GUVERNMENT HUUSE
HUNG KUNG
1 3-22 11:15
PHGE 15
22-MAR-1991
17:00
AGC
852 523 5104
P.02
CONFIDENTIAL
Minute from legal advisers
3.
My comments on the minute from the legal advisers
to FCO are as follows.
Paras 2&3 : the ICCPR implications are to be discussed by Mr Dykes in a separate memo.
rara 4
Para 5
Para 6
Para 7
Para 8
: this is accurate.
I can confirm that "shall" has been deleted in both places where it appeared in the proposed new section 13D(1).
A
: subsection (1A) is not at odds. with subsection (1B) for the reasons stated in paragraph 2 above. Subsections (1) and (1A) apply to those who have not requested permission to remain in Hong Kong in order to ensure that a person falling within subsection (1) cannot escape detention by claiming that he does not wish to remain in Hong Kong and by refusing to undergo screening. If the migrant was anyone but a Vietnamese he could be removed to a specified country, but in practice this option is not open in respect of a Vietnamese. person to whom section 13D(1) applies is still entitled to leave Hong Kong under section 13(2), but if he does not have the means to do so he cannot evade detention merely by expressing a wish to leave. Such a person can be released if he is granted a visa or an exemption under section 61(2) from the visa requirements. The power to grant a temporary leave of absence contained in the Detention Centre Rules is not overriden by the amendments on the contrary, it is put beyond doubt by the amendment to section 13H(6) (see clause 5).
: since subsection (1A) has been amended in the
way suggested, the legal advisers should now consider subsections (1B) and (1C) an improvement on the present law.
the summary of the changes is accurate. The absence of any right of appeal in respect of transfers otherwise than for order or good management is not a drafting error but is in accordance with drafting instructions. Transfers made for reasons other than order and good management (e.g. because of the opening of a new detention centre) may involve thousands of people, and it is not the intention to grant a right of appeal in such cases:
CONFIDENTIAL
/P.3
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