TNAG-1692-FCO40-2342-Hong-Kong-legislation-regarding-the-control-of-publications--1987 — Page 8

The points of contention are

(a)

Whether there is a need to retain Section 6;

and

(b)

If it is thought necessary, whether the onus of

the burden of proof regarding knowledge of the

false news should continue to rest with the

accused.

A diversity of views have been expressed and Members

have been unable to reach a consensus.

an

Let me briefly present some of the arguments put

forward by Members who are against the introduction of the new

Section 27. They feel that the new Section 27 represents a departure from the Common Law principle that an accused is presumed innocent until his guilt is proved beyond reasonable

doubt. The accused is therefore entitled to remain silent

until the Crown has proved all the ingredients which constitute

the offence. A number of Members therefore feel that

subsection 2 of the new section which effectively shifts the

burden of proof regarding knowledge of false news to the

accused is unfair and contrary to established principles of

Criminal Law. This new section, they argue, constitutes

undue suppression of press freedom. One often repeated argument is that professional ethics within the journalist trade requires journalists to keep confidential information

confidential, and under no circumstances should the source of

confidential information be identified or revealed.

If a

journalist follows this internationally accepted principle, then he would be deprived of the only defence available to him

should he be charged under the new section. Furthermore, a few

Members also believe that in cases where the truth or

authenticity of the news is not immediately or readily

available, the new section would pose an almost impossible

burden on the accused and would unduly inhibit further

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vestigation by the media which might eventually bring out mportant and material facts in the interests of the whole community. The same argument applies to the existing Section 6.

Nonetheless, despite the doubts and reservations

cited above, other Members are convinced that the Bill, as amended, strikes a fair balance. They regard the publication of false news likely to alarm public opinion or disturb public order as a serious offence which may be distinguished from the ordinary type of criminal offences. Since it is extremely

difficult to establish what was in the mind of the person publishing the false news, it is acceptable to require the accused to prove that he had reasonable grounds for believing

that the news to which the charge relates was

Otherwise,

che provision would become a dead letter of the law.

It is important that what is laid down in the Law can'

be effectively enforced. The reason is obvious. Furthermore, effective legislative provisions may serve as a deterrent against unscrupulous acts which may result in serious internal

disturbances. These Members therefore conclude that on balance

the retention of Section 6 is both necessary and acceptable.

Section 6 has been on the statute book since 1951,

and has never been invoked since 1967, when the environment

then was entirely different from what it is today. In fact,

one may say that the new Section 27 is old wine in a new bottle

or in a bottle where it belongs. False news in itself is not

an offence under the existing or the new section. An offence

would be commmitted, however, only if the false news is also

likely to alarm public opinion or disturb public order. The

combinatin of these 2 factors would make it extremely unlikely

for an offence to be committed under the existing or the new section, particularly under normal circumstances.

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Furthermore, some Members note that of the 10

sections under the Control of Publications Consolidation

Ordinace, 9 will be repealed. Only Section 6 will be

transferred to the Public Order Ordinance. It is felt that in Hong Kong today, there is justification to retain some residual power over unscrupulous publication, which may result in serious consequences to the public.

Sir, the Group reported its findings and

recommendations to the LegCo in-house meetings on at least 3 occasions and I believe all Members present at these in-house meetings were reasonably cognizant of the main points at issue. The majority of the Members present at the in-house meetings were in favour of the new Section 27 as amended.

There has been suggestions that the Bills be further deferred to allow more time for consultation. In fact, at the request of the Group, the resumed debate has already been deferred twice to allow more time for discussion. A number of Members are satisfied that discussion on the Bills has been adequate.

The suggestion that by not discriminating against the press and thus widening the ambit of the section to cover any person, represents a change in the legislative intent, is not shared by a number of Members. They are of the view that the legislative intent has always been the same, i.e. the prevention of publication of false news likely to alarm public opinion or disturb public order. Widening the ambit of the new section so that its application is not just limited to the press and thus avoiding discrimination is not only logical but an improvement over the original proposal. An individual is not subject to the professional ethics of journalists regarding identifying source of information. To suggest that making it an offence for a person to publish false news likely to alarm public opinion or disturb public order is a threat to freedom