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8. The offences created by these regulations shall
be deemed to have been created in addition to and not
in derogation of the offences of the same or a similar
character existing under any law applicable to the
Colony: Provided that -
(a) No person shall be punished twice for the same
offence;
(b) nothing heroin contained shall be deemed to
have altered the law relating to a plea of autrefois
acquit; and
blank will be inserted the numbers of the regulations in the principal
regula- tions corresponding to regulations 3,4,5 and 6 of these
resulations.
(c) regulations
shall be suspended during the continuance in force of
these regulations.
COUNCIL CHAMBER
,19%.
Clerk of Councils
Explanatory Note.
The offences specified in these regulations are,
under the existing law, punishable oither with life
imprisonment or with imprisonment for a long term of
years. Because of the increased gravity attaching to the
commission of such offences while the present emergency
prevails, it is necessary for the enforcement of public
order that such offences should be punishable by the death penalty.
2. These regulations so provide. The regulations
will take effect upon the approval of Legislative Council given by
resolution and as from a date to be specified
in such resolution.
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3. It will be noted from regulation 2 that for
the interpretation of expressions used in the regulations the
interpretations afforded by regulation 2 of the
Emei ency Principal Regulations, 1949, have been
imported. Such regulations were published in
Supplement No. 2 of the Gazette of day of 1949, as Government
lotification No.
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1.
MEMORANDUM OF THE EMERGENCY (CAPITAL PUNISHMENT,
REGULATIONS. 1949.
Certain offences will be created by the Emergency
Principal Regulations which will be brought into force at the
commencement of any occasion of emergency warranting such course.
These offences will in the first instance be punishable with
imprisonment for life as the maximum penalty.
2.
If the situation deteriorates the same offences will be
mado punishable with death by a fresh set of Emergency (Capital
Punishment Regulations) and these subject to the approval of Legislative
Council will come into force on a date to be specified
by resolution of Legislative Council. Offences committce after
such date will be punishable with death. Previous offences will
be punishable under the provisions of the Emergency Principal
Regulations but such provisions will for all other purposes be sus-
pended during the continuance in force of the Emergency (Capital
Punishment) Regulations.
3.
The Emergency (Capital Punishment) Regulations will also
make punishable with death certain acts of malicious damage certain
attempts to murder and certain other existing offences not now so
punishable.
The comparative table attached to this memorandum
shows very generally the source of the regulations and in the case of
offences now existing under the ordinary law which are by the
regulations made punishable with death, the punishment which is now
applicable to such offence. The comparative table is only a rough guide
because a departure has been made from existing procedents in order to
carry out the paramount intention which is -
(a) not to make any offence punishable both with death and some lesser
punishment;
and
(b) to limit the offences so punishable to offences for which a sentence
of death is likely to be required and carried into execution.
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5.
Experience both in enemy occupied territory and in Hong
Kong has been that a provision' whereby death or a lesser penalty
may be imposed largely defeats its own object as even when Military
Courts are functioning, such Courts are reluctant to impose the
death sentence when a lesser sentence can be imposed. It is
considered more appropriate to limit the cases in which the death
penalty is applicable leaving it to the Governor in Council to
determine even in such limited cases whether or not the death
sentence should be executed. For instance, although it is usual
in a serious internal emergency to provide that possession and
and carrying of arms should be punishable with death, the
regulations limit. the death penalty to possession of arms or
ammunition in such quantities or in such circumstances as to leave
a reasonable man to infer that the person in possession is trafficking
therein or intends them to be used by others or to use them
himself, and limit "carrying" by provise that a conviction shall
not be recorded if the evidence consists solely of the fact that a
search of the person of the accused discovered the presence of
arms or ammunition thereon, In both these cases it is most
unlikely that the possession or carrying in question could be the
result of a "plant", a defence which is readily advanced in such
cases and the possibility of which is always inclined to make a
Court reluctant to impose the death penalty.
6.
Despite the wide interpretation given to the word "enemy"
by the regulations, if a building is discovered to have been blown?
up or otherwise damaged, it will not be possible, at all events,
immediately to prove that it has been destroyed or damaged by an
enemy. Nor will it be possible for the Governor to make an
evacuation order until he has been informed thereof and time to
publish the order has elapsed. Yet it is precisely during this
period that looting will be resorted to, It is for this reason
that in framing regulation 3 the expression "has been destroyed
or damaged by any means whatsoever" has been included.
7.
The definition of "enemy" is aimed at the fifth columnist and
saboteur and not against an external aggressor, If the latter
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matures, presumably the United Kingdom will declare war and other
steps taken to deal with assisting such an enemy on the lines of
treason and Defence Regulation 27 of the (War time) Defence
Regulations.
The proposed regulations would still continue to be
useful in cases where treason or an offence under Regulation 27 could
not be substantiated. It is for this reason and because of the wide
interpretation given to "enemy" that Regulation 4 only applies if felony
is committed.
8:
These regulations make no provision with regard to
attempts because it is proposed that the Emergency Principal Regulations
will provide that attempts shall punishable in like manner as the
offence provided that attempts to commit offences under the Capital
Punishment Regulations shall, unless the contrary intention
expressly appears, be punishable with imprisonment for life or a
lesser period. The contrary intention appears in the case of the offence
of endeavouring to force a safeguard or attempts to commit murder.
9.
As the Emergency (Capital Punishment) Regulations will not be completely
intelligible without reference to definitions contained in the Emergency
Principal Regulations the material definitions are attached as an
annexure to the memorandum.
10.
It is proposed that an Explanatory Note such as that provided
should be published with the Regulations.
24th June, 1949.
Sgd. J.B. GRIFFIN
Attorney General
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The Emergency (Capital Punishment) Regulations 1949
Regulation
3
Sourde
CO
TABLE
18 and 38 U.K. Defence (General) Regs. 1939.
4
สล
24
مة
27
H.K.Defence Regs.1940
5
59
Palestine (Emergency) Regs.
1945
6
58(c)
7
Now
Remarks
Variod
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ล
Penalties under the Offenços Against the Person Ordinance, 1865.
S.10 Administering poison or wounding with Intent to
murder
S.11 Destroying or damaging building with intent to murder
S.12 Setting fire to or casting away ship with intent to murder
S.13 Attempting to administer poison, or attorpting to shoot or drown,
etc., with intent to murder S.14 Attempting to court murder by means not
specified 3.16 Impeding person endeavouring to save himself or
783
another from shipwreak
S.17(2) Shooting or attempting to shoot, or wounding of & (3) striking
with intent to do grievous bodily harm. S.20 Attempting to choke, etc.,
in order to commit
indictablo offence
9.71 Using chloroform, etc., in order to comit indict- aale offence
Life
Imprisonment
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The Emergency (Capital Punishment) Regulations
1949
Source
2 -
Remarks
Penalties under Helicious Damage Ordinance, 1865.
S.2 Setting fire to church, otc.
S.3 Setting fire tɔ houses, a person being
therein
S.4 Setting fire to houso, otc.
3.5 Setting fire to ongine-house etc.
S.6 Setting fire to public building
S.7 Setting fire to building not specified
Life Imprisonment. Malo under 16 yrs. with or without whipping.
do
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S.8 Setting fire to geeds in any building the setting fire to which is
felony
3.9 Attempt to set fire to building, etc. S.10 Destroying dwelling-house
with explosive, a person being therein
s.11 Attempt to destroy building, oto,, with explosive
S.17 Sotting fire to heap of corn, etc.
S.25 Destroying sea-bank, etc. 8.27 Injury to bridge, etc.
S.274 Injuries to railways and railway carriagos S.33 Setting fire to
ship
E.38 Exhibiting false signal, with intent to bring
ship into danger
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Ipriscont not ex- cooding 14 yrs. Malo undar 16 yrs, with or without
whipping.
Jo
Life imprisonment. Male under 16 yrs. with or without whipping.
Imprisonment not ex- coeding 14 yrs.
ململا
undar 16 yrs, with or without whipping Life imprisonment. Malo under 16
yrs.with or without whipping.
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3
ANNEXURE TO MEMO ON DRAFT EMERGENCY: (CAPITAL
PUNISHMENT) REGULATIONS, 1949.
"arma" and "ammunition" shall have the meanings
attributed to them respectively by the Arms and Ammunition
Ordinance, 1933;
"area" includes structure;
"authorized guard" and "protected place" shall have
the meanings respectively assigned to them by the Protected
Places (Safety) Ordinance, 1946;
"closed area" means an area declared to be such under
section 10 of the Public Order Ordinance, 1948;
"enemy" means any person or group of persons howsoever
associated or organised who or which the Govornor in Council
by notice in the Gazette declares whether by a specific or
genoral doseription to be an onomy and includes any person
or group of porsons whether so declarod or otherwise who
or which has by any overt act manifested a seditious
intention within the meaning of tho Sadition Ordinance,
1938, or who or which accks in any way to promote internal
disorder: Provided that a person shall not be deemed to be
an nomy by reason only of his taking part in or
poacefully persuading any other person to take part in a
strike;
"possession" moans..............
and arms or ammunition on the body or in the custody or
under the control, of any person shall be docmod to be
in his possession;
"safeguard" means any authorized guard when on duty
as an authorized guard and any member of His Majesty's
forces, the Hong Kong Dofence Force, the Hong Kong Police
Reserve Force or any police officer or special police
officer posted for the purpose of protecting or proventing
or controlling accoss to any area or promises or for
the purpose of regulating traffic;
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"spocial police officor" moans an officer engaged
pursuant to section 24 of the Police Force Ordinance, 1948,
as amondod by the Police Force Amendment Ordinance, 1949.
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Citation and commoncemont,
Modification of provisions as to dotention in custody in sect- ion 51 of
the Police Force Ordinance,1948.
Committal for trial by magistrate without pre- liminary
inquiry save for the purpose of recording certain dopositions.
EMERGENCY REGULATIONS ORDINANCE, 1922.
Regulations by the Governor in Council,
In exorcise of the powers conferred upon him by section 2 of the
Emergency Regulations Ordinance, 1922, His Excellency the Governor in
Council has made the following regulations :-
REGULATIONS,
1, These regulations which may bo cited as the Emergency (Administration
of Justico) Regulations, 1949, shall be read as ono with the Emergoney
Principal Rogulatione, 1949.
2. Sub-section (1) of section 51 of the Police Force Ordinance, 1943,
shall during the continuance in force of these rogulations take offect
as if for the words "forty-eight" and "seventy-two" there were
substituted the words "ninety-six" and "one hundred and forty-four"
respectively.
3. (1) Whon a person accused appears before a magistrate charged with an
indictable offence then if a public prosecutor appointed under section
11A of the Magistrates Ordinance, 1932, so roquests orally or in writing
the magistrato shall without inquiring into the ovidence in spport of
such charge commit the accused to prison for trial or admit him to bail
to tako his trial and in such case the provisions of sections 75, 76 and
77 of the Magistrates Ordinanco, 1932, ghall have no application and the
Magistrates Ordinance, 1932, and the Criminal Procedure Ordinance, 1899,
shall havo effect with such modifications as are neccssary to enable
such accused to stand his trial boforo tho Supreme Court on indictment
to be proferred by the Attorney General without any preliminary hearing
or recording of dopositions before a magistrate.
(2) Notwithstanding that a request may have been made under the
precoding paragraph of this regulation it shall be lawful for a public
prosecutor to ask tho magistrate to record in the presence of the
accused the deposition of any prosecution witnese and in any such case
the magistrato shall proceed to record such deposition in like manner as
would have been applicable if this regulation had not boon mado.
(3) The Chief Justice may give such directions as appear to him to be
necessary or expedi ont for carrying this regulation into effect,
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Public prose- cu or to have rights and privileges of logal officer.
No Jury exaupt în capitai ORROR FOP which a jury of five shall suffice.
Use of depos❤ itions at trial on indictment.
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46
Any public prosecutor as aforesaid may for the purpose of any trial upon
inflictment before the Supreme Court exercise all the rights and
priviloges conferred upon a legal officer by the Law Officers ordinance,
1949.
5. (1) All proceedings in any court and inquiries shall proceed without
a jury: Provided that this regulation shall not apply to a trial upon
indiotment for any offence punishable with death.
(2) Whonever by roason of the proviso to paragraph (1) of this
regulation it is necessary to empanel a jury it shall not be necessary
for the jury to consist of
more than five persons.
6. (1) Whore a person has boon committed for trial for an offence and it
is proved at his trial for that offence or for any other offence arising
out of the same transaction, or set of circumstances as that offence,
(a) that any witness whose deposition was taken before the magistrato is
unable to attend the trial aither by reason of being engaged in the
naval, military or air force service of His Majesty or in tho Hong Kong
Defence Force of the Colony or on other work of urgont public
importance, or by reason of hostile operations in the Colony; and
(b) that the deposition was takon in the presence of tho accused and
(cxcept in the case of a witness on behalf of the accused) that the
accused or any person appearing on his bohalf before the magistrate had
full opportunity of cross-oxamining the witness;
then, if the deposition purports to be signed by the magistrate, it may
be given in evidonce at the trial without further proof, unless it is
proved that it is not in fact signed by the magistrate purporting to
sign it.
(2) For the purpose of this regulation the following cortificates that
is to say -
(a) a certificate purporting to be signed by tho appropriate principal
staff officer certifying that a person is unable to attend a trial by
roason of boing engaged in the naval, military or air force service of
His Majesty as tho caso muy bo;
(b) a cortificate purporting to bo signed by the Senior Staff Officer on
the staff of the Commandant of the Hong Kong Defence Forco certifying
that a person is unable to attend a trial by reason of being engaged in
the Dofonce Force of the Colony;
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1
Proof of cer- tain faots by
certificate.
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(o) a certificate signed by the Deputy Colonial
Secretary cortifying that a person is unable to attend a trial by reason
of being engaged in work of urgent public importance or by reason of
hostile operations in the Colony;
(d) a certificate purporting" to be signed by the magiętrato certifying
that a deposition was taken in the
presence of the accused and that the accused or a person appearing on
his behalf before the magistrate
had a full
opportunity of cross-examining the witness; shall be conclusive evidence
of the facts Bo o ertified, unless it is shown that the certificate in
question was not in fact signed by the person by whom it purports to
have been signod;
but not hing in this paragraph shall be deemed to exclude
any other modo of proof.
(3) For the purposes of sub-paragraph (a) of paragraph (2) of this
regulation the appropriate principal staff officer shall -
(1) in the case of His Majosty's naval forcos be the officer for the
time being discharging the functions of Chief Staff officer to the
Commodore, Hong Kong; and
(ii) in the case of His Majesty's military
forces be any staff officer on the staff of the General Officer
Commanding of the rank of Lieutenant Colonel or above; aha
(111) in the case of His Majesty's air forces the officer for the time
being discharging the functions of the Senior Staff Officer on the staff
of the Air Commodore, Hong Kong.
7, (1) A plan or drawing of any place or object shall, if
theroon there is annexed thereto or
inscribed/a cortificate =
(a) purporting to be signed by a police officer of or above the rank of
sub-inspootor or by an authorized architect within the meaning of
section 5 of the Buildings Ordinance, 1935; and
(b) stating that ho made the plan or drawing and that it is correctly
drawn to a scalo specifi ed in tho certificate;
be admissible in prococdings before any court or magistrate for any
offence as ovidence of facts appearing from or stated on the plan or
drawing with respect to the rolative positions of any things shown
thereon.
2) Nothing in this regulation shall bo deomoć to ronder a certificate or
other document admissible as evidenco in proceedings for any of fonce
except in a caso whore and to the extent to which oral testimony to the
like effect would have been admissible in those proooedinga,
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(3) Nothing in this regulation shall be deemed to ronder a certificate
or other document admissible as evidence in proceedings for any offence,
(a) unless a copy theroof has, not less than seven days before the
hoaring or trial, been served on the person charged with the offence; or
(b) if that person, not later than three days before the hearing or
trial or within such further time as the court or magistrate may in
special circumstances allow, servos notice requiring the attendance at
the trial of the person who signed the cortificato or the certificate
authenticating the document. Such notice shall be served upon the
magistrate's clerk savo where an indictmont has boen preferred, in which
event it shall be served upon the Attorney General. Any notice served
upon a magistrate's clerk shall be transmit ted by him forthwith to the
prosecutor.
COUNCIL CHAMBER,
.1949.
Clerk of Councils.
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?
NOTE ON THE EMERGENCY (ADMINISTRATION OF JUSTICE)
REGULATIONS, 1949.
1. The innovations made by the regulations may be
summarised briefly as follows:-
(1) No Jury in civil cases, Reg. 5.
(2)
No jury in criminal cases save for a capital
offence in which event there will be a jury of five
in lieu of a jury of seven. Reg. 5.
(3) Committal proceedings will be dispensed with if a
public prosecutor so requests,
Reg. 5.
(4) Notwithstanding that committal proceedings have
been dispensed with a public prosecutor may roquest
the magistrate to record the deposition of a witness
who is in the opinion of such prosecutor unlikely
Reg. 3.
to be available at the trial.
(5) Cases in which depositions may be used at the trial
have been exterlud to cover the depositions of person
absent on or required for military or defence
purposes or other work of urgent public importance.
Reg. 6.
(6) A plan certified by a police officer of the rank of
sub-inspector or above or by an authorised architect
will be admissible in evidence in circumstancos
where it could have been put in by such officer or
architect in the witness box. Provision is however
made for production of the witness, Reg. 7.
(7) Public prosecutors are authorised to appear before
the Supreme Court. Reg. 4.
(8) The time during which an acousod may be kept in
custody before either being taken before a magistrate
or deportation proscedings are instituted has been
doubled.
Reg. 2.
2. It is contemplated that the regulations would not be
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2
brought into force unless either -
(a) war is declarod by or against an enemy operating
in the Pacific area;
(b) the Defence Force is called up.
As to (b) this will naturally entail a serious drain on the
staffs of Government Departments and of the business occmunitios
other than Chinese and to a limited extent on the latter also.
It is almost certain to be accompanied by a calling up of the
Special Constabulary and Essential Services (fire, demolition,
squads, etc.) which will entail a further drain on manpower.
Such situation will roduce very considorably the availability of
persons who in fact constitute the jury list. But a certain
number of wonen jurors should continue to be available,
3. In these circumstances it is considered logitinate to
make such provision as is made in the regulations. (1), (2) and
(7) of paragraph 1 of this Note ain at conserving manpower; (3),
(4), (5) and (6) of paragraph 1 ain at saving time. (8) is
intended to save transport manpower and time, (3)-(7) are
flexible and they will be oporated under the control of the
Attorney General, As to (7) it is not the intention to dispense
with the services of Crown Counsel if this course can possibly
be avoided. It may however provɩ necessary to do so if the
shortage of manpower becomes acute, If so, supervision and
advico will still have to be undertaken by the Legal Department.
4. As to sources. (3) of paragraph 1 has been tried with
success during military administrations in Tripolitania and
Hong Kong and it is believed in Malaya. (4) is a corollary of
(3) and a necessary provision if (5) is to be of real valus.
(7) has been tried with varying success during military occupation
of Eritrea, Cyrenaica, Tripolitania, the Dodecanese and in
Palestine though only with military courts. (1) and (2) go
beyond the provisions made in England in 1939 but these
provisions are fully warranted by the fact that shortage of
nanpower will be far noru aoute huru and that the only alternative
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3
would be the setting up of military courts which create other
manpower problems and in any event do not provide anything
like as satisfactory a solution as the retention, with
modification in procedure, of the ordinary courts conducted
by experienced Judges and magistrates. (5) and (6) are
based on regulations 17 and 17A of the Defence
(Administration of Justice) Regulations, 1940, of the
United Kingdon, A comparative tablo showing modifications
is attached.
-
5. Reference Regulation 4 a Bill for a Law Officers
Ordinance, 1949, is still in draft. This rugulation will
require refraning if the regulation is required before such
legislation is in fnet unacted,
(sd) J. B. Griffin
Attorney Genaral.
24th June, 1949.
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Secretariat 23/3231/50s.
SAVINGRAM
To the Secretary of State for the Colonies.
From the Governor, Hong Kong.
Date 1st June, 1950,
No. 56.
SECRET
E- JUN 1950
REGISTRY
d.
Penalties for Possession and Use of Arms.
1.
At meetings of Executive Council on 16th and 23rd Hay, general
discussions took place on the incidence at the present time of unlawful
possession of arms in the Colony and on the use of grenades. It was
noted that a consequence, not unexpected, of the proximity of the
Chinese Civil War to the Colony and the disintegration of Nationalist
Forces since their defeat in South China, has been vastly to increase
the quantity of arms illegally in the Colony. Such arms are for the most
part in the hands of ex-soldiers, deserters and guerrillas and bandits
who have crowded into the Colony together with other elements. The
possessors are of a type having knowledge of the use of arms who are
very ready to employ them to assist robbery, which forms the means of
support most attractive to them, and generally to further any end they
may have in view, be it political or otherwise. Concern was expressed in
particular at the recent outbreak of "grenade" incidents. Such incidents
as at 23.5.50 numbered 7 within the previous 3 weeks. The resulting
casualties have been 1 killed, 1 seriously injured and 11 slightly
injured. Some damage to property has also been caused. In addition in
the same period 5 incidents occurred wherein dummy and firecracker bombs
were employed or found, causing no injury to person or property. The
reason for the outbreak is still a matter of speculation. No arrests
have occurred of persons actually using grenades. But quantities of arms
have been found by the Police within recent months and many arrests,
prosecutions and convictions for possession of arms have taken place and
in the case of suspects a number of deportations have also resulted.
2.
No comments yet.
Private notes are available after approval.