tim's experiment

The Public Order (Amendment) Bill 2017, a draft prepared by three pro-government legislators who want to make it illegal to insult a policeman, makes riveting reading. The trio of drafters are all lawyers. One of them, indeed, teaches law in a local university. But the Bill is gibberish.

You do not have to take my word for it. The thing is quite short. Here it is, in its lovely entirety:

“17H. Offence against insulting a law enforcement officer

(1) Any person acts with intent towards a law enforcement officer in the execution of the officer’s duty__

(a) utters abusive or insulting words;

(b) behaves in a disturbing or insulting manner: or

(c) exhibiting a disturbing or insulting slogan,

commits an offence.

(2) Any person who commits an offence under subsection (1) is liable on summary conviction to a fine at level 1.

(3) Any person commits the offence repeatedly or maliciously under subsection (1) in repetition is liable to a maximum fine at level 2 and imprisonment for 12 months.

(4) No offence is committed under this section unless the person knows or ought reasonably to know that the victim was acting in the capacity of a law enforcement officer, as the case may be.”

Leaving aside the merits, if there are any, of the new offence, what bothers me is that three people licensed to practise law in Hong Kong, one of whom habitually teaches it, could come out with something so nonsensical. They have reportedly submitted it to the Law Draftsman section of the Department of Justice, where it must have occasioned a great deal of mirth. In fact I imagine the professional law draftsmen are rolling on the floor laughing.

The poor drafters couldn’t even get past the title without making a mistake. It is not an “offence against insulting a law enforcement officer” that we are dealing with here. The offence IS insulting a law enforcement officer. The title would make sense if it said “Offence of insulting …” or if it started “Prohibition on insulting …” As it is it is meaningless.)

The next subsection is the most important one, because it defines the new offence. Unfortunately this does not make sense either because a vital word has been omitted. That word is “who”. The standard way of constructing the definition of an offence is to say that “a person who” does whatever we now wish to criminalise “commits an offence”. If you miss out the “who” you finish up with a non-sentence: “a person acts … commits an offence.  Somebody seems to have fallen asleep between sub-paragraphs (b) and (c), because after our ban on a miscreant who utters, or a miscreant who behaves, we suddenly find a miscreant exhibiting.

Subsection (2) is a standard piece of legislative boilerplate. An unkind observer might speculate that as the vital “who” is still present here the whole paragraph was lifted from some existing ordinance. Subsection 3 on the other hand was clearly composed without help, and as a result is dangerously ambiguous. I suppose the writers intended it to mean that on a second conviction for the same offence the upper limit on the penalty should be higher. But the “repeatedly” or “in repetition” bit could be subject to another interpretation. Saying “fuck your mother” once qualifies for the fine, twice for the jail sentence.

This brings us to subsection 4 where, once again, the intention is clear but the writing is not. What are we to make of the curious mixture of tenses. The person “knows” that the victim “was” a law enforcement officer. Is this supposed to cover retired policemen as well?

In fact if this were passed as it is — which mercifully is highly unlikely — the question of who is or was a law enforcement officer might well give some difficulty. Policemen, obviously. I suppose this phrase was intended to cover other uniformed guardians of the government, like Immigration and Customs Officers. How far can it stretch, one wonders… Environmental Hygiene inspectors, traffic wardens, meter readers, Legco security guards, private security guards employed by the government, park attendants … your watchman? But not, presumably, firemen.

Connoisseurs will also be surprised by the inclusion of “disturbing” as a punishable quality of behaviour or slogans. Many of us are no doubt quite happy with the idea that our policemen should not be insulted. But disturbed?

Overall this is such a shoddy piece of work that it would hardly be acceptable coming from a student. The most senior drafter was actually Dr Hon Priscilla LEUNG Mei-fun, SBS, JP, as the official Legco guide has it, adding the stunning afterthought that besides representing the fortunate electors of Kowloon West the honourable lady is an Associate Professor in the City U Law School. In support we have Horace Cheung (DAB: Hong Kong Island) who is a solicitor trained at the City U Law School. Also on my list of lawyers from whom I would not now buy a used draft bill is Junius Ho, another solicitor, trained in England.

But let me make it clear that I am not complaining about the English. It is unfair and inconsiderate to chide local politicians for any deficiency in  their English language skills. The language of local politics is Cantonese. Lawyers, though, need to know that law draftsmanship is a specialised skill and if they haven’t got it they shouldn’t fake it. We can perhaps have a useful debate on whether it should be a criminal offence to insult a policeman. This is not the place to start.