Introduction

Further to our earlier response on 9 May 2003, this note sets out the Administration's response to a number of remaining issues raised by the Legislative Council Assistant Legal Advisor in her letter of 27 March 2003. The questions are reproduced in italics and followed by our response.

A.

Would the Administration inform the Bills Committee expressions used in the Bill which are not provided with a definition, but in respect of which there are relevant judicial authorities on their respective meanings? It would be appreciated if those judicial authorities, if any, could be provided to the Committee.

As set out in the Consultation Document issued in September 2002, we have proposed to implement Article 23 of the Basic Law on the basis of the existing laws where possible. For example, the terms "overthrow", "compel", "intimidate" are adopted from existing provisions in the Crimes Ordinance, whereas the proposed offence of sedition is based on the common law concept of incitement.

In the proposed offence of handling seditious publications, the various terms used in the provision, such as "publish", distribute" or "display", are also commonly found in other ordinances in Hong Kong. The other terms used in the Bill which are not specifically defined will follow their natural meanings, in accordance with the general principles in legal interpretation.

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

New section 2C Conspiracy and attempt to do acts outside Hong Kong

Response

Sections 159A to 159E codify general principles relating to the law of conspiracy. The intention is that these codified principles should apply to persons who in Hong Kong, conspire to commit subversion or secession offences outside Hong Kong. It is true that some of these principles may not have any relevance to the proposed section 2C(1) (e.g. section 159C(4), (5), (6) and section 159E(2), (3) and (7)). However, it does no harm to refer to these provisions in that section.

Please explain why "different classes of population" is rendered "人口中不同組別".

"Different classes of population" is rendered as "人口中不同組別"because we are referring to a matter that produces feelings of ill-will between different classes of the population. Depending on the nature of the matter, the criteria for the classification will differ. "不同組別"thus refers to the different groups of people when such a matter exists. As the population may be divided into different classes on the basis of race, religion, income etc., a more general expression（組別）is considered appropriate.

It may not be practicable at all times for a police officer who is exercising the proposed emergency investigation power to produce written evidence of direction so given. In particular, it should be noted that a prerequisite for the exercise of such emergency powers is that evidence of substantial value to the investigation of a relevant offence would be lost unless immediate action is taken, and that the lost of such evidence would seriously prejudice the investigation of the offence.

According to《現代漢語詞典》, 維持means (a) 使繼續存在下去 or (b) 保護；維護支持 and is a proper rendition of "remains" in the context of the provision in question.

D8.

Since the effect of a proscription is that the activities of the organization are prohibited, it is appropriate that a copy of the order should be affixed at the police station that is nearest to the premises of that organization. This may help to inform local residents of the proscription.

According to section 2 of the Societies Ordinance, an "officer-bearer" is defined as "any person who is the president, or vice-president, or secretary or treasurer of such society or any branch thereof, or who is a member of the committee or governing body of such society or any branch thereof, or who holds in such society or any branch thereof any office or position analogous to any of those mentioned above or in the case of a triad society, any person holding any rank or office in the triad society other than that of any ordinary member."

The proposed amendment is intended to clarify that this same definition applies to an organization proscribable under the new section 8A.

Part I of the second schedule to the Magistrates Ordinance sets out the exceptions to section 92 of that ordinance. Section 92 allows a magistrate to deal with indictable offences. This would include the less serious offences under Parts I and II of the Crimes Ordinance. This will allow a magistrate to deal with incitement to mutiny, incitement to disaffection, unlawful drilling as well as the new offence of handling seditious publications and the second leg of the sedition offence under the new section 9A(1)(b). This accords with the policy intention.

However a magistrate would still be precluded from dealing with the more serious offences. Specific provision is made under section 18D so that offences of treason, subversion, secession and sedition (under 9A(2)(a) only) must stand trial before the CFI.

Part III of the second schedule lists indictable offences which are excluded from transfer by a magistrate to a District Court upon application under section 88(1). The less serious offences referred to in paragraph 3 are not excluded and may be transferred to the District Court. The more serious offences as explained in paragraph 4 must be tried in the CFI. This accords with the policy intent. Special provisions separately give effect to the right to elect for a jury trial.