the following
-
"in accordance with subsection (10)".
Repeal of section 49.
25. Section 49 of the principal Ordinance is repealed.
Addition of
new section 50A.
26.
The principal Ordinance is amended by adding, after section 50,
the following new section
"Obstruction.
50A.
Any person who obstructs
-
(a) any member of Her Majesty's forces;
(b) any member of the Royal Hong Kong Defence Borce; or
(c) any other person,
exercising any powers or performing any duties conferred
or imposed on him by this Ordinance or by any orders,
13
directions, requirements or notices made thereunder shall
be guilty of an offence and shall be liable on summary
conviction to a fine of one thousand dollars and to
imprisonment for six months.".
Amendment of Cap. 332.
27.
Part VII of the Trade Union Registration Ordinance is amended
-
(a) in the heading, by deleting ", INTIMIDATION";
(b)
in section 46, by inserting, after "Ordinance", the
following -
"or in section 27 of the Public Order Ordinance"; and
(c) by repealing section 47.
14
-
8/1/i
Explanatory Memorandum
This Bill makes a number of amendments to the Public Order
Ordinance which are designed to clarify some provisions about which
doubt
has been expressed and to relax others in order to give better
protection
to the public against any misuse of powers or against the possible con-
viction of persons innocently involved in circumstances which constitute
offences under the Ordinance.
2.
Clause 2 replaces the definition of "meeting" in the principal
Ordinance so as to limit it only to those meetings where there is a
degree
of organization and to exclude those meetings which are held for any
statutory purpose, such as creditors' meetings; the definition will
cover
the situation where there is no prior organization but a person assumes
control or leadership of a group in a public place.
3.
Similarly, subsection (2) of
It is considered desirable that the power conferred on a police
officer by subsection (1) of section 3 of the principal Ordinance should
be exercised on the basis of reasonable belief rather than on the basis
of the opinion of the police officer.
section 3 is amended so as to ensure that when a police officer enters
any premises or place it should be "reasonably" necessary for him to do
BO. (Clause 3).
4.
Clause 4 amends section 7 by providing that an application for
the licence of the Commissioner of Police for a funeral procession shall
be made not less than two days before the procession is held. The clause
also exempts funeral meetings and meetings held for social purposes in a
restaurant from the need to be licensed.
5.
By section 9 of the principal Ordinance, every licensee of a
licence obtained under section 7 shall be present at the public meeting
or public procession from the first assembly to the final dispersal
thereof, and shall comply with any police directions regarding such
meeting or procession throughout the period of assembly, conduct and
dispersal thereof and the period of one hour following the final
dispersal
16-
thereof. It is now felt that these conditions can cause problems when
the
licensee is unavoidably absent from the meeting. Accordingly, clause 5
proposes to amend section 9 by providing a defence for a licensee who is
absent from a meeting by reason of illness or other unavoidable cause.
Furthermore, the requirement that police directions be complied with
during
the period of one hour after the final dispersal of a meeting or
procession
is deleted.
6.
Clause 6 amends subsection (2) of section 11 so as to oblige a
police officer, when exercising the powers conferred by the subsection,
to
act only on reasonable belief.
7.
Clause 7 makes it clear that paragraph (a) of section 12(2) applies
only to meetings or processions. for which a licence is required under
section 7. Also, subsection (3) is amended so as to afford to a person
charged with an offence under the subsection the defence that he did not
know that the meeting, procession or gathering was unlawful; this is
intended
to confer protection on any innocent bystander who becomes
unintentionally
involved in an unlawful assembly.
8.
Section 14 is amended so as to enable a person charged with
possessing an offensive weapon at a public meeting or procession to
plead
"lawful authority or reasonable excuse" as a defence. (Clause 8).
9.
Subsection (3) of section 15 is amended in such a way as to ensure
that only those who promote, direct, organize or manage a prohibited
public
gathering after the issue of the prohibition by the Commissioner of
Police
shall be guilty of an offence under that subsection (Clause 9).
10.
The definition of an unlawful assembly in section 18 is altered by
clause 10 to show that there must be a disorderly element in the conduct
of
an assembly before it becomes unlawful.
11.
The offence of forcible entry under section 23 will not be
committed by a man who enters his own premises. (Clause 11).
12.
At present, section 25 applies to any fight in a public place,
which might include a boxing match. This section is confined to unlawful
fights by clause 12.
13.
In section 26 an objective test will have to be applied in
deciding whether an accused has committed an offence under the section,
(Clause 13).
16
14.
Section 27 of the principal Ordinance, which deals with
intimidation, is repealed by clause 15 and replaced by an amalgam of
section 47 of the Trade Union Registration Ordinance and paragraph (a)
of the repealed
section. It is considered that the present section is too wide in its
scope
and that the mischief aimed at can be adequately dealt with under the
new
provision.
15.
The offence of intimidating assembly is thought to be superfluous,
because a person who takes part in such an assembly can be prosecuted
for
taking part in an unlawful assembly. Consequently, clauses 16 and 17
seek to
repeal sections 28 and 30.
16.
The effect of the amendment to section 31 of the principal Ordinance,
contained in clause 18, is to require the Commissioner of Police to
serve
notice of cancellation of a curfew permit on the permittee.
17.
Section 32 enables a person charged with carrying an offensive
weapon during a curfew to put up the defence that he had a reasonable
excuse
for so doing. This adds to the existing defence of lawful authority.
(Clause
19).
18.
Clauses 20, 21 and 22 amend Part VII of the principal Ordinance,
which deals with closed areas. In future a closed area order made under
section 36 must be published in the Gazette although the order will be
effective from the day on which it is made. The proposed subsection (2)
to
section 36 deals with the closing of closed areas by the erection of
barriers
or other means. The new subsection (2) of section 37 provides for the
issuing
of permits to enter non-military closed areas by the Commissioner of
Police
or by such other authority or person as is authorized for that purpose
in
the closed area order. The powers of arrest contained in subsection (1)
of
section 39 are extended to enable a guard (defined in the new subsection
(4))
to arrest any person about to commit any offence within a closed area.
The
definition of "guard" will ensure that, in an emergency, closed areas
may be
guarded by persons other than police officers and members of the armed
forces.
19.
Section 40 is amended so as to empower the Governor to authorize
the Commissioner of Police to appoint, in writing, any person as a
special
constable. (Clause 27).
20.
Clause 24 makes a number of minor drafting amendments to section 44.
17
21.
Section 49 of the principal Ordinance is repealed by clause 25.
conferred
This contarfod unusually wide powers of search and entry on police
officers
and it is now considered that the powers conferred by the Police
Ordinance
and at common law should prove sufficient.
22.
Clause 26 adds a new section 50A, which makes it an offence for
a person to obstruct a member of Her Majesty's forces, a member of the
Royal Hong Kong Defence Force or any other person acting under a power
or
duty conferred or imposed on them by the Ordinance. In Hong Kong
military
personnel in times of disturbances work in conjunction with the police
and it is considered desirable that they should have a measure of
protection
from obstruction.
23.
Clause 27 ropeals section 47 of the Trade Union Registration
Ordinance, the substance of which is now contained in subsection (1) of
the new section 27.
Attorney General.
1
18
Public Order (Amendment) Bill.
Comparative Table.
Clause in Bill
Clause 2
Clause 3(a)
Clause 3(b)
Clause 4
Clause 5
"Justice's" Report
Paragraphs 4 and 6.
Paragraph 7.
Paragraph 8.
Paragraphs 6 and 9.
Paragraphs 10 and 11.
Paragraph 12.
Paragraph 14.
Clause 6
Clause 7
Clause 8
Paragraph 5.
Clause 9
Paragraph 17.
Clause 10(a)
Paragraph 18.
Clause 10(b)
Paragraph 20.
Clause 11
Paragraphs 23 and 25.
Clause 12
Clause 13
Clause 14
Clause 15
Paragraphs 28 and 29.
Paragraph 30.
Amendment consequential upon repeal of
section 28.
This clause is based on section 47 of the
Trade Union Registration Ordinance, Cap. 332 and previous section 27(a).
Paragraph 35.
Clause 16
Clause 17
Paragraph 36.
Clause 18
Clause 19
Paragraph 37.
Paragraphs 5 and 40.
Clause 20
Clause 21
Clause 22
Clause 23
Clause 24
Clause 25
Clause 26
Clause 27
See Emergency (Closed Areas) Regulations 1967.
Paragraph 43.
Paragraphs 46 to 50.
Paragraphs 51 and 52.
Emergency (Principal) Regulation 113.
Repeals.
8/1⁄2Jñi
COMMENTS
A
of 1 Horney Francoal, thang Kung,
ON
PUBLIC ORDER (AMENDMENT) BILL.
The attached Bill has been prepared to take into account
some of the criticisms of the Public Order Ordinance which were rade
by the Hong Kong Branch of Justice in their Report on it. The Bill
also enacts, with modification, sore provisions which are at present
contained in Exergency Regulations but which are considered to be needed
in permanent legislation. Account has, of course, also been taken of
the Secretary of State's Saving Despatch No. 406 of 27 June, 1969.
References to "the Note" are to the Note by the Attorney General on the
Justice Report; this Note was forwarded to the Secretary of State's
Legal Adviser on 16 February, 1968 and is referred to in Saving Despatch
No. 406.
2.
The definition of "meeting" in section 2 of the principal
Ordinance is replaced. In paragraph 4 of the Note it was proposed to
exclude from this definition meetings convened or held "for the purpose
of carrying out any duty or exercising any power imposed or conferred
by any Ordinance". This has been done by paragraph (11) of the new
definition. As suggested in paragraph 6 of the Note, the definition is
also acended to make it clear that it is intended to cover only meetings
where there is a degree of organization; the word "held" has been
deleted and "organized" substituted therefor. Faragraph (b) of the new
definition
in designed to make it clear that organization of a group in public,
without any prior planning, will make that group into a reeting for the
purposes of the Ordinance.
3. Paragraph 5 of the Note agreed that the definition of "offensive
weapon" should be amended by deleting the words "or quitable". However,
the Corrissioner of Police has objected very strongly to this, on the
grounds that in Hong Kong the commonest offensive weapons used are the
cargo hook and the mineral water bottle, neither of which are "rade" or
"adapted" but both of which are eminently "suitable" for causing injury.
In this connection, the following extract from the judgment of Goddard
L.C.J.
2
in Woodward v. Koessler 19587 3 All E. R. 557 & 558 is relevant -
"If we were to hold that this young man with this shocking
weapon was not in possession of an offensive weapon for causing
injury, when he went up to an elderly man and said "can you see
this?", it would be driving a coach and four through this useful
act Prevention of Crime Act, 19537. It would hardly ever be
possible to get a conviction. We know well why it is rather an
obscure definition, viz; because one of the weapons that these
young hooligano like to use is a bicycle chain. The bicycle chain
is not made for injury, but if a boy in swinging e bicycle chain
and saying "look out", that is using an offensive weapon."
The definition of "offensive weapon" in the U.K. Act does not use the
words "or suitable". It follows that without the words "or ouitable", a
person cannot be charged with possessing an offensive weapon if the
article
is neither "rade" nor "adapted" for causing injury unless the
prosecution
can prove intent. It is submitted that in Hong Kong such a burden would
seriously hamper law enforcement. It is proposed therefore that this
definition should remain untouched but that those sections of the
Ordinance
which create offences in relation to the possession of offensive weapons
should rake available to an accused the defences of "lawful authority or
reasonable excuse" which, it is thought, will provide the necessary
protection for the person who is innocently in possession of dangerous
articles. The relevant sections are 14, 32 and 33.
4.
In the Note the amendment to section 3 suggested by Justice
was opposed on the ground that it would be unwise to fetter the power of
police officers to act quickly and decisively in the removal of flags
which might lead to trouble. However, the position has been reconsidered
in the light of the corrents in Saving Despatch No. 406, and the
proposed
arendrent is included in clause 3. Subsection (2) is acended as proposed
in the Note.
5.
Clause 4 of the Bill proposes to amend subsection (5) of
section 7 by providing that restings held for social purposes in a
restaurant do not require the licence of the Commissioner of Police.
accords with the views contained in the Note, which also supported the
This
- 3 -
suggestion that funerals should be exempted from the need to obtain a
licence. The Commissioner of Police argued that, as funeral processions
can become a danger to public security, and a severe traffic problem, a
Eeasure of control over them is desirable. The Bill therefore exempta a
funeral meeting from the need for any licence, but requires one to be
obtained, on application not less than two days before it, for any
funeral
procession.
6.
Report.
7.
Clause 5 of the Bill gives effect to paragraph 10 of the Justice
Paragraph 12 of the Justice Report objected to the words "in his
opinion" as used in section 11(2) in relation to police officers and
suggented substituting "reasonably" for these words. The Note contended
that, in our circumstances, it is better to have a police officer
disperse
a resting too hastily rather than too tardily and that it would be
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 might
reasonably
be expected to lead to a breach of the peace, although the powers
conferred
by subsection (2) are exercisable only by police inspectors and above.
The Secretary of State is asked to reconsider his views in the light of
the Commissioner's arguments, though the amendment is included in the
Bill,
by virtue of clause
8.
Claune 7(a) of the Bill, which seeks to arend section 12(2)
of the Ordinance, gives effect to the views expressed in the Note on
? paragraphs 13 and 14 of the Justice Report. The Note proposed to
arend
subsection (3) by deleting the words "or forms or continues to form part
of". The Commissioner of Police, however, wishes to see those words
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
making
it a defence for an accused to show that he did not know that it was an
!
r
unlawful meeting etc. This will provide a defence for an-seeused
innocent
bystander who becomes unintentionally involved in an unlawful assembly
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 meeting or in a public
procession.
Clause 9 is intended to make it clear that the offence contained
10.
in subsection (3) of section 15 is aimed at those who organize a public
gathering in contravention of, and after the issue of, a prohibition
under
subsection (1). This amendment will meet the objections made in
paragraph
17 of the Justice Report.
11. In the comments in the Note on paragraph 18 of the Justice Roport,
it was suggested that the words "noisy, disorderly or intimidating"
might be added before "manner" in the second line of section 18(1). In
the
Saving Despatch the comment was made 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 themselves
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 substance in this
objection
and the Secretary of State is asked to reconsider the matter, though an
amendment has been included by clause 10. The other amendments in this
clause will meet the objections raised in paragraphe 19 and 20 of the
Justice Report.
12. The Despatch suggested that there should be some element of
mene rez in order to establish the offence under section 19 of the
The difficulty is, however, that this would make 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
disperso. Those who choose to retain must expect to be treated as active
participants. In Hong Kong, a crowd forms with astonishing speed and is
quickly and easily transformed into a dangerous mob. The police must be
able to deal with these situations swiftly. If the police are forced to
separate spectators from participants when handling a riot, there might
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 arends the heading of Part V by deleting the reference
to intimidating assemblies as this offence is to be abolished.
15.
Faragraphs 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.
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 were 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 arrest 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 las 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 povers 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
aro 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 llong 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.
+
Clauso 27 oftects a number of minor consequential amendments
ation