Introduction |
| This paper sets out the Administration's
response to questions raised regarding the
existing sections 18(5) and 23 and the proposed
section 16A(1) of the Official Secrets Ordinance
(OSO), during the meetings of the Bills Committee
on 20 and 24 May 2003. |
| Sections 18(5) and 23 |
| 2. |
The Administration was asked "to
explain the effect of sections 18(5) and
23 of OSO in relation to a Chinese national
who was not a Hong Kong permanent resident." |
| 3. |
Section 18(5) of the OSO provides that
-
"A person does not commit an offence
under this section in respect of information
or a document or other article that has come
into his possession as a result of it having
been disclosed-
|
(a) |
as mentioned in subsection (2)(a) by
a government contractor; or
|
| |
(b) |
as mentioned in subsection (2)(c), |
unless that disclosure was by a British
national or Hong Kong permanent resident
or took place in Hong Kong." (italics
added) |
| 4. |
Section 18(5) provides certain exemptions
to the offence under that section. After
Reunification, the term "British national" in
the section should be construed as "Chinese
national" in accordance with the principles
as set out in an earlier paper entitled "Issues
on Adaptation of Laws." (Paper No.
28) |
| 5. |
As a result, a disclosure by a Chinese
national, regardless of whether he is a permanent
resident of the HKSAR or whether the specified
disclosure took place in the HKSAR, does
not qualify as a disclosure specified by
that part of the section. |
| 6. |
Section 23 of the OSO specifies the extraterritorial
effect of the relevant sections of the Ordinance
-
"Any act done by a British national,
a Hong Kong permanent resident or a public
servant outside Hong Kong shall, if it would
be an offence by that person under any provision
of this Part other than section 22(1), (4)
or (5) when done by him in Hong Kong, be
an offence under that provision." (italics
added)
|
| 7. |
Again the term "British national" above
should be construed as "Chinese national".
It therefore follows that the relevant provisions
of the OSO as specified are applicable to
the acts done by a Chinese national outside
Hong Kong, regardless of whether he is a
permanent resident of the HKSAR. |
| 8. |
The Bill does not propose any change to
these provisions. |
| Section 16A |
| 9. |
The Administration was asked "to
explain whether new section 16A(1) of OSO
covered information relating to the work
or activities of the Ministry of State Security
in Hong Kong." |
| 10. |
The scope of section 16A is limited to
information that relates to affairs concerning
the HKSAR which are, under the Basic Law,
within the responsibility of the Central
Authorities. The coverage of the section
has been explained in a separate paper entitled "Proposed
section 16A(1)(a) of the Official Secrets
Ordinance: Responsibility of Central Authorities." (Paper
No. 61) |
| 11. |
It should be noted that the offence under
section 16A(1) covers information which is
or has been in the possession of a public
servant or government contractor by virtue
of his position as such. "Public servant" is
limited to those of the HKSAR. Mainland officials
are not included in the new definition. |
