(b) Rearend b.s to
Category A or B meeting: crafting cannot commence
higher privity tham C.
it acquires
Nited-gard to ADS(1)
As (c)..
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A.C. S(C) 5.10.68
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93
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2.
M.145
AS33 That Noted. Thank you.
M.142-144 and (217) f.y.i.
I understand there is to be a meeting of the Drafting Committee in
approximately 2 weeks. There is no need for you to see': up-grading of
this from category 'C' as I have spoken to the SG who regards this as an
important but not time consuming matter and work on it can be completed
without up-grading to a higher category.
3. You may be interested to know that I gather that the categories of
the draft legislation priority list are academic where HE
has directed that action should proceed or the AG or 33 are particularly
keen to do so.
217
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0000820
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File No. CR 6/3231/597
0000820 G.F. 82
File No.
FLOAT
Page..
Enclosures 184-194,196,198,201,203, 204,
208-210,212,220,225,227,231,233,238, have been removed to CR
2/6/3231/59.
Enclosures 195,197, 199, 200, 202, 207,211, have been removed to CR
3/6/3231/59 Enclosures 205,206, have been removed to CR 4/6/3231/59
Enclosures 213-217,222-224,237,239,240, have been removed to CR
5/6/3231/59
Enclosures 218,219,221,226,228-230,232,234-236, have been removed to
CR 6/6/3231/59
1
ENCLOSURE NUMBER: 82
HAS BEEN REMOVED TO : COUNCILS DIVISION
AND IS NOW ENCLOSURE NUMBER :
IN FILE NUMBER : COU CR 5/1136/60
18
PROFORMA A
D/s
(83)
CR 6/3231/59 II
A15013
ADS
(83)
NOTES ON EMERGENCY (PRINCIPAL) REGULATIONS
Under Section 2(i) of Cap. 241, the Emergency Regulations
Ordinance "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"
2.
Under Section 2(iii) of the same Ordinance "any Regulations
made under the provisions of this section shall continue in force
until repealed by order of the Governor in Council".
3.
Section 2(iv) of the same Ordinance states that "if any such
Emergency Regulation contains anything inconsistent with any other rule
or order, then the Emergency Regulations have the pre-emminence".
4.
The Emergency (Principal) Regulations of 1949 are an extremely
comprehensive collection covering all aspects of any emergency.
5.
By Regulation 137 of the Emergency (Principal) Regulations of
1949 the Governor has power to bring into operation all or any of the
Emergency Regulations in part or in whole by order.
6.
Many of the Regulations have been brought into operation in the
may described. At Appendix I is a list of all the Emergency (Principal)
operation Regulations now in fores At Appendix 2 are the comments of the
Attorney General who has suggested consulting the departments concerned
to discover whether, in fact, we need to continue many of these orders
in operation.
7.
(1)
It may be helpful to summarise the history of these Regulations:-
A set of Emergency Regulations were "prepared for the purposes
of the internal security scheme under preparation in 1947. (The
quotation is from a note by the Attorney General in (1) of Part I.)
These Regulations were referred in a draft to Ex. Co. and to Heads of
Departments but were not enacted because of the military threat to the
Colony in 1949 and the sudden increase of crimes of violence caused by
the flood of refugees with easy access to arms and explosives. The
Attorney General in the same note puts it that "preparation was
necessary against the possibility of more serious emergency than
internal disturbance".
mere
-
- 2 ·
(3) in D/ISS/EMER
(ii)
In 1949 the Emergency Regulations Ordinance became law and
the Emergency Regulations themselves were promulgated.
(iii)
The Secretary of State, on receipt of the Emergency
Regulations Ordinance, immediately commented in a comprehensive
savingram at (2) of Part II. He appreciated that by a directive from
the Colonial Office it had been left open to Colonial Governments to
rely on local emergency legislation if it was considered preferable to
do so, and that it would have been impolitic at that stage to repeal
it and to proceed on the basis of the Emergency Powers Order in
Council of 1939. The despatch makes it plain that S. of S. thought
"that for many reasons it would have been preferable for Hong Kong to
rely on the Order in Council". In paragraph 3 of the same letter,
S. of S. appreciates "that a state of emergency did in fact exist in
Hong Kong though not formally proclaimed as would be done under the
Order in Council procedure: and that it was clearly undesirable at
that juncture for any action to be taken which might be interpreted
as indicating a lack of determination on the part of the Hong Kong
Government to maintain and preserve law and order". The S. of S.
criticised the absence of any provision in the Ordinance for declaring
or terminating a state of emergency and suggested that there should be a
provision in the Regulations themselves that (unless previously re-
pealed) the Regulations should continue in force for a limited period
only with power to extend them for further periods if the situation so
required. The Secretary of State was particularyconcerned over the
provisions in the Ordinance empowering the Governor to make Regulations
prescribing any punishment including the death penalty, not only for
offendes against the Regulations, but also for offences under ordinary
(6)(7)(8)(12) in
Part II
law.
(iv)
The early papers in Part II of the file set out the battle
before His Majesty was eventually not advised to exercise his power
of disallowance in respect of the Ordinance. This had taken six
months hard bargaining, most of which was concerned with Regulation
116 which prescribed the death penalty for carrying arms.
-
3
-
(v)
Discussion continued on Regulation 116 in particular. (21)
in Part II is a lengthy exposition of the views of Government on the
imposition of the death penalty for carrying arms. It is of interest
because it is easy now to forget that the feelings and anxieties of
the general public had so influenced the Unofficial Members that they
suggested going even further than Government proposed in Regulation 116
and 116A. They suggested that the time might have come when mere pos-
session of a fire arm merited the death penalty.
(vi)
Within the next eighteen months, a large number of the
Regulations were actually brought into operation including 116 and 116A.
At (48) which takes us to 1953, we informed the S. ofS. that "the
emergency legislation of Hong Kong does not spring from the 1939
Emergency Powers Order in Council and differs from emergency legislation
in England and other parts of the Commonwealth in that its introduction
does not depend on a state of emergency being proclaimed by the
Governor. Emergency regulations do not come into force or terminate
"en bloc", but can be brought into force or terminated separately.
Thus a number are already in force and are likely to remain in force in
the foreseeable future, while others are unlikely to be brought into
force unless the situation deteriorates". By "into force" is meant
"into operation".
(vii) There is even an instance at (51) of S. of S. more or less
directing us to make an Emergency Regulation (50)A and bring it into
operation. This was to cover in more explicit terms the detention
of foreign aircraft.
8.
It will be seen from the summary above that we had to struggle
hard to win the support of the Secretary of State for this emergency
legislation. Having obtained this support, the retention partly
"on ice" and partly in operation of a large body of Emergency
Regulations has excited little comment. The repeal of Regulation 116
and 116A in 1952 has left the Regulations much less objectionable to
opponents of capital punishment and seems to have had the effect of
making it unnecessary for Government regularly to review the justific-
ation for keeping this legislation in operation.
t
4.
No
9.
Now that a fresh criticism has come, it is perhaps time to
re-assess the need for those of the Regulations which have contimed
10.
in operation. A few are undoubtedly still required but it seems that
many of them can be returned to "ice" without any substantial risk to
law and order. It is true that an emergency could occur at any time
and at short notice, but day to day conditions of public order do not
warrant the continuance in operation of the majority of the Regulations.
Whatever answer is given to 3. of S. arising from the report
in "Justice", I suggest that we should ask Hon. A.G. to examine in
detail the case for continuing each Regulation in operation with
particular reference to the extent to which these Regulations are or
can be covered by the ordinary law. I hesitate to suggest e formal
Working Party but suggest instead that the quickest way of dealing
with this problem would be for Hon. A.G. to delegate a Crown Counsel
to discuss the list with me and with C.P.'s representative (probably
Mr. Dawson). We could then put up more detailed suggestions. There
are mercifully few interested departments.
11.
I cannot help feeling that we shall have to consider drawing
closer to the spirit of S. of S.'s despatch which I have quoted and
underlined in paragraph 7(iii) above. It is difficult to plead the
continuance of a de facto emergency in Hong Kong today. On the other
hand the Colony's vulnerability to open attack and politically in-
spired sedition is argument enough for keeping the Regulations in
force but not in operation.
12.
There is no provision in the Regulations for taking a
regulation out of operation and returning it to "ice". The Goverдor,
it is true, has the power to "amend or suspend" his orders under the
Interpretation Ordinance (section 116) but this is not really adequate.
It needs only another subsection to 137 of the Emergency Regulations
to specify that "the Governor may remove from operation any
regulation(s) or part thereof" to make these Regulations self-con-
tained.
!
Regulation
2.
3.
4.
21.
25.
26.
34.
36.
37.
40.
50.
"Operation
EMERGENCY REGULATIONS IN
Description
This contains the interpretation of terms and expressions used in the
Regulations.
Definition of Competent Authority.
Definition of Authorised Officers.
The unlawful possession of apparatus used or intended to be used for
wireless transmission.
An offence to post or distribute placards, circulars, etc., containing
any enticement to violence.
Prohibition of publications containing enticement to violence etc.
Power of the C.P. to declare an area to be a special area for the
purpose of preventing malicious injury to person or property.
Power of the Colonial Secretary to direct by warrant that any person in
police custody may be detained in or transferred to or from any prison
or police station or any similar place authorised by him until dealt
with in due course of law.
Power of C.P. or any person authorised by him to make restriction orders
in relation to any person requiring, inter-alia, such person's exclusion
from any area in the Colony as may be specified: the notification of
such persons movements, prohibition or restriction of such person's use
of any specified articles, restrictions upon such person with regard to
his employment or business.
The power of senior Police Officers to order detention of a person for
more than twenty four hours or forty eight hours if enquiries cannot be
completed within those periods.
Power of the Governor to forbid entry or exit of any ship or aircraft to
or from the harbour and territorial waters of the Colony.
Appendin I
Comment
Regulation
50A.
51.
57.
58.
65.
67.
67A.
81.
83.
84.
98.
99.
109.
2
Description
D
The power of the Governor to detain vessels, aircraft and vehicles and
persons on board.
Power of the Governor to prohibit by order the supply of fuel, victuals
and necessaries and the repair of ships and aircraft.
Power of the Governor to prohibit or restrict the use of territorial or
Colonial waters.
Power of C.P. to control all roads and vehicular travel and temporarily
to control entry into or movement within any part of territorial or
Colonial waters.
Power of Police Officer or uniformed member of H.M. Services or any
local Defence Forces to stop and search vehicles including road
vehicles, trains and trams.
Power of the Competent Authority to requisition property other than
land.
Power of the C.P. to commandeer transport and any property other than
land in the interest of internal security or for the preservation of
public order and safety.
The application of the Compensation (Defence) Regulations, 1940.
The power of the Governor or other Competent Authority making an order
or rule, to publish it in such manner as he thinks necessary. This
Regulation also contains a definition of
the service of notice.
Power of an Authorised Officer to affix notices.
The right to photograph, measure, examine, thumbprint, etc., any person
convicted or suspected of an offence against the Emergency Regulations.
Power of an Authorised Officer to enter and to search premises, places,
vehicles, vessels or aircraft.
Makes it an offence for any person to injure or prevent (or attempt to
do so) the proper use or working of any public utility, railway bridge,
road, etc.
Comment
Regulation
117.
118.
119.
120.
124.
125.
126.
131.
132.
133.
134.
135.
136.
3
Description
Comment
The offence of carrying or possessing any offensive weapon or the like
is liable to imprisonment for ten years.
The offence of consorting with a person carrying or possessing arms,
ammunition or explosive substance.
The offence of failing to report that another person is carrying or
possesses arms, ammunition or explosives.
The offence of consorting with or harbouring any other person whom it is
reasonable to believe to be acting against the public interest or who is
wearing an unauthorised uniform.
Certain offences under the Larceny Ordinance and the Malicious Damage
Ordinance, if committed in a security area or a damaged evacuated area,
punishable by life imprisonment.
The offence of interfering with or damaging communications, etc.
The power of the Governor in Council to proscribe by order any
organisation calculated to spread sedition, strikes or disorder.
Offences by corporations and by directors of corporations.
The improper amendment or use of licences and permits is an offence.
An attempt to commit an offence under these Regulations may be dealt
with and punished in like manner as if the offence had been committed.
There is a proviso to reduce the death penalty for a termof life
imprisonment.
Provides that any person may be tried and punished for any offence other
than in accordance with these Regulations.
The obtaining possession is the same as possession where possession is
an offence.
Provides that, subject to special provisions, a person found guilty
under these Regulations shall a) on some re-conviction be liable to a
fine of $5,000 and to imprisonment for two years or b) on conviction of
indictment be liable to a fine of $10,000 and to imprisonment of 5
years. This Regulation also covers forfeiture to the Crown of any
article concerned in such offence.
0
Regulation in force.( 83
3
inch LM 35/62
Comment
Appendix
Item
Title
Emergency (Principle) Regu- lations, 1949.
Regulation 21. Unlawful possession of apparatus used or intended to be
used for wireless transmission.
Regulation 25. Prohibition of the posting or distri- bution of
documents, etc. inciting to violence or counselling disobedience of the
law.
Regulation 26. Power to prohibit printing, sale, etc. of document, etc.,
of the kind specified in regulation
25.
Regulation 34. Power of the Commissioner of Police to declare an area to
be a special area for the purpose of preventing malicious injury to
person or property.
Regulation 36.
Power of the Colonial Secretary to direct by warrant that any person in
police custody (whether under The Emergency (Principal) Regulations or
otherwise) to be detained in or transferred to or from any prison or
police station or any similar place authorised by him, until dealt with
in due course of law.
Regulation 37. Power of the Commissioner of Police to make restriction
orders, that is to say, orders prohibiting a person from being in a
specified area of the Colony, requiring a person to notify the
Commissioner of his movements, prohibiting a person from possessing or
using specified articles or imposing restrictions upon a person in
respect of his employment or business or in respect of his a8- sociation
with other persons or his activities in relation to the dissemination of
news.
Regulation 50. Power of the Governor to give direc- tions prohibiting a
ship or aircraft from entering or leaving the Colony or requiring a ship
or aircraft to leave the Colony within a specified time.
Regulation 504. Power of the Governor to order deten-
Recommend C.P. and P.M.G. be consulted on need for this regulation to be
in force.
C.P. and S.C.A. to be consulted on need for this regulation to be in
force.
Security Areas Bill, 1962 will revoke this regulation.
For consideration of need to be in force.
Recommend C.P. be consulted as to need for this regulation to be in
force.
Retention in force desirable.
'Item.
Title
0
2
Regulation in force.
tion of vessels, aircraft or vehicles or classes thereof.
Regulation 51. Power of the Governor to prohibit a ship or aircraft from
victualling or refuelling or being repaired in the Colony.
Regulation 57. Power of the Governor to prohibit or restrict the use of
Colony waters.
Regulation 58. Power of the Commissioner of Police to close, or restrict
use of, roads, to regulate the transport of any person in a train, tram
or other vehicle and to control move- ment in Colony waters.
Regulation 65. Power of police officer or member of Her Majesty's Forces
to require vehicles to stop, to search them where there is suspected to
be evidence of the commission of an offence under the Regulations and to
seize evidence of the commission of such an offence.
Regulation 67. Power of the competent authority, in the public interest,
to requisition property other than land.
Regulation 67A. Power of the Commissioner of Police, in the public
interest, to commandeer property other than land.
Regulation 109. Persons injuring, or doing anything calcul- ated to
injure or to prevent proper working of, public buildings or utility
opessential services to be guilty of an offence.
Regulation 117. Prohibition of the carrying or possession of an
offensive weapon, other than a firearm, in circumstances indicating that
it has been used or is about to be used.
Regulation 118. Persons prohibited from consorting with, or being in
company of, a person, who, without authority, is carrying or in
possession of arms, ammunition or explosives in( circumstances
indicating that they are about to act, or have recently acted, with such
other person in a manner prejudicial to the public interest.
Comment.
C.P. and D.P.W. to be consulted as to need for this regulation to be in
force.
C.P. to be consulted as to need for this regulation to be in force.
Need for retention in force for consi- deration by Government.
C.P. to be consulted as to need for continuance in force.
Title.
Item.
0
-
3-
Regulation in force.
Regulation 119. Failure to report that another person is carrying or is
in possession of arms, ammunition or explosives without authority to be
an offence.
Regulation 120. Consorting with or harbouring a person about to act or
who has recently acted contrary to the public interest to be an offence.
Regulation 124. Robbery, larceny or malicious damage in a destroyed,
damaged or evacuated closed area or protected area to be punishable with
life imprisonment.
Regulation 125. Interfering with or damaging means of communication or
transport to be an offence.
Regulation 126. Power of the Governor in Council to proscribe
organisations.
Comment.
Government to consider need for continuance in force.
CONFIDENTIAL PERSONAL
84
CR 6/3231/59 II
6th April, 1962.
Further to our conversation earlier this morning re the need to revise
the requirement in op- eration of certain of the Emergency (Principal)
Regulations, I am sending you a copy of some notes I made on this
subject, together with a list of all the Regulations which are now in
operation. When you have had a chance to go through these, I suggest you
let me know and perhaps we could discuss (preferably with Crown Counsel
in attendance) which, if any, of these Regulations can be returned to as
C. J. R. Dawson, Esq.,
(A. J. Shephard)
Senior Superintendent of Police,
Police Headquarters,
Arsenal Street,
HONG KONG.
AJS: jf
CONFIDENTIAŬ
-VUX
C
NFIDENTIAL REUT
1701
6.4.68
OUTWARD
· LETTE
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