T
(118281) Dd. 391599 1,500 2/69 Hw.
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CONFIDENTIAL
117/E
Registry No.
HKK 14/15
DRAFT Saving Despatch
Type 1 +
SECURITY CLASSIFICATION
From
To:-
Top Secret.
Secret.
Governor,
Telephone No. & Ext,
Confidential,
Restricted. Unclassified.
PRIVACY MARKING
In Confidence
HONG KONG.
Department
208
8
Your Saving Despatch No. 4 of 3 January.
Public Order Ordinance.
Î ou
We are grateful for the considerable extent to which the draft Bill
enclosed with your Saving Despatch meets the various criticisms levelled
at the Public Order Ordinance, 1967. The matters raised in your
paragraph 2, together with certain other points, are dealt with below.
References are
to existing sections of the Ordinance and to para- graphs of your
Attorney-General's comments on the
draft Bill.
2.
Section 2: (paragraph 3).
[ Take in slip ]
accept your views on this point and noteTM
the amendments to sections 14 and 32 which are pro- vided for by clauses
8 and 19 of the draft Bill.
3. Section 7: (paragraph_5).
This section, as amended by clause 4 of the draft Bill, will now apply
to funeral processions only and not to public meetings for the purposes
of funerals. These provisions presuppose that it would always be
possible to apply for a licence to hold a funeral procession, two days
before such procession, and this appears to be a somewhat doubtful
presumption. Moreover, it appears that the powers conferred on the
Commissioner of Police by section 7(4) to refuse such a licence are too
wide and that some of the grounds on which a licence
may be refused are not appropriate in the case of such processions. It
is appreciated that in the circumstances of Hong Kong strict control is
required over funeral processions, but it seems that section 7 does not
provide the appropriate control and it may
1
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J
CONFIDENTIAL
be desirable to have a separate clase to deal with the subject. Grateful
if this matter may be given further consideration.
4. Section 11(2): (paragraph_7).
It is difficult to make any differentiation in principle between this
section and section 3(1), to which reference is made in paragraph 4 of
the Attorney General's comments. It should not be difficult for a Police
Officer of the rank of Inspector or above to
make up his mind in relation to a public meeting or procession whether
or not he has reasonable grounds on which to act; and with the backing
of section 53 he should be able to act quickly and decisively without
doubt as to the exercise of his powers under this section. It would
therefore be difficult to justify deleting clause 6 of the draft Bill
and we very much hope that you can see your way to retaining the clause.
5. Section 12(3)(a): (paragraph 8).
+
The proposed addition to this section, as provided for by
clause 7(b) of the draft Bill, does not alto- gether meet the point
raised in paragraph 14 of "Justice's" memorandum which was accepted by
the Attorney General in his comments on that memorandum. A person may be
in an assembly and may know that it is an unlawful assembly, but
although desiring to get away, be unable to do so owing to the pressure
of the crowd. Yet even with the amendment proposed in the draft Bill he
would be guilty of an offence. This could give rise to the claim that
although the criticism raised by "Justice" on this section had been
accepted, as evidenced by the proposed amendment, the amendment had not
in fact effectively dealt with that criticism. It would accordingly be
appréciated- if further consid- eration could be given to this clause
also.
6.
Section 18(1): (paragraph 11).
It is accepted that it would be possible for a group of
people to intimidate others without acting in a disorderly manner, and
it is suggested that the use of the phrase "in a disorderly or
intimidating manner" would meet the point.
2.
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7. Section 19: (paragraph 12).
But
It appears that this section is aimed at persons actively taking part in
an unlawful assembly, that is to say, people who would be relatively
easily noted by the Police, and not at those who, knowingly or
unknowingly, were caught up in the assembly: there are other pro-
visions to deal with the latter categories. it is considered that the
"unlawful assembly" referred to in this section should be confined to
that defined in section 18(1), i.e. that this section should be modified
by a clause on the lines of clause 10(b) of the draft Bill. Subject to
this, the views expressed by your Attorney General on this clause are
accepted.
8.
Section 37: (paragraph 42).
In the Attorney General's note on Justice's memorandum on the Hong Kong
Public Order Ordinance, under the heading "paragraph 42", it is stated
that section 37 (which deals with permits to enter and leave a closed
area) could be amended to pro-
vide for reasonable notice as requested by Justice." Justice's proposal
was that the section should be
amended so as to require that reasonable notice should be given as to
the cancelling of a permit.
Clause 18 of the draft Bill makes such an amend -
ment in respect of section 31, and we would-be
rateful if you would consider making an amendment
on similar lines to section 37.
:
- 3-
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Flag Flag.
17/E
Lord Shepherd
Public Order (Amendment) Bill 1969
I hesitate to trouble you with this detailed and complicated matter but
in view of the extent of parliamentary interest I think you should be
aware of the general purport of draft Saving Despatch. In effect this
implies that, if the Governor meets us on the outstanding points
enumerated, we will
be content with the Public Order Bill as amended.
2.
have been conscientiously taken into account;
The criticisms levelled against the original Bill
indeed I consider
that in some respects we are being overscrupulous.
However
I think we must accept the Legal Adviser's advice, which the
draft follows.
CONFIDENTIAL
Анитил
(5.%
(J. O. Moreton)
2 May 1969.
wih (18
For Mr Gruchley
The Prevention of Crime Act 1953.
Section 1 provides that any person who, without
lawful authority or reasonable excuse.......
has with him in any public place any offensive weapon shall be guilty of
an offence.
The expression "offensive weapon" is defined as meaning any article made
or adapted for use for causing injury to the person or intended by the
person having it with him for such a use by him.
The expression "public place" is defined as including any highway
and any other premises or place to which at the material time the public
have or are permitted to have access, whether on payment or otherwise.
(c) Act has general afflection - Emering any
дел
fublic place
(r) Public Order Act 1936: 'offeruire weaker'
not defined but Mr C is of the opivin that one wanted the definition
under a Public Order Act one would go
wild go to the prevention of Creme Bet 1953
if
м
19
Mr. Carter
Lord Shepherd agrees with the action proposed. But he has one
reservation. He is not happy with the inclusion of the words "or
suitable" in the definition of offensive weapon. He wonders whether it
would not be more appropriate to use the definition used in the
Prevention of Crime Act 1953. (See below).
сывала
(C. H. Godden) 9 May 1969
Mr. Gammarà
Weapon
*
The Hong Kong dafnation of "offensive
forlows the U.AT. definition but adds
or suitable "
for Canimą injury
catching such objects
The words
with the intention of
bottles and cargo hooks which
are neither
ו'
made
For causin
ansing injury
use" for this purpose
but which were
adapted for
were commonly used by
The communists for offensive purposes in 1967.
2.
Subject to legal adboners'
VIEWS
my
conclusion is
that the wirt. definition cannot meet Hong Kong's
On the face of it the phrase "adapted for use" requires some element of
physical adaptation
purposes.
or Convert, a
of a perfectly innocent dyect into some sort of wery on за (e.q. a
sharpened file). But if it can be
construed
to cover
adaptation of use
раш оз
Scissors,
a boîte
becomes an
ન
or a cargo hook
offensive weapon when it is used
The
for which
for other than one winecent purposes for
it is intended) them perhaps the W..
definition
world
But in that case
There
Cam
meet Hong Kong's needs.
5 cannot see
real objection to Hong Kong's
or suitable
be any proposed addition of the words
to make
This construction quite clear.
3.
Would
you please consult legal adimer's.
b.s. Canter
9/5/60
Reference.
20
Mr Cruchley.
Will
you
please advise on the one outstanding
2
point raised in Hr Godden's attached
minute of a Hey.
9
Нау
The Hong Kong defuntion of offensive
urapon".
in the Puble Order Ordinance
clearly based on.
f
the definition in
in the Preventions
Corine Act, 1953, but it is a more Comprehensive & fomore embracing
definition.
13. I suspect that a cesting amount of mis-
has crept in here as a result
understanding
of the samcuhet doubtful argument put
forward by "Justle" in para
memorandum.
To
my
mind,
5 of thei
tt
the fact
is capable of causing injurch
an
in that
does not necessarily
mean that
suitable for that purpose. you
crack
an egg
with a
that it is
after all
J
but I
sledgehammer,
a grek
HY with My Carter's
шотеб
naks.
find it easier with a teaspoon.
4.
With respect,
vicios
that the U.K. definition
not meet Hong Kong's
ART
Mr Gamen in
12.5.69.
The definition in the Prevention, of
cours each of
Ereme Act" 1953
the following
(1) any
article made for
ust
fox
de
. Causing injur
(2) any
to the person; article adapted for
to the person;
for causing injury
(3) any
use
article intended by the person
him for
having it with bein
for Canary injury
by hem
It. the person.
In
my
catch
р wiew group (3) could
a
battle, a
cargo
hook, a pencil
the article but at must
be
by the prosecution that the
intended by
casury frowed article was
usa
by
having & with hem for the person the
injury has a greater
to He
بینمت
for carving of prosecution, therefore to discharge
Then in
asian an
Burden
of
groups
and (2).
It seems
to
that the purpose
th
of
tien
J
suitable
definiten
what
the inser
Sexten 2 of the Public Order Ordinance
Methy
to create a
with fourth group
(1)
would fall in the categoris
(Group (3) f the M.K.
(2) range
1
definition is included Endinance definitions)
Hially Kory
whithe
required in
Kome
that Hang the
외
in
and
the Hong Kong
The point.
addition
of proup 3). It appea
think it is
The the case
that
>
The math his ame
to of poling. on the legal portion
Co
whith the phrase "adopted for
be constined to come
Carta's
for.
muute
adaptation of use to not think it
do
of 9 May) nstrued.
Can
be so
iH. Erichley
14/5/69
|
Flage
7/
Mr. Carter
Reference
(27)
In view of Mr. Cruchley's attached minute of 14 May, it would seem that
the words "or suitable" should be retained in the definition of
"offensive weapon". But in view. of Lord Shepherd's commenta jas
contained in Mr. Godden's minute of 9 May, I do
not think that we can issue the attached draft Saving Despatch without
amending paragraph 2 of that draft to take account of the Minister's
views. I have accordingly attached an alternative paragraph 2 to the
draft suggesting that this particular point should be discussed with
Lord Shepherd during his forthcoming visit to Hong Kong. There is a
poesi- bility that this might lead the Governor to raise with the
Minister all the outstanding points dealt with in the draft, but that
would be for the Governor to decide. It would in any event be advisable
for a copy of the attached submission to be included with the other,
briefing material now being prepared for the Minister's visit, together
with a short covering note mentioning Lord Shepherd's query and giving
the Legal Advisers' views on it an set out in Kr. Cruchley's minute.
(A. W. Gaminara) 14 May, 1969
Flag
G
Flag
地
201
P
Flag Flag I
あ
Mr. Moreton
You have seen Mr. Godden's minute of 9 May recording Lord Shepherd's
views on the definition of "offensive weapon" in the Public Order
Ordinance. The legal adviser concerned (Mr. Cruchley) has
he observes commented in his minute of 14
May;
that this is primarily an issue of policy.
2. The history of this provision is that "Justice" commented adversely
on this widening of the definition
On considering (paragraph 5 of their
memorandum).
these views the Attorney-General indicated his readiness to accept the
objections raised and to
delete the words "suitable for". But in his report
on the amending Bill he indicated that it was
proposed not to delete these words and stated the
reasons for this. Sir Arthur Grattan-Bellew, who
Flag
originally advised on the Bill, considered (paragraph 2(1) of his minute
of 10 March) the reasons. convincing and suggested we should agree to
the definition standing as worded in the original Ordinance,
/3.
3. Under UK law mere possession is an offence only where the article is
"made or adapted for use for causing injury ..."; there is available to
the person in possession the defence of "lawful authority or reasonable
excuse" for having it. In the case of
any other article it must be established that the person has it in his
possession intending to use it to
cause injury.
4. With the addition to the definition in the Hong Kong Public Order
Ordinance of the words "or suitable for" causing injury, mere possession
of almost any article (e.g. Justice's "pencil", a piece of cloth or
scarf suitable for strangling) becomes an offence.
It is unnecessary to establish any intent to use the
article for purpose of causing injury. It is proposed in the amending
Bill to make available to the accused the defence of "lawful authority
or reasonable
excuse" in every section creating an offence in relation to offensive
weapons. (The relevant sections
are 14, 32 and 33: in the original Ordinance "lawful authority" is a
defence in all three sections, but "reasonable excuse" is a defence only
in Section 33).
5. The Hong Kong addition of the words "or suitable for" dispenses
altogether with the need to establish intent to cause injury in relation
to the possession of articles that are capable of both an innocent and
secution offensive use. The provocation has only
to establish possession; the accused can raise the defence of "lawful
authority or reasonable excuse" but must discharge the burden of proof
if he does so.
There
is justification for assuming intent to use for an offensive purpose an
article which is primarily designed, or has been adapted, for such
purpose. The problem is to define precisely what circumstances
might be held to justify
the assumption of mal-intent in the case of possession of an article
that has primarily an innocent use although suitable for, and capable
of, being put to an offensive use.
6. I am marshalling the arguments as I see them. In my view there is
room for debate, although my own conclusion tends towards resisting
departure from the
provisions of the UK legislation. The Minister's
/ visit
i
|
1
Reference.
visit to Hong Kong will provide an opportunity for discussion on this
point. I suggest that paragraph 2 of the draft saving despatch at Flag C
should be amended accordingly. If you agree we will despatch this by
Saturday's bag and a brief will be prepared
for discussions with the Governor,
22 May, 1969
S
Ca.
(W. S. Carter) Hong Kong Department
J ape
(so mighty amandas)
سمه
1
Minister has agreed that works shaufto be retained
See
(26
(22
Foreign and Commonwealth Office London S.W.1
CONFIDENTIAL
SAVING DESPATCH
HKK 14/15
From the Secretary of State for Foreign and Commonwealth
To the Governor, HONG KONG
22 May, 1969
No. 208
Your Saving Despatch No. 4 of 3 January.
Public Order Ordinance.
Affairs
I am grateful for the considerable extent to which the draft Bill
enclosed with your Saving Despatch meets the various criticisms levelled
at the Public Order Ordinance, 1967. The matters raised in your
paragraph 2, together with certain other points, are dealt with below.
References are to existing sections of the Ordinance and to paragraphs
of your Attorney-General's comments on the draft Bill.
2. Section 2: (paragraph 3)
I am not convinced of the necessity for including in permanent
legislation the words "or suitable" in the defini- tion of "offensive
weapon" although I fully appreciate the reasons for the views that you
hold on this matter.
If you adhere to these views, I would invite you to discuss this
particular point with Lord Shepherd during his forthcoming visit to Hong
Kong.
3. Section 7: (paragraph 5)
This section, as amended by clause 4 of the draft Bill, will now apply
to funeral processions only and not to public meetings for the purposes
of funerals. These provisions pre- suppose that it would always be
possible to apply for a licence to hold a funeral procession, two days
before such procession, and this appears to be a somewhat doubtful pre-
sumption. Moreover, it appears that the powers conferred on the
Commissioner of Police by section 7(4) to refuse such a licence are too
wide and that some of the grounds on which a licence may be refused are
not appropriate in the case of such processions. I recognize that in the
circumstances of Hong Kong strict control is required over funeral
processions, but it seems that section 7 does not provide the
appropriate control and it may be desirable to have a separate clause to
deal with the subject. Grateful if this matter may be given further
consideration.
LACT
8
NEXT
DIE.
Q29
4. Section 11(2): (paragraph 7)
It is difficult to make any differentiation in principle between this
section and section 3(1), to which reference is made in paragraph 4 of
the Attorney-General's comments. It should not be difficult for a Police
Officer of the rank of Inspector or above to make up his mind in
relation to a public meeting or procession whether or not he has
reasonable grounds on which to act; and with the backing of section 53
he should be able to act quickly and decisively without doubt as to the
It would therefore exercise of his powers under this section.
No comments yet.
Private notes are available after approval.