A person could only be convicted
of the substantive offence of subversion
if he succeeded in -
| (a) |
disestablishing the basic system
of the People's Republic of China
as established by the Constitution
of the People's Republic of China;
|
| (b) |
overthrowing the Central People's
Government; or
|
| (c) |
intimidating the Central People's
Government, |
by using force or serious criminal means
that seriously endangers the stability
of the People's Republic of China
or by engaging in war. |
Inchoate offences |
| 2. |
It is unlikely that any person will
succeed in achieving these results, and
it is more likely that any prosecution
brought in respect of subversion would
be for a conspiracy, attempt, or incitement
to commit that offence. By virtue of the
proposed section 2D of the Crimes Ordinance,
inciting others to commit subversion is
an offence only under the proposed section
9A i.e. sedition.
|
| 3. |
The mental element required for a conviction
for conspiracy, attempt or incitement are
as follows.
Conspiracy : |
The parties to the conspiracy must
intend to agree to be a party to conduct
which, if the agreement is carried
out in accordance with their intentions,
will necessarily amount to or involve
the commission of the offence of subversion
by one or more of the parties to the
agreement.
|
Attempt : |
The person must intend to commit
the offence of subversion.
|
Incitement : |
The accused must have intended that
the person he incited would commit
the offence of subversion. It must
be proved that the accused knew of
(or deliberately closed his eyes to)
all the circumstances of the act incited
which are elements of the crime of
subversion. He must have intended the
consequences that amount to the offence
of subversion. |
|
| Substantive offence |
| 4. |
If a person were charged with the substantive
offence of subversion, according to the established
common law presumption, it would be necessary
for the prosecution to prove intention, knowledge,
or recklessness on the part of the accused
in respect of all elements of the offence. |
| 5. |
It is not unusual for a statutory offence
to define the prohibited conduct solely
in terms of the proscribed physical acts
without saying anything about the mental
element. The established common law presumption
is that a mental element is an essential
ingredient unless the legislature has indicated
a contrary intention either expressly or
by necessary implication. This governing
principle was stated by Lord Reid in Sweet
v Parsley [1969] 1 All ER 347 at 349-350,
[1970] AC 132 at 148-149 :
| |
"... there has for centuries
been a presumption that Parliament
did not intend to make criminals of
persons who were in no way blameworthy
in what they did. That means that,
whenever a section is silent
as to mens rea, there is a presumption
that,
in order to give effect to the will
of the Parliament, we must
read in words appropriate to require
mens rea ... it
is firmly established by a host of
authorities that mens rea is an essential
ingredient of every offence unless
some reason can be found for holding
that that is not necessary." (Emphasis
added.) |
|
| 6. |
Where an offence is "truly criminal" in
character (e.g. the proposed offence of
subversion) the courts have held that the
presumption that mens rea is required before
a person can be found guilty is particularly
strong.
|
| Means or consequences? |
| 7. |
The Administration has been asked to
explain whether "serious criminal
means that seriously endangers the stability
of the PRC" refers to the means by
which a person may achieve an objective
or to the consequences of a person's
actions.
|
| 8. |
Since an offence of subversion is only
committed if specified objectives are achieved "by
using force or serious criminal means that
seriously endangers the stability of the
People's Republic of China or by engaging
in war", it is considered that the
words quoted in paragraph 7 refer to one
of the means by which subversion can be committed. |
| 9. |
It is noted that -
| (1) |
the definition of "serious
criminal means" refers to an
act that has specified consequences
(e.g. it endangers the life of a person
other than the person who does the
act); and
|
| (2) |
the serious criminal means must
be of such a nature that it seriously
endangers the stability of the PRC. |
However,
these requirements must all be satisfied
before it can be said that a person has used
means that are an element of the offence
of subversion. |
| 10. |
The key factor is that each of the requirements
(however described) referred to above is
an element of the offence of subversion.
For the offence to be proved, it must be
established beyond reasonable doubt that
the accused intended that those requirements
should be satisfied, or was reckless as to
whether they would be satisfied. |
| 11. |
A person who does an act without intending
to, and without being reckless as to whether
it would -
| (1) |
cause the consequences specified
in the definition of "serious
criminal means"; or
|
| (2) |
seriously endanger the stability
of the PRC, |
would not have satisfied the element
of the offence quoted in paragraph 7
above.
|
