CONFIDENTIAL
XCC(92)63
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(e) sections 29(2)(b) and 31(1)(b) (detention for enquiry as to deportation): these provisions allow us to detain deportees for enquiries into both their own and other people's activities. Detaining them for this purpose is probably "arbitrary" in terms of Article 5(1) of the BOR, insofar as detention relates to someone else's activities. We propose amending them so that people may only be detained for enquiries into their own activities; and
(f)
sections 37K(1) and (2) (standards of proof and the presumption that a person is an unauthorized entrant, or the owner of a vessel carrying an unauthorized entrant) : in their existing form, these sections make presumptions which are inconsistent with the presumption of innocence guaranteed in Article 11(1) of the BOR. To remove this inconsistency, we have proposed amendments which will enable defendants to rebut the presumptions by adducing evidence to the contrary.
Other changes in the Bill are consequential.
Implications for the control of illegal immigration and related crimes
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Inevitably, diluting any of the powers in the Ordinance will make it harder to obtain successful prosecutions. That will make life a little easier for illegal immigrants and for those who profit from bringing them into Hong Kong and keeping them here. Even with the presumptions in sections 171 and N, the courts have been relatively lenient with persons accused of employing illegal immigrants. At a time when major construction projects (such as the new airport) are in the offing, weakening these provisions might encourage snakeheads and illegal workers alike.
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But because these sections are not protected by the exceptions and savings provisions, they are, by their nature, prime targets for appeals under the BOR. It is likely that such appeals would succeed, possibly with significant consequences for Government. Therefore, we see no alternative but to propose changes which are framed so as to concede only the minimum necessary to align the provisions with the BOR. If implemented, these changes will make it harder to tackle illegal immigration and crimes related to it. But effective control will still be possible.
Executive Council
No comments yet.
Private notes are available after approval.