(12) Legal Notice 109/67
(Emergency (Public)
Health and Urban Services Ordinance) (Amendment) Regulations)
(13) Legal Notice 143/67
(Emergency (Fireworks) Regulations 1967)
Designed to strengthen the law to deal with the offence of intimidation.
Empower the Governor to declare build- ings or areas to be "closed
areas" thereby prohibiting access by unauthorised persons.
Provide for the disposal of human remains.
Prohibits the unauthorised possession of fireworks.
These Regulations have been repealed and replaced by similar provisions
in sections 27 and 28 of the Public Order Ordinance, 1967.
These Regulations have been repealed and incorporated into the Public
Order Ordinance, 1967.
These Regulations will be repealed as soon as their provisions have been
incorpora- ted in the Public Health and Urban Services Ordinance. An
amending Bill for this purpose was introduced into the Hong Kong
Legislative Council in January, 1969.
These regulations have been repealed but the control over the possession
of fireworks has been continued by an amendment to the Dangerous Goods
(General) Regulations with effect from 1 January, 1969.
NOTE: The above comprises all that emergency legislation enacted in 1967
which it is proposed to embody in
the permanent law. The only legislation in this category which otherwise
remains in force consists of E(P) Regulations 29-31 (powers to arrest
and detain) and the Committee of Review Rules, all of which are required
so long as persons remain in detention. It is not intended to embody any
of this legislation in permanent legislation.
T
7. Cruchley
ብ.
Reference
18
mmute below, with the tables attached,
5
shombod be grateful y
You worked
look
alm
N. Gammara's
17)
and
16
mmute of
particularly X in
Sur A. Galsworthy's
The 17" March
para 4.
2. Before putting there ppt. up
S
Should like advice in respect of
in respect of the items
in the tables noted below
world be or are
They say ((s) unusual
As to whether
unique features of
permanent legislation (British)
(by open to objection
Lu
principle
S
as part of the permanent law
am satisfied that in every
on a permanent basis
for there powers h
ん
The needf
Care
can be justipend in the
Special circumstances of Hong Kong.
The items are:-
Table A
-
I roms I and I
Table B
Items 2,
"','
12
13.
5
6-7
3. You may
the
aware
that the
remammą
items in
Table B are
The
Subject of legulation which no under
separate examination,
on which Sur A
Grattan-Bellew has been adoring.
Items I and 9 are Bathily incorporated in
і
I
The Commãe Procedure (Amendment) (No.2)
Ordmanu,
1968
comes from dem ce
which The Governor in
вест
being asked to amend.
Items 3,18 and to already form part of
The Public Order Ordinance,
1967;
cartam
are being
stikl
under
underwrable features of this Ordinance
remedied by a
draft- Bill which i Consideration with the Governor.
w.s. Carter
24/4/69
!
ļ
I
7
My.
Carter
Hong Kong Dept.
K 246
Reference.
Manute of 24/4/69
119
The following are my comments on the ito s mentioned in your
minute.
Table A.
Item (1), This regulation provides that any person who
posts or distributes any placard, circular or other document
containing any incitement to violence or counselling disobedience
to the law or to any lawful order or likely to lead to any
broach of the peace shall bo guilty of an offence. I do not
know of any United Kingdom statutory provision on similar lines.
Clearly the incitement to violence would seem to be an incitement
to commit a crime and it is an offence at common law to incito a
person to commit a crime. The offence may be com itted at
com on law by publishing the incitement in a newspaper
addrossed to the public in general. It sooms also clear that
a document which is likely to lead to any bro ch of the peace
can reasonably form the basis of a crime. It is not so clour
whether a document counselling disobedience to the law or to any
lawful ordor would be a crime at common law. It seems to me
that in so far as the suggested Hong Kong legislation is
restricted to incitement to violence and, secondly,
to a document likely t lead to a breach of the peace, ΠΟ
reasonable objection would seem to exist.
Item (2). This deals with regulations 50 and 51. In
each regulation the powers which it confers may be exercised if it
appears to the Governor to be necessary or expedient in the
public interest to give the directions mentioned in the
regulation. Thus regulation 50 provides that the Governor may
give directions as respects any particular ship or aircraft etc. that no
such ship or aircraft should enter or leave the harbour except with
permission granted by him or such other person as may be specified in
the directions. I do not know of any statutory
/ precedent
procedent in U.K. legislation in cases where there is no question
of a state of emergency.
Of course in the U.. there are
statutory pow rs to control the entry and departure of ships and
aircraft, but those powers of control rust won factors relating
to safety, etc. and not upon circumstances which are dependent on
the view of an individual that the rostriction is necessary or
expedient in the public interest. I do not think therefore that
wo are likely to find any comparablo United Kingdon legislation.
0 he question of whether, despite this, Hong Kong should
nevertheless proceed to enact comparable legislation, it seems to
mo that a distinction should be drawn betw en two sets of
circumstances.
The first is statutory provision which restricts
or prohibits the entry of ships or aircraft into Hong Kong, and
makes it an offence if a person contravenes the prohibition.
Secondly provisions which confer powers to detain vessels,
Roof board
aircraft and vehicles and persons on board, of those, in particular
I think the Hong Kong Government
the power to detain such persons.
could say reasonably that legislation on the lines of regulation 50
is not objectionable. I think however it would be more difficult
to defend permanent legislation on the lines of regulation 51.
A compromise solution might be legislation to the effect that if a
ship or aircraft entered contrary to the first group of
restrictions (regulation 50) the ship or aircraft could be
arrested, as also any persons on that ship or aircraft, and be
sent out of Hong Kong and in the case of persons, deported from
Hong Kong. The provisions in the existing regulation 51 are
escentially of an emergency nature.
Table B.
Item (2), I do not know of any comparable provision in
United Fngdom law. In this ou try a police officer has power
to question a person to ascertain his name and address if that
information is required by the police officer for the provention
or the detection of crime, Regulation 96, which is the provision)
concerned in this case, requires a person to disclose his correct
name
Reference...
name and ad ress etc., when called upon to do so by, inter alia,
a police offic" acting in the course of his duty.
goes too fare for permanent legislation
I think it
Iten (5)! I would seo no legal objection to permanent
statutory provision on the lines of regulation 119 C.
Items (6) and (7). I think it would be reasonable for
there to be permanent legislation making it an offence for a
person without lawful authority or reasonable excuse to have
in his possession any simulated bomb.
Item (11). The rugulations to which this item refers
empower the Governor to declare buildings or areas to be
"closed arcas" thereby prohibiting acc ss by unauthorised
persons. I do not think that permanent statutory provision
to that effect would be objectionable if it was based on
appropriate purposes, such as, the control of buildings or
aroas in the occupation of Her Majesty's Forces. Another
ground which would be reasonable for the conferment of such power
is if the area is enclosed for the purpose of preventing or
detecting crime.
Item (12).
being made.
I see no legal objection to permanent provision
Item (13).
From the point of view of human rights, I do
not see how permanent legislation controlling the possession
of fireworks can reasonably be said to be objectionable from
the legal anglo.
& H.
Bruchley
(1. H. Cruchley)
28 April 1969
Room 44/4, Downing Strest (cst),
Main B, Ext. 1201
Reference.
(20
Mr. Cruchley.
World
you plse look
and let
at the draft submunion below
it does justice to
know whether
your advice
recorded
mi your
imminte
28th April.
the Easter
Thank
you.
te
advice
my
h.5. Gork
ск
12/5/69
It does justice
R. H. Cruckley
14/5/69
Rigs
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Plse face the cubmersion.
14/5-
Sir A. {alsworthy
Mr. Moreton
21
@
Flage
~A & B
(2)6
Flag C
16
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21/E
Flags D&E
171e
-
Review of Emergency Legislation: Hong Kong
The Governor has
A great deal of emergency legislation introduced in Hong Kong in
1967 was discontinued in the course of 1968. forwarded for information
(in two communications) the results of his continuing review of the
remaining emergency legislation still in force (including legislation
introduced before 1967), together with his plans for dismantling this.
These plans have been examined in consultation with legal advisers, with
particular reference to the points made by Sir Arthur Galsworthy in
paragraph 4 of his minute of 17 March namely, to what extent provisions
now being transferred from emergency to permanent legislation would be
unusual or unique features of permanent legislation in Colonial
territories and whether there is need and justification for their
retention in permanent law. 2. The department's conclusion is that the
Governor's intentions are in general acceptable. We have, however, a few
reservations on some of his proposals: these are being pursued in
separate correspondence on the Public Order (Amendment) Bill, which is
the subject of a separate submission, and the Criminal Procedure
(Amendment) (No.2) Ordinance, 1968. And there is one point arising from
the correspondence on these papers on which it is recommended
A
draft is that Sir Arthur Galsworthy writes to the Governor.
attached.
3. Drawing upon the information provided by the Governor, the two
attached tables have been prepared showing :
(A) the extent to which those Emergency Regulations which have
been in force in Hong Kong since before 1967 have been or are to be
embodied in permanent legislation;
(B)
the extent to which those Emergency Regulations brought into force
during 1967 have been or are to be embodied in permanent legislation.
14.
Flag D..
nily
4. Footnotes to these tables indicate to what extent emergency
legislation not to be embodied in permanent law will remain in force.
The few items concerned fall into two categories :-
(1)
the Emergency (Deportation and Detention) Regulations which have been in
force since 1956 and for which there is a continuing need to deal with
the problem of aliens whose deportation is impracticable;
(ii) Regulations 29-31, conferring powers of detention, and the
ancillary provision of Regulation 37 (Police Supervision Orders) and
Regulation 40 (power to detain persons for enquiry) which will be
discontinued after the release of the remaining detainees (this month)
and the lifting of the Police Supervision Orders imposed on them.
We are moving steadily therefore towards the position of dispensing with
the whole corpus of emergency legislation, with the solitary exception
of the Regulations at (i) above.
5. To turn now to the emergency legislation embodied or to be embodied
in the permanent law and taking Table (A) first, i.e., emergency
legislation in force prior to 1967 :-
Regulation 25 provides that any person who posts or distributes
any placard, circular or other document containing any incitement to
violence or counselling disobedience to the law or to any lawful
order or likely to lead to any breach of the peace shall be guilty
of an offence. No parallel in U.K. or Colonial permanent
legislation is known. It is an offence at common law to incite a person
to commit a crime; it is considered therefore that no reasonable
objection can be raised to a provision relating to placards, etc., which
incite to violence or are likely to lead to a breach of the peace. Legal
advisers feel less sure about the provision extending to placards, etc.,
which counsel disobedience to the law or to any lawful order. But as we
know from experience, attempts to disaffect the police and to persuade
the public to defy
/ the law
For
the law and the authority of the Hong Kong Government were among the
principal communist tactics during confrontation; and they have not
given up auch non-violent means of undermining the authority of the Hong
Kong Government. They could at any time reactivate (and if there is no
deterrent might well do so) a campaign inciting the police to disobey
orders and the public to disregard the law. this reason, I think we must
let the Governor retain on a permanent basis as much of this regulation
as he considers necessary for dealing with the problem of simmering
communist activity, which has been with us since 1950 and is surely
going to remain indefinitely.
Regulations 50 and 51 provide for control of the entry and
departure of ships and aircraft (Regulation 50) and for the detention of
ships, aircraft and vehicles and of the persons in them (Regulation 51)
in the public interest. These powers have already
been included in the Public Order Ordinance of 1967 (in Sections 34 and
35) and there has been no public criticism, e.g. by "Justice", of the
relevant provisions.
In UK legislation powers to control the entry and departure of ships,
etc., rest on factors relating to safety, etc.; there is no general
power to act "in the public interest". However, in the view of legal
advisers, Hong Kong could reasonably say that the wider powers are not
objectionable.
Legal advisers consider that permanent legislation conferring powers of
detention over ships, aircraft and their occupants would be more
difficult to defend and have suggested that the powers should be
confined to those of arrest and deportation in circumstances where the
restrictions provided for in Regulation 50 (and now in Section 34 of the
Public Order Ordinance) have been contravened.
Emergency Regulations 50 and 51 have been in force since 1950 and 1958
respectively. In my view there is ample justification, in the reasons
for their introduction and the history of their use, for their
continuance indefinitely as part of the permanent legislation.
Regulation 50 was introduced to deal with the problem of C.P.G. and
Nationalist military aircraft (particularly the latter) landing at Hong
Kong in a deliberately provocative and compromising fashion.
In its
In its original form it contained the power to detain ships or aircraft,
but not the power to detain persons therein.
There have been several instances of foreign military aircraft
landing in Hong Kong without permission. In one case in 1956 a Chinese
Nationalist Sabre jet fighter landed at Kai Tak; there was a strong
C.P.G. reaction. On that occasion doubt was expressed
in
in the Colonial Office whether the Governor had power under emergency
regulations as they then stood to detain the aircraft indefinitely and
it was thought that special legislation in Hong Kong might be necessary
to put the legal position beyond question; any event the Governor had no
power at that time to detain the pilot. We told the Governor in March
1956 that he would be addressed separately on the question of taking
powers to facilitate in future the detention of crews of aircraft and
ships as well as the vessels
themselves. In July 1956 the Governor was asked to consider making
a comprehensive regulation covering the detention of aircraft, vessels,
crews and passengers whenever it appeared to him "to be necessary or
expedient in the public interest" to do so. was asked at the same time
to consult the Secretary of State before
making use of these powers. Regulation 51 was accordingly made.
In 1958 a Chinese Nationalist bomber landed at Kai Tak without
warning claiming engine trouble. As a result of this case the
Governor stated that he was experiencing considerable difficulty in
using his powers of detention because of the need for prior consultation
with the Secretary of State. He accordingly proposed that he should be
permitted to exercise those powers first and
inform the Secretary of State immediately that he had done so. This
was agreed.
He
In view of this history it would be difficult for us to argue that the
Governor does not need to retain executive powers of detention in this
field. Clearly there are circumstances in which the substitution of a
power of arrest might import an unacceptable element of delay regarding
the action that needed to be taken.
I consider that these powers would be defensible if challenged and that
we should accept their transference to permanent legislation,
/ 6.
J
Flag E.
I
12/2
6.
Turning next to Table (B) i.e. emergency legislation introduced in
1967. Items (1) and (9), involving amendments to the Criminal Procedure
Ordinance, are the subject of separate correspondence with the Governor;
our legal advisers consider that these powers should not be conferred on
the courts on a standing basis but could be included in permanent
legislation on the basis that the relevant provisions may be brought
into force by order of the Governor at the request of the Chief Justice
for such periods as the powers may be required.
7.
Items (3), (4), (8) and (10) are embodied, or are to be embodied, in
the Public Order Ordinance; this has been the subject of a separate
submission. Points that arise on this Ordinance are the subject of
separate correspondence with the Governor.
8. Of the remaining items no objection is seen in the case of numbers
(5), (6), (7), (12) or (13). The following two items have, however, been
criticised by legal advisers :-
Item (2), Regulation 96: no objection is seen to conferring on
military officers "acting in the course of duty" powers to require
people to identify themselves; the circumstances in which a military
officer's duty would involve him in checking a civilian's credentials
are strictly limited and defined, But legal advisers see objection in
the application of the words "acting in the course of duty" to police
officers. It confers a wider power than is normal, e.g. in this country
where it is confined to the performance of the duty to prevent and
detect crime. In discussion with the
legal adviser concerned (Mr. Cruchley) he has made the point that the
police should be required to justify the use of this power in a specific
context and should not have carte blanche to stop members of the public
and require them to identify themselves on the vague ground that they
were pursuing "their duty". I suggest these considerations might be put
to the Governor who should be asked whether there are any special
circumstances that might be held to justify the wider power; he should
also be asked to let us have a sight of the proposed legislation in
draft.
/ Item (11)
these
Item (11), Emergency (Closed Area) Regulations: regulations form
part of the Public Order Ordinance. On a point relating to the giving of
notice of withdrawal of permits to enter closed areas, the provisions in
the Ordinance were criticised by "Justice" and this point has been taken
up in the correspondence referred to in paragraphs 2 and 7 above.
"Justice" did not, however, question the permanent need for these
powers. In fact their memorandum states: "We realise the desirability of
the Governor's having a free hand
Mr. Cruchley has
suggested that permanent powers should be limited to closing buildings
or areas for specific and appropriate purposes, e.g. military
occupation. But the difficulty is that these powers are principally
required to maintain the closed area along the frontier; this would not
be covered by such a purpose as military occupation (military forces are
not always stationed in the closed frontier area which is normally under
police control) and I am very doubtful of the political wisdom of openly
specifying that the power could be used to close frontier areas in view
of the formal attitude China always takes up on the
right of unrestricted access to Hong Kong. In all the circumstances (and
since the powers are accepted as necessary by sections in Hong Kong that
are usually critical of this type of legislation, e.g. "Justice") I
consider that we should not now ask the Governor to
restrict the exercise of these powers on the lines suggested.
9. My conclusion is that we should raise with the Governor only the
point on Item (2) which is discussed in paragraph 8 above.
b. 5. Carter ак
(W. S. Carter)
Hong Kong Department
15 May, 1969
Tohorch
1615.
Registry
No. HKK 14/20
SECURITY CLASSIFICATION
DRAFT
LETTER
Type 1 +
From
To:-
21
Top Secret.
Secret.
Confidential Restricted. Unclassified.
PRIVACY MARKING
In Confidence
Flag B.
His Excellency
Sir David Trench, GCMG., MC.,
Government House,
HONG KONG.
Sir A. Galsworthy
Telephone No. & Ext.
Department
Thank you for your letter of 20 February about emergency legislation. We
were very glad to have this further review dealing with the Emergency
(Principal) Regulations in force before 1967.
As we see it from here, when the steps to repeal or discontinue
emergency legislation (as outlined in your letter and in your Saving
Despatch No.70) have all been taken the only emergency legislation still
in force will be the Emergency (Deportation and Detention) Regulations
together with the related Advisory Tribunal rules made thereunder. We
appreciate, of course, that these confer powers which you will continue
to need.
We have, as you know, raised some points on certain of the items of
emergency legislation embodied (or to be embodied) in permanent
legislation, in correspondence on the Public Order (Amendment) Bill and
the Criminal Procedure (Amendment) (No.2) Ordinance 1968. There is one
additional point we would wish to make on the proposals set out in your
Saving Despatch No.70. This concerns Regulation 96 of the Principal
Emergency Regulations requiring members of the public to identify
themselves to police officers and military
personnel.
the
No objection is seen to conferring on military officers "acting in the
course of duty" permanent powers to require people to identify
themselves; circumstances in which a military officer's duty would
involve him in checking a civilian's credentials are strictly limited
and defined. We are advised, however, that for the purposes of permanent
legislation the application to police officers of the words "acting in
the course of his duty" goes too far.
/ It confers
(118281) Dd. 391599 1,500 2/69 Hw.
NOTHING TO BE WRITTEN IN THIS MARGIN
It confers a much wider power than is normal, e.g. in this country where
it is confined to the
performance of a police officer's duty to prevent
and detect crime. We do not know, of course, what your precise
intentions are; but if there are special circumstances in Hong Kong that
in your view justify the conferment in permanent legislation of a wider
power on police officers we should be glad to know what these are. There
would be advantage,
I feel sure, in our seeing your proposed legislation
in draft.
NOTHING TO BE WRITTEN IN THIS MARGIN
22
Mr. Moreton
21
Review of Emergency Legislation: Hong Kong
The attached minute by Mr. Carter, dated May 15th, sets out the position
very clearly; and I am grateful to him and the Department, and to Mr.
Cruchley, for the work they have all put into this question.
2.
I have studied the minute with care; and given the special circumstances
of Hong Kong I too support all Mr. Carter's recommendations. But I feel
some hesitation in approving this on my own authority without any
reference to Ministers since, while I am convinced that what Mr. Carter
proposes is right, if there is any criticism of the embodiment of these
features in the Colony's permanent legislation it is probable that such
criticism would be made in Parliament, and I think Ministers ought
therefore to have an opportunity of seeing in advance what it is that we
and Hong Kong
propose.
3. As Lord Shepherd is so intimately involved in the affairs of Hong
Kong and has taken a keen personal interest in the past in the question
of emergency powers in the Colony I think it most desirable that he
personally should see these papers. I suggest therefore that you should
take this submission with you to Hong Kong at the end of this week, and
show it to Lord Shepherd; and subject to his endorsement of our
proposals I suggest you should use the draft letter to the Governor and
his advisers as a brief for the talks you will be having with them,
On the substance of the point made in the draft letter, I take it that
the Legal Advisers' point would be met if, in the case of police
officers, some such phrase were used as "acting in the course of his
duty to prevent and detect crime"? If that is all that is involved I
don't suppose Hong Kong would find this too restrictive for their
purposes.
ANG.
(A.N. Galsworthy)
27th May, 1969
مرح
DIO
HAL
7th June 1969
Original a HKK 1/19
I shall have to follow up most of the points which arose here after my
return, but in the meantime here is some advance information on one or
two subjects.
Suergency Regulations (Brief No. 7) I have discussed with the Attorney
General the point made in the draft letter from Arthur Galsworthy to the
Governor about the Principal Emergency Regulation No. 96. He accepts the
proposed change in the definition of the powers conferred on police
officers to require people to identify themselves. As Lord Shepherd had
no points to raise on the brief I think that the draft letter could now
issue, provided the last paragraph is amended to imply con- firmation of
this discussion.
Representations from the local bar
discussed with the Governor, the Chief Justice and the Attorney General
No comments yet.
Private notes are available after approval.