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CONFIDENTIAL
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HOM KONG
HONG
FILE NO. HK K 14/20
Date
/
(Part
-)
TITLE: HONG KONG.. LEGAL AFFAIRS
EMERGENCY REGULATIONS AND ORDERS
REFER TO
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PREDAM KANNATTAANZANIAA
CHANNELHEIDEALIYEEHHIK
e 1926
Registry Address
R. K27/
joanas rajons Kag, Charles Strunc.
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USEFUL INFORMATION RELATED TO CONTENTS OF THIS FILE
-----
LAST FILE: HWB 14/41
NEXT FILE: HKK 14/20 (1470)
OTHER RELATED FILES: HWB 14/20 Emergency begulating. We tulin & Deputa
HKK14/22 offends agains its Verson Legislation.
th
-------
3
En Clair
HONG KONG TO FOREIGN AND COMMONWEALTH OFFICE
Telno BIS 1
UNCLASSIFIED
15 January, 1969
TOP COPY
AKUMHV
1 € JAN 1969
ре
An order
Three emergency regulations will be discontinued. will ?arp undec]
gazetted Friday discontinuing numbers twenty-seven, forty-one and one
hundred twenty-nine of Emergency (Principal) Regulationo.
Emergency Regulation twenty-seven deals with the dissemination of false
reports; Emergency Regulution forty-one with powerto nearch fer and
scize veacons without warrant and Emergency Regulation one hundred
twenty-nine provides for offence of sabotage.
Effect of discontinuing regulations is that they cannot be used without
new decision by Governor in Council.
In meantime they will be retained in law in case they should be
needed.
Decision follows latest review of emergency legislation.
onid
In answer questions we said "Government not (repeat not) taken any
decision incorporate Regulation thirty-one or any similar. provision in
permonent law", Ends, Informu,
Sir D. Trench
DEPARTMENTAL DISTRIBUTION
Information Policy Dept News Dept
Information Administration Dept
Information Research Dept
Hong Kong Dept
Far Eastern Dept
bbbbb
Rist. Pe. recive to the Gaminara
ou return
врем
zefs
1 7 JAN 1969
31
HKK 14/20
PA
176
03/1/69
PA
S
19.469.
Mr. Carter
Reference
HKK 14/20
with (2
(2) and enclosures are a very useful summary of the present position as
regards emergency legislation in Hong Kong. Part II in particular tell
us the extent to which emergency regulations are to be incorporated into
permanent legislation. The file concerning the Criminal Procedure
(Amendment)(No. 2) Ordinance, 1968 is, I believe, with you.
You may recall that we recently conveyed notice of non-disallowance of
that Ordinance subject to certain amendments which we asked the Governor
to introduce.
The
2. The Governor sent us, at the beginning of January, a draft Bill to
amend the Public Order Ordinance which was enacted in November, 1967.
purpose of this Bill is to meet, as far as possible, the criticisms
levelled at the Ordinance by "Justice" The papers have been with the Law
Officers for some time but I had to recall them recently in connection
with a Parliamentary Question which I submitted to you a day or two ago.
Pending clearance of the proposed reply to that Question, I am hanging
on to the papers.
The draft Bill does in fact meet
quite a lot of "Justice's" criticisms but the Governor has certain
reservations about certain of them which we shall need to look at
carefully when we have received the views of the Law Officers.
3. Meanwhile, these papers would be a very useful ready reference in the
event that we are asked questions on the subject of emergency
legislation.
30 January, 1969
(A. W. Gaminara) Hong Kong Department
Two sets of
F.R.
have seen discontinued
since (2)
won
sent
1. e
Prevention of
Prevention of
Inflammatay Speeches and
inflammatory Posters. When the replacement-
Legulation mentioned in the
how been enacted
Second Schedule
ali The Emergency Lowert
Fähen in 1967 will have carsappeared excanged"
for Regs. 29-31 of the Primay al Regis (and
5 sumpect that there
before
may well disappear
the replacement begulation is ready).
Love
14/2
2009027
C.1. 20A
CONFIDENTIAL
SAVING EX DESPATCH
From the Governor, Hong KongForeign & Commonwealth Affairs
To the Secretary of State for the Cabonde K
Repeated to:~~
Repeated to:- Date
21st January, 1969
19 JAN 1969
No.
No.
No.
70
My Reference....
CR 6/3231/59IV
Your Reference?
~
Emergency Legislation
The need to continue emergency legislation in force in Hong Kong is
under regular review here, and, as discussed by me with Sir Arthur
Galsworthy in London, I enclose for your information a tabulated
statement showing the present position regarding the various items
introduced in 1967 specifically to meet the Communist disturbances. This
statement is in two parts; Part I lists Emergency (Principal)
Regulations and other Emergency Regulations which it is not proposed to
incorporate in permanent legislation, while Part II lists emergency
legislation which has been or will be incorporated (in some cases in
less stringent form) in permanent legislation.
2. The only Emergency Regulations which it is proposed for the time
being to keep in force, and which there is no intention to replace by
permanent legislation, are the Detention Regulations, E(P)R 29 to 31.
The reason for keeping them in force is that it is not for the present
desirable to release the remaining five detainees, and it would be open
to question to de-activate these regulations while at the same time
keeping these men in detention. I am considering whether there is any
possibility, when the time comes to discontinue these regulations, of
amending them so as to go some way towards meeting the objection that
they do not provide adequate safeguards for the individual, while at the
same time
Discontinuance ensuring that they can be effectively applied in need.
would have to be accompanied by a clear assurance to the public that
these powers can be revived again at short notice should the need arise.
Encl.
IML/mjc
RECEIVED IN ARCHIVES No.31
29 JAN 1963
HKK14/20
رها
CONFIDENTIAL
HONG KONG ENERGAMOT I CISLATION INTRODUCED IN 17
Emergency Regulations enacted or brought into
L(F)R 27
force in 1967
Dissemination of false reports.
E(F)R 29 (only para. 1) Arrest and power to
detain suspected persons.
E(P)R 30
-
Arrest of persons suspected of being liable to detention.
E(P)R 31 Power to order detention
PART I
Repealed or
spent
Discontinued
17th January,1969
E(P)R 41
Power to search for and seize weapons
17th January, 1969
etc.
E(F)R 92 - Orders for the opening or closing of
premises.
14th May, 1968
E(P)R 119A
-
Persons frequenting or found in premises containing arms,
offensive weapons etc. to be guilty of offence.
E(P)R 119B
-
Persons found in premises to which authorized officer denied
access to be guilty of offence.
E(F)R 129
Sabotage.
E(P)R 136A - Modification of District Court
Ordinance increasing Court's power of sentence for certain offences.
L.N.80/67 Emergency (Prevention of Inflam-
matory Speeches) Regulations 1967.
14th May, 1968
14th May, 1968
17
.nuary,1969
14thy,168
To be relied
on re-enactment
as (ingetive) (FR
In force
- 2 -
Emergency Regulations enacted or brought into force in 1967.
L.11.79/67 Emergency (Courts) Regulations 1967.
-
Replaced or to be replaced by permanent legislation
end
Repoaled or to be repcaled or to be discontinued.
-
L.N.98/67 Emergency (Prevention of Intimidation)
Regulations 1967.
L.N.99/67 Emergency (Closed Areas) Regulations 1967.
-
L.N.109/67 - Emergency (Public Health and Urban Services
Ordinance) (Amondment) Regulations 1967 (disposal of human remains).
L.N.143/67 - Emergency (Firework) Regulations 1967.
Incorporated into Criminal Procedure Ordinance by Criminal Procedure
(Amendmont)(No. 2) Ordinance 1968 4th Oct.1968.
Replaced by similar provi- sions contained in Public Order Ordinance
17th Nov. 1967.
-
Has been incorporated into the Public Order Ordinance.
To be incorporated into Public Health and Urban Services Ordinance by
amending Bill coming before Executive Council during January.
The prohibition on possession continued by an amendment to the Dangerous
Goods (General) Regulations Cap. 295, sub.leg. in force 1st Jan. 1969.
Repealed.
Repoaled.
To be repealed. If neces- piry, replacement orders for L.No. 100, 101,
107 can be made under the Public Order Ordinance.
To be ropealed.
Repealed.
As at 10th January 1969.
PART II.
Emergency Regulations enacted or brought into force in 1967.
E(P)R 88
www
E(P)R 96
-
Criminal proceedings may be held in camera and non- disclosure of
identity of witnesses in certain
casos.
Identification (members of tho public to identify themselves to police
officers and military personnel).
E(P)R 107 Powers to disperse assemblies.
E(P)R 113
Obstruction.
E(P)R 119C
Possession of corrosive substance.
E(P)R 119D E(P)R 119E
-
Possession of simulated bomb.
Defence in respect of charges under E(P)Rs 119A and 119D.
Replaced or to be replaced by permanent legislation
and
Incorporated into Criminal Procedure Ordinance by Criminal Procedure
(Amendment)(No. 2) Ordinance 1968 4th Oct.1968.
To be incorporated into permanent legislation. Drafting instructions
being prepared.
Replaced by similar powers contained in the Fublic Order Ordinance 17th
Nov. 1967.
-
To be incorporated into the Public Order Ordinance by the Public Order
(Amendment) Bill 1969. Sent to S. of S. 3rd Jan. 1969.
A similar, less stringent provi-
to be
Persón
Integrated into the Ordinance by an amending Bill coming before
Executive Council during January.
A public mischief offence to be
created in permanent legisla-
Repealed or to be repealed
or to be discontinued.
Repealed.
To be repealed.
AN 3170
Repealed.
To be repealed.
To be discontinued.
Before Leglo 14/2/06 Opences itganist the Peren (Amolt).
Bol, 1969.
J
To be repealed.
Before beglo
Legloo. Offers
tion. Drafting instructions & Beans (ii) ce, 19649.
E(P)R 127
Meetings.
being prepared.
Replaced by similar provisions
contained in the Public Order Ordinance 17th Nov. 1967.
Repealed.
mergency Regulations enacted or brought into
force in 1967.
L.N.83/67
Emergency (Provention of Influmma- tory Posters) Regulations
1967.
L.N. 119/67 - Emergency (Committee of Review)
Rules 1967 and L.N.168/67 - Emergency (Committee of Review) (Amendment)
Rules 1967.
L.N.138/67 Emergency (Legal Aid in Crimiral
Cases) (District Court) Regulations 1967.
L.N.165/67
-
Emergency (Amendment of Magistrates Ordinance) Regulations 1967.
L.N.180/67- Emergency (General Holiday)
Regulations 1967.
As at 10th January 1969.
-2-
Repcaled or spent
Discontinued
To be re-enacted as
E(P)R.
In force
repealed
1st October 1960
spent
spent
t
کو
On discontinuance of (P)Rs 29-31.
72
HONGKONG
-
FAR CASTERN ECONOMIC REVIEW January 9, 1969.
HONGKONG AFFAIRS
4
Outsider's Chance
074 paper, the new Colonial Secretary oppeds to have a useful blend of
political and administrative experience to rectim. inct him. As a
colonial official who served first in India and then took part me
karating; ink pendent stares out of Bri- abhi ordonnes in Arica, Shi
Hugħ Normans Walker shoub↑ Lave a clear idea of how In coming to terms
with popular opinion and have more keenly developed political insaineta
than most civil servants in the Hongkong Government. While the
Seychelles has never been remarkable for the efficiency of its
administration, the experience of having grappled with a weak
Luneaucratic machine and attempted to instil it with a new sense of
purpose is no bad thing for a Colonial Secretary in Hongkong.
It is also an advantage that Sir Hugh has already been a colonial
governor. A
man who has served at the top of an administration ought to be unafraid
of responsibility and eager to make a positive impact on the bureaucracy
of Hongkong instead of being content, as so many Colonial Secretaries
have len in the past, to get buried in the files and kt minutes and
memoranda take command of his working day. Although his career to date
hardly fits him to come to a quick under- standing of the Colmy and its
peculiar problems, it is perhaps more important for Hongkong to have as
Colonial Secre- tary a man capable of producing a flow of new ideas and
policy proposals rather than a home-grown oficial whose only real
qualification is unexceptionable ser- vice.
The appointment of Sir Hugh ought to bring another bonus. He is a man
who still has several years of service ahead of him. If he does no less
than keep his copy-book clean, he can expect to follow Sir Michael Gass
to the Western Pacific
as High Commissioner. But the door is open to him to do better than
this. If he can really make his mark on the Hong- kong administration,
he should be able to look forward to becoming Governor of the Colony,
perhaps by the unusual step of direct promotion from Colonial Secre-
cary. At the same time, his appointment represents a challenge to some
of the more promising members of the Hongkong Civil Service. Two or
three believed that they had a fair chance of getting the post, not this
year possibly, but in 1970 if London nominated the expected out sider to
take over as Colonial Secretary on a caretaker basis. Their immediate
hopes have been dashed, and London seems to have indicated that the
ability to move files with dispatch and to avoid giving offence are not
sufficient qualifica. tions for the rank of Colonial Secretary; the
ambitious must display initiative, leadership and some political fair.
EMERGENCY REGULATIONS: It is accepted in most quarters in Hongkong that
the 1967 emergency is well and truly over, However, the Emergency
Regulations, introduced at the height of the disturbances, are still in
force. John Rear, a lecturer in law at Hongkong University and the storm
centre of the recent controversy over the Emergency Regulations,
presents the case for both the Crown and its critics.
The Rule of Law
Dy Jolm Rear
71E Government has a splendid opportunity to make an
authoritative reply to those who criticise Energency Regulation 31
and the administration's right to make arrests and hold individuals
without trial. This week, at the Open- ing of the Assizes, the Attorney
General will have a forumi to state the official case for retaining
these sweeping powers
ник
6. Chat & 1KK 1/12
and to defend the Government's record as he did last year. During the
war, the Governor was given a power to detain without trial, first under
GN 703 of 1939 and then under the Defence Regulations, 1940, 18(1),
which was in the same terms as the United Kingdom Defence. Regulation
153. In 1919, all the Emergency and Defence Regulations
: RECEIVED IN
ARCHIVES No.31
30 JAN 1969
HKX14/20
9
!
All
ALANGAIC
ALVIEW
Danny 9, 1969
ver, reviewed and consolidated in the Emergency (Principal)" Regul tung.
These conferred the power of detention without trial by Regulation
31(1): "The Colonial Secretary many by order under his hand direct that
any person named in such knader shall be tained for any period not
exceeding ont
in such place of detration as may be specified by the Canal
Secretary in the order,"
A detaice has no right to a trial but he is bound to be informed
of his right to lage objections against his de-. Lador to a Committee of
Review, the functions of which
"as conwder and make recommendations to the Colonial Secretary" with
respect to such ninjections (Regulation 31(3)). The Chairman and inculer
of the Committee are appointed by the Governor. The Chairman and one
other member con-" stunte a quorum (Regulation 31(2)). A dktaince may ap
per la fine the Committee in person or, if he obtains the home of the
Committee on his first appearance before it, he may be represented by a
lawyer. The detainee must be given "such inlocution relating to the
detention of the person as ilas Columnal Secretary may authorise"
{Emergency (Com- mittee of Revicz) Rules, 3(2) ).
It com la disputed that these provision, offert the comprad Go "Bukod
Law", "This term covet, nat enly das ale came that the Ixecutive is
bound by the law but abo alda hal body of detailed ruks by which the
inlaidud is protected ha criors and "laise in the exercise of govern-
oncital powers. In considering the application of the Rule of Love to
this part of the world, a Conference of 105 jurias Cum 16 comitrios of
the Southeast Asian and Pacific Regin an Pangkal in Flugars 1955 and at
which Sa Mehed n. klart Justice, was Houglong's pour qual es presenta-
Ting that "siv during public comergency they ate mu go the life of the
nation" preventive detention is contrary to the Rule of Law. Second, the
declaration of any such emergency should forthwith be reported to the
Legislas ture for ratification and it should be for a specified lunited.
tius (not excruling six months), any continuation beyond. which should
be effected "by the Legislature only after care- Fat ad deliberate
consideration".
11.
":
Third, the Excemtive should during such emergency take "only such
measures as are reasonably justifiable for the pur
of dealing with the situation which exists", Fourth, legislation
should provide the individual with safeguards agedoet continuing
arbitrary confinement by requiring a protapt and adaniais rative hearing
and decision, with a right to judicial review, upon the need and
justification for deten- con and with a right to representation by
counsel at all stages. Fifth, das period of detention should, except in
time of war, be affective only for a limited and specified time not
excred- ong six month. Sixth, the detainee should forthwith be supplied
with particulars of the grounds of his detention. These recolamendations
are an instructive measure of what Asian jurists feel is tolerable in
times of national emergency.
What is the justification for Regulation 31 I is naly progea pe state
the case for the right to arrest mal detarti in naviduals without trial
fully and Emily. The arguments in support of chi, ae of Regulation 31
may perhaps le ratione alised, in a way their proponents have hardly
attempted, as follows. It is the duty of any government to protest its
termory and to protect its people from the violent attacks of a minoray.
During 1967, the communist minority made " conconul ́assault on the way
of life of the non-communist majority in which the use of violence
resulted in the loss
73
of 51 lives (including 10 police, one soldier and one fireman). In such
circumstances, any government is faced with a choice, in the words of
one correspondent to the press, "to stand on principle and possibly to
lose freedom, or to waive the ap plication of the principle temporarily"
in order to survive,
Those who defend the Regulation go on to argue that the weapon it had to
hand was a regulation which had been lying, uncriticised, on the statute
book for nearly a decade. While the emergency is on is no time to object
to it. Regulation 31 Rs necessary because the full trial process is
inappropriate for dealing with subversive elements. A trial is for
determining whether or not a person has committed a specific atfence,
whereas here what is required is a power to put out of harm's way people
whom the Government rea- sonably suspects, on the information it has,
are about to act prejudicially to the Colony's security. This is a
matter for the executive, not for judges. Moreover, the trial process is
slow, and it involves publicity which would endanger Gavera- ment's
sources of information. Finally, the rules of evidence are inappropriate
where action is being taken on what is merely justifiable suspicion.
It is also stated in defence of the Regulation that the procedure under
the Emergency (Deportation and Detention) Regulations is also
inappropriate in circumstances like those of 1967 for it applies only to
aliens, and it was net "thought rigla xo apply duerent laws and
procedures to those implicated in [19675] events because of their
nationality". In respect of aliens, the Giovernment is in a uniquely
difficult position in that Chana will not accept the return of its
deported nationals, taking the view, apparently, that Hongkong being
Chinese soil deportation is inappropriate and unacceptable,
Criticism of Regulation 31 has also been countered by claims that there
already is a safeguard in that the detainees have a chance to appeal to
an independent Committee of Review", though the ames of the members of
this Com- mitter cannot be revided "because to do so would expose them
to unnecessary personal risks". One member, however, is a lawyer. Beine
detention orders are made, all cases are "carefully examined by law
officers" initially, and subsequently are regularly reviewed with a view
to release as soon as scou- rity conditions warrant. Detention orders
are for one year, and many detainees have been released before the year
was up, One has been redesined for good cause for one year and
Tong Ping-ta (third from right) was originally arrested under the
Deportation of Aliens Ordinance and then held under Emergency"
Regulation 31 which offered him considerably less opportunity to stolo a
case against his detention,
1
1