The points of contention are
(a)
Whether there is a need to retain Section 6;
and
(b)
If it is thought necessary, whether the onus of
the burden of proof regarding knowledge of the
false news should continue to rest with the
accused.
A diversity of views have been expressed and Members
have been unable to reach a consensus.
an
Let me briefly present some of the arguments put
forward by Members who are against the introduction of the new
Section 27. They feel that the new Section 27 represents a departure from the Common Law principle that an accused is presumed innocent until his guilt is proved beyond reasonable
doubt. The accused is therefore entitled to remain silent
until the Crown has proved all the ingredients which constitute
the offence. A number of Members therefore feel that
subsection 2 of the new section which effectively shifts the
burden of proof regarding knowledge of false news to the
accused is unfair and contrary to established principles of
Criminal Law. This new section, they argue, constitutes
undue suppression of press freedom. One often repeated argument is that professional ethics within the journalist trade requires journalists to keep confidential information
confidential, and under no circumstances should the source of
confidential information be identified or revealed.
If a
journalist follows this internationally accepted principle, then he would be deprived of the only defence available to him
should he be charged under the new section. Furthermore, a few
Members also believe that in cases where the truth or
authenticity of the news is not immediately or readily
available, the new section would pose an almost impossible
burden on the accused and would unduly inhibit further
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vestigation by the media which might eventually bring out mportant and material facts in the interests of the whole community. The same argument applies to the existing Section 6.
Nonetheless, despite the doubts and reservations
cited above, other Members are convinced that the Bill, as amended, strikes a fair balance. They regard the publication of false news likely to alarm public opinion or disturb public order as a serious offence which may be distinguished from the ordinary type of criminal offences. Since it is extremely
difficult to establish what was in the mind of the person publishing the false news, it is acceptable to require the accused to prove that he had reasonable grounds for believing
that the news to which the charge relates was
Otherwise,
che provision would become a dead letter of the law.
It is important that what is laid down in the Law can'
be effectively enforced. The reason is obvious. Furthermore, effective legislative provisions may serve as a deterrent against unscrupulous acts which may result in serious internal
disturbances. These Members therefore conclude that on balance
the retention of Section 6 is both necessary and acceptable.
Section 6 has been on the statute book since 1951,
and has never been invoked since 1967, when the environment
then was entirely different from what it is today. In fact,
one may say that the new Section 27 is old wine in a new bottle
or in a bottle where it belongs. False news in itself is not
an offence under the existing or the new section. An offence
would be commmitted, however, only if the false news is also
likely to alarm public opinion or disturb public order. The
combinatin of these 2 factors would make it extremely unlikely
for an offence to be committed under the existing or the new section, particularly under normal circumstances.
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Furthermore, some Members note that of the 10
sections under the Control of Publications Consolidation
Ordinace, 9 will be repealed. Only Section 6 will be
transferred to the Public Order Ordinance. It is felt that in Hong Kong today, there is justification to retain some residual power over unscrupulous publication, which may result in serious consequences to the public.
Sir, the Group reported its findings and
recommendations to the LegCo in-house meetings on at least 3 occasions and I believe all Members present at these in-house meetings were reasonably cognizant of the main points at issue. The majority of the Members present at the in-house meetings were in favour of the new Section 27 as amended.
There has been suggestions that the Bills be further deferred to allow more time for consultation. In fact, at the request of the Group, the resumed debate has already been deferred twice to allow more time for discussion. A number of Members are satisfied that discussion on the Bills has been adequate.
The suggestion that by not discriminating against the press and thus widening the ambit of the section to cover any person, represents a change in the legislative intent, is not shared by a number of Members. They are of the view that the legislative intent has always been the same, i.e. the prevention of publication of false news likely to alarm public opinion or disturb public order. Widening the ambit of the new section so that its application is not just limited to the press and thus avoiding discrimination is not only logical but an improvement over the original proposal. An individual is not subject to the professional ethics of journalists regarding identifying source of information. To suggest that making it an offence for a person to publish false news likely to alarm public opinion or disturb public order is a threat to freedom