W(B)L 51-7406
NOTHING TO BE WRITTEN IN THIS MARGIN
T
CONFIDENTIAL
meet the criticisme/beveled
"Justice"; to incorporate into the Ordinance
certain provisions of emergency legislation (see paragraph 1 above) and
to ameliorate certain other provisions of the Ordinance which had pre-
viously been taken from emergency legislation. The Bill goes a long way
towards achieving its
objects, but there are a few outstanding points for which, after
discussion with the Legal
Advisers, we consider that the Bill should
provide. These points were set out in our
Saving Despatch to Hong Kong No. 208 of 22 May, 1969, (copy attached),
to which we still await-a
reply.
Hong Kong Dept
October, 1969
CONFIDENTIAL
14.
PAM SA
1
(118281) Dd. 391599 1,500 2/69 Hw.
NOTHING TO BE Written in THIS MARGIN
Registry No.
SECURITY CLASSIFICATION
Top-Seerat
Secret. Confidential,
PRIVACY MARKING
In Confidence
DRAFT
To:-
CONFIDENTIAL
Type 1 +
From
Telephone No. & Ext.
Department
Noty No
STARY OF STATE
VISIT OF DEPUTY UNDER-SECRETARY OF
(SIR LESLIE MONSON,
TO HONG KONG, OCTOBER, 1969
EMERGENCY LEGISLATION AND THE
PUBLIC ORDER ORDINANCE
The background subjeck is oot out in the Annex-to
Suote.
Data Points to be raised
There are no matters calling for comment so far
as emergency legislation is concerned.
5
Matters now in issue are related to the Public
Order Ordinance and are confined to those raised in our
6 ਦ Saving Despatch No. 208 (see copy attached). (The point
dealt with in paragraph 2 of the Saving Despatch has
already been resolved since Lord Shepherd agreed, during
his visit to Hong Kong in June, to accept the Governor's views.) It is
likely that the Hong Kong authorities will
resist some, at least, of the remaining proposals in our
despatch. There is reason to believe that differences
of opinion have arisen between the Attorney General and
the Commissioner of Police on these points, the latter
being more likely to offer the stronger resistance. 14. A reply to our
Saving Despatch has now been out-
(during part of which the Attorney Gearch has been on me) standing for
more than four months and we are anxious
18 / an
that the amending Bill should become law as soon as possible, to avoid
renewed criticism of the legislation
CONFIDENTIAL
/ in
NOTHING TO BE WRITTEN IN THIS MARGIN
W(BIL 51-7406
CONFIDENTIAL
in Hong Kong and here in Parliament. We
recognise, however, that further consideration
may have been left in cuspense during the
Attorney General's absence on leave (he has
just retumed-te Hong Kong). In the cireuz-
stances we do not propose to press for a reply
The present time; but If a suitable opportu-
nity arises in Hong Kong, it might be asked
[receive a reply.)
when we may expect to t
27. Briefing material has not been supplied
for detailed discussion of the outstanding
points. In our view such discussions should
be avoided since much of the argument turns on
technical legal considerations and any counter-
arguments advanced by Hong Kong would have to
be carefully considered by Legal Advisers here.
Hong Kong Depor. Debus, 1969.
Mu
29
CONFIDENTIAL
14
11
CONFIDENTIAL
28
Note No. 7A
VISIT OF DEPUTY UNDER-SECRETARY OF STATE
(SIR LESLIE MONSON)
TO HONG KONG, OCTOBER, 1969
EMERGENCY LEGISLATION AND THE PUBLIC ORDER ORDINANCE
This Note, with the following attachments, are in amplification of Note
No. 7:-
2.
(a) A copy of the Public Order Ordinance 1967 (see
paragraph 2 of Note No. 7).
(b) A copy of the draft amending Bill (see paragraph
3 of Note No. 7)
(c) A copy of the Attorney General, Hong Kong's
comments on (b) (see references in Foreign and Commonwealth Office
Saving Despatch No. 208).
In paragraph 5 of Note No. 7 it is stated that the matters
now in issue are confined to those raised in our Saving
Despatch No. 208. The following arguments were adduced in
support of the comments contained in that Saving Despatch on
each of the individual matters concerned (references are to paragraphs
of the Saving Despatch):-
(a) Paragraph 3:
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 represent a
CONFIDENTIAL
/ definite
Polic
Craustuves delay
48 hat
CONFIDENTIAL
definite amelioration of the provisions of the existing Section; but
there remains some 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 considered 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 relation to funeral processions. The
Governor has accordingly been asked to give further consideration to
these aspects.
(b) Paragraph 4:
Section 11 (2) of the Ordinance 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 reasonable be expected to lead to a breach of the peace. 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;
(ii) the police officer concerned must be of or
above the rank of Inspector and therefore experienced enough to take
decisions of this
/ nature
CONFIDENTIAL
CONFIDENTIAL
nature without undue difficulty;
(iii) the police officer has the backing of the
indemnity provided by Section 53 of the
Ordinance.
(c) Paragraph 5:
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) of the Ordinance
by making it a defence for an accused person to show that he did not
know that it was an unlawful 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. 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. Governor has accordingly been asked to
give further thought
to this matter.
(d) Paragraph 6:
The
"Justice" had suggested that the words "noisy, disorderly or
intimidating" might be added before "manner" in the second line of
Section 18 (1) of the Ordinance. We had originally suggested 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 "intimida- tion" is
covered by the word "disorderly". The Commissioner of Police has pointed
out that a group of persons could conduct themselves other than in a
dis-orderly manner and
yet ...
CONFIDENTIAL
CONFIDENTIAL
yet still cause other people reasonably to fear a breach of the peace.
The suggestion in paragraph 6 of our Saving Despatch is intended as a
reasonable compromise and it is considered that the use of the phrase
"in a disorderly or intimidating manner" would meet the point.
(e) Paragraph 7:
Section 19 of the Ordinance 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 persons 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
participants; 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 considered 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 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.
(f) Paragraph 8:
Section 37 of the Ordinance deals with permits to enter and leave a
closed area. "Justice" suggested that the
Section should be amended so as to require that reasonable notice should
be given in the event of the cancellation of any such permit. Clause 18
of the draft Bill makes such
/ an
CONFIDENTIAL
>
CONFIDENTIAL
an amendment in respect of Section 31 (in relation to the cancellation
of permits issued to persons authorising them to be out of doors after
the imposition of a curfew) and we have accordingly suggested that a
similar provision should be made in relation to the cancellation of
permits
issued under Section 37.
I set in a meeting or Gitt. on 17/4/64 where
Counlock
paper containing setting out him
contrary crews of AG. Ponce on 5(7) and 5(4/2
a
•JAS.
After ouplander the Police withdrew objections
djections as st
out u
L
261 161 abou
The amending bill was
As to Exco on
28 derder
Le or formally a
$
week later it would then be desarmed gain who the load
Hong Kong Department October, 1969
branch of Justes.
W. Tomm
*.
"The paper sais
all other fonti onlatanding an
рошт
the Pall had been agreed.
me leter That there
Andet
My Rebaki Doll
all o
решет Whit
CONFIDENTIAL
(119281) Dd. 391599 1,500 2/69 H.
NOTHING TO BE WRITTEN IN THIS MARGIN
Registry No.
SECURITY CLASSIFICATION
DRAFT
TODANIK
XXOOX
Confidential,
KUKEKIRKKI.
PRIVACY MARKING
In Confidence
To:-
12
CONFIDENTIAL
Spacup
Type 1 +
From
28
Telephone No. & Ext.
Department
Note No. 7A
7.10.69.
27
VISIT OF DEPUTY UNDER-SECRETARY OF STATE
SIR LESLIE MONSON
TO HONG KONG, OCTOBER. 1969
EMERGENCY LEGISLATION AND THE PUBLIC ORDER ORDINANCE
This Note, with the following attachments, are in
amplification of Note No. 7:-
(a) A copy of the Public Order Ordinance 1967 (see
paragraph 2 of Note No. 7).
(b) A copy of the draft amending Bill (see paragraph
3 of Note No.
7).
(c) A copy of the Attorney General, Hong Kong's
comments on (b) (see references in Foreign and
Commonwealth Office Saving Despatch No. 208).
2. In paragraph 5 of Note No. 7 it is stated that the
matters now in issue are confined to those raised in
our Saving Despatch No. 208. The following argumente
have been adduced in support of the comments contained
in that Saving Despatch on each of the individual
matters concerned (references are to paragraphs of
the Saving Despatch):-
(a)
Paragraph 3 j
Section 7 of the Ordinance concerns the licensing
of public meetings and processions. "Justice" had
commented that the licensing system under this Section
M
CONFIDENTIAL
was
NOTHING TO BE WRITTEN IN THIS MARGIN
W{B}L, 51-7406
CONFIDENTIAL
was inappropriate for funeral gatherings; and
that the period of seven days which was required
under this Section to elapse between an applica-
tion for a licence and the holding of the meet-
ing 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 represent a definite
amelioration of the provisions of the existing
Section; but there remains some 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 considered
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 relation
to funeral processions. The Governor has
accordingly been asked to give further considera.
tion to these aspects.
(b)
Paragraph 4
Section 11 (2) of the Ordinance confers on
a police officer of or above the rank of
Inspector the power to prevent, stop or dis-
perse 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
CONFIDENTIAL
W(B)L 51-7406
C
NOTHING TO BE WRITTEN IN THIS MARGIN
CONFIDENTIAL
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 parti-
cular meeting might reasonably be expected to
lead to a breach of the peace. It is not con-
sidered 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;
(11) the police officer concerned must be of
Therefore
or above the rank of Inspector and experienced enough to take deacious
of this nature with and endure cbifficulting s (iii) the police officer
has the backing of the
indemnity provided by Section 53 of the
Ordinance.
(c) Paragraph 5 1
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 inno-
cent 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)
of the Ordinance by making it a defence for an
accused person to show that he did not know that
it was an unlawful assembly.
However, the pro-
posed amendment would not cover the case of an
/ innocent
CONFIDENTIAL
NOTHING TO BE WRITTEN IN THIS MARGIN
W(B)L $1-7406
CONFIDENTIAL
innocent person caught up in an unlawful assem-
bly unable to escape from it because of
pressure from the crowd. 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
The Governor has
with it were inadequate.
accordingly been asked to give further thought
to this matter.
(d) Paragraph 6 *
"Justice" had suggested that the words
"noisy, disorderly or intimidating" might be
added before "manner" in the second line of
Ordinance
We
Section 18 (1) of the Bill. I had previously originally
been suggested 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 pointed out that a group of persons
could conduct themselves other than in a dis-
orderly manner and yet still cause other people
reasonably to fear a breach of the peace. The
suggestion in paragraph 6 of our Saving Despatch
Cit is considered is intended as a reasonable compromise and] that
the use of the phrase "in a disorderly or inti-
midating manner" would meet the point. (e) Paragraph 7:
Section 19 of the Ordinance 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 persons
assembled are guilty of riot.
"Justice" have
/ pointed
CONFIDENTIAL
NOTHING TO BE WRITTEN IN THIS MARGIN
W(B)L 51-7406
CONFIDENTIAL
Hang Kang
Ditor,
DEAV
1969
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 remaine
must expect to be treated as active participants;
and if the police are forced to separate specta-
tors from participants when handling a riot
there might be a dangerous hesitation in dealing
with a critical situation. The Governor there-
fore considers that this particular Section
should be allowed to stand as it is. However,
it is considered 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 and less serious form of unlaw-
ful assembly defined in Section 12 (2). Such an
amendment would go some way towards meeting the
criticism of this Section.
(f)
Paragraph 8;
Section 37 of the Ordinance deals with
permits to enter and leave a closed area.
"Justice" suggested that the Section should be
amended so as to require that reasonable notice
should be given in the event of the cancellation
of any such permit. Clause 18 of the draft Bill
makes such an amendment in respect of Section 31
(in relation to the cancellation of permits
authorises issued to persons to permit them to be out of
doors after the imposition of a curfew) and we
have accordingly suggested that a similar pro-
Alte can colletion the
vision should be made in relation to/permits
issued under Section 37.
CONFIDENTIAL
2600027
CS. 20A (Rev.)
SAVING DESPATCH
From the Governor, Hong Kong
297
To the Secretary of State for Foreign and Commonwealth Affairs
No.
1262
Repeated to:-
Repeated to:-
No.
No.
Date.....
November, 1969
My Reference........CR 3285/57
.II
Your Reference
Your saving despatch No. 208 of 22nd May, 1969.
Public Order Ordinance.
I enclose a copy of a revised draft of the Public Order (Amendment)
Bill. The revised draft takes into account the contents of your saving
despatch No. 208.
2.
The revised draft has been approved by the Executive Council,
subject to reconsideration in Executive Council if any substantial
points are raised by the Hong Kong Bar Association, the Law Society of
Hong Kong or the Hong Kong branch of "JUSTICE" to all of whom copies of
the Bill have been sent for comment.
AT:ek
encl.
RIVED IN
¦R. GISTRY No.51
20NOV 1969
HKK 14/15
CONT
LAST
22
FAL
Short title.
1
212
A BILL
To
Amend the Public Order Ordinance and to make consequential amendments