to the Trade Union Registration Ordinance.
(9069) Dd.032652 3m 2/67 G.W.B.Ltd. Gp.863
Hong Kong Dept.
PARLIAMENTARY QUESTION
for ORAL answer on
The draft reply should reach the Parliamentary Office through your
Under-Secretary by
34
Koon on Tues, 4/2
La* Mr. Frank Allaun (Salford, East): To ask the
Secretary of State for foreign and Commonwealth Affairs, what changes
have now been made in the Hong Kong Public Order Ordinance regarding the
extent to which the burden of proof is placed on the authorities.
10 February, 1969.
MR. MAURICE FOLEY
I would refer my honourable Friend to the reply which my honourable
Friend the Parliamentary Under Secretary gave to him on the 19th of
December, 1968.
Col. 451
Vol. 775
1
REFERENCES
هل
PQ Flag ANWRX/31
Flag
HWB
Flag
2
Hansard Vol.755, No. 26, Col. 249: Question by Kr. Rankin, 5 December,
1967
Hansard, 12 December, 1967, Cols. 178-179: Petition tabled by Mr. Rankin
Hansard Vol.775, Col.451 W:
Question by Mr. Allaun, 19 December, 1968
34 wil (9)
NOTES FOR SUPPLEMENTARIES
The examination of the Ordinance has not yet been
completed and it is not possible to give any indication of
what changes are likely to be made
2. The legislation is not designed for dealing with
emergencies. It strengthens and brings up to date the law relating to
public order on lines to be found for the most part in legislation in
other territories.
3. The only emergency regulations which have been incorporated in the
Ordinance are those dealing with the
offences of intimidation and intimidating assembly.
4. It is true that these particular provisions are based
on Southern Rhodesia law, but it should be noted that the law in
question was enacted in 1960, that is, long before the unilateral
declaration of Independence in that country.
5.
If the Member mentions specific sections of the Ordinance
to illustrate his reference to the burden of proof, it can be stated
that our consultations with the Governor cover provisions
raising this general issue.
I
with 9
Flag C
Flag D
Kr. Moreton
Parliamentary Office
This Question by Hr. Frank Allaun is a direct follow up to a Question
which he asked on 19 December, 1968 and which was answered by Mr.
Whitlock. Since that Question was answered, we have received from the
Governor the draft of a Bill to amend the Public Order Ordinance and
that draft is now being examined by the Law Officers. This examination
is liable to be somewhat protracted and I think that it would be unwise
to refer to the receipt of the draft Bill from the Governor in reply to
this Question. The safest course would be to give a formal answer that
there is nothing to add to the reply given to the previous question on
this subject.
2.
The Hong Kong Public Order Ordinance (copy attached) came into operation
on 17 November, 1967 at the height of the disturbances which took place
in the Colony during the t year. Its purpose was to consolidate into one
Ordinance the various provisions dealing with public order and to
strengthen the law where experience had shown this to be desirable.
Active work on the preparation of the Ordinance had been in progress for
at least two years prior to its
enactment. Account was taken in its drafting of the experience gained
during the 1967 disturbances, but the Ordinance was not designed for
dealing with emergencies. of the considerable amount of emergency
legislation which it was necessary to introduce in Hong Kong as a result
of the disturbances, the only emergency regulations which have been
incorporated into the Ordinance are those dealing with the offences of
intimidation and intimidating
assembly. These have been powerful weapons in the hands of the
local communists in the overcrowded conditions of Hong Kong. The
provisions to deal with them were included only after the most careful
consideration and because, so long as communist organisations continue
to exist in Hong Kon, there will always be a danger of
intimidation.
/ 3.
Flag B
3. The Governor sought the views and advice of the Commonwealth Office
on the draft Public Order Bill before its enactment and the matter was
given careful and prolonged examination in the
Commonwealth Office over a period of several months before the draft
Bill was agreed to.
4. Shortly after the enactment of the Ordinance, the Reform Club of Hong
Kong (an organisation of some five thousand paid-up members) submitted a
petition to Parliament on the subject of the Ordinance, through the
medium of Mr. John Rankin, K.P. (see attached Hansard extract). The
petition asked for the Ordinance
to be disallowed.
5.
The Ordinance was also the subject of considerable criticism by
the Hong Kong branch of "Justice" (the British section of the
Their
criticism was International Commission of Jurists). levelled mainly at
the increased powers given by the Ordinance to Police Officers in order
to strengthen the hands of the latter in
and
at certain dealing with lawless elements in the community;
provisions which create offences in connection with unlawful assemblies.
"Justice" maintained that certain of these provisions (e.g. Section 12)
were such as to do away with the requirement that guilty intent should
exist before an offence could be committed. It may be this kind of
provision which Mr. Allaun has in mind in asking his Questions.
6. Certain of the points raised by "Justice" were considered by the
Commonwealth Secretary's Legal Advisers to have some substance and we
have been in correspondence with the Governor with a view to securing
certain amendments to the Ordinance. It is as a result of this
correspondence that the Governor has sent us the draft Amending Bill
referred to in paragraph 1 above.
7. In Hong Kong's densely crowded conditions (five thousand persons per
acre in certain urban areas), large crowds can gather in a matter of
moments and it is easy for trouble makers to stir up
/ disorder
·
disorder.
In these confined and overpopulated areas the task of the Police Force
in controlling disturbances is greatly increased. In circumstances such
as these, and especially so long as there is a militant communist
element within the community, it is necessary to take special measures
for the preservation of public order at all times. The Public Order
Ordinance was designed to meet this need on a permanent basis.
3 February, 1960
W. S.
(7. S. Carter) Hong Kong Department
tolarch
3/2
II K
880
879
Oral Answers
10 FEBRUARY 1969 Mr. Dodds-Parker: As a step towards this, in view of
the friendly co-operation of Malta in the past, would it be possible for
Her Majesty's Government to ex- tend an invitation to them to join the
European Free Trade Area?
Mr. Mulley: I do not see that ques- tions about the Free Trade Area
arise from a Question about N.A.T.O.
Oral Answers
Mr. Mulley: It would be a little early to publish a White Paper, but I
will certainly pass on my right hon. Friend's suggestion to my right
hon. Friend the Foreign and Commonwealth Secretary. I very much hope
that we can make pro- gress, but it is as yet too early to say until the
new machinery has been firmly established.
HONG KONG (PUBLIC ORDER ORDINANCE)
+34. Mr. Frank Allaun asked the Sec- Secretary of State for Foreign and
Common. wealth Affairs what changes have now been made in the Hong Kong
Public Order Ordinange regarding the extent to which the burden of proof
is placed on the authorities.
WESTERN EUROPEAN UNION (LUXEMBOURG MEETING) 32. Mr. Dodds-Parker asked
the retary of State for Foreign and Common- wealth Affairs what further
proposals to create institutionalised relations between the countries of
the European Economic Community and the United Kingdom were agreed at
the recent Western European Union meeting at Luxembourg.
Mr. Mulley: Six delegations agreed that before taking any decisions on
certain foreign policy questions they will consult with their Western
European Union partners to further the adoption of posi tions agreed and
harmonised to the fullest possible extent. The French delegation said
that it would make its views known later.
We regard this outcome as opening the way to a co-ordinated European
position on foreign policy questions. Her Majesty's
Government intend to do all we can to ensure progress in this direction.
Mr. Dodds-Parker: Might not the pro- posal that N.A.T.O. ambassadors be
used as a standing group serve this purpose?
. Mr. Mulley: I do not think that the ambassadors within N.A.T.O. would
because be appropriate, necessarily be N.A.T.O. is not a strictly
European organisation. The machinery proposed is that of the Council of
Western European Union, which is most appropriate for this purpose. As
hon. Members will have noted, my right hon. Friend the Foreign and
Commonwealth Secretary has asked for early consultations in this area on
the whole question of the Middle East.
Mr. Philip Noel-Baker: In view of the great importance of this new
departure, will my right hon. Friend publish a White Paper explaining
exactly what was agreed and the trend of the discussion that took place?
12 C 16
Mr. Foley I would refer my hon. Friend to the reply which my hon. Friend
the Parliamentary Under-Secretary gave to him on 19th December, 1968.
[Vol. 775, c. 451.]
Mr. Allaun: Did not the reply say that certain changes were under con
sideration? Was this a pious hope or is there to be any amendment to
ensure that the burden of truth lies with the auth- orities?
Mr. Foley I assure my hon. Friend that there is no pious hope. It is a
reality. The question of time has been considered in examining the
Ordinance and bringing it up to date in terms of the representations
which have been made to us so that we may ensure that the matter is got
right and is amended adequately.
Mr. Rankin: Can my hon. Friend say how many people in Hong Kong are
still in gaol without any charge having been preferred against them?
Mr. Foley Not without notice.
Mr. A. Royle: Will the Minister resist pressure for the Hong Kong
Government to alter or amend the Emergency Regula- tions until the
Governor is satisfied that the situation is good enough to enable him to
make such alterations?
Mr. Foley: We are talking about two distinct matters. There are some
ele- ments of the Emergency Regulations included in the Ordinance.
Under ex- amination is the Ordinance itself.
RECEIVED IN ARCHIVES ING.31 1 2 FEB 1969
HKK 14/15
! DATE TO FEB 69.
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COL....880
VOL
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From the Governor, Hong Kong
SAVING RANK DESPATCH
Foreign & Commonwealth Affairs
To the Secretary of State for xke CaloriNE SC
eated to:-
Kepeated to:-
Date......
3rd
March, 1969.
My Reference......CR...3285/57-
II
FOREIRE AN
5 MAR 1969
No.....2.1.9...
No.
No.
Your Reference.
UNICATIONS DON'
Public Order Ordinance
I should be grateful to know when your comments on the
Bill forwarded with my Saving Despatch No. 4 of 3rd January, 1969, may
be expected.
AT/mjc
RECEIVED N ARCHIVES N.31
1-5 MAR 1969
HKIL 14/15
12/2
FIF.
NEXI
REF.
HIC
10
Reference.......
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3
8) on Part A of HWB 14/34
9 & 12 on
above file. Behind 10 on above file.
22)on above file.
26/E/on
Part B on above file.
(43) on heart B of atom file
42/2/pion
Fart B on above file.
50) on the above file
Mr. Cruchley
The Hong Kong Public Order Ordinance was enacted in November 1967. Prior
to its enactment, the draft Bill had formed the subject of prolonged
consultation with the Commonwealth Office, and we expressed doubts to
Hong Kong on certain of its provisions. Hong Kong came back on us pro
osing certain modifications to most of which we agreed. The Bill was
subsequently enacted.
2 =
There was considerable criticism of the Ordinance which formed the
subject of a pέrtition to the House of Commons which was laid on the
table of the House by Mr. John Rankin, M.P. on 12 December 1967; but the
major criticism came from the Hong Kong branch of "Justice" who prepared
a detailed report on the various provisions of the Ordinance, which they
sent to the Minister via their London Head Office. This memorandum
reached us after the enactment of the Ordinance but before notification
of Her Majesty's non-disallowance had been conveyed to Hong Kong. The
Minister replied to the London headquarters of Justice, that he did not
consider that the memorandum made out a case for taking the very serious
action of recommending disallowance, but that it did raise certain
points which would be brought to the notice of the Governor as soon as
the memorandum had been examined in detail.
3.
In the course of the detailed examination of the memorandum in the
Commonwealth Office, we received the comments of the Attorney General,
Hong Kong, on the various points raised in the memorandum. These
comments were taken into account by our Legal Advisers in the course of
their examination of the memorandum, and in June 1968, after the
examination had been completed, we informed Hong Kong that subject to
certain comments which our Legal Advisers had made on certain paragraphs
of the memorandum, the latter were in general agreement with the views
expressed by the Attorney General, Kong Kong. We asked the Governor if
consideration might be given to amending the Ordinance in the light of
those views.
raissa
8 of
4. The enclosure to 8)of this file is the draft amending Bill which the
Hong Kong Government now wish to enact, to give effect, as far as they
deem practicable, to the criticisms raised by "Justice" and the queries
raised by our own Legal Advisers. You will note from (8)that the
Governor is asking whether we would be prepared to re-consider our
earlier advice on certain of the queries raised by our Legal Advisers.
We have therefore now to decide whether we are prepared to agree to the
enactment of the draft Bill behind (8) subject to certain amendments
which the Governor asks to be made.
17
/There is
5. There is a mass of paper related to this matter and for ease of
reference I am attaching at front cover, copies of the relevant
documents to which you will wish to refer when considering the draft
Bill. These documents are: -
(1) A copy of the Public Order Ordinance
as enacted in November 1967.
(2) A copy of the memorandum prepared by
"Justice".
(3)
(4)
(5)
A copy of the Attorney General,. Hong Kong's views on that memorandum.
A copy of the saving despatch to Hong Kong of June 1968, set out the
views of our own Legal Advisers on Justice's memorandum and the Attorney
General's views.
A copy of the draft Bill which Hong Kong now wishes to enact together
with the usual supporting Explanatory Memorandum by the Attorney
General.
(6) A copy of the Attorney General's, Hong
Kong, further comments on the Bill in
the light of the views expressed both by "Justice" and by our own Legal
Advisers.
(
6. It seems to me that the amend Bill goes a considerable way towards
meeting the various criticisms levelled at it, but as you will see,
there remain one or two points on which the Governor asks us to
re-consider our advice although he has in fact given effect to that
advice in the draft Bill. I shall be grateful to learn whether you can
accept the draft Bill with the amendments asked for by the Governor, or
whether you consider that we should adhere to the advice previously
given on the one or two outstanding points of difference between us and
Hong Kong.
9 January 1968
心
A. W. Gaminara)
Hong Kong Department
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Mr. Gaminara
Hong Kong Dept.
K. 247
Mr. Cruchley, before he went on leave, asked me to deal with these
papers as it was I who dealt with the previously.
2. I have the following comments to make on the Bill and the connected
paper
(1) Although the Attorney-General had agreed, in his note on Justice's
comments, that the definition of "offensive weapon" should be amended,
in fact it has not been amended in this draft Bill. The reasons for not
amending it are given in paragraph 3 of the comments on the Bill and
seem to me to be convincing. Therefore I suggest that we should agree to
the definition of "offensive weapon" not being amended.
(2) Clause 7 has been amended in relation to funeral processions. The
clause now provides that in the case of funeral processions the
application for a licence must be made two days before the procession;
and an actual funeral has been excluded from the provisions of the
clause dealing with public meetings. These provisions now presuppose
that it would always be possible to apply for a licence to hold a
funeral procession two days before the procession. I would have thought
this a doubtful presumption. Further it seems to me that the powers
given to the Comissioner of Police under clause 7(4) to refuse a licence
are far too wide and some of the grounds on which a licence may be
refused are not appropriate in the case of funeral processions. I agree
that, particularly in a place liko Hong Kong, pretty strict control is
required over funeral Frocessions but I am still of the view that clauso
7 does not provide the appropriate control. I recommend that the
Governor be asked to have this question reviewed it is for the liong
Kong Government to suggest a formula and not for us I think.
-
2
3
(3) Although the Bill includes an amendment to section 3(1),
substituting for the phrase "in the opinion of such police officer" the
phrase "if such police officer reasonably believes". nevertheless the
Attorney General does not wish to make a similar amendment in respect of
section 11(2); and he gives the same reasons on which he originally
grounded his objection to making ts the amendment to section 3(1). It
seems to me that there is no distinction in principle between section
3(1) and section 11(2). Perhaps you would consider consulting the
Secretary of State's Police Adviser to see if he agrees with the views
expressed by the Hong Kong Commissioner of Police.
/ (4)
i
-
(4) Hong Kong's proposed addition to section 12(3)(a) does not really
cover the point made by Justice and accepted by the Attorney-General in
his note on Justice's comments under the heading paragraphs 13 and 14. A
person may be in an assembly and know that it is an unlawful assembly
and, although desiring
to get away, be unable to do so owing to the pressure of the
crowd. Yet even with the amendment pro osed in the Bill he
would be guilty of an offence. If this is the only amendment to
be made to this provision, Justice will have the opportunity of saying
by making an amendment you accept our criticism, but your amendment loes
not deal with it. I suggest the Hong Kong Government be asked to give
further consideration to section 12(3).
(5) Justice suggested that in section 18(1) the words "noisy, disorderly
or intimidating" should qualify the word "manner". We suggested that it
would be sufficient to refer to conduct in
a "disorderly manner" on the ground that the word "noisy" was too vague
and that intimidation is covered by the word "disorderly". The Com
issioner of Police points out, in my view rightly, that a group of
people could intimidate others without acting in a disorderly manner. I
suggest that the solution is to use the phrase "disorderly or
intimidating manner".
We suggested that there should be an element of mens rea in order to
establish the offence of riot under section 19. I would have thought
that section 19 was aimed at persons actively taking part in an unlawful
assembly, that is to say people who would be fairly easily noted by the
police and not aimed at those who willingly or unwillingly are caught up
in the assembly.
There are other provisions of the law to catch the latter categories.
Here again perhaps you would consider consulting
the Secretary of State's Police Adviser as the Attorney-General grounds
his objection to making the amendment on the opposition of the police.
Room 44/2, Downing Street (West),
Main B, Ext. 1090.
f. Frattan. Bellens
a.1.
(A. Grattan-Bellow) 10th March, 1969
Reference.....
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Mr. Gaminara
Section 11 (2)
I agree that there is no distinction in principle between section 3(1)
and section 11(2) and consider that both should be amended to read "if
such police officer reasonably believes". It should not be difficult for
a police officer of inspector rank or above to make up his mind at a
public meeting or gathering whether or not he has sufficient grounds on
which to act. He will have many factors to assist him in this respect
and with the comfort of section 53 supporting him he should be able to
act quickly and decisively with no doubt in his mind about his powers. I
think it is important in this type of case that the onus of showing that
reasonable action was taken should rest on the police officer.
Section 19
In my view the "unlawful assembly" referred to in this section should be
that as defined in section 18(1) and should not embrace the "unlawful
assembly" (which I would have
preferred to have termed "unauthorised assembly") defined in section 12.
I agree that under this section it would be possible for
non-participants in a riot to be arrested with active rioters but once a
riot has started I do not think we can expect the police to separate the
two on the spot, and in the heat of the moment. I agree with the
Commissioner's views.
дне
L. A. Hicks
Deputy Overseas Pelice Advicer
13 March, 1969
19
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1
|
7/E
Reference
Sir Arthur Grattan-Bellew
Please see the Deputy Police Adviser's minute of 13 March with reference
to your own minute of 10 March.
2.
I attach a draft Saving Despatch to Hong Kong which deals with the
points raised by the Governor in his Saving Despatch at (8) and with
points which we raised in our Saving Despatch at (50). I particular
attention to paragraph 7 of the Despatch which relates to the point
raised in the first sentence of paragraph 2 of the Deputy Police
Adviser's minute. This is a point which we had not previously taken,
although it is raised in paragraph 20 of "Justice's" memorandum.
3.
There are one or two other matters which do not appear to have been
dealt with in minuting and which I mention here merely to make sure that
no further action is required on them:
1.
(a) Section 11(3) of the Ordinance:
(paragraph 13 of "Justice's" memorandum) Does this section not require
an amendment similar to that provided to Szatén 11(2) of the Ordinance
by clause. 6 of the draft Bill?
(b) Section 12(2): (paragraph 14 of
"Justice's" memorandum)
fe did not deal with "Justice's" criticism that this section makes an
unlicenced or a disobedient assembly of three or more persons an
unlawful assembly without any need to show the possibility of a breach
of the peace, which is otherwise required under section 18. Presumably
it is con- sidered unnecessary to do this since the assembly is in any
event unlicensed or disobedient?
(c) Section 27: (paragraph 32(1) of
"Justice 's" memorandum).
(a)
This section imports into the substan- tive law certain provisions of
emergency legislation. Hong Kong do not appear to have commented on
"Justice's" suggestion that the words "he knows or ought to know" should
be inserted in every case where the mere possibility of intimidation is
an ingredient of an offence.
Section 37: (paragraph 42 of "Justice's" memorandum)
Does not this section require an
amendment similar to that provided to section 31 by clause 18 of the
draft Bill?
Perhaps you would be good enough to vet the draft Saving Despatch and to
say whether or not any of the above points are worth pursuing. Will you
also please advise whether you consider that we can. at this stage, give
the Governor any sort of conditional undertaking that the draft Bill. if
-
1 -
-
amended to our satisfaction in the light of the comments in our draft
Saving Despatch, will be non disallowed. It seems to me to be rather a
difficult thing to do at this stage although it would be desirable to do
it if we could.
Mi
18 March, 1969
(A. W. Gaminara) Hong Kong Department
Reference
HKK 14/15
GN
4271
+
r. Gaminara
Reference the third paragraph of your minute of
18 March:-
2.
(a)
(b)
(0)
(a)
section 11(3) does not require an amendment similar to that proposed to
be made to section 11(2) by clause 6 of the draft Bill;
paragraph 14 of "Justice's" memorandum, although at the beginning of the
paragraph there is a reference to subsection (2), is in fact concerned
with the mendment of section 12(3)(a) of the Ordinance. Clause 7(b) of
the Bill makes the required amendment to section 12(3)(a);
it is proposed to repeal section 27 of the Ordinance and to replace it
by a modified form of section 47 of the Trade Union Registration
Ordinance. This should, I think, satisfy "Justice";
under the hending paragraph 42 of the notes on the "Justice's" report,
it was stated that section 37 could be amended to provide for reasonable
notice. Consequently, when preparing the Savingram at (50) in
HWB 14/34, reference was not made to section 37 as it was assumed that
the section would be amended so as to provide for reason- able notice. I
suggest that a paragraph should be added to your draft Saving despatch
drawing the Governor's attention to this
omission on the lines of the addition that I have made.
Apart from this one addition, 1 have no comments to make on your draft,
af fratter. 1 Buller
(A. Grattan-Bellew)
20 arch, 1969
!?/
11
Mr. Carter
Reference
16
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Flag B...
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22
Pre
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Papers were recently submitted which indicated the extent to which
emergency legislation was still in force in Hong Kong: and the extent to
which such legislation either had been or was proposed to be embodied in
the permanent law of the Colony. Sir Arthur Galsworthy has indicated
that
I Lord Shepherd should be kept informed of any new
legislation designed to incorporate any provisions of emergency
legislation into the permanent law. We are now considering on this file
one such piece of draft legislation in the form of the attached draft
Public Order (Amendment) Bill which was recently sent to us by the
Governor. However, it will be seen from what follows that there are
other reasons why this particular Bill may be of interest to the
Minister.
2.
The Hong Kong lublic Order Ordinance. was brought into operation in
November, 1967 at the height of the disturbances in the Colony. Its
purpose was to consolidate into one Ordinance the 1 various provisions
dealing with public order and to strengthen the law where experience had
shown this to be desirable. Work on the preparation of the Ordinance had
been in progress for more than two years prior to its enactment; account
was taken in its drafting of the experience gained during the 1967
disturbances, but the Ordinance was not designed for dealing with
emergencies. The Governor sought the views of the Department on the
draft Bill before ita enactment and the matter was given careful and
prolonged examination in the Commonwealth Office over a period of
several months before the draft Bill was agreed to.
3.
No comments yet.
Private notes are available after approval.