TNAG-1005-FCO40-1254-Capital-punishment-in-Hong-Kong-1981 — Page 89

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7. Hong Kong.

CONFIDENTIAL

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The Creech-Jones doctrine is only a statement

of practice; it does not deprive the Crown of its power to exercise

clemency if so advised by the Secretary of State. In 1973, a murder

case occurred in Hong Kong in which, there being no mitigating

circumstances, the Governor-in-Council decided to let the law take

its course (having previously been assured that Ministers would

support his decision). At this time, however, the House of Commons

were considering the question of capital punishment in Northern

Ireland, and the Secretary of State, Sir Alec Douglas -Home, felt

obliged to take steps to prevent an execution in a British

Dependent Territory while the debate was in progress, regardless of the

absence of mitigating factors. Accordingly he advised Her Majesty

to commute the Hong Kong death sentence. Such a step was quite

unprecedented.

Nevertheless this departure from the normal policy

of non-intervention was continued in Hong Kong and spelt out in a

statement by the Colonial Secretary in the Legislative Assembly

on 6 November 1975.

8. Since 1973, the Governor, ostensibly on the advice of his

Executive Council, has commuted every capital sentence that has come

before him. In most of these cases mitigating circumstances existed

that would have disposed the Council in favour of clemency, but

occasionally, in cases where they believe there are no mitigating

circumstances, Unofficial Members of the Executive Council have

abstained. The Unofficial Members never now vote in favour of

letting the law take its course since they realise that the Governor

is complying with UK Ministerial policy.

9. On 13 February 1980, the Secretary of State agreed that the

policy on capital punishment in the Dependent Territories should

remain unchanged. (My submission of 29 January 1980).

CONFIDENTIAL

/Argument