TNAG-0555-FCO40-650-Review-of-death-sentence-in-Hong-Kong-1975 — Page 72

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of death sentences should be seen to rest firmly on HMG.

4. The proposed statement for use in the Legislative Council would not appear to be acceptable on a number of grounds. First, it does not recognise the fact that the Governor, by virtue of the Royal Instructions and other instruments, is the head of the Executive fully empowered to take decisions falling within his competence. A decision on whether or not to allow a death sentence to be applied is a matter within the Governor's competence. Instead, the statement indicates that authority in this matter resides in HMG. It would not be right, on general grounds, for the Governor to be seen to be abdicating his responsibility in this way. Second, the proposed statement indicates that there has been an automatic process of commutation of death sentences. Although this could be said to accord with what has happened since 1966, when the last death sentence was carried out, it would not be constitutionally proper for such a statement to be made. I attach a Written Answer by the Home Secretary on 23 December 1964 which is relevant in this connection. Third, the proposed statement is at best imprudent, if not of doubtful constitutional propriety, where it says that in future commutation of a death sentence will automatically mean

life imprisonment.

5.

(i)

In the light of the situation in which the Governor now finds himself, there appear to be three possible

ppear to be three possible courses of action:

or Her Majestin for the UK Parliament to legislate for the removal of the death penalty in 'Hong Kong. In the present climate of opinion on this issue in Hong Kong, such action would almost certainly provoke a severe constitutional and political crisis;

(ii) for the Secretary of State to agree to apply the 1947

Creech-Jones formula to Hong Kong. This would mean that the Secretary of State would not intervene, except in the rare case of an apparent miscarriage of justice, once the Governor had decided that the death penalty should be applied. This formula is applied to other dependent territories but those territories, unlike Hong Kong, do have elected legislatures advising the

/Governor

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