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19263
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FILE NO. MK14/15
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TITLE: HONG KONG: LEGAL AFFAIRS THE PUBLIC. ORDER ORDINANCE.
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YOU HONG KONG
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(Date)
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Governor Hong Kong
..(date)
זיויוויו ויו
-----------qapış.........POPPER-P+P+MPYA PREPONA Pants Trattenprannomy PAPE
repeated for information to
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Following Parliamentary Questions
Frank Allawn are
пи
by
for oral reply
Thursday 19 December: To ask the
Secretary of State :-
(1) whether he will amend the Hong
Kang Public Order
Ordinance so
LILINI+
as to place the burden of proof
and
in
--------
what, evenmstances, the Ordinance
upon the Authorities;
is
Copies to:-
now intended.
to be used:
(2) how
H.K.D.
EX) #12001
71 2
---------
many of those imprisoned
or detained following the disturbances in Hong Kong in 1967 have
Teen
L
(10887) D43930053154m (77%xorta) 1/68 G.W.B.Ltd.Gp.163
been kept in solitary confinement,
and for how long; and how
Que
many
at present held
Solitary confiriement.
in
2. Gratiful if material for replies
and supplementaries may
us not later than
Comwow Wednesday
reach
1000 hours
18h December
怔
17.12,68
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------‒‒‒‒‒‒Debbiek veiktHHHHIEFTATAymany framed DNANTE
Our telegram No. II.1657.
ALLOUN
Parliamentary. Questions by Frank. Allows.
Grateful if you
will include in
your reply
an explanation of what is involved in
17/12
Distribution:--
Filet E
Copies to:- HKD
腺
Q.
(C
Separate confinement"
in Hong Kong
as
provided for
from "Solitary
Prisons legislation.
What extent does it differ from
confinement
મ
The expression "solitary confinement"
is not resed
ها
in
Presions legislation.
your
in fact any difference belevens,
there in
the two?
I
CONFIDENTIAL
TOP COPY
CYPHER/CAT A
IMMEDIATE FOREIGN AND COMMONWEALTH OFFICE TELEGRAM NUMBER 1661
CONFIDENTIAL
TO HONG KONG 17 DECEMBER 1968.
(!КК 14/15)
OUR TELEGRAM NO. 1657: PARLIAMENTARY QUESTIONS BY FRANK ALLOU!!. GRATEFUL IF YOU WILL INCLUDE IN YOUR REPLY AN EXPLANATION OF WHAT IS INVOLVED IN QUOTE SEPARATE CONFINEMENT UNQUOTE AS PROVIDED FOR IN HONG KONG PRISONS LEGISLATION. THE EXPRESSION QUOTE SOLITARY CONFINEMENT UNQUOTE IS NOT USED IN YOUR PRISONS LEGISLATION. 13 THERE IN FACT ANY DIFFERENCE BETWEEN THE TWO?
STEWART ·
FILES
1
HONG KONG LEPT.
DR. LORETON
XXXXX
LAST
REF.
CONFIDENTIAL
CYPRETNICAT A
JilfTE HONG KONG
TELECRAM NUMEER 2276 CONFIDENTIAL.
CUMISENTIAL
TO FOREIGN AND COMMONWEALTH OFFICE
18 DECEMBER 1968
H
TOP COPY
1
EFENCE YOUR TELECHANS 1657 AND 1661.
(1) THE PUBLIC CEDER ORDINANCE WHICH IS PART OF THE PER-
AMENT LAW OF H.K. CONTAINS A NUMBER OF SECTIONS WHICH ONSTIT-
UTE OFFENCES,
IN ALL CASCS A BURDEN OF PROOF RESTS ON THE PROSECUTION. AS PART OF THE PERMANENT LAW THE ORDINANCE 13
IN CONTINUOUS USE.
(2) (A) THERE IS NO PROVISION FOR SOLITARY CONFINEMENT AS SUCH UNDER HONG KONG LEGISLATION BUT THERE IS A QUOTE SEPARATE CONTINENEKT UNQUOTE. THIS IS A DISCIPLINARY MEASURE, AWARDED UNDER PRISCH RULES WHEREBY THE OFFENDER MAY EE SUBJECTED TO SEPARATE CONFINEMENT FOR A PERIOD NOT EXCEEDING 28 DAYS. NO VISHOES ARE PERMITTED LUI ING THAT PERIOD NOR MAY THE PLISONCE EXSTCISE TE USUAL PRIVILEGES BUT LETTERS ARE ALLOWED. THERE IS NO DISTINCTION IN OUR PRISONERS BETWEEN PRISONERS CONVICTED OF CRIMINAL OFFENCES ARISING CUT OF LAST YEAR'S DISTURBANCES AND THOSE CONVICTED OF CRIMINAL OFFENCES ALISING OUT OF OTHER CIRCUMSTANCES. IT IS THUS DIFFICULT, AT SHORT
HOWEVER, NOTICE, TO PROVIDE THE STATISTICS YOU REQUEST.
AT THE PRESENT TIXE NO PRISONZA 13 UNDERCOING SEPARATE CON-
FINEMENT.
CBO AS FAR AS DETAINEES ARE CONCERNED
FOLLOWING THE DIS-
TULUANCES IN HONG KONG IN 1967 NO DETAINEES HAVE BEEN KEFT
BI SOLITARY CONFILAMENT,
THEREFORE THE QUESTIONS PEGANCING
LITH THE DOTAINFES HAY BEEN
!
LAST IN SOLITARY COPFIRE-
*** THE NURTIS AT PRESENT HELD IN SOLITARY CONFINERENT
DM ARISE.
LAST
RECEIVED IN ARCHIVES No.31
19 DEC 1968
NKK 114/15
!
17
CONFIDENTIAL
-2-
2. THE DETENTION CENTRE HAS 12 SINGIE CELLS AS WELL AS
LANGER ONES. THESE SINGLE CELLS WERE USED DURING THE EMERGENCY
FOR DEBRIEFING, BUT DETAINEES STAYED THERE FOR ONLY A FEW DAYS.
THEY WERE ALSO USED, ON A LONCER-TERM BASIS TO HOUSE FEMALE
IN ALL THESE CASES THE DETAINEES CONTINUED TO
ENJOY HORMAL PRIVILEGES AND EXLRCISED WITH OTHER DETAINEES,
DETAINEES.
WONE OF THE SINGLE CELLS IS NOW OCCUPIED,
STR D. TRENCH
FILES
LANG KONG DEPT.
FAR EASTERN DEPT.
IS DEFT.
MR. MORETON
ADVANCE COPIES SENT
CONFIDERIAL
XXXXX
REFERENCES
Flag & Hansard Vol.755, No.26, Col.249.
낙 し
Question by Mr. Rankin,
5 December, 1967
Flag B Hansard, 12 December, 1967, Cols. 178-179, Petition
tabled by Mr. Rankin
NOTES FOR SUPPLEMENTARIES
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.
2,
The only Emergency Regulations which have been incorporated in the Ordinance are those dealing with the offences of intimidation and intimidating assembly.
3. It is true that these particular provisions are based on Southern whodesian 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.
4. If the ember mentions specific sections of the Ordinance to illustrate the point made in his question, it can be stated that our consultations with the Governor cover provisions raising this general issue.
with
Flag A
Flag B
Hr.
Koreton
Farliamentary Office
The Hong Kong Fublic Order Ordinance (copy attached) came into operation on 17 November, 1967 at the height of last year's disturbances in the Colony.
Its purpose was to consolidate into one Ordinance the various provisions dealing with public order and to strengthen the law where experience has shown this to be desirable.
Active work
Of the
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 is not designed for dealing with emergencies. considerable amount of emergency legislation which it has been necessary to introduce in Hong Kong since May, 1967, the only emergency regulations which have been incorporated into the Ordinance are those dealing with the offence of intimidation and intimidating assembly. These have been powerful weapons in the hands of the local communists in the over-crowded 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 Kong, there will always be a danger of intimidation.
2.
The Governor sought the views and advice of the Commonwealth Office on the draft Public Ordnunge Bill before its enactment and the matter was given careful and prolonged examination in the Common- wealth Office over a period of several months before the draft bill was agreed to.
3. 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 Kr. John Rankin, K.P. (see attached Hansard extract). The petition asked for the Ordinance to be disallowed. 4. The Ordinance was also the subject of considerable criticism by the Hong Kong Branch of "Justice" (the British section of the
Their criticism was levelled International Commission of Jurists). mainly at the increased powers given by the Ordinance to police officers in order to strengthen the hands of the latter in dealing with lawless elements in the community;m and at certain provisions which create offences in connection with unlawful assemblies. "Justice"
JA.
/maintained
maintained that certain of these provisions (e.g. sections 12 and 30) were such as to do away with the requirement that guilty intent should exist before an offence could be committed. It is thought that it is these provisions which kr. Allaun has in mind when he asks in his question for the Ordinance to be amended so as "to place the burden of proof upon the authorities".
5. Certain of the points raised by "Justice" were considered by the Commonwealth Secretary's Legal Advisers to have some substance and we are at present in correspondence with the Governor with a view to seeking certain amendments to the Ordinance. We are consulting with the Governor on points arising in Sections 2, 3, 7, 9, 11, 12, 15, 18, 19, 23, 25, 26, 27, 28, 31, 31, 32, 37, 40, 44, 49 and 55.
6.
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. It is easy for trouble makers to stir up disorder in such conditions and the tak of the police force in
In circumstances controlling disturbances is greatly increased,
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 to public order at all times. The Ordinance is designed to meet this need on a permanent basis.
bus. Carts сало
(7. S. Carter)
Hong Kong Department 18 December, 1968
Vornout?
18/12
Section.
2
I.
2.
Short title
PUBLIC ORDER
Interpretation
Ord. No. 64/67.
A255
PUBLIC ORDER ORDINANCE 1967.
ARRANGEMENT OF SECTIONS.
---
PART I.
PRELIMINARY,
PART II.
Page.
A257
J
J
J
A257
CONTROL OF ORGANIZATIONS.
3.
Power to prohibit flags, etc.
A258
J
4.
5.
Prohibition of uniforms in connexion with political objects Prohibition of quasi-military organizations
A258
A259
PART III.
CONTROL OF PUBLIC MEETINGS AND PROCESSIONS,
6.
Control of public gatherings
7.
Licensing of public meetings and public processions
8.
9.
10.
Appeals
...
...
++
11.
12.
13.
---
14.
Cancellation and amendment of licences
Conditions of licences
Police powers over meetings, processions and gatherings Offences in relation to sections 6, 7 and 11 Disorder in public places.
---
Prohibition of offensive weapons at public meetings and processions
15. Power of Commissioner of Police to prohibit public gatherings
Power of Governor in Council to prohibit public gatherings
Proof
16.
17.
ייי
+
J
A259
-
A260
A261
A261
A261
A262
A263
A264
+4
A264
A265
A265
A266
J
ITI
PART IV.
UNLAWFUL ASSEMBLIES, RIOTS AND SIMILAR OFFENCES.
18.
Unlawful assembly
---
+
L
H
A266
19.
Riot
20.
Rioters demolishing buildings, etc.
J
21.
22.
23.
I
24.
Rioters damaging buildings, machinery, etc.
Riotously preventing the sailing of ship, aircraft or train
Forcible entry
Forcible detainer of premises
:
:
A267
A267
A267
A267
A268
A268
25.
Fighting in public
A268
+
H
26. Proposing violence at public gatherings
J
A268
---
J
A256
Ord. No. 64/67.
Section,
PART V.
PUBLIC ORDER
INTIMIDATION AND INTIMIDATING ASSEMBLIES.
27.
Intimidation
---
28.
Intimidating assembly
29.
Directing, organizing, etc. intimidation
30.
Organization of intimidating assembly
PART VI.
-
CONTROL OF PLACES, VESSELS, OFFENSIVE WEAPONS, ETC.
Page.
+
A269
++
A269
A270
+
A270
31.
Curfew orders
+
32.
33.
34.
35.
Carrying offensive weapons during curfew Possession of offensive weapon in public place Power of Governor to prohibit the movement of vessels or aircraft Detention of vessels and nircraft ...
+
J
+
+4-
A270
H
++
---
A272
A272
A273
+
H
A273
PART VII.
CLOSED AREAS.
36.
Closed areas
+++
-
37.
Permits to enter and leave closed area
38.
+
Prohibition on entering or leaving closed area without permit
39.
Power of arrest
+--
+
+
+
ITI
A274
+
A274
A274
L
L
J
A274
PART VII.
40.
41.
+ −1
SPECIAL CONSTABLES.
Power of Governor to authorize appointment of special constables Power of special constable
TRI
ILL
+
42.
Special constable refusing to obey orders
PART IX.
GENERAL.
++
A275
A275
+
A275
43.
Security for good behaviour from suspected persons, etc.
44.
Order to be made
+
+
45.
Use of necessary force
---
46.
Restriction on use of force
47.
Offences by societies, etc.
+
ייז
48.
Proof of lawful authority or excuse
49.
Power of entry and search, etc.
+
T
---
50.
Powers of members of certain auxiliary services and Her Majesty's
forces
++ |
51.
52.
Power of Governor to give directions Delegation of powers
---
J
+4
LIJ
+
53.
Indemnity to persons acting under Ordinance
54.
Repeal
+
+
JLI
55.
Amendments
T +
---
+
56.
Transitional provisions
P
++
A275
A276
A277
+
A277
---
A277
++
A278
A278
A279
+
A280
A280
A280
A280
+
A280
A282
PUBLIC ORDER
HONG KONG
No. 64 of 1967.
I assent.
L.S.
Ord. No. 64/67.
A257
D. C. C. Trench,
Governor.
16th November. 1967.
An Ordinance to consolidate and amend the law relating to the maintenance of public order, the control of organizations, meetings, places, vessels and aircraft, unlawful assemblies and riots and matters incidental thereto or connected therewith.
[17th November, 1967.]
Enacted by the Governor of Hong Kong, with the advice and consent of the Legislative Council thereof,
PART I.
PRELIMINARY.
1. This Ordinance may be cited as the Public Order Ordin- Short title. ance 1967.
2.
In this Ordinance, unless the context otherwise requires Interpretation. "closed area" means any area or place declared to be a closed area
by order under section 36;
"meeting" means any gathering or assembly of persons convened
or held for any purpose, but does not include any meeting convened or held exclusively for the purposes of any public body;
"offensive weapon" means any article made, or adapted for use, 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;
"political organization" means any organization which has among its objects any political object or pursues any political purpose; "public gathering" means a public meeting, a public procession and any other meeting, gathering or assembly of ten or more persons in any public place;
"public meeting" means any meeting held or to be held in a public
place;
"public place" means any place to which for the time being the public or any section of the public are entitled or permitted to have access, whether on payment or otherwise, and, in
A258
Ord. No. 64/67.
PUBLIC ORDER
с
Power to prohibit flags,
etc.
Prohibition of uniforms in connexion with political objects.
relation to any meeting, includes any place which is or will be, on the occasion and for the purposes of such meeting, a public place:
"public procession" means any procession in, to or from a public
place;
"society" means any club, company, partnership, association or
body of persons.
PART II.
CONTROL OF ORGANIZATIONS.
3. (1) Any police officer of or above the rank of inspector
may--
(a) prohibit the display at a public gathering of any flag,
banner or other emblem;
(b) prohibit the owner, tenant, occupier or person in charge of any premises or place from permitting the display of any flag, banner or other emblem on or at the premises. or place.
if the display of any flag, banner or emblem is, in the opinion of such police officer, likely to cause or lead to a breach of the peace.
(2) Where a prohibition is issued under subsection (1), any police officer may seize and detain any flag, banner or emblem. and may if necessary enter any premises or place whatsoever, using such force as may be necessary for these purposes.
(3) Any person who displays or permits the display of any flag, banner or other emblem in contravention of any prohibition issued under subsection (1) shall be guilty of an offence and shall be liable on summary conviction to a fine of five thousand dollars and to imprisonment for two years.
(4) No prosecution for an offence under this section shall be instituted without the consent of the Attorney General.
4. (1) Any person who in any public place or at any public gathering wears any uniform signifying his association with any political organization or with the promotion of any political object shall be guilty of an offence and shall be liable on summary con- viction to a fine of five thousand dollars and to imprisonment for three years.
(2) The Commissioner of Police may, if he is satisfied that the wearing of any such uniform as aforesaid on any ceremonial, anniversary or other special occasion will not be likely to involve risk of public disorder, by order in writing permit the wearing of such uniform on that occasion either absolutely or subject to such conditions as he may specify in the order.
PUBLIC ORDER
Ord. No. 64/67,
(3) Any person who contravenes any condition imposed by he Commissioner of Police under subsection (2) shall be guilty of an offence and shall be liable on summary conviction to a fine of two thousand dollars and to imprisonment for twelve months.
5. (1) If the members or adherents of any society are~~~ (a) organized or trained or equipped for the purpose of enabling them to be employed in such a manner that such employment usurps, may usurp, tends to usurp or appears to usurp the functions of the police or the armed forces of the Crown; or
(b) organized and trained or organized and equipped for the purpose of enabling them to be employed for the use or display of physical force in promoting any political object, or in such manner as to arouse reasonable apprehension that they are organized and either trained or equipped for that purpose,
then-
(i) any person who is a member or adherent of such society shall be guilty of an offence and shall be liable on summary conviction to a fine of five thousand dollars and to imprisonment for three years; and
(ii) any person who takes part in the control or management of such society, or in organizing or training or equipping as aforesaid any members or adherents of the society. shall be guilty of an offence and shall be liable on con- viction on indictment to imprisonment for ten years and on summary conviction to a fine of five thousand dollars and to imprisonment for five years.
(2) In any criminal proceedings under this section, proof of things done or of words spoken, written or published, whether or not in the presence of a party to the proceedings, by any person taking part in the control or management of a society or in organizing, training or equipping members or adherents of a society shall be admissible as evidence of the purposes for which, or the manner in which, members or adherents of the society (whether those persons or others) were organized or trained or equipped.
PART III.
CONTROL OF PUBLIC MEETINGS AND PROCESSIONS.
6. The Commissioner of Police may, if it appears to him to be necessary or expedient in the interests of public order so to do, in such manner as he may think fit by order-
(a) notwithstanding the issue of any permit under paragraph
A259
Prohibition of quasi-military organizations.
Control of
public gatherings.
(29) of section 4 of the Summary Offences Ordinance, (Cap. 228.)
ኑ
A260
Ord. No. 64/67.
Licensing of public meetings and public processions.
PUBLIC ORDER
control and direct the extent to which music may be play ed, or to which music or human speech or any other sound may be amplified, broadcast, relayed, or otherwise reproduced by artificial means, in public places:
(b) control and direct the conduct of all public gatherings and specify the route by which, and the time at which, any public procession may pass;
(c) for any of the purposes aforesaid, give or issue such
orders as he may consider necessary or expedient.
7. (1) No public meeting and no public procession shall take place save under and in accordance with the terms and conditions of a licence in that behalf issued under this section, and no public meeting and no public procession shall be adver- tised or otherwise publicized unless such a licence therefor has been issued.
(2) Any person wishing to hold, convene, organize or form a public meeting or a public procession shall make application for a licence in that behalf to the Commissioner of Police not less than seven days before the public meeting or public procession is to be held, convened, organized or formed and the Commissioner of Police shall, if he is satisfied that the public meeting or public procession is not likely to prejudice the maintenance of public order or be used for any unlawful or immoral purpose, issue a licence in writing in such form as he may determine, specifying the name of the licensee and defining the conditions on which the public meeting or public procession may take place.
(3) The Commissioner of Police may attach to a licence issued under subsection (2) such conditions as he may think fit.
(4) Without prejudice to the provisions of subsection (2), the Commissioner of Police may refuse to grant a licence under this section if-
(a) the applicant or any person or society associated directly or indirectly with the application or likely in the opinion of the Commissioner of Police to be concerned in the holding, convening, organizing or forming of the public meeting or public procession has, in relation to any public gathering, at any time contravened the provisions of this Ordinance or of any other law or any condition of a licence issued under this Ordinance or any other law; or (b) the public meeting or public procession has been adver- tised or otherwise publicized in contravention of sub- section (1).
(5) This section shall not apply to-
(a) any public meeting exclusively for religious purposes;
PUBLIC ORDER
Ord. No. 64/67.
A261
(b) any public meeting taking place in a place of public entertainment licensed under section 4 of the Places of Public Entertainment Ordinance and in accordance with that Ordinance and the conditions of the licence and any permission granted under that Ordinance; or
(c) any public meeting taking place with the permission of the Commissioner of Police granted under section 8 of the Places of Public Entertainment Ordinance and in accordance with the conditions to which such permis sion is subject.
8. (1) The Commissioner of Police may at any time, if it appears to him to be necessary or expedient in the interests of public order or for preventing the carrying out of any unlawful or immoral purpose so to do
(a) cancel any licence issued by him under section 7; or
(b) amend the conditions of any such licence.
(2) Notice of any such cancellation or amendment shall be given-
(a) in writing to the licensee;
(b) in writing to any other person concerned in the holding, convening, organizing or forming of the public meeting or public procession; or
(c) by publication in such manner, or by posting in such
place, as the Commissioner of Police may think fit.
9. It shall be a condition of every licence issued under section 7 that the licensee shall be present at the public meeting or public procession from the first assembly thereof to the final dispersal thereof, and shall forthwith comply with any directions which may be given to him by any police officer for ensuring the due performance of and compliance with the conditions of the licence and the maintenance of public order throughout the period of assembly, conduct and dispersal of the public meeting or public procession and the period of one hour immediately following the final dispersal thereof.
10. Where under section 7 or 8 a licence is refused or can- celled, or is issued subject to conditions, or the conditions of any such licence are amended, the applicant or licensee, as the case may be, may appeal in writing to the Governor against such refusal or cancellation or the imposition or amendment of such conditions or any of them, and the Governor may on any such appeal con- firm, reverse or vary the decision appealed against.
(Cap. 172)
Cancellation
and amendment of licences.
Conditions of licences.
Appeals.
A262
Police powers over meetings, processions
and gatherings.
Ord. No. 64/67.
PUBLIC ORDER
11. (1) Any police officer may prevent the holding of, stop or disperse any public meeting or public procession which is required to be licensed under section 7 and is not so licensed or in regard to which any condition of a licence issued under section 7 is being or has been contravened.
(2) Any police officer of or above the rank of inspector
may-
(a) prevent the holding of, stop, disperse or vary the place or route of any public gathering, other than a public meeting exclusively for religious purposes, whether or not the public gathering is required to be or is licensed under section 7; or
(b) stop or disperse any public meeting exclusively for religious purposes or any meeting convened or held in any premises or place which is not a public place or any gathering or procession of persons whatsoever or wheresoever,
if the same is causing or is in his opinion likely to cause or lead to a breach of the peace.
(3) For the purpose of exercising the powers conferred by subsections (1) and (2), respectively, a police officer and a police officer of or above the rank of inspector may give or issue such orders as he may consider necessary or expedient, and such police officer and any other police officer may-
(a) use such force as may be necessary to prevent the holding of, stop or disperse, as the case may be, the public meet- ing, public procession, public gathering or other meeting, gathering or procession of persons; and
(b) enter any premises or place whatsoever in which any meeting is taking place or any persons are gathered.
(4) If a police officer of or above the rank of inspector has reason to believe that a public meeting or public procession which is required to be licensed under section 7 and is not so licensed is likely to take place or form in any public place, he may cause access to that public place and to any other public place adjacent thereto to be barred and to be closed to the public or to any person or class of persons for such time as may be necessary to prevent the public meeting or public procession taking place.
(5) The closure of any public place under subsection (4) shall be notified by means of notices exhibited, or physical barriers erected, at the places of access thereto, or by oral public announce- ment in the vicinity thereof, or in such other manner as the police officer aforesaid may think fit.
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Ord. No. 64/67.
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(6) Any police officer may use such force as may be necessary
to prevent any person from entering or remaining in any public place to which access has been closed to him under this section.
12. (1) Any person who-
(a) neglects or refuses to obey any order given or issued
under section 6 or subsection (3) of section 11; or
(b) contravenes any condition of a licence issued under section 7 or suffers or permits any such contravention; or (c) without the permission of any police officer on duty there, enters or remains in a public place to which access has been closed to him under subsection (4) of section 11: or (d) prints, publishes, displays, distributes or circulates a notice of, or in any other manner advertises or publicizes, a public meeting or public procession which is not licensed under section 7.
shall be guilty of an offence and shall be liable on summary con- viction to a fine of five thousand dollars and to imprisonment for twelve months.
(2) Where-
(a) any public meeting or public procession takes place
without a licence under section 7; or
(b) three or more persons taking part in or forming part of a public gathering neglect or refuse to obey an order given or issued under section 6; or
(c) three or more persons taking part in or forming part of a public meeting, public procession or public gathering, or other meeting, procession or gathering of persons neglect or refuse to obey an order given or issued under subsection (3) of section 11,
the public meeting, public procession or public gathering, or other meeting, procession or gathering of persons, as the case may be. shall be deemed to be an unlawful assembly.
(3) Where any public meeting, public procession or public gathering, or other meeting, procession or gathering of persons, is deemed to be an unlawful assembly by virtue of subsection (2)- (a) every person who takes or continues to take part in, or forms or continues to form part of, any such unlawful assembly; and
(b) every person who-
(i) holds, convenes, organizes, forms or collects, or assists or is concerned in the holding, convening, organiz- ing, forming or collecting of, any public meeting or public procession such as is referred to in paragraph (a) of subsection (2); or
Offences in relation to sections 6.
7 and 11.
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Disorder in public places.
Prohibition of offensive weapons at public meetings and processions.
(Cap. 233.)
Ord. No. 64/67.
PUBLIC ORDER
(ii) continues or attempts to continue to hold or con, duct, or to direct otherwise than for the purpose of securing obedience to an order given or issued under section 6 or subsection (3) of section 11, any public gathering such as is referred to in paragraph (b) of sub- section (2), or any public meeting, public procession or public gathering, or other meeting, procession or gather- ing of persons, such as is referred to in paragraph (c) of subsection (2),
after the same has become an unlawful assembly as aforesaid,
shall be guilty of an offence and shall be liable-
(i) on conviction on indictment, to imprisonment for five
years; and
(ii) on summary conviction, to a fine of five thousand dollars
and to imprisonment for three years.
13. (1) Any person who at any public gathering acts in a disorderly manner for the purpose of preventing the transaction of the business for which the public gathering was called together or incites others so to act shall be guilty of an offence and shall be liable on summary conviction to a fine of five thousand dollars and to imprisonment for twelve months.
(2) Any person who behaves in a noisy or disorderly manner. or uses threatening, abusive or insulting words, with intent to provoke a breach of the peace, or whereby a breach of the peace is likely to be caused, shall be guilty of an offence and shall be liable on summary conviction to a fine of five thousand dollars and to imprisonment for twelve months.
14. (1) Any person who, while present at any public meeting or on the occasion of any public procession, has with him any offensive weapon, otherwise than in pursuance of lawful authority, shall be guilty of an offence and shall be liable on summary con- viction to a fine of five thousand dollars and to imprisonment for two years.
(2) For the purposes of this section, a person shall not be deemed to be acting in pursuance of lawful authority unless he is on duty as-
(a) a police officer;
(b) a member of the Hong Kong Auxiliary Police Force when the Force or the part of the Force to which such member belongs, or such member, has been called out under subsection (1) or (2) of section 16 of the Hong Kong Auxiliary Police Force Ordinance;
PUBLIC ORDER
(c) a member of the Fire Services Department; (d) a public officer:
(c) a member of Her Majesty's forces; or
Ord. No. 64/67,
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(f) a member or officer of the Royal Hong Kong Defence Force when the Force has been called out under sub- section (1) of section 16 of the Royal Hong Kong Defence Force Ordinance or the unit or part of the Force to which such member or officer belongs, or such member or officer, has been called out under subsection (1) of section 17 of the Royal Hong Kong Defence Force Ordinance. (3) Where any person is convicted of an offence under sub- section (1), the court may make an order for the forfeiture of any offensive weapon in respect of which the offence was committed.
15. (1) The Commissioner of Police may, if it appears to him to be necessary or expedient in the interests of public order so to do, prohibit the holding or continuance of a public gathering in any area, premises or place or on any particular day.
(2) Notice of a prohibition under subsection (1) shall be given-
(a) either orally or in writing, to the person or to one of the persons (if more than one) promoting, directing, organiz- ing or managing the public gathering; or (b) by publication, either orally or in writing, in such manner, or by posting a notice thereof in such place. as the Commissioner of Police may think fit.
(3) Any person who takes part in the promotion, direction. organization or management of a public gathering which is held or continued in contravention of a prohibition under subsection (1) shall be guilty of an offence and shall be liable on summary con- viction to a fine of five thousand dollars and to imprisonment for three years.
(4) Any police officer may give or issue such orders and use such force as may be necessary to prevent the holding or con- tinuance of a public gathering the holding or continuance of which has been prohibited under subsection (1) and to disperse any gathering of persons thereat.
(5) Any person who neglects or refuses to obey any order given or issued under subsection (4) shall be guilty of an offence and shall be liable on summary conviction to a fine of five thousand dollars and to imprisonment for twelve months.
16. (1) The Governor in Council may, if he is satisfied that. by reason of particular circumstances existing in Hong Kong or in any part thereof, it is necessary for the prevention of serious public disorder to prohibit the holding of public gatherings in
(Cap. 199.)
Power of Commissioner of Police to
prohibit public gatherings.
Power of Governor in Council to prohibit public gatherings.
+
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Ord. No. 64/67.
Proof.
Unlawful assembly.
PUBLIC ORDER
Hong Kong or any part thereof, prohibit the holding in Hon✩ Kong or any part thereof of all public gatherings, or of any class of public gatherings, for such period not exceeding three months as may be specified.
(2) Any person who-
(a) takes part in the promotion, direction, organization or management of a public gathering which is held or intended to be held in contravention of a prohibition under this section; or
(b) takes part in or attends, or incites any other person to
take part in or attend, any such public gathering,
shall be guilty of an offence and shall be liable on summary con- viction to a fine of five thousand dollars and to imprisonment for three years.
17. A certificate purporting to be under the hand of the Com- missioner of Police specifying-
(a) the terms and date of any order given or issued under
section 6;
(b) the terms, date and conditions of any licence issued
under section 7;
(c) the terms, date and the manner of service of any notice
given under subsection (2) of section 8;
(d) the terms, date and method of giving notice of any prohibition or order given or issued under subsection (1) or (4) of section 15,
shall be prima facie evidence of such matter contained in such certificate in all legal proceedings.
PART IV.
UNLAWFUL ASSEMBLIES, RIOTS AND SIMILAR OFFENCES,
18. (1) When three or more persons, assembled together, conduct themselves in a manner intended or likely to cause any person reasonably to fear that the persons so assembled will commit a breach of the peace, or will by such assembly provoke other persons to commit a breach of the peace, they are an un- lawful assembly.
(2) It is immaterial that the original assembly was lawful, if being assembled, they conduct themselves in such a manner as aforesaid.
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Ord. No. 64/67.
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(3) Any person who takes part in an unlawful assembly shall be guilty of the offence of unlawful assembly and 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 three years.
19. (1) When any person taking part in an unlawful assem- bly commits a breach of the peace, the assembly is a riot and the persons assembled are riotously assembled.
(2) Any person who takes part in a riot shall be guilty of the offence of riot and shall be liable-
(a) on conviction on indictment, to imprisonment for ten
years; and
(b) on summary conviction, to a fine of five thousand dollars
and to imprisonment for five years.
20. (1) Any person taking part in a riot who unlawfully pulls down or destroys or begins to pull down or destroy any motor vehicle, tramcar, aircraft, vessel, building. railway, machin- ery or structure shall be guilty of an offence and shall be liable- (a) on conviction on indictment, to imprisonment for four.
teen years; and
(b) on summary conviction, to imprisonment for five years. (2) A person may be convicted of an offence under this section whether or not he has been charged with or convicted of any other offence under this Part.
21. (1) Any person taking part in a riot who unlawfully damages any of the things specified in section 20 shall be guilty of an offence and shall be liable-
(a) on conviction on indictment, to imprisonment for ten
years; and
(b) on summary conviction, to imprisonment for five years. (2) A person may be convicted of an offence under this section whether or not he has been charged with or convicted of any other offence under this Part.
22. (1) Any person taking part in a riot who unlawfully and with force prevents, hinders or obstructs, or attempts to prevent, hinder or obstruct, the loading or unloading, or the move. ment, of any motor vehicle, tramcar, aircraft, train or vessel, or unlawfully and with force boards, or attempts to board, any motor vehicle, tramcar, aircraft, train or vessel with intent to do so,
Riot.
Rioters
demolishing buildings, etc.
Rioters
damaging buildings. machinery, etc.
Riotously
preventing the sailing of ship.
aircraft or train.
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Ord. No. 64/67.
Forcible entry.
Forcible detainer of premises.
Fighting in public.
Proposing violence at public gatherings.
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shall be guilty of an offence and shall be liable on summary; conviction to a fine of five thousand dollars and to imprisonment for three years.
(2) A person may be convicted of an offence under this section whether or not he has been charged with or convicted of any other offence under this Part.
23. (1) Any person who enters on any premises in a violent manner, whether or not he is entitled to enter thereon and whether such violence consists in actual force applied to any other person or in threats or in breaking open any building or in collecting an unusual number of people, shall be guilty of an offence and shall be liable on summary conviction to a fine of five thousand dollars and to imprisonment for two years.
(2) Nothing in this section shall make it an offence for a person to enter upon premises of his own which are in the custody of his servants or his bailiff.
24. Any person who, being in unlawful possession of prem- ises, holds possession of them, in a manner likely to cause a breach of the peace or to cause any person reasonably to fear that a breach of the peace may occur, against a person entitled by law to the possession of the premises shall be guilty of an offence and shall be liable on summary conviction to a fine of five thousand dollars and to imprisonment for two years.
25. Any person who takes part in a fight in a public place shall be guilty of an offence and shall be liable on summary con- viction to a fine of five thousand dollars and to imprisonment for twelve months.
26. Any person who, without lawful authority, at any public gathering makes any statement, or behaves in a manner, which is intended or is likely to incite or induce any person-
(a) to kill or do physical injury to any person or to any
class or community of persons;
(b) to destroy or do any damage to any property; or
(c) to deprive any person by force or fear of the possession or use of any property either permanently or temporarily,
shall be guilty of an offence and shall be liable-
(i) on conviction on indictment, to imprisonment for five
years; and
(ii) on summary conviction to a fine of five thousand dollars
and to imprisonment for two years.
:
J
PUBLIC ORDER
PART V.
Ord. No. 64/67.
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INTIMIDATION AND INTIMIDATING ASSEMBLIES.
27. Any person who, without lawful excuse-
(a) does or says anything, or behaves in a manner, or utters or distributes any publication, which is likely to or might make some other person apprehensive as to what may happen-
(i) to such other person or to any member of the family or any dependant of such other person;
(ii) to any property, business, undertaking or interest of such other person or of any member of the family or any dependant of such other person;
(iii) to any building or place occupied by such other person or by any member of the family or any dependant of such other person; or
(iv) to any business or undertaking in which such other person or any member of the family or any dependant of such other person is employed;
(b) does or says anything, or behaves in a manner, which is likely to or might compel or induce some other person to do anything which such other person is not legally obliged to do or counsels some other person to do any such thing:
(c) does or says anything, or behaves in a manner, which is likely to or might compel or induce some other person to refrain from doing anything which such other person is legally entitled to do or counsels some other person to refrain from doing any such thing;
(d) watches or besets any building or place or the approaches
to any building or place; or
(e) persistently follows some other person about from place
to place,
shall be guilty of an offence and shall be liable-
(i) on conviction on indictment, to imprisonment for five
years; and
(ii) on summary conviction, to a fine of five thousand dollars
and to imprisonment for two years.
28. (1) Where there is an unlawful assembly and any per- son in such assembly does or says anything, or behaves in a manner, which is likely to or might alarm or intimidate some other person or make some other person apprehensive as to what
Intimidation.
Intimidating assembly,
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Directing, organizing, etc. intimidation.
Organization of intimidating assembly.
Curfew orders.
Ord. No. 64/67,
PUBLIC ORDER
may happen to him or any other person, the assembly shall be ar intimidating assembly.
(2) Any person who takes part in an intimidating assembly shall be guilty of an offence and 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 three years.
29. Any person who directs, organizes, arranges, encourages, counsels, causes, procures or commands any intimidation which is an offence under section 27 shall be guilty of an offence and 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 three years.
30. Any person who directs, organizes, arranges, encourages, counsels, causes, procures or commands an assembly which is or becomes an intimidating assembly under section 28 shall be guilty of an offence and 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 three years.
PART VI.
CONTROL OF PLACES, VESSELS, OFFENSIVE WEAPONS, ETC.
31. (1) The Governor may, if he is satisfied that it is necessary in the interests of public order so to do, by order (here- inafter referred to as a curfew order) direct that, within such area and during such hours as may be specified in the curfew order, every person, or, as the case may be, every member of any class of persons specified in the curfew order, shall, save under and in accordance with a permit issued by the Commissioner of Police under subsection (2), remain indoors.
(2) (a) The Commissioner of Police may issue to any person
a permit for the purposes of subsection (1).
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Ord. No. 64/67.
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(b) A permit issued under this subsection shall be subject to such conditions as the Commissioner of Police thinks fit, and may be cancelled by the Commissioner of Police at any time.
(3) A curfew order shall-
(a) 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;
(b) be published in the Gazette as soon as may be reasonably
practicable after the making thereof; and
(c) remain in force for the period specified therein or until earlier cancelled by the Governor in accordance with subsection (4).
(4) The Governor may vary or cancel a curfew order by order which shall come into force and be published in like manner as that provided in subsection (3) for a curfew order.
(5) Any person who contravenes-
(a) any of the provisions of a curfew order; or
(b) any condition to which a permit issued under subsection
(2) is subject,
shall be guilty of an offence and shall be liable on summary con- viction to a fine of five thousand dollars and to imprisonment for two years.
(6) The following persons shall, notwithstanding the provi- sions of this section, not be subject to or obliged to comply with any of the provisions of a curfew order when on duty or proceed- ing to or from duty-
(a) a police officer;
(b) a member of the Hong Kong Auxiliary Police Force when the Force, or the part of the Force to which such member belongs, or such member, has been called out under subsection (1) or (2) of section 16 of the Hong Kong Auxiliary Police Force Ordinance;
(c) a member of the Fire Services Department;
(d) a member of the Prisons Department:
(e)
a member of the Preventive Service;
( a member of Her Majesty's forces;
(g) a member or officer of the Royal Hong Kong Defence Force when the Force has been called out under sub- section (1) of section 16 of the Royal Hong Kong
(Cap. 233J
(Cap. 1993)
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Ord. No. 64/67.
Carrying
offensive weapons during curfew.
Possession of offensive weapon in public place.
PUBLIC ORDER
Defence Force Ordinance or the unit or part of the Force to which such member or officer belongs, or such membe or officer, has been called out under subsection (1) of section 17 of the Royal Hong Kong Defence Force Ordinance:
(h) any person, whether or not he is a member of the Essential Services Corps, in possession of a valid warrant signed by the Commissioner of the Essential Services Corps and certifying that such person is engaged on essential duties; and
(1) any servant of the Crown, other than a public officer, in possession of a permit issued by the Commissioner of Police for the purposes of this paragraph.
(7) Whenever the Governor considers it necessary, a curfew order may provide that subsection (6) shall not apply in the case of that curfew order with respect to such of the persons specified in that subsection as may be prescribed by the curfew order.
32. (1) Any person who, without lawful authority, carries or has in his possession in any area in which a curfew order is in force and during the hours during which the curfew imposed thereby is operative any offensive weapon shall be guilty of an offence and shall be liable on summary conviction to a fine of five thousand dollars and to imprisonment for three years.
(2) A person shall not be convicted of an offence under this section if he proves to the satisfaction of the court that he carried or had in his possession the offensive weapon-
(a) solely for domestic or defensive purposes within enclosed premises which he was lawfully occupying or in which he was lawfully present; or
(b) with the authority of his employer and solely for domestic or defensive purposes within enclosed premises in the lawful occupation of his employer.
(3) Where any person is convicted of an offence under sub- section (1), the court may make an order for the forfeiture of any offensive weapon in respect of which the offence was committed.
33. (1) Any person who, without lawful authority or reason. able excuse, has with him in any public place any offensive weapon shall be guilty of an offence and shall be liable on summary conviction to a fine of five thousand dollars and to imprisonment for two years.
(2) Where any person is convicted of an offence under sub- section (1), the court may make an order for the forfeiture of any offensive weapon in respect of which the offence was committed.
PUBLIC ORDER
Ord. No. 64/67.
34. (1) The Governor may, if he is satisfied that it is hecessary in the interests of public order so to do, by order prohibit or control the landing, taking off or movement of any aircraft or class of aircraft or the movement or anchorage of any vessel or the use of any waters in Hong Kong by all vessels or any vessel or class of vessel during such hours and for such a period and subject to such conditions as may be specified in the order.
(2) Any person who contravenes any provision of any order made under subsection (1) shall be guilty of an offence and shall be liable on summary conviction to a fine of five thousand dollars and to imprisonment for two years.
(2) Any police officer or any public officer may take such steps and use such force as may be necessary to secure compliance with any order made under subsection (1).
35. (1) The Governor may, if he is satisfied that it is necessary in the interests of public order so to do, give such orders as may appear to him to be necessary for the detention of any vessel or aircraft, or any class of vessel or aircraft, and for the detention of any of the persons on board the vessel or aircraft so far as this may be necessary to ensure the detention of the vessel or aircraft.
(2) Any person detained in accordance with an order issued under subsection (1) shall be deemed to be in lawful custody.
(3) Any police officer or any public officer may, in relation to any vessel or aircraft, or any persons on board, take such steps and use such force as may be necessary to secure compliance with any order made under subsection (1).
(4) The Governor may give orders for the release of any vessel, aircraft or person detained under this section, and for the departure thereof from Hong Kong.
(5) In this section, "person on board" means any person who
is or was on board the vessel or aircraft-
(a) at the time of its arrival in Hong Kong; or
(b) at the time of its detention under this section; or
(c) at any time between the time of its arrival or detention
and its final departure from Hong Kong.
(6) This section shall be in addition to and not in derogation
of any other law in relation to deportation or expulsion of persons from Hong Kong.
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Power of Governor to prohibit the movement of vessels or aircraft.
Detention of vessels and aircraft,
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Ord. No. 64/67.
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Closed areas.
Permits to enter and leave closed area,
Prohibition on entering or leaving closed area without permit.
Power of arrest.
PART VII.
CLOSED AREAS.
36. The Governor may by order declare any area or place to be a closed area.
37. (1) In the case of a closed area which is an area or place occupied by Her Majesty's forces or for other purposes of the Crown in right of Her Majesty's government in the United Kingdom, the Commander British Forces or any commissioned officer in Her Majesty's forces authorized by him for the purposes of this subsection may issue to any person a permit allowing such person to enter and leave the closed area.
(2) In the case of any other closed area, the Commissioner of Police may issue to any person a permit allowing such person to enter and leave the closed area.
(3) A permit issued under subsection (1) or (2) shall be subject to such conditions as the person by whom it is issued thinks fit, and may be cancelled by such person at any time.
38. Any person who-
(a) enters or leaves a closed area save under and in accord-
ance with a permit issued under section 37; or
(b) contravenes any condition to which any such permit is
subject,
shall be guilty of an offence and shall be liable on summary con- viction to a fine of five thousand dollars and to imprisonment for two years.
39. (1) Without prejudice to the provisions of this Ordinance or of any other law, any member of Her Majesty's forces, or any person posted to guard a closed area by or under the authority of the Governor or the Commander British Forces, may arrest- (a) any person who he finds in a closed area if he has reason to suspect that such person has committed any offence; (b) any person who he finds committing any offence in a
closed area;
(c) any person who 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.
(2) Any person arrested under subsection (1) shall be delivered into the custody of a police officer as soon as practicable.
PUBLIC ORDER
PART VIII.
SPECIAL CONSTABLES.
Ord. No. 64/67.
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40. The Governor may at any time by order authorize any magistrate to appoint any person who is willing so to act as a special constable for such period as may be specified in such order by the Governor.
Power of Governor to authorize appointment of special constables.
Power of
constable.
41. (1) A person appointed as a special constable shall, when acting as such, have the same duties, powers, protection special and immunities as are imposed or conferred by this Ordinance or any other law on a police officer.
(2) A special constable shall comply with all such orders as may be given to him by the Commissioner of Police.
(3) Nothing in this section shall entitle a special constable to any pay, pension or other reward.
42. Any special constable who, without reasonable excuse, neglects or refuses to obey such orders as may be given to him for the performance of the duties of his office under subsection (2) of section 41 shall be guilty of an offence and shall be liable on summary conviction to a fine of one thousand dollars and to imprisonment for two months.
PART IX.
GENERAL.
43. If a magistrate is satisfied that--
(a) any person is attempting to conceal his presence in Hong
Kong with a view to committing an offence;
(b) there is in Hong Kong a person who cannot give a
satisfactory account of himself;
(c) any person has, either orally or in writing, disseminated or attempted to disseminate, or has in any way abetted the dissemination of, any seditious matter, that is to say, any matter the publication of which is punishable under section 4 of the Sedition Ordinance; or
(d) any person has committed, or is about to commit or attempt to commit, any act calculated to interfere with the administration of the law or with the maintenance of law and order,
Special constable refusing to obey orders.
Security for good behaviour from suspected persons, etc.
(Cap. 217.)
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Ord. No. 64/67.
Order to be made.
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the magistrate may, in accordance with section 44, require suc person to show cause why he should not be ordered to execute a bond with sureties for his good behaviour for a period not exceed- ing two years.
44. (1) When a person is required to show cause under section 43, the magistrate shall make an order in writing setting forth-
(a) the substance of the information received: (b) the amount of the bond to be executed;
(c) the term for which it is in force;
(d) the number, character and class of sureties. if any,
required.
(2) If a person required to show cause under section 43 is present in court, the order shall be read over to him, and, if necessary, the substance of it explained.
(3) If a person required to show cause under section 43 is not in court, the magistrate shall bring him before the court by summons or by warrant as he deems appropriate in the circum- stances of the case.
(4) A summons or warrant issued under subsection (3) shall be accompanied by a copy of the order and such copy shall be delivered by the officer executing the process.
(5) When a person appears or is brought before a court in pursuance of an order as aforesaid, the magistrate shall inquire into the truth of the information as far as is practicable in the manner prescribed for summary trials, except that no charge need be framed.
(6) If the magistrate is satisfied that it is necessary for the maintenance of the peace or of good behaviour, as the case may be, that the person named in the order should execute a bond with or without sureties, he shall make an order accordingly.
(7) If the magistrate is satisfied that it is not necessary to execute a bond, the person named in the order shall be discharged from the inquiry.
(8) A bond executed by a person to keep the peace or be of good behaviour, as the case may be, shall be deemed to be broken by the commission of any offence punishable with imprisonment.
(9) A magistrate may, in his discretion, refuse to accept any person offered as surety for good behaviour.
(10) If any person ordered to give security does not give such security on or before the date of the commencement of such
PUBLIC ORDER
Ord. No. 64/67.
A277
ecurity, he shall be committed to prison until the expiration of Such term as the magistrate may direct or until he shall furnish such security to the magistrate who made the order:
Provided that the period of imprisonment for failure to give security shall not exceed the period for which security is ordered to be given.
(11) Any person so imprisoned may be released by an order made by a magistrate if such magistrate considers he may be released without hazard to the community or any person.
(12) Any surety for peaceable conduct or good behaviour may apply to a magistrate to cancel any bond executed under this section. In such a case, the magistrate shall call for fresh security for the unexpired term and if not forthcoming shall order impris- onment accordingly.
45. Without prejudice to any other powers conferred by this Ordinance, any police officer may use such force as may be necessary-
(a) to prevent the commission or continuance of any offence
under this Ordinance;
(b) to arrest any person committing or reasonably suspected of being about to commit or of having committed any offence under this Ordinance; or
(c) to overcome any resistance to the exercise of any of the
powers conferred by this Ordinance.
46. (1) Whenever in this Ordinance it is provided that such force as may be necessary may be used for any purpose, the degree of force which may be so used shall not be greater than is reason- ably necessary for that purpose.
(2) Nothing in this section shall derogate from the lawful right of any person to use force in the defence of person or property.
(3) Any person who uses such force as may be necessary for any purpose, in accordance with the provisions of this Ordinance, shall not be liable in any criminal or civil proceeding for having. by the use of such force, caused injury or death to any person or damage to or loss of any property.
47. Where any offence under this Ordinance is committed by any society, every person charged with, or concerned or acting in, the control of management of the affairs or activities of such society shall be guilty of that offence and liable to be punished accordingly, unless it is proved by such person that, through no
Use of
necessary force,
Restriction on use of force.
Offences by societies, etc.
A278
Ord. No. 64/67.
PUBLIC ORDER
1
Proof of lawful authority or
excuse. (Cap. 2213
Power of entry and search, etc.
act or omission on his part, he was not aware that the offen was being or was intended or about to be committed, or that he took all reasonable steps to prevent its commission.
48. Section 65 of the Criminal Procedure Ordinance (whereby the proof of lawful or reasonable authority or purpose or excuse shall lie upon the person charged with the offence) shall apply to all proceedings for any offence under this Ordinance in any court.
49. (1) Without prejudice to any other provision of this Ordinance, any police officer of or above the rank of inspector. with the assistance of such other police officers as may be neces- sary, may-
(a) enter and search any premises or place whatsoever if he knows or has reason to suspect that an offence under this Ordinance is being or has been committed therein or that there is therein any evidence of the commission of an offence under this Ordinance;
(b) search any person found in any premises or place which he is empowered to enter and search under paragraph (a); (c) stop, board and search any vessel or stop and search any motor vehicle or tramcar if he knows or has reason to suspect that there is therein any evidence of the com- mission of an offence under this Ordinance;
(d) seize, remove and detain anything which is or contains or appears to him to be or to contain, or to be likely to be or to contain, evidence of the commission of an offence under this Ordinance.
(2) Any police officer may use such force as may be neces- sary for the exercise of the powers conferred by subsection (1), and any person found in any premises or place, or in any vessel, vehicle or tramcar, may be detained by any police officer until the same has been searched under subsection (1).
(3) Any police officer may, using such force as may be neces- sary, enter any premises or place whatsoever if he knows or has reason to suspect that-
(a) any person who has lately been in an unlawful assembly, a riot or an intimidating assembly, or engaged in any unlawful purpose, has escaped into such premises or place; or
(b) persons about to commit a breach of the peace are
assembled therein.
(4) A woman shall not be searched under this section except by a woman.
PUBLIC ORDER
Ord. No. 64/67.
50. (1) Without prejudice to the provisions of this Ordinance or of any other law, a member of the Hong Kong Auxiliary Police Force on duty, and while proceeding to and from duty, when the Force or the part of the Force to which such member belongs, or such member, has been called out under subsection (1) or (2) of section 16 of the Hong Kong Auxiliary Police Force Ordinance shall have the same duties, powers, protection and immunities as are imposed or conferred by this Ordinance or any other law on a police officer of equivalent rank.
(2) (a) A member or officer of the Royal Hong Kong Defence Force on duty, and while proceeding to and from duty, when the Force has been called out under subsection (1) of section 16 of the Royal Hong Kong Defence Force Ordinance or the unit or part of the Force to which such member or officer belongs, or such member or officer, has been called out under subsection (1) of section 17 of the Royal Hong Kong Defence Force Ordinance shall have the same power of arrest as is conferred on a police officer by section 50 of the Police Force Ordinance and may use such force as may be necessary for that purpose.
(b) Whenever the Governor so directs, a member or officer of the Royal Hong Kong Defence Force on duty, and while proceeding to and from duty, when the Force has been called out under subsection (1) of section 16 of the Royal Hong Kong Defence Force Ordinance or the unit or part of the Force to which such member or officer belongs, or such member or officer, has been called out under subsection (1) of section 17 of the Royal Hong Kong Defence Force Ordinance shall have the same powers, protection and immunities as are imposed or conferred by this Ordinance or any other law on a police officer of equivalent rank.
(3) Without prejudice to the provisions of this Ordinance or of any other law, any member of Her Majesty's forces acting in aid of the civil power shall have the same powers, protection and immunities as are imposed or conferred by this Ordinance or any other law on a police officer.
(4) Without prejudice to the provisions of this Ordinance or of any other law, any commissioned officer in Her Majesty's forces acting in aid of the civil power shall have the powers conferred by subsections (2), (3) and (4) of section 11 and subsection (1) of section 49 on a police officer of or above the rank of inspector.
(5) A certificate purporting to be signed by the Colonial Secretary and stating that a member of Her Majesty's forces was,
A279
Powers of members of certain auxiliary services and Her Majesty's forces.
(Cap. 233,3
(Cap. 1979.)
(Cap. 232.)
A280
Power of Governor to give directions.
Delegation of powers.
Indemnity to persons acting under Ordinance.
Repeal.
(Cap. 244.) (Cap. 245.)
Amendments. (Cap. 211.)
(Cap. 222.)
Ord. No. 64/67.
PUBLIC ORDER
at the time specified therein, acting in aid of the civil power shang be conclusive evidence thereof in all proceedings and for al purposes.
51. (1) The Governor may give such directions as he thinks fit with respect to the exercise or performance by the Commis- sioner of Police or any other police officer of the powers, functions or duties conferred or imposed on him by or under this Ordinance, either generally or in any particular case.
(2) The Commissioner of Police and any other police officer shall, in the exercise or performance of such powers, functions or duties, comply with any directions given by the Governor under subsection (1).
52. The Commissioner of Police may-
(a)
delegate to any police officer of the rank of inspector or above any of the powers conferred on him by section 4, 6, 7, 31, 37 or 41; and
(b) delegate to any police officer of the rank of assistant superintendent or above any of the powers conferred on him by any other provision of this Ordinance.
53. Without prejudice to the provisions of section 46, no person acting in good faith under the provisions of this Ordinance shall be liable in damages or otherwise for any act done by him in pursuance or exercise of any obligation, duty or power imposed or conferred, or reasonably supposed to be imposed or conferred. on him by this Ordinance, if done in good faith, and done or purported to be done in the execution of his duty or for the public safety or for the defence of Hong Kong or for the enforcement of discipline or otherwise in the public interest, if such person be a person holding office under or employed in the service of the Crown in any capacity, whether naval, military, air force or civil. or be an officer or member of the Royal Hong Kong Defence Force or a member of the Hong Kong Auxiliary Police Force acting as such or be a person acting under the authority of a person so holding office or so employed or such an officer or member.
54. The Peace Preservation Ordinance and the Public Order Ordinance are repealed.
55. (1) Sections 12 and 13 of the Malicious Damage Ordin- ance are repealed.
(2) The Corporal Punishment Ordinance is amended by deleting paragraph 9 of the First Schedule thereto.
PUBLIC ORDER
Ord. No. 64/67.
(3) The Police Supervision Ordinance is amended by adding he following after item 14 in the First Schedule thereto-
(Cap. 224,)
"15. The Public Order Ordinance 1967-sections 27, 28, 29 and 30.".
(4) Paragraphs (16), (20) and (21) of section 4 of the Summary Offences Ordinance are deleted and section 19 of the said Ordinance is repealed.
(5) Section 17 of the Hong Kong Auxiliary Police Force Ordinance is amended by deleting "so employed and while pro- ceeding to and returning from duty," and substituting the following-
"under training or performing any voluntary duty under section 18,".
(6) Section 27 of the Arms and Ammunition Ordinance is repealed and replaced by the following-
"'Power to order removal to central store of arms and ammunition.
27. The Governor in Council may, if it appears to him to be necessary or expedient in the interests of public order so to do, by notification in the Gazette order the removal to the said central store of all arms and ammunition in the possession of any importers of, or dealers in, or vendors of arms or ammunition, or of such arms and ammunition only as, in the opinion of the Governor in Council are not in safe keeping or custody, or order the closing of all shops or stores where arms or ammunition are sold and the suspen- sion of the sale of all arms and ammunition during the continuance in force of such notification.".
(7) The City Hall Ordinance is amended-
(a) by deleting the definition "public meeting" in section 2
thereof and substituting the following-
"L
"public meeting" means any gathering or assembly of persons convened or held for any purpose, but does not include any meeting exclusively for the purposes of any public body;";
(b) by deleting subsection (4) of section 6 and substituting
the following-
"(4) The provisions of this section are in addi- tion to and not in derogation from the provisions of any other law requiring the licensing of public meetings.".
(8) The Public Order Curfew (Consolidation) Order is amended by deleting the second sentence in paragraph 2.
(Cap. 228.)
(Cap. 233.)
(Cap. 218)
(Cap. 328.)
A281
(Cap. 245, sub. leg.)
A282
Transitional provisions.
Ord. No. 64/67.
PUBLIC ORDER
56. Any permit issued under Part II of the repealed Public Order Ordinance allowing the person to whom it was issued to enter and leave a closed area shall, if it is in force at the com- mencement of this Ordinance, be deemed to have been issued under section 37.
This printed impression has been carefully compared by me with the Bill which passed the Legislative Council on the 15th day of November, 1967, and is found by me to be a true and correctly printed copy of the said Bill,
(Secretariat CR 3285/57)
D. BARTON. Deputy Clerk of Councils.
(9069) Dd.032652 3m 2/67 G.W.B.Ltd. Gp.863
PARLIAMENTARY QUESTION
NON
for ORAL answer on
950
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The draft reply should reach the Parliamentary Office through your Under-Secretary by
Now
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on www.17/1
La* Mr. Frank Allaun (Salford, East): To ask the
Secretary of State for Foreign and Commonwealth Affairs, whether he will amend the Hong Kong Public Order Ordinance so as to place the burden of proof upon the authorities; and in what circumstances the Ordinance is now intended to be used.
19 December, 1968.
π. Lazeram Linerlock
In the case of all offences constituted under the Public
Order Ordinance a burden of proof rests on the prosecution.
When firend is
The
, however, examining certain provisions of the Ordinance,
in consultation with the Governor, in the light of criticism6
that have been made. The Crdinance forms part of the permanent
law of Hong Kong and is used as circumstances require.
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ARLE
18. 12, 68.
451
Written AnswTES
19 DECEMBER 1968
Commonwealth Economic and
Trading Organjšation
· Mr. Molloy asked the Secretary of State for Foreign And Commonwealth Affairs if he will consider initiating a pro- posal for the establishment of a perman ent British Commonwealth Economic and Trading Organisation.
Mr. Whitlock : No.
What can usefully be done is already dealt with through the Commonwealth Sectariat and the Commonwealth Economic Consultative Committee,
/HR:
Hong Kong Peblic Order Ordinance
Mr. Frank Allaun asked the Secretary of State for Foreign and Commonwealth Affairs whether he will amend the Hong Kong Public Oider Ordinance so as to place the burden of proof upon the autho rities and in what circumstances the Ordinance is now intended to be used.
Mr. Whitlock: In the case of all offences constituted under the Public Order Ordinance a burden of proof rests on the prosecution. My right hon. Friend js, however, examining certain provisions of the Ordinance, in consultation with the Governor, in the light of criticisms that have been made. The Ordinance forms part of the permanent law of Hong Kong and is used as circumstances require.
Convention on the Elimination of All
Forms of Rac ́ol Discrimination
Mr. Atthur Davidson asked the Secre- tary of State for Foreign and Common- wealth Affairs when the United Kingdom will ratify the Convention on the Elimin- ation of All Forms Racial Discrimina- tion.
Mr. Goronyy Roberts: I hope we will be in a position to deposit our Instru- ment of Ratification of this Convention with the Secretary General of the United Nations early in the New Year. Natións
TRANSPORT
The Borders (Report)
72. Mr. David Steel asked the Minister of Transport (1) whether, following publi cation of the report, Transport in the
* R 2
report,
D
Written Answers
Borders, a copy of which has been seŋf to hin. he will make a statement on his picy on these matters;
2) what revenue gure he assumed W on calculong that a social grant of £20,000 would be needed to retain a Howick Edinburgh passenger rail ser vice; on how many trains cach way per day the figure was calculated and on has many passengers per day :
13) to what extent interest charges on past investiment were mcluded in his cost figure when calculating the fecial grant nected to retain all or part of the Waverley Line ;
whether he will indicate in the Official RipORT the nature of the repre- sentations he received about the future of the Waverley Line from the Scottish Transport Users Consultative Committee. the Scottish Council Defelopment and Industry) and the Church and Nation Committee of the Church of Scotland. respectively:
(5) in considering the closure of the Edinburgh-Hawick-Carlisle railway line, what study was made of the possibility of re-routing all Edinburgh-London, Euston, traffic on to this line; and by how much it was estimated such a step would reduce the annual deficit on the operation of the line
(6) whether he will have immediate discussions with British Railways about the findings and recommendations con- cerning the relations between his depart- ment and the Railways Board in the report. Transport in the Borders, a copy of which has been sent to him;
(7) what recommendations were made to him by the Borders Economic Consul- tative Group about the closure of the Edinburgh-Hawick-Carlisle railway:
(8) what information he obtained, before approving the closure of the line. as to the annual revenue from freight carried on the Edinburgh-Hawick-Carlisle railway line to and from places on the
line/to route, and through this route, respec- tively, in each of the last five years :
(9) before coming to a decision to approve closure of the line, what informa- tion he obtained as to how many days in each of the last five years the Edinburgh- Hawick Carlisle railway line was used as a relief route for traffic diverted from other formal routes; and what revenue to
19 Dec 1968.
COL. 457 W
VOL. 7.75
Q1 A
sent b
Hong
в
241
CONFIDENTIAL
SAVING DESPATCH
HKK 14/15
From the Secretary of State for Foreign
and Commonwealth Affairs
To the Officer Administering the Government
of HONG KONG
Date 20 December 1968
No. 711
2.
Public Order Ordinance
Our Saving Despatch 406 of 27 June.
We should be grateful to know what stage has been reached in preparing a draft Bill to amend the Public Order Ordinance on the lines proposed in the above Saving Despatch and in the enclosure to Mr. Robert's letter of 16 February 1968 to Mr. Gordon- Smith.
t
R.F
Bree
I
Registry
No. HKK 14/15
SECURITY CLASSIFICATION
Secret.
Confidential.
PRIVACY MARKING
In Confidence
бол
DRAFT
To:-
1
Saving desfatch Type 1+ 5
OAG.
Hong Kong
No 911
DATE 2018 December 1968
From
Telephone No. & Ext.
Department
Public Order Ordinance
Our saving despatch 406 of
27 June.
2.
We should be grateful to
J
know what stage has been reached
in preparing the
a
draft Bill to
amend the Public Order Ordinance
on the lines proposed in the above saving despatch and in the
enclosure to
Mr. Robert's letter
(42) of 16 February 1968 to Mr
Prew Gordon- Smith
#519 12
Ed. (3746)
NOTHING TO BE WRITTEN IN THIS MARGIN
:
T
CONFIDENTIAL
CYPHER/CAT A
ROUTINE FOREIGN AND COMMONWEALTH OFFICE
ILEGRAM NUMBER
1669
TO HONG KONG
19 DECEMBER 1968. (HKK 1/12)
CONFIDENTIAL.
YOUR TELEGRAM NO 2276.
SEPARATE CONFINEMENT.
THANK YOU FOR THIS INFORMATION.
GRATEFUL TO RECEIVE, AS SOON AS THEY CAN BE PROVIDED, THE STATISTICS REFERRED TO IN LATTER PART OF YOUR PARAGRAPH 1(2)(A) SINCE THE MINISTER HAS UNDERTAKEN TO LET R ALLAUN HAVE THIS INFORMATION AS
SOON AS POSSIBLE.
STEWART.
FILES
HONG KONG DEPT. FAR EASTERN DEPT. NEWS DEPT.
MR. MORETON
NNNNN
RECEIVED IN ARCHIVES No. 31 - 1 JAN 1969.
HKIL 14/15
LAST
CONFIDENTIAL
CONFIDENTIAL
CYPHER/CAT A
ROUTINE HONG KONG
NO 2287
TO FOREIGN AND COMMONWEALTH OFFICE
23 DEC 1968.
CONFIDENTIAL.
YOUR TELEGRAM 1669.
6
I CONFIRM THAT SEPARATE CONFINEMENT HAS NOT SO FAR BEEN AWARDED TO
ANY PRISONER CONVICTED OF OFFENCES ARISING OUT OF THE 1967 DISTURBANCES
IR D. TRENCH
PILES
HONG KONG DEPT.
F. EAST, D. NEWS DEPT. 14. MORETON
NICKY/2S
CONFIDENTIAL
.
Hong Kong A4
1535
C.8. 201
2600100
100×106-11/62-1332005
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CONFIDENTIAL
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SAVINGRAM DESPATCH
& Commonwealth Affairs
To the Secretary * T****Ed Gde¥ K Koh
Repeated to:-
No....
4
No.
No.....
Heated to:-
Date
3.
My Reference
January, 1969. CR 3285/5711
Your Reference.......
וויו
&
Your saving despatch No. 406 of 27th June, 1968.
Public Order Ordinance.
I enclose two copies of a draft Public Order (Amendment) Bill MAT together with an Explanatory Memorandum and the Attorney General's
Comments. The criticisms of the Public Order Ordinance made by the Hong Kong Branch of Justice have been taken into account and where possible incorporated in the draft Bill, as have the contents of your saving despatch No. 406.
2.
I should be grateful, however, to learn whether, in the light of the further views set out in paragraphs 3, 7, 11 and 12 of the Attorney General's Comments, you would be prepared to reconsider your earlier advice on these aspects. You will note that, although in the case of paragraphs 7 and 11 amendments on the lines you suggested have been included in the Bill, I would greatly prefer to omit them as I consider the Commissioner of Police's views have force. In the case of paragraphs 3 and 12 no amendments have been included.
30
You will also wish to note that the Bill provides for the repeal of section 49 of the Ordinance. This section's wide powers of entry and search without warrant have attracted adverse comment.
4.
I should be grateful for your early comments on the Bill, which I would like to introduce in the Legislative Council as soon as possible.
IML/mjc
RECEIVED IN ARCHIVES NO. 31
- 7 JAN 1969
HKK14/15
CONFIDENTIAL
(50) Price
1
.22
A BI LL
To
Amend the Public Order Ordinance and to make consequential
amendments to the Trade Union Registration Ordinance.
Enacted by the Governor of Hong Kong, with the advice and
consent of the Legislative Council thereof.
Short title.
1. This Ordinance may be cited as the Public Order (Amendment)
Ordinance 1968.
Amendment of section 2. (Cap. 245).
2.
Section 2 of the principal Ordinance is amended by
deleting the definition of "meeting" and substituting the following
""meeting" means
(a) any gathering or assembly of persons convened or
organized for any purpose; and
(b) any gathering or assembly of persons, whether or
not previously convened or organized, at which
any person assumes or attempts to assume control
or leadership thereof,
but does not include any gathering or assembly of persons
convened or organized exclusively
(i) for the purposes of any public body; or
(ii) for the purpose of carrying out any duty or
exercising any power imposed or conferred by any
Ordinance;"
Amendment of section 3.
3. Section 3 of the principal Or dinance is amended
-
(a) in subsection (1) by deleting "if the display of any flag,
banner or emblem is, in the opinion of such police officer,
2
likely to cause or lead to a breach of the peace" and
Bubstituting the following -
"if such police officer reasonably believes that the
display of any flag, banner or emblem is likely to
cause or lead to a breach of the peace";
(b) in subsection (2) by inserting, before "necessary" in the
first place where it occurs, the following -
"reasonably".
Amendment of seotion 7.
4.
Section 7 of the principal Ordinance is amended -
(a) in subsection (2), by inserting after "procession" in the
second place where it occurs the following
-
"(or two days before a public procession solely
for the purposes of a funeral)",;
(b) in subsection (5) -
-
(1) by deleting "or" at the end of paragraph (b);
(ii) by deleting the full stop at the end of paragraph (c)
and substituting a semicolon; and
(111) by inserting thereafter the following new paragraphs -
+
(Cap. 132)
"(a) any public meeting held exclusively for
social purposes in any restaurant licensed
under the Public Health and Urban Services
Ordinance; or
(e)
any public meeting solely for the purpose
of a funeral,".
As dment of secti 9.
- 3 -
5. Section 9 of the principal Ordinance is amended
(a) by inserting after "to the final dispersal thereof," the
following -
"unless he is prevented from being so present by
reason of illness or other unavoidable cause,"}
(b)
by deleting "and the period of one hour imediately following
the final dispersal thereof
Amendment of section 11.
6. Section 11 of the principal Ordinance is amended in
subsection (2) by deleting "if the same is causing or is in his
opinion" and substituting the following
Amendment of section 12.
"if he reasonably believes that the same is".
7. Section 12 of the principal Ordinance is amended -
(a)
in subsection (2) by deleting paragraph (a) and substituting
the following
"(a) any public meeting or public procession for which
a licence is required under section 7 takes place
without such a licence;"
(b) in subsection (3) by inserting in paragraph (a) after
"assembly" the following -
", unless he proves that he did not know that it was
an unlawful assembly".
Amendment of section 14.
8. Section 14 of the principal Ordinance is amended in
subsection (1) by deleting "otherwise than in pursuance of lawful
authority" end cubstituting the following
-
"without lawful authority or reasonable excuse".
Amendment of section 15.
9. Section 15 of the principal Ordinance is amended in
subsection (3) by inserting efter "Any person who" the following
', after notice of a prohibition under subsection (1) has
been given,".
Amendment of section 18.
10. Section 18 of the principal Ordinance is amended -
(a) in subsection (1) -
(i) by inserting, before "manner", the following -
"disorderly";
(ii) by deleting "such assembly" and substituting the
following -
"such conduct";
(b) in subsection (3) by deleting "unlawful assembly" in the
first place where it occurs and substituting therefor the
following -
"assembly which is an unlawful assembly by virtue of
subsection (1)".
Amendment of section 23.
11. Section 23 of the principal Ordinance is amended by deleting subsection (2) and substituting the following
5-
W
"(2) Nothing in this section shall make it an offence
for a person to enter upon his own premises if they are in
his possession or in the custody of his servant or agent.".
!
Amendment of section 25.
Section 25 of the principal Ordinance is amended by deleting
"a fight" and substituting therefor the following -
-
Amendment of section 26,
"an unlawful fight".
13. Section 26 of the principal Ordinance is amended by deleting
"or io likely" and substituting the following -
"or which he knows or ought to know is likely".
Amendment of Part V.
14. Part V of the principal Ordinance is amended in the heading
by deleting "AND INTIMIDATING ASSEMBLIES".
Repeal and replacement
of section 27.
15. Section 27 of the principal Ordinance is repealed and
replaced by the following -
"Intimidation.
27. (1) Any person who, with a view to
compelling any other person to abstain from doing
or to do any act which such other person has a
right to do or abstain from doing, without lawful
authority or reasonable excuse
(a) uses violence to or intimidates such
other person or his wife or children,
or injures his property;
(b)
persistently follows such other person
about from place to place;
(c) hides any tools, clothes or other property
owned or used by such other person, or
deprives him of them or hinders him in
--- 6 -
the use of them;
(a) follows such other person in a disorderly
manner in or through any street or road;
(e) watches or besets the house or other place
where such other person resides or works
or carries on business or happens to be
or the approaches to such house or place; or
(f) blocks or causes an obstruction in any
street or road,
shall be guilty of an offence.
(2) Any person who, without lawful authority
or reasonable excuse, does or says anything, or
hehaves in a manner, or utters or distributes any
publication, which is likely to make some other person
apprehensive as to what may happen
(a) to such other person or to any member of
the family or any dependent of such other
person;
(b) to any property, business, undertaking or
interest of such other person or of any
member of the family or any dependant
of such other person;
(c) to any building or place occupied by
such other person or by any member of
the family or any dependant of such
other person; or
Repeal of section 28.
16.
- 7·
(a) to any business or undertaking in which such
other person or cny member of the family or
any dependant of such other person is employed,
shall be guilty of an offence.
(3) Any person guilty of an offence under this
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
dangerous if police officers hesitated because of doubt about their powers.
The view of the S. of 3. was that to require a police officer to act on
reasonable grounds does not mean that he will be prevented from acting
quickly and decisively. The Commissioner of Police has argued strongly
that the test of reasonable belief would place a very heavy burden on
police officers when evaluating whether a particular reeting right reasonably
be expected to lead to a breach of the peace, although the powers conferred
by subsection (2) are exercisable only by police inspectora and above.
The Secretary of State is asked to reconsider his views in the light of the Corcissioner's arguments, though the amendment is included in the Bill,
'by virtue of clause 6,
8.
Clauce 7(a) of the Bill, which seeks to arend section 12(2)
of the Ordinance, gives effent to the views expressed in the Note on paragraphs 13 and 14 of the Justice Report. The Kote proposed to amend subsection (3) by deleting the words "or forrs or continues to form part
The Corri8sioner of Police, however, wishes to see those wordo
retained, contending that those who continue to be present at an unlawful
assembly after being told to disperse should be guilty of an offence. The
Bill, taking this into account, proposes to arend subsection (3) by raking
it a defence for an accused to show that he did not know that it was an
I
4.
unlawful poeting ato. This will provide a defence for an accused- Innocent
bystander who becoren unintentionally involved in an unlawful asse:bly
without knowing that it is one.
9.
Clause 8 amends section 14 by widening the defences to a charge
of carrying an offensive weapon at a public resting or in a public processzor.
Clause 9 in intended to make it clear that the offence contained
10.
in aubsection (3) of section 15 is aired at those who organize a public
gathering in contravention of, and after the issue of, a prohibition under
subsection (1). This trendrent will reet the objections rade in paragraph
17 of the Justice Report.
11.
In the comments in the loto on paragraph 18 of the Justice
Report, it was suggested that the words "noity, disorderly or intimidating"
might be added before "zanner" in the second line of section 18(1). In the
Saving Despatch the corment was rade that it would be preferable to refer
to conduct in a "disorderly manner", on the ground that the word "noisy"
was too vague and might be caused by cheerful spirits and not evil intent,
and that "intimidation" is covered by the word "disorderly". The Commissioner
of Police has objected that a group of persons could conduct therselves
reasonably. other than in a disorderly manner and yet still cause other people to fear
a breach of the peace. There is thought to be puhatance in this objection
and the Secretary of State is asked to reconsider the catter, though an
anendront has been included by clauso 10. The other acerdzents in this
clause will root the objections raised in paragraphe 19 and 20 of the
Justice Report.
12. The Deopatch ouggested that there should be some element of
rons rea in order to establish the offence under section 19 of the
The difficulty is, howover, that this would rake the burden
Ordinance.
of proof on the prosecution so great as to render the section ineffective.
In practice the police, when confronted with an unruly mob, order it to
disperne. Those who choose to retain runt expect to be treated as active
participants. In Hong Kong, a crowd forma with astonishing speed and te
quickly and easily transformed into a dangeroun rob. The police pust le
able to donl with these situations swiftly. If the police are forced to
neparate spectatora from participants when handling a riot, there right
be fatal hesitation in dealing with a dangerous situation. The Secretary
!
- 5-
of State is asked to reconsider his suggestion in the light of these
comments.
13.
Clauses 11, 12 and 13 seek to give effect to the amendments proposed
by paragraphs 23, 28, 29 and 30 of the Justice Report.
14.
Clause 14 amende the heading of Part V by deleting the reference
to intimidating assemblies as this offence is to be abolished.
15.
Paragraphs 31 and 32 of the Note propose to repeal section 27
and replace it with a modified version of section 47 of the Trade Union
Registration Ordinance. However, intimidation is a grave danger to the
ordinary citizen and it is necessary to have a full provision to deal with
this. After discussion of this section with the Commissioner of Police, it
is considered necessary to retain paragraph (a) of the existing section.
Thus subsection (1) of the new section is drawn largely from section 47 of
the Trade Union Registration Ordinance while subsection (2) reproduces
paragraph (a) of the present section. The scope of subsection (1) has been
extended to cover the blocking of a street or road. Past experience has
revealed that this method is often employed by intimidators.
In subsection
(2) the defences are widened to lawful authority or reasonable excuse.
16. The offence of intimidating assembly is to be abolished in view
of the fact that a person who takes part in an intimidating assembly can.
be prosecuted for taking part in an unlawful assembly. Consequently sections.
28 and 30 are to be repealed.
F-
17.
Clauses 18 and 19 give effect to the suggestions contained in
paragraphs 37 to 41 of the Justice Report.
18.
Clauses 20, 21 and 22 contain amendments to Part VII of the
Ordinance, which deals with closed areas. These provisions are intended to
replace the Emergency (Closed Areas) Regulations, which we introduced during
the disturbances last year. Clause 20 amends section 36 so that a closed area
order must be published in the Gazette although the order will be effective
from the day on which it is made. Also a closed area may be sealed off by
the erection of barriers or some other means. Clause 21 will enable a permit
to enter a non-military closed area to be issued either by the
Commissioner of Police or by a person authorized to do so in the
closed area order. Clause 22 widens the powers of arreat and
་
extends those powers to members of the Essential Services Corps and to
those appointed to guard closed areas by a person authorized in that
behalf in the closed area order. Clause 22 empowers police inspectors
and above to detain and remove unauthorized persons from a closed area.
Past experience has demonstrated the need for a method whereby persons in
charge of important installations, such as oil refineries, gas works or
power stations, which are declared closed areas, can issue entry permits
and appoint guards to protect them.
19.
Clauses 23 and 24 implement the suggestions put forward in
paragraphs 43, 46 to 50 of the Justice Report.
20.
Clause 25 repeals section 49, which conferred wide powers of
search and entry, without warrant, on police officers. These powers have
attracted some criticism and it is now thought that the ordinary powers
conferred upon police officers at common law and by the Police Ordinance
are adequate, short of a serious emergency situation.
21.
By clause 26, a new section 50A is added, to make it an offence
to obstruct members of Her Majesty's Forces, members of the Royal Hong
Kong Defence Force or any other person if they are on duty under the
provisions of this Ordinance. In Hong Kong military personnel frequently
work with the police in times of disturbances and it is desirable that
they be afforded some measure of protection from obstruction. The offence
is at present contained in regulation 113 of the Emergency (Principal)
Regulations, which is to be revoked.
22.
Clause 27 effects a number of minor consequential amendments
to the Trade Union Registration Ordinance.
8/éli
A BILL
To
Amend the Public Order Ordinance and to make consequential
amendments to the Trade Union Registration Ordinance.
Enacted by the Governor of Hong Kong, with the advice and
consent of the Legislative Council thereof.
Short title.
1.
This Ordinance may be cited as the Public Order (Amendment) Ordinance 1968.9
Amendment of
section 2.
(Cap. 245).
2. Section 2 of the principal Ordinance is amended by
deleting the definition of "meeting" and substituting the following -
Amendment of section 3.
""meeting" means
(a)
-
any gathering or assembly of persons convened or
organized for any purpose; and
(b) any gathering or assembly of persons, whether or
not previously convened or organized, at which
any person assumes or attempts to assume control
or leadership thereof,
but does not include any gathering or assembly of persons
convened or organized exclusively
-
(i) for the purposes of any public body; or
(ii) for the purpose of carrying out any duty or
exercising any power imposed or conferred by any
Ordinance;".
3. Section 3 of the principal Ordinance is amended -
(a) in subsection (1) by deleting "if the display of any flag,
banner or emblem is, in the opinion of such police officer,
- 2
likely to cause or lead to a breach of the peace" and
substituting the following ·
"if such police officer reasonably believes that the
display of any flag, banner or emblem is likely to
cause or lead to a breach of the peace";
(b) in subsection (2) by inserting, before "necessary" in the
first place where it occurs, the following -
"reasonably".
Amendment of section 7.
4.
Section 7 of the principal Ordinance is amended -
(a) in subsection (2), by inserting after "procession" in the
second place where it occurs the following
-
"(or two days before a public procession solely
for the purposes of a funeral)".;
(b) in subsection (5)
(i) by deleting "or" at the end of paragraph (b);
(ii) by deleting the full stop at the end of paragraph (c)
and substituting a semicolon; and
(iii) by inserting thereafter the following new paragraphs ·
"(d) any public meeting held exclusively for
social purposes in any restaurant licensed
under the Public Health and Urban Services
Ordinance; or
+
(Cap. 132)
(e) any public meeting solely for the purpose
of a funeral.'
- 3-
Am ment of Bection 9.
5.
Section 9 of the principal Ordinance is amended -
(a) by inserting after "to the final dispersal thereof," the
following -
"unless he is prevented from being so present by
reason of illness or other unavoidable cause,"
(b) by deleting "and the period of one hour immediately following
the final dispersal thereof."
Amendment of section 11.
6.
Amendment of section 12.
Section 11 of the principal Ordinance is amended in
subsection (2) by deleting "if the same is causing or is in his
opinion" and substituting the following
"if he reasonably believes that the same is".
7.
Section 12 of the principal Ordinance is amended -
(a) in subsection (2) by deleting paragraph (a) and substituting
the following
"(a) any public meeting or public procession for which
a licence is required under section 7 takes place
without such a licence;";
(b) in subsection (3) by inserting in paragraph (a) after
"assembly" the following -
Amendment of section 14.
8.
", unless he proves that he did not know that it was
an unlawful assembly".
Section 14 of the principal Ordinance is amended in
-
4
subsection (1) by deleting "otherwise than in pursuance of lawful
authority" and substituting the following
"without lawful authority or reasonable excuse".
Amendment of section 15.
9. Section 15 of the principal Ordinance is amended in
subsection (3) by inserting after "Any person who" the following
", after notice of a prohibition under subsection (1) has
been given,".
Amendment of section 18.
10.
Section 18 of the principal Ordinance is amended
-
(a) in subsection (1) -
(i) by inserting, before "manner", the following -
"disorderly";
(ii) by deleting "such assembly" and substituting the
following -
"such conduct";
(b) in subsection (3) by deleting "unlawful assembly" in the
first place where it occurs and substituting therefor the
following -
"assembly which is an unlawful assembly by virtue of
subsection (1)".
Amendment of section 23.
11. Section 23 of the principal Ordinance is amended by
deleting subsection (2) and substituting the following
- 5 -
"(2) Nothing in this section shall make it an offence
for a person to enter upon his own premises if they are in
his possession or in the custody of his servant or agent.".
Amendment of section 25.
12.
Section 25 of the principal Ordinance is amended by deleting
"a fight" and substituting therefor the following -
"an unlawful fight".
Amendment of section 26.
13. Section 26 of the principal Ordinance is amended by deleting
"or is likely" and substituting the following -
"or which he knows or ought to know is likely".
Amendment of Part V.
14. Part V of the principal Ordinance is amended in the heading
by deleting "AND INTIMIDATING ASSEMBLIES".
Repeal and replacement
of section 27.
15. Section 27 of the principal Ordinance is repealed and
replaced by the following -
"Intimidation.
27. (1) Any person who, with a view to
compelling any other person to abstain from doing
or to do any act which such other person has a
right to do or abstain from doing, without lawful
authority or reasonable excuse
(a)
uses violence to or intimidates such
other person or his wife or children,
or injures his property;
(b) persistently follows such other person
about from place to place;
(c) hides any tools, clothes or other property
owned or used by such other person, or
deprives him of them or hinders him in
1
6 -
the use of them;
(a) follows such other person in a disorderly
manner in or through any street or road;
(e) watches or besets the house or other place
where such other person resides or works
or carries on business or happens to be
or the approaches to such house or place; or
(f) blocks or causes an obstruction in any
street or road,
shall be guilty of an offence.
(2) Any person who, without lawful authority
or reasonable excuse, does or says anything, or
behaves in a manner, or utters or distributes any
publication, which is likely to make some other person
apprehensive as to what may happen
P
(a)
to such other person or to any member of
the family or any dependant of such other
(b)
person;
to any property, business, undertaking or
interest of such other person or of any
member: of the family or any dependant
of such other person;
(c) to any building or place occupied by
such other person or by any member of
the family or any dependant of such
other person; or
- 7
(d) to any business or undertaking in which such
other person or any member of the family or
any dependant of such other person is employed,
shall be guilty of an offence.
(3) Any person guilty of an offence under this
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 dependents or of violence or damage to any person
or property.".
Repeal of section 28.
16. Section 28 of the principal Ordinance is repealed.
Repeal of section 30.
17. Section 30 of the principal Ordinance is repealed.
Amendment of section 31.
18. Section 31 of the principal Ordinance is amended in
subsection (2) by. inserting, after paragraph (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 permit holder shall forthwith surrender his
permit.".
-
8.
Amendment of section 32.
19. Section 32 of the principal Ordinance is amended in subsection
(1) by inserting, after "without lawful authority", the following -
7
"or reasonable excuse".
Repeal and replacement of section
36.
20. Section 36 of the principal Ordinance is repealed and replaced.
by the following
Amendment of section 37.
"Closed areas.
36. (1)
(1) The Governor may by order declare any area
or place to be a closed area.
(2) An order 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.".
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,
- 9 -
to any person allowing that person to enter or leave the closed
area." •
Amendment of section 39.
22.
Section 39 of the principal Ordinance is amended by
(a) deleting subsection (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 arrest -
(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) any 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
1
+
10 -
(b) 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.".
Amendment of section 40.
23.
Section 40 of the principal Ordinance is amended -
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 substance of the information received;
(b) the amount of the bond to be executed;
(o) 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";
(d) 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
(g)
"the proposed order";
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 Borce; or
(c) any other person,
exercising any powers or performing any duties conferred
or imposed on him by this Ordinance or by any orders,
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
-
8/1/i
Explanatory Memorandum
This Bill makes a number of amendments to the Public 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 as 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.
Similarly, subsection (2) of
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.
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
BO. (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 dispersal
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
16-
thereof. It is now felt that these conditions can cause problems when the
licensee is unavoidably absent from the meeting. Accordingly, clause 5
proposes to amend section 9 by providing a defence for a licensee who is
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 amends subsection (2) of section 11 so as to oblige a
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
section 7. Also, subsection (3) is amended so as to afford to a person
charged with an offence under the subsection the defence that he 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 curfew 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.
19.
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
constable. (Clause 27).
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 contarfod 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 ropeals 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.
1
18
Public Order (Amendment) Bill.
Comparative Table.
Clause in Bill
Clause 2
Clause 3(a)
Clause 3(b)
Clause 4
Clause 5
"Justice's" Report
Paragraphs 4 and 6.
Paragraph 7.
Paragraph 8.
Paragraphs 6 and 9.
Paragraphs 10 and 11.
Paragraph 12.
Paragraph 14.
Clause 6
Clause 7
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.
Paragraph 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
Clause 22
Clause 23
Clause 24
Clause 25
Clause 26
Clause 27
See Emergency (Closed Areas) Regulations 1967.
Paragraph 43.
Paragraphs 46 to 50.
Paragraphs 51 and 52.
Emergency (Principal) Regulation 113.
Repeals.
8/1⁄2Jñi
COMMENTS
A
of 1 Horney Francoal, thang Kung,
ON
PUBLIC ORDER (AMENDMENT) BILL.
The attached Bill has been prepared to take into account
some of the criticisms of the Public Order Ordinance which were rade
by the Hong Kong Branch of Justice in their Report on it. The Bill
also enacts, with modification, sore provisions which are at present
contained in Exergency 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, 1969.
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 (11) of the new
definition. As suggested in paragraph 6 of the Note, the definition is
also acended 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. Faragraph (b) of the new definition
in designed to make it clear that organization of a group in public,
without any prior planning, will make that group into a reeting 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 quitable". However,
the Corrissioner 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 "rade" 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 man with this shocking
weapon was not in possession of an offensive weapon for causing
injury, when he went up to an elderly man and said "can you see
this?", it would be driving a coach and four through this useful
act Prevention of Crime Act, 19537. It would hardly ever be
possible to get a conviction. We know well why it is rather an
obscure definition, viz; because one of the weapons that these
young hooligano like to use is a bicycle chain. The bicycle chain
is not made for injury, but if a boy in swinging e 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
words "or suitable". It follows that without the words "or ouitable", a
person cannot be charged with possessing an offensive weapon if the article
is neither "rade" 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 remain untouched but that those sections of the Ordinance
which create offences in relation to the possession of offensive weapons
should rake 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 Note 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 removal of flags
which might lead to trouble. However, the position has been reconsidered
in the light of the corrents in Saving Despatch No. 406, and the proposed
arendrent is included in clause 3. Subsection (2) is acended as proposed
in the Note.
5.
Clause 4 of the Bill proposes to amend subsection (5) of
section 7 by providing that restings held for social purposes in a
restaurant do not require the licence of the Commissioner of Police.
accords with the views contained in the Note, which also supported the
This
- 3 -
suggestion that funerals should be exempted from the need to obtain a
licence. The Commissioner of Police argued that, as funeral processions
can become a danger to public security, and a severe traffic problem, a
Eeasure of control over them is desirable. The Bill therefore exempta a
funeral meeting from the need for any licence, but requires one to be
obtained, on application not less 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
Paragraph 12 of the Justice Report objected to the words "in his 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 resting too hastily rather than too tardily and that it would be
dangerous if police officers hesitated because of doubt about their powers.
The view of the S. of 3. was that to require a police officer to act on
reasonable grounds does not mean that he will be prevented from acting
quickly and decisively. The Commissioner of Police has argued strongly
that the test of reasonable belief would place a very heavy burden on
police officers when evaluating whether a particular reeting might reasonably
be expected to lead to a breach of the peace, although the powers conferred
by subsection (2) are exercisable only by police inspectors and above.
The Secretary of State is asked to reconsider his views in the light of
the Commissioner's arguments, though the amendment is included in the Bill,
by virtue of clause
8.
Claune 7(a) of the Bill, which seeks to arend section 12(2)
of the Ordinance, gives effect to the views expressed in the Note on
? paragraphs 13 and 14 of the Justice Report. The Note proposed to arend
subsection (3) by deleting the words "or forms or continues to form part
of". The Commissioner of Police, however, wishes to see those words
retained, contending that those who continue to be present at an unlawful
assembly after being told to disperse should be guilty of an offence. The
Bill, taking this into account, proposes to arend subsection (3) by making
it a defence for an accused to show that he did not know that it was an
!
r
unlawful meeting etc. This will provide a defence for an-seeused innocent
bystander who becomes unintentionally involved in an unlawful assembly
without knowing that it is one.
9.
Clause 8 amends section 14 by widening the defences to a charge
of carrying an offensive weapon at a public meeting or in a public procession.
Clause 9 is intended to make it clear that the offence contained
10.
in subsection (3) of section 15 is aimed at those who organize a public
gathering in contravention of, and after the issue of, a prohibition under
subsection (1). This amendment will meet the objections made in paragraph
17 of the Justice Report.
11. In the comments in the Note on paragraph 18 of the Justice Roport, it was suggested that the words "noisy, disorderly or intimidating" might be added before "manner" in the second line of section 18(1). In the
Saving Despatch the comment was made that it would be preferable to refer
to conduct in a "disorderly manner", on the ground that the word "noisy"
was too vague and might be caused by cheerful spirits and not evil intent,
and that "intimidation" is covered by the word "disorderly". The Commissioner
of Police has objected that a group of persons could conduct themselves
reasonably other than in a disorderly manner and yet still cause other people to fear
a breach of the peace. There is thought to be substance in this objection
and the Secretary of State is asked to reconsider the matter, though an
amendment has been included by clause 10. The other amendments in this
clause will meet the objections raised in paragraphe 19 and 20 of the
Justice Report.
12. The Despatch suggested that there should be some element of
mene rez in order to establish the offence under section 19 of the
The difficulty is, however, that this would make the burden
Ordinance.
of proof on the prosecution so great as to render the section ineffective.
In practice the police, when confronted with an unruly mob, order it to
disperso. Those who choose to retain must expect to be treated as active
participants. In Hong Kong, a crowd forms with astonishing speed and is
quickly and easily transformed into a dangerous mob. The police must be
able to deal with these situations swiftly. If the police are forced to
separate spectators from participants when handling a riot, there might
be fatal hesitation in dealing with a dangerous situation. The Secretary
5-
of State is asked to reconsider his suggestion in the light of these
comments.
13.
Clauses 11, 12 and 13 seek to give effect to the amendments proposed
by paragraphs 23, 28, 29 and 30 of the Justice Report.
14.
Clause 14 arends the heading of Part V by deleting the reference
to intimidating assemblies as this offence is to be abolished.
15.
Faragraphs 31 and 32 of the Note propose to repeal section 27
and replace it with a modified version of section 47 of the Trade Union
Registration Ordinance. However, intimidation is a grave danger to the
ordinary citizen and it is necessary to have a full provision to deal with
this. After discussion of this section with the Commissioner of Police, it
is considered necessary to retain paragraph (a) of the existing section. Thus subsection (1) of the new section is drawn largely from section 47 of the Trade Union Registration Ordinance while subsection (2) reproduces paragraph (a) of the present section. The scope of subsection (1) has been
extended to cover the blocking of a street or road. Past experience has
revealed that this method is often employed by intimidators.
In subsection
(2) the defences are widened to lawful authority or reasonable excuse.
16. The offence of intimidating assembly is to be abolished in view
of the fact that a person who takes part in an intimidating assembly can
be prosecuted for taking part in an unlawful assembly. Consequently sections
28 and 30 are to be repealed.
17.
Clauses 18 and 19 give effect to the suggestions contained in
paragraphs 37 to 41 of the Justice Report.
18.
Clauses 20, 21 and 22 contain amendments to Part VII of the
Ordinance, which deals with closed areas. These provisions are intended to
replace the Emergency (Closed Areas) Regulations, which were introduced during
the disturbances last year. Clause 20 amends section 36 so that a closed area
order must be published in the Gazette although the order will be effective
from the day on which it is made. Also a closed area may be sealed off by
the erection of barriers or some other means. Clause 21 will enable a permit
to enter a non-military closed area to be issued either by the
Commissioner of Police or by a person authorized to do so in the
closed area order. Clause 22 widens the powers of arrest and
extends those powers to members of the Essential Services Corps and to
those appointed to guard closed areas by a person authorized in that
behalf in the closed area order. Clause 22 empowers police inspectors
and above to detain and remove unauthorized persons from a closed area.
Past experience las demonstrated the need for a method whereby persons in
charge of important installations, such as oil refineries, gas works or
power stations, which are declared closed areas, can issue entry permits
and appoint guards to protect them.
19.
Clauses 23 and 24 implement the suggestions put forward in
paragraphs 43, 46 to 50 of the Justice Report.
20.
Clause 25 repeals section 49, which conferred wide powers of
search and entry, without warrant, on police officers. These povers have
attracted some criticism and it is now thought that the ordinary powers
conferred upon police officers at common law and by the Police Ordinance
aro adequate, short of a serious emergency situation.
21.
By clause 26, a new section 50A is added, to make it an offence
to obstruct members of Her Majesty's Forces, members of the Royal Hong
Kong Defence Force or any other person if they are on duty under the
provisions of this Ordinance. In llong Kong military personnel frequently
work with the police in times of disturbances and it is desirable that
they be afforded some measure of protection from obstruction. The offence
is at present contained in regulation 113 of the Emergency (Principal)
Regulations, which is to be revoked.
22.
+
Clauso 27 oftects a number of minor consequential amendments
ation
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
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Date......
3rd
March, 1969.
My Reference......CR...3285/57-
II
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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.
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1-5 MAR 1969
HKIL 14/15
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8) on Part A of HWB 14/34
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26/E/on
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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
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Hong Kong Department
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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
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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.
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L. A. Hicks
Deputy Overseas Pelice Advicer
13 March, 1969
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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
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Mr. Carter
Reference
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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.
-
This
Shortly after the enactment of the Ordinance, the Reform Club of Hong Kong (an organisation of some 5,000 paid-up members) submitted a petition to Parliament copy attached) on the subject of the Crainance, through the medium of Mr. John Rankin, K.F. The petition asked for the Ordinance to be disallowed. The Ordinance was also the subject of considerable criticism by the Hon Fong branch of "Justice". criticism was set out in a comprehensive memorandum sent to the Department by "Justice": and this memorandum has received close examination both by our Legal Advisers and by the Attorney-General in Hong Kong. "Justice's" main criticisms were concerned with the increased powers given by the Ordinance to Police Officers in order to strengthen the hands of the latter in dealing with lawless elements in the community; and with certain provisions which created offences in connexion with unlawful assemblies and which, in the view of "Justice", were such as to do away with the requirement that guilty intent should exist before an offence could be committed,
4.
The Ordinance has also been the subject of two Parliamentary questione by Mr. Frank Allaun (one on 19 December, 1968 and one on 10 February, 1969). Both of these questions were concerned with the burden of proof being placed on the authorities and he was given the same reply to both questions, namely that the Secretary of State was examining certain provisions of the Ordinance in consultation with the Governor in the light of criticisms that had been made.
/5.
Flag A
|
!
5. The attached draft Bill (which is the one referred to in paragraph 1 above) is the result of these consultations. It should be viewed from two aspects: first as regards the extent to which it purports to incorporate emergency legislation into the permanent law: and second from the point of view of the extent to which it meets the various criticisms which have been levelled at the principal Ordinance.
6. As regards the first of these considerations, the only additional emergency legislation which has been included in the draft Bil relates to clause 26
thereof. This is designed to incorporate into the principal Ordinance, Emergency (Principal' Regulation 113 which makes it an offence for any person to obstruct any member of the Naval, Military or Air Forces or any Police Officer, acting in the course of their duty. I hardly think that this clause is likely to give rise to any difficulty. The Bill is also concerned with amending certain sections of the principal Ordinance which had been incorporated into the principal Ordinance from emergency legislation. The only clause of the Bill which is worth mentioning in this connexion is clause 15 which repeals, replaces and ameliorates section 27 of the principal Ordinance concerning intimidation and intimidating assemblies.
7.
As regards "Justice's" criticisms of the principal Ordinance, these are met to a very consider- able extent by the draft Bill. There are very few outstanding points remaining and of these the following are the main ones:
(1)
(2)
Section 7 of the Ordinance and Clause 4 of! the Bill:
Control over funeral processions presents a particular problem in the circumstances of Hong Kong. However, it is considered that the powers conferred on the Commissioner of Police by section 7(4) are too wide in relation to funeral processions;
Section 11(2) of the Ordinance and Clause 6 of the Bill:
This concerns the question whether a Folice Officer, when exercising his powers of preventing the holding of or dispersing public gatherings or meetings, should be able to do so "if the same is causing or in his opinion likely to cause or lead to a breach of the peace."
or whether he should only do so:
"if he reasonably believes that the same is likely to cause or lead to a breach of the peace.
The Governor has already accepted a similar amendment to section 3 of the Ordinance (which relates to Folice powers to prohibit the display of flags and emblems) and we can see no difference in principle between the two sections. Nor is it considered that it would in any way hamstring a Police Officer (who has to be of the rank of Inspector or above) if he were required to be reasonably satisfied that the exercise of his powers under the section was necessary before he exercised these powers.
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8.
(3)
Section 12 of the Crdinance and Clause 70) of the B111:
This relates to the question of guilty intent: section 12 (3) (a) makes it an offence for a person to form part of an unlawful assembly. There is a danger that an innocent person might be caught up in such an assembly and be unable to get away from it. Clause 7(b) of the draft Bill endeavours to, put this matter right by making it ence if the person charged could prove that he did not know that it was an unlawful assembly. However, we consider that such an amendment would not be adequate if an innocent person was physically incapable of getting away from an unlawful assembly.
All the above points (and one or two others as well) are dealt with in the attached draft Saving Despatch to the Governor, which has been cleared with the Legal Advisers. The Governor is anxious to introduce the Bill into the Legislative Council as soon as possible, but I am afraid that I do not see how we can give him the go-ahead until we receive his reply to our enquiries.
28 March, 1969
(A. W. Gaminara) Hong Kong Department
1
Mr. Carter
Mr. Moreton
Submission
CONFIDENTIAL
17
PUBLIC ORDER (AMENDMENT) BILL 1969
Problem
The Governor of Hong Kong has forwarded for scrutiny a FLAG FLAG B draft Bill to amend the Public Order Ordinance 1967.
17/2
FLAG C.
The
main purpose of the Bill is to amend the Principal Ordinance
in order to meet certain criticisms which have been levelled
at the latter by "Justice". The Bill also seeks to incorporate
into the Principal Ordinance certain provisions of emergency
legislation; and to ameliorate certain other provisions of the
Principal Ordinance which had previously been taken from
emergency legislation. The Bill goes a long way towards achieving its purposes, but there are a few outstanding points
for which, after discussion with the Legal Advisers, we consider
that the Bill should provide.
Recommendation
2. I recommend that these outstanding points be put to the
Governor in terms of the attached draft Saving Despatch, for
his further consideration.
Background
3. The Hong Kong Public 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 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
CONFIDENTIAL
►
!
FLAG
FLAG
CONFIDENTIAL
been in progress for more than two years prior to its enact-
ment; 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 of the
Ordinance before its enactment and the matter was given
careful and prolonged examination in the Commonwealth Office
before the draft was agreed to. Shortly after the enactment
of the Ordinance the Reform Club of Hong Kong (an organisation
of some 5000 paid-up members) submitted a petition to
Parliament (copy attached) on the subject of the Ordinance,
through the medium of Mr. John Rankin M.P. The petition
asked for the Ordinance to be disallowed. The Ordinance has
also been the subject of two Parliamentary Questions by
Mr. Frank Allaun (copies attached); both of these questions
were concerned with the burden of proof being placed on the
authorities.
Argument
Incorpo- 4. The extent to which the draft Bill seeks to incorporate ration of
Certain provisions of emergency legislation into the Principal Ordinance Emergency Legisla- is very limited indeed; it is confined to Clauses 20, 21, 22 tion.
and 26 and consists of the following provisions:
(1) Section 36 of the Principal Ordinance enables the
Governor by order to declare any area or place to
be a "closed area", and Section 37 sets out the
procedure for the issue of permits to persons
wishing to enter or leave such an area. Clause
20 amends Section 36 to require any order
-
2
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establishing a closed area to be published in the
Gazette; and authorises the Commissioner of Police
or any other authorised person to cause a closed
area to be closed by the erection of barriers or
otherwise. Clause 21 amends Section 37 to provide
that a permit to enter a non-Military closed area
may be issued not only by the Commissioner of
Police but in addition by any other person
authorised by the Governor.
It is proposed to
ask the Governor further to amend Section 37 to
provide for reasonable notice to be given in the
event of the cancellation of any such permit.
(2) Section 39 deals with the powers of arrest by
Members of H.M. Forces in closed areas. Clause
22 extends those powers to members of the
Essential Services Corps and to those appointed
to guard such areas; it also empowers Police
Officers of the rank of Inspector or above to
detain and remove unauthorised persons from a
closed area.
The above provisions are taken from the Emergency (Closed Area) Regulations which were introduced during the disturbances in
1967.
(3) Clause 26 adds a new Section 50A to the Principal
Ordinance which incorporates Regulation 113 of the Emergency (Principal) Regulations. This makes it
an offence to obstruct members of the Services in
the execution of their duty. In Hong Kong military
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personnel frequently work with the Police in times
of disturbances and it is considered desirable
that they should have a measure of protection
from obstruction in the exercise of their duties.
It is not considered that any of the above Clauses give cause
for any objection.
Justice'e 5.
Criti- cisms
FLAG F
42
free
The Principal Ordinance was the subject of considerable
criticism by the Hong Kong branch of 'Justice'. This criticism
was set out in a comprehensive memorandum sent to the Depart-
ment by Justice which has received close examination both by
our own Legal Advisers and by the Attorney General in Hong
Kong.
Justice's main criticisms were concerned with the
increased powers given by the Ordinance to Police Officers
in order to strengthen the hands of the latter in dealing
with lawless elements in the community; and with certain pro-
visions which created offences in connection with unlawful
assemblies and which, in the view of Justice, were such as to
do away with the requirement that guilty intent should exist
before an offence could be committed. The Bill seeks to
rectify the position to the maximum extent possible whilst
retaining for the police those powers which they must have
in order to deal with disturbances in the particular circum-
stances of Hong Kong. But there are a few outstanding matters
of which the following call for comment:
(a) Section 2 of the Ordinance defines an offensive
weapon as "any article made, or adapted for use,
or suitable, for causing injury to the person
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(b)
Justice had criticised the inclusion of the words
"or suitable" on the grounds that under the defini-
tion as it stands, even a pencil might be regarded
as an offensive weapon. The Commissioner of Police,
Hong Kong, has pointed out that in Hong Kong the
commonest offensive weapons used are the cargo hook
and the mineral water bottle, neither of which is
"made" or "adapted" but both of which are eminently
suitable for causing injury. It is considered in
the Department that this argument is sound and that
the definition should stand unamended.
Section 7 of the Ordinance concerns the licensing
of public meetings and processions.
Justice had
commented that the licensing system under this
Section was inappropriate for funeral gatherings;
and that the period of seven days which was
required under this Section to elapse between
an application for a licence and the holding of
the meeting was much too long in the case of
funerals. Clause 4 of the Bill accordingly
amends the Section by reducing the period of
notice required from seven to two days in the
case of a funeral procession; the Clause also
exempts funeral meetings and meetings held for
social purposes in a restaurant, from the need
to be licensed at all. These amendments repre-
sent a definite amelioration of the provisions
of the existing Section; but there remains some
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doubt whether it would always be practicable to
apply for a licence to hold a funeral procession
two days before such procession; and it is con-
sidered that the Commissioner of Police's powers
under Section 7 (4) to refuse such a licence are
too wide and in some cases inappropriate in rela-
tion to funeral processions. It is accordingly
proposed to ask the Governor to give further
consideration to these aspects.
(c) Section 11 (2) confers on a Police Officer of or
above the rank of Inspector the power to prevent,
stop or disperse public processions or meetings
if such are "in his opinion likely to cause or
lead to a breach of the peace" Justice objected
to the words underlined on the grounds that they
conferred an absolute discretion on the police
which could not be challenged in the Courts.
Clause 6 of the draft Bill is accordingly designed
to remedy this situation by deleting the words "in
his opinion" and substituting the words "if he
reasonably believes that the same is". However,
the Governor has asked if this amendment may be
dropped because the Commissioner of Police has
argued strongly that the test of reasonable belief
would place a very heavy burden on Police Officers
when deciding whether a particular meeting might
reasonably be expected to lead to a breach of the
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(a)
peace. However, it is not considered that the
Commissioner's argument should be accepted because:
(1) the principle involved in this amendment has
already been accepted by the Governor in
relation to a similar amendment to Section
3 of the Ordinance by Clause 3 of the draft
Bill.
(2) the Police Officer concerned must be of
or above the rank of Inspector.
(3) the Police officer has the backing of the
indemnity provided by Section 53 of the
Ordinance.
It is therefore proposed to inform the Governor that
it is considered that Clause 6 of the Bill should
remain.
Section 12 (3) of the Ordinance makes it an offence
if anyone "forms or continues to form part of" any
unlawful assembly. Justice criticised the inclusion
of these words on the grounds that they made it
possible for an innocent bystander who had been
caught up in an unlawful assembly to be guilty
of an offence although he may have had no guilty intent. Clause 7(b) of the Bill amends Section 12
(3) by making it a defence for an accused person
to show that he did not know that it was an unlaw-
ful assembly.
However, the proposed amendment
would not cover the case of an innocent person
caught up in an unlawful assembly and unable to
escape from it because of pressure from the crowd.
7
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The proposed amendment could therefore give cause
for further complaint from Justice who might claim
that the substance of their original criticism had clearly been accepted but that the measures taken
to deal with it were inadequate. It is accordingly
proposed to ask the Governor to give further thought
to this matter.
(e) Section 19 provides that when any person taking part
in an unlawful assembly commits a breach of the
peace, the assembly becomes a riot and all the per-
sons assembled are guilty of riot. Justice have
pointed out that this seems a somewhat drastic
modification of common law under which only persons
who are turbulent can be guilty of riot and that
under this Section a person could be guilty without
possessing any criminal intent. The difficulty here
is a practical one: the Police, when confronted with
an unruly mob, order it to disperse and those who
remain must expect to be treated as active partici-
pants; and if the Police are forced to separate
spectators from participants when handling a riot
there might be a dangerous hesitation in dealing
with a critical situation. The Governor therefore
considers that this particular Section should be
allowed to stand as it is. However, it is con-
sidered that the "unlawful assembly" referred to
in this Section should be confined to that defined
in Section 18 (1) and should not include the wider
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Intimi- dation
and less serious form of unlawful assembly defined
in Section 12 (2). Such an amendment would go some
way towards meeting the criticism of this Section.
The matters at (a) - (e) above are dealt with in the attached draft Saving Despatch which has been agreed with the Legal
Advisers.
6. Sections 27, 28, 29 and 30 of the Principal Ordinance
are concerned with intimidation and intimidating assembly.
They were incorporated in the Ordinance from emergency
legislation in 1967 because it was recognised that intimi-
dation was one of the main weapons used by the Communists and that permanent legislation was required to deal with it.
Section 27 has been criticised by Justice on the grounds that
the whole of the Section is governed by the words "without
lawful excuse" which have no constant denotation and would
therefore have to be construed by the Courts. Clause 15 of
the draft Bill makes considerable amendments to the Section
and, notably, replaces the words "without lawful excuse" by
"without lawful authority or reasonable excuse". It is con-
sidered necessary to retain the provisions relating to inti-
midation, but the offence of intimidating assembly is to be
abolished in view of the fact that a person who takes part
in an intimidating assembly can be dealt with under other
provisions of the Ordinance: consequently the draft Bill
provides for the repeal of Sections 28 and 30. It is con-
sidered that these amendments ameliorate the provisions to
a considerable extent and that they should be accepted.
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7.
Conclusions
The draft B111 goes a very long way towards meeting the criticisms which have been levelled at the Principal Ordinance; it also ameliorates certain provisions which had previously been incorporated into the Ordinance from emergency legislation. Provided that the outstanding points dealt with in the attached draft Saving Despatch are satisfactorily resolved, it is con- sidered that approval may now be safely given for the draft
Bill to be enacted by the Hong Kong legislature.
Hong Kong Dept. 24 April, 1969.
whe
A. Waminara
3
agree with the recommendation.
2.
3
In view
interest and the inclusion in modified taken from emergency lequilation
The corticisms of "Justice", of Parliamentary
form
form of some
provisions
5 consider
that
117/6
action at i
ministerial approval should be sought at this stage for the
proposed to take on this draft amending Bell. In the soring despatch we are saying to the Governor in effect
that, subject to meeting is acceptable to us.
3. This amending Bice maker
-
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―
E
on
the points raised, the Bill
a conscientions attempt to meet
CONFIDENTIAL
Justice's
reasonable criticisms of the
(Flan
Original Ordinance, Legal adriers are
Satisfied on this score
subject to the
points we are raising with the Governor.
One of
ow
reservations concerns Section 12
of the ong mal Ordleriance (see para 5 of The draft- Saring despatch);
We still do
not think the proposed amendments to this. Section entirely meet Justice's criticism that
Away
the requirement that
This provision does Guilty intent should exist before an offence can be committed. We believe Mr. Allank had this point in mind when astering his P.Q.s about the burden of froof". (The
on Section 30 of the original but this is being repealed by the
Same point arose
Ordinance
Amending Bill.)
Sof the Governor can waeet
the other points we have
ks
on this
and
consider
L
bare cou
properly claim
raised
to have
5
met all reasonable criticisms of
the legislation.
Mr. Moreton
nis
1.5.
Carter
29/4/69
TEN IN THIS MARGIN
}
CONFIDENTIAL
Registry No.
HKK 14/15
DRAFT Saving Despatch
Type 1 +
SECURITY CLASSIFICATION
From
To:-
Top Secret.
Secret.
Confidential,
Governor,
Telephone No. & Ext.
Restricted.
Unclassified.
PRIVACY MARKING
HONG KONG.
Department
208
.........
..In Confidence
8
17/E
Your Saving Despatch No. 4 of 3 January.
Public Order Ordinance.
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.
Suggested Alternative Paragraph 2
2.
Section 2: (paragraph 3)
If yo
+
in permanent leqntation I am not altogether convinced of the necessity for including
the words "or suitable" in the definition of "offensive weapon"
although I fully appreciate the reasons for the views that you
adhere to there views I would hold on this matter. I should be grateful if you would consider
invite you to discuss Whether it would not be more appropriate to adopt the definition
used in the United Kingdom Prevention of Crime Act 1953. To is
suggested that this particular point might beet be dealt with in-
discussion with Lord Shepherd during his forthcoming visit to
Hong Kong.
1
-
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T
(118281) Dd. 391599 1,500 2/69 Hw.
NOTHING TO BE WRITTEN IN THIS MARGIN
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
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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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NOTHING TO BE WRITTEN IN THIS MARGIN
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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.
:
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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.
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
Commonwealth.
St is
also
acceptable in the UK.
Say with any certainty that violent madhords to
not agami be used by the Communuts in
адам
or other parts of
12
Care
that are cannot-
will
Hong Kong
(with
with mgh
methods
Pote
We
thurh
HAA
a return to violent
21- the
There
are
Therefore Today and
an urately development
present time).
for the foreseeable future fairly exceptional
The threat to law and order in
Circumstances in
ih
8.
But
The
Hong Kong,
threat of violent communist
(being nadagamin Hong Kong
a potential rather
than a
deb atabl
metho els
ん
present one;
Gumal
it-
Seeme
point
banically with
pronicaples
on
that frormons which interfere
10
amorata Butuh legal
H
mens
rea
are required at
the present-
time
timme other
any
12an during
a period of
Communist
violence
10
meet-
which eventualetiy
12em
regulations.
conex
the introduced under emergency
For inclusionm
in fermament
there must the
legulation
for such powers
a continum
ume; need
for the purpose of
mantaning law and order
to say
t is hon-
make the
will make
sufficient
that them
task
much easier,
q
Cannot
the
arquet in Hong Kong
that
ave
have
been inconsistent in this matter.
Precisely the
Same
pronicaple is
out essive
Section 12 (3) (4) of the
Ordinance, where the
proposed Hong Kong amendment
doen nof
The subon
5-(d) of
MY JOYN
para 5 of Sourmes
Desplich No. 208
are relevant f (conces attached).
go far enough
amal
to look at it again
we have asked the Governor topoor or attachiol
༼ ༡
A com of the
submmaci (paras 5 (d) interent) esta
attached together
and of
om
Sarma Despatch
No. 208 (par).
10.
Conclusions
(al
There is nothing unusual
in the love for
امام
Mfensive purposes of articles primarily intended for minocent use.
The resort by communists to violent methods of using whatever articles come to _band) is a potential threat of an exceptional nature to law and order Hong Kong. But such methods
currently being employed
Curt
h-
and
a return
to in
using
them
i not seen
Qu
Labely
(c)
(c)
development at the present time.
involving so for reaching,
Before prevesions involving
interference with Bookish legal firmicples
on
#
went rea
farmanent law,
are embosted in
a continuing need for them
should be established. There is no such
beed at-present.
#
The wonders definition of " offerine weapon
Should be introduced under emergency
requlations when the manténamu
law and
order is threatened by Compragh of violence.
am
organned
гу
ATTORNEY GENERAL'S CHAMBERS
HONG KONG
1st May, 1969.
Sir James McPetrie, K.C.M.G., O.B.E.,
Legal Adviser to the Secretary of State, Commonwealth Office,
Downing Street,
LONDON, S.W.1.
Original a 41C11 18/11
Dear Hamish,
Hong Kong Legislation.
We have noticed that, in recent months, the timo taken to obtain the comments of the F.C.0. on Bills and othor legal matters seems to have become longer than usual. The following are examples
Xx
"
!!
-
Application of Copyright Act 1956 Bill sent to
S. of S. on 10/2/68.
Hong Kong (Non-Domiciled Parties) Divorce (Amendment)
Rules sent on 9/10/68.
Extension of Merchant Shipping (Load Lines) Act 1967 -
sent on 17/10/68.
Illegal Strikes and Lock-outs (Amendment) Bill sent
on 28/11/68.
Consular Relations Bill - sent on 9/12/68.
Public Order (Amendment) Bill - sent on 3/1/69.
Do you think you could possibly try to got those items moving? I appreciate, of course, that your pooplo may be over- worked, but these long dolays do sometinca produen difficultion for us.
Jaus
lubs,
Your Denghoberts
(D.TE. Roberts) Attorney General.
HKIL 14/15
LAST
THES
25
r
25
24
Wreft an HKK W/L
Dear Roberts.
Foreign and Commonwealth Office
London S.W.1
16 May, 1969
I am replying to your letter of 1 May to McPetrie (who is on leave) in which you raise the question of the delays encountered in obtaining the comments of the F.C.0. on Bills and other legal matters sent to us from Hong Kong.
The items that you list in your letter range far beyond the purely legal field and are the responsibility of a number of different departments in the Office. I therefore thought it best to bring your letter to the notice of thoso departments and this I have done.
In your letter you mention the dates on which the different communications relating to the various matters raised were sent to us; and the implication s00M3 to be that Hong Kong are still awaiting replies to those communications. However, I understand that in certain cases replies have already been sont although finality may not necessarily have been reached. For example, in the case of tho Hong Kong (Non-Domiciled Parties) Divorce (Amendment) Rules, a reply was sent to Hong Kong in our Saving Despatch No. 122 of 24 March 1969; in this particular caso the necessary statutory instruments are now being printed and the matter should soon be concluded. So far as the Consular Relations Bill is concerned, I gather that Russell of our Consular Department commented at length in a letter to Maddocks at the beginning of this month. You sent us your Illegal Strikos and Lockouts (Amendment) Bill as long ago as last November, but Foggon, the Overseas Labour Adviser, has since visited Hong Kong and has discussed with your Labour Department the difficulties presented by the proposed legislation. The latest communication on this subject is our telegram No. 315 of 12 May.
As regards the Extension of Xerchant Shipping (Load Linos) Act 1967, this has involved protracted consultations with the Board of Trade and it is proving difficult to reach agreement with them. The department concerned have expressed their regret for failing to send an interim reply to Hong Kong, but thoy cannot hold out any hope that an early conclusion will be reached in this matter.
The Application of Copyright Act 1956 Bill and the Public Order (Amendment) Bill both have strong political implications which require consideration at Ministerial level. In addition, the Copyright Act has raised issues of policy which have been the subject of protracted correspondence with the Secretariat. cannot say how long it will be before you receive a reply on this particular matter, but I understand that a saving despatch dealing with the Public Order (Amendment) Bill is expected to issue within the next week or two.
H
or
The truth of the matter is that none of the issues which you mention in your letter is straightforward: they are all either fairly complex in themselvos; they have a very strong political content; or they have necessitated prolonged consultations with other Departments of H.M.G. I am sorry if the delays in reaching finality are causing you inconvenience but they are not, as you will appreciato, due to lack of activity here.
The Honourable D.T.E. Roberts, 0.3.E., Q.C.
Yours sincerely Hugh
རིམ་བ
Enley
(H.L.M. Oxley)
LAST
24
!
.
AKK
}
F
1
AL
26
DIO
7th June 1969
Ongenal
анки пер
1119
I shall have to follow up most of the points which arose here after my return, but in the meantime here is some advance information on one or two subjects.
18/11
Emergency Regulations (Brief No.7) I have discussed with the Attorney General the point made in the draft letter from Arthur Galsworthy to the Governor about the Principal Emergency Regulation No. 96. He accepts the proposed change in the definition of the powers conferred on police officers to require people to identify themselves. As Lord Shepherd had no points to raise on the brief I think that the draft letter could now issue, provided the last paragraph is amended to imply con- firmation of this discussion
би
bu 10.7/69
脑
भी
6.69
30.6.
the 10.9.09
for (22)
19/8.69
10/7/69.
ANG
ין
19.6 69.
1
I
Representations from the local bar discussed with the Goverpór, the Chief Justice and the Attorney General along the lines of the brief. The Attorney General was concerned that Hong Kong had not had copies of all the correspondence and Indeed that de Basto vas n direct communication with Lord Shepherd. However on the substance therems agreement that a slightly more forthcoming reply could be sent so as not to exclude the possibility of appointments from the local bar at some time in the future. I enclose a copy of a revised draft which was agreed here, and Lord Shepherd/should be asked to sign on his return. It was considered preferable that the letter should not be sent to de Basto from here. the letter has been signed, copies of it and of/related correspondence should be sent to the Governor.
Public Order Ordinance Lord Shepherd has agreed to the definition of an offensive weapon desired by the Hong Kong Government.
When
Is the question of the Kai Tak extension is more urgent I shall be sending you a telegram about this.
SAVED IN
REGISTRYN bi
(JOHN)
18 JUN 1969
W.S. Carter Esq., 0,
Foreign & Commonwealth Office.
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CONFIDENTIAL
VISIT OF DEPUTY UNDER-SECRETARY OF STATE
(SIR LESLIE MONSON)
TO HONG KONG, OCTOBER, 1969
EMERGENCY LEGISLATION AND THE PUBLIC ORDER
ORDINANCE
Note No. 7
BACKGROUND
Emergency Legislation
Nearly all emergency legislation in Hong Kong has now been either revoked or suspended. This applies both to
emergency legislation which, for one reason or another, had
been in force prior to the disturbances of 1967 and to the
considerable body of such legislation which was brought into
force during 1967 in order to deal with those disturbances.
The only emergency legislation now in force in the Colony is confined to the Emergency (Detention and Deportation of Aliens) Regulations (which have been in force in one form or another since 1956 and which, in the particular circumstances of the Colony, are required on a permanent basis because of the virtual impossibility of deporting anyone to China); and to a dozen other regulations which will be either revoked or discontinued as soon as their provisions have been incorporated in permanent legislation. None of these remaining Regulations is of a contentious character.
Public Order Ordinance
2. The Public 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 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. The Governor sought our views on the draft Ordinance before its
/ enactment
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see hik
i
7A
enactment and the proposed legislation was given careful and prolonged examination in the Commonwealth Office before it was agreed to. Shortly after its enactment the Ordinance was strongly criticised by "Justice". It was also the subject of a petition to Parliament by the Reform Club of Hong Kong (an organisation of some 5,000 paid-up members) which was submitted through Mr. John Rankin, M.P. In February 1969 Mr. Frank Allaun asked two Parliamentary Questions about it.
Amending Bill
3. In January 1969 the Governor forwarded a draft Bill to amend the Principal Ordinance, the main purposes of which were to meet the criticisms of "Justice"; to incorporate into the Ordinance certain provisions of emergency legislation (see paragraph 1 above) and to ameliorate certain other provisions of the Ordinance which had previously been taken from emergency legislation. The Bill goes a long way towards achieving its objects, but there are a few outstanding points for which, after discussion with the Legal Advisers, we consider that the Bill should provide. These points were set out in our Saving Despatch to Hong Kong No. 208 of 22 May, 1969, (copy attached).
4.
Points to be raised
There are no matters calling for comment so far as emergency
legislation is concerned.
5. Matters now in issue are related to the Public Order Ordinance and are confined to those raised in our Saving Despatch No. 208. (The point dealt with in paragraph 2 of the Saving Despatch has already been resolved since Lord Shepherd agreed, during his visit to Hong Kong in June, to accept the Governor's views.) It is likely that the Hong Kong authorities will resist some, at least, of the remaining proposals in our despatch. There is reason to believe that differences of opinion have arisen between the Attorney General and the Commissioner of Police on these points, the latter being more
likely to offer the stronger resistance.
6.
A reply to our Saving Despatch has now been outstanding
for
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for more than four months (during part of which the Attorney General has been on leave) and we are anxious that the amending Bill should become law as soon as possible, to avoid renewed criticism of the legislation in Hong Kong and here in Parliament. If a suitable opportunity arises in Hong Kong,
it might be asked when we may expect to receive a reply.
7. Briefing material has not been supplied for detailed
discussion of the outstanding points. In our view such
discussions should be avoided since much of the argument turns
on technical legal considerations and any counter-arguments
advanced by Hong Kong would have to be carefully considered
by Legal Advisers here.
Hong Kong Department October, 1969
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29
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Registry No.
SECURITY CLASSIFICATION
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Secret.
Confidential.
Restricted. Unclassified.
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From
Telephone No. & Ext.
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(27)
Annex Ag Note No.
7
VISIT OF DEPUTY UNDER-SECRETARY OF STATE
SIR LESLIE MONSON)
TO HONG KONG, OCTOBER, 1969
EMERGENCY LEGISLATION AND THE PUBLIC ORDER
ORDINANCE
BACKGROUND
Emergency Legislation
Nearly all emergency legislation in Hong Kong has
now been either revoked or suspended.
This applies both
to emergency legislation which, for one reason or
another, had been in force prior to the disturbances of
1967 and to the considerable body of such legislation
which was brought into force during 1967 in order to
deal with those disturbances. The only emergency
legislation now in force in the Colony is confined to
the Emergency (Detention and Deportation of Aliens)
Regulations (which have been in force in one form or
another since 1956 and which, in the particular circum-
stances of the Colony, are required on a permanent
basis because of the virtual impossibility of deporting
anyone to China); and to a dozen other regulations which
will be either revoked or discontinued as soon as their
provisions have been incorporated in permanent legisla-
tion. None of these remaining Regulations is of a
contentious character.
/Public
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Public Order Ordinance
2. The Public 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 various pro-
visions 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.
Governor sought our views on the draft
The
Ordinance before its enactment and the proposed
legislation was given careful and prolonged
examination in the Commonwealth Office before
it was agreed to. Shortly after its enactment
was strongly the Ordinance became the target of considerable
critichem which wee levelled at it by "Justice".
It was also the subject of a petition to
Parliament by the Reform Club of Hong Kong (an
organisation of some 5,000 paid-up members)
which was submitted through the medium of
Mr. John Rankin, M.P4 and it was the subject of two Parliamentary Questions In February 1969
Mr. Frank Allaun asked two P.Q's. oubout it.
Amending Bill
3. In January 1969 the Governor forwarded
a a draft Bill to amend the Principal
5
which were to
Ordinance, The main purp
purposed
rposes of the Bilt were
to amend the Ordinance in order to
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meet
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T
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meet the criticisme/beveled
"Justice"; to incorporate into the Ordinance
certain provisions of emergency legislation (see paragraph 1 above) and to ameliorate certain other provisions of the Ordinance which had pre-
viously been taken from emergency legislation. The Bill goes a long way towards achieving its
objects, but there are a few outstanding points for which, after discussion with the Legal
Advisers, we consider that the Bill should
provide. These points were set out in our
Saving Despatch to Hong Kong No. 208 of 22 May, 1969, (copy attached), to which we still await-a
reply.
Hong Kong Dept
October, 1969
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14.
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1
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Noty No
STARY OF STATE
VISIT OF DEPUTY UNDER-SECRETARY OF
(SIR LESLIE MONSON,
TO HONG KONG, OCTOBER, 1969
EMERGENCY LEGISLATION AND THE
PUBLIC ORDER ORDINANCE
The background subjeck is oot out in the Annex-to
Suote.
Data Points to be raised
There are no matters calling for comment so far
as emergency legislation is concerned.
5
Matters now in issue are related to the Public
Order Ordinance and are confined to those raised in our
6 ਦ Saving Despatch No. 208 (see copy attached). (The point
dealt with in paragraph 2 of the Saving Despatch has
already been resolved since Lord Shepherd agreed, during
his visit to Hong Kong in June, to accept the Governor's views.) It is likely that the Hong Kong authorities will
resist some, at least, of the remaining proposals in our
despatch. There is reason to believe that differences
of opinion have arisen between the Attorney General and
the Commissioner of Police on these points, the latter
being more likely to offer the stronger resistance. 14. A reply to our Saving Despatch has now been out-
(during part of which the Attorney Gearch has been on me) standing for more than four months and we are anxious
18 / an
that the amending Bill should become law as soon as possible, to avoid renewed criticism of the legislation
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/ in
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in Hong Kong and here in Parliament. We
recognise, however, that further consideration
may have been left in cuspense during the
Attorney General's absence on leave (he has
just retumed-te Hong Kong). In the cireuz-
stances we do not propose to press for a reply
The present time; but If a suitable opportu-
nity arises in Hong Kong, it might be asked
[receive a reply.)
when we may expect to t
27. Briefing material has not been supplied
for detailed discussion of the outstanding
points. In our view such discussions should
be avoided since much of the argument turns on
technical legal considerations and any counter-
arguments advanced by Hong Kong would have to
be carefully considered by Legal Advisers here.
Hong Kong Depor. Debus, 1969.
Mu
29
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14
11
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28
Note No. 7A
VISIT OF DEPUTY UNDER-SECRETARY OF STATE
(SIR LESLIE MONSON)
TO HONG KONG, OCTOBER, 1969
EMERGENCY LEGISLATION AND THE PUBLIC ORDER ORDINANCE
This Note, with the following attachments, are in amplification of Note No. 7:-
2.
(a) A copy of the Public Order Ordinance 1967 (see
paragraph 2 of Note No. 7).
(b) A copy of the draft amending Bill (see paragraph
3 of Note No. 7)
(c) A copy of the Attorney General, Hong Kong's
comments on (b) (see references in Foreign and Commonwealth Office Saving Despatch No. 208).
In paragraph 5 of Note No. 7 it is stated that the matters
now in issue are confined to those raised in our Saving
Despatch No. 208. The following arguments were adduced in
support of the comments contained in that Saving Despatch on
each of the individual matters concerned (references are to paragraphs of the Saving Despatch):-
(a) Paragraph 3:
Section 7 of the Ordinance concerns the licensing of public meetings and processions. "Justice" had commented
that the licensing system under this Section was inappropriate for funeral gatherings; and that the period
of seven days which was required under this Section to elapse between an application for a licence and the holding of the meeting was much too long in the case of funerals. Clause 4 of the Bill accordingly amends the Section by reducing the period of notice required from seven to two days in the case of a funeral procession; the Clause also exempts funeral meetings and meetings held for social purposes in a restaurant, from the need to be licensed at all. These amendments represent a
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/ definite
Polic
Craustuves delay
48 hat
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definite amelioration of the provisions of the existing Section; but there remains some doubt whether it would always be practicable to apply for a licence to hold a funeral procession two days before such procession; and it is considered that the Commissioner of Police's powers under Section 7 (4) to refuse such a licence are too wide and in some cases inappropriate in relation to funeral processions. The Governor has accordingly been asked to give further consideration to these aspects.
(b) Paragraph 4:
Section 11 (2) of the Ordinance confers on a police officer of or above the rank of Inspector the power to prevent, stop or disperse public processions or meetings if such are "in his opinion likely to cause or lead to a breach of the peace". "Justice" objected to the words underlined on the grounds that they conferred an absolute discretion on the police which could not be challenged in the courts. Clause 6 of the draft Bill is accordingly designed to remedy this situation by deleting the words "in his opinion" and substituting the words "if he reasonably believes that the same is" However, the Governor has asked if this amendment may be dropped because the Commissioner of Police has argued strongly that the test of reasonable belief would place a very heavy burden on police officers when deciding whether a particular meeting might reasonable be expected to lead to a breach of the peace. It is not considered that the Commissioner's argument should be accepted because:-
(1) the principle involved in this amendment has already been accepted by the Governor in
relation to a similar amendment to Section 3
of the Ordinance by Clause 3 of the draft
Bill;
(ii) the police officer concerned must be of or
above the rank of Inspector and therefore experienced enough to take decisions of this
/ nature
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nature without undue difficulty;
(iii) the police officer has the backing of the
indemnity provided by Section 53 of the
Ordinance.
(c) Paragraph 5:
Section 12 (3) of the Ordinance makes it an offence if anyone "forms or continues to form part of" any unlawful assembly. "Justice" criticised the inclusion of these words on the grounds that they made it possible for an innocent bystander, who had been caught up in an unlawful assembly, to be guilty of an offence although he may have had no guilty intent. Clause 7 (b) of the Bill amends Section 12 (3) of the Ordinance by making it a defence for an accused person to show that he did not know that it was an unlawful assembly. However, the proposed amendment would not cover the case of an innocent person caught up in an unlawful assembly and unable to escape from it because of pressure from the crowd. The proposed amendment could therefore give cause for further complaint from "Justice" who might claim that the substance of their original criticism had clearly been accepted but that the measures taken to deal with it were inadequate. Governor has accordingly been asked to give further thought
to this matter.
(d) Paragraph 6:
The
"Justice" had suggested that the words "noisy, disorderly or intimidating" might be added before "manner" in the second line of Section 18 (1) of the Ordinance. We had originally suggested that it would be preferable to refer to conduct in a "disorderly manner", on the ground that the word "noisy" was too vague and might be caused by cheerful spirits and not evil intent; and that "intimida- tion" is covered by the word "disorderly". The Commissioner of Police has pointed out that a group of persons could conduct themselves other than in a dis-orderly manner and
yet ...
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yet still cause other people reasonably to fear a breach of the peace. The suggestion in paragraph 6 of our Saving Despatch is intended as a reasonable compromise and it is considered that the use of the phrase "in a disorderly or intimidating manner" would meet the point.
(e) Paragraph 7:
Section 19 of the Ordinance provides that when any person taking part in an unlawful assembly commits a breach of the peace, the assembly becomes a riot and
all the persons assembled are guilty of riot. "Justice"
have pointed out that this seems a somewhat drastic
modification of common law under which only persons who are turbulent can be guilty of riot and that under this Section a person could be guilty without possessing any criminal intent. The difficulty here is a practical
one: the police, when confronted with an unruly mob, order it to disperse and those who remain must expect to be treated as active participants; and if the police are forced to separate spectators from participants when handling a riot there might be a dangerous hesitation in dealing with a critical situation. The Governor therefore considers that this particular Section should be allowed to stand as it is. However, it is considered that the "unlawful assembly" referred to in this Section should be confined to that defined in Section 18 (1) and should not include the wider and less serious form of unlawful assembly defined in Section 12 (2). Such an amendment would go some way towards meeting the criticism of this
Section.
(f) Paragraph 8:
Section 37 of the Ordinance deals with permits to enter and leave a closed area. "Justice" suggested that the
Section should be amended so as to require that reasonable notice should be given in the event of the cancellation of any such permit. Clause 18 of the draft Bill makes such
/ an
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>
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an amendment in respect of Section 31 (in relation to the cancellation of permits issued to persons authorising them to be out of doors after the imposition of a curfew) and we have accordingly suggested that a similar provision should be made in relation to the cancellation of permits
issued under Section 37.
I set in a meeting or Gitt. on 17/4/64 where
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Hong Kong Department October, 1969
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TODANIK
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12
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Spacup
Type 1 +
From
28
Telephone No. & Ext.
Department
Note No. 7A
7.10.69.
27
VISIT OF DEPUTY UNDER-SECRETARY OF STATE
SIR LESLIE MONSON
TO HONG KONG, OCTOBER. 1969
EMERGENCY LEGISLATION AND THE PUBLIC ORDER ORDINANCE
This Note, with the following attachments, are in
amplification of Note No. 7:-
(a) A copy of the Public Order Ordinance 1967 (see
paragraph 2 of Note No. 7).
(b) A copy of the draft amending Bill (see paragraph
3 of Note No.
7).
(c) A copy of the Attorney General, Hong Kong's
comments on (b) (see references in Foreign and
Commonwealth Office Saving Despatch No. 208).
2. In paragraph 5 of Note No. 7 it is stated that the
matters now in issue are confined to those raised in
our Saving Despatch No. 208. The following argumente
have been adduced in support of the comments contained
in that Saving Despatch on each of the individual
matters concerned (references are to paragraphs of
the Saving Despatch):-
(a)
Paragraph 3 j
Section 7 of the Ordinance concerns the licensing
of public meetings and processions. "Justice" had
commented that the licensing system under this Section
M
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was
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W{B}L, 51-7406
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was inappropriate for funeral gatherings; and
that the period of seven days which was required
under this Section to elapse between an applica-
tion for a licence and the holding of the meet-
ing was much too long in the case of funerals.
Clause 4 of the Bill accordingly amends the
Section by reducing the period of notice required
from seven to two days in the case of a funeral
procession: the Clause also exempts funeral
meetings and meetings held for social purposes
in a restaurant, from the need to be licensed
at all. These amendments represent a definite
amelioration of the provisions of the existing
Section; but there remains some doubt whether
it would always be practicable to apply for a
licence to hold a funeral procession two days
before such procession; and it is considered
that the Commissioner of Police's powers under
Section 7 (4) to refuse such a licence are too
wide and in some cases inappropriate in relation
to funeral processions. The Governor has
accordingly been asked to give further considera.
tion to these aspects.
(b)
Paragraph 4
Section 11 (2) of the Ordinance confers on
a police officer of or above the rank of
Inspector the power to prevent, stop or dis-
perse public processions or meetings if such are
"in his opinion likely to cause or lead to a
breach of the peace". "Justice" objected to
the words underlined on the grounds that they
conferred an absolute discretion on the police
which could not be challenged in the courts.
Clause 6 of the draft Bill is accordingly
designed to remedy this situation by deleting
/the
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the words "in his opinion" and substituting the
words "if he reasonably believes that the same
is". However, the Governor has asked if this
amendment may be dropped because the Commissioner
of Police has argued strongly that the test of
reasonable belief would place a very heavy burden
on police officers when deciding whether a parti-
cular meeting might reasonably be expected to
lead to a breach of the peace. It is not con-
sidered that the Commissioner's argument should
be accepted because:-
(1) the principle involved in this amendment
has already been accepted by the Governor
in relation to a similar amendment to
Section 3 of the Ordinance by Clause 3 of
the draft Bill;
(11) the police officer concerned must be of
Therefore
or above the rank of Inspector and experienced enough to take deacious of this nature with and endure cbifficulting s (iii) the police officer has the backing of the
indemnity provided by Section 53 of the
Ordinance.
(c) Paragraph 5 1
Section 12 (3) of the Ordinance makes it an
offence if anyone "forms or continues to form
part of any unlawful assembly. "Justice"
criticised the inclusion of these words on the
grounds that they made it possible for an inno-
cent bystander, who had been caught up in an
unlawful assembly, to be guilty of an offence
although he may have had no guilty intent. Clause 7 (b) of the Bill amends Section 12 (3)
of the Ordinance by making it a defence for an
accused person to show that he did not know that
it was an unlawful assembly.
However, the pro-
posed amendment would not cover the case of an
/ innocent
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W(B)L $1-7406
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innocent person caught up in an unlawful assem-
bly unable to escape from it because of
pressure from the crowd. The proposed amendment
could therefore give cause for further complaint
from "Justice" who might claim that the substance
of their original criticism had clearly been
accepted but that the measures taken to deal
The Governor has
with it were inadequate.
accordingly been asked to give further thought
to this matter.
(d) Paragraph 6 *
"Justice" had suggested that the words
"noisy, disorderly or intimidating" might be
added before "manner" in the second line of
Ordinance
We
Section 18 (1) of the Bill. I had previously originally
been suggested that it would be preferable to
refer to conduct in a "disorderly manner" on
the ground that the word "noisy" was too vague
and might be caused by cheerful spirits and not
evil intent; and that "intimidation" is covered
by the word "disorderly". The Commissioner of
Police has pointed out that a group of persons
could conduct themselves other than in a dis-
orderly manner and yet still cause other people
reasonably to fear a breach of the peace. The
suggestion in paragraph 6 of our Saving Despatch
Cit is considered is intended as a reasonable compromise and] that
the use of the phrase "in a disorderly or inti-
midating manner" would meet the point. (e) Paragraph 7:
Section 19 of the Ordinance provides that
when any person taking part in an unlawful assembly commits a breach of the peace, the assembly becomes a riot and all the persons
assembled are guilty of riot.
"Justice" have
/ pointed
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Hang Kang
Ditor,
DEAV
1969
pointed out that this seems a somewhat drastic
modification of common law under which only
persons who are turbulent can be guilty of riot
and that under this Section a person could be
guilty without possessing any criminal intent.
The difficulty here is a practical one: the
police, when confronted with an unruly mob,
order it to disperse and those who remaine
must expect to be treated as active participants;
and if the police are forced to separate specta-
tors from participants when handling a riot
there might be a dangerous hesitation in dealing
with a critical situation. The Governor there-
fore considers that this particular Section
should be allowed to stand as it is. However,
it is considered that the "unlawful assembly"
referred to in this Section should be confined
to that defined in Section 18 (1) and should not
include the wider and less serious form of unlaw-
ful assembly defined in Section 12 (2). Such an
amendment would go some way towards meeting the
criticism of this Section.
(f)
Paragraph 8;
Section 37 of the Ordinance deals with
permits to enter and leave a closed area.
"Justice" suggested that the Section should be
amended so as to require that reasonable notice
should be given in the event of the cancellation
of any such permit. Clause 18 of the draft Bill
makes such an amendment in respect of Section 31
(in relation to the cancellation of permits
authorises issued to persons to permit them to be out of
doors after the imposition of a curfew) and we
have accordingly suggested that a similar pro-
Alte can colletion the
vision should be made in relation to/permits
issued under Section 37.
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2600027
CS. 20A (Rev.)
SAVING DESPATCH
From the Governor, Hong Kong
297
To the Secretary of State for Foreign and Commonwealth Affairs
No.
1262
Repeated to:-
Repeated to:-
No.
No.
Date.....
November, 1969
My Reference........CR 3285/57
.II
Your Reference
Your saving despatch No. 208 of 22nd May, 1969.
Public Order Ordinance.
I enclose a copy of a revised draft of the Public Order (Amendment) Bill. The revised draft takes into account the contents of your saving despatch No. 208.
2.
The revised draft has been approved by the Executive Council, subject to reconsideration in Executive Council if any substantial points are raised by the Hong Kong Bar Association, the Law Society of Hong Kong or the Hong Kong branch of "JUSTICE" to all of whom copies of the Bill have been sent for comment.
AT:ek
encl.
RIVED IN
¦R. GISTRY No.51
20NOV 1969
HKK 14/15
CONT
LAST
22
FAL
Short title.
1
212
A BILL
To
Amend the Public Order Ordinance and to make consequential amendments
to the City Hall Ordinance.
Enacted by the Governor of Hong Kong, with the advice and consent
of the legislative Council thereof.
1. This Ordinance may be cited as the Public Order (Amendment)
Ordinance 1969.
Amendment of section 2.
(Cap. 245.)
2.
Section 2 of the principal Ordinance is amended by deleting
the definition of "meeting" and substituting the following
""meeting" means
-
(a) any gathering or assembly of persons convened or
organized for any purpose; and
(b) any gathering or assembly of persons, whether or not
previously convened or organized, at which any person
assumes or attempts to assume control or leadership
thereof,
Amendment of section 3.
but does not include any gathering or assembly of persons
convened or organized cxclusively -
(i) for the purposes of any public body; or
(ii) for the purpose of carrying out any duty or exercicing
any power inposed or conferred by ary Ordinance;".
3. Section 3 of the principal Ordinance is amended by deleting
subsections (1) and (2) and substituting the following
-
· 2 -
"(1) Any police officer of or above the rank of inspector may
(a) prohibit the display at a public gathering of any flag,
banner or other emblem;
(b) prohibit the owner, tenant, occupier or person in charge of any premises or place, and the owner or person in charge of
any vehicle, tramcnr, train or vessel from permitting the
display of any flag, banner or other emblem on or at the
premises, place, vehicle, trancar, train or vessel,
if such police officer reasonably believes that the display of any
flag, banner or emblem is likely to cause or lead to a breach of the
peace.
(2) Where a prohibition is issued under subsection (1), any
police officer may seize and detain any flag, banner or emblem, and
may if reasonably necessary
(a) enter any premises or place;
(b) stop and board any vehicle, trancar, train or vessel,
using such force as may be necessary for these purposes.".
Arendment of section 7.
4.
Section 7 of the principal Crdinance is amended -
(a) in subsection (2), by inserting after "procession" in the
second place there it occurs the following
"(or twenty-four hours before a public procession solely
for the purposes of a funeral in the case of a procession
at which the body is present)";
(b) in subsection (4), by inserting after "ray" the following
", except in the case of a public procession solely for
the purposes of a funeral,";
(c) in subsection (5)
-3-
paragraph
(i) by deleting "or" at the end of pre-raph (b);
(ii) by deleting the full stop at the end of paragraph (c)
and substituting a semicolon; and
(iii) by inserting thereafter the following new paragraphs
"(d) any public meeting held exclusively for social
purposes in any restaurant licensed under the
Public Health and Urban Services Ordinance; or
(Cap. 132.)
(e)
any public meeting solely for the purpose of a
funeral.".
Amendment of section 9.
5.
Section 9 of the principal Ordinance is amended -
the
(a) by inserting after "to the final dispersal thereof" the
following -
Amendment of
section 11.
", unless he is prevented from being so present by
reason of illness or other unavoidable cause";
tt
(b) by deleting and the period of one hour immediately following
the final dispersal thersof".
6. Section 11 of the principal Ordinance is amended in subsec-
tion (2) by deleting "if the same is causing or is in his opinion" and
substituting the following -
"if he reasonably believes that the same is".
- 4 -
Amendment of section 12.
7.
Section 12 of the principal Ordinance is wonded
-
(a) in subsection (2), by deleting percgraph (a) and substituting
the following -
"(a) any public macting or public procession for which
e licence is required under section 7 takes place.
without such a licence;";
(b) in subsection (3), by inserting in paragraph (a) after "who"
the following
", without lawful authority or reasonable excuse,".
Amendment of section 14.
8.
Section 14 of the principal Ordinance is amended in subsec-
tion (1) by deleting "otherwise than in pursuance of lawful authority"
and substituting the following
Amendment of section 15.
"without lawful authority or reasonable excuse.
9. Section 15 of the principal Crdinance is amended in subsec-
tion (3) by inserting after "Any person who" the following
-
", after notice of a prohibition under subsection (1) has been
given,".
Amendment of section 18.
10. Section 18 of the principal Ordinance is amended
(a) in subsection (1)
5-
(i) by insorting, before "nanner", the following
"disordew -tiridating, insulting or provocative";
(ii) by deleting "such assembly" and substituting the
following -
"cuch conduct":
(b) in subsection (3), by deleting "unlawful assembly" in the
first place where it occurs and substituting the following
"assembly which is an unlawful assembly by virtue of
subsection (1)",
Ancndment of section 19.
11. Section 19 of the principal Ordinance is amended in subsection
(1) by deleting "unlawful assembly" and substituting the following
Amendment of section 23.
"assembly which is an unlawful assembly by virtue of subsection
(1) of section 18".
12. Section 23 of the principal Ordinance is amended by deleting
subsection (2) and substituting the following -
"(2) Nothing in this section shall make it an offence for a
person to enter upon his cam pronices if they are in his posses-
sion or in the custody of his servant or agent.".
Amendment of
section 25.
13. Section 25 of the principal Crd nance is amended by deleting
"a fight" and substituting the following
Grad
- 6 -
"an unlawful fight".
Amendment of section 26.
14. Section 26 of the principal Ordinance is amended by deleting
"or is likely" and substituting the following
"or which he knows or ought to know is likely".
Amendment
of Part V.
15. Part V of the principal Ordinance is amended in the heading
by deleting "AND INTIMIDATING ASSEMBLIES".
Repeal and replacement of section
27.
16. Section 27 of the principal Crdinance is repealed and
replaced by the following
"Intimida- tion.
27. (1) Any person who, without lawful authority
anything or reasonable excuse, does or says anthing, or behaves
in a manner, or utters or distributes any publication,
which is likely to make some other person apprehensive
as to what may happen
-
(a) to such other person or to any member of the
family or any dependant of such other person;
(b) to any property, business, undertaking or
interest of such other person or of any member
of the family or any dependant of such other
person;
(c) to any building or place occupied by such
other person or by any member of the family
or any dependant of such other person; or
- 7 -
(d)
to any business or undertaking in which such
other person or any member of the family or
any dependant of such other person is
employed,
shall be guilty of an offence.
(2) Any person guilty of an offence under this
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.".
Repeal of section 28.
Repeal of section 30.
17. Section 28 of the principal Ordinance is repealed.
18. Section 30 of the principal Ordinance is repealed.
Amendment of section 31.
19. Section 31 of the principal Ordinance is amended in subsec-
tion (2) by inserting, after paragraph (b), the following new
paragraph
"(c) Upon cancellation of a pernit under paragraph (b), the Con-
missioner of Police shall serve on the permit holder, either
- 8 -
porsonally or by registered post, notice in writing of the
cancellation, and upon receipt of the notice the permit
holder shall forthdth murrender his permit.".
Arendent of section 32.
20. Section 32 of the principal (rainunco is amended in subsec-
tion (1) by inserting, after "uithout lawful authority", the following
"or reasonable excuse",
Rereal and
replacement
21. Section 35 of the principal Ordinance is repealed and
of section replaced by the following
•
36.
Amendment of section 37.
"Closed
areas.
36. (1) The Governor may by order declare any
area or place to be a closed area.
(2) An order nade under subsection (1) shall come
into force at such time as may be specified therein or,
if no time is so specified, imediately 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 Coraissioner of Police and such other
person as may be authorized in any order made under
subsection (1) may cause 2 closed area to be closed
by the erection of barriers or otherwise.".
22. Section 77 of the principal Ordinance is amended
-
(a) by deleting subsection (2) and substituting the following
9
10
"(2) In the case of any closed area, other than a
closed area referred to in subsection (1), a permit ny
be issued -
(a) by the Commissioner of Police; or
(b) by such authority or person as may be speci-
fled for that purpose by the Governor in any
order made under section 36,
to any person allowing that person to enter or leave
the closed area."
(b) by inserting, after subsection (3), the following new
subsection
"(4) Upon cancellation of a permit under this
section, the person cancelling the permit 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 permit holder shall forthwith
ourrender his permit."
Amendment of section 39.
23. Section 39 of the principal Ordinance is amended by
-
(a) deleting subsection (1) and substituting the following
"(1) lithout prejudice to the provisions of this
Ordinance or of any other law, any member of Her
Majesty's forces, or any guard, ray arrest
· 10-
(2)
any person thon he finds in a closed area if
he has reason to suspect that such person has
committed or is about to comit my offence;
(b) any person whom he finds committing any
offence in a closed aroa;
(c) any person whom he finds attempting to enter
a closed aroa, if he has reason to suspect
that such person has not been issued with a
permit under section 37,
and may use such forco as may be necessary for the
purpose.";
(b) inserting, after subsection (2), the following new sub-
sections
-
"(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
renoval therefrom; and
(b) remove therefrom any person who is in a
closed area without permission or authority.
Arendront of
section 40.
#
نا
(4) In this section, "guard" reans
(a) member of the Essential Services Corpo;
(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 35.".
24. Section 40 of the principal Ordinance is amended
(2) 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 4.
25. Section 44 of the principal Crdinance is conded
(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 cider proposed to be rade (hereinafter in subsections
- 12-
(2), (4), (6) and (7) referred to as the proposed order)
in which shall be stated
-
(a) the substance of the information received;
(b) the mount of the bond to be cxocuted;
(c)
the date of commencement and expiry of bond;
(d)
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";
(d) in subsection (5), by deleting "in pursuance of an order as
aforesaid" and substituting the following
"in accordance with subsection (3)";
(e) in subsection (6), by deleting "the order" and substituting
the following
"the proposed order";
1
13
(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)".
fiepeal and replacement of section
19.
26. Section 49 of the principal Ordinance is repealed and
replaced by the following
"Power to require iden- tification.
19. A zuber of Her Majesty's forces acting in the
course of his duty and a police officer, for the purposs
of preventing or detecting any offence, may require any
person to give his correct name and address and produce
any paper in his possession by which he can to identi-
fied, and any person tho fails to comply with any such
requirement shall be guilty of an offence and shall be
liable on sumary conviction to a fine of one thousand
dollars and to imprisonment for six months.'
T:
Addition of
new section 504.
27.
The principal rdinance is amended by adding, after sectica
50, the following new section -
"Obstruction.
- 14 -
50A. Any persa o obstructs -
(a) any member of Her Majesty's forces;
(b) any manber of the Loyal Hong Leng Defence
Force; or
!
(c) any other person,
exercising any powers or performing any duties conferred
or imposed on him by this Crdinance or by any orders,
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 dollara
and to imprisonment for six months,"
+
Amendment of Cap. 328.
28. Section 2 of the City Hall Crdinance is amended by deleting
the definition of "public meeting" and substituting the following
-
""public nesting" means
-
(a) any gathering or assembly of persons convened or organ-
ized for any purpose; and
(b) any gathering or assembly of persons, whether or not
previously convened or organized, at which any person
assures or attempts to assume control or leadership
thereof,
but does not include any gathering or assembly of persona
-
- 15
+
convened or organized exclusively
(i) for the purposes of any public body; or
(ii) for the purpose of carrying out any duty or exercising
any power imposed or conferred by any Ordinance;".
Exxlanatory Memorardum.
relax
This Bill makes a number of amendments to the Public Order
Ordinance which are designed to clarify some provisions about which
doubt has been expressed and to rslas others in order to give better
protection to the public aganist any misuse of powers or against the
possible conviction of persons innocently involved in circumstances
which constitute offences under the Ordinance.
2.
Clause 2 replaces the definition of "meeting" in the princi-
pal Ordinance so as 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 assures 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 Ordin-
ance should be exercised on the basis of reasonable belief rather than
on the basis of the opinion of the police officer. Similarly, subsec-
tion (2) of section 3 is amended so as to ensure that when a police.
officer enters any premises or place it should be "reasonably" neces-
sary for him to do so. The section is also amended so as to control the flying
flaying of flags on vehicles and vessels, as well as on premises.
¡
- 16 -
Clause amends section 7 by providing that an application for
the licence of the Commissioner of Folice for a funeral procession shall
be made not less than twenty-four hours 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 disperal desforsal
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 dis-
persal thereof. It is now felt that these conditions can cause problems
when the licensee is unavoidably absent from the meeting. Accordingly,
clause 5 proposes to amend section 3 by providing a defence for a licen-
see who is absent from a meeting by reason of illness or other unavoid-
able 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 amends subsection (2) of section 11 so as to oblige a
police officer, when cxercising 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 section 7. Also, subsection (3) is amended so as to afford to a
person charged with an offence rader the cubsection the defence of law-
ful authority or reasonable excuse; this is intended to confer protection
on any innocent bystander who becomes unintentionally involved in en
unlawful assembly.
- 17 -
8.
Section 14 is amended ro 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.
9.
(Clause 8).
Subsection (3) of section 15 is aended in such a way as to en-
sure that only those tho 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 auserbly in section 18 is altered
by clause 10 to show that there must be a discrderly element in the
conduct of an assembly Lefore it becomes unlawful. Clauses 10 and 11
also make it clear that sections 18 and 19 apply only to assemblies which
are unlawful by virtue of section 18, and not to assemblics deemed unlaw-
ful by section 12.
11.
The offence of forcible entry under section 23 will not be
committed by a man who enters his own premises. (Clause 12).
12.
A
At present, section 25 applies to any fight in/public place,
which might include a boxing match. This section is confined to unlawful
fights by clause 13.
ion 26 an objective test will have to be applied in
13.
I
deciding w
(Clause 11
n accused has comitted an offence under the section.
i
14.
dation, i
7 of the principal Ordinance, which deals with intimi-
ed by clause 16 and replaced by a new section which is
based on!
ph (a) of the repealed section. It is considered that
the present Lection 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 super-
fluous, because a person who takes part in such an assembly can be
-18-
prosecuted for taking part in an unlawful assembly. Consequently, clauces 17 and 18 seek to repeal sections 28 und 30.
16.
The effect of the amendent to section 31 of the principal Ordi-
nance, contained in clause 19, 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 witlı carrying an offensive
weapon durin: a curfew to put up the defence that he had a reasonable
excuse for so doing. This adds to the existing defence of lawful
authority. (Clause 20).
18.
Clauses 21, 22 and 23 amend Part VII of the principal Ordinance,
which deals with closed areas. In future a closed area order made under
section 35 must be published in the Gazette although the order will be
effective from the day on which it is made. The proposed subsection (3)
of 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 autho-
rized for that purpose in the closed area order. By the new section 37(4),
notice of cancellation of a permit must be given. The powers of arrest
contained in subsection (1) of section 39 are extended to enable a ¿vard
(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.
19.
Section 40 is amended so as to empower the Governor to autho-
rize the Commissioner of Police to appoint, in writing, any person as a
special constable. (Clause 24).
20
Clause 25 makes a number of minor drafting amendments to
section 4.
www
- 19.
21.
Section 449 of the crincipal Criinanco is repealed by clause 26,
This conferred unusually vide povers of search and entry on police
officers and it is now considered that the powers conferred by the
Police Force Ordinance and at cermon law should prove sufficient. It
is replaced by a coction in auch narrower terms, empowering membera of
Her Majesty's forces and police officers, in specified circumstances,
to require a person to identify himself.
22.
Clause 27 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 disturbance work in conjunction
with the police and it is considered desirable that they should have a
measure of protection from obstruction.
23.
Ordinance.
Clause 28 makes a consequential amendment to the City Hall
Attorney General.
Reference..
30
Mr. Rushford
You may wish to refer this file to Sir Arthur Grattan-Bellew who has previously dealt with it.
2.
In January of this year Hong Kong sent us a draft bill to amend their Public Order Ordinance. The bill was designed to meet various criticisms which had been levelled at the principal ordinance by "Justice". The bill went a long way towards meeting those criticisms, but after studying it we went back to Hong Kong in May with certain queries (ace saving despatch at (22) When Sir Leslie Konson visited Hong Kong in October he discussed the matter with the Governor and the latter's advisors: it is clear from Sir Leslie's note at the end of the brief at 28 that Hong Kong were ready to meet all the points that we had raised.
3. le hr.ve now received the further draft bill enclosed with the Hong Kong saving despatch at (29 From a study of this bill it appears to me that Hong Kong have, in fact, virtually met us on all points. For ease of reference I attach front cover, a copy of the principal ordinence and a copy of the carlier draft bill.
at
4. The only particular points to which I would invite attention are as follows:-
5.
(a)
I have underlined in pencil on the revised draft bill behind (29) passages which are new. They appear to be unobjectionable.
(b) Clause 26 of the revised bill repeals and replaces section 4 of the principal ordinance. The background to this amendment is set out in (25) on HK 14/20 attached.
(c) Clause 28 of the revised bill provides for a consequential amendment to the City Hall Ordinance. This had previously been
mentioned.
not
Subject to your views I think that we can now tell Hong Kong that so far ar we are concerned their rvised bill is acceptable. We cannot of course foretell what further points may be raised in Hong Kong by the Bar Association, the Law Society or the
Hong Kong Branch of Justice, to all of whom a copy
of the bill has been sent for comment.
Mr. Gaminara
忪
(A. W. Gaminara)
21 November, 1969.
Ir gamma wishford, the he went on leave, asked
Mr. Ruckford,
me to deal with than
papus.
Jagree the reused Billis aceptable, 26/49 ad frattar Bellur
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
28 November, 1969
No. 532
Affairs
Your Saving Despatch No. 1262.
Public Order Ordinance
I am most grateful for the action taken in your
revised draft Bill to meet the points raised in my
Saving Despatch No. 208.
2/12
LAST
REF.
(29)
NEAT
RCF.
In request to 200 the file when it retumed to Regustin
2
31
171
Registry No. HKK 14/15
DEPARTMENT
Hong Kong
SECURITY CLASSIFICATION
Date and time (G.M.T.) telegram should
reach addressee(s)
PRIORITY MARKINGS
(Date)
Despatched
Ty=kxcret
Blach
Secret
Immediate
Confidential
Restricted
Reusing
Kloclassified
784
CYPHER
Security classification -if any
D
PRIVACY MARKING
[Secu
In-Confidence
En-Clair.
Code-
Cyther
[
Privacy marking -if any
]
CONFIDENTIAL
....
у
Bay
16
NOTHING TO BE WRITTEN IN THIS MARGIN
ACTING GOVERNO.
KONG
.........ILALLLLL
(date)
Draft Telegram to:- Acting Governor Hong Kong
No
[Codeword-if any]
Addressed to
telegram .............
766
And to
(Date).../12 repeated for information to
And to:-
Saving to
HATA HAIHAATHINAIKINAIAAAI
Repeat to:-
Following Parliamentary Question by John Rankin
is for oral reply on 8 December.
"To ask the Secretary of State what consultations
he has had with the Government of Hong Kong in order to
increase the rights of public assembly."
Saving to:-
2.
Distribution:--
files
Copies to:-
HKD
Parliamentary Off Mr. Godden
In the light of your Saving Despatch No. 1262 we
are proposing to submit reply along following lines:
"As a result of consultations that I have had
with the Governor, a draft Bill to amend the Public
Order Ordinance has been prepared and has been referred
to certain interested bodies in Hong Kong. The Bill is
designed to ameliorate certain provisions of the
Ordinance in their application to public assemblies."
3. Since draft Bill has been referred to organisations
mentioned in your Saving Despatch it would be difficult
in replying to supplementaries to refuse to disclose
any of the Bill's contents. Would you see any
objection to such disclosure if this were sought and,
M
(11516) Dd.3192077 300m 10/68 G.W.D.Ltd Cip 863
if not, suggest extent to which such information might
be given?
4.
Grateful to learn earliest whether you agree with
suggested lines of reply and for any material which
might be useful for supplementaries. It would also be
helpful if you could give us some indication of date
when Bill is likely to be introduced in Legislature.
怔
2.12.69.
NOTHING TO BE WRITTEN IN THIS MARGIN
4
1
J
CYPHER/CAT A
CONFIDENTIAL
IMMEDIATE FOREIGN AND COMMONWEALTH OFFICE TELEGRAM NUMBER 766
CONFIDENTIAL
100 COPY
TO HONG KONG
2 DECEMBER 1969 (HKK 14/15)
32)
ULLOWING PARLIAMENTARY QUESTION BY JOHN RANKIN IS FOR ORAL REPLY
ON 8 DECEMBER.
• TO ASK THE SECRETARY OF STATE WHAT CONSULTATIONS HE HAS HAD WITH THE GOVERNMENT OF HONG KONG IN ORDER TO INCREASE THE RIGHTS OF PUBLIC ASSEMBLY,"
2. IN THE LIGHT OF YOUR SAVING DESPATCH NO. 1262 WE ARE PROPOSING TO SUBMIT REPLY ALONG FOLLOWING LINES :
AS A RESULT OF CONSULTATIONS THAT I HAVE HAD WITH THE GOVERNOR, A DRAFT BILL TO AMEND THE PUBLIC ORDER ORDINANCE HAS BEEN PREPARED AND HAS BEEN REFERRED TO CERTAIN INTERESTED BODIES IN HONG KONG. THE BILL IS DESIGNED TO AMELIORATE CERTAIN PROVISIONS OF THE ORDINANCE IN THEIR APPLICATION TO PUBLIC ASSEMBLIES.'*
3. SINCE DRAFT BILL HAS BEEN REFERRED TO ORGANISATIONS MENTIONED ## YOUR SAVING DESPATCH IT WOULD BE DIFFICULT IN REPLYING TO SUPPLEMENTARIES TO REFUSE TO DISCLOSE ANY OF THE BILL'S CONTENTS. WOULD YOU SEE ANY OBJECTION TO SUCH DISCLOSURE IF THIS WERE SOUGHT AND IF NOT, SUGGEST EXTENT TO WHICH SUCH INFORMATION MIGHT BE
GIVEN ?
4. GRATEFUL TO LEARN EARLIEST WHETHER YOU AGREE WITH SUGGESTED LINES OF REPLY AND FOR ANY MATERIAL WHICH MIGHT BE USEFUL FOR SUPPLEMENT- ARIES. IF WOULD ALSO BE HELPFUL IF YOU COULD GIVE US SOME INDICATION
OF DATE WHEN BILL IS LIKELY TO BE INTRODUCED IN LEGISLATURE,
STEWART
FILES
HONG KONG DEPT PARLIAMENTARY UNIT
P.S. TO LORD SHEPHERD
1
33
CONFIDENTIAL
CYPHER/CAT A
IMMEDIATE HONG KONG
TELEGRAM NO. 897
CONFIDENTIAL
TO FOREIGN AND COMMONWEALTH OFFICE
4 DECEMBER 1969
1.
CONFIDENTIAL
32)
ADDRESSED FCO TELNO. 897 OF 4TH DECEMBER.
YOUR TELEGRAM NO. 766.
PARLIAMENTARY QUESTION.
RECEIVED IN REGISTRY No. 51
4. DEC 1969
HICK 14/15
ALTHOUGH THERE IS NO EVIDENCE OF THIS IT WOULD PERHAPS BE PRUDENT
TO ASSUME THAT RANKIN MAY HAVE A COPY OF THE DRAFT BILL IN HIS
POSSESSION, AND SUPPLEMENTARIES MAY THEREFORE RELATE TO SPECIFIC
PROVISIONS MADE OR NOT MADE IN THE BILL.
2. IF YOU AGREE, I SHOULD PREFER THE REPLY TO BE ON SLIGHTLY
MORE FORTHCOMING LINES, AND SUGGEST THE FOLLOWING FOR CONSIDER-
I
ATION:-
THE GOVERNOR HAS HAD UNDER REVIEW VARIOUS PROVISIONS OF THE PUBLIC
ORDER ORDINANCE, INCLUDING THOSE WHICH REGULATE PUBLIC MEETINGS,
PROCESSIONS AND PUBLIC ASSEMBLY. THE REVIEW WAS INITIATED TO
TAKE ACCOUNT OF COMMENTS ON THE ORDINANCE MADE BY VARIOUS INTERESTED
PARTIES IN HONG KONG, AND I HAVE BEEN CONSULTED DURING THE REVIEW PROCESS. A DRAFT BILL HAS BEEN PREPARED WITH THE PURPOSE OF
CLARIFYING SOME PROVISIONS IN THE PUBLIC ORDER ORDINANCE ABOUT
WHICH DOUBT HAD BEEN EXPRESSED AND OF RELAXING OTHERS IN ORDER
TO GIVE BETTER PROTECTION TO THE PUBLIC AGAINST ANY MISUSE OF
POWERS OR AGAINST THE POSSIBLE CONVICTION OF PERSONS INNOCENTLY
INVOLVED IN CIRCUMSTANCES WHICH CONSTITUTE OFFENCES UNDER THE
ORDINANCE. THE BILL HAS BEEN REFERRED FOR-COMMENT BY CERTAIN
INTERESTED BODIES IN HONG KONG. WHEN THEIR COMMENTS HAVE BEEN
RECEIVED AND CONSIDERED THE USUAL PROCESS OF PUBLICATION OF THE
/BILL
CONFIDENTIAL
CONFIDENTIAL
-2-
BILL FOR GENERAL INFORMATION WILL TAKE PLACE BEFORE IT IS
INTRODUCED INTO THE LEGISLATIVE COUNCIL.
3.
YOU WILL BE AWARE OF THE RELATIVELY COMPLEX PROVISIONS OF THE
BILL AND OF THE ORDINANCE THAT IT SEEKS TO AMEND, AND YOU MAY
AGREE THAT IT WOULD THEREFORE BE PREFERABLE TO AVOID AS FAR AS
POSSIBLE VOLUNTEERING INFORMATION ON THE DETAILED CONTENT OF
THE BILL, IN ORDER TO AVOID THE RISK THAT AN ORAL REPLY ON
LEGAL PROVISIONS OF SOME COMPLEXITY AND DELICACY MAY BE MISUNDER-
STOOD OR INCORRECTLY TRANSMITTED TO THIRD PARTIES. IT MAY'
THEREFORE BE ADVISABLE TO ASK FOR NOTICE OF DETAILED POINTS
RAISED IN SUPPLEMENTARIES THOUGH I CAN SEE NO OBJECTION TO YOUR
CONFIRNING, IF ASKED, THAT THE REQUIREMENT CONCERNING LICENSING
OF MEETINGS REMAINS, BUT THAT THE DRAFT, IF APPROVED, WILL HAVE
THE RESULT OF EXCLUDING CERTAIN MEETINGS, FOR EXAMPLE, FUNERAL
MEETINGS OR MEETINGS FOR THE PURPOSE OF CARRYING OUT DUTIES OR
POWERS CONFERRED BY ANY ORDINANCE (SUCH AS CREDITORS MEETINGS)
SEMI COLON ALSO THAT IN A HUMBER OF CASES SPECIFIC PROVISION
WILL BE MADE TO INTRODUCE THE DEFENCE OF LAWFUL AUTHORITY OR
REASONABLE EXCUSE, SO AS TO AFFORD PROTECTION TO PEOPLE UNINTENT-
IONALLY OR INNOCENTLY INVOLVED IN OFFENCES ASSOCIATED WITH
UNLAWFUL ASSEMBLIES,
IF YOU ARE ASKED TO IDENTIFY THE BODIES TO WHOM THE DRAFT BILL
HAS BEEN REFERRED YOU MAY FEEL THAT YOU WILL HAVE TO DISCLOSE
THIS INFORMATION, THOUGH I SHOULD PREFER IF YOU DID NOT VOLUNTEER
THE INFORMATION, SINCE THIS IS MERELY LIKELY TO RESULT HERE IN
THEIR BEING ASKED PREMATURELY BY THE PRESS TO COMMENT PUBLICLY
ON A BILL THAT HAS NOT YET BEEN PUBLISHED. IF THE QUESTION IS
CONFIDENTIAL
/RAISED
CONFIDENTIAL
HONG KONG TELEGRAM NO. 897 TO FCO
-30
RAISED AND HAS TO BE ANSWERED, I HOPE THAT YOU WILL BE ABLE
TO EMPHASISE THAT CONSULTATION WITH THESE BODIES IS BUT A
PRELIMINARY TO PUBLICATION FOR GENERAL INFORMATION AND TAKES
ACCOUNT OF THE FACT THAT IT WAS THESE BODIES THAT MADE SPECIFIC
AND DETAILED CRITICISMS OF THE PRESENT ORDINANCE, SO THAT IT IS
PROPER THAT THEY SHOULD FIRST BE AFFORDED AN OPPORTUNITY TO
COMMENT ON THE BILL.
5. IF THE MORE GENERAL POINT IS TAKEN THAT THE LICENSING PROVIS-
IONS SHOULD BE ABOLISHED ALTOGETHER I SUGGEST THAT YOU SHOULD
REPLY TO THE EFFECT THAT NO RESPONSIBLE BODY IN HONG KONG HAS
CEVIED THE NEED FOR SUCH PROVISIONS, REASONABLY DEFINED, AND THAT,
IN VIEW OF THE EVENTS OF 1967, IT IS CERTAIN THAT PUBLIC OPINION
IN HONG KONG WOULD OPPOSE ABOLITION.
I CANNOT INDICATE A DATE FOR INTRODUCTION OF THE BILL INTO
LEGISLATIVE COUNCIL. THERE HAS SO FAR BEEN NO RESPONSE FROM THE
BODIES TO WHOM THE BILL WAS REFERRED, AND THEY MUST CLEARLY BE
ALLOWED SUFFICIENT TIME TO FORMULATE THEIR VIEWS. THERE IS NO
INDICATION WHATEVER OF PUBLIC INTEREST HERE IN THIS MATTER AT
THE PRESENT TIME.
SIR H. NORMAN WALKER
FILES
H.K.D.
PARL. UNIT
P.S. TO LORD SHEPHERD
CONFIDENTIAL
*La./Co.
Mr. John Rankin (Glasgow, Govan): To ask the Secretary of State for Foreign and Commonwealth Affairs, what consultations he has had with the Government of Hong Kong in order to increase the rights of public assembly.
8th December 1969
I have been consulted by the Governor in the
preparation of a draft Bill to amend the Public
Order Ordinance.
One of the purposes of the Bill
is to ameliorate some provisions of the Ordinance
relating to the rights of public assembly.
Hi Merth
Thy Rest the bereit pl. A 9/19
вебастре
K.I.V. receipt of enacted Ordinance for
desallowwer ((29) refers).
B.u. one
ARG
5,12,69.
पति
now
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46
الغذا
REFERENCES
A | A. Hansard Commons 5 December, 1967, Column 249
B. Hansard Commons, 12 December, 1967, Columns 178-179
Hansard Commons, 19 December, 1968, Column 451 W
Hansard Commons, 10 February, 1969, Column 880
Flag B
Flag C
C.
Flag D
D.
NOTES FOR SUPPLEMENTARIES
Licensing of Public Meetings and Processions
1. The Bill does not envisage any change in the present
requirement that, with certain exceptions, a licence must
be obtained for the holding of a public meeting or procession,
No responsible body in Hong Kong has denied the need for this
requirement.
2. Under the Ordinance public meetings held exclusively for
religious purposes or in a licensed place of public
entertainment do not require a licence. The Bill will extend
this exemption, for example to any public meeting held
exclusively for social purposes in any licensed restaurant
or solely for the purpose of a funeral.
3.
There is a right of appeal to the Governor against any
refusal to issue a licence or against the conditions attached
to such licence.
Ameliorating Provisions of the Bill
4. The Bill reduces the discretion conferred by the
Ordinance on police officers in the exercise of their powers
to stop or disperse public meetings or processions.
/ 5.
10
5.
It seeks to safeguard the position of innocent bystanders
who may unintentionally become involved in circumstances
constituting an offence.
Consultation with interested bodies
6. The Bill has been referred to certain interested bodies
in Hong Kong, for their comments before it is published for
general information. These are bodies which have made
detailed criticisms of the Ordinance.
7.
To be used only if pressed? The bodies concerned are
the Hong Kong Bar Association, the Law Society of Hong Kong
and the Hong Kong Branch of Justice.
Date of Publication of Bill
8. I cannot indicate a date for publication.
The bodies
to which the Bill has been referred will need time to present
their views.
Need for powers to control public meetings and processions
9. In Hong Kong's densely crowded conditions, large crowds
can gather very quickly and the activities of trouble-makers
can lead without warning to widespread disturbances. It is
necessary to be able to exercise control over public meetings
and processions at all times. The Ordinance is designed to
meet this need on a permanent basis.
Emergency Legislation
10. There is no emergency legislation in force relating to
public assemblies.
Reply to Supplementaries requesting detailed information on
public assembly or other provisions of the Bill
11. The draft Bill is a complex one and in order to avoid
any possible misunderstanding in these short exchanges I
would ask the hon. Member to await its publication.
:
33
Oral Answers
34
kind, with reasonable opportunity for people to gather together in this British dependency to enjoy a little British liberty?
Oral Answers
8 DECEMBER 1969
representations from the ambassador of the United Arab Republic on the subject. Her Majesty's Government recognise that the Sinai Peninsula and its terri- torial waters are under the sovereignty of the United Arab Republic, even though at present military forces of Israel are in occupation and control of the peninsula.
Sir Dingle Foot: I thank my hon. Friend for that reply. Does he agree that long-term projects of this sort initiated in occupied territory have the most serious implications, tending to show that the Israeli Government have no intention of complying with the United Nations resolution and leaving the occupied territory? Will he make clear that the British Government do not aprove of any form of participation by a British firm in projects such as these?
Mr. Luard: I agree with my right hon. and learned Friend that such a develop ment does have serious implications. I have already told him that we are look- As ing into the matter for this reason. regards the legal rights and wrongs, my right hon. and learned Friend probably knows that this matter either is already or may shortly be the subject of legal proceedings. For that reason, I imagine that he will not expect me to comment at this time on the legal rights and wrongs.
Hong Kong
(Rights of Public Assembly)
46. Mr. Rankin asked the Secretary of State for Foreign and Commonwealth Affairs what consultations he has had with the Government of Hong Kong in order to increase the rights of public assembly.
Mr. Luard: We have been consulted by the Governor in the preparation of a draft Bill to amend the Public Order Ordinance. One of the purposes of the Bill is to ameliorate some provisions of the Ordinance relating to the rights of public assembly.
Mr. Rankin: Is my hon. Friend aware that that is quite good news? Can he say whether the discussions will reach a stage when we can say that three people are no longer a crowd and four have ceased to be a mass demonstration? Can we look forward to a situation of that
7 D 75
Mr. Luard: I have already told my hon. Friend that the provisions of the new Ordinance will in many ways improve the existing situation. It is designed to give better protection for the public against any misuse of powers or possible conviction of persons innocently involved in a situation which constitutes an offence under the Ordinance.
South Africa (Mr. Philip Golding)
50. Mr. Peter M. Jackson asked the Secretary of State for Foreign and Com- monwealth Affairs whether he will instruct the new British Ambassador to South Africa to make further representations to the Union Government on behalf of Mr. Philip Golding.
Mr. Luard: Representations have been made on behalf of Mr. Golding by my right hon. Friend the Foreign Secretary to Dr. Muller on two occasions. The South African authorities have now said that Mr. Golding will be released after giving evidence at the trial which is taking place in Pretoria.
Mr. Jackson: While thanking my hon. Friend for that reply, may I ask, never- theless, whether he has had his attention drawn to the statement by Chief Justice Bekker on 1st December, that Mr. Golding would be released if his evidence were satisfactory? In other words, this young man is placed in an impossible position. If he gives evidence for the Crown he will be released. He is therefore intimi- dated. My second question to my hon. Friend is to ask him whether, in view of the comments recently made by Sir John Nicholls, our retiring Ambassador, he is entirely satisfied on the nature of the representations which have come from the Embassy?
Mr. Luard: My attention has not been drawn to the first point which my hon. Friend referred to, and I will certainly look into it. As to his second point, we have had no evidence that there is any dissatisfaction with the representations which have been made on behalf of Mr. Golding.
(14)
¡
DATE & DEC 69.
CCL.
VOL
33-34
793
fot
Q&A sent
A. Wry Hang
11/1
wril (34
Mr. Carter
certer
Mr. Wikordi
132 4/12
Parliamentary Office
tor orrice
The attached Question by Mr. Rankin relates to the Hong Kong Public Order Ordinance which inter alia includes provisions for the control of public meetings and processions. As indicated in paragraph 3 below, Mr. Rankin has shown a previous interest in this legislation. Since the legislation
has been referred to certain interested bodies in Hong Kong (paragraph 4 below) he might even have a copy in his possession. If so, his supplementaries may range beyond the scope of his question; in this event it would be advisable to ask for notice since the Bill is a complex one.
The Public Order Ordinance came into operation in November 1967 at the height of the disturbances which took place in the Colony during that year. Its purpose was to consolidate into one piece of legislation the various provisions dealing with public order and to strengthen the law where experience had shown this to be desirable.
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 prolonged examination in the Commonwealth Office before the legislation was agreed to.
2.
HWA14/34 06.13.
Flag/A HLA14/24 (22)
Flag B
Flag
Flag
In December 1967 the Ordinance was the subject of a Question by Mr. Rankin who in the same month presented a petition to Parliament on behalf of the Reform Club. of Hong Kong (an organisation of some 5000 paid-up members) asking for the Ordinance to be disallowed. The Ordinance was also the subject of Questions by Mr. Frank Allaun in December 1968 and February 1969.
4. The Ordinance has been the target of criticism by the Hong Kong Branch of "Justice" (the British section of the International Commission of Jurists). Certain of the points raised by "Justice" were considered to have some substance and there has been correspondence with the Governor with a view to securing certain amendments to the
/Ordinance.
C
Flags
&
Ordinance. As a result, we have recently agreed with the
This Bill Governor the terms of a draft amending Bill.
has received the provisional approval of the Hong Kong
Executive Council and has since been referred to certain interested legal organisations in Hong Kong for their
-
comments (see paragraphs 6 8 of Notes for Supplementaries). It will be further considered in the light of any substantial points raised by those organisations before its publication and introduction into the Hong Kong Legislature for
enactment.
5. The Ordinance provides, inter alia, that with a very few exemptions no public meeting or procession may take place without a licence granted by the Commissioner of Police. In general the draft Bill envisages no change in this requirement, although it adds certain categories of public meetings to the list of exemptions (see paragraph 2 of Notes for Supplementaries). It does, however, seek to ameliorate those provisions of the Ordinance relating to public assemblies to the maximum extent compatible with the overriding need to maintain control over public gatherings of all kinds; in so doing the draft Bill goes a very long way towards meeting the criticisms of "Justice".
6. In the particular circumstances of Hong Kong very large
crowds can gather in a matter of moments. These conditions lend themselves to exploitation by lawless elements. long as there is a militant Communist element within the
community it will be necessary to maintain on a permanent basis special safeguards for the preservation of public order.
So
7. A draft answer to Mr. Rankin's Question is submitted. It is based on an exchange of telegrams with the Governor,
length His own suggested answer is well beyond the acceptable/for a reply to an oral question.
cc
Mr. Godden
Jam mar
(A. W. Ganinara) 4 December, 1969
[P.TO]
9 agree.
The Governor has ashed
that the information
in para ? of the Notes for Supplementaries
should not be used if it can be avoided. See
para 4 of H.K. teł No. 897 (Flag F).
L. 5. Carter
4/12/69
See
X in para 4.
S
understand that
the Governor met
met all th
all the points which
we had to raice about the trap Bill.
Kim Willow Kammiyaw
4
1/12
раван
persmelly
much prefer this Grenna's
reply, which gives the kind of informatio
and a
consultation which in
LA
быль
the charge get across. Grice the reply will in practice con "lainly be writter. I think be should use this.
1
*La./Co. Mr. John Rankin (Glasgow, Govan): To ask the
Secretary of State for Foreign and Commonwealth Affairs, what consultations he has had with the Government of Hong Kong in order to increase the rights of public assembly.
8th December 1969
NO. 46
MR. EVAN LUARD
We have been consulted by the Governor
in the preparation of a draft Bill to amend
the Public Order Ordinance. One of the
purposes of the Bill is to ameliorate some
provisions of the Ordinance relating to the
rights of public assembly.
(9069) Dd.032652 3m 2/67 G.W.B.Ltd. Gp.863
PARLIAMENTARY QUESTION
for ORAL answer on.
Hong Kong Ay
The draft reply should reach the Parliamentary Office through your Under-Secretary by
Now Wed 3/12
46
*La./Co. Mr. John Rankin (Glasgow, Govan): To ask the
Secretary of State for Foreign and Commonwealth Affairs, what consultations he has had with the Government of Hong Kong in order to increase the rights of public assembly.
8th December 1969
Mr. Evan Luard.
We
have been consulted by the Governor in the
preparation of a draft Bill to amend the Public
Order Ordinance.
One of the purposes of the Bill
is to ameliorate some provisions of the Ordinance
relating to the rights of public assembly.
Seminte
Su
12.6/12.
Ed (500)
I
Shot
amwer
то
wed.
Reference
35
Mr. Miers,
P.S. to Mr. Luard
4635
We spoke about the possibility of returning
a more detailed reply to Mr. Rankin's Parliamen-
tary Question about Hong Kong's Public Order
Ordinance if the Question is not reached and the
answer accordingly appears as written. You
agreed to consult the Parliamentary Unit about
the necessary arrangements for this.
2.
I attach an alternative reply based on the
Governor's draft in paragraph 2 of Hong Kong
telegram No.897.
W.5. Carter
(W. S. Carter)
Hong Kong Department
5 December, 1969
Copies to:
Mr. Godden Mr. Wilford
Parliamentary Unit
·5/12.
The Governor has had under review various provisions of
the Fublic Order Ordinance, including those which regulate
public meetings, processions and public assembly. The
review was initiated to take account of comments on the
Ordinance made by various interested parties in Hong Kong,
and I have been consulted during the review process. A
draft Bill has been prepared with the purpose of clarifying
certain provisions of the Ordinance about which doubt had
been expressed; and of relaxing others, including some
relating to the rights of public assembly.
The Bill has been referred for comment by certain
interested bodies in Hong Kong. When their comments have
been received and considered the usual process of publication
of the Bill for general information will take place before
it is introduced into the Legislative Council.
For Use as Written Answer Only
*La/Co.
Mr. John Rankin (Glasgow, Govan): To ask the Secretary of State for Foreign and Commonwealth Affairs, what consultations he has had with the Government of Hong Kong in order to increase the rights of public assembly.
8 December, 1969
win (IT)
The Governor has had under review various provisions of
the Public Order Ordinance, including those which regulate
public meetings, processions and public assembly. The
review was initiated to take account of comments on the
Ordinance made by various interested parties in Hong Kong,
and I have been consulted during the review process. A
draft Bill has been prepared with the purpose of clarifying
certain provisions of the Ordinance about which doubt had
been expressed; and of relaxing others, including some
relating to the rights of public assembly.
The Bill has been referred for comment by certain
interested bodies in Hong Kong. When their comments have
been received and considered the usual process of publication
of the Bill for general information will take place before
it is introduced into the Legislative Council.
23
Mr. Miers,
P.S. to Mr. Luard
Reference.........
We spoke about the possibility of returning
a more detailed reply to Mr. Rankin's Parliamen-
tary Question about Hong Kong's Public Order
Ordinance if the Question is not reached and the
answer accordingly appears as written, You
agreed to consult the Parliamentary Unit about
the necessary arrangements for this.
2. I attach an alternative reply based on the
Governor's draft in paragraph 2 of Hong Kong
telegram No.897.
(W. S. Carter) Hong Kong Department
5 December, 1969
Copies to:
Mr. Godden
Mr. Wilford
Parliamentary Unit
File & (Public Order Ordinance
D3/2/10 Restle attace Fox Co pomo
tex
Iminutes relatiff to
Ed (5084)
Pe. p.6
9/12
P. Order
Ordinan
then
R ST
B.U. A month
CR 3285/57 II
dated
EXTRACT
FROM MINUTES OF THE EXECUTIVE COUNCIL
The following is an extract from the minutes of the Executive Council
4.11.69
י
reference number
M(69)40
AP. Repory.
Date :
Clerk of Councils
XCR (69) 303
The Council considered Memorandum
Acting
The Council ADVISED and the Governor ORDERED:
that the Public Order (Amendment) Bill 1969 be
introduced into the Legislative Council, subject to
reconsideration of the Bill in the Executive Council
if any substantial points are raised by any of the
three bodies mentioned in paragraph 23 of the memorandum,
and subject to an amendment of section 7 of the principa".
Ordinance to modify the definition of 'public procession
for the purpose of a funeral' to exclude processions
at which the dead body is not physically present.
It was also suggested that further consideration be given
to amending section 9 to allow for the licensee to appoint a delegate
to be responsible in his absence.
36
TOO
RECEIVED IN
REGISTRY No.51.
- 5 JAN 1970
LAST PAPER
Rest
L
As
BU
15/1
at
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For discussion
on 4th November 1969
XCR(69)303
Copy No..... of 27
MEMORANDUM FOR EXECUTIVE COUNCIL
FUBLIC ORDER (AMENDMENT) BILL 1969
Annexed for the consideration of Honourable Members is the Fublic Order (Amendment) Bill 1969. This Bill has been pre- pared to take into account some of the criticisms of the Fublic Order Ordinance which have been voiced since its enactment in 1967. 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.
2
Section 7 of the Ordinance provides that public meetings shall only take place in accordance with a licence from the Com- missioner of Folice. A. "meeting" is defined in section 2 of the Ordinance. This has been criticised as being too wide, and fears have been expressed that the definition might include for example meetings of creditors, private parties in restaurants or funeral meetings. Clause 2 of the Bill amends the definition of "meeting" so as to limit it to organised meetings and to spontaneous gatherings at which any person assumes or attempts to assume leadership; it specifically excludes meetings held for statutory purposes e. g. creditors' meetings, while funeral meetings and private parties in restaurants are dealt with in clause 4 which amends section 7.
3
Section 3(1) of the Ordinance empowers police officers of and above the rank of inspector to prohibit the display of flags and banners if such display is, in the opinion of the police officer, likely to cause or lead to a breach of the peace. This power has been criticised on the grounds that it gives the police officer an absolute discretion which is undesirable in view of the indemnity given by section 53 of the Crdinance. This criticism is accepted and section 3(1) is amended by clause 3 so that the powers conferred by the section should be exercised on the basis of reasonable belief, Simi- larly, section 3(2) is amended so that a police officer must have a reasonable necessity for entering any premises or place to seize or detain such flags etc. The section is also amended so as to control the flying of flags on vehicles, trains, tramcars and vessels, as well as on premises.
4
Section 7 of the Ordinance deals with licensing of public meetings and processions, and provides at subsection (2) that appli- cations for licences must be made seven days in advance to the Commissioner of Folice. It has been argued that to require seven days notice for a funeral procession is excessive and this argument is thought to have substance. Clause 4 of the Bill therefore reduces the notice required in such cases to twenty four hours. Subsection (4) of the Ordinance gives the Commissioner of Police powers to refuse to grant a licence for a public procession or meeting if the applicant or those associated with him in the organisation of the meeting procession etc have at any time in the past contravened the law or if the procession etc has been publicised or advertised. The Secretary of State felt that
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2400224 C.S. 84
RESTRICTED
C
XCR(69)303
- 2 -
these provisions were inappropriate to funeral processions. The Commissioner of Police is satisfied that he had adequate powers to control funeral processions because, before granting a licence, he would have to satisfy himself, under section 7(2) of the Ordinance, that the procession was not likely to prejudice the maintenance of public order or be used for any unlawful or immoral purpose. It is therefore accepted that the specific grounds for refusal of a licence for a funeral procession should be deleted. Clause 4 of the Bill provides for this and also exempts from the provisions of section 7 of the Ordinance meetings held solely for the purpose of a funeral as well as meetings held exclusively for social purposes in a restaurant.
5
Section 9 of the Ordinance requires a licensee of a meeting to be present throughout and also to comply with any police directions during the period of one hour after the final dispersal of a meeting or procession. Clause 5 of the Bill amends section 9 so as to provide a defence for a licensee who is absent from a meeting by reason of ill- ness or other unavoidable cause. It also deletes the requirement to comply with directions for an hour after the final dispersal of the meet- ing as this is considered too onerous on the licensee.
6
Section 11 of the Ordinance deals with police powers over meetings, processions and gatherings. Under subsection (2), a police officer of or above the rank of inspector is authorised to intervene to prevent the holding of, stop, disperse, or vary the place or route of any such meetings etc, if in his opinion a breach of the peace would otherwise be likely. The criticism levelled at section 3 (paragraph 3 above) was also levelled at this section, and clause 6 amends section 11(2) by requiring the police officer, when exercising the powers con- ferred by this subsection, to act on a basis of reasonable belief, not personal opinion.
7
Clause 7 amends section 12 in two respects. Firstly, it amends subsection 2(a) by making it clear that a public meeting which has no licence under section 7 is not an unlawful assembly if it is a class of public meeting exempted from the need for a licence under the section. Secondly, it amends subsection 3(a) by providing that a person who is charged with an offence under that paragraph can plead the defences of lawful authority or reasonable excuse. This is intended to confer protection on any innocent bystander who becomes uninten- tionally involved in an unlawful assembly and is unable to make his way out of it.
8
Sections 14 and 32 create offences in relation to possession of offensive weapons. These are defined at section 2 of the Ordinance as "any article made, or adapted for use, or suitable, for causing in- jury 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". This is a very wide definition and it has been considered desirable to amend section 14 and 32 by clauses 8 and 20 so as to make available to an accused the defences of lawful authority and reasonable excuse. The latter defence will provide the necessary protection for the per- son who is innocently in possession of offensive weapons.
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2600224 C.S. 84
9
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- 3 -
XCR(69)303
Section 15 of the Ordinance empowers the Commissioner of Police to prohibit public gatherings. It has been pointed out that, under subsection (3), a person who takes part in the promotion of a gathering before, but not after, a prohibition by the Commissioner of Folice may still be "a person who takes part in the promotion ..... of a public gathering which is
continued in contravention of a prohibition". The amendment proposed by clause 9 will ensure that only those who promote, direct, organise or manage a prohibited gathering after the issue of a prohibition shall be guilty of an offence.
10
Clause 10 amends section 18 by providing that there must be a disorderly, insulting, intimidating or provocative element in the conduct of an assembly before it becomes unlawful.
11
Section 19 of the Ordinance provides that when a breach of the peace occurs at an unlawful assembly the persons assembled thus become a riotous assembly with corresponding penalties. Clause 11 amends this section to make it clear that the unlawful assembly re- ferred to is one which is unlawful under section 18 i. e. one where the conduct is such as to create fear of breach of the peace, rather than under section 12 i. e. one which is unlawful by virtue of being unlicensed.
12
Section 23 is amended by clause 13 so that a man does not commit the offence of forcible entry if he enters his own premises.
13
Section 25 makes fighting in a public place an offence, Thus a boxing match would for example be covered. Clause 14 amends the section so as to cover only unlawful fights.
14
Section 26 which creates an offence if a person without law- ful authority at a public gathering makes any statement which is intended or is likely to incite any person to violence has been criticised on the grounds that the offence can be established without proving any kind of
This is considered to be a valid criticism and, accordingly, clause 14 amends section 26 so that an element of mens rea must be present before the offence can be established.
mens rea.
15
The offence of intimidation contained in section 27 is re- cast in clause 16 so as to exclude those parts of the section which are similar to section 47 of the Trade Union Registration Ordinance. The existing defence of "lawful excuse" is replaced by the defence of "lawful authority or reasonable excuse".
16
The offence of intimidating assembly is superfluous, be- cause a person who takes part in such an assembly can be prosecuted for taking part in an unlawful assembly. Consequently sections 28 and 30 are to be repealed (clauses 17 and 18).
17
Clause 19 amends section 31 by requiring the Commissioner of Folice to serve notice of the cancellation of a curfew permit on the permit holder.
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XCR(69)303
18
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- 4 -
·4-
+
Clauses 21-23 amend the provisions contained in Fart VII of the Ordinance relating to the declaration and control of closed area. Clause 21 replaces section 36 with a new section which provides that a closed area order comes into force when made and shall be published in the Gazette as soon as may be reasonably practicable after being made. The Commissioner of Police is authorised to close a closed area by the erection of barriers. Section 37 is amended by clause 22 so that permits to enter non-military closed areas may be issued by the Commissioner of Folice or by such other authority as may be authorised to do so in the closed area order. Upon the cancellation of a permit, notice of such cancellation must be given to the permit holder. The powers of arrest contained in section 39 are extended to members of the Essential Services Corps and to those appointed to guard closed areas by the Governor, the CBF or a person authorised in that behalf in the closed area order (clause 23). Past experience has demonstrated the need for a method whereby persons in charge of important în- stallations, such as oil refineries, gas works or power stations, which are declared closed areas, can issue entry permits and appoint guards to protect them. Clause 23 empowers police officers of or above the rank of inspector to detain and remove unauthorised persons from a closed area.
19
Clause 24 makes the Commissioner of Police the authority, in place of a magistrate, for appointing special constables. Clause 25 effects a number of minor procedural amendments to section 44 of the Ordinance concerning orders to be made by a magistrate requiring a person to enter a bond to be of good behaviour.
20
Section 49 of the Ordinance confers wide powers of search and entry upon police officers. These powers have attracted some criticism and it is now thought that the ordinary powers conferred upon police officers at common law and by the Folice Force Ordinance are adequate, short of a serious emergency situation, Section 49 is re- placed by clause 26 with a section requiring persons to identify them- selves to members of Her Majesty's forces and the Police Force. This requirement is, at present contained in regulation 96 of the Emergency (Principal) Regulations.
21
Clause 27 adds a new section 50A to the Ordinance. This makes it an offence to obstruct members of the armed forces exer- cising powers conferred by or performing duties imposed by the Ordinance or by orders made under it. This offence is at present contained in regulation 113 of the Emergency (Frincipal) Regulations. It is considered desirable that the provisions of this regulation, which has proved to be very useful in times of disturbance, should be part of the permanent law. The emergency regulation in question is to be revoked.
22
Clause 28 contains a consequential amendment to the City Hall Ordinance (Chapter 328).
23
Subject to the views of
Honourable Members, it is
proposed to submit the Bill to the Bar Association, the Law Society
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and the Hong Kong Branch of "Justice" for their comments. All three have in the past expressed an interest in the Ordinance and many of the amendments proposed follow suggestions put forward by one or more of them. It is considered, therefore, to be desirable to give them a chance to comment on any amending Bill. Any comments of substance offered by them will be referred to Honourable Members before the Bill is published.
24
Honourable Members will be asked to advise whether the Fublic Order (Amendment) Bill 1969 should be introduced into the Legislative Council, subject to reconsideration of the Bill in the Executive Council, if any substantial points are raised by any of the three bodies mentioned in paragraph 23 above.
23rd October 1969
(CR 3285/57 II)
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