This paper discusses -
| (1) |
the legal implications of
the Bill for Part II of the Official
Secrets Ordinance ("the Ordinance");
|
| (2) |
the effect of section 3(2)
of the Ordinance; and
|
| (3) |
the coverage of section 6
of the Ordinance.
|
|
Part II |
| 2. |
Part II of the Ordinance relates to
espionage. The Administration has been
asked to explain whether the enactment
of the Bill would be taken to be an affirmation
or endorsement of Part II by the Legislative
Council. For the reasons set out below,
the Administration does not consider that
to be the case.
|
| 3. |
The Consultation Document on Proposals
to Implement Article 23 of the Basic Law
discussed the theft of state secrets (see
Chapter 6). So far as spying is concerned,
it stated (in paragraph 6.21) that "the
present protection under the Ordinance
is adequate as it covers access to, transmission
of, dealing with and disclosure of information
resulting from spying". No amendments
were proposed to Part II of the Ordinance.
|
| 4. |
Accordingly, the Bill does not propose
to amend, repeal or re-enact any of the provisions
of Part II. As a result, the Legislative
Council is not being called upon to consider
any of the provisions in Part II. If it decides
to enact amendments to Part III of the Ordinance,
that would not therefore indicate approval
of Part II. A failure to amend a statutory
provision in a Part of an Ordinance, when
a Bill relating to that Ordinance does not
contain any provision relating to that Part,
cannot be regarded as a legislative endorsement
of that provision. |
| 5. |
A way to test the above proposition
is to ask how a court would proceed if
asked to interpret, or to determine a challenge
to the validity of, such a provision. In
interpreting the provision, the court would
ascertain the legal meaning of the provision
by applying established principles of statutory
interpretation. One of these principles
is that due attention should be paid to
the legislative history of the enactment.
However, there is no authority for the
proposition that legislative inaction of
the kind referred to above alters the meaning
of a provision. Even where provisions are
re-enacted, without amendment, by way of
consolidation, this makes no difference
to the legal meaning (see Bennion's
Statutory Interpretation (3rd ed) p. 464).
|
| 6. |
If a relevant provision were challenged
as being inconsistent with human rights
guarantees in the Basic Law, an issue might
arise as to whether a fair balance had
been struck between the need to protect
the rights of individuals and the need
to protect (for example) national security.
In such a situation, proper weight should
be given to the decision of the legislature
as to what the proper balance should be
(see the Court of Final Appeal's
decision in Lau Cheong v HKSAR [2002] 2
HKLRD 612).
|
| 7. |
The provisions in Part II of the Ordinance
reflect the decision of the Legislative Council
on that issue when the Ordinance was enacted
in June 1997. The current Legislative Council
is not being asked to decide whether the
balance struck in June 1997 was the right
one. Even after the current Bill is enacted,
therefore, a court would need to refer to
the legislative decision in respect of Part
II taken in 1997. |
| Section 3(2) |
| 8. |
In Paper No. 42, the Administration discussed
the legal effect of section 3(2) of the Ordinance.
In doing so, it referred to the fact that
the Australian Commonwealth Criminal Review
Committee had indicated that a similar provision
in Australia did not appear to change significantly
the ordinary rules as to proof by the prosecution. |
| 9. |
At the request of the Bills Committee,
the relevant part of that Review Committee's
report is annexed, together with a copy of
the Australian provision (i.e. s.78(2)(a)
of the Crimes Act 1914). |
| 10. |
In paragraph 42.40, the Review Committee
discussed a possible human rights problem
that might exist if (contrary to what it
states in paragraph 42.36) the provision
allowed the defendant's purpose to
be inferred from evidence that would otherwise
be inadmissible. The Administration wishes
to point out that Australia does not have
any constitutional protection of human rights.
However, in Hong Kong, as a result of Article
39 of the Basic Law, the court would not
give effect to section 3(2) of the Ordinance
in a manner that would contravene the ICCPR
as applied to Hong Kong. |
| 11. |
Since preparing Paper No. 42, the Administration
has learnt that section 78 of the Australian
Crimes Act 1914 was repealed and replaced
by legislation that received the Royal Assent
on 31 October 2002. The new offence does
not contain a provision similar to section
3(2) of the Ordinance. |
| 12. |
For the reasons set out in Paper No. 42,
the Administration considers that section
3(2) is consistent with human rights guarantees.
Moreover, since the Bill does not propose
to amend Part II of the Ordinance, it does
not consider section 3(2) should be within
the scope of the Bills Committee's
deliberations. |
| Section 6 |
| 13. |
Section 6(1) of the Ordinance provides
as follows.
"A person commits an offence if he -
| (a) |
retains for any purpose prejudicial
to the safety or interests of the United
Kingdom or Hong Kong any official document,
whether or not completed or issued for
use, when he has no right to retain it
or when it is contrary to his duty to
retain it, or fails to comply with any
directions issued by any department of
the Government of the United Kingdom
or Hong Kong or any person authorized
by such department with regard to the
return or disposal thereof;
|
| (b) |
allows any other person to have possession
of any official document issued for his
use alone, or communicates any secret
official code word or pass word so issued,
or, without lawful authority or excuse,
has in his possession any official document
or secret official code word or pass
word issued for the use of any person
other than himself, or on obtaining possession
of any official document by finding or
otherwise, neglects or fails to restore
it to the person or authority by whom
or for whose use it was issued, or to
a police officer; or
|
| (c) |
without lawful authority or excuse,
manufactures or sells, or has in his
possession for sale any die, seal or
stamp mentioned in section 5(1)(e) or
(f)." |
|
| 14. |
The term "official document" in
section 6(1) is not defined. As a result,
it would appear that section 6 has a broad
coverage. There is, perhaps, a case for providing
a definition of "official document" that
would restrict the section to a narrower
band of documents, the unauthorized use (etc)
of which would be particularly damaging to
the safety or interests of the PRC or Hong
Kong (cf. section 5). |
| 15. |
Since the Bill does not amend Part II
of the Ordinance, it is not proposed to consider
a possible amendment of section 6 in the
current exercise. Instead, the Administration
proposes that the matter be referred to the
Security Panel of the Legislative Council,
for detailed consideration. |
