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1952-53
PART
FILE NUMBER
FILE TITLE
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FILE NUMBER
185/0
10
Emergency Regulations
Hung Kung
HKP
488185/01
INDEX HEADINGS
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Emergency Regs HONG KONG LEGISLATION
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-
INWARD TELEGRAM
TO THE SECRETARY OF STATE FOR THE COLONIES
COPY FOR REGISTRATION
FROM HONG KONG (Sir A. Grantham)
Ama(2).
108
Ond No 5 of 22
Simplex
D. 7th January, 1952. R. 7th
11
曾 09.45 hrs.
JAN
XII
PRIORITY Secret No.18
Addressed to S. of S.
Emergency Regulations.
1952
III
Upon the trial of an indictment for possession of hand Grenades,
contrary to Section 116A of the Principal (Emergency) Regulations 1949,
the following questions were reserved for the opinion of the Full Court-
Crd. 8/1949 ate
copy enclosed?
flagged at (AOA) /14237/15/51.
(enchord.)
2.
(A)
Whether the Emergency Regulations Ordinance is ultra vires and
(B) Whether Regulation 116A of the Emergency
Principal Regulations was ultra vires the enabling Ordinance as it did
not expressly state that the Governor in Council was of opinion that
there was an emergency.
Although opinion here, which has been confirmed by your legal
advisers, is that the Ordinance is perfectly valid it is considered that
we must be prepared for an adverse decision by the Full Court. An
adverse decision on either point would, of course, affect the validity
of all Emergency Regulations and in such event it is proposed, subject
to your approval, to validate all such legislation by Special Ordinance.
If decision adverse on second point only, the Ordinance could presumably
deem that all regulations had contained a recital of emergency, but it
is possibly preferable to state that all regulations shall have the same
validity as if enacted by the Legislature as Ordinances. See for example
Section 3 of Ordinance 2 of 1946. This course would clearly be necessary
if there were adverse decision on first point.
3. The necessity of giving retrospective effect to the validity of
regulations is clear and is emphasised by the fact that one Chinese has
already been hanged for an offence against regulation 116A. Legal
advisers suggest, however, that if decision adverse and upheld on appeal
to Privy Council the particular indictment should not be proceeded with
and that this might be publicly stated. There are other indictments for
Robbery and possession of arme against the same accused which could be
proceeded with. Other pending proceedings for non capital charges would
be expressly validated.
14.
108 A
ENT
40
It is not considered possible to await Privy Council decision as hiatus
would completely upset the machinery of Government, but Government
would, of course, appeal to the Privy Council should decision of Full
Court be adverse on either point. Argument before Full Court takes place
on 16th January. Grateful for early telegraphic reply.
C. )
Mr. Hall 10/1
Mr. Hopkinson 10/1
Draft
TELEGRAM /*
* SAVINGRAM
• The word Priority may be ancored here, if necessary.
To
Repeated to:-
GOVERNOR,
HONG KONG.
File No.
DEF.89/51/01
106
Sent.
Simplan
1642 hou
hours.
Mr..
Side botham 10
Mr. Paskin.
101
Priority:
Sir
XXIX
Permt. U.S. of S. Parly. U.S. of S.
S. of S.
Gavenna
trong bóng Hong
(1)
(5) on 14237/15/49
SO
(6)
(7)
tt
n
n
RECEIVED
1 1 JAN 1952 In Tel. C.D.
Distribution -
Dekence geog.
(34
To be transmitted:--
PRIORITY
No.
In XXDEXX
KKOPECKUKTKARTENX
Joooeda
KOEKENMEX
XXXXXXX
Cupres
Simplex
Your telegram No. 18.
Emergency Regulations.
Mal...
XXGIZAKI
CORAMENTAX Secret
JIZZEDIK
Question (▲) whether the Emergency Regulations
Ordinance is ultra vires.
Although it is not explained on what grounds the vires of'
Ordinance is being challenged, on assumption that points
involved were similar to those raised in your despatch
No. 94 of 13th May, 1949, my legal advisers confirm
opinion expressed in my predecessor's telegram No. 738 of
1949 and Dale's letter of 16th July 1949 to Griffin that
Ordinance is intra vires.
2. Question (B). My Legal Advisers consider that as
regulations containing regulation 1164 purport to be made
in exercise of powers conferred by Ordinance, it must
surely be assumed, at least until the contrary is shown,
that Governor in Council was satisfied as to existence
the emergency. Liversidge v. Anderson 19427 A.C. 206
Green v. the Secretary of State for Home Affairs (19427 A.C. 284 and
Stuart v. Anderson and Morrison 19427
2 A.E.R.665 deal with executive and not Legislative acta
but may assist the Attorney General.
1
Further action--
W1, 28361/5376 god?7049 Wa & Co, sija
3. In event of Full Court allowing appeal on either
ground it is agreed that validating legislation by
Ordinance would be necessary.
If ground (b) stonesë
/form
form of legislation would father depend on whether
Court's decision was of general application or was
concerned only with case of Emergency Regulations
iky Jammer
Ordinance. If decision was general application it
would probably be desirable to enact a provision of
general application (possibly in Interpretation Ordinance)
dispensing with necessity for recitals in these cases.
4. It is agreed that validating legislation ought
not to deprive a successful appellant of fruits of his
victory.
5. If appeal to Full Court succeeds it would presumably
be desirable to enact validating legislation at once
because of likelihood of further cases arising. Once
invalidating legislation was enacted there would
presumably be no point in proceeding with appeal to
Privy Council.
♥....
SECER.
107
¡
OUTWARD TELEGRAM
FROM THE SECRETARY OF STATE FOR THE COLONIES
TO HONG KONG (Sir A. Grantham)
DEF.89/51/01
Simplex
Sent 11th January, 1952. 16.45 hrs.
105
PRIORITY
SECRET No. 41.
Your telegram No. 18.
Emergency Regulations.
Question (A) whether the Emergency Regulations Ordinance is ultra viree.
Although it is not explained on what grounds the vires of Ordinance is
being challenged, on assumption that points involved were similar to
those raised in your despatch No. 94 of 13th May, 1949, my legal
advisers confirm opinion expressed in my predecessor'a telegram No. 738
of 1949 and Dale's letter of 16th July 1949 to Griffin that Ordinance is
intra vires.
2. Question (B). My Legal Advisers consider that as regulations
containing regulation 116A purport to be made in exercise of powers
conferred by Ordinance, it must surely ba assumed, at least until the
contrary is shown, that Governor in Council was satisfied as to
existence of the emergency. Liversidge v. Anderson 19427 A.0. 206, Green
v. the Secretary of State for Home Affaire 19427 A.C. 284 and Stuart v.
Anderson and Morrison 19427 2 A.E.R. 665 deal with executive and not
Legislative acts but may assist the Attorney General.
3. In event of Full Court allowing appeal on either ground it is
agreed that validating legislation by Ordinance would be necessary. If
ground (b) succeeded, form of legis- lation would rather depend on
whether Court's decision was of general application or was concerned
only with case of Emergency Regulations Ordinance. If the former it
would probably be desirable to enact a provision of general applica-
tion (possibly in Interpretation Ordinance) dispensing with necessity
for recitale in theѳе савев.
4. It is agreed that validating legislation ought not to deprive a
successful appellant of fruits of his victory.
5. If appeal to Full Court succeeds it would presumably be desirable to
enact validating legislation at once because of likelihood of further
cases arising. Once invalidating legis- lation was enacted there would
presumably be no point in proceeding with appeal to Privy Council.
Colonial Secretariat file No. 23/5251/50
(16) 74237/5/n
Enclosure No. 1
SECRET
NO: 391
Sir,
Ausa (7).
GOVERNMENT HOUSE, HONG KONG
3.3 S2
59/5/01
875
I have the honour to refer to my Secret savingram No. 160 of the 20th
October, 1951, and also to my Secret telegram No. 18 of the 7th January,
1952, on the subject of the Emergency Regulations.
2.
יו.
3.
The Full Court has answered both questions as to ultra vires mentioned
in paragraph 1 of my Secret savingram in the negative. I forward
herewith two copies of the judgment and a summary of the arguments
addressed to the Court by the Law Officers.
5. The trial proceeded and the jury disagreed on the guilt of the
accused. My Legal Advisers considered that another jury would almost
inevitably also disagree and a nolle prosequí has been entered. The
accused was however convicted on another indict- ment for armed robbery
and sentenced to eleven years imprisonment.
4. Had the evidence been sufficiently conclusive to im- plicate the
accused with the arms in question the case would have been a
particularly bad one as the arms, which were in a secret recess in a
cupboard in accused's possession, consisted of four grenades and eight
automatic pistols with ammunition therefor, all in a service- able
condition. There is strong suspicion that these were the weapons used in
a series of bank robberies by a gang of which accused was the
ringleader.
5. I am aware of your reluctance expressed when the introduction of
regulation 116A was first considered to the provision of capital
punishment for mere possession of arms but I consider that, subject to
certain difficulties of definition, a distinction might well be drawn
between cases where the arma in fact found in a person's possession or
the joint possession of a number of persons constitute a small arsenal
and a serious source of public danger.
6. The necessity to reconsider the terms of regulations 116 and 1161 has
also been stressed by my Legal Advisers on another ground which may be
shortly stated as follows:-
The effect of sub-section (4) of section 2 of the Emergency Regulations
Ordinance is to render it impossible to prosecute under provisions of
law which are inconsistent with the provisions of Energency Regulations
as such provisions of law so far as they are inconsistent have by virtue
of the subsection no effect during the continuance in force of the
regulation. Regulation 116 is consistent with section 29 of the Arms and
Ammunition Ordinance and it is desired to use section 29 in the vast
majority of cases. Moreover it is not desired to commence prosecution
under regulation 116A for the mere possession of some of the articles
which the regulation now covers.
THE RIGHT HONOURABLE
OLIVER LYTTELTON, D.S.O., M.C., M.P.
SPERIOL CARE
1 9 MAY 1952 SECTIC
n
13 WAT 1952
1
C
88
But My an und
7.
I have accordingly caused the whole question of appropriate offences and
penalties to be re-considered in Execu- tive Council in the light of the
above considerations and of the experience gained since regulation 116A
has been in force.
8.
I have, with the full concurrence of Executive Council, arrived at the
following conclusions:-
.... Pers
and and an aman dining
or lay
not and
wy is !! A(1)?
Enclosure No. 2
120!
indie?
B.
If section 29 of the Arms and Ammunition Ordinance were emended by
Emergency Regulations so as to substitute a maximum penalty of life
imprisonment for the penalty of ten years therein prescribed and
regulation 116 were repealed there would be no inconsistency so far as
concerns mere possession of arms. As I have been advised that the
removal of this inconsistency is urgent- ly required, Emergency
Regulations to this effect have been enacted.
It is most desirable to re-phrase Regulation 116A so as - (1) to confine
inconsistency to the narrowest possible sphere and permit of less
serious charges being preferred and (2) so as to provide the death
penalty for caches of anns. I submit draft regulations for your
approval.
You will observe that the mere possession of a grenade will no longer
carry the death penalty and that if the instrument carried or the
circumstances do not in the case of carriage warrant the death penalty
the Attorney General can direct prosecution for possession under other
provisions of law. You will also observe that the offence of possession
of arms is defined in terms of a serious threat to the lives of members
of the community and is therefore distinct from any offence know to the
law. It will therefore always be possible for the Attorney General to
prefer a less serious charge.
9.
It is appreciated that criticism may be levelled at paragraph (5) of the
new regulation 116 on the ground that it is to some extent vague. It is
not possible however to define "caches" or "arsenals" in terms of mere
numbers or even character and it is submitted that the wording gives the
Courts and the public a suffi- ciently clear indication of what is
intended, and has the advantage of relating the offence to the concept
of public danger. Perhaps your Legal Advisers will be able to make some
constructive suggestions for improving the form.
10. On the question of policy at the opening of the Assizes the Acting
Attorney General while remarking on the decrease in crimes of violence
during the last six months added that a contribution to this decrease
had been made by regulation 116A. That is also the opinion of Executive
Council. The Chief Justice remarked that he would not tolerate crimes of
violence and would punish them with the full rigour of the law.
Paragraph (3) of the new suggested regulation 116 is aimed at armed
gangs and there is little doubt that the community as a whole welcomes
the taking of the most severe measures against such gangs.
11. One further point arises. I am advised that if the conclusions in
paragraph 6 are confirmed as to the effect on the ordinary law of
Emergency Regulations which are inconsistent with it, then a large
number of sentences imposed for possession of arms under the Arms and
Ammunition Ordinance since regulation 116 was brought into force, are
invalid. The point has not yet been taken in the Courts and in view of
the course now proposed it may never be taken but I consider that we
should be prepared for any eventuality. Kad prosecution been launched
under regulation 116 higher sentences would probably
/have been imposed
10
89
have been imposed but that regulation does not authorize flogging
whereas this punishment is authorized by virtue of section 3 (h) of the
Flogging Ordinance for crimes punishable under section 4 of the Arms and
Ammunition Ordinance. It has on occasions been imposed. Where it has
been imposed the accompanying term of imprisonment has of course been
less than in cases where it has not been imposed and I do not therefore
consider that any injustice has in fact been caused. Executive Council
considers and I agree that it would be undesirable at this juncture to
give this matter publicity unless it becomes necessary; and I therefore
seek your approval for validating legislation to be held in readiness,
but not to be enacted until either the point is made and upheld or the
situation has become more normal.
I have the honour to be,
Sir,
Your most obedient, humble servant,
ёлышать
GOVERNOR
:b
IN THE SUPREME COURT OF HONG KONG
CRIMINAL JURISDICTION
CASE NO. 6 OF DECEMBER, 1951 SESSIONS
90
IN THE MATTER of Section 81 of the Criminal
Procedure Ordinance, Cap. 221.
AND
IN THE MATTER of Rex v. To Lam Sin alias
Lam Chai alias To Tsat alias To Tann Lam.
Coram: Full Court
(Howe, C.J.,
Gould and Scholes, JJ.)
DECISION
To La Sin alias Lam Chai alias To Tsat alias To
Tsan Lam was indicted for possession of hand grenades contrary
to Regulation 116A(1) of the Emergency (Principal) Regulations,
1949, which is in the following terms :-
#116A(1) Any person who without lawful authority carries or has in his
possession any bomb, grenade, mine or other apparatus, machine or
implement used, or capable of being used, as bomb, grenade or mine,
shall be guilty of an offence against these regulations and shall on
conviction on indictment be punished with death."
The regulation is one of a number made by the Governor in Council
under and by virtue of Section 2 of the Emergency Regulations
Ordinance (Cap. 241). Section 2 is as follows :-
"2. (1) on any occasion which the Governor in Council may consider to be
an occasion of emergency or public danger he may make any regulations
whatsoever which he may consider desirable in the public interest.
(2) Without prejudice to the generality of the provisions of subsection
(1), such regulations may provide
for-
(a) censorship, and the control and suppression of publications,
writings, maps, plans, photographs, communications and means of
communication;
.
2
91
+
(b) arrest, detention, exclusion and deportation;
(0)
control of the harbours, ports and territorial waters of the Colony, and
the movements of vessels;
(d) transportation by land, air or water, and the
control of the transport of persons and things;
(e)
(r)
trading, exportation, importation, production and manufacture;
appropriation, control, forfeiture and disposition of property, and of
the use thereof;
(g) amending any enactment, suspending the operation of any enactment
and applying any enactment with or without modification;
(h)
(i)
authorizing the entry and search of premises;
empowering such authorities or persons as may be specified in the
regulations to make orders and rules and to make or issue notices,
licences, peraits, certificates or other documents for the purposes of
the regulations;
(j) charging, in respect of the grant or issue of
any licence, permit, certificate or other document for the purposes of
the regulations such fees as may be prescribed by the regulations;
(k) the taking of possession or control on behalf
of the Governor of any property or undertaking;
requiring persons to do work or render services;
(1)
(m)
payment of compensation and remuneration to persons affected by the
regulations and the determination of such compensation; and
(n) the apprehension trial and punishment of persons offending against
the regulations or against any law in force in the Colony,
and may contain such incidental and supplementary provisions as appear
to the Governor to be necessary or expedient for the purposes of the
regulations.
(3) Any regulations made under the provisions of this section shall
continue in force until repealed by order of the Governor in Council.
(4) A regulation or any order or rule made in pursuance of such a
regulation shall have effect notwithstanding anything inconsistent
therewith contained in any enactment; and any provision of an enactment
which may be inconsistent with any regulation or any such order or rule
shall, whether that provision shall or shall not have been amended,
suspended or modified in its operation under subsection (2), to the
extent, of such inconsistency have no effect so long as such regulation,
order or rule shall remain in force.
3
92
!
(5) Every document purporting to be an instrument made or issued by the
Governor or other authority or person in pursuance of this Ordinance or
of any regulation made hereunder and to be signed by or on behalf of the
Governor or such other authority or person, shall be received in
evidence, and shall, until the contrary is proved, be deemed to be an
instrument made or issued by the Governor or that authority or person."
Section 3 of the same Ordinance authorizes the imposition of penalties
including the death penalty and subsection 3 of that section provides
as follows
"(3) Notwithstanding the provisions of subsection (1) if any regulation
made under this Ordinance provides either -
(a) that a contravention of such regulation shall be
punished with death; or
(0)
that an offence, not punishable with death under the law in force
immediately prior to the making of such regulation, shall be punishable
with death, or uses words to a similar effect,
such provision shall be subject to the approval of Legislative Council
and if approved shall come into operation on such date as may be
specified by resolution of Legislative Council."
The Regulations as published under the number A277 in the llong Kong
Government Gazette of the 30th December, 1949, were under the following
heading :-
"Emergency Regulations Ordinance, 1922.
Regulations by the Governor in Council.
In exercise of the powers conferred by Section 2 of the Emergency
Regulations Ordinance, 1922, as amended by the Emergency Regulations
Amendment) Ordinance, 1949, and by the Emergency Regulations (Amendment)
(No. 2) Ordinance, 1949, the Governor in Council hereby makes the
following regulations :-".
The particular regulation under which the accused was indicted was
published in the Gazette of 13th October, 1950, under a heading in
the same terms.
Counsel for the accused having moved to quash the indictment
on the ground that the Court was without jurisdiction, the following
point of law was reserved for the consideration of the Full Court
under Section 81 of the Criminal Procedure Ordinance, Cap. 221 :-
"Whether or not the Emergency Regulation under which the indictment is
laid is ultra vires and whether or not in consequence the Court has
jurisdiction to try the indictment."
4
Before the Full Court, counsel for the accused made
the following submissions :-
1.
That the regulations were ultra vires the enabling Ordinance;
2.
That the enabling Ordinance itself was ultra vires the Legislative
Council.
93
!
The argument as it developed on the first point indicated
that in essence the submission was not so much that the regulations
were ultra vires the powers given by the Ordinance, as that they were
bad because there had been no proclamation of a state of emergency
or public danger and no recital that such a state existed in the
preamble to the regulations, As to the proclamation, the simple
answer to this question, in our opinion, is that although in many
similar enactments in England and the Colonies it is provided that
regulations may be made after a state of emergency or some similar
state has been proclaimed, the Emergency Regulations Ordinance makes
no such stipulation. It is to the Ordinance that one must look
to ascertain when the power arises. It does so when two requirements
are satisfied. Under Section 2 the Governor in Council must consider
the occasion to be one of emergency or public danger and, secondly,
he must consider the regulations to be made are desirable in
the public interest.
L
whether
This brings us to the second part of the argument
or not it is essential that the regulations should recite, that
the Governor in Council did so consider when the regulations were
made. The Court has not been without doubt on this point, but
after considering the authorities quoted, it is content to be guided
by the judgments in Rex v. Comptroller General of Patents Ex parte
Bayer Products Ltd., (1941) 2 K.B. 306, which seems to go closer
than any of the other authorities to the question here in issue.
The judgment of Clauson L.J. begins (at page 313) :-
"On July 24, 1940, His Majesty the King was pleased by and with the
advice of his Privy Council to make, by Order in Council, reg. 60E of
the Defence (General) Regulations under the Emergency Powers (Defense)
Act, 1939.
5-
94
Seat. 1, sub-s. 1, of that Act provides: 'His Majesty may by Order in
Council make such regulations as appear to him to be necessary or
expedient for securing the public safety, the defence of the realm, the
maintenance of public order and the efficient prosecution of any war in
which His Majesty may be engaged, and for maintaining supplies and
services essential to the life of the community. The Order in Council
does not contain an express recital that it appears to His Majesty to be
necessary or expedient for the purposes mentioned to make this
particular regulation, but, as a matter of construction of the order, I
an clear (and I do not think that anyone in the course of these
proceedings has thrown any doubt on the proposition) that it shows
plainly that it did appear to His Majesty to be necessary or expedient
to make this regulation."
And at page 314 :
"Accordingly, the validity of reg. 60E, or any other regulation made
under s. 1, sub-s. 1, of the Act, can be investigated only by inquiring
whether or not His Majesty considered it necessary or expedient, for the
purposes named, to make the regulation and this application for
prohibition can succeed only if it is within the power of this court to
investigate the action of His Majesty when he stated, as I conceive that
His Majesty did in making the Order in Council, that this regulation
appeared to him to be necessary or expedient for the named purpose. In
my view, this court has no jurisdiction to investigate the reasons or
the advice which moved His Majesty to reach the conclusion that it was
necessary or expedient to make the regulation."
In the judgment of Scott L. J. at page 312 is the following
sentence :-
"The Order in Council introducing reg. 60K of necessity records by
implication the fact that His Majesty in Council thought it either
necessary, or expedient, or both, to extend the powers of the
Comptroller under the Patents (Emergency) Act, 1939, s.3, in manner
stated in the regulation."
Goddard L.J. agreed with "all which has been said and the result
No comments yet.
Private notes are available after approval.