be difficult to justify deleting clause 6 of the draft Bill and I 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 altogether 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 pro- posed amendment, the amendment had not in fact effectively
dealt with that criticism. Grateful if further consideration 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.
7. Section 19: (paragraph 12)
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 provisions
to deal with the latter categories. But 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.
- 2
-
-
B.
Section 37: (paragraph 42)
In the Attorney-General's note on Justices memorandum on the Hong Kong
Public Order Ordinance, under the heading "para- graph 42", it is stated
that section 37 (which deals with permits to enter and leave a closed
area) could be amended to provide 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 amendment in
respect of section 31. Grateful if you would consider making an
amendment on similar lines to section 37.
VISIT OF THE MINISTER OF STATE
(LORD SHEPHERD)
TO HONG KONG, LAY/JUNE 1969
Note No. 7
17
22.
FUBLIC ORDER AND FUFRGNICY LEGISLATION
Public Order Ordinance
Shortly before his departure the Department submitted to the Minister
Hong Kong's draft Bill amending the Public Order Ordinance, 1967. The
Bill goes a long way to meeting criticisms of the local branch of
"Justice". One of their criticisma concerned the wideningg of the
definition of an "offensive weapon" in the original Ordinance; the Bill
does not meet their point. The Minister said that he was not happy about
this and wondered whether it would be more appropriate to use the
definition in the U.K. Prevention of Crime Act, 1953. We have suggested
to the Governor that, if he adheres to his view that the widor
definition should be retained, this point might be discussed with the
Minister during his visit. A brief in attached (Annex A),
2.
In case the Governor should wish to discuss any other points
arising from our comments on the Bill, copies of our submission and of
our Saving Despatch No.208 are attached to Annex A.
Faerzency Legislation
3. A submission dealing with the Governor's plans for dismantling
emergency legislation did not reach the Minister before his departure. A
copy is attached (Annex B), for information only at this stage since it
has been assumed that the Minister would wish to consider this
matter on his return, with reference to the detailed papera,
submission deals primarily with those iteng of emergency legislation
the
substantive Land the Governor proposes to embody in emergency
legislation or has so embodied. To some extent therefore it overlaps
with the submission on the Public Order Ordinance (paragraph 1 above).
The recommendation is that the Governor should be asked to consider only
the one further
point mentioned in the draft letter attached to the Bubmission.
Hong Kong Department
27 May, 1969
ви, 3 (для плён
lights
Mo
29.5,69.
D 19/6
The
1
ANNEX A
PUBLIC ORDER ORDINANCE, 1967:
DEFINITION OF "OFFENGIVE WEAPON"
The U.K. Prevention of Crime Act, 1953, defines "offensive weapon" as
follows 1-
2.
"offensive weapon" means any article mado, or adapted for use, for
causing injury to the person, or intended by the person having it with
him for such use by him.
The definition of "offensive weapon" in the Hong Kong Publia Order
Ordinance rende :-
"offensive weapon" means any article made, or adapted for UBC,
or suitable, for causing injury to the person, or intended by the person
having it in his possession or under his control for such use by him or
by some other person;
The underlined passages indicate the additions to and variations in this
definition.
..";
3. Under the U.K. legislation mere possession is an offenceonly 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 in the Hong Kong definition of the worde "or
suitable", 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 auch article
for purpose of causing injury. It is proposed in the
mending Bill to make available to the accused the defence of "lawful
authority or reasonable excuse" in every section creating an offence in
relation to offensivc weapons. (The relevant sections aro 14, 32 and 33:
in the original Ordinance "lawful authority" 10 a defence in all three
sections, but "reasonable excuso" is a defence only in Section 33).
/ 5.
5.
Thus the addition of these words dicpenses altogether with tha need to
establish intent to cause injury in relation to the posscanion of
articles that are capable of both an innocent and offensivo use, the
accused can The prosecution has only to establish possession; raise the
defence of "lawful authority or reasonable excuse" but quot There is
Justification discharge the burden of proof if he doce so.
for assuming intent to use for an offensivo purpone an articlo which
The
is primarily designed, or has been adapted, for such purpose, problem is
to define precisely what circumstances might be held to Justify the
assumption of tal-intent in the case of possession of an article that
hae primarily an innocent use although suitable for, and capable of,
being put to an offensivo use.
And are they
Similar
6. What are the circumstances in Hong Kong? exceptional ?
A variety of articles with a primarily innocent use
(e.g. cargo hooks and bottles) were used during 1967 to cause injury, by
communiet zealots, aided and abbetted by criminal hooligan clemonts and
bent on a violent and intimidatory course of conduct. articles have been
no used elsewhere in other situations; nothing unusual in the offensive
use of articles having a primarily innocent use. The argument that there
are justifiable circumstances must reat on the abnormal nature of the
threat to law and order in Hong Kong and the continuing nature of that
threat.
there is
7. It is indeed the case that Chinese communist activity in the Colony
poses a special and unusual threat which has for several years now been
hold to justify the retention of special (emergency) powers; in other
Commonwealth countries faced with a similar threat (1.e. Halaysia and
Singapore) public order legislation has been strengthened on a permanent
footing in a variety of ways that would not be considered acceptable in
the UK or other parts of the Commonwealth,
It is also the case that we cannot say with any certainty that violent
methods will not again be used by the communiste in Hong Kong (although
we think a return to violent methods to be an unlikely development at
the present time). There are therefore today and for the foreseeable
future fairly exceptional circumstances in the threat to law and order
in Hong Kong.
/ B.
in
8. But the threat of violent communist methods being used again Hong
Kong is a potential rather than a present one; and it soens a debatable
point that provisions which interfere ao basically with British legal
principles on "mens rea" are required at the present time or at any time
other than during a period of communist violence to meet which
eventuality they could be introduced under emergency regulations. For
inclusion in permanent legislation there must be a continuing need for
such powers for the purpose of maintaining law and order: it is not
sufficient to say that they will make the
task much easier.
9. It cannot be argued in Hong Kong that we have been inconsistent in
this matter. Precisely the same principle is at issue on
Section 12(3)(a) of the Ordinance, where the proposed Hong Kong
amendment does not go far enough and we have asked the Governor to look
at it again. Paragraph 5(d) of the submission and paragraph 5 of Saving
Despatch No.208 are relevant (copies attached).
10. Conclusions
(a) There is nothing unusual in the use for offensive purposes
of articles primarily intended for innocent use.
(b) The resort by communists to violent methods is a potential
threat of an exceptional nature to law and order in Hong Kong.
But such methods are not currently being employed and a return to using
them is not seen as a likely devolop- ment at the present time.
(c) Before provisions involving so far reaching an interference with
British legal principles on "mens rea" are embodied in permanent law, a
continuing need for them should be established. There is no such need at
present.
(a) The wider definition of "offensive weapon" should be
introduced under emergency regulations when the maintenance of law and
order is threatened by an organised campaign of violence.
144
Nele No. 7.
THE
VISIT OFL MINISTER OF STATE
(LORD SHEPHERD)
23
то
HONG KONG
MAY/JUNE 1969
Publi Order
and Emergency Legulation.
Puthé Order Ordinance
Shortly before his departure
Department submitted to the Minister
174
Hong Kong
draft Bill amending the Public Groler Grolinance,
1967.
The Biee maker ques
long warn
la
meeting criticisms of the local branch of "Jundice"
One of
their criticisms
Concerned
widening of the definition of
ант
The Aspestavr
"
offensive
Ordinance;
The Biel
N
weapon
in the
The original
does
not meet their point.
The Minister
Sand
that he was not happy
about this
and
Y
wicker
he adheres to hui view that the defmilion
Shoned be retaimed,
wondered whether it would be more
appropriate to we
UK.
Prevention
of
The definition in the
Crime Act, 1953.
We
have suggested to the Governor that this point-
might be discussed with the Amister during his
>
2. In care
ch scurs DETR
А
visit
brief
is attached (Annex A).
the Governor should wish to
Governor's
ation
the Bill, Minister
(Annex B),
amy
points armancy
conce's
a can of
other Wittmatters con which
from om comment's
Đ-
mebanon our submission татлагат от
and of tetes on
Sarma Despatch No. 208
are attached to Annex A.
LIC
144
Notte No. 7.
THE
VISIT OFL MINISTER OF STATE
(CORD SHEPHERD)
23
то
HONG KONG
MAY/JUNE 1969.
Puble Order
and Emergency
Legulation.
Public Order Ordenance
Shartly before his departure
The
Department submitted to the Minister Hong Kong
The adheres to his view that He defmilion Shoned be retained,
criticisms of the local branch of "Justice"
draft Bill amending
the Public Order Gratenance,
1967.
The Bite meats goes
long were
meeting
От
1
Their criticisms
Concerned
The depostien
The Biel
The Minister
widening of the definition of
weapon
ан
11
offenswe
in the original Ordinance
does not meet their point.
Sauel
and
that he was not happy about this
wondered whether it would be more
appropriate to use
U.K. Prevention
of
the definition in
We
Creme Act,
1953.
have suggested to the Governor that this point
might be chiscussed with the Minister during his
A
brief is attached (Annex A).
vnit.
Σ Take in ship? Emerency Legislation
islip]
Submission dealing
dismantling
with the Goreshor's
plans for abritontinuing emergency legislation
Est
emborlying i did not reach the Minister
before his departure. A copy is attached (Annex B),
The Submission deals
Krunicity with
Those stems of covergency tegustation
The Garenner fragores to emberly in emergency legislation or has so
embertieel.
To some exten! Therefore the extra overlays with the
The
Subminion on Puthi
Order Ordinance
(para I above).
for information
only at this stage smu it has been Thank the Amriester would wish to
consider
with reference to the detailed This matter on his
return, inditure and wild
assumed
papers.
10
17 Governor (beashed
ん
The recommendation is that be shand.ct wished
The one
with the Govender only further point mentioned
in the draft latter attached to the submission.
BAS medutioned in parts & anda to z Aunia B
хатт
sorrendered
}
こ
U
i
Puôlé Order Grolinance, 1967:
Definition of "Offensive weapon".
ANNEX A
Batang The
U.K. Prevention of Crime
define's
Act, 1953
تلمحب
༼ག གཤ་རྒྱག་ད), ག་ཙམ་ག་ག་ག་ག་ག་ང་གི(ཡ་བ་རི་ན་
Laufer authority
able_excuse,
has
ang fortfic place any offeninge weapon shake te
Gambling of an offence.
Weapon
as follows:-
indefiniert
Da depromion" offensive
treening in
anning any article writte
ox adapted for use fox causing injury__
Mensive weapon
"
oy
means any article made, adapted for use, for causing injury to the
person, or intended by the person haring it with him for Such are by
him.
$42. The definition of "offensive weapon
Public Order Ordenance
Affensive weapon"
觉
adapted for ure
reads :-
means any
OY
in the Hong Kong
article made, of
suitable for causiną
injury to the person
ON
1
intended by the
person having it in his possession
بشان
by hein
hemm or
by some
his control for such use by
Mhear person;
The underlined passages
vidicate in the addition's
12
to and vanations in
This definition.
3.
the
Ggulation
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.
Hồng Mong
Such
4. With the addition to the definition in the Hong Kang Publin ünder
urdinance of the rords "or suitable"
mere possession of almost any article (e.g. Justice's
"pencil", a piece of cloth or scarf Huitable 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 ori
inal Ordinance "lawful authority" is a defence in all three sections,
but "reasonable excee" is a defence only in Section 33).
Thus the
5. The liong Kong adition of the words Con suitable
dispenses altogether with the need to establish intent to cause injury
in relation to the possession of articles that .re capable of Leth an
innocent and offensive use. The protion 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 designeâ, or has been adapted, for
such purpose. 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 slitale for,
and capable of, being out to an offensive use.
The
Ica Marshalling the arguments as i see them. In my view there is room
for debate, although my own conclusion tende towards resisting departure
from the
provlefons of the UK legial:tion. The Hinister's
:)
ל
7
Flag 0
Flag H
Flag F
✩ H
*lag I
Flag K
Vr. Moreton
You have seen "r. Godsen's minute of 9 May recording Lord Shepherd's
views on the definition of
offensive reapen" in the Public Order Ordinance. The 11 adviser
concerney (Hr. 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 roadlinese to accept the
objections raised and to delete the words delete the words "suitable
for". But in his report
on the amending Bill indicated that it was proposed not to delete these
words and stated the péusons for this. Sir Arthur Grattan-Bellew, who
pesona originally advised on the Bill, considered
(paragraph 2(1) of his minute of 10 Yarch) the reasons convincing and
suggested we should agree to the definition standing as worded in the
original Ordinance
13...
6.
What are
The
Ari
Circumstances
they exceptional ?
praviary crinocent use
were used during 1967
Communi't gealsts
used elsewhere
and
in Hong Kong? And
A variety of articles with a
(e.g. cargo hooks
To cause injury,
and battles,
by
and abetted by criminal
intimidatory
onded
bent on a
violent and
Sumilar articles have been so
in Mer situations;
nothing
hochgan elements
Course of conduct.
There is in
unusual in the offeneve
выте
з
articules harming a
justifiable
curcumstances
primarily winocent use.
an
The argument that
abnormal nature of the threaut 1%
Order
in
+2
law and
Hong Kong and the continuing
of that thread", -
nature
there
muit rest-
acturity
St
In deed
The came
that Chinzire
communist
7
the Colony hoses a
spencil and
threat
which hawn for several years
how
in other Commonweal12
unusual
been held to justify the relantion
special (zmergency) Lewens;
facere with
sumilar threat (ie.
ответ
Singapore) public order bestation
Comtries
Nalaysia
has been strengthened
a
permanent fosting
eri
variety of
Why I
that womed
hot be considered
No comments yet.
Private notes are available after approval.