CODE 18-77
Dr Harkın HKD
“Reference....
HKC 24115
*
4/4.
CM
HONG KONG: BILL OF RIGHTS: REVIEW OF LEGISLATION: IMMIGRATION ORDINANCE
1.
I have the following comments on the draft Exco memorandum and draft Immigration (Amendment) Bill.
2. Para 6 of the Memorandum states that it is considered necessary to retain unamended section 32(4) even though its compatibility with the BOR may be questioned I agree that its compatibility may very well be questioned. Section 32(4) provides for the detention of a person who is to be removed or deported for up to 28 days on the authority of the Secretary for Security (and much longer by order of a court) for the purpose of giving evidence at the trial of any offence or of facilitating inquiries into any offence or repeated offence. That means 28 days executive detention not only without charge, but where the detainee may not even be suspected of having committed any offence
3. The use of such a power, and very probably the power itself. would be hard to reconcile with Article 5 BOR, which prohibits arbitrary detention. Given that the statutory power in Hong Kong to detain without charge a person who is suspected of having committed murder probably only lasts a matter of hours or days, it is hard to see how a much more extensive power in relation to illegal immigrants could be defended on the grounds of operational necessity.
4.
Section 32 (4) would look much more acceptable if the power of executive detention were substantially reduced to a period comparable to that permitted to the police in relation to suspects, with longer periods of detention requiring the authority of a court.
5. The footnote to para 6 does not adequately convey the extent of the powers in section 32(4).
6. I am puzzled by para 7(6), concerning section 13D of the Ordinance. This is. I believe, the section on VBP which was amended (after substantial debate between HkG and ourselves) only last year. It seems surprising that no reference is made to these very recent amendments, especially as one of the objectives was to make those provisions less incompatible with the BOR.
7. Re para 7 on presumptions; I agree that as they stand they are probably incompatible with Article 11(1) BOR because the burden they impose on the defandant to disprove elements of the prosecution's case is so heavy as to negate the right to be presumed innocent until proved guilty. The proposed amendments are an improvement. But the effect of section 17 N