Crimes (Torture) Ordinance

by Legislative Council of Hong Kong

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HONG KONG

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Ordinance No. 11 of 1993

An Ordinance to create the offence of torture and to provide for related matters.

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Enacted by the Governor of Hong Kong, with the advice and consent of the Legislative Council thereof.

PART I
Torture

1. Short title and commencement

(1) This Ordinance may be cited as the Crimes (Torture) Ordinance.

(2) This Ordinance shall come into operation on a day to be appointed by the Governor by notice in the Gazette.

2. Interpretation

(1) In this Ordinance—

“the 1989 Act” (《1989年法令》) means the Extradition Act 1989 (1989 c. 33 U.K.);

“country” (國家) includes part of a country;

“office” (職位) includes “appointment” (委任);

“public official” (公務人員) includes any person holding in Hong Kong an office described in the Schedule;

“the Torture Convention” (酷刑公約) means the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment adopted by the General Assembly of the United Nations on 10 December 1984.

(2) For the purposes of this Ordinance a person shall be regarded as having acted in an official capacity if at the time he acts (be he acting in Hong Kong or elsewhere) that capacity is related either to the Government of, or any public authority in, Hong Kong or to the government of, or any other authority in, a country or territory outside Hong Kong being an authority which is similar or analogous to a public authority in Hong Kong.

(3) For the avoidance of doubt it is hereby declared that section 5 of the Interpretation and General Clauses Ordinance (Cap. 1) shall not be construed as extending the definition of “public official” in subsection (1) to “public officer” within the meaning of section 3 of that Ordinance.

3. Torture

(1) A public official or person acting in an official capacity, whatever his nationality or citizenship, commits the offence of torture if in Hong Kong or elsewhere he intentionally inflicts severe pain or suffering on another in the performance or purported performance of his official duties.

(2) A person not falling within subsection (1), whatever his nationality or citizenship, commits the offence of torture if—

(a) in Hong Kong or elsewhere he intentionally inflicts severe pain or suffering on another at the instigation or with the consent or acquiescence of—

(i) a public official; or

(ii) any other person acting in an official capacity; and

(b) the official or other person is performing or purporting to perform his official duties when he instigates the commission of the offence or consents to or acquiesces in it.

(3) For the purposes of this Ordinance, it is immaterial whether pain or suffering is physical or mental and whether it is caused by an act or an omission.

(4) It shall be a defence for a person charged with an offence under this section in respect of any conduct of his to prove that he had lawful authority, justification or excuse for that conduct.

(5) For the purposes of this section “lawful authority, justification or excuse” (合法權限、理由或解釋) means—

(a) in relation to pain or suffering inflicted in Hong Kong, lawful authority, justification or excuse under the law of Hong Kong;

(b) in relation to pain or suffering inflicted outside Hong Kong—

(i) if it was inflicted by a public official acting under the law of Hong Kong or by a person acting in an official capacity under that law, lawful authority, justification or excuse under that law;

(ii) in any other case an authority, justification or excuse which is lawful under the law of the place where it is inflicted.

(6) A person who commits the offence of torture shall be liable on conviction on indictment to imprisonment for life.

4. Attorney General’s consent required for prosecutions under section 3

Proceedings for an offence under section 3 shall not be instituted except with the consent of the Attorney General.

PART II
Extradition

5. Application of Extradition Act 1989 extended

(1) To the extent that it applies to Hong Kong, Schedule 1 to the 1989 Act (in this section subsequently referred to as “the Schedule”) shall be construed and have effect in accordance with the provisions of subsection (2).

(2) (a) Subject to the limitation in paragraph (b) and to sections 30, 31 and 34 of the 1989 Act and to the exercise of a power conferred by section 37(3) of that Act, the Schedule also applies as regards both the Republic of Ireland and any foreign state which is a foreign state to which this section applies.

(b) Paragraph (a) shall extend the application of the Schedule only in respect of the following offences—

(i) torture;

(ii) attempted torture;

(iii) counselling, procuring, commanding, aiding or abetting torture; and

(iv) being accessory to torture.

(3) This section applies to any foreign state which is a party to the Torture Convention.

6. Amendment of Fugitive Offenders Act 1967

(1) To the extent that, by virtue of section 34(3) of the 1989 Act, it applies to Hong Kong, the Fugitive Offenders Act 1967 (1967 c. 68 U.K.) (in this section subsequently referred to as “the 1967 Act”), as adapted and modified by the Fugitive Offenders (Hong Kong) Order 1967 (App. III, p. CK1), shall be construed and have effect in accordance with the provisions of subsection (2).

(2) (a) Schedule 1 to the 1967 Act is amended by the addition of—

“29. Torture.”.

(b) Subject to the limitation in paragraph (c) and to sections 32, 33 and 34 of the 1989 Act and to the exercise of a power conferred by section 34(3) of that Act, the 1967 Act shall also have effect in relation to the return of persons to, or in relation to persons returned from, any country or territory to which this section applies.

(c) Paragraph (b) shall operate to extend the application of the 1967 Act only in respect of the following offences

(i) torture;

(ii) attempted torture;

(iii) counselling, procuring, commanding, aiding or abetting torture; and

(iv) being accessory to torture.

(3) This section applies to—

(a) any country within the Commonwealth which is a party to the Torture Convention but in relation to which there is not for the time being in force a direction of the Governor under section 2(3) of the 1967 Act (as extended to Hong Kong);

(b) any territory for the external relations of which a country described in paragraph (a) is responsible; and

(c) any territory which—

(i) is a territory for the external relations of which a designated Commonwealth country which is such a party is responsible; and

(ii) is not a territory in relation to which a direction described in paragraph (a) is for the time being in force.

(4) In this section “designated Commonwealth country” (指定英聯邦國家) has the meaning assigned to it by section 2 of the 1967 Act (as extended to Hong Kong).

7. Evidential value of certain certificates

In any proceedings for an offence under section 3, a statement in a certificate purporting to be signed by the Chief Secretary that, at a time or during a period specified in the certificate—

(a) a state specified in the certificate was a foreign state to which section 5 applies; or

(b) a country or territory so specified was a country or territory, as the case may be, to which section 6 applies,

shall be evidence until the contrary is shown of the facts so certified.

PART III
Miscellaneous

8. Amendment of Schedule

The Governor in Council may by order amend the Schedule.

9. Amendment of Second Schedule to Magistrates Ordinance

Part I of the Second Schedule to the Magistrates Ordinance (Cap. 227) is amended by adding—

“9. Torture.”.

Offices Referred to in Section 2

1.An office in the Royal Hong Kong Police Force.

2.An office in the Customs and Excise Department.

3.An office in the Correctional Services Department.

4.An office in the Independent Commission Against Corruption.

5.An office in the Immigration Department.