This paper explains -
| (1) |
whether the enactment of section
9A(1)(a) of the Crimes Ordinance would
make any difference to the position
that would exist at common law in the
absence of that section;
|
| (2) |
whether the common law principles
relating to incitement would apply
to the proposed section 9A(1)(b) of
the Crimes Ordinance, and to sections
6 and 7 of the Crimes Ordinance;
|
| (3) |
whether an offence would be committed
under section 9A(1)(b) of the Crimes
Ordinance if a person in Hong Kong
sends an e-mail or letter to a person
outside Hong Kong, inciting relevant
conduct;
|
| (4) |
whether a person can be convicted
of inchoate offences relating to incitement;
|
| (5) |
whether there are precedents
for the proposed section 9B of the
Crimes Ordinance; and
|
| (6) |
how frequently charges of incitement
are brought. |
|
(1) Section 9A(1)(a) |
| 2. |
Under the proposed section 9A(1)(a)
of the Crimes Ordinance a person commits
sedition if he incites others to commit
treason, subversion or secession.
|
| 3. |
This provision reflects a general
principle of the criminal law that it is
an offence to incite the commission of
any offence. There does not seem to be
any reason why the common law principles
relating to incitement should not apply
to this statutory offence of incitement.
|
| Penalty |
| 4. |
In the absence of section 9A(1)(a),
the maximum penalty for inciting treason,
subversion or secession would be the same
as the maximum penalty for those offences
i.e. life imprisonment (see s.101CI(2) of
Cap 221). Since section 9A(1)(a) provides
a similar maximum penalty, the enactment
of that offence would not change that position. |
| References to sedition |
| 5. |
The
| (1) |
investigation power under the
proposed section 18B of the Crimes
Ordinance;
|
| (2) |
requirement of the Secretary
for Justice's consent to prosecute
(proposed section 18C); and
|
| (3) |
requirement of trial by jury
(proposed section 18D), |
all
apply to the offence of sedition under section
9A(1)(A). |
| 6. |
If incitement to commit treason,
subversion or secession were to be left
as common law offences, and were not parts
of the offence of sedition, the investigation
provision, the SJ's consent provision
and the requirement for trial by jury referred
to above would not apply to those common
law offences. However, each of those provisions
also apply to treason, subversion and secession.
Under section 101C of Cap 221, a reference
made in any Ordinance to an offence includes
a reference to an incitement to commit
that offence. Those provisions would therefore
apply to incitement to commit treason,
subversion or secession, even if such incitement
did not amount to sedition.
|
| Purpose of section 9A(1)(a) |
| 7. |
The above analysis demonstrates that
the enactment of section 9A(1)(a) would merely
reflect the common law position. The criminal
law would not therefore be extended by its
enactment. Moreover, it is not uncommon for
common law principles to be set out expressly
in legislation. On the contrary, the codification
of common law principles is generally thought
to be beneficial, since it makes the law
more accessible. |
| 8. |
More importantly, Article 23 requires
the HKSAR to enact laws on its own to prohibit
(amongst others) sedition. The Administration
considers that the incitement of treason,
subversion or secession is a serious form
of sedition. It is therefore appropriate
to prohibit this form of sedition by an express
provision. |
(2) Sections 9A(1)(b), 6 and
7 |
| 9. |
Under the proposed section 9A(1)(b)
of the Crimes Ordinance a person commits
sedition if he incites others to engage,
in Hong Kong or elsewhere, in violent public
disorder that would seriously endanger the
stability of the People's Republic
of China. |
| 10. |
Engagement in violent public disorder
is not in itself necessarily an offence under
Hong Kong law, particularly if it takes place
outside Hong Kong. The incitement of such
conduct is not therefore the same as the
incitement of an offence, and would not be
an offence at common law. It is nevertheless
considered that such incitement should be
prohibited as being a form of sedition. |
| 11. |
It is considered that the common law
principles relating to incitement would apply
to this offence. |
| 12. |
Section 6 of the Crimes Ordinance makes
it an offence to incite a member of [Her
Majesty's] forces to commit an act
of mutiny or any traitorous or mutinous act,
or to make or endeavour to make a mutinous
assembly. Again, it is considered that common
law principles relating to incitement would
apply to this offence. |
| 13. |
Section 7 of the Crimes Ordinance is
headed "Incitement to disaffection".
However, the section does not use the word "incite".
There is therefore no reason why common law
principles relating to incitement should
apply to that offence. |
(3) Communications sent outside
Hong Kong |
| 14. |
Under the proposed section 9A(1)(b),
the incitement itself (as opposed to the
conduct incited) must take place in Hong
Kong. The question therefore arises as to
whether an offence is committed if a person
in Hong Kong sends an e-mail, letter or other
form of communication to a person who is
outside Hong Kong to incite the relevant
conduct. |
| 15. |
It is considered that an offence would
be committed in such circumstances. In R
v Owen and Another [1956] 3 All ER 432, the
English Court of Appeal held that a person
who, in England, posted a forged document
to an address in Germany was correctly convicted
of uttering the forged document in England.
Since incitement requires actual communication,
it is likely that the substantive offence
would only be committed when the message
reached the recipient. |
(4) Inchoate offences relating
to incitement |
| 16. |
Under the general law, it is an offence -
| (1) |
to attempt to incite the commission
of an offence;
|
| (2) |
to incite a person to incite
the commission of an offence;
|
| (3) |
to conspire to incite the commission
of an offence. |
|
| 17. |
Under the Bill, a person could not be convicted of inciting one person to incite
others to commit treason, subversion or secession
(see proposed section 9B of the Crimes Ordinance).
The enactment of section 9A and 9B would
therefore limit the extent to which activities
relating to treason, subversion or secession
are criminal. |
| 18. |
It should also be noted that the effect
of the proposed section 9B will be that a
person could not be convicted of attempting
or conspiring to incite one person to incite
others to commit treason, subversion or secession. |
| 19. |
A person could be convicted of attempting,
or conspiring, to commit an offence under
section 9A. In the case of an offence under
section 9A(1)(a) (inciting treason, subversion
or secession), this would merely reflect
the position under the general law. In the
case of an offence under section 9A(1)(b)
(incitement to engage in violent public disorder
etc), this would reflect the general principle
that it is an offence to attempt or conspire
to commit any other offence. |
| 20. |
Under the general rule, it seems that
-
| (1) |
it is not an offence to incite
a person to be an accomplice to an
offence;
|
| (2) |
it is an offence to incite
a person to commit an inchoate offence.
|
There is no reason to believe the position
would be different under the proposed section
9A(1). |
(5) Section 9B of Crimes Ordinance |
| 21. |
The proposed section 9B of the Crimes
Ordinance provides that inciting others to
commit an offence under section 9A (sedition)
is not an offence. |
| 22. |
The Administration has been asked to
find out whether there is any provision in
the Laws of Hong Kong providing that inciting
others to commit a substantive offence is
not an offence. Our research reveals that
there is no such provision. |
| 23. |
Nevertheless, it is considered that
the proposed section 9B is appropriate. The
proposed section 9A is itself an incitement
offence. If the proposed section 9B is not
enacted, A could be liable at common law
for inciting B to incite C to commit treason,
subversion or secession, even if A's
incitement was not successful. This is considered
to be too remote for criminal liability to
be attached in this context. |
(6) Incitement charges |
| 24. |
It appears that charges of incitement
are not common. On average, probably not
more than five charges are brought each
year. The likely reasons for this low figure
are -
| (1) |
if the incitement does not result
in the commission of the offence incited,
there may be no criminal investigation
that might uncover the incitement;
|
| (2) |
if the incitement does result
in the commission of the offence -
| (a) |
where the incitement is
discovered, the incitor might
sometimes be charged as a principal
or co-conspirator, rather than
as an incitor;
|
| (b) |
the investigation and prosecution
may concentrate only on the principal
offenders. |
|
|
