The Administration's response to questions raised
by Hon James TO on 4 December 2002 (Third Batch)

Introduction

	Further to our notes of 19 December 2002 and 7 January 2003, this note sets out the Administration's response to a number of questions raised by the Hon James TO on 4 December 2002.
Replies to questions General Questions
1.5	Does the Government regard all the offences under BL 23 are crimes of a political character? If not, which offences are regarded as offences of a political character? Please provide reasons for the Government's views. Administration's reply to 1.5 The expression "crimes of a political character" has various different meanings. In so far as the expression refers to offences that suppress political criticism of government, none of the BL 23 offences are of a political character. The proposed offences aim to prohibit conduct that is illegal in most common law jurisdictions.

Treason

2.9

7.1

What is the definition of the "entire territory" of the state? Administration's reply to 7.1 This would be defined in accordance with the relevant National laws which are applicable to Hong Kong by virtual of Article 18 and Annex III of the Basic Law and Declarations made by the PRC Government (see e.g. Declaration of the Government of the PRC on the Baselines of the Territorial Sea of the PRC issued on 15 May 1996).

Theft of State Secret

6.10-6.11, 6.23

20.2	What is the meaning of "without lawful authority"? Administration's reply to 20.2 The meaning of the phrase "without lawful authority" should be construed in the light of section 21 of the Official Secrets Ordinance, which defines the circumstances in which the disclosure of information to which the Ordinance applies may be made with lawful authority.
20.6	Is "the information did not actually cause damage" a possible defense? Administration's reply to 20.6 According to section 18(3) of the Official Secrets Ordinance, in so far as a person who is not a public servant or government contractor is concerned, he does not commit an offence unless: (a)     the disclosure by him is damaging; and (b) he makes it knowing, or having reasonable cause to believe, that it would be damaging.
20.7	Can public interest trump or outweigh the harm from disclosure as a defense? Administration's reply to 20.7 No such defence is provided under the Official Secrets Ordinance. However, according to the decision in R v Shayler [2002] 2 WLR 754, the restriction on disclosure imposed by the Ordinance is not absolute and is confined to disclosure without lawful authority. In the limited situations where a person is prohibited by the Ordinance to disclose protected information, he may apply for official authorization pursuant to section 21. Any executive decision to decline an official authorization will be subject to judicial review. This mechanism of judicial control will enable the courts to take into account and give proper weight to the public interests considerations that are in favour of disclosure.

6.19

22.1

Is it an offence if the receiver or transmitter is unaware the information is protected? Administration's reply to 22.1 An offence of unlawful disclosure is only committed if a person makes an unauthorized disclosure knowing or having reasonable cause to believe that the information to be disclosed belongs to a specifically protected category under the Ordinance.

Foreign Organizations

7.15

26.1

What is the national law(s), including the relevant regulations and/or guidelines, to proscribe an organization in the Mainland on the grounds of endangering national security?

26.2

Please provide the relevant part(s) of the national law(s) in question. Administration's reply to 26.1 and 26.2 Regulations on Registration Administration of Associations (社會團體登記管理條例) (Regulations); and Interim Regulations on Registration Administration of Private Non-enterprise Units (民辦非企業單位登記管理暫行條例) (Interim Regulations). National Security Regulation of the People's Republic of China (中華人民共和國國家安全法) Articles 4, 34 and 35 of the Regulations for the Registration Administration of Associations, Articles 4, 26 and 27 of the Interim Regulations on Registration Administration of Private Non-enterprise Units and Article 4 of the National Security Regulation of the People's Republic of China (Chinese version only) are attached as Annexes I, II and III for reference.

Security Bureau
January 2003

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