TNAG-2558-FCO40-3733-Hong-Kong-Bill-of-Rights-Crimes-(Amendment)-(No.-2)-Bill-199-1992 — Page 24

GOVERMENT HOUSE HONG KONG.

TUE 31 MAR 92 11:48

PG.03

CONFIDENTIAL

XCC(92)39

A

5

The general strategy towards amending legislation in areas affected by the BOR Ordinance was examined in memorandum XCX(91)6 considered by the Council on 5 March 1991. The Council then ADVISED and the Governor ORDERED, inter alia, that we should take a very conservative approach to the question of amending legislation to ensure conformity with the BOR Ordinance, taking the initiative only where it is judged that the probability and the practical consequences of successful challenge are such as to make pre-emptive action necessary or where we are clearly failing to implement our obligations under the International Covenant on Civil and Political Rights as applied to Hong Kong ("the Covenant").

6

It is necessary to amend the Crimes Ordinance to remove any obvious inconsistency with the BOR Ordinance before the freeze expires on 8 June 1992. Moreover, any new provision must be consistent with the Covenant as required by Article VII(3) of the Letters Patent.

7

Bearing in mind the conservative approach mentioned in paragraph 5, we have undertaken a detailed review of the Crimes Ordinance and concluded that only section 160(1) of the Ordinance concerning loitering requires immediate modification. A copy of this section is at Annex A.

8

There are other provisions in the Ordinance which may possibly be challenged under the BOR Ordinance, such as section 137(2) by which a man living with a prostitute is presumed to be living on the earnings of prostitution unless he proves to the contrary. Given the directive that changes to the existing laws in the light of the BOR Ordinance should be minimized, these provisions should be left unchanged. As for provisions in the Ordinance which concern the powers and duties of police officers, we intend to take into account the outcome of a review currently being undertaken by the Law Reform Commission (LRC) on police powers of search and arrest before recommending changes to the relevant sections. The LRC is expected to consider a draft report on the subject this month.