CONFIDENTIAL
FM FCO
CONFIDENTIAL
012417
MDHOAN 4534
HKC 241/3
1992
TOP
O DA
Ma
TO IMMEDIATE HONG KONG
TELNO 806
OF 15095OZ MAY 92
см
INFO PRIORITY PEKING, UKREP JLG HONG KONG
MIPT: BILL OF RIGHTS: REVIEW OF LEGISLATION: POLICE FORCE (AMENDMENT) BILL: DETAILED COMMENTS
1. OUR DEPARTMENTAL LEGAL ADVISER HAS BEEN GUIDED IN THE FOLLOWING COMMENTS BY THE JURISPRUDENCE OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS WHICH HAS IN ITS ARTICLE 5 A PROVISION SIMILAR TO ARTICLE 9 OF THE COVENANT.
2. NONE OF THE PROVISIONS OF THE AMENDMENT BILL APPEAR TO GIVE RISE TO ARBITRARY ARREST OR DETENTION, SINCE ARREST FOR DETENTION WOULD BE ON THE GROUNDS, AND IN ACCORDANCE WITH THE PROCEDURE, ESTABLISHED BY THE BILL ONCE IT BECOMES AN ORDINANCE.
3. THE NEW SECTION 54(I) AND (II) SHOULD NOT GIVE RISE TO PROBLEMS. HOWEVER, MUCH DEPENDS ON WHETHER THE PERIOD OF DETENTION IS INDEED REASONABLE. WE ASSUME THE SUSPECT WOULD BE BROUGHT BEFORE A COURT IF HE IS CHARGED. SECTION 54(I) WOULD BE LESS OPEN TO CHALLENGE IF THE PROVISION WERE FRAMED SO THAT A POLICE OFFICER COULD ONLY DETAIN A PERSON FOR A REASONABLE PERIOD DURING HIS ENQUIRY IN THE CASE THAT THE POLICE OFFICER HAS REASONABLE GROUNDS FOR CONSIDERING THAT THE PERSON IS ACTING SUSPICIOUSLY.
4. HOWEVER, WE ARE MORE CONCERNED ABOUT THE PROPOSED SECTION 50(7) UNDER WHICH A PERSON MAY BE TEMPORARILY DETAINED FOR THE DURATION OF A SEARCH FOR ITEMS WHICH MAY BE OF VALUE IN THE INVESTIGATION OF AN OFFENCE WHICH HAS BEEN OR IS ABOUT TO BE COMMITTED. WE UNDERSTAND PARAGRAPH 4 OF YOUR TELNO 1242 TO MEAN THAT IT IS NOT A CONDITION THAT THERE SHOULD BE REASONABLE GROUNDS FOR THINKING THAT THAT PERSON IS LIKELY TO HINDER THE SEARCH, AND INDEED HE MIGHT BE QUITE UNCONNECTED WITH THE OFFENCE. OUR CONCERN IS THAT A PERSON COULD BE DETAINED UNDER THIS PROVISION WHO HAS NOT COMMITTED AN OFFENCE, NOR IS THERE ANY REASONABLE SUSPICION THAT HE IS LIKELY TO DO SO. HE WOULD BE DETAINED SOLELY IN CONNECTION WITH A SEARCH FOR ITEMS WHICH MAY BE OF VALUE IN INVESTIGATING AN OFFENCE IN WHICH HE IS NOT NECESSARILY INVOLVED AND WITHOUT ANY REASONABLE GROUND EXISTING FOR SUSPECTING THAT HE WOULD HINDER THAT SEARCH. THIS SECTION, AS SO
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