CO129-604-5 Immigration- control over entry from China 4-3-1948 - 6-1-1949 — Page 52

Definitions.

1.

Question formulated.

II.

oft AK (6)

•ALErot (7)

ALLEGED RIGHT OF CHINESE TO ENTER AND SETTLE IN

HONG KONG.

The following definitions are used in this note

S.P. = British and Foreign State Papers;

टै

Oppenheim = Oppenheim's International Law (6th Edition)

am.

rep. =

Vol. I;

amended by;

repealed by;

R.E. = Revised Edition of the Laws of Hong Kong.

The question discussed in the papers under consideration is variously, and not always consistently, formulated. This may well be because the rights claimed by the Chinese have never been precisely formulated by them; but, as the Foreign Office have stated in (9) on 54064 of 1947, it is clearly necessary to reduce the question to precise terms before attempting to answer it.

It may be that the Chinese merely claim the right to enter Hong Kong as visitors without restriction (i.e., without being required to have passports or other authorising documents and possibly without being liable to exclusion as undesirables); or they may also claim an unrestricted right to stay in Hong Kong indefinitely once they have entered, i.e.,the right to settle there irrespective of the wishes of the Hong Kong Government. I am assuming

(a) that the Chinese claim both these rights;

(b)

and

that they contend that these rights cannot be revoked or diminished at the pleasure of H.M.G.

Subject to the possibility of their being acquired by prescription (as to which see para. IV below), it appeas to me that an unrestricted right of entry or an unrestricted right to settle which could not be revoked or diminished at the pleasure of H.M.G. would have to be based on an undertaking given by H.M.G. in a treaty or other agreement with the Chinese Government.

Hong Kong was provisionally ceded to the British Crown in January, 1841 (see Circular of 20th January, 1841, Hong Kong Laws 1841-53, p.1). The cession was confirmed by Art. III of the Treaty of Nanking, 1842 (S.P. XXX, p. 389) by which the Emperor of China "cedes to Her Majesty the Queen of Great Britain &c., the Island of Hong Kong, to be possessed in perpetuity by Her Britannic Majesty, her heirs and successors, and to be governed by such laws and regulations as Her Majesty the Queen of Great Britain, &c., shall see fit to direct". The Treaty reserves no special rights to Chinese in Hong Kong.

The Treaties and proclamations which appear to me to be relevant to the enquiry are as follows

(a) Proclamation of 1st February, 1841. (Hong Kong Laws

1841-53, p.2).

The last paragraph of this proclamation reads - "Chinese ships and merchants resorting to the Port of Hong Kong for the purposes of trade, are hereby exempted, in the name of the Queen of England, from charge or duty

/of

Treaties etc.

III.