| This paper discusses whether
the word "instigates" in the
proposed section 2(1)(b) of the Crimes Ordinance
(treason) should be replaced by "incites", "encourages" or "provokes". |
| 2. |
It has been suggested that "instigate" and "incite" have
the same meaning, but the word "incite" has
been the subject of many decided cases
whereas "instigate" has not.
It has therefore been argued that it would
be preferable to use the former word.
|
| Use of instigate |
| 3. |
Although there does not appear to be
case law on the word "instigate",
it is found in 12 provisions in the Laws
of Hong Kong. These include -
| (1) |
section 3(2) of the Crimes (Torture)
Ordinance (Cap 427) - offence
of instigating torture;
|
| (2) |
Article 2(1)(xxxvi) of the Fugitive
Offenders (Malaysia) Order (Schedule
to Cap 503D) - surrender possible
in respect of a person who instigated
any offence for which surrender may
be granted under the Agreement;
|
| (3) |
Article 4 of the International
Convention Against the Taking of Hostages
(Schedule 2 of Cap 503H) - obligation
to co-operate to prevent the instigation
of acts of taking hostages;
|
| (4) |
Articles 1 and 16 of the Convention
Against Torture and other Cruel, Inhuman
or Degrading Treatment or Punishment
(Schedule to Cap 503I) - obligation
to prevent such conduct committed by
or at the instigation of a public official. |
|
| 4. |
In addition, the word "instigate" is
used in respect of armed invasions in the
current law of treason, and in the Australian
law of treason. |
| 5. |
The use in legislation of "instigate" is
not, therefore, unusual.
|
| Any difference? |
| 6. |
It is clear from well-established common
law principles that a person may be guilty
of inciting an offence even if he did not
succeed in persuading another to commit
the offence, and even if he was unlikely
to succeed.
|
| 7. |
According to Webster's New Dictionary of Synonyms -
"
Instigate, in contrast with incite, unequivocally
implies prompting and responsibility for the initiation of the action."
|
| 8. |
The Concise Oxford Dictionary defines to "instigate" as
to -
" urge on, incite, (person to action, to do
esp. something evil);
bring about (revolt, murder, etc) " [emphasis added]
Its definition of "incite" does not, however,
include "bring about". |
| 9. |
It would therefore seem that the substitution of "instigates" by "incites" would
broaden the offence. For example, if foreign armed forces invaded
the PRC, it is arguable that a person would only be liable for
instigating that invasion if he or she was responsible for the
initiation of that invasion. However, many others who may have
called for such an invasion, but without having had any impact,
might be liable for inciting the invasion. |
| "Encourage" or "Provoke"? |
| 10. |
According to Homes JA in Nkosiyana 1966 (4) SA 655 at 658, -
"
The machinations of criminal ingenuity being
legion, the approach to the other's mind may take various
forms, such as suggestion, proposal, request, exhortation, gesture,
argument, persuasion, inducement, goading or the arousal of cupidity."
|
| 11. |
Encouragement and provocation are two of the many ways in which
a person might try to approach another's mind. However,
there is no reason why any one particular type of approach should
be singled out. |
| 12. |
It is therefore considered that the word "instigates" should
not be replaced by a word such as "encourages" or "provokes". |
