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that Ordinance has been extended year by year
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by resolution of Legislative Council. Ordinance is an amalgam of the U.K. Trade Disputes Act of 1927 (repealed in 1946) and the Conspiracy and Protection of Property Act 1875. The 1927 Act was repealed by the Labour Government in 1946 and Colonal Governments were asked by Circular Despatch to consider the repeal of any similar provisions in their legislation. Some Governments did so, but there were a few exceptions, of which Hong Kong is one. It could be said therefore that Section 3 at least of the existing Ordinance is contrary to accepted policy.
4. It is important to note that Section 3 (5) contains the particular safeguard "that no person shall be deemed to have committed an offence under this Section or at common law by reason of his only having ceased work or refused to continue employment". I shall return to this in a moment, but it should be noted that this safeguard also appears in the Emergency Powers Act of 1920.
5. Reverting now to the draft Amending Bill, it is intended by amending sub-section (5) of Section 3 of the Ordinance, to make it an offence not only to declare, instigate, incite etc., but also "to take part in". Apart from the basic policy objection to making it an offence for the individual to take part in a strike, it seems to me as a layman that so long as the proviso to sub-section (5) remains as at present, the insertion of the words "take part in" can have no meaning. But Mr. Aust will want to look at this. No doubt the draft could readily be tidied up to produce the effect required in Hong Kong but one must now envisage the situation created by the insertion of the new Section 3 (a), by which the Governor in Council may declare a particular strike or lock-out illegal. Presumably before he can do so the initial steps for the calling of a strike must have been taken; it must be apparent that a strike is to take place; or alternatively a strike must already have started. But if at that point a strike is declared illegal, it seems to me that those who have instigated and procured the strike will go scot free since they cannot be found guilty of something which was not illegal when they did it, and that only the individual and often misled and misinformed worker will become liable to penalty.
6. In my view the amendments are ill-conceived and defective and by making it an offence for an individual worker to take part in a strike, are contrary to the policy which successive Secretaries of State for the Colonies have laid down. What is also surprising is that it should be thought worthwhile in Hong Kong to tinker with a piece of legislation that has been on the Stature Book since 1949 and which has never been invoked and
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