Margaret Ng

[Ed. Note: The author, a barrister, is a member of the Legislative Council (Legco) in Hong Kong representing the legal sector. This is an edited version of a speech that she delivered in Legco.]

Terrorism is a new threat to an open society and civilisation as we know it. It is Hong Kong's obligation, as directed by the central government under the Basic Law, to implement U.N. Security Council Resolution 1373 without delay. This I accept and appreciate. The government has advised us that legislation is appropriate. This too I am prepared to accept.

But none of these considerations give us the right to enact a law in haste with little regard to its real effects or consequences. Just because terrorism is bad does not automatically make a law aimed at fighting terrorism good and deserving of support. The fact that some governments in the world, hit hard by terrorist attacks, have gone overboard with anti-terrorist measures which threaten rights and freedoms, natural justice and due process in their countries does not mean that we in Hong Kong should slavishly copy these measures. More power for the State does not automatically mean terrorism will be dealt a harder blow. The extra power can be used just as readily against the innocent. At the end of the day, ironically for a place like Hong Kong, our open society is not undermined by terrorist attacks but by anti-terrorism laws which have been made without sober and careful thinking, compounded by haste and impatience.

Such is the case with the United Nations (Anti-Terrorism Measures) Bill now before this council. As the report of the Bills Committee has chronicled, the bill was gazetted in April. The Bills Committee held its first meeting on May 17. There was no doubt that the bill was complex and would have serious consequences on liberty and property. Yet halfway through the scrutiny of the bill, the government made it clear that it was determined to push it through by giving notice on June 24. Numerous amendments were proposed. Some seven drafts were put in succession before members.

Many of the amendments were made by cutting and pasting from other legislation or other jurisdictions. In some cases, the law draftsman confessed he was not entirely sure of the legal effects but felt bound to include it all because he was afraid to leave out things from the original legislation from which the provisions were taken. Yet in other cases, he had excluded preconditions, safeguards and restraints because they were considered somehow inappropriate. Members were not allowed the luxury of time for an overall view of the final product to ensure that the right balance was struck and the necessary safeguards were provided.

There are so many serious problems with this bill that I hardly know where to begin. Taken as a whole, the balance is wrong. The bill provides for wide definitions of "terrorists," "terrorist acts," "terrorist associates" and "terrorist property." The chief executive can specify by notice in the Government Gazette persons, organisations and property as terrorists, terrorist associates and terrorist property. All that is required is that he has reasonable grounds to believe that they are so - hardly a high threshold. Once so specified, a presumption arises that these are terrorists, terrorist associates and terrorist property, as the case may be, and it becomes a criminal offence for anyone to have anything to do with these people or organisations or to deal with such property. Separately, if the secretary for security has reasonable grounds to suspect - merely suspect - that any funds held by any person are terrorist property, the secretary can immediately freeze the funds for two years simply by issuing a written notice. In such a situation, it can be expected that mistakes will be made from time to time. As a result, innocent people wrongly suspected of being terrorists or terrorist associates or of holding terrorist funds will suffer and so will innocent third parties. For example, when the funds of a company suspected of being a "terrorist associate" are frozen, its employees will not get paid their wages. Their families will suffer. Yet when it later has been shown to be a mistake, the bill does not provide for people who have suffered to be compensated.

This is very unfair and very wrong. If the law has to enable the government to act swiftly and take drastic action, with the possibility of making mistakes which cause innocent people to suffer, then the law must make provisions for these people to be compensated for their loss once the mistake is proven.

A number of suggestions were made, for example, that the definition of "terrorist act" should be made narrower, that specification by the chief executive should be subjected to the court's judgement, that the secretary for security should apply to the court for an injunction to freeze funds, that proper compensation should be made.

The government has accepted part of the comments and has agreed to introduce some amendments, but the end product, even with the amendments, is far from satisfactory. The definitions remain far too broad for the consequences to which they give rise under the bill. The secretary for security's power to freeze funds on mere suspicion remains not subject to the permission of any court. The freezing order, unless successfully challenged by the person or persons concerned through court proceedings, will last for two years; and at the end of the two years, the secretary for justice can apply for the property to be forfeited.

Most importantly, the compensation provision to be introduced, Clause 16A, is nothing short of outrageous. A person applying for compensation has to prove their innocence, to prove that they were at no time a terrorist or terrorist associate or that the property was at no time terrorist property. Even that is not enough. They have to prove that there has been some "serious default" on the part of the government. It is difficult to imagine how an ordinary citizen is going to prove that any government official was seriously in default. It is not clear why they are required to prove serious default, why the compensation should not be borne by public funds as the cost of fighting terrorism and why the price has to be paid by the innocent individual. The compensation clause that the government proposes may be worse than no compensation clause at all because it imposes stricter conditions than are required by the common law for damages. In construing this bill, if it passes into law, the court may well take the view that the new clause 16A replaces the common law.

Yet the government refuses to be persuaded to remove these inequitable requirements on the basis that they are exactly the same as those in existing legislation regarding money laundering or proceeds of crime. Consequently, we are in danger of being stuck with an extremely unfair law that raises the question of whether this is in breach of the Basic Law's protection against the lawful deprivation of property without compensation in Article 105.

In February, the secretary for security made a statement to the security panel that a "minimalist approach" would be adopted because Hong Kong is not subject to threats of terrorism. Legislation would contain only what is necessary to implement U.N. Resolution 1373 and the Financial Action Task Force on Money Laundering (FATF). The secretary, however, has not kept her word. Clause 10 of the bill, which makes communicating a false belief that a terrorist act has been or will be carried out a crime, is admitted by the government to exceed the U.N. resolution or FATF. I see no necessity in including such a provision and every need to hold the secretary to her promise.

Moreover, the bill exceeds the U.N. resolution and FATF in other ways. What I want to point out, because of its wide implication, is that Clause 11 of the bill imposes on everyone in Hong Kong, and every Hong Kong resident outside the jurisdiction, the duty to report to the authorities if they have reasonable grounds to suspect that any property is terrorist property. This is an objective test. Provided there are objective reasons to suspect, even if you did not, in fact, suspect that some property is terrorist property and therefore did not report it, you may be guilty of a crime. The government, having admitted there is just cause for concern, will introduce an amendment to change "has reasonable grounds to suspect" to just "suspects." In other words, from the purely objective, one goes to the purely subjective: it does not matter if you suspect simply because you are by nature suspicious; it will still be a crime if you fail to report your suspicion. Why the government refuses to require both the subjective and objective elements by using the words "suspects on reasonable grounds" I cannot understand. Neither the U.N. resolution nor FATF requires Hong Kong to make a potential criminal of every ordinary citizen. FATF imposes the obligation only on "financial institutions or other businesses or entities subject to anti-money laundering obligations." When this was pointed out to the government, the reply given was that Clause 11 is just lifted from the Money Laundering Ordinance, which imposes the obligation on "any person."

This is where no conscientious member of the legislature can take up the responsibility of introducing or even framing a proper amendment to remedy the wrong in the bill. For it is not possible, especially under such severe pressure of time, to specify or appropriately describe institutes and entities on whom a duty of disclosure on suspicion should be imposed.

Thus, although I shall be forced to introduce many amendments, all the amendments put together will not make this bill sound - only a little less diabolical.

I do not ignore the many amendments that the government has agreed to introduce which are good and in the right direction, for example, in clarifying legal professional privilege. This "privilege" is not a privilege of the lawyer but his client, and not in the lawyer's interest, but necessary in the public interest of the administration of justice. A person, particularly a person accused of a crime, must be able to feel utterly confident that communication between them and their lawyer is kept in confidence. Article 35 of the Basic Law thus enshrines a fundamental principle of common law.

I also welcome the amendment to remove Schedules 2 and 3 which allow people authorised by the secretary for security to go on fishing expeditions under the name of conducting an investigation or gathering evidence for the wide purposes of the bill. These powers of requiring people to give information, to search and seize and break in without a warrant, make huge inroads into the right of silence and personal liberty. However, it is to be deplored that a new clause will be introduced for these powers to return through a back door by allowing the secretary to make rules to the same effect.

As I have indicated at the beginning of my speech, there are just too many problems and potential threats to fundamental rights in this bill. I cannot accept for a minute that any international obligation requires us to pass such a law or that any international sanction can lie against our refraining from doing so because haste is more valuable than justice. No nation can be required to legislate against the interests of its citizens. This bill is against the public interest of the Hong Kong Special Administrative Region (SAR). I have no hesitation in opposing it and in urging other honourable members to do the same.