section shall be liable
(a) on conviction on indictment to imprisonment
for five years; and
(b) on summary conviction, to a fine of five
thousand dollars and to imprisonment for two
years.
(4) In this section "intimidate" means to cause
in the mind of a person a reasonable apprehension of injury
to himself or to any member of his family or to any of
his dependants or of violence or damage to any person
or property.".
Section 28 of the principal Ordinance is repealed.
Repeal of section 30.
17. Section 30 of the principal Ordinence is repealed.
Amendment of section 31.
18. Section 31 of the principal Ordinance is amended in
subsection (2) by inserting, after peragraph (b), the following new
paragraph
-
"(c) Upon cancellation of a permit under paragraph (b), the
Commissioner of Police shall serve on the permit holder,
either personally or by registered post, notice in
writing of the cancellation, and upon receipt of the
notice the parmit holder shall forthwith surrender his permit.".
- 8 -
Ar.on sect
nt of 32.
19. Section 32 of the principal Ordinance is amended in subsection
(1) by inserting, after "without lawful authority", the following -
"or reasonable excuse".
Repeal and replacement of Baction
36.
20. Section 36 of the principal Ordinance is repealed and replaced
by the following
"Closed areas.
36. (1) The Governor may by order declare any area
or place to be a closed area.
(2) An ordor made under subsection (1) shall come
into force at such time as may be specified therein or,
if no time is so specified, immediately upon the making
thereof by the Governor and shall be published in the
Gazette as soon as may be reasonably practicable after
the making thereof.
(3) The Commissioner of Police and such other person
as may be authorized in any order made under subsection
(1), may cause a closed area to be closed by the erection
of barriers or otherwise.".
Amendment of section 37.
21.
Section 37 of the principal Ordinance is amended by deleting
subsection (2) and substituting the following -
*(2) In the case of any closed area, other than a closed
area referred to in subsection (1), a permit may be issued -
(a) by the Commissioner of Police; or
(b) by such authority or person as may be specified for
that purpose by the Governor in any order made under
section 36,
ON
1
to any person allowing that person to enter or leave the closed
aro..".
Amendment of section 39.
22. Section 39 of the principal Ordinance is amended by
-
(a) deleting subsootion (1) and substituting the following
"(1) Without prejudice to the provisions of this
Ordinance or of any other law, any member of Her Majesty's
forces, or any guard, may errest
(a) any person whom he finds in a closed area if he
has reason to suspect that such person has
committed or is about to commit any offence;
(b) rny person whom he finds committing any offence
in a closed area;
(c) any person whom he finds attempting to enter a
closed area, if he has reason to suspect that
such person has not been issued with a permit
under section 37,
and may use such force as may be necessary for the
purpose.".
(b) inserting, after subsection (2), the following new subsections-
"(3) Any police officer of or above the rank of
inspector, with the assistance of such other police
officers as may be necessary, may -
(a) detain any person who is in a closed area
without permission or authority for such
time as may be necessary to ensure his orderly
removal therefrom; and
Amendment of section 40.
10
-
(3)
remove therefrom any person who is in
a closed area without permission or
authority.
(4) In this section, "guard" means -
(a)
any member of the Essential Services Corps;
(b)
any person appointed to guard a closed
area by the Governor or the Commander
British Forces; and
(c) any person appointed to guard a closed area
by such authority or person as may be
specified for that purpose by the Governor
in any order made under section 36.".
23. Section 40 of the principal Ordinance is amended -
(a) by deleting "any magistrate" and substituting the following
"the Commissioner of Police";
(b) by inserting after "to appoint" the following -
"in writing".
Amendment of section 44.
24. Section 44 of the principal Ordinance is amended --
- 11-
(a) by deleting subsection (1) and substituting the following
"(1) When a person is required to show cause
under section 43, the magistrate shall set forth
in writing the order proposed to be made (hereinafter
in subsections (2), (4), (6) and (7) referred to
as the proposed order) in which shall be stated -
(a) the cubstance of the information received;
(b)
the amount of the bond to be executed}
(c) the date of commencement and expiry of
bond;
(a) the number, character and class of sureties,
if any, required.";
(b) in subsection (2) by deleting "the order" and substituting
the following -
"the proposed order";
(c) in subsection (4) by deleting "the order" and substituting
the following
"the proposed order";
(a) in subsection (5) by deleting "in pursuance of an order
as aforesaid" and substituting therefor the following -
"in accordance with subsection (3)";
12
(e) in subsection (6) by deleting "the order" and substituting
the following
"the proposed order";
(f) in subsection (7) by deleting "the order" and substituting
the following
"the proposed order";
(g) in subsection (8) by inserting after "A bond executed" the
following -
"under this section";
(h) in subsection (12) by deleting "accordingly" and substituting
the following
-
"in accordance with subsection (10)".
Repeal of section 49.
25. Section 49 of the principal Ordinance is repealed.
Addition of
new section 50A.
26.
The principal Ordinance is amended by adding, after section 50,
the following new section
-
"Obstruction.
50A.
Any person who obstructs
-
(a) any member of Her Majesty's forces;
(b) any member of the Royal Hong Kong Defence Force; or
(c) any other person,
exercising any powers or performing any duties conferred
or imposed on him by this Ordinance or by any orders,
1
13
directions, requirements or notices made thereunder shall
be guilty of an offence and shall be liable on summary
conviction to a fine of one thousand dollars and to
imprisonment for six months.".
Amendment of Cap. 332.
27, Part VII of the Trade Union Registration Ordinance is amended
(a)
in the heading, by deleting ", INTIMIDATION";
(b) in section 46, by inserting, after "Ordinance", the
following -
"or in section 27 of the Public Order Ordinance"; and
(c) by repealing section 47.
14
Explanatory Memorandum
This Bill makes a number of amendments to the Publio Order
Ordinance which are designed to clarify some provisions about which
doubt
has been expressed and to relax others in order to give better
protection
to the public against any misuse of powers or against the possible con-
viction of persons innocently involved in circumstances which constitute
offences under the Ordinance.
2.
Clause 2 replaces the definition of "meeting" in the principal
Ordinance so an to limit it only to those meetings where there is a
degree
of organization and to exclude those meetings which are held for any
statutory purpose, such as creditors' meetings; the definition will
cover
the situation where there is no prior organization but a person assumes
control or leadership of a group in a public place.
3.
It is considered desirable that the power conferred on a police
officer by subsection (1) of section 3 of the principal Ordinance should
be exercised on the basis of reasonable belief rather than on the basis
of the opinion of the police officer.
Similarly, subsection (2) of
section 3 is amended so as to ensure that when a police officer enters
any premises or place it should be "reasonably" necessary for him to do
so. (Clause 3).
4.
Clause 4 amends section 7 by providing that an application for
the licence of the Commissioner of Police for a funeral procession shall
be made not less than two days before the procession is held. The clause
also exempts funeral meetings and meetings held for social purposes in a
restaurant from the need to be licensed.
5.
By section 9 of the principal Ordinance, every licensee of a
licence obtained under section 7 shall be present at the public meeting
or public procession from the first assembly to the final diopercal
thereof, and shall comply with any police directions regarding such
meeting or procession throughout the period of assembly, conduct and
dispersal thereof and the period of one hour following the final
dispersal
15-
thereof. It is now felt that those conditions can cause problems when
the
licensee is unavoidably absent from the meeting. Accordingly, clause 5
proposes to amend scotion 9 by providing a defence for a licensee who in
absent from a meeting by reason of illness or other unavoidable cause,
Furthermore, the requirement that police directions be complied with
during
the period of one hour after the final dispersal of a meeting or
procession
is deleted.
6.
Clause 6 amendo subsection (2) of section 11 so as to oblige
police officer, when exercising the powers conferred by the subsection,
to
act only on reasonable belief.
7.
Clause 7 makes it clear that paragraph (a) of section 12(2) applies
only to meetings or processions. for which a licence is required under
Bection 7. Also, subsection (3) is amended so as to afford to a person
charged with an offence under the subsection the defence that ho did not
know that the meeting, procession or gathering was unlawful; this is
intended
to confer protection on any innocent bystander who becomes
unintentionally
involved in an unlawful assembly.
8.
Section 14 is amended so as to enable a person charged with
possessing an offensive weapon at a public meeting or procession to
plead
"lawful authority or reasonable excuse" as a defence. (Clause 8).
9.
Subsection (3) of section 15 is amended in such a way as to ensure
that only those who promote, direct, organize or manage a prohibited
public
gathering after the issue of the prohibition by the Commissioner of
Police
shall be guilty of an offence under that subsection (Clause 9).
10.
The definition of an unlawful assembly in section 18 is altered by
clause 10 to show that there must be a disorderly element in the conduct
of
an assembly before it becomes unlawful.
11.
The offence of forcible entry under section 23 will not be
committed by a man who enters his own premises. (Clause 11).
12.
At present, section 25 applies to any fight in a public place,
which might include a boxing match. This section is confined to unlawful
fights by clause 12.
13.
In section 26 an objective test will have to be applied in
deciding whether an accused has committed an offence under the section.
(Clause 13).
16-
14.
Section 27 of the principal Ordinance, which deals with
intimidation, is repealed by clause 15 and replaced by an amalgam of
section
47 of the Trade Union Registration Ordinance and paragraph (a) of the
repealed
section. It is considered that the present section is too wide in its
scope
and that the mischief aimed at can be adequately dealt with under the
new
provision.
15.
The offence of intimidating assembly is thought to be superfluous,
because a person who takes part in such an assembly can be prosecuted
for
taking part in an unlawful assembly. Consequently, clauses 16 and 17
seek to
repeal sections 28 and 30.
16.
The effect of the amendment to section 31 of the principal Ordinance,
contained in clause 18, is to require the Commissioner of Police to
serve
notice of cancellation of a curfew permit on the permittee.
17.
Section 32 enables a person charged with carrying an offensive
weapon during a ourfew to put up the defence that he had a reasonable
excuse
for so doing. This adds to the existing defence of lawful authority.
(Clause
19).
18.
Clauses 20, 21 and 22 amend Part VII of the principal Ordinance,
which deals with closed areas. In future a closed area order made under
section 36 must be published in the Gazette although the order will be
effective from the day on which it is made. The proposed subsection (2)
to
section 36 deals with the closing of closed areas by the erection of
barriers
or other means, The new subsection (2) of section 37 provides for the
issuing
of permits to enter non-military closed areas by the Commissioner of
Police
or by such other authority or person as is authorized for that purpose
in
the closed area order. The powers of arrest contained in subsection (1)
of
section 39 are extended to enable a guard (defined in the new subsection
(4))
to arrest any person about to commit any offence within a closed area.
The
definition of "guard" will ensure that, in an emergency, closed areas
may be
guarded by persons other than police officers and members of the armed
forces.
Section 40 is amended so as to empower the Governor to authorize
the Commissioner of Police to appoint, in writing, any person as a
special
conatable. (Clause 27).
19.
20.
Clause 24 makes a number of minor drafting amendments to section 44.
17
21.
Section 49 of the principal Ordinance is repealed by clause 25.
Conferred This contaret unusually wide powers of search and entry on
police officers
and it is now considered that the powers conferred by the Police
Ordinance
and at common law should prove sufficient.
22.
Clause 26 adds a new section 50A, which makes it an offence for
a person to obstruct a member of Her Majesty's forces, a member of the
Royal Hong Kong Defence Force or any other person acting under a power
or
duty conferred or imposed on them by the Ordinance. In Hong Kong
military
personnel in times of disturbances work in conjunction with the police
and it is considered desirable that they should have a measure of
protection
from obstruction.
23.
Clause 27 repeals section 47 of the Trade Union Registration
Ordinance, the substance of which is now contained in subsection (1) of
the new section 27.
Attorney General,
18
Public Order (Amendment) Bill.
Comparative Table.
Clause in Bill
Clause 2
"Justice's" Report
Paragraphs 4 and 6.
Clause 3(a)
Paragraph 7.
Clause 3(b)
Paragraph 8.
Clause 4
Clause 5
Clause
Paragraphs 6 and 9.
Paragraphs 10 and 11.
Paragraph 12.
Clause 7
Paragraph 14.
Clause 8
Paragraph 5.
Clause 9
Paragraph 17.
Clause 10(a)
Paragraph 18.
Clause 10(b)
Paragraph 20.
Clause 11
Paragraphs 23 and 25.
Clause 12
Clause 13
Clause 14
Clause 15
Paragraphs 28 and 29.
Papragraph 30.
Amendment consequential upon repeal of
section 28.
This clause is based on section 47 of the
Trade Union Registration Ordinance, Cap. 332 and previous section 27(a).
Paragraph 35.
Clause 16
Clause 17
Paragraph 36.
Clause 18
Clause 19
Paragraph 37.
Paragraphs 5 and 40.
Clause 20
Clause 21
See Emergency (Closed Areas) Regulations 1967.
Clause 22
Clause 23
Clause 24
Clause 25
Clause 26
Clause 27
Paragraph 43.
Paragraphs 46 to 50.
Paragraphs 51 and 52.
Emergency (Principal) Regulation 113,
Repeals.
COMMENTS
ON
PUBLIC ORDER (AMENDMENT) BILL.
8/2/1
The attached Bill has been prepared to take into account
some of the criticisms of the Public Order Ordinance which were made
by the Hong Kong Branch of Justice in their Report on it. The Bill
also enacts, with modification, some provisions which are at present
contained in Emergency Regulations but which are considered to be needed
in permanent legislation. Account has, of course, also been taken of
the Secretary of State's Saving Despatch No. 406 of 27 June, 1968.
References to "the Note" are to the Note by the Attorney General on the
Justice Report; this Note was forwarded to the Secretary of State's
Legal Adviser on 16 February, 1968 and is referred to in Saving Despatch
No. 406.
2.
The definition of "meeting" in section 2 of the principal
Ordinance is replaced. In paragraph 4 of the Note it was proposed to
exclude from this definition meetings convened or held "for the purpose
of carrying out any duty or exercising any power imposed or conferred
by any Ordinance". This has been done by paragraph (ii) of the new
definition.
As suggested in paragraph 6 of the Note, the definition is
also amended to make it clear that it is intended to cover only meetings
where there is a degree of organization; the word "held" has been
deleted
and "organized" substituted therefor. Paragraph (b) of the new
definition
is designed to make it clear that organization of a group in public,
without any prior planning, will make that group into a meeting for the
purposes of the Ordinance.
3. Paragraph 5 of the Note agreed that the definition of "offensive
weapon" should be amended by deleting the words "or suitable". However,
the Commissioner of Police has objected very strongly to this, on the
grounds that in Hong Kong the commonest offensive weapons used are the
cargo hook and the mineral water bottle, neither of which are "made" or
"adapted" but both of which are eminently "suitable" for causing injury.
In this connection, the following extract from the judgment of Goddard
L.C.J
2
in Woodward v. Koessler 19587 3 All E. R. 557 & 558 is relevant -
"If we were to hold that this young ran with this shocking
weapon was not in possession of an offensive weapon for causing
injury, when he went up to an elderly ran and said "can you sea
thie?", it would be driving a coach and four through this useful
act Prevention of Crize Act, 19537. It would hardly evor be
posible to get a conviction. Wo know well why it is rather an
obscura definition, viss because one of the weapons that these
young hooligans like to use in a bicycle chain. The bicycle chain
is not made for injury, but if a boy in swinging a bicycle chain
and saying "look out", that is using an offensive weapon.".
The definition of "offensive weapon" in the U.K. Act does not use the
worda "or suitable". It follows that without the words "or suitable", a
person cannot be charged with possessing an offensive weapon if the
article
is neither "zade" nor "adapted" for causing injury unless the
prosecution
can prove intent. It is submitted that in Hong Kong such a burden would
seriously hamper law enforcement. It is proposed therefore that this
definition should rerain untouched but that those sections of the
Ordinance
which create offences in relation to the possession of offensive weapons
should take available to an accused the defences of "lawful authority or
reasonable excuse" which, it is thought, will provide the necessary
protection for the person who is innocently in possession of dangerous
articles. The relevant sections are 14, 32 and 33.
4.
In the lote the amendment to section 3 suggested by Justice
was opposed on the ground that it would be unwise to fetter the power of
police officers to act quickly and decisively in the recoval of flags
which right lead to trouble. However, the position has been reconsidered
in the light of the corrents in Saving Despatch No. 406, and the
proposed
arendront is included in clause 3. Subsection (2) is acended as proposed
in the Note.
5.
Clause 4 of the Bill proposes to acend subsection (5) of
section 7 by providing that meetings held for social purposes in a
restaurant de
restaurant de not require the licence of the Commissioner of Police.
This
accords with the views contained in the Note, which also supported the
Consult
Poker admin
3
suggestion that funerals should be exempted from the need to obtain a
licence, The Commissioner of Police argued that, as funeral processions
can becode a danger to public security, and a covero traffic problem, a
peadure of control over them is desirable. The Bill therefore exempta &
funeral meeting from the need for any licence, but requires one to he
obtained, on application not loss than two days before it, for any
funeral
procession.
6.
Report.
7.
Clause 5 of the Bill gives effect to paragraph 10 of the Justice
faragraph 12 of the Justice Report objected to the words "in hia
opinion" as used in section 11(2) in relation to police officers and
suggented substituting "reasonably" for these words. The Note contended
that, in our circumstances, it is better to have a police officer
disperse
a reeting too hastily rather than too tardily and that it would be
No comments yet.
Private notes are available after approval.