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4.
There was in consequence much resentment in Hong Kong, on the grounds that local opinion had been overridden because of what appeared to be domestic political considerations in the UK. The issue has threatened to become a continuing sore in relations with the Colony, and much thought has been given to it, even to the extent of considering possible action by HMG to abolish the death penalty altogether, as a less undesirable alternative to overruling the Governor again as in the Tsoi case. Action to abolish could be taken by Order-in-Council, and could be justified in the case of Hong Kong on the grounds that it is a Crown Colony with a legislature that is not and cannot be elected (though hardly in other dependent territories which retain the death penalty, where such action would mean the imposition by HMG on an elected legislature of a decision which has always been left to a free vote in the British Parliament). The dilemma is however apparent. To override the Governor again in another individual case would place him in an impossible position. A hanging in Hong Kong would cause political trouble here. To seek to abolish capital punishment would bring about a political crisis in Hong Kong, as well as give rise to controversy in Parliament.
5.
The Governor recently found a way round the dilemma for the time being through informal and off-the-record consultation with his Executive Councillors. In order to avoid a confrontation
which would not be in Hong Kong's interest, he persuaded them to acquiesce in decisions to reprieve for the foreseeable future. This understanding, however, has to be treated with the strictest confidence, and no hint of it can be given in public. The Governor is obliged to consider a reprieve in each case as it arises.
He
cannot take a general decision in principle, and it would be constitutionally improper to imply that this has been done. For the same reason, the understanding cannot be binding either on the
Governor or on his Executive Councillors. And there is no assurance
how long the understanding will stick.
6.
During his recent visit the Governor emphasised in conversation with the Secretary of State and with Lord Goronwy- Roberts the importance which Hong Kong attached to this subject. Mr Callaghan confirmed that if he had to try to defend a Hong Kong
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