TNAG-0232-FCO40-268-Legislation-relating-to-registration-of-trade-unions-in-Hong-1970 — Page 62

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has been convicted within the preceding 5 years of "any offence involving violence or against public order", save that such a person may be permitted to hold office with the consent of the Governor in Council. We believe that this Clause will seriously inhibit the emergence of active leaders within the trade union movement and strongly urge that this proposed amendment be dropped.

The first objection to this amendment is that is utilises a category of offence an offence against public order which is nowhere defined. There is no definition in this Bill or in the Trade Union Registration Ordinance or in the interpretation and General Clauses Ordinance (Cap. 1); nor is there any judicial definition of "public order" to give any guidance as to what offences fall within this category. Clearly it is not intended to cover only offences created by the Public Order Ordinance (Cap. 245), for otherwise the words employed would be "against the Public Order Ordinance". In fact this classification of "offences against public order" is not a legal classification at all; it is one which hitherto has been loosely employed by lawyers, and particularly academic lawyers writing on the criminal law, to describe a group of offences of which the cutstanding characteristic is that they refer either to conduct which takes place in public or to conduct in private which would be likely to lead to riot and civil unrest. But different writers have put different offences within this category (e.g. compare the cffences included in Brownlie's The Law Relating to Public Order (1968) with those in Chapter 17 of Harris' Criminal Law (21st ed., 1968) and those in Smith and Hogan's Criminal Law 2nd ed., 1969)). The selection is entirely arbitrary, and we cannot think that it is right to put trade unionists at risk of being debarred from office on the strength of a law the ambit of which is so vague and ill-defined.

But of those offences which do almost certainly fall within the scope of Clause 12(c) as presently drafted, wo would point out, first, that many of them are offences in which the police's dis- .cretionary power of prosecution is in practice the most important

element. Two exemples are cbstruction of the highway and picketing contrary to section 46 of the Trade Union Registration Ordinance. In practice conviction depends on whether or not the police determine to their own satisfaction that an offence has been committed, for both offences are vaguely defined and magistrates in practice usually accept the police view. Secondly, many of these offences are ones of which a person may be found guilty even though his own intentions and conduct were essentially innocent. Thus a trade union member who is behaving entirely responsibly may become part of an unlawful picket or an unlawful assembly or a riot simply because one of his fellows breaks the peace (see Part IV of the Public Order Ordinance (Cap. 245). We strongly urge that such a member should not as a result be liable to be debarred from union office. Thirdly, we notice that a person may be debarred from union office if the offence of violence or against public order is one committed with no reference whatsoever to a trade dispute or his employment.

Thus a man who assaults his wife by slapping her or who becomes involved in a brawl over a game of mahjong is as liable to be debarred under Clause 12(c) as the most virulent communist agitator who incites workmen to violence in the course of a trade dispute.

It is notoriously easy for any union leader to fall foul of the laws against public order, and this is even more true of Hong Kong than it is of the United Kingdom, for in Hong Kong the Public Order Ordinance departs from the common law by making it possible to con- vict of unlawful assembly and of riot even those who do not share the common unlawful purpose. We believe that the effect of Clause 12(c) will be so to inhibit trade union leaders from organising meetings, strikes and pickets, that the trade union movement will be emasculated. We notice that the first sentence of paragraph 6 of the Explanatory Memorandum seeks to gain support for the amendment by making a statement with which no reasonable person could disagree. But we would point out that the amendment itself has nothing whatsoever

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