2.
1950
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Secretary of State's Despatch No. 5 dated 9th
January, 1950.
EMERGENCY REGULATIONS ORDINANCE, 1922
and amending Ordinances No. 8 of
1949 and No. 40 of 1949.
NOTE BY ATTORNEY GENERAL.
Abbreviations employed in Note:
=
Despatch
Unda 15
principal Ordinance
L
✓19
Ordinance 8 of 1949
C
13
1-1949
Ordinance 40 of 1949
Order in Council
=
the Secretary of State's Despatch No. 5
dated 9th January, 1950.
the Emergency Regulations Ordinance No. 22
(No. 5 of 1922).
the Emergency Regulations (Amendment)
Ordinance, 1949.
the Emergency Regulations (Amendment) (No. 2)
Ordinance, 1949.
= the Emergency Powers Order in Council 1939
(dated 9th March, 1939).
Сери
tunden 10
1.
However,
The principal Ordinance was enacted on the 28th February, ISHS
1922. No Departmental records survive to explain the circumstances of
its enactment or the precedent afforded for its provisions.
page 18 of the H. K. Hansard 1922-25, records that the Ordinance was
introduced as a Bill on the 28th February under the heading "Strike
Legislation" and upon suspension of Standing Orders passed through
all stages on the same date. On that occasion the Governor (Sir
Edward Stubbs) said "The necessity for passing this legislation at
this time is that the result of the Seamen's strike has been to
unsettle general popular feeling here and in Canton and efforts have
been and are still being made to bring out other classes of labour
who are not concerned in the matter which originated the strike
that is if the reasons given for the seamen's strike are correct a
matter on which there may be two opinions. At all events it is
essential for the safety of the Colony that steps should be taken,
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as early as possible, to confer upon the Executive the most drastio
powers for dealing with the situation which may at any moment result
in disorder owing to the misguided efforts of persons who are under
the influence of Bolsheviki doctrine". The Ordinance as so enacted
provided for section 2(1) in its present form, i.e. "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". It will
be noted, notwithstanding the precedent afforded by the Emergency
Powers Act, 1920 (10 and 11 Geo. 5 c. 55,) the Ordinance did not
adopt procedure of providing for a proclamation of "emergency". As
60 enacted the principal Ordinance continued in the form of its
original enactment until 1925. In that year by Ordinance No. 10 of
1925 an amendment was made to section 3 of the Ordinance to allow of
a greater penalty, and indeed an unlimited penalty, being imposed
for breach of regulations made under the principal Ordinance where
so provided by such regulations. The reason for such amendment,
which once again passed through all the stages at the one sitting
of Legislative Council, appear at page 50 of the H.K. Hansard
1925.
2.
In 1947 I first had occasion to consider the principal
Ordinance. I did so for the reason that it seemed desirable that
a set of emergency regulations should be prepared in readiness and
held in draft against the possibility of emergency developing and
to meet the requirements of an internal security scheme, the
preparation of which was then being commenced, In so doing I had
also in mind the need to gather together for purposes of repeal
the various regulations which had been made in the intervening
years since 1922 (and notably 1938) under the principal Ordinance.
As a result I prepared a body of emergency regulations which ware,
in due course, referred to Executive Council and approved in
principle to be held in draft.
3.
Consideration of the principal Ordinance, and in
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particular of draft regulations made under it, continued in 1948.
In so doing I gave consideration in particular to the question of
whether or not the words "any regulations whatsoever which he may
consider desirable in the public interest" occurring in section 2(1)
of the principal Ordinance, sufficed to authorise the making of
emergency regulations which purported to amend or which were
inconsistent with the general law. I found that within the years
since 1922 emergency regulations had been made from time to time
and that such regulations as often as not displayed inconsistency or
conflict with other law. I was not able to find that the existenge
of such inconsistency or conflict had in fact presented difficulty or
produced challenge. Nevertheless, I proposed an amendment to the
principal Ordiname which was eventually effected as Ordinance No. 8
of 1949. It will be seen that Ordinance No. 8 of 1949, amended the
principal Ordinance, inter alia, to make it clear that regulations
or any rule or Order made in pursuance of regulation shall have
effect notwithstanding anything inconsistent therewith contained in
any enactment, Notification of non disallowance was made by the
APRIL
S. of S.'s despatch No. 88 of the 25th March, 1949.
4.
Subsequent to the enactment
of Ordinamo No. 8 of 1949 an appeal to the Full Court arising out
of section 8 of the Law Amendment (Transitional Provisions) Ordinance,
1946 (No. 2 of 1946) created the further doubt as to whether the
amendments effected by Ordinance 8 of 1949 prosented the danger
that there might in the future be a submission that they were ultra
vires the powers of Legislative Council conferred by Article XVII
of the Letters Patent. In these circumstances a memo was prepared
by the Solicitor General and myself and referred to the S. of S.
with the Governor's despatch No. 94 dated 13th May, 1949. The S. of
S.'s reply which was contained in his telegram No. 738 of the 15th
June, 1949, confirmed the view expressed by me in the memo above-
nontioned, that the amendments made by Ordinance 8 of 1949 were
intra vires. The S. of S.'s telegram referred in pare, 2 to the
fact that the Legal Adviser would reply in due course direct to me
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in the various points raised in the memo. The Legal Adviser replied
by his letter 14237/15/49 Gen, dated 16th July, 1949. The S. of S.'s
telegram, para. 3, mentioned that if apprehensions still existed as
to challenge of the Ordinance, the Order in Council might be employed.
Reference is also made to the Order in Council in the Legal Adviser's
reply in which he pointed out that an enumeration of the objectives
to be achieved is given in para. 6(1) of the Order in Council would
be desirable.
5.
In the meanwhile the necessity for the preparation of more comprehensive
emergency regulations became clear owing to the situation in China and
the development of a Civil war, notably the prospect of the war being
carried to the borders of the Colony and
uncertainty as to the repercussion upon the Colony of a Communist
victory in Southern China. In connection with the preparation of
legislative provision to meet any serious emergency in the Colony
resulting from the above factors, it seemed evident, in particular,
that there should be power to prescribe the death penalty for breach
of certain regulations. In this connection it seemed at least very
arguable that the wording of section 2(1) of the principal Ordinance
empowering the making of "any regulations whatsoever" taken with the
wording of the penalty section (see sec. 3 of the principal Ordinance,
as amended in 1925) sufficed to authorise the imposition of the death
penalty for breach of emergency regulations. I took the view,
however, that it would be desirable further to amend the principal
Ordinance to place beyond doubt that such a power did reside, Apart
from this consideration it also appeared to me to be of value so to
legislate and thus give publicity to the fact that the commission of
serious offences, while conditions of serious disorder prevail, could
be visited by the death penalty. In these circunstances I proposed
a further amendment of the principal Ordinance and such amendaerit
was affected by Ordinance No. 40 of 1949, which is the subject
matter of the Dospatoh.
6.
In the preceding paragraphs I have summarised as briefly as possible the
history of the principal Ordinance and of the three
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amendments to the principal Ordinance which have been enacted. The
concern expressed in the despatch and the fact that the S. of S. was
not fully informed of the action contemplated in relation to the
matters specifically referred to in para. 5 of the despatch, appeared
to make such summary desirable.
7.
At paras. 2 and 3 of the despatch the S. of S. refers to the
Order in Council. As I recall, the correspondence (which I cannot
Smith
trace) between Mr. Trafford/2nd Mr. MacDougall referred to the
employment of the Order in Council in the event that a major war
should break out before model legislation similar to the Emergency
Powers (Defence) Act and Order in Council had been completed in
readiness for such an event. Additionally, as above indicated,
reference was made to the Order in Council in the S. of S.'s telegram
No. 738 of the 15th June, Such references were not overlooked in
decision to advise the claboration of the principal Ordinance and
I took the preparation of emergency regulations under such Ordinance.
the view that reliance on the Order in Council was not to be preferred
to the course adopted. I did so for the following reasons
(a) I could not then find that the Order in Council had in fact
ever been published in the Colony. Only subsequently did
I discover that such publication was made during the progress
of the attack on Hong Kong in December, 1941.
(b) Experience in H.K. over the years, and in particular in
(c)
most recent years, has shown that a state of emergency not
infrequently materialises and that when it does it is often
protracted.
The machinery of the Order in Council requiring as it does
Proclamation "in case of any public emergency", seems
suitable only for a sudden emergency, not for a state of
protracted emergency.
(d) That in conditions as they have prevailed in H.K. Proclamation
would unnecessarily create alarm and confusion which would
be a recurrent condition unless such proclamation and
regulations mado consequentially were to remain for long
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8.
(0)
13 15415
unrescinded,
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That the course adopted, i,e, elaboration of the principal
Ordinance and the preparation or enactment of emergency
regulations thereunder has enabled the Executive Council
to be consulted in advance and also enabled, through the
process of the introduction and passing of the amending
legislation, consultation with the Legislative Council
and infoming of the public.
(f) That the machinery of the principal Ordinance as amended
provided for Legislative Council control (which would be
absent if the Order in Council were employed) through the
operation of section 40(4) of the Interpretation Ordinance,
1911. Further, the effect of Ordinance 40 of 1949 is to
give specific further control to Legislative Council over
any emergency regulation providing for capital punishment.
As regards paras. 4 and 5 of the Despatch, I appreciate
that the provisions in regard to which, in particular, the S. of S.
expresses concern, confer wide powers. But as the S. of S. recognises
the necessity for such powers may at any time correspond to the needs
of the situation in H.K. Further, it appears to me that the principal
Ordinance even before the enactment of Ordinances 8 of 1949 and 40
of 1949, rendered it possible by regulations for such powers to be
taken having regard to the very wide terms of section 2 of the
principal Ordinance. For instance, the section would not have
precluded the making of certain civil offences, offences against the
regulations and the making of them punishable with death, or indeed
the making of provision for the trial of such offences punishable
with death in any manner thought fit.
9.
Reference para. 6 of the S. of S.'s Despatch, the
situation in China and the imminent possibility at the end of 1949
that a repercussion of such events would be felt in the Colony by
way of fomented strikes and disorders, resulted in decision by
Government to enact a comprehensive body of Emergency Regulations
entitled the Emergency (Principal) Regulations, 1949. I had
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prepared such regulations in replacement of the less comprehensive
regulations held in draft since 1947. Since such legislative
preparedness seemed to be most desirable in the worsening situation
in China and in the increasing possibility that repercussions upon
this Colony would be very serious, the Emergency (Principal)
Regulations, 1949, were in fact enacted and published in Supplement
No. 2, H.K. Gazette of December 28th, 1949. Regulation 137 provides
that the regulation shall not come into operation except in the manner
provided therein. The consequence is that a comprehensive body of
regulations have now been published and enacted and are in readiness
for immediate use in whole or part, In this way the public have been
given opportunity to consider them and notice has been served thereby
that Government has placed itself in possession of legislative
powers necessary to meet emergency as it arises to greater or lessor
degree. Such procedure has, I believe, received a most favourable
reception by the well disposed public and also, I believe, has had
beneficial effect as a warning or indication of Government's general
In these
preparedness as far as the ill disposed are concerned. circumstances,
and in particular because the Emergency (Principal)
Regulations, 1949, though enacted are not wholly in force but are
in force at this date only to the extent specified in G.N. A.85 Gazette
Supplement No. 2 of 3.5.50, I am of the opinion that it is
not practicable at the present tine to adopt the suggestion that these
regulations should be expressed to continue in force for a
limited period of time only.
10.
4,8
At paras. 4 and 5 the S. of S. has expressed concern in
particular regarding the powers taken to include the death penalty
for offences against the regulations and as to the power conferred to
make a complete alteration as to the procedure at trial. The S.
of S. made previous enquiry as to these aspects by his telegram No.
1108 dated 18th August, 1949. The Governor's reply is contained in
his telegram 894 of the 27th August. That reply made it clear that in
fact no regulations had then (nor have they yet) been enacted
providing for the death penalty. These telegrams made no reference
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to the power to provide for alteration in the procedure of trial.
It is most unfortunate that subsequent to the Governor's telegram
No. 894 the desirability of informing the S. of S. further in this
matter was overlooked. I suggest that this omission should now be
remedied by forwarding to the S. of S. the draft regulations which
have been prepared on such topics, i.e. the regulations entitled
(a) the Emergency (Capital Punishment) Regulations, 1949; and
(b) the Emergency (Administration of Justice) Regulations,
1949;
-
together with Explanatory Memoranda, which I provided in submitting
these draft regulations on the 24th June, 1949, for information and
approval in principle by Executive Council.
11.
With reference to para. 7 of the Despatch, it is of course
possible that an attack on the vires of the legislation may be
provoked. But having regard to the necessity for such powers it
seems to be necessary to face such possibility. The possibility is
lessened by the outcome of the appeal in the case discussed in the
Governor's Confidential Despatch No. 94 of the 13th May and enclosures,
12.
I trust that the explanation conveyed by my Note as above
will satisfy the S. of S. that non disallowance of Ordinance 40 of
1949 may be advised. In urging this course I invite Government's
attention to the fact that the Emergency (Principal) Rogulations form
important elements in the internal security scheme and indeed in the
draft defence scheme. Further, that such scheme takes account of the
possibility in the event of a truly serious situation prevailing
within the Colony of the enactment of the two draft regulations
relating to the imposition of the death penalty and alteration in
procedure for trial.
18th May, 1950.
1 14 Griffen
Attorney General,
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To:
Hon. C.S.
From: Attorney General.
SECRET
Subject:
Emergency Regulations
As you are aware, I am engaged on a review and amplification
of draft Emergency Regulations previously prepared to be held in
readiness if needed.
Such examination, which has also kept in view
the requirements of the internal security scheme, has shown necessity,
in my view, for further amendment of the Emergency Regulations
Ordinance, 1922, and for the preparation in draft of groups of
emergency regulations for on ctment as and when required, but separately
from the general body of Emergency Regulations.
2.
3.
I therefore submit the following:-
A. A Bill intituled the Emergency Regulations (Amendment)
No. 2 Ordinance, 1949.
2. Emergency (Capital Punishment) Regulations, 1949
C.
Emergency (Administration of Justice) Regulations, 1949.
As to A': The Bill is accompanied by Objects and Reasons
which explains its purposes and which in particular, at para. 3
explains its objectives. In this connection you will recall that
reference has been made to the Secretary of State to resolve
doubts as to the extent to which legislation may be made by
Emergency Regulations. A tologram has now been received from tho,
S. of S. ( No. 738 dated 15th June, 1949) which confirms the view
expressed by me that amendments to Ordinance No. 5 of 1922, as made
by Ordinance No. 3 of 1949, are intra vires. The reply also
indicates that amendment as proposed by the Bill would equally be
intra vires. If His Excellency so directs, the Bill might now be
circulated for the approval of Executive Council and decision taken
at that stage as to whether or not the Bill be introduced forthwith
or deferred.
4*
of 'A'.
As to 'B': The Regulations are dependent on the enactment
It will be seen that an explanatory note is attached to
the Regulatiors which would appear with the Regulations on publica-
1 tion. Also attached and marked (B) is a memo NOT for publication
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SECRET
giving fuller explanation. As indicated at para. 1 of such memo, it is
not intended that the Regulations should be enacted unless and until an
emergency warranting such course arises.
5.
As to C: These Regulations similarly are not intended to be enacted
unless and until the situation requires them.
Attached to the Regulations and marked (c)1 is a note explaining them.
As summarised, the explanation is that the Regulations will enable the
Courts to function in conditions of emergency aided by changes in
procedure which will take into account the fact that there must be
conservation of manpower and savings of time and demands upon transport,
c.g. Juries to be reduced to 5 in number and only to be required in time
of capital offences. Dispensation with preliminary enquiries.
6.
A,B, and C as above described, have been the subject of discussion with
His Honour the Chief Justice and he has in principle
approved the legislation and its objectives.
7.
As regards B and C, as stated, it is not proposed that
these Regulations should be enacted until clear need arises.
Nevertheless, the Governor may wish that they should be seen at this
stage by Executive Council. If as seen they are approved in principle,
it will remove the objection that Regulations of such importance might
have to be referred for the approval of Ex. Co. at a time when full
consideration of them cannot easily be given.
Sgd. J.B. GRIFFIN
Attorney General
24.6.49
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B
THE EMERGENCY REGULATIONS ORDIILICE,1922.
Citation
Interpre→
totion
Certain
offences
Regulations by the Governor in Council.
In exercise of the powers conferred upon him by the
Emergency Regulations Ordinance, 1922, as amended by the
Emergency Regulations Arondment Ordinance, 1949, and by the
Eiergency Regulations (Amendment) (No. 2) Ordinance, 1949, the
Governor in Council has made the following regulations:-
REGULATONS.
1. These regulations ay be cited as the Emergency
(Capital Punishment) Regulations, 1949.
2. "the principal regulations" means the Emergency
Principal Regulations, 1942,
+
The interprctation given by the principal regulations to
the expressions "arms" "ammunition", "area", "authorised
guard", "closed aroa", "enony", "possession", "safeguard" and
"special police officer" swill apply to those regulations and
generally these regulations shell be interpreted in like manner
as if they had formed part of Wic principal regulations:
Provided that no amendment of the principal regulations made
after the coming into operation of these regulations shall
affect the interprctation of those regulations.
3. If in any closed area or protected placo or in any in closed area
which at any time after the coming into operation of these
protected.
damaged or,
evacuated regulations has beon destroyed or danaged by any means
whatsoever aroas to bor subjected to an attack by the enemy or of which
any evacuation punishable'
with death as
Burglary
beon or shall be ordered under section 11 of the Public
Order Oriinance, 1948, any person -
42
..
(a) commits ary offenco punishable under Section 40,41 or
42 of the Larceny Ordinance, 1935, with imprisonment for life; or
(b) steals any article from any premises destroyed or
danaged or vected for th. purpose of complying with such an
ovacuation order as aforesaid or any article left exposed or
unprotected in consequence of such destruction danage attack
or evacuations
or
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سوم
Felony commit--
tod in the
course of
assisting or
with intent to
assist an
uneny to bo
+
-2-
(c) coruits an offonce against any provision of
the Malicious Damago Ordinance, 1865; от
(a) endeavours to force a safeguard;
hc shall be guilty of an offence against those regulations
and shall on conviction theroof on indictment suffer
death as a felon.
4. Any person who in the course of assisting or with
intent to assist an enemy commits felony which is likely
to assist the onery or prejudice the public safety shell.
punishable with be guilty of an offence against these regulations and
dcatii.
shall on conviction theroof on indictment suffer death
as a felon.
Possession of Arns and amuti.. nition for purposes of trafficking
therein or supplying
others to carry death penalty.
Carrying ares and ammunition to
carry death
5. Any person who without lawful authority is in
possession of arms or an unition in such quantities or in
such circumstances as to load a reasonablc on to infer
that he is trafficking therein or intends to use them
himself or intenâs then to he used by others shall bu
guilty of an offence against these regulations and sheli
on conviction thereof on indictment suffer death as a felon.
6: Any person who without lawful authority carries
arms or ammunition shall be guilty of an offence against
circumstances. these regulations and on conviction thereof on indictment
shall suffer death as a fclon: Provided that no person
shall be convicted of an offence against this regulation
if the evidence of his having committed such offence
consists solely of evidence that a search of his person
discovered the presence of arms or ammunition thercon,
7. Any person who commits any of the offences
specified in the following enactments:
penalty in certain
Certain serious offences not now punishable with death to be so
punishable.
The Offences Against the Person Ordinance, 1865;
sections 10,11,12,13, 14,16,17(2) & (3), 20 and 21; The Malicious Damage
Ordinance, 1865;
sections 2 - 11 (inclusive), 17,25,27,27A,33 and 38,
shall be guilty of an offence against these regulations
and shall on conviction of on indictment suffer
death as a felon.
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oxisting
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