TNAG-0194-FCO40-230-Emergency-legislation-and-Public-Order-ordinance-discussions-1969 — Page 94

5. Thus the addition of these words dispenses altogether with the need to establish intent to cause injury in relation to the possession of articles that are capable of both an innocent and offensive use. The prosecution has only to establish possession; the accused can raise the defence of "lawful authority or reasonable excuse" but must discharge the burden of proof if he does s0. There is justification for assuming intent to use for an offensive purpose an article which is primarily designed, or has been adapted, for such purpose. The problem is to define precisely what circumstances might be held to justify the assumption of mal-intent in the case of possession of an article that has primarily an innocent use al though suitable for, and capable of, being put to an offensive use.

And are they

6. What are the circumstances in Hong Kong? exceptional? A variety of articles with a primarily innocent use (e.g. cargo hooks and bottles) were used during 1967 to cause injury, by communist zealots, aided and abbetted by criminal hooligan elements and bent on a violent and intimidatory course of conduct. Similar articles have been so used elsewhere in other situations; there is nothing unusual in the offensive use of articles having a primarily innocent use. The argument that there are justifiable circumstances must rest on the abnormal nature of the threat to law and order in Hong Kong and the continuing nature of that threat.

7. It is indeed the case that Chinese communist activity in the Colony poses a special and unusual threat which has for several years now been held to justify the retention of special (emergency) powers;

in other Commonwealth countries faced with a similar threat (1,e. Kalaysia and Singapore) public order legislation has been strengthened on a permanent footing in a variety of ways that would not be considered acceptable in the UK or other parts of the Commonwealth. It is also the case that we cannot say with any certainty that violent methode will not again be used by the communists in Hong Kong (although we think a return to violent methods to be an unlikely development at the present time). There are therefore today and for the foreseeable future fairly exceptional circumstances

in the threat to law and order in Hong Kong.

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