Paper No. 11

 

The Administration's response to the issues raised and information sought at the joint meeting of the Panel on Security and Panel on Administration of Justice and Legal Services on 15 February 2003.

 

Introduction

 

This note sets out the Administration's response to a number of issues raised and information sought at the joint meeting of the Panel on Security and Panel on Administration of Justice and Legal Services on 15 February 2003 in relation to proscription of local organizations, as listed in Appendix I of the Background brief on the Bill prepared by the Legislative Council (LC Paper No. CB(2)1378/02-03(03)).

 

Response

 

A1.      To explain the basis for empowering the Secretary for Security to proscribe my local organization if she reasonably believes that the proscription is necessary in the interests of national security and is proportionate for such purposes, without a requirement for the organization to commit an offence.

 

Administration's response to A1

 

Due to the highly serious and reprehensible nature of organized crimes that endangers national security, specific and focused measures are necessary to deal with such activities. It is possible for activities that threaten national security without necessary amounting to criminal offences, e.g. preparing people in terrorism. It is therefore necessary for the Secretary for Security to be given the power to proscribe an organization if he reasonably believes that this is necessary in the interests of national security, in accordance with the standards of international human rights covenants.

 

A3.      To explain the inadequacies of the existing provisions in the Societies Ordinance in terms of proscription of local organizations and why additional proscription power is needed.

 

Administration's response to A3

 

The Societies Ordinance in section 8(2) gives the Secretary for Security the power to make an order prohibiting the operation or continued operation of a society or the branch of a society.

 

"On the recommendation by the Societies Officer under subsection (1), the Secretary for Security may by order published in the Gazette prohibit the operation or continued operation of the society or the branch in Hong Kong."

 

2. Under section 8(1)(a), the Societies Officer may recommend to the Secretary for Security that an order be made if, inter alia-

 

"he reasonably believes that the prohibition of the operation or continued operation of a society or a branch is necessary in the interests of national security or public safety, public order (ordre public) or the protection of the rights and freedoms of others;"

 

3. We consider that these existing powers are inadequate. First, the existing powers are not focused on any particular type of threat to national security. Unlike the existing provisions, the Bill clearly specifies the factual circumstances one of which must be satisfied before the measure of proscription could be considered applicable. Such circumstances are[1]-

 

(a) the objective, or one of the objectives, of the organization is to engage in treason, subversion, secession or sedition or commit an offence of spying; or

(b) the organization has committed or is attempting to commit treason, subversion, secession or sedition or an offence of spying; or

(c) the organization is subordinate to a mainland organization the operation of which has been prohibited on the ground of protecting the security of the People's Republic of China, as officially proclaimed by means of an open decree, by the Central Authorities under the law of the People's Republic of China.

 

4. This provides a clearer stipulation regarding the pre-conditions under which an organization would be subjected to the proscription measures proposed. It should nevertheless be stressed that mere satisfaction of the pre-conditions above are not sufficient for a proscription to be made. All proscription decisions must be made in accordance with the standards of international human rights covenants, and are subject to appeal to the Court of First Instance, in additional to judicial reviews.

 

5. Secondly, under the existing provisions the Secretary's power to prohibit can be applied to my any "society or a branch"[2]. The scope of application is restricted by section 2(2)-

 

"The provisions of this Ordinance shall not apply to any person listed in the Schedule."

 

6. The schedule lists 14 types of bodies which are excluded from the application of the ordinance (See Annex 1). There are certain exceptions to this rule by virtue of specific provision in the Societies Ordinance or in other enactments (e.g. section 2(2B) of the Societies Ordinance; section 360C(1)[3] of the Companies Ordinance (Cap 32)). The effect is that the existing power to proscribe under the Societies Ordinance does not apply to certain types of society or organization.

 

7. We consider that organized activities that endangers national security, defined as "the safeguarding of the territorial integrity and the independence of the People's Republic of China", should be prohibited in accordance with international human rights standards, regardless of whether they are registrable under the Societies Ordinance. The Bill provides a clear stipulation in this regard.

 

A9.      To explain whether the proposed provisions relating to proscription would be applicable to my body of persons falling within the definition of "society".

 

Administration's response to A9

 

Under the proposals in the Bill a new section 8A would be added giving the Secretary for Security power to proscribe by order a "local organization, if he reasonably believes that the proscription is necessary in the interests of national security and is proportionate for such purpose.

 

2. For the purposes of the new section 8A, the Bill defines "local organization, to mean "(i) any society which is registered, registrable or exempted from registration under th[e] Ordinance; or (ii) any body of persons listed in the Schedule". Section 2(2) is modified accordingly. The proposed powers would therefore apply to any body of persons falling within the definition of "society".

 

3. However, the new power is more focused than the existing power, as discussed above. Furthermore, any office-bearer or member of a proscribed organization would have the right to appeal to the Court of First Instance.

 

A10.    To review the definition of the term "society" in the Societies Ordinance, having regard to the Chinese and English versions.

 

Administration's response to A10

 

"Society" is defined in section 2 of the Societies Ordinance to mean "any club, company, partnership or association of persons, whatever the nature or objects, to which the provisions of th[e] Ordinance apply".

 

2. The Chinese version of "society" 'is "社團", "指本條例條文適用的任何會社、公司、一人以上的合夥或組織、不論性質或宗旨為何".

 

3. The Chinese and English definitions of the term are the same. The term covers legal forms of juridical persons as well as de facto associations of persons. The Chinese version of "一人以上的合夥或組織" refers to associations of more than one person, i.e. persons in the plural.

 

A11.     To explain the meaning of the term "substantial" in the new section 8A(5)(h)(i) of the Societies Ordinance.

 

Administration's response to A11

 

The Bill provides in the new section 8A(5)(h)(i) that a local organization is subordinate to a mainland organization if-

 

"(i) the former solicits or accepts for its operation substantial financial contributions, substantial financial sponsorship or substantial financial support of any kind or loans of a substantial amount, directly or indirectly, from the latter;

(ii) the former is under the direction or control, directly or indirectly, of the latter; or

(iii) the policies of the former or any of such policies are determined, directly or indirectly, by the latter."

 

"Substantial" is used four times in sub-paragraph (i) to qualify financial contributions, financial sponsorship, financial support and the amount of loans.

 

2. Judicial authorities indicate that "substantial" is a relative term. It would have its normal dictionary meaning of "of real importance or value, of considerable amount" (opposite of nominal). The effect of the qualification would be to rule out from consideration nominal or minimal amounts or payments.

 

 

Security Bureau

March 2003



[1] See section 8A(2) in clause 15 of the Bill.

[2] S.2(1) -"Branch" in relation to a society, includes any society which is in any way subordinate to any other society.

[3] S.360C(1) - if the Chief Executive in Council is satisfied that a company formed and registered under this Ordinance or any former Companies Ordinance would, if it were a society in respect of which the Societies Ordinance (Cap 151) applied, be liable to have its registration or exemption from registration cancelled under section 5D or its operation or continued operation prohibited by the Secretary for Security under section 8 of that Ordinance, the Chief Executive in Council may order the Registrar of Companies to strike such company off the register of companies.