(D) ON PARA. 5
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111041
MDHIAN 8590
(I) IT WOULD NO DOUBT BE REASSURING IF THE BL COULD SPECIFY THAT ALL LAWS RELATING TO THE WHOLE AREA OF PUBLIC ORDER AND STATE OFFENCES WOULD BE A MATTER FOR THE SAR LEGISLATURE AND THE COURTS. BUT IN SO FAR AS THE MAINTENANCE OF PUBLIC ORDER IS CONCERNED, WE WOULD PREFERE IT TO BE DEALT WITH IN THE CONTEXT OF ART. 13 BY THE INCLUSION OF A PROVISION REFLECTING JD 28 (AS SUGGESTED IN PARA. 3(D) OF YOUR TELNO 1938). IF THAT IS SECURED, THE DANGER OF THE PRC LEGISLATIVE OR JUDICIAL ORGAN HAVING A ROLE IN MAINTAINING PUBLIC ORDER IN THE SAR SHOULD NOT ARISE. ALSO, WE DO NOT WISH TO WIDEN THE SCOPE OF ART. 22 BEYOND WHAT IS ORIGINALLY INTENDED, I
E.
TO COVER STATE OFFENCES ONLY. WE THEREFORE SUGGEST THAT THE PHRASE ''IN ADDITION TO MAKING LAWS RELATING TO PUBLIC SAFETY AND ORDER' 'BE DELETED FROM YOUR PROPOSED FORMULA.
·
(II) WHILE WE SHARE YOUR VIEWS (PARA. 10 OF FIFOOT'S MINUTE DATED 23 JUNE) ON THE MERITS OF A POSITIVE FORMULATION FOR ART. 22, YOUR PROPOSED FORMULA CANNOT BE SATISFACTORILY TRANSLATED INTO CHINESE.
WE THEREFORE SUGGEST REVERTING TO A NEGATIVE PROVISION AN ALTERNATIVE FORMULA COULD THUS READ : 'IN THE EXERCISE OF ITS LEGISLATIVE POWER, THE HONG KONG SAR SHALL MAKE PROVISION BY LAW TO PROHIBIT ACTS OF TREASON, SEDITION AND ESPIONAGE AGAINST THE STATE''.
ON FOURTH TUR
(E) ON CHECKLIST ITEM (5). YOU HAVE ORIGINALLY INTENDED ITEMS (4)
AND (5) TO COVER BOTH THE ARMED FORCES AND THE POLICE. BUT AS SUGGESTED IN PARA (A) OF SECOND TUR ITEM (4) NOW NO LONGER
/ REFERS TO THE POLICE AS A RESULT OF THE AMENDMENT TO (4), WE SUGGEST THAT THE EXPRESSION ''AS REGARDS THE SAME'' IN ITEM (5) BE
REVISED TO INCLUDE AN EXPRESS REFERENCE TO THE POLICE AS FOLLOWS:
"
''AS REGARDS THE ARMED FORCES AND THE POLICE
(F) ON CHECKLIST ITEM (6). WE APPRECIATE THAT YOUR CHECKLIST IS CAST
IN SUFFICIENTLY BROAD TERMS TO AVOID SOME POTENTIALLY DRACONIAN OR REPRESSIVE PROVISIONS IN THE EXISTING ORDINANCE, E.G. S.9(1)(G). HOWEVER, THE CONTENT OF ITEM (6) STILL DOES NOT ADDRESS ONE GROUND FOR OBJECTION TO S.9 OF THE CRIMES ORDINANCE, NAMELY, THAT IN RESTATING THE COMMONLAW IT OMITS ANY REQUIREMENT THAT THE ALLEGEDLY
SEDITIOUS ACTS OR WORDS MUST HAVE A TENDENCY TO PROVOKE DISORDER AND VIOLENCE. IN PARAS. 21-117 OF ARCHBOLD'S
'CRIMINAL PLEADING
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