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8. The position in Hong Kong is anomalous, in that, since 1973 (when the Secretary of State advised the Crown in the Tsoi case
to exercise the restfuel amenajative in the light of Dowlierentu factors quite unconnected with Hong Kong or the case itself), the Governor, under pressure from successive Secretaries of State, has in preotice followed & policy of commuting 11 capit 1 sentences
even when no mitigating factors exist. Thus the law has in effect
been suspended by executive action against the wishes of the Executive Council (which is not opposed to commutation where relevant grounds exist). Public indignation has to some extent been allayed by a statement in the Legislative Council that murderers whose sentences have been commuted will be imprisoned
for life, but this will present difficulties if they cannot be
released where appropriate after serving a shorter term.
9. It is relevant to note here that although capital punishment for murder has been abolished in the United Kingdom (and in Guernsey), it is retained for murder in Jersey and the Isle of Man. Responsibility for tendering advice on the exercise of the prerogative in capital cases rests entirely with the Home Secretary since the Lieutenant Governors of the Islands, unlike the Governors
of the DOTS, have no delegated authority in such cases. The Home Secretary offers advice according to the circumstances of each
individual case. In the Isle of Man only one sentence of death has been passed since 1872 and that (in 1973) was commuted, while
for Jersey the last execution for murder took place in 1959, since
when six death sentences have been commuted.
Removal of the Governor's Delegated Authority
10. If it were desired to remove the delegated exercise of the prerogative of mercy from Governors in capital cases so that the position of the Foreign Secretary in relation to the DOT was the sene as the Home Secretary's in relation to the Islands, it would be necessary to amend the constitution of each DOT concerned. The amendment could be effected by Order in Council, but it would be most unusual (and, in the case of Bermuda, unconstitutional) to
effect such an amendment without consultation with the local
/governments,
CONFIDENTIAL
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