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This
Shortly after the enactment of the Ordinance, the Reform Club of Hong
Kong (an organisation of some 5,000 paid-up members) submitted a
petition to Parliament copy attached) on the subject of the Crainance,
through the medium of Mr. John Rankin, K.F. The petition asked for the
Ordinance to be disallowed. The Ordinance was also the subject of
considerable criticism by the Hon Fong branch of "Justice". criticism
was set out in a comprehensive memorandum sent to the Department by
"Justice": and this memorandum has received close examination both by
our Legal Advisers and by the Attorney-General in Hong Kong. "Justice's"
main criticisms were concerned with the increased powers given by the
Ordinance to Police Officers in order to strengthen the hands of the
latter in dealing with lawless elements in the community; and with
certain provisions which created offences in connexion with unlawful
assemblies and which, in the view of "Justice", were such as to do away
with the requirement that guilty intent should exist before an offence
could be committed,
4.
The Ordinance has also been the subject of two Parliamentary questione
by Mr. Frank Allaun (one on 19 December, 1968 and one on 10 February,
1969). Both of these questions were concerned with the burden of proof
being placed on the authorities and he was given the same reply to both
questions, namely that the Secretary of State was examining certain
provisions of the Ordinance in consultation with the Governor in the
light of criticisms that had been made.
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5. The attached draft Bill (which is the one referred to in paragraph 1
above) is the result of these consultations. It should be viewed from
two aspects: first as regards the extent to which it purports to
incorporate emergency legislation into the permanent law: and second
from the point of view of the extent to which it meets the various
criticisms which have been levelled at the principal Ordinance.
6. As regards the first of these considerations, the only additional
emergency legislation which has been included in the draft Bil relates
to clause 26
thereof. This is designed to incorporate into the principal Ordinance,
Emergency (Principal' Regulation 113 which makes it an offence for any
person to obstruct any member of the Naval, Military or Air Forces or
any Police Officer, acting in the course of their duty. I hardly think
that this clause is likely to give rise to any difficulty. The Bill is
also concerned with amending certain sections of the principal Ordinance
which had been incorporated into the principal Ordinance from emergency
legislation. The only clause of the Bill which is worth mentioning in
this connexion is clause 15 which repeals, replaces and ameliorates
section 27 of the principal Ordinance concerning intimidation and
intimidating assemblies.
7.
As regards "Justice's" criticisms of the principal Ordinance, these are
met to a very consider- able extent by the draft Bill. There are very
few outstanding points remaining and of these the following are the main
ones:
(1)
(2)
Section 7 of the Ordinance and Clause 4 of! the Bill:
Control over funeral processions presents a particular problem in the
circumstances of Hong Kong. However, it is considered that the powers
conferred on the Commissioner of Police by section 7(4) are too wide in
relation to funeral processions;
Section 11(2) of the Ordinance and Clause 6 of the Bill:
This concerns the question whether a Folice Officer, when exercising his
powers of preventing the holding of or dispersing public gatherings or
meetings, should be able to do so "if the same is causing or in his
opinion likely to cause or lead to a breach of the peace."
or whether he should only do so:
"if he reasonably believes that the same is likely to cause or lead to a
breach of the peace.
The Governor has already accepted a similar amendment to section 3 of
the Ordinance (which relates to Folice powers to prohibit the display of
flags and emblems) and we can see no difference in principle between the
two sections. Nor is it considered that it would in any way hamstring a
Police Officer (who has to be of the rank of Inspector or above) if he
were required to be reasonably satisfied that the exercise of his powers
under the section was necessary before he exercised these powers.
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8.
(3)
Section 12 of the Crdinance and Clause 70) of the B111:
This relates to the question of guilty intent: section 12 (3) (a) makes
it an offence for a person to form part of an unlawful assembly. There
is a danger that an innocent person might be caught up in such an
assembly and be unable to get away from it. Clause 7(b) of the draft
Bill endeavours to, put this matter right by making it ence if the
person charged could prove that he did not know that it was an unlawful
assembly. However, we consider that such an amendment would not be
adequate if an innocent person was physically incapable of getting away
from an unlawful assembly.
All the above points (and one or two others as well) are dealt with in
the attached draft Saving Despatch to the Governor, which has been
cleared with the Legal Advisers. The Governor is anxious to introduce
the Bill into the Legislative Council as soon as possible, but I am
afraid that I do not see how we can give him the go-ahead until we
receive his reply to our enquiries.
28 March, 1969
(A. W. Gaminara) Hong Kong Department
1
Mr. Carter
Mr. Moreton
Submission
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17
PUBLIC ORDER (AMENDMENT) BILL 1969
Problem
The Governor of Hong Kong has forwarded for scrutiny a FLAG FLAG B draft
Bill to amend the Public Order Ordinance 1967.
17/2
FLAG C.
The
main purpose of the Bill is to amend the Principal Ordinance
in order to meet certain criticisms which have been levelled
at the latter by "Justice". The Bill also seeks to incorporate
into the Principal Ordinance certain provisions of emergency
legislation; and to ameliorate certain other provisions of the
Principal Ordinance which had previously been taken from
emergency legislation. The Bill goes a long way towards achieving its
purposes, but there are a few outstanding points
for which, after discussion with the Legal Advisers, we consider
that the Bill should provide.
Recommendation
2. I recommend that these outstanding points be put to the
Governor in terms of the attached draft Saving Despatch, for
his further consideration.
Background
3. The Hong Kong Public Order Ordinance was brought into
operation in November 1967 at the height of the disturbances
in the Colony. Its purpose was to consolidate into one
Ordinance the various provisions dealing with public order
and to strengthen the law where experience had shown this to
be desirable. Work on the preparation of the Ordinance had
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been in progress for more than two years prior to its enact-
ment; account was taken in its drafting of the experience
gained during the 1967 disturbances, but the Ordinance was
not designed for dealing with emergencies. The Governor
sought the views of the Department on the draft of the
Ordinance before its enactment and the matter was given
careful and prolonged examination in the Commonwealth Office
before the draft was agreed to. Shortly after the enactment
of the Ordinance the Reform Club of Hong Kong (an organisation
of some 5000 paid-up members) submitted a petition to
Parliament (copy attached) on the subject of the Ordinance,
through the medium of Mr. John Rankin M.P. The petition
asked for the Ordinance to be disallowed. The Ordinance has
also been the subject of two Parliamentary Questions by
Mr. Frank Allaun (copies attached); both of these questions
were concerned with the burden of proof being placed on the
authorities.
Argument
Incorpo- 4. The extent to which the draft Bill seeks to incorporate
ration of
Certain provisions of emergency legislation into the Principal Ordinance
Emergency Legisla- is very limited indeed; it is confined to Clauses 20,
21, 22 tion.
and 26 and consists of the following provisions:
(1) Section 36 of the Principal Ordinance enables the
Governor by order to declare any area or place to
be a "closed area", and Section 37 sets out the
procedure for the issue of permits to persons
wishing to enter or leave such an area. Clause
20 amends Section 36 to require any order
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establishing a closed area to be published in the
Gazette; and authorises the Commissioner of Police
or any other authorised person to cause a closed
area to be closed by the erection of barriers or
otherwise. Clause 21 amends Section 37 to provide
that a permit to enter a non-Military closed area
may be issued not only by the Commissioner of
Police but in addition by any other person
authorised by the Governor.
It is proposed to
ask the Governor further to amend Section 37 to
provide for reasonable notice to be given in the
event of the cancellation of any such permit.
(2) Section 39 deals with the powers of arrest by
Members of H.M. Forces in closed areas. Clause
22 extends those powers to members of the
Essential Services Corps and to those appointed
to guard such areas; it also empowers Police
Officers of the rank of Inspector or above to
detain and remove unauthorised persons from a
closed area.
The above provisions are taken from the Emergency (Closed Area)
Regulations which were introduced during the disturbances in
1967.
(3) Clause 26 adds a new Section 50A to the Principal
Ordinance which incorporates Regulation 113 of the Emergency (Principal)
Regulations. This makes it
an offence to obstruct members of the Services in
the execution of their duty. In Hong Kong military
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personnel frequently work with the Police in times
of disturbances and it is considered desirable
that they should have a measure of protection
from obstruction in the exercise of their duties.
It is not considered that any of the above Clauses give cause
for any objection.
Justice'e 5.
Criti- cisms
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42
free
The Principal Ordinance was the subject of considerable
criticism by the Hong Kong branch of 'Justice'. This criticism
was set out in a comprehensive memorandum sent to the Depart-
ment by Justice which has received close examination both by
our own Legal Advisers and by the Attorney General in Hong
Kong.
Justice's main criticisms were concerned with the
increased powers given by the Ordinance to Police Officers
in order to strengthen the hands of the latter in dealing
with lawless elements in the community; and with certain pro-
visions which created offences in connection with unlawful
assemblies and which, in the view of Justice, were such as to
do away with the requirement that guilty intent should exist
before an offence could be committed. The Bill seeks to
rectify the position to the maximum extent possible whilst
retaining for the police those powers which they must have
in order to deal with disturbances in the particular circum-
stances of Hong Kong. But there are a few outstanding matters
of which the following call for comment:
(a) Section 2 of the Ordinance defines an offensive
weapon as "any article made, or adapted for use,
or suitable, for causing injury to the person
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(b)
Justice had criticised the inclusion of the words
"or suitable" on the grounds that under the defini-
tion as it stands, even a pencil might be regarded
as an offensive weapon. The Commissioner of Police,
Hong Kong, has pointed out that in Hong Kong the
commonest offensive weapons used are the cargo hook
and the mineral water bottle, neither of which is
"made" or "adapted" but both of which are eminently
suitable for causing injury. It is considered in
the Department that this argument is sound and that
the definition should stand unamended.
Section 7 of the Ordinance concerns the licensing
of public meetings and processions.
Justice had
commented that the licensing system under this
Section was inappropriate for funeral gatherings;
and that the period of seven days which was
required under this Section to elapse between
an application for a licence and the holding of
the meeting was much too long in the case of
funerals. Clause 4 of the Bill accordingly
amends the Section by reducing the period of
notice required from seven to two days in the
case of a funeral procession; the Clause also
exempts funeral meetings and meetings held for
social purposes in a restaurant, from the need
to be licensed at all. These amendments repre-
sent a definite amelioration of the provisions
of the existing Section; but there remains some
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doubt whether it would always be practicable to
apply for a licence to hold a funeral procession
two days before such procession; and it is con-
sidered that the Commissioner of Police's powers
under Section 7 (4) to refuse such a licence are
too wide and in some cases inappropriate in rela-
tion to funeral processions. It is accordingly
proposed to ask the Governor to give further
consideration to these aspects.
(c) Section 11 (2) confers on a Police Officer of or
above the rank of Inspector the power to prevent,
stop or disperse public processions or meetings
if such are "in his opinion likely to cause or
lead to a breach of the peace" Justice objected
to the words underlined on the grounds that they
conferred an absolute discretion on the police
which could not be challenged in the Courts.
Clause 6 of the draft Bill is accordingly designed
to remedy this situation by deleting the words "in
his opinion" and substituting the words "if he
reasonably believes that the same is". However,
the Governor has asked if this amendment may be
dropped because the Commissioner of Police has
argued strongly that the test of reasonable belief
would place a very heavy burden on Police Officers
when deciding whether a particular meeting might
reasonably be expected to lead to a breach of the
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(a)
peace. However, it is not considered that the
Commissioner's argument should be accepted because:
(1) the principle involved in this amendment has
already been accepted by the Governor in
relation to a similar amendment to Section
3 of the Ordinance by Clause 3 of the draft
Bill.
(2) the Police Officer concerned must be of
or above the rank of Inspector.
(3) the Police officer has the backing of the
indemnity provided by Section 53 of the
Ordinance.
It is therefore proposed to inform the Governor that
it is considered that Clause 6 of the Bill should
remain.
Section 12 (3) of the Ordinance makes it an offence
if anyone "forms or continues to form part of" any
unlawful assembly. Justice criticised the inclusion
of these words on the grounds that they made it
possible for an innocent bystander who had been
caught up in an unlawful assembly to be guilty
of an offence although he may have had no guilty intent. Clause 7(b) of
the Bill amends Section 12
(3) by making it a defence for an accused person
to show that he did not know that it was an unlaw-
ful assembly.
However, the proposed amendment
would not cover the case of an innocent person
caught up in an unlawful assembly and unable to
escape from it because of pressure from the crowd.
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The proposed amendment could therefore give cause
for further complaint from Justice who might claim
that the substance of their original criticism had clearly been accepted
but that the measures taken
to deal with it were inadequate. It is accordingly
proposed to ask the Governor to give further thought
to this matter.
(e) Section 19 provides that when any person taking part
in an unlawful assembly commits a breach of the
peace, the assembly becomes a riot and all the per-
sons assembled are guilty of riot. Justice have
pointed out that this seems a somewhat drastic
modification of common law under which only persons
who are turbulent can be guilty of riot and that
under this Section a person could be guilty without
possessing any criminal intent. The difficulty here
is a practical one: the Police, when confronted with
an unruly mob, order it to disperse and those who
remain must expect to be treated as active partici-
pants; and if the Police are forced to separate
spectators from participants when handling a riot
there might be a dangerous hesitation in dealing
with a critical situation. The Governor therefore
considers that this particular Section should be
allowed to stand as it is. However, it is con-
sidered that the "unlawful assembly" referred to
in this Section should be confined to that defined
in Section 18 (1) and should not include the wider
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Intimi- dation
and less serious form of unlawful assembly defined
in Section 12 (2). Such an amendment would go some
way towards meeting the criticism of this Section.
The matters at (a) - (e) above are dealt with in the attached draft
Saving Despatch which has been agreed with the Legal
Advisers.
6. Sections 27, 28, 29 and 30 of the Principal Ordinance
are concerned with intimidation and intimidating assembly.
They were incorporated in the Ordinance from emergency
legislation in 1967 because it was recognised that intimi-
dation was one of the main weapons used by the Communists and that
permanent legislation was required to deal with it.
Section 27 has been criticised by Justice on the grounds that
the whole of the Section is governed by the words "without
lawful excuse" which have no constant denotation and would
therefore have to be construed by the Courts. Clause 15 of
the draft Bill makes considerable amendments to the Section
and, notably, replaces the words "without lawful excuse" by
"without lawful authority or reasonable excuse". It is con-
sidered necessary to retain the provisions relating to inti-
midation, but 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 dealt with under other
provisions of the Ordinance: consequently the draft Bill
provides for the repeal of Sections 28 and 30. It is con-
sidered that these amendments ameliorate the provisions to
a considerable extent and that they should be accepted.
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7.
Conclusions
The draft B111 goes a very long way towards meeting the criticisms
which have been levelled at the Principal Ordinance; it also ameliorates
certain provisions which had previously been incorporated into the
Ordinance from emergency legislation. Provided that the outstanding
points dealt with in the attached draft Saving Despatch are
satisfactorily resolved, it is con- sidered that approval may now be
safely given for the draft
Bill to be enacted by the Hong Kong legislature.
Hong Kong Dept. 24 April, 1969.
whe
A. Waminara
3
agree with the recommendation.
2.
3
In view
interest and the inclusion in modified taken from emergency lequilation
The corticisms of "Justice", of Parliamentary
form
form of some
provisions
5 consider
that
117/6
action at i
ministerial approval should be sought at this stage for the
proposed to take on this draft amending Bell. In the soring despatch
we are saying to the Governor in effect
that, subject to meeting is acceptable to us.
3. This amending Bice maker
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E
on
the points raised, the Bill
a conscientions attempt to meet
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Justice's
reasonable criticisms of the
(Flan
Original Ordinance, Legal adriers are
Satisfied on this score
subject to the
points we are raising with the Governor.
One of
ow
reservations concerns Section 12
of the ong mal Ordleriance (see para 5 of The draft- Saring despatch);
We still do
not think the proposed amendments to this. Section entirely meet
Justice's criticism that
Away
the requirement that
This provision does Guilty intent should exist before an offence can be
committed. We believe Mr. Allank had this point in mind when astering
his P.Q.s about the burden of froof". (The
on Section 30 of the original but this is being repealed by the
Same point arose
Ordinance
Amending Bill.)
Sof the Governor can waeet
the other points we have
ks
on this
and
consider
L
bare cou
properly claim
raised
to have
5
met all reasonable criticisms of
the legislation.
Mr. Moreton
nis
1.5.
Carter
29/4/69
TEN IN THIS MARGIN
}
CONFIDENTIAL
Registry No.
HKK 14/15
DRAFT Saving Despatch
Type 1 +
SECURITY CLASSIFICATION
From
To:-
Top Secret.
Secret.
Confidential,
Governor,
Telephone No. & Ext.
Restricted.
Unclassified.
PRIVACY MARKING
HONG KONG.
Department
208
.........
..In Confidence
8
17/E
Your Saving Despatch No. 4 of 3 January.
Public Order Ordinance.
We are grateful for the considerable extent to which the draft Bill
enclosed with your Saving Despatch meets the various criticisms levelled
at the Public Order Ordinance, 1967. The matters raised in your
paragraph 2, together with certain other points, are dealt with below.
References are to existing sections of the Ordinance and to para- graphs
of your Attorney-General's comments on the
draft Bill.
Suggested Alternative Paragraph 2
2.
Section 2: (paragraph 3)
If yo
+
in permanent
leqntation I am not altogether convinced of the necessity for including
the words "or suitable" in the definition of "offensive weapon"
although I fully appreciate the reasons for the views that you
adhere to there views I would hold on this matter. I should be grateful
if you would consider
invite you to discuss Whether it would not be more appropriate to adopt
the definition
used in the United Kingdom Prevention of Crime Act 1953. To is
suggested that this particular point might beet be dealt with in-
discussion with Lord Shepherd during his forthcoming visit to
Hong Kong.
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