the face of insistence by the allen or his legal representative on the
right to cross-examine.
In the light of the Commissioner of Police's fresh representations, the
Attorney General, who shared the President's views, advised that it was
essential to clarify these points beyond all doubt before the Tribunal
entered upon its hearings. Accordingly, the Emergency (Deportation and
Detention) Regulations, 1962, were amended by the Emergency (Deportation
and Detention) (Amendment) Regulations, 1962, whereupon Executive
Council further advised me to make the Emergency (Deportation and
Detention) (Advisory Tribunal) Rules, 1962.
These, as you will have observed, were published in Supplement to 2 to
the Gazette on 27 July 1962 as GNA 68 and 69. enclose copies of them and
would invite attention to the Explanatory Note to GA 68/62.
On the same occasion, I made the first six-monthly
periodic declaration, under regulation 4(1), that "the deportation of
persons who are nationals of China, other than persons whose cases are
certified by the Governor as being unsuitable to be dealt with under the
Emergency (Deportation and Detention) Regulations, 1962, is
impracticable".
6
I
Meanwhile, a further consideration had arisen. The extraordinary
pressure of illegal immigrants in Vay had been followed by a situation,
which still continues, in which the general pressure was maintained but
was redirected from our short land frontier to our extended and
vulnerable sea frontiers.
The whole immigration issue is undoubtedly very serious, and it is
clearly necessary to tighten up still further every measure designed to
prevent the swamping of the population and the economic and social
disaster which illegal entry on any large scale must bring about. On 1
August, 1962, Council considered a paper on this subject; in summary the
case placed before the Council was as follows. The organizers of illegal
immigration by sea via Macau present a menace to the community at least
comparable with that presented by triad leaders and by the organizers of
the drug traffic. The drug traffickers undermine society from within!
the aim of the triad leaders is to disrupt and eventually replace
Government's own authority over the people; the aim of the immigration
organizers is to exploit the emotions of people already in Hong Kong in
a way which can only result in the degradation of their standards of
living, and in the frustration of all the Government's efforts on their
behalf. The immediate motives of all these people are those of personal
gain and they are quite willing to accept the disruption of the Colony's
society if this end can be achieved. The gravity of the danger presented
by illegal immigration may be judged by the definite figures already
available, 1.9. that 100,000 illegal immigrants have entered the Colony
in the first seven months of 1962 alone, to which must be added the
annual average natural increase and legal immigration total of about
110,000. By no means all these 100,000 illegal immigrants were
"organized"; many of them came across the border in Yay in an
unorganized mass, and the organizers cannot therefore be blamed for the
whole of this huge exodus. But now that the population is so
artificially and dangerously swollen, the activities of the organizers
of the Macau traffic in aggravating the situation present a serious
menace to the community. I have already reported fully on this
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/ situation.
2
[
V
~^NFȚENTIAL
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*ard).
85
elsewhere, and need not enlarge any further here.
7
All
1.8.62.
10/1250/62
The Attorney General and one Unofficial "ember took the view that no
really serious attempt had been made to apply the ordinary law, and
declined to advise that emergency detention should be used against the
organizers of the underground illegal immigration and bogus Travel
Agencies from 'acau, until the Police produced stronger evidence that
the ordinary law had been fully employed against such persons and that
it had proved to be inadequate. the remaining "embers of the Council,
Official and Unofficial, were satisfied that the nature of the
organizations running clandestine entry into the Colony was such that no
case could be pressed home to the principal racketeers through ordinary
Court process and hearing of admissible evidence. They also saw no
particular distinction of moral turpitude between this traffic and the
triad and drug menaces, and accepted that the practical day-to-day
difficulties in the way of making police supervision orders both
They
effective and salutary in such cases were very great indeed. accordingly
advised me that the Police should be directed to apply for the
deportation, and consequential detention under present circumstances, of
the principals and key men among the illegal immigration racketeers. I
concurred in this advice.
However, I need hardly say that the intention is that, wherever
possible, criminal proceedings shall be instituted against such persons
in the ordinary way, and the Commissioner of Folice has received an
administrative directive to that effect.
8
On paragraph 4 of my savingram 797, the review which I forecast is under
way. It seems likely that someof these regulations can now be taken out
of operation, as they are covered by substantive
I shall inform you law, while others need not be kept in force.
in due course both of progress in this matter and of how the emergency
procedures are working under the new Deportation and Detention Advisory
Tribunal.
I have the honour to be,
Sir.
Your most obedient, humble servant,
oc: Hon AG
RSC
CP
CR6/3231/59
DR (for D/ER)
GOVERNOR
BB/ATC/mar
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1
1
From
Legal Department
Telephone........ .95219..
Your Ref:
Date. 14th September, 1962....
My Ref:
TT AL.
MEMO
CONFIDENTIAL
6/3231/5490)
To Hon. C.S. (Attn: Mr. Shephard),
in.
in...
AGO 8/1250/62
Emergency (Principal) Regulations 1949.
$$
Further to my memo dated 11th September 1962, I have been through the
various orders made under these regulations, and for your convenience
attach a complete list of the regulations now in operation: references
are to the Gazette notification number and the figures in brackets to
the page in the relevant volume of regulations :-
Regulations
Authority for Commencement
Competent Authority
23
85/50(161)
182/50(362)
4
216/52(462)
21
182/50(362)
25
#1
26
#
34
36
tt
37
#t
40
50
50A
51
0908 7588
65
67
67A
tt
173/50(334)
12/58(76) and 42/58(186) 173/50(334) 182/50(362)
#
#
P.M.G.(183/50)
C.P.(183/50)
61/51(85) 182/50(362) 61/51(85)
D. of M. (61 of 51)
81
83
84
??
98 99
109
182/50(362) 196/51(431) 85/50(161)
117
??
118
tt
119
120
#t
124
#
#
125
It
126
5948 1419
131
11
132
#
133
134
#
135
11
136
138
87
2.
11
182/50(362)
With regard to para. 3 of your memo dated 9th August 1962, my view is
that section 16 of the Interpretation Ordinance is quite explicit and
adequate to enable the Governor to return regulations "to ice", by
suspension of his order.
I have spoken with Mr. Collier about
LS
c.c. C.P.
WSWD/Cab.
2
this and we agree that there is no point in amending R.137 of the
principal regulations, when the power to suspend already exists.
WSWD austin
(W.S.W. Davidson)
Crown Counsel.
ent
18
>
78
-B23805
MEMO
From
Legal Department
Telephone.......... 95219
To
Your Ref:
Date 25th September, 1962.
My Ref:
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Hon. C.S. (Attn: Ir. Shephard) C.P. (Attn. Mr. Dawson)
.in..
.in. AGO 8/1250/62.
Emergency and Defence Regulations.
I enclose herewith for the purposes of the record very rough notes of
last Friday's Conference. I would be grateful if you would inform me of
any inaccuracies or omissions.
/ar.
XOF
RECINAL
926
LE
CONS
WJW Danosun
REGISTRY
NO. 6135 DATE 2019
LETTER
INWARD
(W.S.W. Davidson) Crown Counsel
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:
¡
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Emergency Regulations and
Det'ence Re ulations
ai
Notes of a Conference held on 21.9.62. between:
A.J. Shephard: Defence Branch,
C.J.R. Dawson: Police Huadquarters, and W.S.#. Davidson: Crovm Counsel,
in these Notes
D.R.-Defence Regulations.
E.R.-Emergency
£.P.R.-mergency
n
'Principal' Regulations.
1.
I began by making the following points:-
Who
(1) I now considered it is not possible to put back on ice those
E.P.R.'s already in operation without amending, the Ordinance
in view of Section 2(3) of the Ordinance.
(2) There could be no justification any longer for the retention in
operation of ER.'s and t ose permanently required
should be incorporated into the permanent law.
(3) The first step should be to go through all the E.R.'s
repealing those that have become obsolete by virtue of meniment to
the permanent law and incorporate into the permanent law t ose E.R.' S
permanently required or likely to be required for recurrent mizor
emergencies leaving a skeleton of those H.R.'s only required for
full-scale emergency or some other unexpected
emergency.
(4) The second step should be a review of those E. R.'s left
There ap ear to be two courses qen;-
in the skeleton.
!
(a) to remove these from the statute book, prepare drafts
to keep then in readiness to be enacted at shrt
notice; or
(b) to keep them on the statute book and amend the Ordinance
to allow regulations.to be made at any time and brought
aff ice and onto ice as required by the Governor for
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emergencies.
first
I strongly advocated the course which has the following
attractions auditions:
advantages
(a) much greater flexibility, 1.0. could be roviewed
annually or when required and altered without che
necessity for formal amendments;
(b) does not require amendment to the principal Ordinance;
and
(c) could not be criticized by the International
Commission of Jurists or any other body. Further
more the need to have these regulations enacted by
the Governor-in-Council could not be considered a
serious disadvantage as Council can be mu moned at
very short notice.
усл
{
I suggested that the decision as to which course should be adopted
could be taken at a higher level when we were near, completion of
the first stage.
(5) I also suggested that we should review the remaining D.F.'s kept in
operation by the Def'once Pegulations (Continuation) Ordinance,
1958. I pointed out that these regulations which were kept in
tide
operation to tie it over the period between the end of the war and
beturn to normal conditions has
oven less justification for being in
operation than the E.R.'s and that since they covered very much the same
ground they should be reviewed at the same time. However, I suggested
that the Defence Finance Regulations, 1940, should be left to be
considered at a later stage.
2
We then went through the E.R.'s still in operation and decided on
the following course of action:-
Emergency (Prevention
(1), Provister of Cholera Regulations, 1938. These regulations were
ĥ necessary to meet the recur ent emergency and such us are still
required
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should be incorporated into the permanent law.
This does not mean
that powers would be exercisable the whole time but unly, for example,
when Hong Kong is declared to be an infected area. I undertook to take
this matter up with the D.M.H.S. and report to C.S. when we reached
agreement,
(2) Emergency (Requisition) Regulations, 1949. I pointed out
that there is nothing in these regulations that is not also covered by
the E.P.R.'s. Shephard mentioned, however, that there was still some
property held by the Military on requisition under these regulations.
agreed
We regret that there could no longer be any justification for this.
Shephard undertook to take this matter up with the Lands Branch and we
agreed that when this matter was sorted out these regulations could be
revoked.
Frailway Hotel
action
action.
(3) Emergency (Royal Navy) (Police Powers) Regulations, 1949.
We agreed that the Royal Navy were likely to be used to help in the
Anti-illegal Immigration Drive from time to time and that therefore
the power of Commanding Officers to act as Police Inspectors under the
Imigration Ordinance should be incorporated into the permanent law.
It was not known whether the Navy still required t eir power to act
under the Merchant Shipping Ordinance, An attempt two years a¿o
to
incorporated these regula ions into the Immigration Ordinance flounderod
over the Navy's insistence of power to use fire arms. We agreed that
there was no justification for the Navy to have power to use fire arus
on
in carrying out their duty under the Immigration Ordinance other than
but thought that a decision. issue should be taken how at a
on
this
in self-defence and also a reed that the ap ropriate place to
incorporate
higher level. Λ
the naval powers to act under the Immigration Ordin-nce was in the
Immigration Regulations, 1961, by addition to the Second Schedule.
Shephard undertook to take this matter up with C.S. and to secure the
Navy's agreement in principle. I undertook to find out whether the Navy
still required powers to act under the Merchant Shipping Ordinance:
once the appropriate amendments had been made in the Invigration
Ordinanco
and if necessary in the Merchant Shipping Ordinance, or alternatively in
the Police Force Ordinance, those regulations could be revoked.
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(4) Emergency (Anti-aircraft Gun Practice) Regulations, 1949.
It had been definitely agreed that these regulations would not be used
the
after the termination of sent shoot in the mille of November.
Those regulations could therefore be repealed by the end of táis year
without necessarily waiting for the amendment of the Defences (Firing
Areas) Ordinance,
(5) Emergency (Arus and Ammunition Ordinance, 1933) (Amendment)
Regulations, 1950 and 1952.
(a) So far as the 1950 Regulations are concerned we agreed
that these could be repealed inmediately and that if it
wa. required at any time in the future that nevers of
the Essential Services Corps should be allowed to car y
orms and brought within the definition of exempted
persons in Section 2 of the Arms and Ammuniti în ûr lin nce,
This could be done by order of the Governor under
paragraph (b) of the Definition of Exempted Persons.
(b) As regards the 1952 Regulations, which mended temporarily the
maximum sentence un er Section 29 of the Arns mi
Ammunition Ordinance from ten years to life imprisonment,
Ithink this amendment should be maile permanent or it
Thought
should be concelled. We agreed that this amendment should
be made pernment and that when t is was done these
regulations also could be revoked.
(6) Emergency Exportation (Hiscellaneous Provisions) Regulations,
1951. These regulations will be revoked when the new Import and Export
Ordinance is enacted.
(7) Emergency (Defended Areas) Regulations, 1951. We agreed that
these regulations were obsolete and could be revoked at any time without
waiting for the enactment of the Security Areas Bill.
(8) Emergency (Immediate Resumption) Regulations, 1952. These
regulations provide for a speedy method of land resumption where land is
required for the public purpose of affording accomodation to persons
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in need. This ve co sidered to be requr d from time to time and we
the augested it should be incorporated into Crown Land Resumptions
Ordinance.
(9) Emergency (Essential Supplies) Rogulations, 1952-as for
item 6.
(10) Emergency (Importation and Exportation) Or linance (Amondient)
Regulations, 1953, 1954, 1955 as for item 6.
(11) hergency (Agricultural Poisons) Regulations, 1955. I agreed
to take up the question of the incorporation of these regulations into
the permanent law with D.M.H.S. and Director of Agriculture and to
report later to C.S.
(12) Emergency (Deportation and Detention) Regulations, 1962. Te agreed
to leave these regulations until a later stage. Pd. Lit
of sextoring moister Tep: of Miews 0.4,
J
3. We then began to go through the Emergency Principal' Regulations,
1949, beginning with those already in operation and decided on the
following course of action:-
Regulations 21 and 22. I pointed out that these
regulations were very nearly covered by the present
Telecom@mication Ordinance and that if there was any
further provision required it could be incorporated in the
new Telecommunication Or nance at present being drafted,
I agreed to take this matter up with Collier who is drafting
the new Ordinance so that he can take it up with the P.M.G.
On the enactment of the new Telecoma ndication Ordinance,
These two regulations could be revoked.
Regulations 25 and 26. I pointed out that Regulation 25
was partly covered by the Sedition Ordinanco but felt that
this Ordinance would only be used in serious cases, Dawson
recommended that these two regulations should be incorporated
into the permanent law and wo agreed that the appropriate
place would be the Public Order Ordinance. We would also
consider enlarging the regulations to include power to enter
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6
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notices private property and to pull
down or obliterate such aisances,
Regulations 29 to 32. We agreed that those regulations would
only be used in a full-scale anergency and should therefore
be retained in the skeleton.
Regulation 34. We agreed that this regulation is now
obsolete and could be repealed without waiting for the
enactment of the Security Areas sill, since it was already
covered by the provisions of the "ublic Or‹ler Ordinance.
Ponton to forth of. A GP
Regulations 36, 37, and 40. We thought that these
regulations would only be reqdred in a full-scale energ; acy
and should be retained in the skeleton.
Regulations 50, 50 ma 51. Shepherd pointed out that
regulation 504 was incorporated as a result of a sup estion
by the Secretary of State and we agreed that theso vital
provisions should somewhere be incorporated in the punanent
law. The Immigration Ordinance was my ostod as a possibility
and I undertook to consider this matter.
Regulation 57 of this regul-tion is covered by Section 12
of the Public Order Or inance ani can be repealed.
Regulation 58. We discussed 58(1)(a) and decided that
the provision in the Road Trafic, Ronds and Signs Regulation
could be used for minor matters such as, parades, fotball
matches, etc., and that viure a road is to be closed for
security reasons it could be declared a 'closed aren' under
the Public Orver Or ́inanco,
As regards 52(1)(c), this a ears
to be coverel by Section 12 of the Public Or or Ordinanco.
However, we decided that this regulati n sikuld be retained in the
which
skeleton in view of the provisions of 51)(b) did not
other.
appear to La fully covered by legislation.
Regulation 62. I agreed to consult r. of C. & I. and
also to consider whether this regulation was or was not fully
covered by the permanent law.
Regulation Új. I agreed to consult with D. of M., D. of
C. &I, and the Manager of the Kailway as to whether tis
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3
7
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regulation should be repealed or retaine:) in the skeletan,
Regulation 65. This is an ancillary provision for the
most part covered, as far as the Police are concerned, by
Sections 45(6) and 49 of the Police Force Ordinance but it
was agreed to come back to this regulation later when we
had removed from these regulations all offences creating
sections in operation.
Regulation 66. This regulation should be retained in
the skeleton for operation in full-scale emergency, but we
also decided that we could widen the provisions of (Insediate
Requisition regulations to be incorporated into
Resumption
the Emergency
the Crown und Lands Requisition. Oruinance, to cover cases
where land is urgently required for purposes of public
this security. A recent example of when was the building of the
Border Fence.
Regulation 67. We co sidered that this regulation would
only be required in a full-scale energency and could be
retained in the skeleton. However, I a reed to consult with D. of H. who
had been apointed competent Authority under
the nad this regulation as to emfor its retention in operation.
Regulation 67(A). I pointed out that this regulation was
added because the C.P. at that time did not wish to use