TNAG-2557-FCO40-3732-Hong-Kong-Bill-of-Rights-Immigration-(Amendment)-Bill-1992-1992 — Page 21

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CONFIDENTIAL

FM FCO

TO IMMEDIATE HONG KONG

TELNO 592

OF 31114OZ MARCH 92

INFO PRIORITY PEKING, UKREP JLG HONG KONG

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YOUR TELNOS 886 AND 924: BILL OF RIGHTS: REVIEW OF LEGISLATION:

IMMIGRATION ORDINANCE: DETAILED POINTS

1. PARAGRAPH 6 OF THE DRAFT MEMORANDUM STATES THAT IT IS CONSIDERED NECESSARY TO RETAIN UNAMENDED SECTION 32(4) EVEN THOUGH ITS COMPATIBILITY WITH THE BOR MAY BE QUESTIONED. WE AGREE THAT ITS COMPATIBILITY MAY WELL BE QUESTIONED. SECTION 32(4) PROVIDES FOR THE DETENTION OF A PERSON WHO IS TO BE REMOVED OR DEPORTED FOR UP TO 28 DAYS ON THE AUTHORITY OF THE SECRETARY FOR SECURITY (AND MUCH LONGER BY ORDER OF A COURT) FOR THE PURPOSE OF GIVING EVIDENCE AT THE TRIAL OF ANY OFFENCE OR FACILITATING ENQUIRIES INTO ANY OFFENCE OR SUSPECTED OFFENCE. THAT MEANS 28 DAYS EXECUTIVE DETENTION NOT ONLY WITHOUT CHARGE, BUT ALSO WHERE THE DETAINEE MAY NOT EVEN HIM/HERSELF BE SUSPECTED OF HAVING COMMITTED ANY OFFENCE. THE USE OF SUCH A POWER, AND VERY PROBABLY THE POWER ITSELF, WOULD BE HARD TO RECONCILE WITH ARTICLE 5 OF THE BOR WHICH PROHIBITS ARBITRARY DETENTION. GIVEN THAT THE STATUTORY POWER IN HONG KONG TO DETAIN WITHOUT CHARGE A PERSON WHO IS SUSPECTED OF HAVING COMMITTED MURDER PROBABLY LASTS A MATTER OF HOURS (OR A FEW DAYS AT MOST), IT IS HARD TO SEE HOW SUCH AN ARBITRARY POWER IN RELATION TO ILLEGAL IMMIGRANTS COULD BE DEFENDED ON THE GROUNDS OF

OPERATIONAL NECESSITY.

2. SECTION 32(4) WOULD LOOK MUCH MORE ACCEPTABLE IF THE POWER

OF EXECUTIVE DETENTION WERE SUBSTANTIALLY REDUCED TO A PERIOD COMPARABLE TO THAT PERMITTED TO THE POLICE IN RELATION TO SUSPECTS, WITH LONGER PERIODS OF DETENTION REQUIRING THE AUTHORITY OF A COURT.

3. THE FOOTNOTE TO PARAGRAPH 6 DOES NOT ADEQUATELY CONVEY THE EXTENT OF THE POWERS IN SECTION 32(4).

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WE ARE PUZZLED BY PARAGRAPH 7(B) OF THE DRAFT MEMORANDUM CONCERNING SECTION 13(D) OF THE ORDINANCE. WE UNDERSTAND THAT THIS IS THE SECTION ON VIETNAMESE BOAT PEOPLE WHICH WAS AMENDED AFTER SUBSTANTIAL DEBATE BETWEEN HKG AND OURSELVES ONLY LAST

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