TNAG-0909-FCO40-1119-Legislation-for-immigration-into-Hong-Kong-1979 — Page 76

From N JS Abbot

CONFIDENTIAL

Defence Secretariat Division 5 MINISTRY OF DEFENCE

Main Building Whitehall London SW1A 2HB

Telephone 01-218 7725 (Direct Dialling)

01-218 9000

P J Williamson Esq

(Switchboard)

Hong Kong and General Department Foreign and Commonwealth Office Whitehall

London SW1

36

HKK 341

20.11

INDEX

по

PA

J28.11

Your reference

Our reference

Date

D/DS5/140/4/2

16 November 1979

Dear Mr Williamson,

AMENIMENT TO THE HONG KONG IMMIGRATION ORDINANCE

(32)

I delayed sending you our comments on the most recent Hong Kong enquiry in the hope of being able to attach a sketch map showing Hong Kong and Chinese claimed territorial waters the exact location and extent of which has an important bearing on some of the questions raised. But because the problems of drawing such a map are considerable and the Hydrographer's work on it is progressing rather slowly, it seems best not to wait for its completion before writing to you.

2.

Mr Chamberlain (FCO Legal Counsellor) commented on the Hong Kong letter in his minute of 21 September to Mr Wyatt of MAED (not copied to us until 19 October). His comments amount in sum to a fairly comprehensive rejection of the various possibilities canvassed by Hong Kong to legitimise the exercise of controls outside territorial waters, and I must say that this rather confirms our own critical views of the amend- ment to the Hong Kong Immigration Ordinance in general.

3. Mr Chamberlain considers the questions raised by Hong Kong largely academic, and the answers are necessarily in the same vein. Nevertheless, there are a few practical issues on which a Ministry of Defence view seems called for.

(i) Boarding of British ships on the high seas by RN warships (paragraph 2a). There is in principle, as Mr Chamberlain says, no problem about this (though one would have thought that its usefulness would be limited in the Hong Kong context). However, the Navy's instructions on the exercise of this right make it clear that HM ships have no power of discipline or command over British merchant vessels on the high seas, and consequently no right of enforcement if the master of a

vessel refuses to accept any advice offered to him. Difficulties of this sort are to be reported to the Ministry of Defence to enable the owners of the vessel to be consulted with a view to their issuing direct instructions to the master.

(ii) Vessels without nationality (paragraph 2b). It is clear from Mr Chamberlain's reply that the legal issues here may not always be

straightforward. It therefore seems highly likely that we would require clear and authoritative advice in any given instance before the Royal Navy could intervene. (Again the practical value of this suggestion is a little difficult to see, given that the end result of its successful application would be the escorting of an offending vessel into Hong Kong.)

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