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56
Licht.
I consider that an element of prescription in the enjoyment of a right against the sapie
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would contend that a prescriptive right to enter or settle in Hong Kong would rest, or to what extent, if at all, the conditions governing the acquisition of territory by prescription would apply to the acquisition of a prescriptive right by the nationals of one State (or persons of a particular race) to enter or settle in the territory of another State.
he hike ofreted and that thief Until I know more exactly upon what principles and under
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a fresciptive The losed for a fractie with the view of the Foreign Office, be acquired, I cannot express Grience terms of the twilamation any definite opinion as to the position in Hong Kong.
in Suggested in the love letter of the Meign offer.
Llegislation
It appears to me, however, that any Hong Kong ordinances which control the entry or settlement of Chinese must be relevant to the question. I have therefore, in the Appendix to this memorandum, summarized the immigration and deportation legislation of Hong Kong from the cession of the colony to the present day; the immigration/Registration seems relevant both to the alleged right of entry and to the alleged right of settlement, and the deportation legislation to the alleged right of settlement only.
As regards the immigration legislation, it appears that there was no general control by law of the entry of persons (whether Chinese or otherwise) into the colony before 1923, but from 1844 the entry and residence of various categories of undesirable persons was subject to control and the Chinese were accorded no more favourable treatment in this respect than any other aliens; indeed they were less favourably treated since it was to Chinese only that Ordinance No. 5 of 1895 applied. From 1923 there has been a general control of persons entering, in that they have been required to have passports or other prescribed documents, and, since 1934 the length of residence in the colony of an alien holder of a passport or other prescribed document has been subject to limitation by the Inspector General of Police or the Immigration Officer at any time within one month of such alien's last arrival in the colony. Chinese were expressly exempt from these provisions until 1940, but if they belonged to any category of undesirables their entry was, like that of other aliens, subject to control under Bart I of Ordinance No. 8 of 1934. From 1940 the law treats Chinese aliens in the same way as any other aliens. The enactment from time to time of these Ordinances amounts, in my opinion, to a continued assertion of an unqualified right in the Government of Hong Kong to control the entry and settlement of Chinese and all other aliens; and this is so even although until 1923 as regards other aliens, and until 1940 as regards Chinese aliens, the ordinances provide for the control of the entry and residence of undesirables only, for a State's power to exclude special categories of aliens is merely derived from, and so implies, a wider power to exclude aliens generally (Oppenheim, para. 314, p.616).
The deportation legislation,which dates from 1857 and makes no exception in favour of Chinese, gives the Governor in Council power in his discretion to deport aliens from the colony, the only limitation of the Governor's power being that under the earlier Ordinances (Nos. 9 of 1859 and 8 of 1882) he can deport for a maximum period of five years only. The effect of the deportation legislation is, therefore, to empower the Governor in Council to control the settlement of all aliens.
I am informed that Ordinance No. 32 of 1940 (which first required Chinese entering Hong Kong to have passports or other prescribed documents) has, because of practical difficulties, never in fact been enforced against the Chinese. Assuming that this is so and assuming also that the immigration and deportation legislation passed before 1940 has been enforced
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