TNAG-2556-FCO40-3731-Hong-Kong-Bill-of-Rights-Societies-(Amendment)-Bill-1992-1992 — Page 81

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IN A BOR CASE, THE COURTS WOULD LOOK MORE CLOSELY AT THE EVIDENCE THAN THEY DO IN THE KINDS OF CASES THAT HAVE ARISEN SO FAR IN THE UK. WE WOULD NOT BE CONFIDENT THAT A COURT WOULD BE SATISFIED MERELY BY REFERENCE TO ''RELATIONS WITH ANOTHER STATE OR THAT SUCH AN ARGUMENT WOULD SOUND REPUTABLE IN A PUBLIC FORUM. POWERS IN THIS AREA OUGHT THEREFORE TO BE EXERCISED EXTREMELY SPARINGLY AND NEVER ON THE SOLE GROUND THAT CHINA MIGHT DISAPPROVE OF THE ORGANISATION IN QUESTION.

THE AMENDED

4. ACCORDING TO YOUR UNDERSTANDING OF ''SECURITY POWERS WOULD BE BROAD ENOUGH TO BAN EVEN A PURELY LOCAL SOCIETY ON THE GROUNDS THAT ITS EXISTENCE WOULD DAMAGE RELATIONS WITH CHINA''. THERE IS NO BASIS WHATEVER IN THE ORDINANCE ITSELF FOR DISTINGUISHING BETWEEN SOCIETIES WITH AND WITHOUT OVERSEAS AFFILIATIONS. WOULD IT NOT BE DIFFICULT TO RESIST PRESSURE TO BAN PURELY LOCAL SOCIETIES IF HKG WERE KNOWN TO TAKE THE VIEW THAT SECURITY CONSIDERATIONS COULD BE EXTENDED TO ACCOMMODATE CHINESE DISAPPROVAL OF A SOCIETY? IT WOULD HARDLY BE POSSIBLE TO USE THE ARGUMENT THAT THE LEGAL POWERS DO NOT EXIST. (WE THINK THAT IN THIRD TUR PARA 8 YOU ACKNOWLEDGE THIS POINT). ARE CONTENT WITH YOUR PROPOSAL TO TELL THE CHINESE THAT THE AMENDED ORDINANCE WILL ''CONTINUE TO ALLOW US TO PROHIBIT A SOCIETY WHICH IS AFFILIATED TO OR CONNECTED WITH AN ORGANISATION OF A POLITICAL NATURE OUTSIDE HONG KONG WHERE WE JUDGE THAT ITS ACTIVITIES WOULD THREATEN HONG KONG'S SECURITY' BUT IT WOULD BE BETTER THAT YOU OFFER NO ELABORATION OF SECURITY

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WE HAVE THE FOLLOWING MISCELLANEOUS DRAFTING COMMENTS ON THE DRAFT SOCIETIES (AMENDMENTS) BILL ITSELF:

(A) THE PENALTIES PROVIDED FOR THE VARIOUS OFFENCES APPEAR TO BE FIXED RATHER THAN MAXIMUM LIMITS AT THE TOP OF A DISCRETIONARY SCALE. FOR EXAMPLE, SECTION 5(3) PROVIDES THAT FOR NON-NOTIFICATION A PERSON IS LIABLE TO ''A FINE OF HK DOLLARS 10,000 AND TO IMPRISONMENT FOR THREE MONTHS AND TO A FINE OF HK DOLLARS 200 FOR EACH DAY DURING WHICH THE FAILURE CONTINUES . WOULD NOT THESE PROVISIONS BE MORE REASONABLE IF THEY ALLOWED JUDICIAL DISCRETION UP TO A MAXIMUM? FOR EXAMPLE, SECTION 5(3) COULD READ: ''A FINE NOT EXCEEDING HK DOLLARS 10,000 OR TO IMPRISONMENT

FOR A PERIOD NOT EXCEEDING THREE MONTHS OR BOTH AND TO A FINE NOT EXCEEDING HK DOLLARS 200 '.THIS COMMENT WOULD APPLY TO ALL THE NEW OFFENCES CREATED BY THE NEW PROVISIONS AS WELL AS THOSE IN THE EXISTING ORDINANCE WHICH ARE TO REMAIN.

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