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Mr. Carter Hong Kong Department.
Last October the Governor sent us the Criminal Procedure (Amendment) (No. 2) Ordinance 1968 for Notification of Non-Disallowance. The Ordinance was designed to confer power on Judges, District Judges and Magistrates to exclude the public (excluding the press) from criminal courts if they consider it necessary to do so in the interests of justice or public order or security; it also empowered courts, if they considered it expedient to do so in the interests of justice or public order or security, or for the safety or well-being of a witness or any other person, to order that the whole of the criminal proceedings before it in respect of any offence should take place in a closed court.
d. This Ordinance is one of those designed to embody into the permanent law certain provisions previously contained in emergency legislation. The Legal Advisers advised that Notification of Non-Disallowance might be conveyed to the Governor but that at the same time the Governor should be
informed that the Ordinance departed in certain respects from fundamental principles inherent in the British system of justice; and that further amending legislation would therefore be required to restore the situation. The Governor was informed accordingly.
3. In a letter to Sir Arthur Galsworthy in January the Governor has queried the comments made on the Ordinance, both from a legal point of view and because in his view we appear to have failed to grasp fully the sort of problems that have to be dealt with in Hong Kong in order to keep the courts running effectively there.
4. The Law Officers have had a further look at the Ordinance but remain of the opinion that their previously expressed views are correct. Sir Michael Hogan, Chief Justice, Hong Kong, happens to be in this country on leave at the moment and Sir Arthur Grattan- Bellew has mentioned the matter to him; he has arranged to have a further discussion with Sir Michael at the end of this month (on the latter's return from Ireland). The Legal Advisers have accordingly suggested that in our reply to the Governor we should suggest that he discusses the matter with Sir Michael Hogan on the latter's return to Hong Kong. A draft reply to the Governor, based on the advice of the Legal Advisers, is attached.
5. You will recall that sometime ago Sir Arthur Galsworthy said that where any new legislation purported to embody provisions of emergency legis- lation into the permanent law of the Colony, that legislation should be seen by the Minister. If the Governor accepts the proposal that we have made to him in paragraph 6 of our Saving Despatch No. 663, it will simply mean that the provisions of this new Ordinance will not be brought into force unless and until the Chief Justice asks the Governor to make an Order bringing them into force.