CONFIDENTIAL
XCC(92)39
LAW REFORM COMMISSION REPORT ON LOITERING
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The provisions of section 160 (and in particular subsection (1)) have been the subject of criticism in recent years. Critics argue that the offence is drafted too widely and that, because of the lack of a victim to provide independent evidence, it is particularly open to abuse by the police. It is alleged that the law is applied in a discriminatory fashion and those from a disadvantaged background run a greater risk of being subjected to prosecution. The difficulties are exacerbated by differing judicial interpretation. In June 1986 in the case of Sham Chuen v AG, the Privy Council ruled that the loitering referred to in section 160(1) was not mere lingering but "loitering in circumstances which reasonably suggest that its purpose is other than innocent". The Privy Council specifically disapproved an earlier decision by the Hong Kong Court of Appeal in R v Ma Kui.
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Following Sham Chuen, there was renewed pressure for abolition of the loitering offence, culminating in a submission by the Chairman of the Bar Association to the then Attorney General in August 1987 suggesting that the subject should be referred to the Law Reform Commission. A formal reference to the Commission was made by the Attorney General and the Chief Justice on 17 September 1987.
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A sub-committee appointed by the Commission to consider the matter agreed unanimously that the law was unsatisfactory and required amendment. Four members favoured outright abolition while five believed that the criticisms of the law could be met by an amendment to -
(a) limit the application of the section to circumstances which suggest the suspect's purpose is to commit an arrestable offence, (i.e. a non-trivial offence which attracts an imprisonment term of more than 12 months);
(b)
allow the defendant a second chance to give a satisfactory account of his behaviour by giving his explanation in court;