Introduction
|
Further to our earlier response
on 9 May and 5 June 2003, this note sets
out the Administration's response
to the 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.
|
B.
|
Amendments to the Crimes Ordinance (Cap. 200)
Clauses 3 to 7, paragraphs 13 to 15 of the Schedule
|
| New section 2A Subversion |
| B7. |
"Serious criminal means" is
defined in the new section 2A(4)(b) to
mean any act set out in (i) to (v) which,
if done in Hong Kong, is an offence under
the law of Hong Kong. Please provide a
list of the relevant statutory provisions
under which the acts are offences in Hong
Kong.
|
| Response |
Under the proposed definition
of "serious criminal means",
an act which might lead to any of the consequences
as listed in the new section 2A(4)(b)(i)-(v)
must also constitute an offence under the
laws of Hong Kong. For example, a person
who unintentionally caused serious damage
to property because of a traffic accident
might not have committed any offence in Hong
Kong, and as a result the serious damage
to property caused by him would not have
constituted a "serious criminal means" under
the Bill.
A list of statutory provisions which criminalize
acts that might amount to "serious
criminal means" is provided in a separate
paper entitled "Serious criminal means".
|
| D. |
Amendments to the Societies Ordinance (Cap.
151)
Clauses 13, 14 and 15, paragraphs 6 to 12 of the Schedule |
| New section 8A Proscription
of organizations |
| D6. |
Why is it necessary to use the words "an
act that is" in the definitions of "treason", "subversion", "secession" and "sedition" in
the new section 8A(5)? |
| Response |
| In the proposed section 8A(1),
the Secretary for Security may by order proscribe
any local organization to which that section
applies if the conditions set out therein
are complied with. In section 8A(2), the
types of local organizations to which section
8A applies are listed out.
In section 8A(5), instead of referring
to the offence of treason, subversion etc.,
each of such terms are being given a new
definition and the words "an act
that is" are used in the definitions
of "treason", "subversion", "secession" and "sedition".
If no such new definitions are given to
the said terms, one might argue that the
power of the Secretary for Security to
proscribe an organization under section
8A(1) can only be exercised when there
is prosecution for the relevant offence
of treason, subversion etc.. The reference
to "an act that is" helps to
remove the doubt.
|
| E. |
Consequential Amendments
Remaining paragraphs of the Schedule |
Paragraph 2 of the Schedule
Section 291AAA of the Companies Ordinance
(Cap. 32) |
| E1. |
Subject to your clarification whether a
proscribed organization could at the same
time be an unlawful society, please advise
whether there is any overlap in the proposed
section 291AAA and sections 360B, 360C and
360N. |
| E2. |
Please explain why the Registrar is obliged
to take action as prescribed but may defer
taking action if he is satisfied that the
right to take legal action against proscription
has not been exhausted. Would it be more
appropriate if the Registrar takes action
after the period for appeal has lapsed and
no appeal has been lodged or after all legal
action has been exhausted? |
| E3. |
Other than the Companies Ordinance, has
the Administration considered making consequential
amendments to the rest of the ordinances
referred to in the Schedule to the Societies
Ordinance? |
| Response to E1, E2 and E3 |
| The issues raised in E1, E2
and E3 have to an extent been superseded
by the government's proposed CSAs which
apply the dissolution provisions in Sections
360D to 360M of the Companies Ordinance to
companies which are proscribed.
The Registrar is given a discretion to
delay taking action on the dissolution
in order to allow time for any appeal against
the proscription to take its course. As
the dissolution procedure is not a court
procedure, the discretion is necessary
to allow for circumstances where the procedures
should be commenced notwithstanding an
on-going appeal against proscription (e.g.
to protect the rights of creditors).
The proposed CSAs provide for the dissolution
of unregistered companies and winding up
of other types of organisation which have
been proscribed. |
