TNAG-0985-FCO40-1204-Immigration-from-China-to-Hong-Kong-1980 — Page 87

CONFIDENTIAL

CN Mantell Esq DS 56

Ministry of Defence

Main Building

Whitehall

зы

HKK 341

London SW1

INDEX

سه

233-3988

17 NOV 1980

18.0/

Awisl

い

D/DSS/140/4/2

HAK 341/1

17 November 1980

ILLEGAL IMMIGRATION MARITIME RULES OF ENGAGEMENT

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187A)

1. I refer to your letter of 1 October. The Hong Kong Attorney- General has now given us advice on the papers you enclosed.

2. The use of force in countering illegal immigration is governed by Section 101A of the Criminal Procedure Ordinance. This states that 'in the prevention of crime or in effecting or assisting in the lawful arrest of offendors or suspected offendors or of persons unlawfully at large; it is permitted to use such force as is reasonable in the circumstances'

3. The definition of 'reasonable' force would, as you thought, be for the courts to decide, and would depend on the facts of each individual case. It is considered that warning shots across the bow would be held to be reasonable in the circumstances described in the draft rules.

4. However, a direct hit, deliberately intended to disable, would be likely to be regarded as unreasonable by the courts, except in exceptional circumstances. There are therefore legal dangers in firing to cripple an unarmed vessel which has refused to stop after warning shots. Much would depend on the circumstances which will clearly be difficult to foresee.

5.

The Attorney-General thinks it advisable to make provision that such disabling shots should not be fired, at least without reference to higher authorities ashore.

cc:

J Waterton Esq Defence Dept E 327

M A Searle

Hong Kong & General Department

CONFIDENTIAL

236