TNAG-0192-FCO40-228-Criminal-procedure-ordinance-discussions-1969 — Page 4

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Reference. HKK 14/9

will (22

Mr. Rushford

8:

(22) is Hong Kong's belated reply to our Saving Despatch at (1) about the Criminal Procedure (Amendment) (No. 2) Ordinance 1968, a copy of which is behind (19). You are familiar with the background to this matter and commented in your minute at The position as at last April is summarised at Since then the matter has been the subject of corres- pondence and discussion between the Chief Justice and Attorney General of Hong Kong and our own Legal Advisers, and when Lord Shepherd and Mr. Moreton visited Hong Kong in June/July, it was again raised with the Governor and the Attorney General. Prior

to the receipt of (22), the matter rested with Sir Arthur Grattan-Bellew's minute at (19) which summa- rised the measure of agreement reached with the Attorney General, Hong Kong, when he visited thes office in August.

2.

The proposals in (22) comply to some extent with the agreement recorded by Sir Arthur Grattan- Bellew at (19) but they do not give effect entirely to that agreement.

3. As regards paragraph 2 of (19), Hong Kong are willing to amend Section 123 as requested by us; but they do not want to amend Section 122 to provide for judgment to be given in open court. They argue that this is unnecessary since in any event Section 122 does not confer any power to exclude representa- tives of the press from a court. From a purely political point of view, I think that the fact that the press are not excluded would be an adequate answer to any criticism that the section excludes the public from the court while the decision of the court was being announced. However, I do not know whether the situation would be satisfactory from a legal point of view.

4. As regards paragraph 3 of (19), I think that there is some substance in Hong Kong's argument in paragraph 6 of (22), and doubt whether it is worth pursuing this point. The same argument is Hong Kong's reply to paragraph 4 of (19).

5. Paragraph 8 of (22) suggests that any amend- ments to be made to the Ordinance as a result of our representations should be deferred until the Ordinance requires other amendments to be made to it.

Twelve months have already passince we queried these particular provisions of the Ordinance and to agree to this suggestion could well lead to an indefinite delay in the introduction of the amendments that we seek. In view of the strong line that we took when originally commenting on the Ordinance (see (1)) I doubt if we could agree to this suggestion. I do not see why the intro- duction of the small amelioration of the somewhat Draconian features of the Ordinance which we are seeking should cause the Hong Kong Government any undue embarrassment.

6. Your advice would be appreciated.

LASH PAPER

(A. W. Gaminara) Hong Kong Department 5 November, 1969