TNAG-0679-FCO40-828-Allegations-of-corruption-and-bribery-in-Hong-Kong-1978 — Page 3

Honourable Members will recall a discussion (under

"Other Business" on 22nd November) when the Attorney General ex- plained that he had doubts as to whether section 5(1) of the Independent Commission Against Corruption Ordinance (Chapter 204) was sufficient in law to support the Governor's announcement on 5th November about future action by the Independent Commission Against Corruption with respect to offences committed before 1st January 1977.

2

The Governor in fact relied on that provision of the Ordinance and in all public statements so far (including those made by the Foreign and Commonwealth Secretary in the House of Commons) that is the line that has been taken.

3

During the discussion on 22nd November Members were opposed to the introduction at that time of confirmatory legislation, despite the Attorney General's advice that that was the right course. They however accepted the need for legislation in due course, ex- pressing the hope that it could be combined with other amendments to the Ordinance. They also agreed that swift action might be necessary, if the validity of the Governor's action became a matter of public controversy.

4

There has been some low key public discussion of its validity, including some talk of putting the matter to the test, though it could not yet be reasonably described as having developed to the level of public controversy. However an unforeseen development has occurred, which argues strongly for legislative action forthwith.

5

The development has arisen in connection with the extra- dition proceedings for the return of Mr HON Kwing-shum (a retired Hong Kong police officer) from Canada. The Governor's action on 5th November is clearly a something which will be taken into account by both the Canadian Courts and, ultimately, the Canadian Minister of Justice, in deciding whether Mr Hon should be returned to Hong Kong. Thus, the validity issue may be raised in the Federal Court of Appeal in January, when Mr Hon's appeal is heard. If it is raised, counsel for the Hong Kong Government would, as a matter of duty to the court, have to disclose the Attorney General's doubts and to indicate what action is intended to be taken. Effectively, that means saying that confirmatory legislation will be introduced.

CONFIDENTIAL #2