TNAG-0103-FCO40-139-Briefs-and-background-notes-for-Lord-Shepherd-1967 — Page 15

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20.

If the Governor's suggestion is to be pursued, it will therefore be

nocossary to determine whether the removal of a prisoner from Hong Kong to the United Kingdom for political reasons could lawfully be authorised on ono or othor of the grounds nontioned in paragraph 19 abovo. It will also

bo necessary to secure the agreement of the Home Office to such a courso.

27

The preliminary viow at official loval in the Home Office is that the

romoval of a prisoner from Hong Kong to the United Kingdom in the circumstancos statod could lawfully be carried out on ground (d). Legal advico in the

Commonwealth Offico is:-

(i) that it might (with sono doubt) be argued that such

ronoval on ground (d) would be lawful if the removing authority (i.o. the Secretary of State with the concurrence of the Hong Kong Government) was satisfied

that the prisonor's removal would be expedient for

morc officiontly carrying his sentonce into effect c.g.

because prison sentences in Hong Kong did not have the necessary dotorront effect;

(ii) that the only ground on which such renoval could bo

authorised for political reasons, without any logal doubt arising, is ground (o).

22. The arguments in support of using ground (d) would undoubtedly be

woakonod if the situation in Hong Kong were to improve to a point whore bomb

outragos coasod. Thoro would then be no reason to suppose that prison

sontoncos woro not having a deterrent offect.

23. The removal of a prisonor on ground (c) requires the existence in Hong Kong

of a law such as is reforrod to in that ground. No trace of any such law can bo

found in the latest rovised odition of the Laws of Hong Kong. Any such law,

if onactod by the Government of Hong Kong, would requiro submission to Hor

Majesty in Council for the exercise of lor powers under Section 12 of the Act

to direct that the law should have offact throughout the dominions and on the high scas as if it wore part of the Act. It appears from the records that the only instance of the exercise of this power since 1884 is an Order in Council of

Decomber 1961 relating to the ronoval from Coylon of prisoners whose doath

sontonces had boon commutod.

24. The mattor is boing further investigatod in consultation with the Hono

Offico. Any further information which is forthcoming before the Minister's

doparture for Hong Kong will bo the subject of a soparato noto.

Hong Kong Dopertmont,

Octobor, 1967.

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