THE CASE.
3. LAST SENTENCE IN PARA.3(A) OF MY TELEGRAM 481 SHOULD BE TREATED
WITH CARE. IF QUESTIONED ABOUT POSSIBLE AMENDMENT HERE, WE SHALL
ANSWER ONLY TO THE EFFECT THAT THESE REGULATIONS, LIKE OTHERS, ARE
ALL SUSCEPTIBLE TO RE-EXAMINATION IF AT ANY TIME THERE APPEARS TO
BE A NEED TO DO SO. IT IS IMPORTANT TO AVOID ANY SUGGESTION THAT ANY
AMENDMENTS ARE LIKELY WHICH WILL MATERIALLY REDUCE THEIR COMPLETE
EFFECTIVENESS IN EMERGENCY.
SIR D. TRENCH
FILES
H.K.D.
F.E.D.
SIR A. GALSWORTHY
SIR J. JOHNSTON
ADVÁNCE COPIES SENT
RECEIVED IN- REGISTRY No.51
17 JUN 1969
CONFIDENTIAL HKK 14/20
En Clair
TOP COPY
HONG KONG TO FOREIGN AND COMMONWEALTH OFFICE
Telno BIS 14
UNCLASSIFIED
19 June 1969
PRESS
Twelve more emergency Regulations are to be discontinued. They include
Regulation 31 which empowers Colonial Secretary detain people for
periods up to one year.
Order will be published Government Gazette tomorrow
Friday.
"this
Commenting on order Government spokesman said action been taken
following review which been carried out over past year to ensure that
none of emergency Regulations
are kept in force longer than is necessary.
However discontinued Regulations could be brought into force again
should need arise" Ends Informs.
DEPARTMENTAL DISTRIBUTION
HONG KONG DEPT.
F.E.D.
DEF. POL. DEPT.
P.U.S.D.
O.P.A.
LEGAL ADVISERS
NEWS DEPT.
FFFFF
RECEIVED IN
REGISTRY No.51
20 JUN 1969
HK/14/20
L
Hongkong Standard
635, King's Road, North Point, Hongkong
Telephone 616222-8
Member Audit Bureau of Circulations.
Page 8 Saturday, March 22, 1969
Must clause 31 stay on?
IN January this year, the Government, upon review
of the Emergency Regulations, revoked Clauses 27, 4] and 129 from them,
and said that as conditions in Hongkong became more normal, further
regulations would be repealed.
The Government has now revoked twenty-five more emergency regulations,
but warning at the same time they could be reimposed whenever the
occasion warrants it.
As they existed on the whole, the Emergency Regulations were never
popular in Hongkong. But it became evident to the public during 1967
riots, when the fate of the Colony appeared to hang in the balance, that
it was essential for the Government to promulgate Diaconian laws.
Hongkong, in those days, was living in an abrasive climate ol
disturbances and violence. Consequently, drastic action was needed to
cope with the situation.
But this drastic situation no longer exists. The Government has had
plenty of time to review the regulations thoroughly, but it has not yet
thought it expedient to repeal the controversial Clause 31 of the
Emergency Regulations.
This had sparked a vehement attack by the Hongkong Bar Association on
grounds that it gave Government sweeping totalitarian powers, making
Hongkong a police state.
Regulation 31 enables the Colonial Secretary to detain any person for a
period not exceeding a year, But as the Colonial Secretary is not
infallible, an innocent man could be arrested and detained without
having recourse to legal protection.
This regulation, which was justified in 1967 during the riots, has no
basis today. So its retention is pernicious and undemocratic.
We think it not unreasonable to ask the Government to revoke it as soon
as possible in the interest of public confidence in the Colony.
For one thing, existence of Regulation 31 would only remind the public
of a black period in Hongkong's history which is best forgotten.
So why retain it, unless Government wants the public to think that
conditions here, however normal They may seem on the surface, are still
fraught with *úncertainty, and it's best to be on one's guard under
the circumstances.
1
:
t.
RECEIVED IN ARCHIVES No.31
- 8 APR 1969,
NKX14/20
1
Extract from
Waike Information Dulletri),
Rsfile
datest 26 will. Ron E. Rs.
- 2
-
:
|
|
I
MORE EMERGENCY REGULATIONS REPEALED.
Four more amurgency regulations have boon repealed and one anonded.
Today's (Friday) Government Gazette contains an Etergency Regulations
(Ropoal) Order and an Emergency (Principal) (Amendment) Regulations
which
offcct this.
and 119E.
The Order repoals Emergency (Principal) Regulations 50, 51, 119D
Rogulations 50 and 51 give power to control the entry and departure
of ships and aircraft and to dotain ships, aircraft and vehiclos as woll
as people on board. They are no longor necessary as similar power exist
in the Public Order Ordinanco.
Rogulation 119D makes possession of a simulated bomb an offence
and 119E provides a defonce to a person charged with such an offonce by
showing that the object was not intended for use as a simulated bomb.
Tho Summary Offences (Amendment) Bill, recently enacted, makes similar
provisions so that both those regulations can now be repealed.
Regulation 119h, which has not been repealed, makes it an offence
for any one to frequent or be found in promises containing any arms or
ammunition, any offensive weapon, any explosive substanco, any corrosive
substanco or any simulated bomb.
This regulation is amonded to include a dofonce to a porson charged
ith an offence in connection with a simulatod borb. Provision for this
dofeneo was previously made in Regulation 119E.
KBCEIVED IN ARCHIVES N. 31
APR 1969
ник
HKCK 14/20
13.....
19
14
HONG KONG GOVERNMENT
INFORMATION SERVICES
RECEIVED IN
DAILY INFORMATION R. GETRY No. 51
BULLETIN
- 2 MAY 1969
нке
Friday, Larch 21, 1969 LAKE 14/20
- 11
نا
TWENTY-FIVE LORE EVERGENCY (PRINCIPAL) REGOLUTIONS DISCONTINUED
Tionty-five more morgoney regulations are to be discontinued.
Most of these have been a part of the law since 1950 but discontinuance
was not possible in the past since there was no provision to discontinuo
thom whilst at the sam timo proscrving the ability to re-activate them
at short notice should the nood arise. The provision to enable this to
bo dono was introduced last year.
"Government has no desire to rotain in active force omorgency
rogulations that are not required and the position is roviewed
regularly,"
a Goverment spokesman said today (Friday).
Today's Government Gazotto contains an Ordor nado by the Governor
discontinuing 25 Emergency (Principal) Regulations.
"This Order was nado after a comprehensive study of the nood to
koop omergency regulations which have boon in forçc since 1950," the
spokosman said.
The discontinued regulations could be made active again should tho
noed eriso.
to Editors:
The list of the 25 omorgency regulations
to be discontinuod is contained in the Discontinuance
Order that is published in Logal Supplement No. 2
of today's Government Gazette.
A list is also attached at Appendix "/"
at the end of this Bullotin.
Release Tini 200-Rımı
HK, L,S.
21. 3.69.
AFFE.DEX "A\"
REGULATIONS TO NE DISCONTINUED
Rog. 21 Wireless telography, etc.
26 Publication may be prohibited.
34 Declaration of special areas and duties of persons therein.
36 Transfer of percons in custody.
52 Prohibition as to supply of fuel, victuals, and necessaries,
and the repair of ships and aircraft.
58 Control of territorial and colonial waters.
59 Control of roads and travel by vehicle and temporary control
of territorial waters and colonial waters.
68 Requisition of property other than land.
69 Power to comardeer property other than land.
83 Application of Compensation (Defence) Regulations.
86 General power to affix notices,
99 Identification of persons in custody.
100 Powers of entry and search of prenises, places, vehicles,
vossels or aircraft.
117 Offensive weapons.
118 Consorting with person carrying or having possession of
arms, ammunition, explosive substance or offensivo weapon.
119 Failure to report offence of carrying or possessing arms,
ammunition or explosive substance or offensive weapon.
1190 Possession of corrosive substance.
120 Consorting with or harbouring persons wearing unauthorised
unifoms, etc.
124 Certain offences in closed, protected, damaged or evacuated
areas to be punishable with life imprisonment.
125 Damage or interference with public works or communications,
126 Power of Governor in Council to proscribe organization.
132 Alteration and improper use of licences and permits.
133 Attempt to commit an offence to bo doomed an offenco.
134 Liability for offences.
135 Obtaining possession, whore possession is an offence.
ļ
Reference
110
і
Flag (2
Flag. 316
| and subsidiary
mauli Shereended
and other miner emergency imeascapes made under Cap 241
Repieces o 28.569
Repeated a
21.3.69.
Mr. Carter
The attached Saving Despatch from Hong Kong and the attached letter from
the Governor to Sir Arthur Galsworthy, together with their enclosures,
set out the present position of emergency legislation in the Colony,
together with the Governor's future intentions in this matter.
2.
The attached correspondence goes into some detail and differentiates
between emergency legislation which has been in force in Hong Kong since
as long ago as 1950, and the more recent legislation which was
introduced in 1967 as a result of the disturbances which occurred during
that year.
For the purposes of this summary, however, I have disregarded that
differentiation and simply show those Emergency (Principal) Regulations
which are still in force, together with the Governor's intentions in
respect of them.
3.
The following Emergency (Principal) Regulations are still in force and
will need to continue in force until such time as it proves possible to
release the four remaining detainees:
-
Regulation No. 29 (paragraph 1 only) the
power to arrest and detain suspected person.
Regulation 30 the power to arrest persons
suspected of being liable to detention;
Regulation 31
Regulation 40
enquiry;
-
power to order detention;
power to detain persons for
The Emergency (Committee of Review) Rules and
Amendment Rules, 1967.
T
When the remaining detainees are released, the application of the above
legislation will be dis- continued and the legislation will be enacted
as part of the Emergency (Frincipal) Regulations which will be inactive
but ready for the next emergency.
4. The following Emergency (Principal) Regulations are still in force
but will be repealed as soon as they have been incorporated (in some
cases in a less stringent form) into permanent legislation:
-
Regulation 25 creates the offence of
displaying placards and other material which incites to violence;
Regulations 50 and 51 - power to control the entry and departure of
ships and aircraft and to detain ships, aircraft, vehicles and personnel
on board;
Regulation 96
-
power to require members of the public to identify themselves to Police
Officers and military personnel;
Regulation 113
Regulation 119C
substances;
obstruction:
possession of corrosive
Repeated on 28369 Repealed 28.3 69
Regulation 119D
bomb;
possession of a simulated
Regulation 119E defence in respect of
-
charges under Regulations 119A and 119D;
Legal Notice 99/67 closed area regulations;
-
Legal Notice 109/67- public health
regulations.
5. There is one other regulation (Regulation 37) which empowers the
Commissioner of Police to make Police Supervision Orders excluding any
person from particular areas of the Colony or requiring him to report
his movements, etc. One of the recently released detainees is already
the subject of such an Order and it may well prove necessary to continue
this particular Regulation in force after all the others have been
either repealed or discontinued.
6.
As regards those Regulations listed above which are to be repealed as
soon as their provisions have been embodied in permanent legislation,
steps to enact the necessary permanent legislation for this purpose are
well in hand.
7.
Apart from the above, all the remaining Emergency (Principal)
Regulations have been repealed
or discontinued.
!
3 March, 1969
Sw A. Galsworthy
(A. W. Gaminara) Hong Kong Department
Mr.
Gooden
Please
Sa Mr. Gaminiara's manute
Cleve
2.
When all the emergency measures noted in
5° above have been discontinued,
paras 3, 4
There will still remain in force the Emergency
and Detention) Regulations
(Deportation and
made under Caps 241, providing for the
detention
ahens where deportation has
proved impracticable. This
is a power that has
been in facce sonce 1956 and used to curb
The actrerties of persons promment in triad
Societies, illegal immigration rachets, dring trafficking, ek. maandanas
CAA Although there
aire
home detamed under these Regs at the
么
Reference
fresent time
me, it is not a power
do is not a power that can be
dispensed with.
2. A short draft reply to the Governor
br. 5. Carter
3/8/69
attached,
HKK 14/20
Reference
!
Mr. Gaminara
We had a word about these papers this afternoon. It seems to me there is
one point which is not brought out in these minutes.
2.
We are to a large extent dismantling the Emergency Regulations in Hong
Kong by incorporating them in the Colony's permanent legislation. In the
particular circumstances of Hong Kong this seems to me a right and
sensible thing to do: the continuance in force of measures which in
their title carry the word and connotation of emergency gives people in
Hong Kong, and even more people in this country or elsewhere, and such
organisations as Justice etc., a
false idea about conditions in the Colony; while at the same time, given
Hong Kong's circumstances, the authorities there need to have powers
immediately
available to them to deal effectively with any out- break, and above all
to nip any potential outbreak in the bud and thus to prevent it from
erupting with all that that entails in Hong Kong.
3. The point at which we may incur criticism (often well meaning
criticism) is if we embody in Hong Kong's permanent legislation matters
which, while reasonable
enough in an emergency, may appear to reasonable people to be
unreasonable as part of the permanent body of legislation. I quite
accept that we must be prepared to face up to the probable need for Hong
Kong's permanent legislation to contain provisions which might be
difficult to defend in, for example, Bermuda or the Solomons. But I
think we must bring any such points specifically to the attention of
Ministers, with of course the justification for the
retention of those particular provisions in their permanent legislation,
so that Ministers are aware of what is happening and are not suddenly
confronted, e.g. in a P.Q., with criticism which they have previously
had an opportunity of considering on its merits.
H
4. I should therefore be grateful if this aspect of the matter could be
looked into before Lord Shepherd's return: i.e., let us consider whether
any of the
provisions
X
provisions now being transferred from the Emergency Regulations to the
permanent law of the Colony would be unusual or unique features of
permanent legislation in a British Colony; and let us also formulate the
need and justification for the retention of those particular provisions
in the circumstances of Hong
Kong. In this connection there does seem to me to be
some merit in indicating whether any provisions which
we feel might attract criticism were introduced in
1967, or have been a feature of Hong Kong legislation for much longer. I
emphasise that I am not seeking to
alter what is being done, which on my reading of these papers seems to
me entirely right. My purpose is simply
to ensure that Ministers have brought to their
attention any unusual features which might be the subject of criticism
in Parliament, or the press here, or on the part of bodies such as
Justice, etc., together with the justification for the retention of
those
particular provisions.
Copies to
Mr. Moreton Mr. Carter
Ani.
(A.N. Galsworthy)
17th March, 1969
|
Reference.
¡
!
Flag AR
Mr. Carter
In the light of Sir Arthur Galsworthy's minute of 17th March, I am
re-casting in the following terms my minute to you of the 3rd
March,which can be ignored.
2.
Flag B (6
The attached Saving Despatch from Hong Kong and the attached letter from
the Governor to Sir Arthur Galsworthy, together with their enclosures,
set out the present position of emergency legislation in the Colony,
together with the Governor's future intentions in this matter.
3.
I have re-hashed the information provided by the Governor in the form of
the attached tables which show:
4.
(a) the extent to which those Emergency Regulations which have been in
force in Hong Kong since before 1967, have been or are to be embodied in
permanent legislation:
(b) the extent to which those Emergency Regulations brought into force
during 1967 have been or are to be embodied in permanent legislation;
(c) the extent to which Emergency
Regulations are still in force in Hong Kong, whether they were brought
into force before 1967 or during that year.
As regards (a), I do not think that this category of Emergency
Legislation should present any problem. For one thing, there is very
little of it: for another its content is not contentious, and in any
event these Regulations have been in force for so long that they have
virtually already become part of the scenery.
5.
As regards (b), it will be noted that most of this legislation has been
or is to be incorporated in the permanent law through the medium of
either the Public Order Ordinance, 1967, or the Criminal Procedure
(Amendment)(No.2) Ordinance, 1968. I doubt whether any of the Emergency
Legislation, which is to be incorporated into the permanent law, other
than in one or other of these two Ordinances, is likely to give rise to
criticism.
6*
As regards (c), it is clear that apart from the Emergency (Deportation
and Detention) Regulations (which have in any event been in force for
many years and which concern only aliens whose deportation has proved
impracticable) the few Emergency Regulations still in force are all
required in connexion with the remaining four detainees. As soon as
those detainees have been released, all these remaining Regulations can
be repealed, with the exception of Regulation 37 which will continue to
be required as long as Police Supervision Orders are necessary.
The Public Order Ordinance, 1967
The
7. This Ordinance was enacted in November, 1967, after prolonged prior
consultation with us. Ordinance has been the subject of considerable
criticism. Mr. Rankin, MP, tabled a petition in the House in December,
1967, seeking that the Ordinance should be disallowed. The Hong Kong
branch of
91
1
"Justice" severely criticised the Ordinance in a long and comprehensive
memorandum last year; and Mr. Frank Allaun, MP put down Questions on the
19th December, 1968 and the 10th February, 1969, asking "What changes
have now been made in the Hong Kong Public Order Ordinance regarding the
extent to which the burden of proof is placed on the authorities." He
was informed in reply to these questions that certain provisions of the
Ordinance were being examined in consultation with the Governor in the
light of criticisms that had been made.
8.
As a result of the memorandum from "Justic " we asked Hong Kong to give
further thought to certain of the provisions of the Ordinance and this
they have done.
They recently sent us a copy of a draft Bill to amend the Ordinance and
this draft Bill is now with the Legal Advisers. It meets the majority of
the criticisms raised by "Justice" but there are certain provisions in
it on which we do not altogether see eye to eye with the Governor. The
Minister may wish to see the Bill before we send the Governor our
comments on it. The Criminal Procedure (Amendment) (No.2) Ordinance 1968
9.
This Ordinance was sent to us recently for notification of
non-disallowance. It is now with the Legal Advisers who have certain
reservations about some of its provisions (relating to the powers of
Judges to exclude the public from courts). The Minister may also wish to
see this Ordinance before notification of non-disallowance is conveyed
to Hong Kong.
Ms.
20 March, 1969
(A. . Gaminara) Hong Kong Department
7/0
(1) Emergency (Frincipal)
Regulation 25
(2) E(F) Regulations 50 & 51
EMERGENCY LEGISLATION WHICH HAS BEEN OR WILL BE
EMBODIED IN PERMANENT LEGISLATION
(A) Emergency legislation which has been in force since before 1967
Makes it an offence to display placards or other material inciting to
violence
Give power to control the entry and departure of ships and aircraft; and
to detain ships, aircraft and vehicles as well as the persons on board.
Has been in force since 1950 Will be repealed as soon as its provisions
have been incorporated into permanent legislation. The Governor has
given instruc- tions for this to be done.
Have been in force since 199 and 1958 respectively: these Regulations
have now been embodied in Sections 34 and 35 respectively of the Public
Order Ordinance, 1967. Administrative directions are now being
given by the Governor under section 35 authorising the detention of any
C.R.G. or Taiwanese military aircraft that may land without authority in
Hong Kong. these directions have been given, these two Regula- tions
will be repealed.
When
NOTE: The above Emergency legislation is the only emergency legislation
enacted before 1967 which is
now being incorporated into permanent legislation. Apart from this the
only emergency legislation in this category which is still in force
(other than the Emergency (Deportation and Detention) Regulations which
concern only aliens whose deportation has proved impracticable) are E(P)
Regulations 37 (Police Supervision Orders) and 40 (power to detain
persons for inquiry). two Regulations must remain in force so long as
there are persons remaining in detention under E(P) 31. Regulation 37
may be required for some time thereafter.
These
(1) E(P) Regulation 88
(2) E(P) Regulation 96
(3) E(F) Regulation 107
(4) E(P) Regulation 113
(B) Emergency legislation which was introduced in 1967
Enables a court:-
(a)
(b)
to hold criminal proceedings in camera in the interests of justice,
public order or security;
to avoid disclosing the identity of witnesses if the latter are
apprehensive for themselves, family, friends or property.
their
Requires any member of the public to identify himself to police officers
and military personnel, if required to do so.
Empowers an authorised officer to disperse any assembly or meeting of
five or more persons.
Makes it an offence to obstruct any police officer or member of the
military forces acting in the course of his duty.
This Regulation has been repealed and its provisions embodied in the
Criminal Procedure Ordinance by Criminal Procedure (Amendment) (No. 2)
Ordinance, 1968. The latter Ordinance has been submitted by the Governor
for notification of non-disallow- ance and is now under consideration.
This Regulation will be repealed as soon as its provisions have been
incor- porated in permanent legislation. This legislation is being
drafted in Hong Kong.
This Regulation has been repealed and replaced by similar powers in
section 11 of the Public Order Ordinance, 1967.
This Regulation is to be incorporated in the Public Order Ordinance,
1967, by the Public Order (Amendment) Bill which is at present under
con- sideration in the department. As soon as it has been so
incorporated the Regulation will be repealed.
/(5)
P) Regulation 1190
(6) E(F) Regulation 119D
(7) E(P) Regulation 119E
(8) E(P) Regulation 127
(9) Legal Notice 79/67.
(Emergency (Courts) Regulations)
Makes it an offence to have possession or custody of or control over any
corrosive substance without lawful authority or reasonable excuse.
Makes it an offence to have possession or custody of or control over a
simulated bomb without lawful authority or reasonable excuse.
Provides a defence against charges under 119D in certain circumstances.
Empowers the Commissioner of Police to prohibit the holding of meetings
if he is satisfied that such meetings would be likely to disturb public
order or interfere with essential services or supplies.
Empowers Judges to exclude the public from courts.
A similar but less stringent provision is to be incorporated into the
Offences Against the Person Ordinance. The necessary amending Bill went
to the Hong Kong Legislative Council in February, 1969, but the
Ordinance has not yet been received in the department. As soon as this
Regulation has been so incorporated, it will be repealed.
These Regulations will be repealed as soon as equivalent provisions have
been incor- porated in the permanent law. The Summary Offences
(Amendment) Bill, 1969, was introduced into the Hong Kong Legislative
Council on 26th February for this purpose. The Ordinance has not yet
been received in the department.
This Regulation has been repealed and replaced by similar provisions in
sections 7, 11 and 15 of the Public Order Ordinance, 1967.
These Regulations have been repealed and incorporated into the Criminal
Procedure Ordinance by the Criminal Procedure (Amendment) (No.2)
Ordinance, 1968. The latter Ordinance has been forwarded by the Governor
for notifica- tion of non-disallowance and is under consideration in the
department.
(10) Legal Notice 98/67
(Emergency (Prevention
of
Regulations.)
(11) Legal Notice 99/67
(Emergency (Closed Areas) Regulations, 1967)