has been referred to certain interested bodies in Hong Kong (paragraph 4
below) he might even have a copy in his possession. If so, his
supplementaries may range beyond the scope of his question; in this
event it would be advisable to ask for notice since the Bill is a
complex one.
The Public Order Ordinance came into operation in November 1967 at the
height of the disturbances which took place in the Colony during that
year. Its purpose was to consolidate into one piece of legislation the
various provisions dealing with public order and to strengthen the law
where experience had shown this to be desirable.
The
Governor sought the views and advice of the Commonwealth Office on the
draft Public Order Bill before its enactment
and the matter was given prolonged examination in the Commonwealth
Office before the legislation was agreed to.
2.
HWA14/34 06.13.
Flag/A HLA14/24 (22)
Flag B
Flag
Flag
In December 1967 the Ordinance was the subject of a Question by Mr.
Rankin who in the same month presented a petition to Parliament on
behalf of the Reform Club. of Hong Kong (an organisation of some 5000
paid-up members) asking for the Ordinance to be disallowed. The
Ordinance was also the subject of Questions by Mr. Frank Allaun in
December 1968 and February 1969.
4. The Ordinance has been the target of criticism by the Hong Kong
Branch of "Justice" (the British section of the International Commission
of Jurists). Certain of the points raised by "Justice" were considered
to have some substance and there has been correspondence with the
Governor with a view to securing certain amendments to the
/Ordinance.
C
Flags
&
Ordinance. As a result, we have recently agreed with the
This
Bill Governor the terms of a draft amending Bill.
has received the provisional approval of the Hong Kong
Executive Council and has since been referred to certain interested
legal organisations in Hong Kong for their
-
comments (see paragraphs 6 8 of Notes for Supplementaries). It will be
further considered in the light of any substantial points raised by
those organisations before its publication and introduction into the
Hong Kong Legislature for
enactment.
5. The Ordinance provides, inter alia, that with a very few exemptions
no public meeting or procession may take place without a licence granted
by the Commissioner of Police. In general the draft Bill envisages no
change in this requirement, although it adds certain categories of
public meetings to the list of exemptions (see paragraph 2 of Notes for
Supplementaries). It does, however, seek to ameliorate those provisions
of the Ordinance relating to public assemblies to the maximum extent
compatible with the overriding need to maintain control over public
gatherings of all kinds; in so doing the draft Bill goes a very long way
towards meeting the criticisms of "Justice".
6. In the particular circumstances of Hong Kong very large
crowds can gather in a matter of moments. These conditions lend
themselves to exploitation by lawless elements. long as there is a
militant Communist element within the
community it will be necessary to maintain on a permanent basis special
safeguards for the preservation of public order.
So
7. A draft answer to Mr. Rankin's Question is submitted. It is based on
an exchange of telegrams with the Governor,
length His own suggested answer is well beyond the acceptable/for a
reply to an oral question.
cc
Mr. Godden
Jam mar
(A. W. Ganinara) 4 December, 1969
[P.TO]
9 agree.
The Governor has ashed
that the information
in para ? of the Notes for Supplementaries
should not be used if it can be avoided. See
para 4 of H.K. teł No. 897 (Flag F).
L. 5. Carter
4/12/69
See
X in para 4.
S
understand that
the Governor met
met all th
all the points which
we had to raice about the trap Bill.
Kim Willow Kammiyaw
4
1/12
раван
persmelly
much prefer this Grenna's
reply, which gives the kind of informatio
and a
consultation which in
LA
быль
the charge get across. Grice the reply will in practice con "lainly be
writter. I think be should use this.
1
*La./Co. Mr. John Rankin (Glasgow, Govan): To ask the
Secretary of State for Foreign and Commonwealth Affairs, what
consultations he has had with the Government of Hong Kong in order to
increase the rights of public assembly.
8th December 1969
NO. 46
MR. EVAN LUARD
We have been consulted by the Governor
in the preparation of a draft Bill to amend
the Public Order Ordinance. One of the
purposes of the Bill is to ameliorate some
provisions of the Ordinance relating to the
rights of public assembly.
(9069) Dd.032652 3m 2/67 G.W.B.Ltd. Gp.863
PARLIAMENTARY QUESTION
for ORAL answer on.
Hong Kong Ay
The draft reply should reach the Parliamentary Office through your
Under-Secretary by
Now Wed 3/12
46
*La./Co. Mr. John Rankin (Glasgow, Govan): To ask the
Secretary of State for Foreign and Commonwealth Affairs, what
consultations he has had with the Government of Hong Kong in order to
increase the rights of public assembly.
8th December 1969
Mr. Evan Luard.
We
have been consulted by the Governor in the
preparation of a draft Bill to amend the Public
Order Ordinance.
One of the purposes of the Bill
is to ameliorate some provisions of the Ordinance
relating to the rights of public assembly.
Seminte
Su
12.6/12.
Ed (500)
I
Shot
amwer
то
wed.
Reference
35
Mr. Miers,
P.S. to Mr. Luard
4635
We spoke about the possibility of returning
a more detailed reply to Mr. Rankin's Parliamen-
tary Question about Hong Kong's Public Order
Ordinance if the Question is not reached and the
answer accordingly appears as written. You
agreed to consult the Parliamentary Unit about
the necessary arrangements for this.
2.
I attach an alternative reply based on the
Governor's draft in paragraph 2 of Hong Kong
telegram No.897.
W.5. Carter
(W. S. Carter)
Hong Kong Department
5 December, 1969
Copies to:
Mr. Godden Mr. Wilford
Parliamentary Unit
·5/12.
The Governor has had under review various provisions of
the Fublic Order Ordinance, including those which regulate
public meetings, processions and public assembly. The
review was initiated to take account of comments on the
Ordinance made by various interested parties in Hong Kong,
and I have been consulted during the review process. A
draft Bill has been prepared with the purpose of clarifying
certain provisions of the Ordinance about which doubt had
been expressed; and of relaxing others, including some
relating to the rights of public assembly.
The Bill has been referred for comment by certain
interested bodies in Hong Kong. When their comments have
been received and considered the usual process of publication
of the Bill for general information will take place before
it is introduced into the Legislative Council.
For Use as Written Answer Only
*La/Co.
Mr. John Rankin (Glasgow, Govan): To ask the Secretary of State for
Foreign and Commonwealth Affairs, what consultations he has had with the
Government of Hong Kong in order to increase the rights of public
assembly.
8 December, 1969
win (IT)
The Governor has had under review various provisions of
the Public Order Ordinance, including those which regulate
public meetings, processions and public assembly. The
review was initiated to take account of comments on the
Ordinance made by various interested parties in Hong Kong,
and I have been consulted during the review process. A
draft Bill has been prepared with the purpose of clarifying
certain provisions of the Ordinance about which doubt had
been expressed; and of relaxing others, including some
relating to the rights of public assembly.
The Bill has been referred for comment by certain
interested bodies in Hong Kong. When their comments have
been received and considered the usual process of publication
of the Bill for general information will take place before
it is introduced into the Legislative Council.
23
Mr. Miers,
P.S. to Mr. Luard
Reference.........
We spoke about the possibility of returning
a more detailed reply to Mr. Rankin's Parliamen-
tary Question about Hong Kong's Public Order
Ordinance if the Question is not reached and the
answer accordingly appears as written, You
agreed to consult the Parliamentary Unit about
the necessary arrangements for this.
2. I attach an alternative reply based on the
Governor's draft in paragraph 2 of Hong Kong
telegram No.897.
(W. S. Carter) Hong Kong Department
5 December, 1969
Copies to:
Mr. Godden
Mr. Wilford
Parliamentary Unit
File & (Public Order Ordinance
D3/2/10 Restle attace Fox Co pomo
tex
Iminutes relatiff to
Ed (5084)
Pe. p.6
9/12
P. Order
Ordinan
then
R ST
B.U. A month
CR 3285/57 II
dated
EXTRACT
FROM MINUTES OF THE EXECUTIVE COUNCIL
The following is an extract from the minutes of the Executive Council
4.11.69
י
reference number
M(69)40
AP. Repory.
Date :
Clerk of Councils
XCR (69) 303
The Council considered Memorandum
Acting
The Council ADVISED and the Governor ORDERED:
that the Public Order (Amendment) Bill 1969 be
introduced into the Legislative Council, subject to
reconsideration of the Bill in the Executive Council
if any substantial points are raised by any of the
three bodies mentioned in paragraph 23 of the memorandum,
and subject to an amendment of section 7 of the principa".
Ordinance to modify the definition of 'public procession
for the purpose of a funeral' to exclude processions
at which the dead body is not physically present.
It was also suggested that further consideration be given
to amending section 9 to allow for the licensee to appoint a delegate
to be responsible in his absence.
36
TOO
RECEIVED IN
REGISTRY No.51.
- 5 JAN 1970
LAST PAPER
Rest
L
As
BU
15/1
at
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2800224 C., 84
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For discussion
on 4th November 1969
XCR(69)303
Copy No..... of 27
MEMORANDUM FOR EXECUTIVE COUNCIL
FUBLIC ORDER (AMENDMENT) BILL 1969
Annexed for the consideration of Honourable Members is the Fublic
Order (Amendment) Bill 1969. This Bill has been pre- pared to take into
account some of the criticisms of the Fublic Order Ordinance which have
been voiced since its enactment in 1967. The Bill also enacts with
modification, some provisions which are at present contained in
Emergency Regulations but which are considered to be needed in permanent
legislation.
2
Section 7 of the Ordinance provides that public meetings shall only take
place in accordance with a licence from the Com- missioner of Folice. A.
"meeting" is defined in section 2 of the Ordinance. This has been
criticised as being too wide, and fears have been expressed that the
definition might include for example meetings of creditors, private
parties in restaurants or funeral meetings. Clause 2 of the Bill amends
the definition of "meeting" so as to limit it to organised meetings and
to spontaneous gatherings at which any person assumes or attempts to
assume leadership; it specifically excludes meetings held for statutory
purposes e. g. creditors' meetings, while funeral meetings and private
parties in restaurants are dealt with in clause 4 which amends section
7.
3
Section 3(1) of the Ordinance empowers police officers of and above
the rank of inspector to prohibit the display of flags and banners if
such display is, in the opinion of the police officer, likely to cause
or lead to a breach of the peace. This power has been criticised on the
grounds that it gives the police officer an absolute discretion which is
undesirable in view of the indemnity given by section 53 of the
Crdinance. This criticism is accepted and section 3(1) is amended by
clause 3 so that the powers conferred by the section should be exercised
on the basis of reasonable belief, Simi- larly, section 3(2) is amended
so that a police officer must have a reasonable necessity for entering
any premises or place to seize or detain such flags etc. The section is
also amended so as to control the flying of flags on vehicles, trains,
tramcars and vessels, as well as on premises.
4
Section 7 of the Ordinance deals with licensing of public meetings and
processions, and provides at subsection (2) that appli- cations for
licences must be made seven days in advance to the Commissioner of
Folice. It has been argued that to require seven days notice for a
funeral procession is excessive and this argument is thought to have
substance. Clause 4 of the Bill therefore reduces the notice required in
such cases to twenty four hours. Subsection (4) of the Ordinance gives
the Commissioner of Police powers to refuse to grant a licence for a
public procession or meeting if the applicant or those associated with
him in the organisation of the meeting procession etc have at any time
in the past contravened the law or if the procession etc has been
publicised or advertised. The Secretary of State felt that
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2400224 C.S. 84
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C
XCR(69)303
- 2 -
these provisions were inappropriate to funeral processions. The
Commissioner of Police is satisfied that he had adequate powers to
control funeral processions because, before granting a licence, he would
have to satisfy himself, under section 7(2) of the Ordinance, that the
procession was not likely to prejudice the maintenance of public order
or be used for any unlawful or immoral purpose. It is therefore accepted
that the specific grounds for refusal of a licence for a funeral
procession should be deleted. Clause 4 of the Bill provides for this and
also exempts from the provisions of section 7 of the Ordinance meetings
held solely for the purpose of a funeral as well as meetings held
exclusively for social purposes in a restaurant.
5
Section 9 of the Ordinance requires a licensee of a meeting to be
present throughout and also to comply with any police directions during
the period of one hour after the final dispersal of a meeting or
procession. Clause 5 of the Bill amends section 9 so as to provide a
defence for a licensee who is absent from a meeting by reason of ill-
ness or other unavoidable cause. It also deletes the requirement to
comply with directions for an hour after the final dispersal of the
meet- ing as this is considered too onerous on the licensee.
6
Section 11 of the Ordinance deals with police powers over meetings,
processions and gatherings. Under subsection (2), a police officer of or
above the rank of inspector is authorised to intervene to prevent the
holding of, stop, disperse, or vary the place or route of any such
meetings etc, if in his opinion a breach of the peace would otherwise be
likely. The criticism levelled at section 3 (paragraph 3 above) was also
levelled at this section, and clause 6 amends section 11(2) by requiring
the police officer, when exercising the powers con- ferred by this
subsection, to act on a basis of reasonable belief, not personal
opinion.
7
Clause 7 amends section 12 in two respects. Firstly, it amends
subsection 2(a) by making it clear that a public meeting which has no
licence under section 7 is not an unlawful assembly if it is a class of
public meeting exempted from the need for a licence under the section.
Secondly, it amends subsection 3(a) by providing that a person who is
charged with an offence under that paragraph can plead the defences of
lawful authority or reasonable excuse. This is intended to confer
protection on any innocent bystander who becomes uninten- tionally
involved in an unlawful assembly and is unable to make his way out of
it.
8
Sections 14 and 32 create offences in relation to possession of
offensive weapons. These are defined at section 2 of the Ordinance as
"any article made, or adapted for use, or suitable, for causing in- jury
to the person, or intended by the person having it in his possession or
under his control for such use by him or by some other person". This is
a very wide definition and it has been considered desirable to amend
section 14 and 32 by clauses 8 and 20 so as to make available to an
accused the defences of lawful authority and reasonable excuse. The
latter defence will provide the necessary protection for the per- son
who is innocently in possession of offensive weapons.
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9
RESTRICTED
- 3 -
XCR(69)303
Section 15 of the Ordinance empowers the Commissioner of Police to
prohibit public gatherings. It has been pointed out that, under
subsection (3), a person who takes part in the promotion of a gathering
before, but not after, a prohibition by the Commissioner of Folice may
still be "a person who takes part in the promotion ..... of a public
gathering which is
continued in contravention of a
prohibition". The amendment proposed by clause 9 will ensure that only
those who promote, direct, organise or manage a prohibited gathering
after the issue of a prohibition shall be guilty of an offence.
10
Clause 10 amends section 18 by providing that there must be a
disorderly, insulting, intimidating or provocative element in the
conduct of an assembly before it becomes unlawful.
11
Section 19 of the Ordinance provides that when a breach of the peace
occurs at an unlawful assembly the persons assembled thus become a
riotous assembly with corresponding penalties. Clause 11 amends this
section to make it clear that the unlawful assembly re- ferred to is one
which is unlawful under section 18 i. e. one where the conduct is such
as to create fear of breach of the peace, rather than under section 12
i. e. one which is unlawful by virtue of being unlicensed.
12
Section 23 is amended by clause 13 so that a man does not commit the
offence of forcible entry if he enters his own premises.
13
Section 25 makes fighting in a public place an offence, Thus a boxing
match would for example be covered. Clause 14 amends the section so as
to cover only unlawful fights.
14
Section 26 which creates an offence if a person without law- ful
authority at a public gathering makes any statement which is intended or
is likely to incite any person to violence has been criticised on the
grounds that the offence can be established without proving any kind of
This is considered to be a valid criticism and, accordingly, clause 14
amends section 26 so that an element of mens rea must be present before
the offence can be established.
mens rea.
15
The offence of intimidation contained in section 27 is re- cast in
clause 16 so as to exclude those parts of the section which are similar
to section 47 of the Trade Union Registration Ordinance. The existing
defence of "lawful excuse" is replaced by the defence of "lawful
authority or reasonable excuse".
16
The offence of intimidating assembly is superfluous, be- cause a person
who takes part in such an assembly can be prosecuted for taking part in
an unlawful assembly. Consequently sections 28 and 30 are to be repealed
(clauses 17 and 18).
17
Clause 19 amends section 31 by requiring the Commissioner of Folice to
serve notice of the cancellation of a curfew permit on the permit
holder.
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2800224 C.S. 84
XCR(69)303
18
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- 4 -
·4-
+
Clauses 21-23 amend the provisions contained in Fart VII of the
Ordinance relating to the declaration and control of closed area. Clause
21 replaces section 36 with a new section which provides that a closed
area order comes into force when made and shall be published in the
Gazette as soon as may be reasonably practicable after being made. The
Commissioner of Police is authorised to close a closed area by the
erection of barriers. Section 37 is amended by clause 22 so that permits
to enter non-military closed areas may be issued by the Commissioner of
Folice or by such other authority as may be authorised to do so in the
closed area order. Upon the cancellation of a permit, notice of such
cancellation must be given to the permit holder. The powers of arrest
contained in section 39 are extended to members of the Essential
Services Corps and to those appointed to guard closed areas by the
Governor, the CBF or a person authorised in that behalf in the closed
area order (clause 23). Past experience has demonstrated the need for a
method whereby persons in charge of important în- stallations, such as
oil refineries, gas works or power stations, which are declared closed
areas, can issue entry permits and appoint guards to protect them.
Clause 23 empowers police officers of or above the rank of inspector to
detain and remove unauthorised persons from a closed area.
19
Clause 24 makes the Commissioner of Police the authority, in place of a
magistrate, for appointing special constables. Clause 25 effects a
number of minor procedural amendments to section 44 of the Ordinance
concerning orders to be made by a magistrate requiring a person to enter
a bond to be of good behaviour.
20
Section 49 of the Ordinance confers wide powers of search and entry upon
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 Folice Force Ordinance are adequate, short of a
serious emergency situation, Section 49 is re- placed by clause 26 with
a section requiring persons to identify them- selves to members of Her
Majesty's forces and the Police Force. This requirement is, at present
contained in regulation 96 of the Emergency (Principal) Regulations.
21
Clause 27 adds a new section 50A to the Ordinance. This makes it an
offence to obstruct members of the armed forces exer- cising powers
conferred by or performing duties imposed by the Ordinance or by orders
made under it. This offence is at present contained in regulation 113 of
the Emergency (Frincipal) Regulations. It is considered desirable that
the provisions of this regulation, which has proved to be very useful in
times of disturbance, should be part of the permanent law. The emergency
regulation in question is to be revoked.
22
Clause 28 contains a consequential amendment to the City Hall Ordinance
(Chapter 328).
23
Subject to the views of
Honourable Members, it is
proposed to submit the Bill to the Bar Association, the Law Society
RESTRICTED
2600224 C.. 14
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5
XCR(69)303
and the Hong Kong Branch of "Justice" for their comments. All three have
in the past expressed an interest in the Ordinance and many of the
amendments proposed follow suggestions put forward by one or more of
them. It is considered, therefore, to be desirable to give them a chance
to comment on any amending Bill. Any comments of substance offered by
them will be referred to Honourable Members before the Bill is
published.
24
Honourable Members will be asked to advise whether the Fublic Order
(Amendment) Bill 1969 should be introduced into the Legislative Council,
subject to reconsideration of the Bill in the Executive Council, if any
substantial points are raised by any of the three bodies mentioned in
paragraph 23 above.
23rd October 1969
(CR 3285/57 II)
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differ..."
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