difficult than at present to apprehend.
Mr. Chinn said that his experience of the use of the acrth penalty in
such cases in Palestine was that it was completely ineffective. It was
casy for weapons to be piented in order to get rid of oonants; real
terrorists co ld not be frightened off by this or any other n lty cad,
in Palestine, its introduction had caused repric-ls by the terrorists.
Mr. Gidden thought that the death Dualty bad not been effective in
Maloya,
The Governor said that the situation in Hong Kong differed from that in
Malays und Palestine in that bonb incidents in Hong Kong were not the
work of organised rrorists but were tho work of poople who hoped to
ingratiate themselves with the Communists by throwing bombs. He thought
that such people would certainly be deterred by the death penalty
although he ogre.d tut professional gun-men (of which there were also
meay in Hong Kong) would not be deterred. The Governor then pointed out
that it was not the intention to bring the kogulations into forco
immediately but to enact cad publish thom (this would act as a warning)
and to keep them in r.surve for bringing into force if and when necess.
Iy; hu clso emphasised that no prosecutions could be instituted without
the ttorney General's conscnt.
Flogging.
Mr. Paskin said that apart from instituting whipping es a punishment for
the possession of arms it was also proposed that the Supreme Court
(which had power to
rescribe flogging with the "cat") should be asked to prescribe this
punishment in scrious cases of poscuɛrion of arms if the incidence of
such cases continued to increase.
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It was proposed:-
(1)
(11)
that the use of the cat by the Supreme Court shall
be revived and given a trial (probably for about a year)
if this proved effective in reducing the incidence
of cases of arms carrying the power of awarding corporal punishment by
"cat" or cane under
Emergency Regulations would be given to Kagistrates.
Mr. Chinn said that this proposal of the Governor's raised a very
difficult matter. A Circular dospotch was at present being prepared for
signature by the Scertory of State in which the completo abolition of
corporal punishment was recommended. It would be sugested to the
Secretary of State that he might say that he roolised that this would
not be possible immediately in all cases but that whore it could not be
done immediately only the Supreme Court should have power to order
corporal punishment. Mr.Chinn went on to say that he folt very strongly
that flogging was wrong in principlo quite apart from the fact that he
also thought it was ineffective; he further felt that the Treatment of
offenders Sub- Committee would react violently if thoy word informed
that flog ing had been re-introduced in Hong Kong and he referred to one
member of this Sub-Committee who had considerable experience of
Emergency situations and was nevertheless completely against flogging.
-
thought
In discussion the point was made that Hong K ng was not proposing to go
as far as Malaya in this matter where the death punalty could be awarded
for the possussion of any arms. In this connection Mr.Chinn seid tant
public fooling against flogging was likely to bo suronger than against
the death p nalty ho th ught ing to the fact that th ro was something
demeaning to the humen personality about flogging. A further point made
by Mr. Chinn in discussion was that in his viow crimes of violence could
not be stamped out by "1g lisod violence" hor did he think that crime of
any sort could be stamped cut by purely repressive mocsuros; all the
evidence of the lost fow years printed t the ineffectiveness of flogging
as a form of punishment.
The Governor said that despite all the arguments against his proposals
he still wished to press strongly for the introduction of both flogging
and the death penalty in connection with arms offencus. Ho emphasised
that the situation in Hong Kong was quite abnormal, that the Colony was
flooded with erms end more wero coming in, there were many professional
gun-men in the Colony who lived by their wits and that in his view the
ordinary citizen should be protected from trrorisati n by such gangst
rs, Hong Kong thu ht that flogging would be effective and they wanted to
try it out; if it was not effective after say a year's trial they would
not ask for its continued use.
It was agreed that this matter would have to bo ut to higher authority
for settlemant.
/Death
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Death Penalty for other offences.
Mr. Hall said that an amendment to the Principal Emergency Ordinance
making it clear
that the death penalty could be imposed had
beon received from the Governor and that the Colonial Offico had asked
for detailed information on the offences for which the death penalty was
to be umployed. The reply which had now been received was
that the object of the amendment was to enable Rogulations to be modo in
a state of real Emergency which would provide the death penalty for all
offences for which under normal circumstances life
imprisonment could be imposed. As for as bo know it was not the
intention that the Regulations should be mode at prosent but rather that
they should be kept in draft for uso in a real emergency. The
outstanding actin was to signify non-disallowance of the Ordinance
amending the
incipal Ordinance.
Aftor discussion it was AGREED that information should be sought as to
whether in fact the Regulations wore to be kept in draft and also that
it
should be put to Hong Kong that the imposition of tho death penalty by
reference to other legislation was objectionable and that specific
offences for which it was to be imposed should be detailedin the
Regulations.
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NOTES OF A MEETING IN THE SECRETARY OF STATE'S
ROOM ON 4th JUN, 1950.
IC
Present:
Secretary of State
Parliamentary Under-secretary of State.
Sir A. Grantham
Sir Charles Jeffries
Mr. Paskin
Mr. Sidebotham
kir. Chinn
Mr. Hall
EMERGENCY LEGISLATION IN HONG KONG,
The Secretary of State enquired whether it was necessary to
declare a state of emergency in Hong Kong before these regulations came
into operation. Kr. Faskin replied that the Hong Kong Emergency
Ordinance was different from that in Kalaya and Singapore and in the
United Kingdom, and that under it it was not necessary to declare a
state of emergency.
Sir C. Jeffries added that to declare a state of
emergency might be regarded as provocative to China, and Kr. Paskin said
that it would also possibly create unnecessary alarm and despondency in
Hong Kong itself. The Hong Kong Emergency Regulations were so framed
that it was not necessary to bring all the regulations into force at
the same time, and regulations concerning a particular form of emergency
only could be brought into operation as required. For example, when
the grenade incidents occurred at the end of April only those
regulations
affecting the carrying of arms and offensive weapons were brought into
operation. The Secretary of State said that before emergency regulations
were brought into operation he considered that adequate publicity should
be given and that all available means to achieve this end should be
used,
e.g. publication in the press, posters and possibly the radio.
Sir A. Grantham replied that they would certainly do this as the more
widely they were published the more likely they were to be a deterrent.
The Secretary of State enquired whether the definition of
"apparatus, machine or implement used or capable of being used" was
one which would be understood by the average person.
Sir A. Grantham
/thought
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2
-
Al
thought that it would be understood and had been phrased to cover such
things as home-made bombs. Prosecution for an offence under the
regulation could not be instituted except with the consent of the
Attorney-General, and this would enable the Attorney-General to decide
whether a home-made bomb was sufficiently lethal for a prosecution to be
made under this emergency regulation or under some other existing law
with
a less severe penalty. Mr. Cook suggested it would be inadvisable to
try to define the apparatus etc., too closely as this might leave loop-
holes in the definition.
The Secretary of State stressed that it was important that it should
be obvious to everyone that the regulations were emergency regulations
and,
therefore, only to be used in an emergency. The emergency should have a
beginning and an end, and when the emergency no longer existed the
regulations should not remain in force and thereby become a part of the
"normal law". Mr. Faskin pointed out that in the peculiar circumstances
in Hong Kong it was possible to have a "particular" class of emergency,
and
when that emergency came to an end, the Gazette notice which had brought
into operation the particular set of regulations concerned could be
cancelled
and the regulations would then cease to be operative. It would also be
possible, when bringing a particular set of regulations into operation,
to
specify a time limit and if, at the end of that time limit, the
emergency
still existed, the regulations could be extended by a further
notification
in the Gazette.
The Secretary of State suggested that it might be advisable for the
colonies in the Far East to follow the same pattern of legislation.
&
Mr. Paskin replied that Lalaya had introduced mandatory death penalty
for
the carrying of arms about two years ago, and that Singapore had
recently
introduced similar legislation. The Hong Kong proposals did not go as
far as this. Sir A. Grantham said that it was proposed that the penalty
for carrying a bomb or grenade should be death, the use of arms (whether
injury was caused or not) should also carry the death penalty, but in
both
cases the consent of the Attorney-General was necessary before a
prosecution could be undertaken. This was an added safeguard.
Attorney-General would examine the circumstances of each case and advise
The
/whether
1
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(
whether the prosecution should be under the emergency regulations or
under the existing law (which would carry a lesser penalty).
The
Executive Council had considered that it was not fair to leave it to
the judges to decide whether to impose death or some lesser penalty;
this was a decision which should lie with the executive and not with
the judiciary. The Secretary of State referred to the danger of arms
being planted on an innocen: person and asked whether the accused could
be represented and his case argued before the Attorney General.
Sir A. Grantham replied that the Attorney-General could make whatever
enquiries he liked, and it was to safeguard against such contingencies
that the Attorney-General's consent was required. If there were any
extenuating circumstances he would not consent to the prosecution.
addition, the court would also go carefully into the case and consider
whether there were any extenuating circumstances. Even if the death
In
penalty was imposed it was subject to confirmation by the Executive
Council. Mr. Cook enquired what would happen if the accused could not
afford to be represented. Sir A. Grantham replied that in that case
the court can assign counsel for the defence. Mr. Paskin pointed out
that these proposals differed in two main respects from those in
existence in Singapore and Malaya. The Singapore/alaya regulations
did not require the prior consent of the Attorney-General before a
prosecution could be made, and in Hong Kong the death penalty was
prescribed to a more limited extent (i.e. the possession of bombs and
grenades, whereas in Malaya and Singapore the possession of any firearm
made the person subject to the mandatory death penalty),
The Secretary of State agreed that the proposed regulation 116 (a)
could be made provided it was clear that his prior approval must be
obtained before the regulation was actually brought into operation,
and that when it was brought into operation it should only be operative
for a specified time.
FLOGGING,
The Secretary of State said that the established view was that
flogging is not a deterrent. It is worse than imprisonment and by
brutalising the person concerned makes an enemy of society for life.
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In addition, it brutalises the person, who has to carry out the logging.
We had promised to bring it to an end in colonial territories. While,
therefore, we did not wish to keep from Hong Kong any steps which were
essential, it appeared inconsistent to take steps to reimpose flogging
in
Hong Kong at a time when we were asking all colonial territories to
bring
it to an end. Mr. Paskin said that flogging was already a part of the
law of Hong Kong, but it had fallen into disuse. The Governor's
proposals
were that in view of the outbreak of lawlessness and bomb outrages, and
the big increase in the carrying of arms in the Colony, flogging should
be
reintroduced for an experimental period. The Secretary of State
commented
that it would be impossible to decide whether flogging would have any
deterrent effect in such cases or not. Sir A. Grantham said that he
thought that to the square mile, Hong Kong had a higher proportion of
gangsters than anywhere else. Many of these were professional thugs,
sent out by the Nationalists to operate against China and told to fend
for
themselves. Not being very successful in south China they had come to
Hong Kong, and unless severe punishment was awarded to them they would
intimidate the citizens of Hong Kong. The problem would be discussed
with the judges, welfare officers, Attorney-General and others, and if,
after a year it was found that the reintroduction of flogging had not
been a deterrent, he would not press for its continued use.
The Secretary of State said that during his visit to lalaya he was
informed that the only deterrent against terrorism was deportation.
Sir Charles Jeffries confirmed this and said that, in fact, the only
deterrent was to catch the criminals. The Secretary of State thought
that we should adopt a similar policy in all Far East territories.
Flogging was not being used under the emergency regulations in Kalaya
and
Singapore and what made the Hong Kong proposals worse was that Hong hong
was not under such pressure as Malaya. The offenders in all the
territories would presumably be Chinese and he did not think the Chinese
in Hong Kong differed much from those in Malaya and Singapore.
pointed out that the proposals in Hong Kong did not go as far as those
in
Malaya and Singapore where the death penalty was mandatory for these
offences. Mr. Sidebotham said that if the Governor withdrew the flogging
proposal would there be the same objection to lower courts imposing
Mr. Paskin
/hipping
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5
whipping under the emergency regulations. He realised that r, Chinn
had strong views on this, but the sentences would only be imposed in
exceptional times. Kr. Chinn said that in the circular despatch which
was under preparation, it was proposed that where it was not possible to
abolish corporal punishment, the power to award such sentences should be
restricted to the High Court. To extend the power to award this
punishment to magistrates would be inconsistent with the terms of the
despatch. Mr. Cook thought that as the punishment was to be introduced
for specific offences, and only to be used in an emergency, there was no
conflict. Sir A. Grantham said that he was only asking for approval in
principle and that if this was given, firm proposals would be submitted
in due course. He did not think that in these cases the regulations
should be published in advance, but they should be enacted and brought
into operation when the situation demanded their use.
The Secretary of State would not agree to the reintroduction of
flogging, but he thought that we could agree to the extension of
whipping
on the lines proposed.
WHIPPING OF JUVENILE OFFENDERS.
Sir Charles Jeffries said that this brought us to the case of
Sir A. Grantham said
corporal punishment for juvenile delinquents.
that this problem had been discussed in great detail with the
Commissioner
of Folice and social welfare officers, and he had, in fact, written to
lir. Cresch-Jones saying that they would be glad to receive alternative
suggestions. Mr. Chinn said that the Governor's views had been
considered carefully by the Treatment of Offenders Sub-Committee who
had made the negative suggestion that corporal punishment should not be
awarded for an experimental period of six months. The Secretary of State
was informed that in the majority of cases, the punishment had been
hawking
awarded for cases of street walking, and he said that he had understood
that street
hauling
was regarded as the usual Chinese way of life.
After further discussion it was decided that a despatch should be sent
to the Governor suggesting that for an experimental period of six months
corporal punishment should not be awarded in such cases.
Colonial Office.
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14237/15/50
Saving.
Se Secretary of State for the Colonies.
To the Officer Administering the Government of...
HONG KONG
Date....
25 July, 1950
--- IILI
No.
126 Saving. SECRET.
Your Secret savingram No. 56 of 1st June as amended by your telegram
No. 652 of 10th June,
1. Regulation 116A
I am prepared to agree that the Emergency (Principal) Regulations
may be amended as proposed on the understanding that my prior approval
must be obtained before the new Regulation 116A is actually brought into
operation and that when it is brought into operation it should only be
operative for a specified and limited time to cover the particular state
of emergenoy then existing. (The operation of the Regulation can of
course be extended for a further specified period if the emergency still
exists when the Regulation is due to lapse).
2. Corporal Punishment
1
As you are aware, since the passing of the Criminal Justice Act,
1948, corporal punishment as a sentence of the Courts is no longer
permissible in the United Kingdom and it is no longer permissible for
any man or boy to be sentenced to corporal punishment except in rare
cases of prison offences. The United Nations have passed resolutions
condemning the use of corporal punishment in Trust Territories and
urging its immediate abolition. In fact the British Commonealth is one
of the few remaining groups in which use is made of a system of
punishment which has been discarded by the majority of the nations of
the worla. I am about to address all Colonial Territories on this
subject and will be suggesting that where
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it is not possible to abolish corporal punishment altogether, the
power to award it should be restricted to the High Court so as to ensure
that it can only be used in the most serious types of offence and to
reduce the number of occasions on which it is used and thereby make it
easier to contemplate · its eventual abolition.
3. The proposal, therefore, that application might be made to the
Supreme Court to prescribe the "cat" on conviction for possession of
arms and that, if after an experimental period this proves a deterrent,
powers to impose corporal punishment under Emergency Regulations should
be given to Magistrates, is inconsistent with the policy I have outlined
above, and in these circumstances I feel unable to agree that the "oat"
may be prescribed as a punishment, even as an experimental
MOABUTO,
L
I have, however, discussed this problem in detail with Sir A.
Grantham and I am prepared to agree that if the situation should
deteriorate to such an extent that expedienay may be held to outweigh
principle, then extraordinary powers which I would not otherwise be
prepared to concede may have to be considered, and magistrates be
empowered to award corporal punishment by use of the cane under the
Emergency Regulations.
This appears to me to be a case in which the regulations
concerned should not be published in advance but should be held in
reserve to be made and brought into operation when the situation
requires such action, and then only after prior consultation with me,
/5. I would
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Saving.
Secretary of State for the Colonies.
To the Officer Administering the Government of...
Date.......
No....
Saving.
5.
I would wish to see in draft any regulations giving effect to these
proposed measures, unless an emergency should arise which would make
this impossible.
L
SECER
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Draft 'B
+
TELEGRAM/
*
2d 16
• SAVINGRAM
File No.
11
14237/10/57
To:-
• The word Priority may be entered here, if necessary.
Sent.
O.A.G.
EON TONG
C. D. 22 JUL
Repeated to:-
அ.
Mr. Hall 7/7
Mr. Chian 87
Mr. Dale
47
Sex minute.
8.7
Mr. Sidebothan 1577.
Priority-
Jim Park 10
Si c. Jeffijas Permt. D.SU s.
XParly. U.S. of S. 21
1017 1917
Nil.
Reply urgently required.
Important.
XS.
S. of S.
21/7
at mere
Immediate. Most immediate.
ст
(5)
(6)
hours.
.194..
C. (13)
To be transmitted-
IIN 1050
No. 126
Restricted. Confitentini." Secret,
Top beers! and Persona).
(The operation of the Regulation can of course be extended fra further
specified period if the emergency exists whim whe
snill
Repulation is due to lapse).
Distribution
Further action :-
11 13558881 50m 949. Wa & Co. stİB
Your Secret savingrem No. 56
of lat June
of 10th June.
as amended by your telegram No. 652 / Regulation 116A.
the
I am prepared to agree that Emergency (Principel) Regulations may be
amended as proposed on the understanding that my prior approval must be
obtained before the new Regulation 116A is actually brought into
operation and that when it is brought into operation it should only be
operative for a specified and limited time, to cover the particular
state of emergency then existing. 2 Corporal Punishment,
As you are aware, since the passing of the Criminal Justice Act, 1948,
corporal punishment as a sentence of the Courts is no longer permissible
in the United Kingdom and it is no longer permis sible for any man or
boy to be sentenced to corporal punishment except in rare cases of
prison offences. The United Nations have pessed resolutions condemning
the
/use
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use of corporal punishment in Trust Territories
and urging its immediate abolition. In fact the
British Commonwealth is one of the few remaining
is inade
groups which we use of a system of punishment
which has been discarded by the majority of the
nations of the world. I em about to address
all Colonial Territories on this subject and will
be suggesting that where it is not possible to
abolish corporal punishment altogether, the
power to award it should be restricted to the
High Court so se to eneure that it can only be
used in the most serious types of offence and
to reduce the number of occasions on which it
is used end thereby make it easier to
contemplate its eventual abolition.
3. The proposal, therefore, that application might be made to the
Supreme Court to prescribe the "cat" on conviction for possession of
arms and that, if after an experimental period this proves a deterrent,
powers to impose corporal punishment under Emergency Regulations should
be given to Magistrates, is enti inconsistent with the
And in this canes prat
I
policy I have outlined above,
above,
immable
I-om-thexefore
not prepared to agree that the "cat" may be
&
prescribed as a punishment, even as an experimental
measure.
I have however discussed this problem in detail with Sir A.
Grantham and I am prepared
to agree in principle that when a state of emergency exista Magistrates
might be empowered to award corporal punishment by use of the "cane"
under the
Emergency
inkiifu
opporschi.
shut
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}
3
4. I have, however, discussed this problem in
detail with Sir A. Grantham and I am prepared to
if
shankh
agree that when the situation has deteriorate
to such an extent that expediency may be held to
outweigh principle, then extraordinary powers
which I would not otherwise be prepared to concede
may have to be considered, and magistrates be
empowered to award corporal punishment by use of
the oane under the Emergency Regulations.
This appears to me to be a case in which the
regulations concerned should not be published in
advance but should be held in reserve to be made
and brought into operation when the situation
requires such aotion, and then only after prior
consultation with me.
5. I would wish to see in draft any regulations giving effeat to these
proposed measures, unless an emergency should arise which would make
this impossible.
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Our Lof: 14237/15/55
r Fof: Coarctariat ile
10. /ER.II
HOND PRONG
ΠΟ
m. 4
SECRA
BY AIR BAG
12
Colonial Office,
The Church liɔuno,
Great Smith treat,
TORDI, 8.1.2.
25 July, 1957
Sir,
I have the honour to refer to your secret despatch No. 15, datod the
25th May, 1950, on the subjoot of the morgency Regulations (Amendment)
(18. 2) Ordinance, 1949. In view of the explanations contained in the
cmorandum enclosed with your despatch, and in particular the contents of
the two sets of draft regulations also enclosed, I have now to inform
you that Não l'ajesty will not be advised to exercise his power of
disallowance in respect of this Criiranco.
2. As regards the draft | ogulations themselves, I have no comment on
the Administration of Justice regulations. I understanî that the Capital
Punish-ent Regulations are to be kept in reserve and would not be
brought into operation except in the gravost ozrgongy and thon only if
the situation deteriorates and the powers unde: the Fergancy Irinalpal
Regulations are found to be inadequate. aven in such cireuztasces I
consider that the Capital unishment Rogilations should be brought into
operation for a limited period to over the immediate Emergency and then
only after prior consultation with no.
3. As regards the form of the regulations, it is most important, in my
view, that regulations of thin iinl should be short end easily
understood, since any deterrent effect must depend upon its being as
widely Imoen as possible that the law provides. In the case of the draft
capital finishment regulation the person chon 1 is hoped to deter, by
immeain, the gemalty of death, will not Imon that crime is punishable by
death and what is not mlors he has looked through the various Ordinances
specificû. ith this cathod should be contrasted tin contenta of the
Defence (toneral) Regulations, 1939, in forco in the United (ingdom
during
the var in which wore omoted in terms the offence - for cxa-ple,
looting, fogulis, tions 381 which it was intended to create.
4. On a point of detail, there appears to be some error in regulations 3
and 7. Pogulation 7 maken reach of specified coctions of the relicious
Darago Ordinance, 1865, punishable with donth, yet Kogulation 3 also
cakes breach of any provision of this criinance punishable with death,
but in the circustances specified in Regulation 3.
5. I should be grateful if you would reconsider the draft of the Cenital
No comments yet.
Private notes are available after approval.