TNAG-1089-FCO40-1339-Illegal-immigration-from-China-to-Hong-Kong-1981 — Page 4

In the course of examining the sanctions available in relation to the smuggling into Hong Kong of children, a possible weakness in the provision for summary removal under section 18 was detected. This stems from the possibility of the power of summary removal by an immigration officer being construed by the courts as applying only in respect of persons refused permission to land on such persons presenting themselves for examination, and not, for instance, where such persons have sneaked into Hong Kong and are subsequently apprehended. While the possibility of the courts adopting such a view is regarded as reasonably remote, it cannot be excluded. In view of the serious consequences that would result, it is considered desirable that the scope for such a construction should be excluded. The Bill accordingly provides in clause 2(a) for an immigration officer to examine a person not only on arrival or prior to departure(as permitted at present), but in addition, at any time if there is reasonable cause to susepet him of having landed unlawfully. Thus under existing section 11(1) such a person could be refused permission to land and upon being so refused, be summarily removed under section 18. Clause 5 of the Bill makes it clear that the power of summary removal in section 18 extends to all refusals of permission to land under section 11(1) (i. e. including that where a person enters Hong Kong clandestinely and is subsequently apprehended). Since such a person could be refused per- mission long after he had landed, clause 5 also amends section 18(2) to restrict the summary power of removal to 2 months from the time of landing. In cases where this time limit has elapsed recourse would have to be had to the removal order procedure.

Timing

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Since children are coming in daily, it is essential to establish and clarify the legal position as soon as possible. It is therefore proposed, subject to Members' advice, to present the Bill to the Legislative Council for enactment at one meeting on 9th December 1981. However if Members advise that the content of the Bill is such that it should follow the usual arrangements by which the Second Reading debate is adjourned for a fortnight then it would involve two meetings (i. e. 9 and 23 December 1981). Such a procedure would carry with it the risk that the publicity certain to arise over the Second Reading could spark off a fresh exodus from China, not only of children but also of adults, under the mistaken impression (possibly fostered by the syndicates) that some sort of amnesty with a deadline of 23rd December was being offered. It is therefore a nice balance which course should be adopted. From an operational point of view it would be preferable to take all stages of the Bill at one meeting.

CONFIDENTIAL