce evidence of the character
of the defendant to show that he or she is the sort of person to
commit an offence under section 3(1) unless the evidence was highly
probative. The question of admissibility is a matter for the court
to decide in accordance with ordinary principles. |
| 9. |
It is an established rule of construction that legislation is presumed
not to alter common law principles except by express words or necessary
implication. There is another rule of construction to the effect
that a statutory provision creating a serious criminal offence must
be construed strictly and that any ambiguity must be resolved in
favour of the defendant. Given these rules, we believe that section
3(2) of OSO would be interpreted consistently with ordinary common
law principles and on that basis is consistent with Article 14(2)
of the ICCPR. |
| 1 |
Section 78(2)(a) of the Crimes Act 1914. |
| 2 |
Section 3(6) of the Official Secrets Act. |
| 3 |
AG v Lee Kwong Kut (1993) AC 951. |
| 4 |
Para 42.36 of the Review of Commonwealth
Criminal Law - Fifth
Interim Report (June 1991). |
| 5 |
The Australian Review also adopted similar analysis, see ibid,
at para 42.38. |
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