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.
