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Explanatory Note.
(This Note is not part of the regulations, but is intended
to indicate their general purport),
The Emergency (Deportation and Detention) Regulations, 1962 qu principal regulations), provide that it is only after an inquiry by an independen tribunal known as the Deportation and Detention Advisory Tribunal that deportation order may be issued under the Deportation of Aliens Ordinance and a detention order made under the principal regulations. The alien whose cu is being inquired into is entitled to be heard in the course of the Tribul inquiry and to be represented before the Tribunal by counsel or a solicita In relation to deportation orders, the inquiry by a Tribunal will replace ik interview of an alico at present conducted by the Secretary for Chinese Alka pursuant to section 4 of the Deportation of Aliens Ordinance and the Tribuni report to the Governor in Council will replace the report made by the Secretar for Chinese Affairs.
2.
Although an inquiry by an independent tribunal presided over by i judicial officer into the facts on the basis of which-
(a) the Governor in Council may issue a deportation order:
(b) the Governor may make a detention order if the deportation of the alit
is impracticable.
is thus guaranteed, the type of case that the Tribunal will be called upon u consider will be such that some modification of the rules that apply in the comt and, in normal circumstances, in tribunals of this kind is necessary in the publi: interest.
3. Deportation is commonly resorted to in Hong Kong to deal with w desirable alicna whom it is impracticable to bring before the courts on a criminal charge because witnesses, and persons connected with them in one way or another. are intimidated or subject to reprisal if their identity becomes known to the al concerned or to his accomplices. It is, therefore, essential that witnesses who come forward to give evidence in deportation proceedings should be protected from the serious consequences to their well-being or livelihood that may othe wise attend the part that they play in the maintenance of law and ordu. Effective protection may be afforded only if such witnesses give their evidence in the absence of the alien concerned, who will, of course, be informed of the substance of the evidence. The President of the Tribunal is a judicial offer. accustomed to assessing the credibility of witorsses and the weight to be giva to evidence, and he will be able to put to a witness whose evidence has ban heard in the absence of the alien concerned any challenge thereto made by the alien or his legal representative.
4. A Tribunal conducting its inquiry into a case referred to it under rep lation 6 of the principal regulations or reviewing the case of a detained perm pursuant to regulation 15 is not hearing a lis Inter partes. In the cases the will come before a Tribunal, material of substantial probative force that woul! be inadmissible under the ordinary rules of evidence is sometimes available, and the work of the Tribunal will be facilitated if it may receive and consider s material, whether it is tendered by the officer presenting the case or the a concerned. Although it is thought that the principal regulations do not bind t Tribunal to follow the ordinary rules of evidence, it is considered desirable » make positive statutory provision to that effect. Any evidence that is receive will be a matter for the Tribunal, as will the weight to be attached to it
5. When a Tribunal hears evidence in the course of its inquiry into t case referred to it under regulation 6 of the principal regulations, the offic presenting the case will make a statement summarizing the facts, but in nature of the proceedings no plea will be taken from the alien concerned.
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the eircumstances, it is reasonable that a Tribunal should be empowered to dis- pense with the heating of oral evidence where the facts are admitted by the allen concerned or where, having heard the alien, the Tribunal is satisfied as to the facts po the papers before it. The nature of the proceedings on a review of the case of a detained person pursuant to regulation 15 of the principal regulations is such that the Tribunal may find it unnecessary to hear any oral evidence.
5. The power to make roles as to the procedure of a Tribunal in the carrying out of its functions presently provided by regulation 13(2) of the prin- cipal regulations may not be sufficient to authorize the making of the provisions that are necessary in connexion with the foregoing matters. Regulation 2 of these regulations, therefore, amends the principal regulations so as to provide the necessary authority, under which the Emergency (Deportation and Detention) (Advisory Tribunal) Rules, 1962, have been made (G.N.A. 69/62).
(Secretariat CR1/2706/58)