CO129-604-5 Immigration- control over entry from China 4-3-1948 - 6-1-1949 — Page 73

No: 1/1166/47C

Mufcendio exc. Ammes C to AL. Scrtt (7)

CONFIDENT IAL

COLONIAL SECRETARIAT,

LOWER ALBERT ROAD,

HONG KONG.

4th March, 1948.

73

(10) on 247 file

Lory:

Annex A.

by dear Mayle,

Thank you for your letter No. 54064/47 of 5th November, 1947, giving the Foreign Office comments on Hazlerigg's memorandum on the alleged right of Chinese to enter Hong Kong.

2.

While the Foreign Office make out a fairly strong case for the prescriptive right of the Chinese to enter Hong Kong, we agree with you that we cannot accept this. The Foreign Office arguments merely confirm our view that there is no provision by treaty obliging Hong Kong to permit free entry of Chinese. The Foreign Office make two main points:

(a)

(b)

3.

that in the absence of contrary evidence we must conclude that the Proclamation of 1841 was not revoked before 1858, and that it was not thought necessary to provide for freedom of entry expressly in the Treaty of Tientsin, 1858, because it was by then taken for granted;

that freedom of entry having been enjoyed and not challenged ever since 1858 it has created a prescriptive right.

Argument (a) seems to miss Hazlerigg's point that the Proclamation of 1841 was issued before Hong Kong was formally ceded, and that the effect of the Treaty of Nanking in 1842 was to abrogate this Proclamation, although it did not do so specifically. The Supple- mentary Treaty of 1843, which gave no right of permanent residence, but merely a right to resort to Hong Kong to purchase goods, was specifically abrogated by the Treaty of Tientsin, 1858.

4. As regards argument (b), mere acquiescence does not necessarily mean that a right has been created, though admittedly it creates a strong presumption in favour of such a right. The argument is weakened, however, by the fact that there were Ordinances to some extent modifying the right of entry into Hong Kong issued in the century before 1940. Evidence of this is to be found in the Objects and Reasons to the Bill for, and in the debate on, the Immigration Control Ordinance, 1940. For facility of reference I enclose (Annex A) copies of these extracts. Paragraphs 6 and 7 of the Objects and

N. L. MAYLE, ESQ.