Introduction
|
| This paper sets out the Administration’s
response in respect of the questions in relation
to the offence of “assisting public
enemy” under the head of treason, as
raised during the meetings of the Bills Committee
on 1 April 2003 and 8 April 2003. |
Assisting nationals of an enemy country to leave their country |
| 2. |
Paper No. 1 refers to a case which decides
that assisting nationals of an enemy country
to leave one’s country could constitute “assisting
a public enemy”. This case, Re
Schaefer,
was provided earlier (Paper No. 14).
|
| 3. |
The Canadian case reflects the common law
position that assisting a public enemy includes
assisting the nationals of the enemy country.
Under the Canadian law of treason, there
is also no requirement that the assistance
to the public enemy needed to be given with
an intention to prejudice the position of
the British Empire in the war. |
| 4. |
It is not considered that the facts
of Schaefer would amount to an offence
under the proposed section 2(1)(c) of the
Crimes Ordinance, since it appears that
the defendant did not -
| (a) |
assist the government of the enemy
country; or the foreign armed forces
of the enemy country; nor did he
|
| (b) |
intend to prejudice his own country’s
position in the war. |
Both requirements are present in the Bill. |
Offences against the State
in Singapore |
| 5. |
Singapore does not have an offence similar
to the formulation of “assisting public
enemy.” Nevertheless, acts of assisting
public enemy with an intent to prejudice
the position of the state in the war would
likely to be covered by “abetting the
waging of war” against the Government
(section 121 of the Singaporean Penal Code). |
Paying taxes or being enlisted in a foreign army |
| 6. |
The question asked was “whether a
Chinese national who was a HKSAR permanent
resident and acquired a foreign nationality
would be caught by the proposed offence of
treason when he paid tax to the foreign country
or was enlisted to the army of that foreign
country at the time of war.” |
| 7. |
At law, the mere fact that a person does
a criminal act in obedience to the order
of a duly constituted superior does not of
itself excuse the person who does it from
criminal liability. However, in some situations,
a person acting under superior orders which
he carries out in good faith may lack the
mental element required for criminal liability. |
| 8. |
Regarding the particular situations
cited, whether such acts outside Hong Kong
would constitute a treason offence would
depend on the circumstances of the case,
in particular -
| (a) |
whether the person is a Chinese
national, in accordance with the
relevant laws as discussed in Paper
No. 25. Outside Hong Kong, the treason
offence is only applicable to a HKSAR
permanent resident who is a Chinese
national; and
|
| (b) |
whether such acts themselves would
constitute the offence, with the
corresponding mental elements satisfied.
For the offence of “assisting
public enemy”, the mental element
of, inter alia, prejudicing his own
country’s position in the war
needs to be proved beyond reasonable
doubt by the prosecution. People
paying tax under compulsion and in
good faith without the intent to
prejudice one’s own country
may lack such a mental element. Similarly,
those enlisted in the enemy army
at times of war without the necessary
intention element of treason may
not be caught. |
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