At the meetings above mentioned consideration was given to the methods
to be adopted to reinforce measures -
(A) against possession of arms; and
(B) the tendency to employ grenades.
3.
As to (A): The proposal was made that corporal punishment should be
employed to greater extent upon con- viction for possession of arms even
though such offence be unaccompanied by other offence, e.g. robbery.
4.
As to (B): Reference was made in the course of discussion to the fact
that in Singapore the possession of a grenade had been made a capital
offence. The point was made that possession of a grenade merited more
serious punishment than possession of other arms, c.g. possession of a
revolver, even though unlicensed, might be excused on the grounds of
self-defence, but that a grenade can be possessed only for purposes of
offense and when used it can be more widely effective in causing death
or injury to persons and injury to property.
5. As to (A): The existing state of the law and of punishments awarded
for the possession of arms in this Colony may be summarised as follows:-
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- 2
Annexure "A"
Cases of possession of arms are dealt with under section 4 of the Arrs
and Ammunition Ordinance, 1933. The maximum penalty for an offence
against the provisions of that section is, by section 29, 10 years, but
only 3 years if taken summarily. No case can be taken summarily except
with the written consent of the Commissioner of Police.
Flogging by a rattan cane or by the cat can be inflicted as an
additional penalty by the Supreme Court, not by a Magistrate, for an
offence against section 4 of the Arms and Ammunition Ordinance, 1933,
under section 4 of the Flogging Ordinance, 1903.
In fact, the cat has never been prescribed by the Court as the
instrument for flogging in any case within recent years.
At the present time in all cases of robbery with arms or assault with
intent to rob with arms, except where medical reasons otherwise require,
whipping with the cane is part of the sentence though it is seldom that
the maximum of twenty-four strokes (section 4 (b) Ordinance 3/1903) has
been prescribed. In cases of possession of arms, the Judges are tending
to prescribe whipping as part of the sentence and the Supreme Court has
recently announced from the Bench that with the increase in the number
of offences involving arms, the sentences would be increased.
The
In
In addition the Emergency (Principal) Regulations, 1949, provide for the
problem; the most relevant regulations being Emergency Regulations Nos.
116, 117 and 118. regulations quoted have, however, only very recently
been brought into force and have never yet been employed. fact, if the
regulations be used corporal punishment cannot be awarded because such
punishment is not a penalty prescribed in the Emergency Regulations. It
is appreciated that it is not usual in Emergency Regulations to
prescribe corporal punishment since Emergency Regulations, rather like
the Defence Regulations of war time, have "political crime" in view. But
there seems to be no other reason why corporal punishment should not be
made a penalty.
6.
The most recent statistics regarding corporal punishment as ordered as
part of sentence by the Supreme Court in recent Sessions where trials
have taken place for the offence of possession of arms (unrelated to
other offence) are attached as Annexure "A" (which also indicate the
present state of the list for the May Sessions). It will be seen that
these statistics show a marked increase in April of the number of cases
coming before the Supreme Court and indicate that the Supreme Court has
awarded whipping by the cane in all such cases. The cat has not in any
case been prescribed. The cases where mere possession of arms has been
charged have not in recent Sessions taken long to try, though of course
such cases have had to be preceded by a preliminary enquiry before a
Magistrate. This necessity would persist unless and until alteration in
the procedure of trial were
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1
3
4
to be introduced in manner contemplated by the Emergency (Administration
of Justice) Regulations, which are at present held in draft and to which
reference was made in my Secret despatch No. 15 of 26th May, 1950. The
statistics indicate that there is, as yet, no immediate need because of
pressure upon the Supreme Court and expedition of trial, to resort to
trial by the Kagistrates for the trial of serious cases of possession of
arms nor consequently any immediate need to empower Magistrates to
impose corporal punishment, but it is not possible to be sanguine that
the position will not deteriorate.
Colony
As to (B): The existing state of the law in the Colony governing
grenades is the same as that described at para. 5. "Grenade" and weapons
of similar type fall within the definition of "ammunition" in the Arms
and Ammunition Ordinance. Punishments for possession of a grenade are
the same as those for possession of any other weapon. The position may
be contrasted with that in Singapore and Malaya. I am advised that
regulation 4 of the Malayan Emergency Regulations, 1948, renders
possession of arms, which would include grenades, an offence against the
Regulations punishable with death.
8.
In these circumstances the discussion in Executive Council resulted in
advice being recorded in the following minute:-
(1)
(11)
that an amendment should be made to the Emergency Regulations to
provide:
(a) that any person who without lawful
authority uses or attempts to use arms shall on conviction be punished
with death;
(b)
(c)
that any person in possession of grenades or explosives capable of being
used as grenades shall on conviction be punished with death;
that a prosecution for an offence under this Regulation should not be
instituted without the consont of the Attorney General; the object of
this proviso heing that cases which in the opinion of the Attorney
General do not morit the death sentence can be charged under other laws
not providing for the death penalty;
that it was necessary:-
(a)
(b)
to provide for corporal punishment for offences of possession of arms
under the Emergency Regulations and to allow the use of the "cat" and
cane;
to empower award of corporal punishment by "cat" and cane by lagistrates
upon trial of such cases;
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4
Annexure "B"
9.
(c)
to authorise application to the Supreme Court to prescribe the "cat" on
conviction for possession of arms after due warning from the Bench is
made of such intention.
As regards paragraph (1) of the Executive Council minute above quoted, I
attach as Annexure "B" a draft of amending Emergency Regulations to
provide for the addition of a regulation as regulation 116A to render
punishable with death the possession of any bomb, grenade, mine or other
apparatus, machine or implement used, or capable of being used as such
and further to provide that use or attempt to use without lawful
authority arms, ammunition or explaive substance shall also be
punishable by death notwithstanding that death or injury to a person or
injury to property is not caused. It will be seen that in accordance
with the advice of Executive Council the regulations also provide the
requirement that no prosecution under the proposed regulation 116A shall
be instituted except with the consent of the Attorney General.
10. As regards paragraph (11) (a) and (b) of the Executive Council
minute I am aware of the necessity to keep in mind the policy and
desirability of bringing to an end the use of whipping and flogging as a
punishment for offences committed within the colonial territories, a
policy which has, as I am aware, recently been re-affirmed in the House
of Commons by a statement of the Minister of State for the Colonies.
Notwithstanding this consideration, however, I am in agreement with my
Executive Council that in the existing and possibly worsening situation
in Hong Kong, it may well prove very necessary to employ corporal
punishment even to the extent of using the "cat" rather than the cane
for the offence of possession of arms in relation to emergency
regulations, and that furthermore the power to impose such corporal
punishment be given to magistrates should the situation, including the
frequency of the offence and the necessity for speed in conviction and
punishment, make such course clearly necessary. I would, therefore, ask
that I may have your concurrence in taking legislative action necessary
to give effect to the proposal discussed should the situation in the
future demand of my so doing.
11.
As regards paragraph (11) (c) of the Executive Council minute, I have
indicated at paragraph 5 of this Savingram that under the existing law
the power in the Summe Court to prescribe the "cat" is already afforded
by section 4 of the Flogging Ordinance, 1903, but as stated, the "cat"
has not in fact been prescribed as an instrument for flogging within
recent years. The proposal therefore that application might be made to
the Supreme Court to prescribe the "cat" on conviction for possession of
arms visualises that opportunity be taken, should be Court for any
reason as for instance, heavy incidence of the offence of possession of
arms, invite the comments of the prosecution in regard to punishment. I
would welcome your views regardhg this proposal. I am, myself, disposed
to advocate that the procedure envisaged be followed at suitable
opportunity in the event that the incidence of possession of arms
continues to show its present increase. this way it would be possible
for some experience to be gained as to whether or not the application of
the "cat" rather then the cane does in fact have a more deterrent effect
before any measures as advocated in paragraph (11) (a) and (b) of the
Executive Council minute are adopted, which would extend to emergency
regulations and to magistrates the provision and power respectively to
impose corporal punishment whether by the "cat" or by the cane.
2 encls.
In
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CRIMINAL SESSIONS
1950.
ANNEXURE 'A'
Possession of Aras and Ammunition.
Month
No. of persons
indicted
Convicted
Discharged
Sentence
January
February
6
6
March
6
April
12
12
6
MAY
1
4 yra. & 10 strokes 2 yrs. & 6 months 4 yrs, & 10 strokes 3 yrs. H.L.
each
for 3.
18 months each
for 2
2 yrs. & 6 months
for 2
5 yrs. & 10 strokes
for 1
4 yrs. H.L. for".
4 yrs. H.L. & 12
strokes each for
3
4 yrs. H.L. & 15
strokes for 1
4 yrs. H.L. & 15
strokes each for
3
3 yrs. H.L. & 8
strokes each for
4
4 yrs. & 6 months
& 15 strokes
* Note: The cause list for the May Criminal Sessions also includes 5
other cases where possession of arms is a secondary count
to robbery.
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AV NEXURE 'B'
THE 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 -
Citation.
G.N.A.277/49.
Addition of new regulation 116A.
amended by (6)
REGULATIONS.
1. These regulations may be cited as the Emergency (Principal)
Amendment Regulations, 1950, and shall be read as one with the
Emergency (Principal) Regulations, 1949, hereinafter referred to as
the principal regulations.
2. The principal regulations are hereby amended by the
addition of the following regulation after regulation 116 as
regulation 116A -
"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,
he quilty of an offence against there Regulatiore o stall as a bomb,
grenade or mine, shall on conviction on indictment
be punished with death,
(2) Any person who without lawful authority uses
or attempts to use arms ammunition or explosive substance
against any person or property, notwithstanding that death or
injury to a person or injury to property is not caused by
such use, shall be guilty of an offence against these regulations
and shall on conviction on indictment be punished with death.
(3) A prosecution for an offence under this
regulation shall not be instituted except with the consent of
the Attorney General."
COUNCIL CHAMBER,
1950.
Clerk of Councils.
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ון
INWARD TELEGRAM.
TO THE SECRETARY OF STATE FOR THE COLONIES.
Cypher (0.T.P.)
COPY FOR REGISTRA it
FROM HONG KONG (Sir A. Grantham)
D. 10th June, 1950.
R. 10th
#
07.30 hrs.
PRIORITY
No. 652.
151
Secret.
My secret savingram No. 56.
14807/15
Penalties for possession of and use of arms.
I regret that an amendment is necessary in draft amending Emergency
Regulations attached as Annexure to "B. Words "be guilty of an offence
against these Regulations and shall should be inserted after word "shall
in proposed Regulation No. 116 A (1). Ends.
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10
|
I
Į
11
We
MEMORANDUM ON FOLIOS(4), (5) and (6) on
14237/15.
7
2.
دیا
3.
A
Folio (4) replies to (15)/49 in which the Secretary of State expressed
his views on Ordinance No. 40 of 1949 (the Emergency Regulations
(Amendment) (No. 2) Ordinance, 1949 behind
-
(12)/49.) The Governor forwards with his despatch a memorandum by the
Attorney General on the points raised by the Secretary of State and asks
that Ordinance No. 40 of 1949 should now receive non- disallowance.
Legal Department will no doubt wish to consider this memorandum.
·
ميا
(5)
In Polio (8) the Governor describes meetings of Executive Council on the
16th and 23rd May at which 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. At these meetings consideration was
given to the methods to be adopted to reinforce measures (a) against
possession of arms other than grenades and (b) the tendency to employ
grenades.
-
As regards (a) the Governor describes a proposal made in Council that
corporal punishment should be employed to a greater extent upon
I conviction for possession of arms even when such an offence is
unaccompanied by another offence. He describes the present state of the
law which regard to flogging in paragraph 5 of (5). In paragraph 10 he
explains why he thinks that the extension of corporal punishment is
necessary, taking into account the recent reaffirmation by the Minister
of State that H. M.G. consider it I desirable to end the use of whipping
and flogging
in Colonial Territories. In paragraph 6 he
corporal punishment_explains the statistics of flogging attached as
draws attention to
4.
annexure A to (5) and ekowe the marked increase in the number of cases
coming before the Supreme Court in which whipping (not flogging) was
such administered. He considers that the number of cases may well
continue to increase. For this reason he considers that Magistrates
should be empowered to administer corporal punishment and implies that
he would be grateful for speedy consideration to be given to the
Emergency (Administration of Justice) Regulations which are referred to
at (4). h. Folto (4) will therefore have to be considered conjointly
with (5). He asks (in paragraph 10) "that I may have your concurrence in
taking legislative action necessary to give effect to the proposal
discussed should the situation in the future demand of my so doing." 10
Mr. Porch as well as Legal Department will have to be consulted in this
connection.
As regards (b) above, annexure B to (5) ame contains the text of a new
Emergency Regulation# which the Governor proposes to introduce. This is
No. 116A "to render punishable with death the possession of any bomb,
grenade, mine or other apparatus, machine or implement used, or capable
of
/being
(6)
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زا
6.
7.
being used as such and further to provide that use or attempt to use
without lawful authority arms, ammunition or explosive substance shall
also be punishable by death notwithstanding that death or injury to a
person or injury to property is not caused".
The death penalty is mandatory, but a prosecution under this Regulation
"shall not be instituted save with the consent of the Attorney General".
The Governor's reasons for wishing to
introduce this Regulation are set out in (5), (Anal 104) which also
describes the present state of the law with regard to the possession of
grenades etc (see paragraph 7).
Regulation 116A stems from Regulation 116 which was one of the
Regulations recently put into force to cope with the recent bomb
outrages, (Vide Telegram No. 495 Secret from Hong Kong, paragraph 5,
11) on 54496 enclosed.) This Regulation renders liable to imprisonment
for life anyone who is (a) in possession of arms (b) unlawfully carries
arms. It was decided by Mr. Cook (minute 2575 on 54496) that since this
Regulation was much less Bever than that permitted in Singapore there
was no question of challenging the Governor's action. However, the
Governor was werned (vide (20) on 54496) that if he wished to introduce
the Regul. tion similar to the Singapore Regulation the Secretary of
State would wish to be consulted before the Governor was committed.
This draft Regulation will obviously have to be compared with the
Malayan and Singapore Regulations (the Governor refers in paragraph 7 to
Regulation 4 of the Malayan Emergency Regulations). I attach the
relevant files (52849/2/48 and 50, which, to avoid further delay, I have
not studied) and I am indebted to Miss Gaved for the "guides" to them
which I have attached as annexures A and B to this Memorandum,
J.J. Andersm.
13th June, 1950.
I
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Annexure A.
Mr. Anderson.
Carrying of Arms. Mandatory Death
nalty.
Federation of Kalaya.
I attach a copy of the Federation of Malaya Emergency Regulations, of
which Hus, 4-flagged) refers. He should be glad to have this back as
soon as possible, as it is our only correcteù and up to date version.
See (31), (32), (41) and (42) (flagged) of 2840/2/48, and minutes of
8.7.48.
Joan A. Saved
13.6.50.
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Anderson.
Mr. AD849/2/50
Annexure B
As file)contins the complete story of the Singapore
ncy Regulation against the carrying of grenades. A.1 the papers refer,
except (14), (15) and (17). The text of the
Regulation is at (2). (4), Paras. 3-4; (6), Para. 2; (10), the whole
contain the Governor's principal arguments in favour of the Regulation,
in so far as they are likely to be of interest to Hong Kong Dept. Our
principal arguments against are at (8); see also the S. of State'à
consent in (12)-(13) and Governor! reply at (16).' Minutes of 6.4.50.
18.4.50 and of 5.5.50.- 6.5.50. refer.
I am sending on separately papers on the Federation of Malaya Regulation
against the carrying of arms..
Joan A. Gavel.
13.6.50.
11
ľ
!
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لا
40
Melaya- death penalty.
In Imalaya any person in unauthorised possession of firiares,
ammusictim or explosives
5(1) Any person
pussin in
of Rag 4
who
shall on conviction be permeshed with death"
consorts with or is found in the expany of anothe
or with penal
porrsion of arms, armvunctio or explosives in catravention
shall be hable to be punished with death, seoritede for life a ukipping?
Any person who demands collects or reassured any aupplies (mang,
food, drink, clotheip, mble, ten or othe valuable commoditis, any
•Ang...
or other medical supplies
medicine instrument for printing, typewriting
prejudicial to public
shall on
conviction be
~ dupleeating) to be used in a manner
safety
msenterance of public order
punished with death.
Hong Kong,
It is proposed to add Reg 116 A making any person who is in
unathoused possession of a bomb, grenade,
more ate
attempts to
ammunition ate (even though death on injury is not caused),
quilty of an offence
+ m
uniiction pumectable in the death.
In additive there use tmergency (Capital Panichment) Regs in
draft form. Horder there draft rego
a person
(a) (i) commetting robbery, broking & entering a burglary
1
a damaged
ATTA
entering or hurglary in a destergad
and stealing for destinynd, dawaged or vacated premise
a (iii) against commits
Damage Orch
offence against any presccion of the Incheons
a (iv) endeavours to force a safeguard, shell suffer
death
felon
(b)
assists He
enemy.
(C)
traffers in ams
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ᅲ
1 =)
\-j
(d) cames are
ammination (provided
wmation person shall be cominated
of the endince consists solely that a search of
his
discovered the
ansence of
was a ammusicton thereon).
(e) certain serams affinus apist specified in the Offence, against
He Perm Grd 1865 & the malicious Damage And 1865
shall suffer death as a
felon
2 stages an emissaged.
affenues
mated
by
He Emergency Innerpal Regs which will in
He first instance be punishable with imprnment for life on the
penalty
the situatia deteriorates the same offences will be made
y+ If the
punishable with death by Punchment) Rego
+
fresh ect of Emergency (Capital
there will be select to approval by the Leg 6o.
t lists of penalters under they offences against the lessons Ord 1885-
(4) Matisson, Ramage frd 1865
- given in and B2 to (4) [F/M.]
HPHall,
20/6.
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İ
t..
INWARD TELEGRAM.
TO THE SECRETARY OF STATE FOR THE COLONIES.
Gode"
FROM FEDERATION OF MALAYA (81r H. Gurney)
D. 5th May, 1950
R. 5th
14.30 hrs.
No. 413 Confidential
Addressed to 5. of 8.
Repeated to Commissioner-General No. 153
"t Governor Singapore by bag
*
My telegram No. 386.
Following is text of new Regulation:-
"(1) Any person who demands collects or receives any supplies from any
other person in circumstances which satisfy the Court that he intends to
or is about to act, or has recently acted, in a manner prejudicial to
public safety or maintenance of publio order, or that the supplies so
demanded, collected or received are intended for the use of any person
intending or is about so to act, or has recently so acted, shell be
guilty of an offence against these Regulations and shall on conviction
be punished with death.
(2) For the purpose of this Regulation "supplies" include money, food,
drink, clothing, rubber, tin or other valuable commodities, any medicine
or drug or other medical supplies and any material or instrument or part
thereof for printing, type- writing or duplicating words or objects in
visible form".
2. It is also proposed to extend the present definition of #harbours"
in Regulation No. 6 A. to include the supplying of valuable dammodities,
medicines etc. and printing and duplicating materials ind equipment, The
existing penalty in this case (imprisonment for not exceeding ten years)
will of course be left unchanged.
J
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NOTES OF THE MEETING WITH THE GOVERNOR
OF HONG KONG HELD AT 2.30 p.m.
ON 28th JUNE, 1950.
PRESENT:
Sir Alexander Grantham (Governor of Hong Kong)
Mr. Paskin
MI.
Sidebothum
Mr. Chinn
Mr. Hall
Mr.Gidden
Mr. Fairclough
1. Whipping of Juvenile offenders.
Mr. Chinn said that the Culonial Office had to defend a state of affairs
in Hong Kong which it appoared was extremely difficult to defend. Tho
number of whippings of juvoniles in Hong Kong was considerably more than
the total for all the rest of the Colonial Empire put together and
questions were liable to be asked in the House and later, when the
statistics were available to them, in the United Nctions.
The figures gave a false impression that Hong Kong had a very bad
juvenile delinquency problem. This was not in fact the case - 80% of the
whippings were for offonces in connection with street hawking and the
culprits were not "bad boys" but were merely earning their living in the
traditional way and in the only way they knew. Mr. Chinn however
appreciated the reason for the legislation having seen the overcrowded
state of the streets of Hong Kong.
In the
The matter had been considered by the Treatment of offenders
Sub-Committee of the Social Welfare Advisory Committee and attempts mado
to find some alternative to whipping juvenile street hawkers. ond the
Sub-Committee had made the negative recommendation that the punishment
of such hawkers should be suspended for six months and an effort made to
see if the streets could not be kept at least us clear as at prosent by
the polico moving hawkers on.
The Governor pointed out that if this word attempted and failed to keep
the streets tolerably clear. and Hong Kong were committed not to punish
the hawkers for six months an additional burden would be placed on the
already over-burdened police force. Ho agreed howover that the
suggestion was worth considering and after further discussion in which
the practico adopted in Jerusalem under similar circumstances was
mentionod it was AGREED that the Governor would write to Mr. Nicoll on
the matter and also inform him that a despatch was to bo expocted from
the Secretary of State suggesting that the experiment of suspending
punishment for hawkers for six months should be tried.
/2.
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X
2.
Emergency Regul-tions in Connection with the
Possession end use of rms.
1
Briefly the Governor's sug ostions were that
roviding
Regulations should be introduced
(i)
(ii)
(iii)
the death penalty for possession of offensive
wespons (such as gronados, bombs etc.) end for the use of Ims
flogging for the possosein of arms
no prosecutions under (i) and (ii)
without the consent of the ..ttorney Gener 1
Death Penalty.
Mr. Paskin said that the Secretary of State would require very cogent
reasons to justify the introduction of a mandatory death penalty to
which he had a reed, with very great reluctance, in the case of Singapo
e.
ப
In that connection he had raised the question whether the death penalty
w as of any use unless the culprits could be apprehended, whether one
effect of its introduction might not be to make culprits even more
No comments yet.
Private notes are available after approval.