THE BILL
CONFIDENTIAL
XCC(92)39
15
To overcome this difficulty, we propose to introduce the Crimes (Amendment) (No. 2) Bill 1992 at Annex C which replaces the present section 160(1) with the following new and simplified loitering offence -
"A person who loiters in a public place or in the common parts of any building with intent to commit an arrestable offence commits an offence and is liable to a fine of $10,000 and to imprisonment for 6 months."
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This proposed formulation meets the LRC sub-committee's concern in paragraph 11(a) and yet avoids the difficulty set out in paragraph 14.
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Under this formulation, any failure of a suspect to give a satisfactory explanation of his presence and behaviour will form part of the evidence in the case; it will not, as it does in the present offence, constitute a part of the offence. There will be no question of the accused being compelled to answer questions; he will be cautioned in the normal way that he does not have to say anything but that anything he does say may be used in evidence.
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The new requirement to prove "intent" to commit an arrestable offence will make it more difficult to secure convictions than under the existing law. It will, nevertheless, be no more difficult than for numerous other offences requiring proof of intent. In reality, "intent" can normally be inferred from the surrounding circumstances in each particular case. It may sometimes be difficult to prove an intent to commit an arrestable, as opposed to a non-arrestable, offence. The Attorney General's Chambers has advised that this proposed formulation should withstand challenges under the amended Letters Patent.