dangerous if police officers hesitated because of doubt about their
powers.
The view of the S. of 3. was that to require a police officer to act on
reasonable grounds does not mean that he will be prevented from acting
quickly and decisively. The Commissioner of Police has argued strongly
that the test of reasonable belief would place a very heavy burden on
police officers when evaluating whether a particular reeting right
reasonably
be expected to lead to a breach of the peace, although the powers
conferred
by subsection (2) are exercisable only by police inspectora and above.
The Secretary of State is asked to reconsider his views in the light of
the Corcissioner's arguments, though the amendment is included in the
Bill,
'by virtue of clause 6,
8.
Clauce 7(a) of the Bill, which seeks to arend section 12(2)
of the Ordinance, gives effent to the views expressed in the Note on
paragraphs 13 and 14 of the Justice Report. The Kote proposed to amend
subsection (3) by deleting the words "or forrs or continues to form part
The Corri8sioner of Police, however, wishes to see those wordo
retained, contending that those who continue to be present at an
unlawful
assembly after being told to disperse should be guilty of an offence.
The
Bill, taking this into account, proposes to arend subsection (3) by
raking
it a defence for an accused to show that he did not know that it was an
I
4.
unlawful poeting ato. This will provide a defence for an accused-
Innocent
bystander who becoren unintentionally involved in an unlawful asse:bly
without knowing that it is one.
9.
Clause 8 amends section 14 by widening the defences to a charge
of carrying an offensive weapon at a public resting or in a public
processzor.
Clause 9 in intended to make it clear that the offence contained
10.
in aubsection (3) of section 15 is aired at those who organize a public
gathering in contravention of, and after the issue of, a prohibition
under
subsection (1). This trendrent will reet the objections rade in
paragraph
17 of the Justice Report.
11.
In the comments in the loto on paragraph 18 of the Justice
Report, it was suggested that the words "noity, disorderly or
intimidating"
might be added before "zanner" in the second line of section 18(1). In
the
Saving Despatch the corment was rade that it would be preferable to
refer
to conduct in a "disorderly manner", on the ground that the word "noisy"
was too vague and might be caused by cheerful spirits and not evil
intent,
and that "intimidation" is covered by the word "disorderly". The
Commissioner
of Police has objected that a group of persons could conduct therselves
reasonably. other than in a disorderly manner and yet still cause other
people to fear
a breach of the peace. There is thought to be puhatance in this
objection
and the Secretary of State is asked to reconsider the catter, though an
anendront has been included by clauso 10. The other acerdzents in this
clause will root the objections raised in paragraphe 19 and 20 of the
Justice Report.
12. The Deopatch ouggested that there should be some element of
rons rea in order to establish the offence under section 19 of the
The difficulty is, howover, that this would rake the burden
Ordinance.
of proof on the prosecution so great as to render the section
ineffective.
In practice the police, when confronted with an unruly mob, order it to
disperne. Those who choose to retain runt expect to be treated as active
participants. In Hong Kong, a crowd forma with astonishing speed and te
quickly and easily transformed into a dangeroun rob. The police pust le
able to donl with these situations swiftly. If the police are forced to
neparate spectatora from participants when handling a riot, there right
be fatal hesitation in dealing with a dangerous situation. The Secretary
!
- 5-
of State is asked to reconsider his suggestion in the light of these
comments.
13.
Clauses 11, 12 and 13 seek to give effect to the amendments proposed
by paragraphs 23, 28, 29 and 30 of the Justice Report.
14.
Clause 14 amende the heading of Part V by deleting the reference
to intimidating assemblies as this offence is to be abolished.
15.
Paragraphs 31 and 32 of the Note propose to repeal section 27
and replace it with a modified version of section 47 of the Trade Union
Registration Ordinance. However, intimidation is a grave danger to the
ordinary citizen and it is necessary to have a full provision to deal
with
this. After discussion of this section with the Commissioner of Police,
it
is considered necessary to retain paragraph (a) of the existing section.
Thus subsection (1) of the new section is drawn largely from section 47
of
the Trade Union Registration Ordinance while subsection (2) reproduces
paragraph (a) of the present section. The scope of subsection (1) has
been
extended to cover the blocking of a street or road. Past experience has
revealed that this method is often employed by intimidators.
In subsection
(2) the defences are widened to lawful authority or reasonable excuse.
16. The offence of intimidating assembly is to be abolished in view
of the fact that a person who takes part in an intimidating assembly
can.
be prosecuted for taking part in an unlawful assembly. Consequently
sections.
28 and 30 are to be repealed.
F-
17.
Clauses 18 and 19 give effect to the suggestions contained in
paragraphs 37 to 41 of the Justice Report.
18.
Clauses 20, 21 and 22 contain amendments to Part VII of the
Ordinance, which deals with closed areas. These provisions are intended
to
replace the Emergency (Closed Areas) Regulations, which we introduced
during
the disturbances last year. Clause 20 amends section 36 so that a closed
area
order must be published in the Gazette although the order will be
effective
from the day on which it is made. Also a closed area may be sealed off
by
the erection of barriers or some other means. Clause 21 will enable a
permit
to enter a non-military closed area to be issued either by the
Commissioner of Police or by a person authorized to do so in the
closed area order. Clause 22 widens the powers of arreat and
་
extends those powers to members of the Essential Services Corps and to
those appointed to guard closed areas by a person authorized in that
behalf in the closed area order. Clause 22 empowers police inspectors
and above to detain and remove unauthorized persons from a closed area.
Past experience has demonstrated the need for a method whereby persons
in
charge of important installations, such as oil refineries, gas works or
power stations, which are declared closed areas, can issue entry permits
and appoint guards to protect them.
19.
Clauses 23 and 24 implement the suggestions put forward in
paragraphs 43, 46 to 50 of the Justice Report.
20.
Clause 25 repeals section 49, which conferred wide powers of
search and entry, without warrant, on police officers. These powers have
attracted some criticism and it is now thought that the ordinary powers
conferred upon police officers at common law and by the Police Ordinance
are adequate, short of a serious emergency situation.
21.
By clause 26, a new section 50A is added, to make it an offence
to obstruct members of Her Majesty's Forces, members of the Royal Hong
Kong Defence Force or any other person if they are on duty under the
provisions of this Ordinance. In Hong Kong military personnel frequently
work with the police in times of disturbances and it is desirable that
they be afforded some measure of protection from obstruction. The
offence
is at present contained in regulation 113 of the Emergency (Principal)
Regulations, which is to be revoked.
22.
Clause 27 effects a number of minor consequential amendments
to the Trade Union Registration Ordinance.
8/éli
A BILL
To
Amend the Public Order Ordinance and to make consequential
amendments to the Trade Union Registration Ordinance.
Enacted by the Governor of Hong Kong, with the advice and
consent of the Legislative Council thereof.
Short title.
1.
This Ordinance may be cited as the Public Order (Amendment) Ordinance
1968.9
Amendment of
section 2.
(Cap. 245).
2. Section 2 of the principal Ordinance is amended by
deleting the definition of "meeting" and substituting the following -
Amendment of section 3.
""meeting" means
(a)
-
any gathering or assembly of persons convened or
organized for any purpose; and
(b) any gathering or assembly of persons, whether or
not previously convened or organized, at which
any person assumes or attempts to assume control
or leadership thereof,
but does not include any gathering or assembly of persons
convened or organized exclusively
-
(i) for the purposes of any public body; or
(ii) for the purpose of carrying out any duty or
exercising any power imposed or conferred by any
Ordinance;".
3. Section 3 of the principal Ordinance is amended -
(a) in subsection (1) by deleting "if the display of any flag,
banner or emblem is, in the opinion of such police officer,
- 2
likely to cause or lead to a breach of the peace" and
substituting the following ·
"if such police officer reasonably believes that the
display of any flag, banner or emblem is likely to
cause or lead to a breach of the peace";
(b) in subsection (2) by inserting, before "necessary" in the
first place where it occurs, the following -
"reasonably".
Amendment of section 7.
4.
Section 7 of the principal Ordinance is amended -
(a) in subsection (2), by inserting after "procession" in the
second place where it occurs the following
-
"(or two days before a public procession solely
for the purposes of a funeral)".;
(b) in subsection (5)
(i) by deleting "or" at the end of paragraph (b);
(ii) by deleting the full stop at the end of paragraph (c)
and substituting a semicolon; and
(iii) by inserting thereafter the following new paragraphs ·
"(d) any public meeting held exclusively for
social purposes in any restaurant licensed
under the Public Health and Urban Services
Ordinance; or
+
(Cap. 132)
(e) any public meeting solely for the purpose
of a funeral.'
- 3-
Am ment of Bection 9.
5.
Section 9 of the principal Ordinance is amended -
(a) by inserting after "to the final dispersal thereof," the
following -
"unless he is prevented from being so present by
reason of illness or other unavoidable cause,"
(b) by deleting "and the period of one hour immediately following
the final dispersal thereof."
Amendment of section 11.
6.
Amendment of section 12.
Section 11 of the principal Ordinance is amended in
subsection (2) by deleting "if the same is causing or is in his
opinion" and substituting the following
"if he reasonably believes that the same is".
7.
Section 12 of the principal Ordinance is amended -
(a) in subsection (2) by deleting paragraph (a) and substituting
the following
"(a) any public meeting or public procession for which
a licence is required under section 7 takes place
without such a licence;";
(b) in subsection (3) by inserting in paragraph (a) after
"assembly" the following -
Amendment of section 14.
8.
", unless he proves that he did not know that it was
an unlawful assembly".
Section 14 of the principal Ordinance is amended in
-
4
subsection (1) by deleting "otherwise than in pursuance of lawful
authority" and substituting the following
"without lawful authority or reasonable excuse".
Amendment of section 15.
9. Section 15 of the principal Ordinance is amended in
subsection (3) by inserting after "Any person who" the following
", after notice of a prohibition under subsection (1) has
been given,".
Amendment of section 18.
10.
Section 18 of the principal Ordinance is amended
-
(a) in subsection (1) -
(i) by inserting, before "manner", the following -
"disorderly";
(ii) by deleting "such assembly" and substituting the
following -
"such conduct";
(b) in subsection (3) by deleting "unlawful assembly" in the
first place where it occurs and substituting therefor the
following -
"assembly which is an unlawful assembly by virtue of
subsection (1)".
Amendment of section 23.
11. Section 23 of the principal Ordinance is amended by
deleting subsection (2) and substituting the following
- 5 -
"(2) Nothing in this section shall make it an offence
for a person to enter upon his own premises if they are in
his possession or in the custody of his servant or agent.".
Amendment of section 25.
12.
Section 25 of the principal Ordinance is amended by deleting
"a fight" and substituting therefor the following -
"an unlawful fight".
Amendment of section 26.
13. Section 26 of the principal Ordinance is amended by deleting
"or is likely" and substituting the following -
"or which he knows or ought to know is likely".
Amendment of Part V.
14. Part V of the principal Ordinance is amended in the heading
by deleting "AND INTIMIDATING ASSEMBLIES".
Repeal and replacement
of section 27.
15. Section 27 of the principal Ordinance is repealed and
replaced by the following -
"Intimidation.
27. (1) Any person who, with a view to
compelling any other person to abstain from doing
or to do any act which such other person has a
right to do or abstain from doing, without lawful
authority or reasonable excuse
(a)
uses violence to or intimidates such
other person or his wife or children,
or injures his property;
(b) persistently follows such other person
about from place to place;
(c) hides any tools, clothes or other property
owned or used by such other person, or
deprives him of them or hinders him in
1
6 -
the use of them;
(a) follows such other person in a disorderly
manner in or through any street or road;
(e) watches or besets the house or other place
where such other person resides or works
or carries on business or happens to be
or the approaches to such house or place; or
(f) blocks or causes an obstruction in any
street or road,
shall be guilty of an offence.
(2) Any person who, without lawful authority
or reasonable excuse, does or says anything, or
behaves in a manner, or utters or distributes any
publication, which is likely to make some other person
apprehensive as to what may happen
P
(a)
to such other person or to any member of
the family or any dependant of such other
(b)
person;
to any property, business, undertaking or
interest of such other person or of any
member: of the family or any dependant
of such other person;
(c) to any building or place occupied by
such other person or by any member of
the family or any dependant of such
other person; or
- 7
(d) to any business or undertaking in which such
other person or any member of the family or
any dependant of such other person is employed,
shall be guilty of an offence.
(3) Any person guilty of an offence under this
section shall be liable ·
-
(a) on conviction on indictment to imprisonment
for five years; and
(b)
on summary conviction, to a fine of five
thousand dollars and to imprisonment for two
years.
(4) In this section "intimidate" means to cause
in the mind of a person a reasonable apprehension of injury
to himself or to any member of his family or to any of
his dependents or of violence or damage to any person
or property.".
Repeal of section 28.
16. Section 28 of the principal Ordinance is repealed.
Repeal of section 30.
17. Section 30 of the principal Ordinance is repealed.
Amendment of section 31.
18. Section 31 of the principal Ordinance is amended in
subsection (2) by. inserting, after paragraph (b), the following new
paragraph -
"(c) Upon cancellation of a permit under paragraph (b), the
Commissioner of Police shall serve on the permit holder,
either personally or by registered post, notice in
writing of the cancellation, and upon receipt of the
notice the permit holder shall forthwith surrender his
permit.".
-
8.
Amendment of section 32.
19. Section 32 of the principal Ordinance is amended in subsection
(1) by inserting, after "without lawful authority", the following -
7
"or reasonable excuse".
Repeal and replacement of section
36.
20. Section 36 of the principal Ordinance is repealed and replaced.
by the following
Amendment of section 37.
"Closed areas.
36. (1)
(1) The Governor may by order declare any area
or place to be a closed area.
(2) An order made under subsection (1) shall come
into force at such time as may be specified therein or,
if no time, is so specified, immediately upon the making
thereof by the Governor and shall be published in the
Gazette as soon as may be reasonably practicable after
the making thereof.
(3) The Commissioner of Police and such other person
as may be authorized in any order made under subsection (1), may cause a
closed area to be closed by the erection
of barriers or otherwise.".
21. Section 37 of the principal Ordinance is amended by deleting
subsection (2) and substituting the following
"(2) In the case of any closed area, other than a closed
area referred to in subsection (1), a permit may be issued -
(a) by the Commissioner of Police; or
(b)
by such authority or person as may be specified for
that purpose by the Governor in any order made under
section 36,
- 9 -
to any person allowing that person to enter or leave the closed
area." •
Amendment of section 39.
22.
Section 39 of the principal Ordinance is amended by
(a) deleting subsection (1) and substituting the following
"(1) Without prejudice to the provisions of this
Ordinance or of any other law, any member of Her Majesty's
forces, or any guard, may arrest -
(a) any person whom he finds in a closed area if he
has reason to suspect that such person has
committed or is about to commit any offence}
(b) any person whom he finds committing any offence
in a closed area;
(c) any person whom he finds attempting to enter a
closed area, if he has reason to suspect that
such person has not been issued with a permit
under section 37,
and may use such force as may be necessary for the
purpose.".
(b) inserting, after subsection (2), the following new subsections-
"(3) Any police officer of or above the rank of
inspector, with the assistance of such other police
officers as may be necessary, may
(a) detain any person who is in a closed area
without permission or authority for such
time as may be necessary to ensure his orderly
removal therefrom; and
1
+
10 -
(b) remove therefrom any person who is in
a closed area without permission or
authority.
(4) In this section, "guard" means -
(a) any member of the Essential Services Corps;
(b) any person appointed to guard a closed
area by the Governor or the Commander
British Forces; and
(c) any person appointed to guard a closed area
by such authority or person as may be
specified for that purpose by the Governor
in any order made under section 36.".
Amendment of section 40.
23.
Section 40 of the principal Ordinance is amended -
by deleting "any magistrate" and substituting the following
"the Commissioner of Police";
(b) by inserting after "to appoint" the following -
"in writing".
-
Amendment of section 44.
24. Section 44 of the principal Ordinance is amended -
-
11-
(a) by deleting subsection (1) and substituting the following
"(1) When a person is required to show cause
under section 43, the magistrate shall set forth
in writing the order proposed to be made (hereinafter
in subsections (2), (4), (6) and (7) referred to
as the proposed order) in which shall be stated
(a) the substance of the information received;
(b) the amount of the bond to be executed;
(o) the date of commencement and expiry of
bond,
-
(a) the number, character and class of sureties,
if any, required.";
(b) in subsection (2) by deleting "the order" and substituting
the following -
"the proposed order";
(c) in subsection (4) by deleting "the order" and substituting
the following
-
"the proposed order";
(d) in subsection (5) by deleting "in pursuance of an order
as aforesaid" and substituting therefor the following
"in accordance with subsection (3)";
12
―
(e) in subsection (6) by deleting "the order" and substituting
the following
"the proposed order";
(f) in subsection (7) by deleting "the order" and substituting
the following
(g)
"the proposed order";
in subsection (8) by inserting after "A bond executed" the
following
"under this section";
(h) in subsection (12) by deleting "accordingly" and substituting