CO129-604-5 Immigration- control over entry from China 4-3-1948 - 6-1-1949 — Page 57

57

Creation

passed

-6-

against the Chinese, the position appears to be as follows :-

(i) The Chinese have not in the past entered or settled

in Hong Kong entirely without restriction as Chinese have been excluded if they were undesirables and have also been deported. Consequently the Chinese cannot have acquired a prescriptive right to enter or settle entirely without restriction and there appears to be no doubt, therefore, that it is quite lawful for the Hong Kong Government to continue at least to exclude such Chinese as it considers to be undesirables and also to deport Chinese.

bar to

required) would)

(ii) The Chinese have never in fact (and never in law until

1940) been required to have passports or other such documents before they could enter Hong Kong and it might, therefore, be argued that they have, by reason of this, acquired a prescriptive right to enter without possessing such documents. I very much doubt the validity of such an argument. In the first place - until 1923 the Chinese were treated no differently from other aliens since no aliens were required to have passports until 1923 (and it would surely not be contended that all aliens had in 1923 obtained a prescriptive right to enter without passports); then from 1923 until 1940 the Chinese entered without passports by the express licence of the Hong Kong Government (since they were expressly exempted from the regulations made under Ordinance No. 35 of 1923 and from the passport provisions of Ordinance No. 8 of 1934) and I do not sed upon what gands an express licence of this sort opuld be held to have ripened into a prescriptive right. In the second place The exclusion by a State of special categories of aliens is merely a partial exercise of a wider power to exclude aliens generally; Hong Kong has in the past merely excluded certain categories of undesirable Chinese and has not exercised its power of exclusion so as to exclude Chinese who do not have passports; to argue, therefore, that the Chinese have, because of this, now acquired a prescriptive right to enter Hong Kong without passports or similar documents (while remaining subject to exclusion if they are undesirables) appears to involve the proposition that a State's general power to exclude aliens is divisible and can, by the passage of time, be partly curtailed in favour of the nationals of another State to the extent that any particular aspect of it has not been exercised against such nationals. I doubt if this is so; it seems to me that, on the contrary, a State's power to exclude aliens is (in the absence of an express agreement to the contrary) one and indivisible and that a partial exercise of it (e.g. by the exclusion of undesirable aliens) would be sufficient to keep the full power alive, in which case the Hong Kong Government, though it has not done sofin the past, still have power to require Chinese entering the colony to have passports or, indeed, to impose such other restrictions on their entry as it considered desirable.

I have assumed that the deportation and immigration legislation pursued before 1940 has been enforced against Chinese. If this is not so then the case for a prescriptive right in the Chinese to enter and settle without restriction might be stronger; but even so it could, in my opinion, be argued that, whatever the practice was, the mere fact that the legislature by passing this legislation from time to time in effect

/consistently