Enclosure No Z
HONG KONG
LEGAL REPORT
THE IMMIGRATION (AMENDMENT)(NO. 4) ORDINANCE 1981
(No. 75 of 1981)
There has recently been a very substantial increase in the number of illegal child immigrants being smuggled into Hong Kong. This led to examination of the sanctions in the Immigration Ordinance against such illegal entry and related offences, and revealed a serious deficiency. This arose out of the presumption of the incapacity of children to commit a crime in conjunction with the application of most of the sanctions concerned by reference to the commission of the offence of illegal entry under section 38(1) of the principal Ordinance.
2. The principal object of this Ordinance is to remedy that deficiency, and this is effected by replacing relevant references to offences under section 38(1) or 41 with references to landing or remaining in Hong Kong without permission, or contravening a condition of stay, or by introducing such references (sections 2(b), 3, 4, 6, 8, 9 & 10).
3. The examination of sanctions referred to revealed the possibility of a further difficulty. It was thought possible that the courts might construe the power of removal under section 18 of the principal Ordinance as being restricted to illegal immigrants who were apprehended on the border or who presented themselves for examination i.e. as not applying to those who succeeded in evading border checks. To prevent that possibility section 3(a) of the measure appropriately extends the power of immigration officers to examine persons and section 6(a) makes it clear that the power of removal may be exercised pursuant to any examination under the extended power of examination. Since this could result in the power of removal under section 18 being exercised long after entry, section 6(b) restricts the exercise of such power to the 2 months following entry.
4. Before the Governor assented to the Bill in the name and on behalf of Her Majesty, the Attorney General advised that he could properly do so.
18 December 1981.
ATTORNEY GENERAL'S CHAMBERS,
HONG KONG.
Law Draftsman.
Page 210Page 211
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