This note sets out the Administration's response to certain issues raised by the Legislative Council Assistant Legal Adviser in her letter of 27 March 2003. The questions are reproduced in italics and followed by our response. The other issues raised in the letter will be dealt with separately.

General Observations

The new section 18A of the Crimes Ordinance, the new section 12A of the Official Secrets Ordinance and the new section 2A of the Societies Ordinance provide respectively that Parts I, II and IIA of the Crimes Ordinance, Part III of the Official Secrets Ordinance and the whole of the Societies Ordinance are to be interpreted, applied and enforced in a manner that is consistent with Article 39 of the Basic Law.

Please clarify the intended effect of these provisions and explain the reasons for the apparent difference of coverage in their respective ordinances. Why are articles on fundamental rights in Chapter 3 of the Basic Law which are relevant in the context of the Bill not included in these provisions? Is the new section 18A intended to reflect the "adequate and effective safeguards" referred to in paragraph 3.7 of the Consultation Document? In terms of drafting, has the Administration considered the need to qualify the provisions to the effect that they are made without prejudice to other provisions of that Ordinance or other Ordinances?

Response

Please refer to the Administration's response issued on 9 April (Paper No. 16).

Adaptation of laws

The Official Secrets Ordinance and the Crimes Ordinance have not been adapted under the Adaptation of Laws Programme. It is appreciated that this Bill is not an adaptation of laws bill. However, since some of the existing provisions which are relevant to the Bill contain expressions which are yet to be adapted, why are they not adapted in the current exercise?

The National Security (Legislative Provisions) Bill is to provide for the necessary amendments for the implementation of Article 23, and is therefore not intended to be an adaptation of laws bill. The Adaptation of the relevant provisions will be the subject of a separate exercise. Please refer to the Administration's paper issued to the Bills Committee on 24 April (Paper No.28).

Amendments to the Crimes Ordinance (Cap. 200)
Clauses 3 to 7, paragraphs 13 to 15 of the Schedule

Please explain the reasons for proposing to have the Central People's Government as the object of the intended overthrow, intimidation or compulsion in the new section 2(1)(a).

The proposed offence is based on the existing provisions under the Crimes Ordinance, and the subject of protection is "Her Majesty," who was the sovereign of Hong Kong as a colony of the UK. The constitutionally established central or federal government of a country has the responsibility and authority to exercise sovereign powers, the Central People's Government is therefore the target of protection for the treason offence in post re-unification Hong Kong. This is in line with the principles under section 2A and Schedule 8 of the Interpretation and General Clauses Ordinance.

Other common law jurisdictions also protect their central governments from being overthrown by treason offences, e.g. in USA, Canada and Australia.

Yes. However, for the following reasons this is not considered necessary. Under the existing law, it is already an offence to assist a public enemy at war with the PRC. At common law, 'public enemy at war with the PRC' includes civilian nationals whose country is at war with the PRC. Under the Bill, public enemy is narrowly defined to mean only the government of a foreign country at war with the PRC, or foreign armed forces at war with the PRC. War is also limited to mean only declared war or open armed conflict between armed forces. In addition, the offence under section 2(1)(c) would only be convicted if an intent to prejudice the position of the PRC in the war can be proved beyond reasonable doubt; humanitarian actions will not be carried out with such intent, and will therefore not be caught. It is not necessary to provide for such a defence.

The extra-territorial clauses of the offences of treason, subversion and secession provide for the circumstances where the courts have jurisdiction to try these offences committed outside of the geographical boundaries of Hong Kong. These clauses will not extend the enforcement powers of Hong Kong authorities to investigate an offence or apprehend a suspect outside of the territory. Enforcement of the extra-territorial element of the offence provisions will be a function of various factors including relevant principles of international law, considerations of jurisdictional issues as well as relevant agreements on mutual legal assistance, rendition or extradition.

If a relevant person committed an extra-territorial offence and subsequently returned to Hong Kong, he could of course be arrested and prosecuted in the normal way.

Following common law principles, any person who is within the physical boundary of Hong Kong will be subject to local laws, regardless of his nationality or residency status. Application of the offences is further explained in the Administration's response issued on 25 April (Paper No. 32).

The phrase “seriously endangers the stability of the People's Republic of China” qualifies the extent of “force” or “serious criminal means” to be used in the offence of subversion. The formulation is intended to exclude trivial or nominal force or actions, notwithstanding that such force or action might have already constituted an offence in other contexts. The force or action used must reach a level that it would threaten the stability of the PRC before such use will constitute an element of the subversion offence.

The Chinese term “廢止” (“disestablishes”) means the opposite of “確立” (“establishes”). The term is used in the new section 2A(1)(a) to describe action or otherwise to depose or terminate the proper functioning of the basic system of the State established under the Constitution. The phrase “essential service, facility or system” is intended to carry its ordinary dictionary meaning.

Response

Please see response to B3.

Response

We have proposed to define secession as involving a physical withdrawal of a part of the PRC from its sovereignty. From an international law perspective, such acts will involve changes in recognised state boundaries. The target of protection is therefore the territorial integrity of the country. The phrase “seriously endangering the territorial integrity of the People's Republic of China” qualifies the extent of the “force” or “serious criminal means” that might be used to constitute the offence of secession. The formulation is intended to exclude trivial or nominal force or actions, notwithstanding that such force or action might have already constituted an offence in other contexts. The difference in wording for the expressions used in the subversion and secession offences is due to the difference in the target of protection. The subversion offence targets threats against the stability and functioning of government, whereas the secession offence targets threats against territorial integrity.

Response

Please see response to B3.

Response

All the offence provisions in the Bill are constructed so as to prohibit acts that pose genuine threats to national security. The secession offence prohibits the withdrawal of a part of the country by means of war, or by force or serious criminal means of such an extent that the territorial integrity of the country is seriously endangered. We strongly believe that fundamental rights to advocacy and freedom of expression etc. are not affected, and that the sanctions are proportionate and necessary in order to deal with the threat in accordance with international standards such as the International Covenant on Civil and Political Rights.

Additional protection of human rights is provided by the proposed new section 18A of the Crimes Ordinance, which applies (amongst other offences) to secession.

Response

The new sections 2C(1) and 2C(2) refer to, respectively, the acts of conspiracy and attempt which are done by any person while he is physically in Hong Kong. Following common law principles, any person who is within the physical boundary of Hong Kong will be subject to local laws, regardless of his nationality or residency status. The relevant elements of the offence (respectively the agreement in the conspiracy offence and the action that is 'more than preparatory' in the attempt offence) are completed while the accused is within the geographical boundaries of Hong Kong. There is no inconsistency with the proposed extra-territorial application of the subversion and secession offences.

Response

As explained in paragraph 9.5 of the Consultation Document, we question as a matter of principle whether it is right to “write off” a serious criminal offence because of the expiry of a time limit for prosecution. Indeed, the Canadian Law Reform Commission also recommended the removal of the time limit for the prosecution of the treason offence (see the Administration's response to Q28.2 in the list of questions raised by Hon. James To on 4 December 2002). The reprehensible nature of the serious criminal acts of treason, subversion, secession and sedition will not diminish with the passage of time.

The common law and Article 14 of the ICCPR already provide for adequate safeguards against any undue delays in bringing prosecutions against criminal offences.

Response

Please see response to A3.

Response

The relevant statement in the LegCo Brief is intended to highlight the Government's recognition of the obligation to safeguard the freedom of expression. In the interpretation, application and enforcement of all the provisions of the Bill, it is expressly stipulated that the same must be consistent with Article 39 of the Basic Law, which entrenches international standards on rights and freedoms. Such standards included the principles of necessity and proportionality. Rights to advocacy, amongst others, will be protected accordingly.

The common law rules under which, in certain circumstances, impossibility is a defence to incitement shall apply in Hong Kong.

Response

The expression is intended to carry the same meaning in the three provisions. Please also see response to B5.

Response

The existing wide offences on handling and possession of seditious publications are proposed to be repealed in the Bill. The proposed sedition offence is substantially narrowed down and is based on the common law offence of incitement. The required mental element is an intent to incite others to commit treason, subversion or secession. Since these latter offences each carry a maximum penalty of life imprisonment, it is appropriate to impose the proposed penalties.

New section 9D Certain acts are not incitement

Response

Strictly speaking, section 9D is not needed, since only acts done with the intention of inciting treason, subversion, secession or violent public disorder could amount to sedition. The onus of proving such an intention lies on the prosecution. However, since the current definition of seditious intention excludes certain acts, it was decided to retain those exclusions for the purpose of reassurance. There is no need to extend their coverage.

Please see response to B13.

In addition, it should be noted that the proposed new offence of sedition is much narrower than the current law, and involves the incitement of very serious offence or violent public disorder. In these circumstances, there is no justification for a time limit on prosecutions.

As explained in paragraph 4.20 of the Consultation Document, the general principle is that the quality not quantity of evidence should count in a criminal trial. We note that the corroboration requirement is unusual in the laws of Hong Kong, and it is also a trend in all common law jurisdictions to move away from the corroboration requirements.

While we are of the view that this requirement should be retained for the sedition offence for the sake of reassurance, we do not see any in-principle need to extend it to sections 2, 2A and 2B of the Bill.

Response

It is the Administration's policy intention to retain section 13, subject to relevant consequential amendments set out in paragraph 15 of Schedule 1. The amended section 13 provides for the grant of a judicial warrant for the entry and search of premises and persons, and to seize anything which any police officer has reasonable grounds to suspect to be evidence of an offence under the new sections 9A or 9C.

Response

The proposed powers of investigation and search are emergency powers which are to be exercised in tightly defined circumstances where -

Moreover, we have stipulated in the Bill that these powers can only be exercised by a police officer of or above the rank of Chief Superintendent of Police. As explained in the response to B23, a judicial warrant would have to be applied for before entry, search and seizure powers could be exercised in other non-emergency situations.

Such emergency powers are not new. As explained in an earlier paper submitted by the Administration (LC Paper No. CB(2)86/02-03(01)), in view of the serious nature of offences undermining national security, we consider giving such emergency powers to the Police justifiable. The proposed new section 18A of the Crimes Ordinance also stipulates expressly that all the provisions must be interpreted, applied and enforced (italics added) in a manner consistent with Article 39 of the Basic Law, in other words with prevailing international standards on rights and freedoms.

Amendments to the Official Secrets Ordinance (Cap. 521)
Clauses 8 to 12, paragraphs 32 to 34 of the Schedule

Response

Sections 14 to 18 of the Official Secrets Ordinance relates to information held by or originated from public servants. The proposed narrowing of the definition of “public servant,” where it refers only to HKSAR public officers, will restrict the circumstances in which the unauthorised disclosure of protected information will be an offence.

Response

Some people argue that the onus to safeguard protected information falls on the authorities, and we certainly agree that the authorities should take reasonable measures to protect such information. However, that does not mean that, if protection information is leaked or illegally obtained, other people should be free to make a damaging disclosure of it. The existing criminal offence under the Official Secrets Ordinance is not limited to those who owe a duty of confidence. An unauthorised and damaging disclosure of protected information obtained by “illegal access” could be just as damaging to the public interest as a disclosure resulting from a leak by a civil servant. For example, the disclosure of information concerning a police investigation, obtained by hacking into a police computer, could tip-off the suspect in the same way as a disclosure based on a police leak. “Illegal access” is also narrowly defined to mean only obtaining access by one of four specified offences in Hong Kong, viz. hacking, theft, burglary, robbery and bribery.

The proposed new offence is very narrowly defined. Members of the public or the media who disclose information would commit an offence only if their disclosure was without lawful authority, and -

These tests are high thresholds.

Response

The underlying intent and likely consequence or damage of spying and non-spying activities are very different. Unlike unlawful disclosure offences, the type of information involved in spying is not specified. Instead, information disclosed or accessed in the spying offence must be related to a purpose prejudicial to the safety or interests of the country, and that the information is likely to be or intended to be useful to the enemy. According to case law, the term “enemy” means someone with whom the country is at war and a potential enemy with whom the country might be at war (see R v. Parrot (1913) 8 Cr App Rep 186). The spying offence is therefore a very narrow offence. Section 19 of the Official Secrets Ordinance penalises the unlawful disclosure of information which the accused knew or has reasonable cause to believe had come into his possession as a result of a spying offence.

In contrast, for an offence of unlawful disclosure of protected information entrusted in confidence or obtained through unauthorised disclosure under section 18, or through illegal access under the new section 18(5A), the type of information protected is defined under sections 13 to 17 and the new section 16A.

Section 23 Acts done abroad

Response

As with the existing offences of unlawful disclosure under the Official Secrets Ordinance, damaging disclosures of protected information under the new section 16A or of protected information obtained through illegal access under the new section 18(2)(d) are equally reprehensible whether such disclosures are made in Hong Kong or not. It is therefore logical if the provision on the extra-territorial application of the existing unlawful disclosure offences should also cover the new sections 16A and 18(2)(d). It should be noted that section 23 is only applicable to a Chinese national, a Hong Kong permanent resident or a public servant. Please also see response to B3.

Amendments to the Societies Ordinance (Cap. 151)
Clauses 13, 14 and 15, paragraphs 6 to 12 of the Schedule

Response to D1, D2 and D3

We consider that the existing powers of proscription on the grounds of national security under section 8 of the Societies Ordinance are inadequate. First, the existing powers are not focused on any particular type of threat to national security. Unlike the existing powers, section 8A(2) of the Bill clearly specifies the factual circumstances one of which must be satisfied before the measure of proscription could be considered applicable.

Secondly, the existing section 8 of the Societies Ordinance extends only to 'societies' to which that Ordinance applies. The Schedule to the Ordinance contains a list of 16 types of organizations to which the Ordinance does not apply. It does not therefore provide an adequate power of proscription. We think the SAR Government should be able to proscribe any organization that posed the most serious threat to national security.

The proposed new power of proscription will apply to all forms of organizations, but only if they fall within the three categories set out in the proposed section 8A(2). In effect, this limits the local organizations that may be subject to the power to proscribe. The power to proscribe will be based entirely on Hong Kong law and must be exercised in accordance with fundamental human rights. An appeal against a proscription will lie to the Court of First Instance.

The existing powers for the refusal to register a society, cancellation of registration of a society and prohibition of the operation of a society under, respectively, sections 5A, 5D and 8 of the Societies Ordinance are already in line with the standards of the ICCPR. It is inherent under Article 19 of the ICCPR that any restrictions to fundamental rights and freedoms must only be necessary for the protection of national security, amongst other things. The requirement of “proportionality” of any such measures taken is already applicable to these relevant sections.

The Administration is considering whether sections 5A, 5D and 8 need to be adjusted in the light of the new section 8A.

Response

Please see our letter to the Assistant Legal Adviser dated 3 April (Paper No. 27).

Response

It is the policy intention of the Administration, and as reflected in the proposed definition of “subordinate”, that ordinary or nominal connections (e.g. business communications) do not amount to subordination. In addition, it is not intended to cover organizations that receive funds as an intermediary. That explains why only the solicitation or acceptance of funds etc. intended for the “operation” of the local organization are to be required as creating a relationship of subordination.

The reference to “solicitation” of funds is also found in the definition of connection in section 2 of Cap. 151. It is considered that an organization that solicits substantial financial contribution from an organization that is banned in the Mainland on national security grounds is indicating a willingness to establish a connection with it of a subordinate nature. This being so, it should come within the powers in section 8A.

Response

The current reference to circumstances in which it 'would not be practicable' to afford the organization an opportunity to be heard or to make representations is drawn in broad terms in order to cover any such circumstances that might arise, and is envisaged bearing in mind similar considerations for sections 5A(4), 5D(2) and 8(4) of the Societies Ordinance. Although one might be able to identify some of these (e.g. where a planned violent insurrection were about to occur), not all 'impracticable' situations may be foreseen.

Response

The effect of section 8B(4) is that a proscription order cannot