TNAG-0271-FCO40-307-Legislation-on-immigration-and-deportation-in-Hong-Kong-1971 — Page 25

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able to deportation, we would remark that certain of the persons in Class A may have been found guilty of an offence against the immigration law, while All the persons in Class B will have been found guilty of an offence. In all these cases we think it would be quite proper for the Court which has passed the sentence to add a recommendation for deportation, if thought desirable. In some of the cases in Class A, and almost the whole of the cases in Classes C and D, the persons concerned will not have been charged with any offence. In these cases it has to be borne in mind that the reason for making the order must necessarily be that certain facts are alleged against the person to be deported and that, even where those facts are admitted or proved, he may allege other facts as reasons why a deportation order should not be made. It is also probable that in some cases points of law will arise. We consider, therefore, that it is essential that any points of law involved should be determined and the truth of and the weight to be given to the facts should be investigated by a regular judicial enquiry which in the majority of cases might be held in chambers and Lot in open Court. The enquiry should, we think, be conducted by a judge or magistrate with professional qualifications. A definite charge should be framed that the person who is the subject of the enquiry falls within one of the specified categories of persons who may be deported. For example, he will be charged, on grounds which should be stated as fully as possible, with being a person whose Immigration into the Colony or Protectorate should not have been permitted, with being a person whose continued presence in the Colony or Protectorate is a menace to peace, order and good government, or with being a person who is likely to become a charge upon public funds. These charges should be com- municated in writing to the person concerned, and at the enquiry he (or his representative) should be given the opportunity of shewing cause why he should not be deported, or shewing that he does not fall within the category specified of persons who could properly be regarded as deportable. As the result of the enquiry the judge or magistrate should make a report to the Governor, stating his findings of fact and conclusions on any questions of law involved, with or without a recommendation for or against deportation, and the actual order for deportation, if made, should be made by the Governor-in-Council, or the Governor, as the case may be. The judge's conclusions of fact and law should, of course, be accepted as conclusive; but where, having regard to those con- clusions, the making of a deportation order would be legitimate, we do not con- sider that the Governor-in-Council, or the Governor, as the case may be, should be bound by any recommendation in the report. In particular in the case of categories C and D, the question whether a person falls within either must be largely one of opinion which should, in our view, be determined by the Governor- in-Council, or the Governor.

7. We proceed to consider the period after arrival in the Colony or Pro- tectorate which should govern the liability to deportation in the case of each of the classes in our classification. In the case of Class A, we think that the period should be very short, and should not in general exceed three months. There may be exceptional cases in which the size, imperfect development, or inadequately-protected frontiers of a Dependency make it specially liable to the unobserved entry of undesirable immigrants, and in such cases the period might perhaps be somewhat longer, but we should regard the period of one year as an absolute maximum.

S. Turning to Category B, we think that a Colony or Protectorate must be regarded as responsible for persons who have resided there for some time, and possibly acquired criminal tendencies which they did not possess on arrival. We, therefore, suggest a limiting period of two years for application to Class B.

9. Class C represents the category which is likely to give rise to the greatest difficulty. We think that great restraint should be shown in exercising powers of deportation with regard to persons in this category. The persons falling within Category C are not likely to be welcomed in any part of the Empire. and it is not reasonable that the part in which they happen to be should force them light-heartedly upon another part. We suggest that the circumstances of de case could very often be met by taking power to require a person of the kind described to give security for good behaviour, or to remove him from one part of a Colony or Protectorate to another, or to another territory under the same Government, or to exclude him from specified parts of the territory concerned.