TNAG-2557-FCO40-3732-Hong-Kong-Bill-of-Rights-Immigration-(Amendment)-Bill-1992-1992 — Page 42

CODE 18-77

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as amended combined with section 171(4) as amended is still that two, albeit weaker, presumptions could be applied cumulatively in relation to the same offence i.e, Where a person is charged with employing an illegal immigrant it could be presumed both that the person found at his place of employment was his employee and that that person was not lawfully employable. The presumption in section 17N seems harder to justify, particularly as it does not even require the person concerned to have been found working on the defendant's premises, but merely to have been there. I wonder whether HkG would consider a further amendment to restrict the presumption to cases where the alleged illegal immigrant is found actually working?

8. A drafting point in relation to section 7 on Presumptions: the words in the final line "in the absence of evidence to the contrary" would seem to be redundant, as they duplicate the words in the previous line "unless evidence is adduced etc "

9. You asked in your minute about the difference between "evidence" and "proof". If a defendant has to "prove" something to the contrary s/he must adduce sufficient evidence to prove it to be untrue on the balance of probabilities; but to "adduce evidence" it is only necessary to offer one admissible piece of evidence, even if its probative value is slight. Once even the slightest doubt is raised, the onus is back on the prosecution to prove its case in the normal way. Adducing evidence to cast doubt on a proposition is therefore a much lower hurdle for defendants than being required to prove it untrue.

10. Para 8(e)

I agree that detention of deportees for enquiries to be made into the activities of other persons is "arbitrary", and therefore contrary to Article 5(1) BOR, and should be deleted. However, the power retained to detain deportees for enquiries to be made into their own activities is still very wide, It permits indefinite executive detention in that the Secretary for Security may issue warrants for periods of seven days at a time. There is no time limit. and no provision for appeals of any kind This would appear to be inconsistent both with Article 5(1) and with 5(4), which entitled detainees to take proceedings before a court to challenge the lawfulness of their detention.

11. Re your query on para 9; I think that the word "consequential" was intended. It means that these amendments are technical ones which need to be made as a consequence of the changes of substance already described.

12 I agree with your concern that HK appear to have over-confident hopes of being able to defend some of the sections not amended. My comments above concern areas where the amendments do not seem to go far enough in meeting the