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This paper sets out the Administration's
response to two questions relating to the
proposed section 2(1)(b) of the Crimes
Ordinance, following paragraphs 2(c) and
2(d) of the minutes of the meeting of the
Bills committee held on 1 April 2003.
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The questions
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| 2. |
The two questions are as follows.
| (a) |
"Whether the proposed section,
when read with the proposed definition
of 'foreign armed forces',
would exclude instigation of armed
forces of Taiwan to invade the Mainland." |
| (b) |
"Whether requesting the territory
of Taiwan to be protected under the
missile defence system of the United
States or inviting foreign armed forces
to enter and protect Taiwan would amount
to an offence under the proposed section." |
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| Response of the Administration |
| 3. |
The proposed section 2(1)(b) of the
Crimes Ordinance stipulates that instigation
of foreign armed forces to invade the People's
Republic of China (PRC) with force would
constitute an offence of treason. "Foreign
armed force" is defined in the proposed
section 2(4)(a)(i) to (iii). The proposed
provisions are narrowed down from the existing
provisions of the treason offence.
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| 4. |
Taiwan is a part of the PRC. Armed forces
based in Taiwan are therefore armed forces
based in the PRC. Under the proposed section
2(4)(a) of the Crimes Ordinance, "armed
forces of Taiwan" are not "foreign
armed forces." The proposed offence
under section 2(1)(b) is not applicable
to the situation described in paragraph
2(a) above.
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| 5. |
In relation to the situation described
under paragraph 2(b) above, the Administration
has explained in an earlier paper responding
to the questions raised at the joint panel
meeting of 17 January 2003 that "invade" has
an ordinary dictionary meaning of "making
hostile inroad into (country etc)." The
act of invasion is further qualified by "with
force", and the target of instigation
and the subject of invasion is limited to "foreign
armed forces." Whether an act amounts
to invasion would ultimately be decided by
the court taking into account all the circumstances
and facts. |
| 6. |
It should be noted that a general expression
of opinion would be very different from
the act of "instigating foreign armed
forces," which in practice would
be directed at those in control of the
foreign armed forces, i.e. those who give
the orders. Moreover, the acts in paragraph
2(b) could in practice only be done by
those who had the authority to make the
request or invitation referred to. The
freedom of expression is fully protected
under the Basic Law. The proposed section
18A of Crimes Ordinance explicitly specifies
that the provisions in this Part must be
interpreted, applied and enforced in accordance
with the Article 39 of the Basic Law.
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