THE SOCIETIES ORDINANCE

  99. The Societies Ordinance governs how societies may get lawful status in Hong Kong. It was first enacted in 1949 to control both triad societies and, perhaps more importantly, political groups at the time of the Communist takeover in China. The enactment was a significant departure from the practice in the United Kingdom where people could associate freely (and still can) without the need to register with nor to notify the authorities. It sought to restrain the activities of pro-Communist forces, pro-Nationalist forces and other possible opposition in Hong Kong within the same scheme as that for the triads.

  100. Up until 1992, the Societies Ordinance, provided for a draconian scheme of control and supervision inconsistent with international human rights standards. It was amended substantially that year in order to bring it into line with the provisions of the Bill of Rights.

  101. The pre-1992 Ordinance required all local societies, except those registered under other statutes like the Trade Unions Ordinance or other exempted societies, to apply for registration or exemption with the "Registrar of Societies" after its establishment. Societies established solely for religious, charitable, social or recreational purposes or as a rural committee (i.e., a villagers association in the New Territories) might be exempted from registration, but had to specifically apply for such an exemption. Lists of registered societies and exempted societies were kept in two separate registers for public inspection. No society could undertake any activities until it had been registered or exempted.

  102. The Registrar was the Commissioner of Police, or in certain cases the Secretary for Security. The Registrar was empowered to refuse or cancel a registration or exemption on various grounds including:

—  where the office-bearer or a group of members within the society had been convicted of or connected to an offence against the Ordinance;

—  where the society's constitution did not contain matters required by the Ordinance or the Registrar;

—  where a local society was connected to any political organisation established outside Hong Kong;

—  where the society was likely to be used for any purpose prejudicial to peace, welfare, or good order in Hong Kong;

—  where the society influenced or attempted to influence the conduct of management of any school, or any teacher or students, and such influence was political or was prejudicial to the conduct of such school or welfare, or good order of such teacher or student.

  103. Office-bearers of a society whose registration or exemption had been cancelled were not allowed to become office-bearers of other societies unless approved by the Registrar. Appeal against such decisions could be made to "the Governor in Council" (the Governor in consultation with his Executive Council). The Governor in Council might also dissolve a registered or exempted society if he was satisfied that the society was being used for purposes "incompatible with peace, welfare or good order in Hong Kong."

  104. Registered societies were subject to more stringent controls and interference than exempted societies. The Registrar had power to enter their offices and meeting places at any time including their meeting time, and might even prohibit the use of any place for their meeting or place of business.

  105. All societies, registered or exempt, were subject to many outrageous powers of the authorities to supervise, interfere and even ultimately control them in many respects. Prior approval by the Registrar was required for amendments to the constitution of a society. The Registrar could also order its constitution to be amended as he so prescribed. He had the power to require information on constitutions and rules, its list of office-bearers and members and their particulars, number and venues of its meetings held, and any other information about a society which he might specify. The Registrar could order a society to desist from activities which appeared to him inconsistent with its objects. These powers of control were supported by offences with stiff penalties created to ensure compliance.

  106. If the Registrar believed that a society was being used for purposes prejudicial to peace, welfare, or good order in Hong Kong he might, with or without force, enter and search a place suspected to be its place of meeting or business and search persons there or escaping from there.

  107. All triad societies or societies which used triad rituals were outlawed as unlawful societies but so also were local societies which were not a registered or exempted society and had not applied for registration or exemption within 14 days after their establishment.

  108. Persons who were members of or assisted an unlawful society, or attended its meeting, or knowingly allowed its meeting on their premises committed criminal offences.

  109. Any police inspector or officer of higher rank, could, with or without force, with or without assistance, enter and search any place including the home of any person, seize suspected documents and other things connected to an unlawful society, and arrest all persons there if he had reasons to believe that a meeting of the society was being held there or its documents and other artifacts were there. The property of an unlawful society could be forfeited.

  110. Furthermore the Registrar had the power to summon any person whom he believed to be able to give him information on an unlawful society. The person summoned was required by the Ordinance to produce all documents he possessed and answer truthfully on oath all questions put to him.

  111. A foreign society was deemed to establish as a local society and required to register under the Ordinance if it operated in Hong Kong.

  112. The registration system effectively amounted to a requirement that the consent of the authorities be gained in order to operate. The grounds for refusing registration, exemption or dissolution were vague and wide leaving too much unguided discretion to the authorities. They were totally inconsistent with international human rights standards as laid down in the International Covenant on Civil and Political Rights.

  113. The colonial government was in a dilemma attempting to bring the Societies Ordinance into line with the Bill of Rights Ordinance while trying to leave as much power as possible to itself. The uneasy compromise resulted in a 1992 Ordinance with restrictive provisions and severe penalties, which were at odds with international human rights standards, but which was still the most liberal version in Hong Kong's history.

  114. The registration system was replaced in the 1992 legislation with a notification system. The Registrar was renamed "Societies Officer" who was again the Commissioner of Police. Within a month after the establishment or deemed establishment of a local society, it was required to inform the Societies Officer in writing of its name, objects, addresses of its principal place of business and premises it occupied, and names of office-bearers of the society. The Societies Officer would then list the name and addresses of the society in a list of all societies open to inspection free of charge at his office. Similar notification was also required in setting up a branch. Every office-bearer of a group committed an offence if it failed to notify the Societies Officer, although the group or its branch would not automatically become an unlawful society unless a prohibition order was made.

  115. In processing a notification the Societies Officer could require a society to change its name within a specified time if its name was identical or similar to another group or was misleading. The society so aggrieved might appeal to the Secretary for Security.

  116. The 1992 legislation provided that, if the Societies Officer "reasonably believes" that a society "may be prejudicial to the security of Hong Kong, or to public safety or public order", he was required to notify the Secretary for Security and might "recommend the making of an order prohibiting the operation or continued operation of the society". The Secretary for Security might then gazette a prohibition order after, unless impractical, affording the society an opportunity to be heard or to make written representations. The society or its members could appeal against the prohibition to the Governor in Council. All societies under a prohibition order in force, were unlawful societies. Being members or office-bearers of an unlawful society, inciting others to become so, assisting it financially or by other means, attending its meeting, or knowingly allowing a meeting of it or its members, were criminal offences.

  117. The 1992 Ordinance no longer empowered the Governor to dissolve a society. The power to prohibit any society from having connection with any political group outside Hong Kong was also abolished, which caused criticism by China.

  118. On the recommendation of the Societies Officer, an office-bearer of an unlawful society, whether convicted or not, and a person convicted as a member of an unlawful society, might be prohibited by an order of the Secretary for Security from becoming office-bearer of any other society for a period of five years unless with the consent of the Societies Officer. A person aggrieved could appeal to the Governor in Council. Contravening such prohibition was again an offence.

  119. The Societies Officer's powers of entry, search and seizure under the 1992 Ordinance provide that where he reasonably believes that it is necessary to do so in connection with the performance of his functions under this Ordinance, he may at all reasonable times enter into any place or premises which he has reason to believe is, or is kept by, any society or by any of its members as a place of meeting or place of business. The "necessity" required by the Ordinance is all from his point of view and is not the objective necessity required by international standards. The "reasonableness" so required, perhaps except the one with respect to time, was only reasonable to the Commissioner of Police himself. There was no safeguard to guide the exercise of the Officer's "discretion". The power does not require any warrant from a magistrate except when the place is also used for dwelling purposes. The language of the provision is so vague that it can be used to harass legitimate societies and their members.

  120. The Societies Officer's power to require information was restricted to such information as he might reasonably require for the performance of his functions under the Ordinance. A new legal obligation was imposed on a society to notify the Societies Officer of any change in its name, objects, office-bearers or principal place of business within a month of the change. Every one of its office-bearers committed an offence if a society failed to do so.

  121. Although the Ordinance represented a great step forward in the realisation of the freedom to associate, its provisions were still not up to the standards set in the ICCPR. Some of the problems of the 1992 Ordinance are considered below together with the 1997 amendments by the incoming administration, which has retained most of the 1992 provisions but expanded many of their weaknesses.

  122. The 1997 amendments came against an unfortunate background as part of a package of China's effort to emasculate the Hong Kong Bill of Rights. Like the Public Order Ordinance, the Chinese authorities used Article 160 of the Basic Law to justify amendments to the Societies Ordinance on the grounds that it was inconsistent with the Basic Law. It is hard to see the logic in this link.

  123. Also Article 23 of the Basic Law requires the enactment of legislation in the HKSAR "to prohibit foreign political organisations or bodies from conducting political activities in the Region, and to prohibit political organisations or bodies of the Region from establishing ties with foreign political organisations or bodies". Chinese officials have repeatedly said that Hong Kong should not be used as a base of subversion against China. Sympathizers of Beijing have also criticised the fact that a local society was no longer prohibited from having connections with foreign political groups. The message was clear—China wanted to narrow down the freedom of association in Hong Kong in breach of the promises made to protect freedoms and rights.

  124. Against this background, CH Tung, then Chief Executive Designate, published in April 1997 a consultation document setting out his proposals to amend the Societies Ordinance. He proposed to reintroduce a system of registration, and to add "public health or morals", "protection of rights and freedoms of others", and to replace "security of Hong Kong" in the 1992 legislation with "national security", as grounds for prohibiting societies. Moreover, political societies in Hong Kong having "connections" with "foreign political bodies" or with "aliens" would be prohibited. Political societies were widely defined to include all those whose members included members of the Legislative Council and whose activities included assisting those members with their functions in political activities relating to government institutions and comment on public affairs as their main objectives. "Connections" were also so vaguely and broadly defined as to cover cases where any group:

—  directly or indirectly, affiliated with foreign political groups, or received financial assistance from any foreign organisations or individuals;

—  had any of its policies determined by, at the suggestion of, or in collaboration with foreign political organisations; or

—  had their management or decision process controlled, directed, influenced, or participated directly or indirectly in by foreign political bodies.

  125. Foreign political organisations would include any foreign or Taiwan government, its political subdivision and its instrumentality, foreign political parties, and international political organisations.

  126. Such definitions would have stopped most legitimate contacts by local societies working on issues of public interest with international or foreign bodies and even foreigners. A group promoting human rights standards as elaborated by UN treaty bodies in public policy could be prohibited. The Hong Kong branch of Amnesty International would need to sever ties with its parent organization. A local socialist political party would find it dangerous even to draft a joint position paper on labour rights with a foreign counterpart. An Australian lawyer, an "alien", practising in Hong Kong paying his subscription to his professional body, the Law Society, would result in it being banned.

  127. These proposals were so extreme and ill-thought out that there was strong public outcry both in Hong Kong and in the international community.

  128. Contrary to what most people had expected, the Chief Executive Designate responded to the public pressure with quite substantial concessions particularly in relation to the definitions of local and foreign political organisations and that of "connections".

  129. Under the amendments effected on 1 July 1997, "political body" means a political party or an organization purporting to be one, or an organization whose principal function is to promote or prepare a candidate for an election. "Foreign political organization" is limited to foreign political party or government and its political subdivision or agent. The reference to "aliens" has been removed. "Connections" are also narrowed down to all direct or indirect financial support or sponsorship from, affiliation to, participation in decision making by, or having policy determined by foreign political groups.

  130. These concessions may have removed most of the immediate threats but there are serious dangers in the 1997 amendments enacted, controversially, by the Provisional Legislative Council.

  131. One of the new grounds of prohibition introduced by the 1997 amendments is that of being "a political body" having "connection with a foreign political organization or a political organization of Taiwan." Thus, societies with foreign links may be discouraged from fielding candidates in elections or trying to have elected representatives of their own to promote their causes neglected by mainstream political parties. This restriction also gives the police an excuse to inquire into the expenditure, income, and sources of income, not only of political parties, but of all societies allowing unnecessary intrusion.

  132. The previous offence introduced by the colonial government of failure in providing information which the Societies Officer "may reasonably require for the performance of his functions under [the] Ordinance" was expressly extended to cover such financial and related information. It may well be that the police are limited by the fact that it is unreasonable to request information on finance from a group which is not involved in elections. Nevertheless, unless a society is familiar with the law and with legal assistance it is difficult to resist a request for such information.

  133. As the restriction covers not only election contributions, it has a serious effect on political parties, especially in a place without full democracy. A political party may be deterred from many legitimate activities, for example, endorsing a declaration drafted by foreign parties sharing similar platforms, or engaging in joint projects for comparative studies to improve social services with foreign parties funded by a better-off partner. Moreover, as the police are empowered to monitor the activities and financing of political parties, an authoritarian government could starve an opposition party by contacting donors to "verify" donation information. All societies should have the rights to achieve its object by political and non-political means free from unnecessary restrictions. This new restriction finds no basis in the ICCPR.

  134. Another serious problem arises from the grounds for prohibiting societies in the revived registration system. The 1997 amendments provide that if the Societies Officer "reasonably believes" that the prohibition of a society "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", he may make a recommendation to the Secretary for Security who may then prohibit it.

  135. Under international law legitimate restrictions of rights are limited to those necessary to meet sufficiently important social exigencies to justify their imposition. It is the authorities' duty to prove that there are such social needs and legitimate aims and that they are sufficiently grave. Restrictions must have rational connections to those needs and aims, and must be proportional to them, and cause minimal impairment to the rights. Such restrictions can only be prescribed or imposed by law, which must be clear and unambiguous enough that people know how they are affected and are able to predict the consequences of their own decisions and acts. Falling short of any of such requirements, a restriction is unlawful. Simple incorporation of the ICCPR grounds into domestic laws will exaggerate the permissible scope of restriction and is a misuse of the Covenant.

  136. The use of the term "national security" is particularly objectionable because the concept has frequently been used in China to criminalise the peaceful exercise of the rights of expression and to persecute those with legitimate demands like democracy and human rights. Its inclusion raises fears of extension of such Mainland Chinese practices to Hong Kong especially in the light of Article 23 of the Basic Law.

  137. The consensus of international jurists as enumerated in the Siracusa Principles is that national security "cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order". It may only be invoked "to justify measures limiting certain rights only when they are taken to protect the existence of the nation or its territorial integrity or political independence against force or threat of force". Its inclusion in the Societies Ordinance and the Public Order Ordinance is therefore unwarranted as it is difficult to suggest that a society or a demonstration in Hong Kong will threaten the existence of China. If there is any local and isolated threat to law and order it can be dealt with under the heads of public order and public safety.

  138. The Johannesburg Principles, which are concerned more with freedom of expression, also stress the importance of the requirement of force in imposing restrictions on the ground of national security. They state that freedom of expression may be punished as a threat to national scurity only if a government can demonstrate that the expression is intended to incite violence, that such violence is likely to be incited, and that there is a direct and immediate connection between the expression and the likelihood or occurrence of such violence.

  139. However, the ground of "national security" was introduced without any qualification with regard to the requirement of violence or force despite local and international criticism. A concession was made in respect of the definition of "national security" in that it was defined as "safeguarding of the territorial integrity and the independence of the People's Republic of China" while linking its meaning to that in the ICCPR. Logically, it is difficult to understand how the HKSAR's intention to exclude the requirement of force could be reconciled with the ICCPR's meaning of "national security" as outlined in the definition. It is to be hoped that the court would be prepared to impute the requirement of force in the light of the wording of the definition in the 1997 amendments which link the concept to the ICCPR. However the Hong Kong judiciary's narrow interpretation of constitutional protection of rights reduces the prospect of such judicial protection.

  140. Yet another serious consequence of including the national security ground is that it again fundamentally changes the role of the police force. The police are now required to judge whether a society is a threat to the territorial integrity and the independence of the People's Republic of China rather than regulating on grounds of public order and public safety with which they are familiar. As far as the Monitor knows, "the security of Hong Kong" ground in the 1992 legislation has been ignored in practice. It remains to be seen whether this will be the case under the Chinese rule. Clearly, this is very unsatisfactory because it means societies are at the mercy of the authorities instead of having genuine legal protection.

  141. The Societies Officer has the power to require information reasonably required for the performance of his functions under the Societies Ordinance. Once his functions include such political monitoring, it may be "reasonable" for the police to require extensive information from societies critical of China or groups having "politically controversial" members. Societies, especially opposition political parties, will be under serious threat if the authorities decide to be "proactive".

  142. According to a news report, a spokesperson of an association of police officers has voiced his reluctance to take up the responsibility of deciding whether to prohibit public gatherings on the ground of national security as front line officer, saying such issues should only be decided by senior management.

  143. Both the 1992 and 1997 legislation suffer from other defects. They punish equally breaches of the law by criminal triad societies and lawful societies whose officers commit offences through oversights. They probably do not meet the international law requirement that any limitations on rights are required to be proportional to the problem they are designed to meet—the principle of proportionality—in relation to penalties for non-triad offences. Every office-bearer of a society commits an offence punishable by a fine of HK$10,000 on summary conviction for simply being disorganized, i.e., if the society fails to notify the Societies Officer of a change in its name, objects, office-bearers, or principal places of business within a certain time. The fact that the offence of attending the meeting of an unlawful society (not being a triad society) can be committed without any knowledge that the society is unlawful (as opposed to the express requirement of knowledge in the crime of allowing the meeting of an unlawful society on premises) seems outrageous. An office-bearer of a society which is prohibited while he is in office might be prohibited from becoming office-bearer to another society for five years by the police even if he has never been convicted, which is contrary to the principle of presumed innocence.