TNAG-0984-FCO40-1203-Immigration-from-China-to-Hong-Kong-1980 — Page 249

CONFIDENTIAL

RA

HICK 341

871

FROM: C N MANTELL

DEFENCE SECRETARIAT DIVISION 5b MINISTRY OF DEFENCE

Main Building Whitehall London SW1A 2HB

Telephone 01-218-7725 (Direct Dialling)

01-218 9000

(Switchboard)

RECEIVED IN REGISTRY NO. 51

09 OCT 1980

DESK OFFICER

INDEX

PA

REGISTRY Action Takan

A

Aw the

M Searle Esq

Hong Kong and General Department Foreign and Commonwealth Office

Whitehall

London

SW1

Your reference

Our reference

D/DS5/140/4/2

Date

October 1980

Dear

Searle,

see

230

J

HONG KONG OPERATIONS TO COUNTER ILLEGAL IMMIGRATION MARITIME RULES OF ENGAGEMENT

1.

We have been asked to comment on the attached papers. As you will see, Captain-in-Charge Hong Kong is keen for advice, particularly on whether items 4 and 6 of the draft "Rules of Engagement" propose action that would be, or would need to be, justified under the terms of the Hong Kong Immigration Ordinance. This question seems to me to be one for the legal advisers to the Hong Kong Government in that it concerns actions to be taken mainly within Hong Kong territorial waters and under Hong Kong, rather than international, law.

2. My own view, for what it is worth, is that this is not the sort of matter that would be laid down in law. Is it not generally the case that a statute would allow the use of "reasonable force" or something similar and leave the estimation of what constitutes "reasonable force", before the event, to the enforcement authorities and, after the event, to the courts?

However, our advice to the Royal Navy, as set out in the Guide to Maritime International Law to which Captain-in-Charge refers, is as follows:-

3.

"USE OF FORCE AGAINST VESSELS COMMITTING OFFENCES IN UK TERRITORIAL AND FISHERY

LIMITS

0808. General. This section deals with the use of force within those sea areas which the state to which the naval ship belongs claims to be under its own jurisdiction. In practical terms, this section deals with those cases where an unarmed vessel of another country has offended or is alleged to have offended against the law of the coastal State. The commonest case is that of another country's vessel which has been engaged in illegal fishing. Detailed instructions have been issued to HM Ships employed on fishery protection, and it is unnecessary to set them out again in full here.

0809. Action to be Taken. Exceptionally, HM Ships not employed on fishery protection may be required to deal with some type of offender, eg a merchant vessel of another country attempting to escape after having been arrested by the Admiralty Marshal. In such a case, every endeavour must be made by the use of signals, the siren, the loud hailer or a boarding party to induce the offender to stop.

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CONFIDENTIAL