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The Administration's response to questions
raised
by Hon James TO on 30 December 2002
Introduction
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This note sets out the Administration's response to the questions
raised by Hon James TO on 30 December 2002.
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Replies to questions
Sedition
Para. 4.13(b)
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| 1.1 |
As acts causing "violence or public disorder
which seriously endangers the stability" of
a region (instead of a country) are classified as
an element of offence, please give examples of similar
provisions in other jurisdictions.
Administration's reply to 1.1
In Australia, section 24C of the Crimes Act 1914 provides that
it is an offence to engage in a seditious enterprise
with the intention of causing violence, or creating
public disorder or a public disturbance. There
is no requirement that the intended violence or
public disorder must be of such a magnitude that
would threaten the whole country.
In New Zealand, section 82 of the Crimes Act
1961 provides that it is unlawful to be a party
to any seditious conspiracy (which is defined
as an agreement between two or more persons to
carry into execution any seditious intention).
A "seditious intention" includes an
intention to incite, procure, or encourage the
commission of any offence that is prejudicial
to the public safety or the maintenance of public
order, and an intention to incite, procure, or
encourage violence, lawlessness or disorder.
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Para. 4.17
| 1.2 |
Regarding the defence of "reasonable excuse"
in the offence of dealing with seditious publications,
how is "news reporting" defined? For
example, is investigative journalism included? |
| 1.3 |
Regarding the defence of "reasonable excuse"
in the offence of dealing with seditious publications,
how is "news reporting" defined? For
example, are commentaries of academics in newspapers
included, regardless of them appearing in the
news pages, in the commentaries pages or in the
features pages?
Administration's reply
to 1.2 and 1.3
"Reasonable excuse"
refers to any excuse deemed "reasonable"
by the court, including academic research and
news reporting.
"Reasonable" is a well?established concept in
common law. As the law cannot provide for all
possibilities, such as the circumstantial factors
of the individual cases, it is necessary in many
cases to provide flexibility for the court to
decide whether an excuse is reasonable from the
angle of an average person, based on all the circumstances
of the case.
The express provision that "academic research"
and "news reporting" are reasonable excuses is
merely meant to be a guidance for the court when
it considers what constitutes reasonable excuses.
This will not exclude other reasons to be accepted
as reasonable excuses. |
Theft of State Secrets
Para. 6.14
| 1.4 |
The paragraph pointed out that Article 23 should
not be interpreted as implying that information
other than state secrets needs no protection. How
does the Administration get this understanding?
On this understanding, beside "state secrets", which
categories of information need to be protected on
the basis of Article 23, although not belonging
to "state secrets"? Please explain in details by
listing out the examples.
Administration's reply
to 1.4
Article 23 is a directive clause
requiring the HKSAR to enact laws. In particular,
it stipulates that the HKSAR shall enact laws
to prohibit theft of state secrets. Nowhere does
the Article require or imply that any existing
laws would be invalidated, or, so far as protection
of information is concerned, that protection should
not be afforded to information that are not state
secrets. As a result, as long as the information
protected by the existing Official Secrets Ordinance
adequately covers "state secrets", the obligations
under Article 23 are fulfilled. |
Para. 6.15
| 1.5 |
There are comments saying that the definition
of "information related to international relations"
protected under the Official Secrets Ordinance is
too broad and may be inconsistent with human rights
standard. Is the Government aware of the source
of such comments? What is the Government's response
to them?
Administration's reply
to 1.5
The compatibility of the Official Secrets Ordinance with the
Hong Kong Bill of Rights Ordinance and hence the
International Convenant on Civil and Political
Rights (ICCPR) was considered during the scrutiny
of the Official Secrets Bill in 1997. So far as
Part III of that Bill was concerned, the Administration
concluded that "to the extent that the provisions
of Part III of the Bill constitute restrictions
on freedom of information those restrictions are
narrowly tailored to protect security and public
order (ordre public). The provisions may properly
be regarded as a proportionate means to achieve
a legitimate purpose within the meaning of Article
19 of the ICCPR. There is certainly nothing in
the international jurisprudence to indicate otherwise". |
Para. 6.19
| 1.6 |
It is proposed that "information relating to relations
between the Central Authorities of the PRC and the
HKSAR" should be protected. Please make a list of
other countries where relations between central
and regional governments are classified as protected
information for the purposes of protecting "state
secrets" and cite the relevant legislation thereof.
Administration's reply
to 1.6
In the UK, section 3 of the Official Secrets Act 1989 provides,
inter alia, that it is an offence to make a damaging
disclosure of any information relating to international
relations. "International relations" is defined
to include any matter relating to a state other
than the UK with another state which is capable
of affecting the relations of the UK with another
state. References to a state other than the UK
include references to any territory (i.e. including
UK's colonies (e.g. pre-1997 Hong Kong) outside
the UK. |
Foreign Political Organizations
Para. 7.15
| 1.7 |
With reference to the mechanism
of proscribing an organization mentioned in paragraph
7.15, please make a list of those countries having
such mechanism and the relevant legislation thereof.
Administration's reply
to 1.7
In Australia, section 30A of the Crimes Act 1914
declares, inter alia, the following to be unlawful
associations, namely:
| (1) | (a) |
any body of persons, incorporated or unincorporated,
which by its constitution or propaganda or
otherwise advocates or encourages: |
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| (i) |
the overthrow of the Constitution
of the Commonwealth by revolution or
sabotage; |
| (ii) |
the overthrow by force or violence
of the established government of the
Commonwealth or of a State or of any
other civilized country or of organized
government;
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be, affiliated with any organization which
advocates or encourages any of the doctrines
or practices specified in this paragraph;
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(b) |
any body of persons, incorporated or unincorporated,
which by its constitution or propaganda or
otherwise advocates or encourages the doing
of any act having or purporting to have as
an object the carrying out of a seditious
intention as defined in section 24A.
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| (2) |
Any branch or committee of an
unlawful association, and any institution
or school conducted by or under the authority
or apparent authority of an unlawful association,
shall, for all the purposes of this Act, be
deemed to be an unlawful association.
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Security Bureau
February 2003
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