CO129-417 - Public Offices - 1914 — Page 246

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provide for deportation to the place, etc., including legal custody on the high seas.

Though I agree that by virtue of the words "or otherwise the Order in Council of 2 August 1910 may be

held to extend to Hong Kong (so far as it purports to

affect Hong Kong) the Order in Council is pro tanto an

Crowns exercise of the prerogative jurisdiction and not made under any Act of Parliament which might give it extra-

-territorial effect.

Where the Crown still has power to legislate by prerogative Order in Council for a Colony it cannot so legislate with extra-territorial effect or thereby enable the Legislature of the Colony to legislate with

such effect.

Therefore I think that Article 3 of this urder in

Council does not enable the legislature of Hong Kong to empower the Governor to "deport such person to the place to which he was ordered by the Court to be deported."

Nor in my opinion does the principle laid down in the case of Attorney General for Canada v. Cain and Gilhula help. There it was held that the Crown having an inherent power to exclude aliens from a Colony the power of expulsion (if they enter) is complementary to the power of exclusion, and that it is not ultra vires for the Colonial legislature to pass a law providing for their deportation to the country whence they came.

the country Deporting an alien to whence he came is, however,

a very different matter from deporting a British subject to a place whence he may not have come and to which he may not wish to go, and I do not think that the case cited would justify Hong Kong legislating so as to impose the "ex.territorial constraints" necessary to carry out Article 3 of the 1910 Order in Council.

+

L.R[gb]AC

? Explain to the F.0. why we think that Hong

Kong is not enabled by Article 3 of the 1910 Order

in Council or otherwise to pass legislation empowering

the Governor to "deport such person to the place to

which he was ordered by the Court to be deported" as

con templated by Article 3 of the urder (which does not appear to have been referred to this Department);

call attention to the Ordinance of 1912 (sending copy)

and the provisions cited above, and suggest that

action might be taken thereunder as at a aupra.

Mp/atoms

HA

H/11/14

14.11.19

? Explais

:

E

F