| National
Security (Legislative Provisions) Bill
:
Proposed Removal of Time Limits for Prosecution
| This paper sets out the background
to the existing time limits for prosecution
under sections 4(1) and 11(1) of the Crimes
Ordinance (Cap 200), and explains the reasons
for the proposed removal of these limits. |
| The existing time limits for
prosecution of treason and sedition offences |
| 2. |
Section 4(1) of Cap. 200 has its origins
in section 5 of the UK Treason Trials Act
1696. The latter provides that -
| |
"... noe person or persons whatsoever
shall bee indicted tried or prosecuted
for any such treason as aforesaid or
for misprison of such treason that
shall be committed or done within the
kingdome of England dominion of Wales
or towne of Berwick upon Tweed ....
unless the same indictment bee found
by a grand jury within three years
next after the treason or offence done
and committed ...." |
|
| 3. |
From the available commentaries on the
1696 Act, it is clear that the set of procedural
safeguards introduced by the Act were meant
to address a serious imbalance in the treason
trial procedure that favoured the prosecution
over the defence1. Prior to 1696, it was
claimed that because the treasonous act
directly threatened the safety and legitimacy
of the king and because a covert conspiracy
was especially difficult to prove, treason
trials were strongly biased in favour of
the prosecution2.
|
| 4. |
However, these commentaries did not discuss
the rationale for the prosecution time limit.
Moreover, none of the local libraries has
in its collection old records of the UK Parliamentary
debates3. |
| The rationale for removing
time limits for prosecution |
| 5. |
The time limit for the prosecution of treason
has been criticised by the Canadian Law Reform
Commission as lacking in principle. It said4
,
| |
"One instance of this problem is
the imposition of time limitations
of sixteen days for the prosecution
of treason when evidenced by spoken
words and three years for the prosecution
of treason committed by using force
to overthrow the government (Code,
s. 48). Presumably one of the
original purposes of the sixteen-day
limitation was to avoid the difficulties
of witnesses trying to recollect treasonable
words that they had overheard,
but with today's electronic means of
recording speech, this justification
loses much of its force; and anyway,
there is no similar rationale for the
three-year time-limit. With this possible
justification now obsolete, the continued
existence of these provisions seems
to suggest one of two things: either
the conduct (that is, treason) is not
really criminal at all because, unlike
other serious crimes, it loses its
reprehensibleness merely by the passage
of a little time; or treason is a political
crime that loses its criminality when
the political winds change. .... But
surely if something is worth criminalizing
at all, and especially if it is considered
to warrant punishment by life imprisonment,
as is treason, it should not lose its
criminal character either because time
has passed (certainly not so brief
a time as sixteen days), or because
the political leaders have changed." (emphasis
added) |
|
| 6. |
While we have been unable to find any reference
material directly on the point, we believe
that the shorter time limit for prosecution
of sedition (i.e. 6 months) was enacted for
the same reason, i.e. to avoid the difficulties
of witnesses trying to recollect the verbal
seditious words. In its discussion of the
16th century treason statutes, the author
of History of English Law5 mentions that -
| |
"Of these provisions made to secure
a fair trial of the prisoner there
were two. Firstly, for the treasons
which could be committed by spoken
words a short period of limitation
was in many cases provided. ..." (emphasis
added) |
|
| 7. |
At common law there are no time limits
imposed on the institution of indictable
offences6. Similarly, time limits for indictable
offences are rare in the laws of Hong Kong.
It should be noted that many time limits
in our legislation were enacted with a view
to extend the prescribed 6 month period for
prosecuting summary offences (which is laid
down in section 26 of the Magistrates Ordinance
(Cap. 227)), rather than to impose a time
limit which would otherwise not exist. |
| 1 |
Alexander H. Shapiro, "Political
Theory and the Growth of Defensive Safeguards
in Criminal Procedure: The Origins of
the Treason Trials Act of 1696",
Law and History Review 1993, Vol. 11,
at p. 215. |
| 2 |
Ibid, at p 217. |
| 3 |
The first semi-official
reports of the UK Parliament's debates were
published in 1803 (see Jean Dane and
Philip A. Thomas, How to Use a Law
Library: An Introduction to Legal Skills (London:
Sweet & Maxwell, 3rd ed., 1996),
p 95. |
| 4 |
Law Reform Commission
of Canada, Working Paper 49: Crimes
against the State, at
pp. 36 - 7. |
| 5 |
Vol. VI, at pp. 498 - 9. |
| 6 |
Halsbury's Laws
of Hong Kong, Vol. 9, para 130.560. |
|
Security Bureau
June 2003
|
