CO 1023/219 Hong Kong emergency regulations

RET

HONG KONG & PACIFIC DEPT.

ELEGINS

). 2. 1.52

ENDS

1952-53

PART

FILE NUMBER

FILE TITLE

HKP

FILE NUMBER

185/0

Emergency Regulations

Hung Kung

HKP

488185/01

INDEX HEADINGS

Emergency Regs HONG KONG LEGISLATION

CLOSED

UNTIL

14/11

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JL. 13074/5472. 42,250(11 sorts)8/50. G.

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C.O.R.5.

1984

INWARD TELEGRAM

TO THE SECRETARY OF STATE FOR THE COLONIES

COPY FOR REGISTRATION

FROM HONG KONG (Sir A. Grantham)

Ama(2).

108

Ond No 5 of 22

Simplex

D. 7th January, 1952. R. 7th

曾 09.45 hrs.

JAN

XII

PRIORITY Secret No.18

Addressed to S. of S.

Emergency Regulations.

1952

III

Upon the trial of an indictment for possession of hand Grenades, contrary to Section 116A of the Principal (Emergency) Regulations 1949, the following questions were reserved for the opinion of the Full Court-

Crd. 8/1949 ate

copy enclosed?

flagged at (AOA) /14237/15/51.

(enchord.)

(A)

Whether the Emergency Regulations Ordinance is ultra vires and

(B) Whether Regulation 116A of the Emergency

Principal Regulations was ultra vires the enabling Ordinance as it did not expressly state that the Governor in Council was of opinion that there was an emergency.

　　　Although opinion here, which has been confirmed by your legal advisers, is that the Ordinance is perfectly valid it is considered that we must be prepared for an adverse decision by the Full Court. An adverse decision on either point would, of course, affect the validity of all Emergency Regulations and in such event it is proposed, subject to your approval, to validate all such legislation by Special Ordinance. If decision adverse on second point only, the Ordinance could presumably deem that all regulations had contained a recital of emergency, but it is possibly preferable to state that all regulations shall have the same validity as if enacted by the Legislature as Ordinances. See for example Section 3 of Ordinance 2 of 1946. This course would clearly be necessary if there were adverse decision on first point.

3. The necessity of giving retrospective effect to the validity of regulations is clear and is emphasised by the fact that one Chinese has already been hanged for an offence against regulation 116A. Legal advisers suggest, however, that if decision adverse and upheld on appeal to Privy Council the particular indictment should not be proceeded with and that this might be publicly stated. There are other indictments for Robbery and possession of arme against the same accused which could be proceeded with. Other pending proceedings for non capital charges would be expressly validated.

14.

108 A

ENT

It is not considered possible to await Privy Council decision as hiatus would completely upset the machinery of Government, but Government would, of course, appeal to the Privy Council should decision of Full Court be adverse on either point. Argument before Full Court takes place on 16th January. Grateful for early telegraphic reply.

C. )

Mr. Hall 10/1

Mr. Hopkinson 10/1

Draft

TELEGRAM /*

* SAVINGRAM

• The word Priority may be ancored here, if necessary.

Repeated to:-

GOVERNOR,

HONG KONG.

File No.

DEF.89/51/01

106

Sent.

Simplan

1642 hou

hours.

Mr..

Side botham 10

Mr. Paskin.

101

Priority:

Sir

XXIX

　Permt. U.S. of S. Parly. U.S. of S.

S. of S.

Gavenna

trong bóng Hong

(1)

(5) on 14237/15/49

(6)

(7)

RECEIVED

1 1 JAN 1952 In Tel. C.D.

Distribution -

Dekence geog.

(34

To be transmitted:--

PRIORITY

No.

In XXDEXX

KKOPECKUKTKARTENX

Joooeda

KOEKENMEX

XXXXXXX

Cupres

Simplex

Your telegram No. 18.

Emergency Regulations.

Mal...

XXGIZAKI

CORAMENTAX Secret

JIZZEDIK

Question (▲) whether the Emergency Regulations

Ordinance is ultra vires.

Although it is not explained on what grounds the vires of'

Ordinance is being challenged, on assumption that points

involved were similar to those raised in your despatch

No. 94 of 13th May, 1949, my legal advisers confirm

opinion expressed in my predecessor's telegram No. 738 of

1949 and Dale's letter of 16th July 1949 to Griffin that

Ordinance is intra vires.

2. Question (B). My Legal Advisers consider that as

regulations containing regulation 1164 purport to be made

in exercise of powers conferred by Ordinance, it must

surely be assumed, at least until the contrary is shown,

that Governor in Council was satisfied as to existence

the emergency. Liversidge v. Anderson 19427 A.C. 206

Green v. the Secretary of State for Home Affairs (19427 A.C. 284 and Stuart v. Anderson and Morrison 19427

2 A.E.R.665 deal with executive and not Legislative acta

but may assist the Attorney General.

Further action--

W1, 28361/5376 god?7049 Wa & Co, sija

3. In event of Full Court allowing appeal on either

ground it is agreed that validating legislation by

Ordinance would be necessary.

If ground (b) stonesë

/form

form of legislation would father depend on whether

Court's decision was of general application or was

concerned only with case of Emergency Regulations

iky Jammer

Ordinance. If decision was general application it

would probably be desirable to enact a provision of

general application (possibly in Interpretation Ordinance)

dispensing with necessity for recitals in these cases.

4. It is agreed that validating legislation ought

not to deprive a successful appellant of fruits of his

victory.

5. If appeal to Full Court succeeds it would presumably

be desirable to enact validating legislation at once

because of likelihood of further cases arising. Once

invalidating legislation was enacted there would

presumably be no point in proceeding with appeal to

Privy Council.

♥....

SECER.

107

OUTWARD TELEGRAM

FROM THE SECRETARY OF STATE FOR THE COLONIES

TO HONG KONG (Sir A. Grantham)

DEF.89/51/01

Simplex

Sent 11th January, 1952. 16.45 hrs.

105

PRIORITY

SECRET No. 41.

Your telegram No. 18.

Emergency Regulations.

Question (A) whether the Emergency Regulations Ordinance is ultra viree.

Although it is not explained on what grounds the vires of Ordinance is being challenged, on assumption that points involved were similar to those raised in your despatch No. 94 of 13th May, 1949, my legal advisers confirm opinion expressed in my predecessor'a telegram No. 738 of 1949 and Dale's letter of 16th July 1949 to Griffin that Ordinance is intra vires.

　2. Question (B). My Legal Advisers consider that as regulations containing regulation 116A purport to be made in exercise of powers conferred by Ordinance, it must surely ba assumed, at least until the contrary is shown, that Governor in Council was satisfied as to existence of the emergency. Liversidge v. Anderson 19427 A.0. 206, Green v. the Secretary of State for Home Affaire 19427 A.C. 284 and Stuart v. Anderson and Morrison 19427 2 A.E.R. 665 deal with executive and not Legislative acts but may assist the Attorney General.

　3. In event of Full Court allowing appeal on either ground it is agreed that validating legislation by Ordinance would be necessary. If ground (b) succeeded, form of legis- lation would rather depend on whether Court's decision was of general application or was concerned only with case of Emergency Regulations Ordinance. If the former it would probably be desirable to enact a provision of general applica- tion (possibly in Interpretation Ordinance) dispensing with necessity for recitale in theѳе савев.

　4. It is agreed that validating legislation ought not to deprive a successful appellant of fruits of his victory.

5. If appeal to Full Court succeeds it would presumably be desirable to enact validating legislation at once because of likelihood of further cases arising. Once invalidating legis- lation was enacted there would presumably be no point in proceeding with appeal to Privy Council.

Colonial Secretariat file No. 23/5251/50

(16) 74237/5/n

Enclosure No. 1

SECRET

NO: 391

Sir,

Ausa (7).

GOVERNMENT HOUSE, HONG KONG

3.3 S2

59/5/01

875

I have the honour to refer to my Secret savingram No. 160 of the 20th October, 1951, and also to my Secret telegram No. 18 of the 7th January, 1952, on the subject of the Emergency Regulations.

יו.

The Full Court has answered both questions as to ultra vires mentioned in paragraph 1 of my Secret savingram in the negative. I forward herewith two copies of the judgment and a summary of the arguments addressed to the Court by the Law Officers.

5. The trial proceeded and the jury disagreed on the guilt of the accused. My Legal Advisers considered that another jury would almost inevitably also disagree and a nolle prosequí has been entered. The accused was however convicted on another indict- ment for armed robbery and sentenced to eleven years imprisonment.

4. Had the evidence been sufficiently conclusive to im- plicate the accused with the arms in question the case would have been a particularly bad one as the arms, which were in a secret recess in a cupboard in accused's possession, consisted of four grenades and eight automatic pistols with ammunition therefor, all in a service- able condition. There is strong suspicion that these were the weapons used in a series of bank robberies by a gang of which accused was the ringleader.

5. I am aware of your reluctance expressed when the introduction of regulation 116A was first considered to the provision of capital punishment for mere possession of arms but I consider that, subject to certain difficulties of definition, a distinction might well be drawn between cases where the arma in fact found in a person's possession or the joint possession of a number of persons constitute a small arsenal and a serious source of public danger.

6. The necessity to reconsider the terms of regulations 116 and 1161 has also been stressed by my Legal Advisers on another ground which may be shortly stated as follows:-

The effect of sub-section (4) of section 2 of the Emergency Regulations Ordinance is to render it impossible to prosecute under provisions of law which are inconsistent with the provisions of Energency Regulations as such provisions of law so far as they are inconsistent have by virtue of the subsection no effect during the continuance in force of the regulation. Regulation 116 is consistent with section 29 of the Arms and Ammunition Ordinance and it is desired to use section 29 in the vast majority of cases. Moreover it is not desired to commence prosecution under regulation 116A for the mere possession of some of the articles which the regulation now covers.

THE RIGHT HONOURABLE

OLIVER LYTTELTON, D.S.O., M.C., M.P.

SPERIOL CARE

1 9 MAY 1952 SECTIC

13 WAT 1952

But My an und

I have accordingly caused the whole question of appropriate offences and penalties to be re-considered in Execu- tive Council in the light of the above considerations and of the experience gained since regulation 116A has been in force.

I have, with the full concurrence of Executive Council, arrived at the following conclusions:-

.... Pers

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or lay

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wy is !! A(1)?

Enclosure No. 2

120!

indie?

If section 29 of the Arms and Ammunition Ordinance were emended by Emergency Regulations so as to substitute a maximum penalty of life imprisonment for the penalty of ten years therein prescribed and regulation 116 were repealed there would be no inconsistency so far as concerns mere possession of arms. As I have been advised that the removal of this inconsistency is urgent- ly required, Emergency Regulations to this effect have been enacted.

It is most desirable to re-phrase Regulation 116A so as - (1) to confine inconsistency to the narrowest possible sphere and permit of less serious charges being preferred and (2) so as to provide the death penalty for caches of anns. I submit draft regulations for your approval.

You will observe that the mere possession of a grenade will no longer carry the death penalty and that if the instrument carried or the circumstances do not in the case of carriage warrant the death penalty the Attorney General can direct prosecution for possession under other provisions of law. You will also observe that the offence of possession of arms is defined in terms of a serious threat to the lives of members of the community and is therefore distinct from any offence know to the law. It will therefore always be possible for the Attorney General to prefer a less serious charge.

It is appreciated that criticism may be levelled at paragraph (5) of the new regulation 116 on the ground that it is to some extent vague. It is not possible however to define "caches" or "arsenals" in terms of mere numbers or even character and it is submitted that the wording gives the Courts and the public a suffi- ciently clear indication of what is intended, and has the advantage of relating the offence to the concept of public danger. Perhaps your Legal Advisers will be able to make some constructive suggestions for improving the form.

10. On the question of policy at the opening of the Assizes the Acting Attorney General while remarking on the decrease in crimes of violence during the last six months added that a contribution to this decrease had been made by regulation 116A. That is also the opinion of Executive Council. The Chief Justice remarked that he would not tolerate crimes of violence and would punish them with the full rigour of the law. Paragraph (3) of the new suggested regulation 116 is aimed at armed gangs and there is little doubt that the community as a whole welcomes the taking of the most severe measures against such gangs.

11. One further point arises. I am advised that if the conclusions in paragraph 6 are confirmed as to the effect on the ordinary law of Emergency Regulations which are inconsistent with it, then a large number of sentences imposed for possession of arms under the Arms and Ammunition Ordinance since regulation 116 was brought into force, are invalid. The point has not yet been taken in the Courts and in view of the course now proposed it may never be taken but I consider that we should be prepared for any eventuality. Kad prosecution been launched under regulation 116 higher sentences would probably

/have been imposed

have been imposed but that regulation does not authorize flogging whereas this punishment is authorized by virtue of section 3 (h) of the Flogging Ordinance for crimes punishable under section 4 of the Arms and Ammunition Ordinance. It has on occasions been imposed. Where it has been imposed the accompanying term of imprisonment has of course been less than in cases where it has not been imposed and I do not therefore consider that any injustice has in fact been caused. Executive Council considers and I agree that it would be undesirable at this juncture to give this matter publicity unless it becomes necessary; and I therefore seek your approval for validating legislation to be held in readiness, but not to be enacted until either the point is made and upheld or the situation has become more normal.

I have the honour to be,

Sir,

Your most obedient, humble servant,

ёлышать

GOVERNOR

IN THE SUPREME COURT OF HONG KONG

CRIMINAL JURISDICTION

CASE NO. 6 OF DECEMBER, 1951 SESSIONS

IN THE MATTER of Section 81 of the Criminal

Procedure Ordinance, Cap. 221.

AND

IN THE MATTER of Rex v. To Lam Sin alias

Lam Chai alias To Tsat alias To Tann Lam.

Coram: Full Court

(Howe, C.J.,

Gould and Scholes, JJ.)

DECISION

To La Sin alias Lam Chai alias To Tsat alias To

Tsan Lam was indicted for possession of hand grenades contrary

to Regulation 116A(1) of the Emergency (Principal) Regulations,

1949, which is in the following terms :-

#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, as bomb, grenade or mine, shall be guilty of an offence against these regulations and shall on conviction on indictment be punished with death."

The regulation is one of a number made by the Governor in Council

under and by virtue of Section 2 of the Emergency Regulations

Ordinance (Cap. 241). Section 2 is as follows :-

"2. (1) 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) Without prejudice to the generality of the provisions of subsection (1), such regulations may provide

for-

(a) censorship, and the control and suppression of publications, writings, maps, plans, photographs, communications and means of communication;

(b) arrest, detention, exclusion and deportation;

(0)

control of the harbours, ports and territorial waters of the Colony, and the movements of vessels;

(d) transportation by land, air or water, and the

control of the transport of persons and things;

(e)

(r)

trading, exportation, importation, production and manufacture;

appropriation, control, forfeiture and disposition of property, and of the use thereof;

(g) amending any enactment, suspending the operation of any enactment and applying any enactment with or without modification;

(h)

(i)

authorizing the entry and search of premises;

empowering such authorities or persons as may be specified in the regulations to make orders and rules and to make or issue notices, licences, peraits, certificates or other documents for the purposes of the regulations;

(j) charging, in respect of the grant or issue of

any licence, permit, certificate or other document for the purposes of the regulations such fees as may be prescribed by the regulations;

(k) the taking of possession or control on behalf

of the Governor of any property or undertaking;

requiring persons to do work or render services;

(1)

(m)

payment of compensation and remuneration to persons affected by the regulations and the determination of such compensation; and

(n) the apprehension trial and punishment of persons offending against the regulations or against any law in force in the Colony,

and may contain such incidental and supplementary provisions as appear to the Governor to be necessary or expedient for the purposes of the regulations.

(3) Any regulations made under the provisions of this section shall continue in force until repealed by order of the Governor in Council.

(4) A regulation or any order or rule made in pursuance of such a regulation shall have effect notwithstanding anything inconsistent therewith contained in any enactment; and any provision of an enactment which may be inconsistent with any regulation or any such order or rule shall, whether that provision shall or shall not have been amended, suspended or modified in its operation under subsection (2), to the extent, of such inconsistency have no effect so long as such regulation, order or rule shall remain in force.

(5) Every document purporting to be an instrument made or issued by the Governor or other authority or person in pursuance of this Ordinance or of any regulation made hereunder and to be signed by or on behalf of the Governor or such other authority or person, shall be received in evidence, and shall, until the contrary is proved, be deemed to be an instrument made or issued by the Governor or that authority or person."

Section 3 of the same Ordinance authorizes the imposition of penalties

including the death penalty and subsection 3 of that section provides

as follows

"(3) Notwithstanding the provisions of subsection (1) if any regulation made under this Ordinance provides either -

(a) that a contravention of such regulation shall be

punished with death; or

(0)

that an offence, not punishable with death under the law in force immediately prior to the making of such regulation, shall be punishable with death, or uses words to a similar effect,

such provision shall be subject to the approval of Legislative Council and if approved shall come into operation on such date as may be specified by resolution of Legislative Council."

The Regulations as published under the number A277 in the llong Kong

Government Gazette of the 30th December, 1949, were under the following

heading :-

"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 :-".

The particular regulation under which the accused was indicted was

published in the Gazette of 13th October, 1950, under a heading in

the same terms.

Counsel for the accused having moved to quash the indictment

on the ground that the Court was without jurisdiction, the following

point of law was reserved for the consideration of the Full Court

under Section 81 of the Criminal Procedure Ordinance, Cap. 221 :-

"Whether or not the Emergency Regulation under which the indictment is laid is ultra vires and whether or not in consequence the Court has jurisdiction to try the indictment."

Before the Full Court, counsel for the accused made

the following submissions :-

That the regulations were ultra vires the enabling Ordinance;

That the enabling Ordinance itself was ultra vires the Legislative Council.

The argument as it developed on the first point indicated

that in essence the submission was not so much that the regulations

were ultra vires the powers given by the Ordinance, as that they were

bad because there had been no proclamation of a state of emergency

or public danger and no recital that such a state existed in the

preamble to the regulations, As to the proclamation, the simple

answer to this question, in our opinion, is that although in many

similar enactments in England and the Colonies it is provided that

regulations may be made after a state of emergency or some similar

state has been proclaimed, the Emergency Regulations Ordinance makes

no such stipulation. It is to the Ordinance that one must look

to ascertain when the power arises. It does so when two requirements

are satisfied. Under Section 2 the Governor in Council must consider

the occasion to be one of emergency or public danger and, secondly,

he must consider the regulations to be made are desirable in

the public interest.

whether

This brings us to the second part of the argument

or not it is essential that the regulations should recite, that

the Governor in Council did so consider when the regulations were

made. The Court has not been without doubt on this point, but

after considering the authorities quoted, it is content to be guided

by the judgments in Rex v. Comptroller General of Patents Ex parte

Bayer Products Ltd., (1941) 2 K.B. 306, which seems to go closer

than any of the other authorities to the question here in issue.

The judgment of Clauson L.J. begins (at page 313) :-

"On July 24, 1940, His Majesty the King was pleased by and with the advice of his Privy Council to make, by Order in Council, reg. 60E of the Defence (General) Regulations under the Emergency Powers (Defense) Act, 1939.

Seat. 1, sub-s. 1, of that Act provides: 'His Majesty may by Order in Council make such regulations as appear to him to be necessary or expedient for securing the public safety, the defence of the realm, the maintenance of public order and the efficient prosecution of any war in which His Majesty may be engaged, and for maintaining supplies and services essential to the life of the community. The Order in Council does not contain an express recital that it appears to His Majesty to be necessary or expedient for the purposes mentioned to make this particular regulation, but, as a matter of construction of the order, I an clear (and I do not think that anyone in the course of these proceedings has thrown any doubt on the proposition) that it shows plainly that it did appear to His Majesty to be necessary or expedient to make this regulation."

And at page 314 :

"Accordingly, the validity of reg. 60E, or any other regulation made under s. 1, sub-s. 1, of the Act, can be investigated only by inquiring whether or not His Majesty considered it necessary or expedient, for the purposes named, to make the regulation and this application for prohibition can succeed only if it is within the power of this court to investigate the action of His Majesty when he stated, as I conceive that His Majesty did in making the Order in Council, that this regulation appeared to him to be necessary or expedient for the named purpose. In my view, this court has no jurisdiction to investigate the reasons or the advice which moved His Majesty to reach the conclusion that it was necessary or expedient to make the regulation."

In the judgment of Scott L. J. at page 312 is the following

sentence :-

"The Order in Council introducing reg. 60K of necessity records by implication the fact that His Majesty in Council thought it either necessary, or expedient, or both, to extend the powers of the Comptroller under the Patents (Emergency) Act, 1939, s.3, in manner stated in the regulation."

Goddard L.J. agreed with "all which has been said and the result

which has followed."

In that case, the regulation in question might have been

made because it was deemed necessary or expedient for any of

five or six different purposes. It was not stated in the Order

in Council, that it was in fact deemed necessary or expedient,

but because the Order in Council was in fact made, and made by

virtue of the particular power, it was a matter of necessary

implication.

In the present ease, there is power to make

regulations if the Governor in Council is of a certain opinion

-6-

94A

upon two matters. Does not the fact that the regulations were

made, and expressed to be made under that particular power,

Both are

equally imply that the Governor in Council considered that an

Occasion of emergency or public danger had arisen and that the

regulations were desirable in the public interest?

essentially matters of opinion and whether in fact such an

occasion had arisen is no concern of the Courts.

In Liversidge v. Anderson, 1942 A.C. 206, Lord Atkin,

referring to the unlimited discretion given to the Secretary

of State, added the words

acts in good faith". The same words are applicable here to the

Governor in Council and there being nothing on the face of the

regulations to indicate that the proper matters have not in

fact been considered the Court feels, as did the Court of

Appeal in Rex v. Comptroller General of Patents that as a matter

of construction it is a necessary implication that they have.

It may be said that the first matter i.e. that the

Governor in Council must consider the occasion to be one of

emergency or public danger is a condition precedent to the

making of the regulations; but so is the fact that he must

consider the regulations desirable in the public interest. We

think that if it is right to infer one from the fact that the

power has been exercised under the section, the same applies to

the other. We hold therefore that this submission fails.

"Assuming as everyone does that he

The second contention is that the Emergency Regulations

Ordinance (Cap. 241) is itself ultra vires the Legislative

Council of Hong Kong. Counsel pointed to the extremely wide

powers given to the Governor in Council by Section 2 including

the provision in Subsection 4 that the regulations shall have

effect notwithstanding anything inconsistent therewith in

existing legislation. He conceded that Colonial legislatures

have a certain power of delegation and relied strongly upon

the use of Ping Shek and another v. The Canossian Institute

33 H.K. L. R. 66, as having formulated the test to be applied.

There the Chief Justice said (at p. 71) :-

"Given that the Proclamations now enjoy only this qualified status, it remains to consider, on general principles, whether the delegation of legislative power by section 8 is sanctioned by the Letters Patent. It is settled law that a colonial legislature has some power of delegation see, for example, Powell v. The Apollo Candle Company, 10 A.C. 282, Hodge v. The Queen 9 A.C. 117 and The Queen v. Burah 3 A.C. 889 and the only question is whether the particular delegation provided for in section 8 lls on the right side or on the wrong side of the line.

We are of opinion that, in deciding this issue, the question we should ask ourselves is whether, by the delegation, the Legislature has wholly or partly effaced itself see Street on Ultra Vires p. 429."

Counsel for the accused asked the Court to say that the powers

here delegated went far beyond the ordinary power of making

by-laws and that they were therefore on "the wrong side of the

line".

The word "offaced" may have different shades of meaning.

If in the context it is meant to indicate a complete and final

parting with legislative authority, we agree that that would be

ultra vires, as it would involve an alteration of the Colony's

That is clearly beyond the powers conferred by

constitution.

the Letters Patent and is clear law. Again if "partial effacement"

means a final parting with legislative authority in some limited

sphere the same reasoning applies. But beyond that, the word

appears to be of little assistance.

It seems to the Court that the trend of modern opinion

is to regard a Colonial legislature as being, not mere delegates

of Imperial power, but supreme within their own limits, and

within the powers conferred by the Letters Patent. Thus in Keir

Cases in Constitutional Law (3rd Edition) at p. 412

& Lawson

it is said :-

"It is therefore not surprising to find that the formula enabling a colonial legislature to make laws for the 'peace, order, und good government' of the Colony, whether contained in Letters Patent from the Crown or in an Act of Parliament, has generally been interpreted by the Courts to mean a grant of sovereignty, to be exercised within the limits laid down by the instrument

- 8.

conferring it, but otherwise unrestricted. They have discouraged all attempts to impose further limitations and to suggest that the legislatures of the colonies are anything less than sovereign within the spheres allotted to them. The view that such a legislature was merely a delegate legislating on behalf of the Imperial Parliament and therefore incapable of delegating its authority to a subordinate body, discountenanced by the Privy Council in Reg. v. Burah, (1878) 3 App. Cas. 889, was directly rejected by them in Hodge v. Reg., (1883) 9 App. Cas. 117, where it was raised with regard to the province of Ontario."

In Hodge v. Reg., the authority last mentioned, in the judgment

of their Lordships at p. 132 is the following -

"It appears to their Lordships, however, that the objection thus raised by the appellants is founded on an entire misconception of the true character and position of the provincial legislatures. They are x in no sense delegates of or acting under any mandate from the Imperial Parliament. When the British North America Act enacted that there should be a legislature for Ontario, and that its legislative assembly should have exclusive authority to make laws for the Province and for provincial purposes in relation to the matters enumerated in sect. 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by sect. 92 as the Imperial Parliament in the plentitude of its power possessed and could bestow. Within these limits of subjects and area the local legislature is supreme, and has the same authority as the Imperial Parliament, or the Parliament of the Dominion, would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make by-laws or resolutions as to subjects specified in the enactment, and with the object of carrying the enactment into operation and effect."

If this is the correct viewpoint, and we respectfully

agree that it is, the power of a colonial legislature to delegate

is a full one, limited only by the necessity not to go outside

the powers conferred by or contravene the rights reserved by the

Letters Patent or other constitutional document. As is well

known, delegation of powers almost parallel with those given

by the Emergency Regulations Ordinance has been resorted to

frequently in England under the various Emergency Powers Acts. If the legislature of Hong Kong is supreme (subject to its

constitution) in its own area there can be no reason why it should not act similarly it is not and cannot be suggested that

the law is not one for the "peace, order, and good government"

of the Colony.

יז'

- 9 -

Even by the "effacement" teat, we would not hold that

the delegation of the powers is ultra vires. Wide though the

powers may be, the Legislative Council retains a very firm and

close control by virtue of Section 14 of the Interpretation

Ordinance (Cap. 1). No regulation involving the imposition of

the death penalty can become of force or effect without the

prior approval of the Legislative Council - this is provided

specifically by the Emergency Regulations Ordinance as well.

All other regulations must be laid on the table at the first

meeting of the Legislative Council after their publication in

the Gazette and the Council may repeal or amend any of them,

There is in addition the overriding power to repeal or amend

the Ordinance itself. Te see nothing there which can be called

effacement as we understand it.

On these grounds, we hold that the regulations are

not ultra vires; it becomes therefore unnecessary for us to

deal with the well considered argument of the Solicitor-General

in which he submitted that the non-exercise of the power of

disallowance by His Majesty cured any lack of authority

otherwise existing.

The answer to the question of law reserved for the

opinion of this Court is that the regulation under which the

indictment is laid is not ultra vires, and the Court, so far

as that question is concerned, has jurisdiction to try it.

(Sd.) Gerard Howe

President.

18. 1. 52.

(Sd.) 7.J. Gould

Puisne Judge.

18. 1. 52.

(sd.) A. D. Scholes

Acting Puisne Judge.

18. 1. 52.

SUMMARY OF ARGUMENTS ADDRESSED TO THE COURT

BY LAW OFFICERS.

す

The Honourable George Strickland K.C., (Attorney General) and James Reynolds Esq., (Solicitor General) for the Crown.

Strickland -- Applying the effacement theory laid down by

the Full Court in Ping Shak'a case clear there has been no effacement

here. Power to repeal Ordinance exists and this has been held

sufficient in other cases. Here however there is direct control as

the particular regulations before the Court were required by the

enabling Ordinance to be approved by Legislative Council and were in fact so approved. Moreover by virtue of section 14(d) all other regulations made under the Ordinance may be amended by resolution of Legislative Council.

Te submit however that apart from limitations of charter and any limitations imposed by Imperial enactment neither of which arise here, colonial legislature is sovereign in the sphere allotted

to it by Article VII of the Letters Patent Hodge v the Queen, 9 A. C. 117, Riel v Queen 10 A.C. 675. We adopt the statement in Kerr

and Lawson Constitutional Cases 3rd Ed. 412. The same principle

applies to colonial legislatures created by virtue of the prerogative

Chennard & Co. and Others v Arissol 1949 T.L.R. 72 save that it is

admitted that in the case of unrepresentative legislatures there is no power to alter constitution. Delegation to Executive of power to

make Emergency Regulations is not an attempt to alter constitution and is sanctioned by constitutional practice not only of Imperial Parliament (Emergency Powers Defence Acts) but of H.M. in Council

(see the Emergency Powers Order in Council 1939 which will be found in Hong Kong Gazette 1941 p. 1983) and other colonies e.g. Singapore Ordinance of 21st July, 1948. The effacement theory is open to

serious criticism as failing to indicate any true test as to what is

on the right side or wrong side of the line. The only safe guide is

alteration of the constitution. No case in which a delegation has

been held to be bad on the ground of effacement. The Manitoba case

1919 A.C. is distinguishable as there was clearly an attempt to alter

the constitution.

As to the validity of the Emergency Regulations themselves -

the Ordinance does not require a Proclamation and the Courts cannot

therefore hold that a Proclamation is required. Nor is any recital

required that the Governor in Council has considered that a state of emergency or public danger has arisen and that it is desirable in the

- 2

public interest to make the regulations. Where the exercise of a power depends upon the existence of a condition which is purely subjective and an instrument ex facie regular purporting to exercise the power is produced there is a presumption in the absence of bad faith that the official exercising the power complied with the condition. Liversedge v Anderson 1942 A.C. 206. Moreover it is clear from the same case that good faith in presumed and that the condition in this case is purely subjective. Rex v Comptroller General of Patents 1941 2 K.B. 306 decided that an order is ex facie regular if it purports to exercise the relevant power and that recitals are unnecessary as compliance with the subjective conditions was implied by necessary implication from the order. There the act was, as here, a legislative act,the making

　　　　　　　　　　　　　　　　　　　　　　ney of Emergency Regulations. It is submitted that probably understood

there is no conflict between the cases but if the Court considers

there is any conflict Rex v. Comptroller General of Patents must be preferred as being on all fours with the present case. Jones (Machine

Tools) Ltd. v Farrell v Muismith 1940 3 A.E.R. is no longer good law.

For the position where the legislative or executive act is not ex facie regular see Carltona Ltd. v Commissioner of Works and

Others 1942, 2 A.E.R.

It is also submitted that upon the proper construction of the words "in exercise of the power" which can only mean "in due or

proper exercise of the power" section 30 of the Evidence Ordinance (Cap. 8) applies and cures any defect which might be deemed to arise

by the absence of recitals.

Reynolds Even if section 2 of the Ordinance is ultra

vires the powers of the local legislature as such, His Majesty having assented to it, by not exercising his powers of disallowance, in exercise of his prerogative right of legislation, has cured the

defect,

The Crown's power of disallowance is not a mere executive act

it is a legislative act. Under Art. IX of the Letters Patent and

section 30 of the Interpretation Ordinance disallowance by the Crown does not have a retrospective effect but an Ordinance disallowed only

ceases to have effect as from the date of such disallowance the

exercise of the power in this respect has an effect akin to that of a repealing Ordinance and so is a legislative act.

The sovereign power of legislation for a conquered or ceded

Colony is vested in the Crown and when the Crown grants such a Colony

a legislature with limitations upon its powers a residual power of

legislation remains in the Crown and is exercisable by the Crown by

· 3 ·

100

virtue of its power of non-disallowance.

Inglis v De Barnard 3

Koo. P.C. 425; In re Iu Ki Shing (1908) 3 H.K.L.R. 20; Re Chan

Yue Shan (1909) 4 H.K.L.R. 128.

ว

APPENDIA 2

THE ERGANCY ALGULATIONS ORDINANCE

Chapter 241.

Regulations by the Governor in Council

101

Hao.osure No. 2

In exercise of the power conferred by section 2 of

the EmergeHoy Regulations Ordinance the Governor in Council has

made the following regulations

Citation.

Regulations

These regulations way be cited as the Emergenoy (Principal) (Amendment) Regulations, 1952, and shall be reau as

(G.N.h.277/49) one with the Emergency (crincipal) Regulations, 1949.

Repeal of

regulation

116A and

addition of

2. The principal regulations are hereoy amended by the

repeal of regulation 116A and the insertion as regulation 116 of

now regulation the following

116 to the

principal

regulations.

"Death penalty

for certain

offences in connection with

pulsession of quantities of arma, ammunition or explosive substances, carrying bcube and grenades and using arus

cr explosive substances.

116. (1) Any person who without lawful

authority carries any bomb, grenade, wine or

other apparatus, machine or implement capable of

being used, as/bomb, grenade or mine, shall be

guilty of an ofience against this regulation and shall

on o nviction on incictuent be punished with death.

(2) Any person who without lawful authority

user or attempts to use arms, ammunition or any explosive substance against any person or property, shall be guilty of an offence against this regulation

anu shall un conviction un inuiotuent be punished

with death.

(3) any person who without lawful authority has in

in his sscssion anus, aunition or explosive

substances in such quantity an/such character as

OTA

-2.

102

เ

thes

Ont

& Sandy

нестату

Le?

(Cap. 238).

as is hot

Luck 2(4).x

ally not say "arms?

was not include

jograph?

ايده

would be calculated to constitute a serious

threat to the lives of members of the community

Provided

if they fell into the possession of persons

prepared to use the same in the execution of

crimes of violence shall be guilty of an offence

against this regulation and shall on conviction

on inuictwent be punished with ueath;

that if upon any prosecution for an offence

against this regulation the Court is satisfied

in respect of each and every one of the arus,

ammunition and explosive subst.nces of which

the person chargeu has been proved to have been

in possession that he has no intention of using

the same vi renuitting the same to be used by

others the Court shall acquit ham of the offence

with which he is charged but may find him guilty

of and unish hia for any offence contrary to

the nas an unition Oruinance as nouified

by the ergency (Anas and unition Ordinance)

(amentuent) Regulations, 1952, of which it coule

lawfully fin. hau guilty on the avicence before

it.

(4) Such of the provisions of section

of the arus anu klynition Oruinence as are ine

consistent with the provisions of this regule tion shall be suspended during the continuance

in force of this regulation: Frovided that

nothing in this paragraph contained shall apply

Y to cffences in res,cat of initation firlarus

respect firearms of which a person is in possession with lawful authority,

(5) (a) In paragraph (1) carry" includes to carry on the person(or) in any container or

receptacle and asportation by any weans;

COUNCIL CHABER,

1952.

(b) In paragraphs (2) and (3) of this

to witdale

regulation "use" includes intimidation by

means of but aces not include user for a low-

ful purpose,

(6) a prosecution for an offence against this regulation shall not be instituted except

with the consent of the attorney General, "

Clerk of Councils,

103

Colonial Secretariat file No. 2/5011/46

SAVINGRAM

To the Secretary of State for the Colonies.

From the Governor, Hong Kong.

14237/18/1

Date.

115

No.

ند

AN OFFI06

Jamiary, 1952.....

22 JAN 1951

COL

1951.

Your savingram No. 1265 of the 11th December,

Faergency Regulations

　The Emergency (Centrol of Ships and Aircraft) Regulations, 1949, enacted as G.N.A. 225/49′was subsequently repealed by Regulation 16 of the Emergency (Principal) Amendment Regulations, 1950 (G.N.A. 174/50). Regulations 50 and 51 of the Emergency (Principal) Regulations, 1949, are in terms identical with those of Regulations 6 and 4 ✓ of G.N.A. 223/49 and were brought into operation by G.N.A. 173/50 i.e. Emergency Regulations (Commencement) (No. 2) Order, 1950.

www.

✓

2. The Emergency (Requisition) Regulations, 1949, enacted as G.N.A. 167/49 are still in force but some of its provisions are similar to Regulations 2, 3, 67, 81, 151 and 136 of the Emergency (Principal) Regulations, 1949. full position is as follows:-

Requisition

Remarks

The

Regulations

Principal Regulations

Regulation 2

2 & 3

..68

8 3

151

156

104

In force by G.N.A. 85/50 an G.N.A. 182/50

Not yet in force

In force by G.N.A. 61/51

Not yet in foros

Not yet in force

-do-

In force by G.N.A. 61/51 In force by G.N.A. 85/50

-do-

Sect. file No.2/3011/46.

No. 569

DEF 89/11/01

64453

GOVERNMENT HOUSE,

HONG KONG.

1st April, 1952.

Sir,

106332/6/1/16

I have the honour to refer to your Circular Savingram of 18th July, 1945, on the subject of energency legislation. A report on the general position for the six months' period from 1st September 1951 to 29th February 1952, is contained in the following paragraphs.

With reference to the Bergency (Principal) Regulations, 1949, (Government Notification No. A.277/49), regulation 99 has been brought into operation by G.I.A. 196/51 and regulation 116 has been rescinded by G.N.A. 26/52 (see below paragraph 3(g)).

For the same period under review, certain Emergenoy Regulations have been enacted under the Emergency Regulations Ordinance, 1922, viz.

(a) The Emergenov (Special Constabulary) (Amendment) Regulations, 1951,

(G.N.A. 164/51), and The Emergency (Special Constabulary) (Amendment) (No. 2) Regulations, 1951, (G.N.A. 216/51).

By virtue of the Compulsory Service Ordinance, 1951, person subject to compulsory service thereunder may be directed to enrol compulsorily in the Royal Hong Kong Defence Force, the Special Constabulary or the Essential Services Corps. The legislation relating to the Royal Hong Kong Defence Force and the Essential Services Corps has been suitably amended to provide for the enrolment, instruction and training of such persons and the payment to them in respect of such training of an instruction allowance. These regulations emend the principal regulations to make similar provision in respect of the Special Constabulary. In addition, new regulations have been added to the principal regulations enabling members of the Special Constabulary to make complaint; and making it an offence to obstruct any part of the Special Constabulary or any of its members in the execution of their duty. The regulations also provide that special constables may be called out for active service for the purpose of instruction of training.

(b). The Emergency (Registration of British Subjects) (Amendment)

Regulations, 1951, (G.H.A. 195/51).

•

These regulations amend the principal regulations to provide for the compulsory registration of British subjects upon arrival into the Colony and to provide more comprehensively for registration by persons who have not already registered and in particular for persons in the Colony who have attained or may attain the age of 17 years since the 12th day of January, 1951. The regulations also keep a check on British subjects leaving the Colony by making it

necessary

THE RIGHT HONOURABLE

OLIVER LYTTELTON, D.S.O., H.C., M.P.

REGISTRAR'S OFFICE = 8 APR 1952 COLONIAL OFFICE

SPECIEL GUPE 1 MAY 1952 SECTOR

necessary for such persons to notify departure and for transport firms or companies to supply lists of persons departing from the Colony.

(o) The Emergency (Control of Minerals) Regulations, 1951. (G.I.A. 209/51).

Owing to the great derand for strategic materials due to the prosent international situation, profits to be made from the mining of wolfram and ores of tin and lead have greatly increased.

In several areas in the New Territories, where there are deposito of these ores, illegal mining has occurred. In consequence, not only has Government boen deprived of substantial revenue by way of royalties but the congregation of large nunbors of illegal miners and their families on and around these areas without supervision or proper sanitation has resulted in a grave threat to public order and to the health of the Colory. Public health is further imperilled by reason of the fact that a part of the waterworks catchment is within the area in which the illicit mining is taken place.

The purpose of these regulations is to prevent illegal mining by making it an offence for unauthorized persons to move, buy, sell or have in their possession wolfram or the ores of load or tin,

(a) The Emergency (Immediate Resumption) Regulations, 1952, (G.N.A. 5/52),

and the Emergency (Immediate Resumption) (Amendment) Regulations, 1952, (G.N.A.' 17/52).

This

In a recent fire at Tung Tau Village numerous persons were rendered homeless. The purpose of these regulations is to enable as many of such persons to be re-housed as rapidly as possible in circumstances which will minimise, so far as compatible with the need for immediate action, the danger of another fire and dangers to public health. has created a situation in which it is considered desirable in the public interest that sections 4 and 5 of the Crown Lands Resumption Ordinance, Cap. 124, should be modified by the provisions of these regulations, This will hasten resumption, and resettlement can then be effected under the Emergency (Resettlement) Regulations, 1952, (G.N.A. 6/52).

(e) The Emergency (Resettlement Areas) Regulations, 1952. (G.N.A. 6/52).

These regulations enable the Urban Council to set aside any area of Crown Land for the resettlement of persons who by reason of their association with the Colony or otherwise merit assistance.

(f) The Emergency (Essential Supplies) Regulations, 1952. (G.N.A. 25/52).

The regulations provide for the issue by the Director of Commerce and Industry of certificates (called Essential Supplies Certificates) to importers certifying that evidence has been produced that certain goods, the subject of embargo, which they wish to bring to Hong Kong are required solely for use in Hong Kong. They also provide heavy penalties for persons making false statements to obtain the issue of such certificates or for the breach of any term or condition upon which they are issued and for the forfeiture of goods in respect of which an offence against the regulations has been committed.

(g)

{

(8) The Emergency (Arvas and Ammunition Ordinance) (Amendment) Regulations,

1952, (G.I.A. 26/52).

These regulations increase the maximum penalty provided by section 29 of the Arms and Ammunition Orlinance, (Cap. 238), for offences against that Ordinance from imprisonment for 10 years to imprisonment for life. This amendment rendered unnecessary the continuance in force of regulation 116 of the Emergency (Principal) Regulations, 1949, which imposed a penalty of life imprisonment for offences of unlawful possession of arms and ammunition, and accordingly rescinded it.

Requisitioning has again been carried out on a small scale; apart from 16 mits, comprising two blocks of new flats in the urban area, which were requisitioned for the Royal Air Force, only 2 other imits have been requisitioned, These were for the Army and comprised some land and one unoccupied building in the New Territories.

　On the other hand, 161 units have been derequisitionel during the period under review, Of this muaber, 12 units, comprising 11 flats in the urban area and 1 house in the New Territories, were released by the Army and 42 units by Government,

I have the honour to be,

Sir,

Your most obedient, humble servant,

rav ta

GOVERNOR.

REGISTRAR'S OFFICE - 8 APR 1952

COLONIAL OFFICE

1532 W418027/6526 100m 7/60 FA G558

C. O.

XEX

Mr.

Miss Frost 30/4

Hall

Save L. Gibson

Mr.

In Parkin 7/5

Permt U.S.

Hopkinson 3.5

Parly. U.S. S.

Minister of State

Sidebotham.

5/5

Secretary of State

Your Reference...

23/3231/50

DRAFT

Sir,

GOVERNOR,

(5)

HONG KONG.

SECRET DESFATCH

763

1 0 MAY 1952

(6)

I have etc. to refer to your secret despatch No.391

of the 3rd Karoh 1952 on the subject of Emergency Regulations and to note that the Full Court decided that

　　　　　　I note also that the the regulations are not ultra vires. course proposed in your paragraph 8 A has been implemented by the enactment of the Emergency (Arms and Ammunition Ordinance )(Amendment) Regulations, 1952, and the rescinding

of regulation 116.

2. With regard to the proposal to re-phrase Regulation 116 A. and to insert it as a new regulation 116, my Legal Advisers have been consulted as requested in your paragraph 9, and have commented that paragraph (3) of the new regulation is open to objection in that it would seem to apply even to possession of a single firearm. despatch lays emphasis on the test that the quantity and character of the arms, etc., must be such as would constitute a serious threat to the lives of members of

Your

the community if they fell into the possession of persons prepared to use the same in the execution of crimes of violence,but this would seem to be no test at all since

might

a single firearm of a lethal character ki obviously

It would, therefore, seem.

constitute such a threat.

"use the word "osobe" or "arsenal". than words

it is very diferent

hich

FURTHER ACTION

　　　　　**8390AN of merc

and tart

elds 3:3

IN OKS AT--

decided sammat

word

/In

1532 WL18027/5526 100m 7/60 FA Gp58

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Mr...

Miss Frost 30/4

ORLANAN PADA J

Hall

4/5

Hopkinson 3.5

So h. Gibson 5.5

J. Parkin 7/5

Permt U.S.

Parly. U.S. S.

Minister of State

Mr..

DRAFT

Sidebotham.

$/5

Secretary of State

Your Reference 23/3231/50

Sir,

GOVERNOR,

(5)

HONG KONG,

SECRET DESPATCH

763

1 0 MAY 1952

(6)

I have etc. to refer to your secret despatch No.391

of the 3rd March 1952 on the subject of Emergency

Regulations and to note that the Full Court decided that

I note also that the the regulations are not ultra vires. course proposed in your paragraph 8 A has been implemented by the enactment of the Emergency (Arms and Ammunition Ordinance) (Amendment) Regulations, 1952, and the rescinding

of regulation 116.

2. With regard to the proposal to re-phrase Regulation 116 A. and to insert it as a new regulation 116, my

Legal Advisors have been consulted as requested in your paragraph 9, and have commented that paragraph (3) of the new regulation is open to objection in that it would seem to apply even to possession of a single firearm. despatch lays emphasis on the test that the quantity and

character of the arms, etc., must be such as would

constitute a serious threat to the lives of members of

Your

the community if they fell into the possession of persons prepared to use the same in the execution of crimes of violence, but this would seem to be no test at all since

might

a single firearm of a lethal character would 'obviously

buj]

FURTHER ACTION

Alena Pesa -

If the special offence is to be created, it would apparently be necessary to use the word "cache" or "arsenal" and then to define them by reference to a number and character of the weapons involved, but it is observed that the present view of your Legal Advisers is that this solution is not feasible and my Legal Advisers are not aware of any precedent for such a provision.

J. in the circumstances, therefore, unless your

advisers are able to draft a more satisfactory clause.

it would appear preferable to drop the idea of creating

this new offence - the possession of a cache or

arsenal.

4. Further comments on the new regulation are as

follows :-

(a) the opening words of paragraph (4) seem

(b)

unnecessary in view of the terms of section

2(4) of the Ordinance;

the reference in the proviso to paragraph (4)

to imitation fire arma is probably unnecessary

but, if a reference to this point is thought

desirable, it should be covered by a substantive

provision and not by a proviso;

authority in the proviso to paragraph (4)

seems clearly unnecessary because the earlier

provisions of the Regulation limit the offence

to possession without lawful authority;

(a) sub-paragraph (b) of paragraph(5) seems

unnecessary since "use" clearly includes use

for intimidation and use for a lawful purpose

would not in any event be an offence.

Until a satisfactory new regulation has been drafted

I agree, however, that the present Regulation 116A may

continue in force for a further period of six months and

I approve the suggestion made in para. 11 of your despatch

that validating legislation be held in readiness in case

sentences imposed under the Arms and Ammunition Ordinance

are declared invalid.

I have, etc.

DT 59/51/01

Your RetemASTE" 23/3231/50

TASUT

763

COLONIAL OFFICE,

79 7

The Church Ecuse,

Great Smith Street,

Iandon, S.7.1.

ioth

l'ay, 1952.

Sir,

I have the honour to refer to your secret despatch Fo. 371 of the 3rd March 1952 on the subject of Fæergency Regulations and to note that the Full Court decided that the regulations are not ultra vires. I rate clso that the course proposed in your reragraph 8 has been implasental by the enactment of the Emergency (Fran and Ammunition Calinance) (^ncnäzent) Regulations, 1952, and the renointing of regulation 116.

With regard to the proposal to re-phrase Fegulation 116 A, enl to inert it as a new regulation 116, ry Legal Advisers have been congilted as requested in your paragrogh 9, and heve our ented that paragraph (3) of the new regulation is open to objection in that it would seem to amly evan to possession of a single firearm, Youn derzatch lays eaphands on the test that the quantity and character of the nttan, etc., must be such as would constitute a serious threat to the lives of ambere că the commalty 12 they fell into the pogression of persoas prepared to use the same in the execution of crizes of violence, but this would seen to be no test at all sirce a single firearm of a lethal character night constitute mch a timent, If the special offerce is to be created, it would agerently be necessary to une the word "cache" or "arrezal" and then to define them by reference to a number and clarecter of the weapons involved, but it is observed that the pr: sent view of your legal fûvisers is that this colution is not feasible and my legal Advisers ere not aware of any proosdent for such a provision,

In the circumstances, therefore, unless your tåvisers sze able to draft a zere satisfactory clause it would agreer preferable to drop the idea of cheating this new offence the possession of a cache or exceral,

4. Further comments on the now regulation are as follows:-

(a) the opening words of paragarh (4) sem.

unsecenrary in vier of the teras of rection 2(4) of the Grdinence;

(b) the reference in the proviso to peragraph (4)

to imitation fire res is probably uncOUNDAT but, if e reference to this point in thought desirable, it should be covered by a mitotentive provision end not by a provino;

authority in the proviso to servgrash (4) semus olearly uzteconssy Iæccuse the earlier provisions of the Regulation Hait the offence to possession without loodul authority;

(1) sub-zara rash (b) of paragraph (5), recEC

Wrecessary saree "use" olearly includes usa fæ intimidation and use for a lawful purpose would not in any event be an offence,

GOVTITOR,

OIR ALEXANDER GRANTHAM, G.C.M.G.,

ete..

etc.,

15.

5. Until a satisfactory new regulation has been drafted I agree, however, that the present Regulation 116A may continue in force for a further period of six months and I approve the suggestion made in paragraph 11 of your despatch that validating legislation be held in readiness in case sentences imposed under the Arms and Ammunition Ordinance are declared invalid.

I have the honour to be,

Sir,

Your most obedient,

humble servant,

GLIME!

Bescinded by 6.N.A. 26/52 see (6) on DEF 89/51/01

Questin

MERGENCY (PMICIPAL) REGS. 1949 WHICH HAVE BEEN BROUGHT INTO CANISTON

Competent authority.

Wireless transmitting apparatus.

Reg. No. 2.

General interpretation.

# 3.

が

===

21.

25.

26.

34.

គំនុំ

言

Ħt

帅

36. 37.

40. 50.

57.

H 58.

* 65.

67. 67A.

# 81.

Posting of placards etc. containing incitement to violence. Printing, sale eto, of documents containing incitement

to violence,

Declaration of special areas.

Trensfer of persons in custody. Restriction orders.

Further detention.

Entry and departure of ships and aircraft. Supplies and repairs to ships and aircraft. Control of highways and territorial waters. Traffic on highways.

Powers to stop and search vehicles.

Requisition of property other than land.

Power to camandeer property other than land.

Application of Compensation (Defence) Regs. 1940. Publicity of Ordera.

Affixing of notices.

Identification of persons in custody.

83.

84.

រ

98.

H 99.

Pavers or entry and search.

* 109.

竹

" 116.

116A.

☐ 117. " 118.

* 119.

"120.

* 124.

n 125. "126. * 131.

# 132.

" 133.

" 134.

# 135.

" 136.

137.

" 138.

Injury to property.

Possession and carrying of arms, ammunition and explosives. Possession of bambs, grenades and use of arms.

Offensive weapons (not being a firearm).

Consorting with person carrying arms etc.

Failure to report offence of carrying arms, eto,

Consorting or harbouring persons wearing unauthorised

uniforms.

Offences in closed, protected, damaged or evacuated areas. Interference with and damage to communications.

Proscribed organizations.

Offences by corporations.

Alteration and improper use of licenses and permits.

Attempts to commit an offence.

Liability for offences.

Obtaining possession where possession is an offence. General penalties.

Commencement.

Repeal of previous regulations.

Colonial Secretariat

le No. 25/3231/50

SECRET

NO: 1034

GOVERNMENT HOUSE,

LOTE KONG

28 June, 1952,

Sir,

Dep. 88/51/01.

I have the honour to refer to your secret despatch No. 765 of 10th May, 1952, on the subject of emergency legislation dealing with the illicit possession, carrying and use of arms, explosives, ato.

2. It appears that the objections to the proposed new Emergency Regulation 116 cannot be substantially lessened by redrafting; and, after careful consideration and after consultation with Executive Council, I have decided not to pursue for the time being the proposal that existing legisle- tion on this subject should be further amended, This is not to say, however, that the circumstances of the territory have in any way so changed as to render it less necessary to impose unusually severe penalties for this type of offence. On the contrary, the situation will have to be kept continually under careful review, and it may well prove necessary for me to raise again, at short notice, the question of enacting legialation on the lines of the proposed new Emergency Regulation 116.

5, Meanwhile the existing Emergency Regulation 116A will be kept in force for a further period of six months as agreed in paragraph 5 of your despatch under reference.

I have the honour to be,

Sir,

Your most obedient, humble servant,

GOFRON CIR.

THE RIGHT HONOURABLI

OLIVER LYTTELTON, D. S. Q., M.C., M.P.

- 7 JUL 1952

COLONIAL

DEF 89/54/01

Extrat from meeting

P SECRET

from meeting with youemes, Haykay 779

in bolonial offer

(2) Emergency Regulations

877/62.

The Hong Kong proposal was to rephrase B. R. 1164, and to attach

the death penalty to the possession of cashes of fire arms. Bir A. Gran the said that it had been decided that the Colonial Office objections could not be met by redrafting and that the proposal should not be pursued for the time being.

Agreed to await a despatch from Hong Kong in reply to

5. of 8.'s despatch No, 763 of 10th May.

SECHET

DEF 89/51/01

Your Refi

23/3231/50 ho 1200 gir,

75 10

COLONIAL CFFICE,

The Church House,

Great Smith Etreet, London, S. 1. 1.

21st July, 1952.

I have the honour to acknowledge the receipt of Sir Alexander Granthan's despatch No, 1034 Secret, of the 28th June, 1952, concerning emergency legislation dealing with the illicit possession, carrying and use of arms and explosives. I note the decisions 1-

(a) not to pursue the proposal that existing legislation on this subject should be further amended, but to keep the situation under careful review;

(b) to keep in force the existing Emergency Regulation 116A for a further period of six months, from the 19th April, 1952, as agreed in my despatch No. 763 Secret of the 10th Vay, 1952.

I have the honour to be,

sir,

: Your most obedient,

THE OFFICER ADMINISTERING

THE GOVERNMENT OF

HOT KONI

humble servant,

189 W18027/5526 100m 7/60 ▼ ▲ Qp58

$0.

Mr. Andusm 17/2

Mr. Harris (1)

Mr...

Little Hopkinson (7.7 Sidebotham

Mr.

I-TITE-PI

DRAFT Despatch

O.A.G. H.K.

DEF 89/51/01.

Permi U.S. of S.

Parly. U.S. S.

Minister of State

Secretary of State

Your Reference 23/3231/50.

R. 18 JUL

SECRET.

*952

1200

(8)

Sir,

I have etc to acknowledge the receipt

Smalesanta frantham's

of the Gavecunt's despatch

人

1034 Secret, of

the 28th June, 1952, (mcerning emergency

legislation dealing with the illicit possession,

Carrying

W14

of arms

explosives.

note the decisions :-

(a)

not to pursued the proposal that existing

legislation

this subject shô be for ther

ish]

Гдел жін Kanded main than betur mi?

FURTHER ACTION

(by

amended,

but to keep the situation

under careful review;

to keep in fuce the existing Emergency Regulation 116A for a further period of six months, from the 19th April, 1952,

aqued

10" May 1952

my depfaked No. 763 Secret of the

(1) to this have ete.

མ་

Colonial Secretariat

file No.

/5231/50

SAVINGRAM

To the Secretary of State for the Colonies.

From the Governor, Ilong Kong,

Date 10.52

No. 159 SECRET

21/49/51/01

Your Despatch No. 1200 of 21st

July, 1952.

(10)

Emergency Regulation 116 (A)

In accordance with paragraph 1 (2) of

your secret telegram lio. 1468 of 22nd September, 1950, I seek your agreement to retain Emergency Regulation 116 (A) for a further period of six months from 19th October, 1952, to 19th April, 1955.

(a)

14237/15/50

　　　　　　　　　During this year the economic situation in Hong Kong has deteriorated, but, while there has been an increase in serious crime this has not, fortunately, been in crimes involving the use of arms, the numbers of which are fewer than last year. I am advised and em satisfied that the existence of Emergency Regulation 116 (A) continues to have a strong deterrent effect on persons who might otherwise be disposed to use arms for criminal purposes. I am satisfied that the present would be an inopportune time to consider the suspension of the Regulations.

ADRH

DRH:b

#7 OCT 1952

BERIT

Saving

My Refi- DXF 89/51/01. Your Ref:- 23/3231/50.

the Secretary of State for the Colonies.

72:2

HONG KONG

Officer Administering the Government of

-------

182

Date

October, 1952.

1712

No.

Saving

Your saving No. 1579 of the lat October, 1952.

Emergency Regulation 116A.

I approve the continuance in fores, of Emergency Regulation 1164 fɔr a further period of six months from 19th October, 1952 to 19th April, 1953.

2. I note with satisfaction the decrease in crimes involving the use of arme during the present year, and I should be glad to know whether you see any early prospect of being able to recommend the repeal of Emergency Regulation 116A.

BECER.

FILE No. DEF 89/51/01

DRAFT

THEGRAM

* SAVINGRAM

• The word Priority may, if necessary, be entered here.

Addressed to:- O.A. Ç.

Number.

Mr. Littler */10

Mr. Harris) 14/10

động trong

1712

Repeated to:-

Savingrams only.

Your reference23/3231/50

Serial No.

My Hopkinson for win

MR. BARTON 14/10

14./109

Mr..

Sa Pasku

Permt, U. of S. 1/10

Parly U.S. of S.

Minister of State

Secretary of State

Distribution :-

Asince

Further action :-

Medium :-

En clair or

K(1) WI 27143-5503 2,500 pads 10/50 G.S.St,

* 150CT

Time and date

hours

195

Urgency classification :-

Nil

Reply-tergentiyezoquired

Immediate

Emergency

Security classification :-

Frestricted

Secret Top-S Guard

of the 1st October 1952,

(11)

Your Saving No. 1579

Emergency Regulation

116 A.

AL)

I approve the continuance in force of Emergency Regulation 116A for a further period of six months from 19th October 1952 to 19th April 1953.

I note with satisfaction the decrease in crimes involering

involving the ire of arme during

able

the present year, and I'shold be glad to know whether you see any prospect of being too to Hermannd the regent of Everging Regulation SECER,

spo

1169

Sect. file No.2/3011/46.

No. 1700

Sir,

GOVERNMENT HOUSE,

HONG KONG

24th October, 1952.

14237/11/1446

I have the honour to refer to your Circular Savingram of 18th July, 1946, on the subject of emergency legislation. A report on the general position for the six months' period from 1st March, 1952, to 31st August, 1952, is contained in the following paragraphs.

|| 2.

The Emergency (Principal) Regulations, 1949, (Government Notification No.A.277/49) have been amended by the addition of four new paragraphs to regulation 67 (G.N.A.103/52) which provide for the power of delegation on the part of a competent authority with regard to requisitioning of chattels, Past experience has shown that it is desirable that a power of delegation, within certain limits, is necessary if a competent authority is to carry out his functions effectively and without delay, which in an emergency might have serious consequences. The object of these amendments is to bring local legislation into line with that of the United Kingdom. Powers to call for information relating to stocks and location of articles which may be required have also been provided.

For the same period under review, certain Emergency Regulations have been enacted under the Emergency Regulations Ordinance, 1922, viz -

(a) Emergency (Immediate Resumption) (Amendment No.2) Regula-

tions, 1952 (G.N.A.85/52):

These regulations amend the principal regulations to provide for the resumption of agricultural land in Kowloon Tsai, upon which structures had unlawfully been erected. These structures were destroyed by fire on the 30th April last, and it was essential that structures to re-house persons in need of accommodation should be erected thereon rapidly under Government's supervision.

*(*) Emergency (Resettlement Areas) (Amendment) Regulations,

1952 (G.N.A.96/52) -

These regulations amend the principal regulations to enable rules to be made by the Urban Council for prescribing fees to be paid for permits authorizing the erection of buildings and structures in any resettlement area, the inspection of any premises thereon.

and for

(0)

Emergency (Resettlement Areas) General Rules, 1952, (G.N.A.106/52):-

These rules provide for the general control of struc- tures in any resettlement area.

THE RIGHT HONOURABL

OLIVER LYTTELTON, D.S.0., M.C., M.P.

(a)

31 OCT 1952

- 2

(d) Emergency (Exportation) (Miscellaneous Provisions) (Amendment)

Regulations, 1952 (G.N.A.114/52):-

These regulations repeal regulations 6, 7 and 8 of the principal regulations. The provisions of these repealed regulations have been incorporated into the Importation and Exportation Ordinance, Chapter 50, by an amending Ordinance. (•) Emergency (Defended Areas in Particular Localities) (Amendment)

Declaration, 1952 (G.N.A.141/52):-

These regulations add to the principal regulations a further list of Defended Areas,

　　　　　Requisitioning continued on a small scale; ten units in all were requisitioned for the Army, of which 9 comprised land only and 1 had a very small house thereon. One unit comprising land only was requisitioned for the Royal Air Force in the New Territories.

　　　　　　Twelve units were de-requisitioned during the period under review. Of these 5 comprised office space held by Government in the Central District of Victoria. The Army released 5 units of land only in the New Territories and the Royal Air Force released 2 houses in the Urban Area.

A transfer of 8 units comprising 8 flats in Kowloon was made from the Army to Government towards the end of August, 1952. These eight flats were all de-requisitioned shortly after the end of the period under review.

I have the honour to be,

sir,

Your most obedient, humble servant,

GOVERNOR.

68 1-,

HEX 488/85/01

Your Ref: 2/3011/46

BONGIONG

1887

COLONISL. 017702,

The Church House,

Grant kith Street,

London, S.G. 1.

1412 November, 1952.

sir,

I have the honour to saknowledge rocsipt of your despatch of the 24th October on the subject of Emergency Legislation, the octenta of which have been noted with interest.

GOVERGUR,

I have the honour to be,

Sir,

Your most obeilent,

husblo servant,

SIR ALEXANTER GRAMHAN, G.D.H.G.,

ető-,

eties

etc.

Y.. ELTO

Mr.

Littler /%

Harris "/" al

File No. #K7 488/85/01

Permt. U.S. of S.

Mr.

PIC¬¬-----~III

Sir

DRAFT Despatch

Parly, U.S. of S.

Minister of State

Secretary of State

Your Reference 2/3011/46.

Sovernor.

dir,

11887

động trong

(13)

FURTHER ACTION

Date..

69 14-1

November 1952

14 NDY 12

I have, etc to acknowledge receipt your despatch of the 24th October

the subject of Emergency Legislation, the contents of which have been noted with interest.

I have etc.

(27065) (1) WL. 27142-5502 5m pada 10/50 G.S8

JNAL

Jed

зау

де

orig

Extract from Hong Kong Tel. 1018 691.11.52

.on DEF 35/51/01

　　　　　　　　　　Both the economic and the political situation have contributed to a recent increase in serious crime. During the past two months firearms have been used in 18 cases of robbery, and there have been 30 cases of illegal possession of arms and ammunition. While this increased crime is partly due to the growth of unemployment, there has also been an influx of Nationalist guerillas from Macao, who have left there because of Communist infiltration following the border incidents of last July. These men have been smuggled into Hong Kong where they have gone to ground in the squatter areas.

DRAFT

Mr. Kittler "/u

Mr.

Harris WAIT.

Mr.

Mr....

FILE No. HKP 188/85/01

*SAVINGRAM

* The word Priority may, if necessary, be entered here.

Addressed to :-

Sovernor

Repeated to :-

động trong

Number.

Savingrams only.

Your reference 23/3231

Serial No.

Time and date

hours

195..

Urgency classification :-

Nil

Reply urgently required Priority

Sir

Permt. U.S. of S.

Medium :-

Parly U.S. of S.

En clair or

Minister of State

Code

Secretary of State

Cypher

(12)

My Saving No. 1712

Distribution:

Immediate

Emergency

Emergency Regulation

Security classification :-

Linolassified

Restricted

Confidential

Top-Seoret Goard

of 18th October 1952.

116 A.

Grateful to learn whether you

comments in

any

my saving

have

reply to para 2.

under refereme.

Further action :-

(7081) (1) WE 17143-5500 2,500 pads 10/80 G.5.St.

Decer

C.S. 48.

Colonial Secretariat file No. 25/5231/50

SAVINGRAM

To the Secretary of State for the Colonics.

From the Governor, Hong Kong.

Date 27.

No. 1355....

November, 1952

SECRET

تو

October,

Your savingrem No. 1712 of the 18th

Emergency Regulation 116A

Copy flagged at (son)

With reference to your second

paragraph I regret to inform you that the improvement has not been maintained; criminal cases involving the use of arms have increased recently and there is reason to suspect that numbers of dangerous criminals have entered the Colony from liacao. The effect of the present deterioration in the economic situation is more likely to be an increase rather than a decrease in crime. In the circumstances I can see no early prospect of being able to recommend the repeal of Emergency Regulation 116A.

DRH:b

-9 DEC 1952

14237/15/57 stigs

FILE No. HKP 4/25/01

DRAFT

TELEGRAM*

*SAVINGRAM

• The word Priority may, if necessary, be entered here.

Addressed to:-

Sovernor

Mr.

hither 1/12 Harrsi |||Lalamus

Repeated to :-

Mr.

Mr..

Sir

Permt. U.S. of S.

Medium:

Parly U.S. of S.

Minister of State

Secretary of State

En clair or

Code

Cypher

(16)

Distribution -

Further action :-

(2701) (1) Wt 27143-5503 2,500 pada 10/50 G.5.9%

Hong Đang rộng

Number..

Savingrams only.

Your reference 23/3231/5

Serial No. 2075

C. D.

313

311

R. 18 DEC

Urgency classification -

Nil

Reply urgently required Priority

Immediate

Emergency

Time and date

20 DEC 02

hours

24. UCC - 32........ 195. -

Security classification:-

Unclassified

Restricted Confidentiel

Secret Top Secret

Guard

Your Shaving M. 1855 of the 28th Nov. 1952.

Emergency Regulation 116 A

Your vicus, as to prospect of requel of Emergency

my repeat Contents of your basong compler

have been notiel.

Regulatim 116 A

referenss

Decer.

IIKI 488/85/01

63-7

Saving

Your Ref': 23/3231/50

Frò the Secretary of State for the Colonies.

To the Officer Administering the Government of

December, 1952.

Date!

HONG KONG

No. 20.75

Saving

SECRET

No. of copies sent..

Your Saving No. 1855 of the 28th November, 1952.

Emergency Regulation 116A.

　　　　　Your views as to prospect of early repeal of Emergency Regulation 116A have been noted.

SECER.

REVOLVERS

HONGKONG DEC 23 REUTER

A LAWYER DEFENDING A

H: 464.

CHARGED HERE TODAY WITH POSSESSING TWO REVOLVERS AND

AMMUNITION PLEADED THAT HIS CLIENT WAS SMUGGLING ARMS OUT OF

HONGKONG FOR ANTI-COMMUNIST GUERILLAS IN CHINA.

4.452

appymiale Joke.

Capy shad

Emery:

до на Reyno Like

E.K.

HE HAD NO INTENTION OF USING THEM FOR UNLAWFUL PURPOSES IN

HONGKONG, THE LAWYER SAID.

THE MAN, WONG HON, 38, WAS SENTENCED TO TWO AND A HALF

YEARS IMPRISONMENT.

ANOTHER CHINESE, CHAN CHUNG CHUNG, 30, WAS GIVEN SIX

YEARS IN GAOL AND 12 STROKES OF THE CANE FOR POSSESSING A

REVOLVER AND SIX ROUNDS OF AMMUNITION. HE PLEADED GUILTY.

IT WAS STATED IN COURT THAT HE HAD BETRAYED WONG HON

TO THE POLICE.

THE JUDGE, PASSING SENTENCE, SAID HE TAKEN INTO ACCOUNT

THAT FACT THAT THERE WERE NO HOSTILE INTENTIONS TOWARDS THE

PEOPLE OF HONGKONG. HE ADDED:

　　　　　　　"WE CANNOT TOLERATE PEOPLE COLLECTING ARMS, WHETHER THEY ARE GOING TO BE USED HERE OR ELSEWHERE.

REUTER 0847..

بياء

EK, ULA

E.Reap

Extract from Hong Kong Police Special Branch Summary

November 1952..

SECRET

(b)

Arrests for Possession of Arma

　　　　　　On 5.11.52, 7 men were arrested by New Territories Police at a boarding house in Un Long. Consequent upon these arrests, 4 revolvers were recovered from various parts of the Un Long area. Enquiries as to the background of these men were made, and they were found to have been members of a guerrilla bandit gang, which, due to pressure by the Communist authorities, were forced to flee to Hong Kong, bringing their revolvers with them, There is no indication that they had been using the Colony as a base for guerrilla activity in Chinese Territory.

(

On the same day, a Chinese male named LAU PAK CHIU ) was arrested, when found in constructive possession of a revolver at Lau Fau Shan. LAU PAK CHIU is a cousin of LAU TING PING (

) deported from this Colony in

November, 1951, for undesirable political activity.

LAU PAK CHIV, himself, is a Colonel in the 4th Army of the Hunan-Kiangsi Border People's Anti-Communist Surprise

Attack Force, but nothing has been found to indicate that he is active politically.

tariat File No. 23/3231/50

SAVINGRAM

Le Secretary of State for the Colonies.

From the Governor, Hong Kong,

Date

March 1953...

No. Job!.... SECRET.

b 1952.

My savingram No. 1855 of 28th November,

Emergency Regulation 116A.

　　　　　　　　The continuance in force of Emergency Regulation 116A has been approved by you up to 19th April, 1953. I am satisfied that con- ditions in Hong Kong are not yet such as to justify the repeal of this Regulation and I request your approval for its continuance for a further period of six months.

whand

INL:RBB:nrw

8 - APR 1953

"S CERCE

VAICE

DRAFT

FILE No. HKP 488/85/01

TELEGRAM. TELEGRAFF*

* SAVINGRAM

* The word Priority may, if necessary, be entered here.

Savingrams only.

388. Your reference

Addressed to --

Sovernor

Number.

Hong Kong

Repeated to :--

whe

Mr..

hittler 1/4

Mr. Hapherson D Mr. Barton

Mr.

Harris 1314

Mr. Paskin Sir Charles Jiffnes

"U.S. of $.

Parly. U.S. of S.

Minister of State

Medium:

ху

En chip of

Secretary of State

Cypher

1 5 APR 1953

ན

In Tei. C.D.

Urgency classification:-

Nil

Reply urgently required Priority Immédiate

Emergency

Your Savingram to +6,

Emergency Regulation 116A

Serial No.

Time and date Simple

1736

hours

1953

Security efassification :-

Unclassified Restricted Confidential Secret Top-Secret- Guard-

I approve the continuance in force of

1953.

Emergency Regulation

116 A

for à further period

+ of

Octoba 1955

six months from 19th April,

Des paliù follows.

kte

Distribution :-

Further action :-

Secur

SECRET OUTWARD TELEGRAM

FROM THE SECRETARY OF STATE FOR THE COLONIES

TO HONG KONG (Sir A, Grantham)

Simplex

HKP 488/85/01

Sent 16th April, 1953.

17.30 hrs.

SECRET No. 388

Your Savingram No. 461.

Emergency Regulation 116A.

I approve the continuance in force of Emergency Regulation 116A for a further period of six months from 19th April, 1953.

Despatch follows.

Colonial Secretariat

No. 2/3011/46

SAVINGRAM

To the Secretary of State for the Colonies.

From the Governor, Hong Kong.

Date

13th April, 1955......

No.

556

211

14237/2/1/46

cit

Сарус

　　　　　　　With reference to Mr. Creech Jones' circular savingram of 18th July, 1946, on the subject of emergency legislation, and in accordance with the request in the last paragraph, I report below the general position for the six months' period from the 1st September, 1952, to 28th February, 1953.

With reference to the Emergency (Principal) Regulations, 1949 (G.N.A. 277/49), regulation 4 has been declared to be in operation by G.N.A. 216/52.

For the same period under review, certain Emergency Regulations have been enacted under the Emergency Regulations Ordinance, 1922, viz

(a) Emergency (Special Constabulary) (Amendment)

Regulations, 1953, (G.II.A. 9/53)

These regulations amend the principal regulations by providing that members of the Special Constabulary, when called out on active service for a purpose connected with the peace and good order of the Colony, shall henceforth be cligible to receive the same rates of pay and allowances as other members of the Emergency Services would be eligible to receive in the same circumstances. Heretofore, the pay and allowances which members of the Special Constabulary were eligible to receive have been equated to Police Force rates, and not to the rates applicable to the Royal Hong Kong Defence Force and the Essential Services Corps; which was considered to be inequitable.

(b) Emergency (Special Constabulary) (Amendment)

(No. 2) Regulations, 1953. (G.N.A. 36/53)

These regulations amend the principal

regulations by adding to the list of ranks which, by virtue of regulation 2 and the Second Schedule of the principal regulations, are to correspond to ranks in the Army.

　　　　　　　During this period only two units, all comprising land in the New Territories, were requisitioned. are retrospective requisitionings for the Army.

Both

In the same period a total of nineteen and helf units were de-requisitioned eight by the Army and eleven and half by the Government. The latter figure includes the eight units which were transferred to Government by the Army as mentioned in the last report.

cit

Mr.

Sir

Mostumes 415

Hopkinm 4.5

Barton

Sidebotham 5/5 %. sf

- +

File No. HKP 480/55/07.

Adam para m

WILL

THOUT L

----

Permt. U.S. of S.

Parly. U.Ș. of S.

Minister of State

Secretary of State

Your Reference....

S MAY

10. 6-

Like undervannam 1+

Date..

беснев

7.5.53

DRAFT despatat

Hory Kay

No. 688

Gormor.

( ༢॰)

Str

I have ite

rifer

上

tilgram No. 388 of the 14th April 1953,

which I approved

force for

months from Hi

the continuance

further period of six

Hi 19K Apil 1953

Limergency Regulatim 116 A

that Trany, or furnished with request you to submit

report at the

Thould you

and

full

end of that period

desire

infru

further continuance of

recommend

this Regulation.

{

Such report should in particular,

Adda,

state what in Your Advisers

you

view and

Hat

Las

been the effect

FURTHER ACTION

of Emergency Regulation 116 A

would be the likely effect of

and

what

discontinuing it yter the

1812 October

1953.

I have etc.

OLIVER LYTTELTON

HKP 488/85/01

FECRET

HONG KONG

ОН

sir,

688

OGLONIAL OFFICE,

The Church House,

Great Smith Street,

London, S.W. 1.

7 ley, 1953.

No. of copies sent.........

I have the honour to refer to my telegram No. 388 of the 16th April 1953, in which I approved the continuance in force for a further period of six months from the 19th April 1953 of Emergency Regulation 116A, and to request that I may be furni shod with a full report at the end of that period should you desire to recommend the further continuance in force of this Regulation, Such report should, in particular, state what in your view and that of Your Advisers has been the effect of Emergency Regulation 116A and what would be the likely effect of discontinuing it after the 18th October 1953.

I have the honour to be,

sir,

Your most obedient,

humble servant,

GOVERNOR,

OLIVER LYTTELTON

SIR ALEXANDER GRANTHAM, G.C.MG.,

etc.,

etc.

53,

ERM.CH. HKP 188/85/01

YOUR REFERENCE 2/3011/46

HOT ONG

701

NO.

THE COLONIAL OFFICE,

THE CHUNCH HOUSE,

GREAT SHITH STREET,

LONDON, 2. V. 1.

8. Nay, 1955.

sir,

　　　　　　I have the honour to acknowledge receipt of your savingram No. 556 of 13th April 1953 on the subject of emergency legislation in Hong Kong, the contents of which have been noted

with interest.

GOVERNOR,

I have the honour to be

Sir,

Your most obedient, humble Servant,

OLIVER LYTTELTON

SIR ALEXANDER GRANTHAH, G.C.MG.,

etc.,

etc..

etc.,

Mr.

File No. MKP 488/85/01

54 23

Littler /5 Harris ||$

-------- A

---- I

Permt. U.S. of S.

Parly. U.S. of S.

Minister of State

----IILI

Mr.

Sir

---

DRAFT Despatch

　　　trong xong No 701

Sovernor

Secretary of State

Date.

8. May 1953.

Your Reference 2/3011/46

thir,

I have etc to ask. receipt of your (21) savingsan No. 556 of 13th April 1953 the subject of emergency legislation Hong Kong, the contents of which have been noted with interest.

FURTHER ACTION

(27686) (1) WI. 27142--5502 5m paris 10:50 GSM.

I have to.

OLIVER LYTTELTON

527

H:40/4

CANE

HONGKONG MAY 27

REUTER -TWO CHINESE WERE TODAY GIVEN

　　LONG PRISON SENTENCES AND 12 STROKES OF THE CANE EACH FOR POSSESSING ARMS WITHOUT A LICENCE AND CARRYING EXPLOSIVES.

USTICE A D SCHOLES, WHO PASSED SENTENCE, SAID THE NATURE OF THE WEAPONS MADE THE CASE "VERY SERIOUS.

SPREAD BEFORE HIM ON A TABLE IN THE CRIMINAL COURT WERE THE ARMS INVOLVED - 17 REVOLVERS, ONE AUTOMATIC PISTOL, OVER 800 ROUNDS OF AMMUNITION, 136 POUNDS OF HIGH EXPLOSIVES, 97 DEMOLITION DEVICES, 192 BLOCKS OF NAPALM (JELLIED PETROL) AND 430 DETONATORS.

　　　　　THE ACCUSED, LAM KAR, 36, WAS SENT TO PRISON FOR 10 YEARS AND CHEUNG KEUNG, 20, FOR EIGHT YEARS.

1125

REUTER BD

452

ふく

23/3231/50

SAVINGRAM

To the Secretary of State for the Colonies.

From the Governor, Hong Kong.

Date 10June, 1953.

No. 8.36.

SECRET

"That

}

50 25

変

HONIAL OFFIC

Your despatch No.688 of 7th May.

Emergency Regulation 1164

I regret that I see no prospect of being able to recommend the discontinuance in force of this regulation for the present. The following figures illustrate the incidence of armed crimes in recent years:-

Crimes involving arms

Jan

1949

1950

1951

1952

Abril 1953

Murder (involving firearms)

Armed Robberies and attempts

129

191

Armed Highway robberies

Armed robberies in British Waters

Possession of arms (or explosives) 136

170

　　Other crimes involving arms (or explosives)

Total. 326

147

B - Ratio of Armed and Unarmed Robberies

obberies 172

155

Jan

1949

1950

1951

1952

Anril 1953

Armed

181

254

Unarmed

These figures show that:-

(a) There has been a marked decline in the number of

offences involving arms since the introduction of regulation 116A in October, 1950.

(b) During the same period, there has been no com-

parable reduction in the number of unarmed robberies.

メ

The present depressed economic state of the Colony makes it essential to guard against the danger of a sharp increase

CANE

SAVINGRAM

To the Secretary of State for the Colonies.

From the Governor, Hong Kong.

Date

No.

in the incidence of crimes of violence involving the use of arms, which might reasonably be expected in the circumstances to occur. I am satisfied that the present actual reduction in such crimes as shewn in the figures quoted can largely be attributed to the deterrent effect of the regulation. This effect moreover must be due mainly to the mere existence of the regulation, since it is of course employed with the greatest restraint and has been invoked on three occasions only since it was brought into force.

Not only does the regulation have a deterrent effect but (as is shown by the fact that it was asked for in the first place by Unofficial Members of Executive Council) it creates a valuable sense of security amongst the law abiding members of the community and re-inforces confidence in Government's power to maintain order. The maintenance of this sense of security is also, in itself, a contributory factor in minimizing the danger of an increase in armed grimes.

It is for these reasons that I am convinced it would be unwise to discontinue the regulation in the foreseeable future.

OCT:pe

Saving

the Secretary of State for the Colonies.

To the Officer Administering the Government of...

182 1,58/85/01/20

BUNG KO

Date

No....

30 1017.

Jime, 1953.

Saving

SECTET

No, u. copios sent

Your Savingran llo, 836 of 10th June, 1953.

Emergency Regulation 116A

I am grateful for your savingram under reference, the contents of which have been noted,

2. I do not propose to offer any comments at this stage. I would, however, be obliged if, should you wish to continus the Regulation in force for a further six months from Uctober, you would during September next provide details to bring the information contained in your savingram under reference up to date.

SECUR

C.O.

Mr. Littler

ittler*%

Barton

Mr.

TELEGRAM/

Draft

File No.

* SAVINGRAM

*The word Priority may be entered hara, If necessary.

Repeated to:-

Mr. Hopkinson 136

2316

Mr. Harria.

GOVERNOR,

HONG KONG

2. 77 D. 27

HKP 488/85/01

Sent.

30.6.53

hours

.194..

Mr.

Sir Side botham 23/6

In Parkin

Permt. U.S. Lof Parly. U.S. of S.

S. of S.

adme.

Priority:-

Nil.

Reply urgently required. Important.

Immediate.

Most Imanadiate.

To be transmitted :-

In Clear

Code-

Cypher

No.

1019

Restricter.

Confidential.

Secret.

Top Secret and Personal.

(25)

•

Your Savingram No. 836 of 10th June, 1953.

Emergency Regulation 1164

I am grateful for your savingram under

　　　　　　　　　　　noted reference, the contents of which have been examined

with considerable interest.

2. I do not propose to offer any comments

at this stage. I would, however, be obliged if,

should you wish to continue the Regulation in force

Jaring

a-further six months from October, you would

ember hext,

details

ime provide in Mebium-to bring the information

contained in your savingram under reference up to date,

SECER

REARMS

rice of recent f MER. HEA)

4.452

Rm pile.

HONGKONG JUNE 30 REUTER JUDGE C.W. REECE TODAY SENTENCED TO DEATH A 30-YEAR OLD UNEMPLOYED CHINESE, HUI SHEK YUEN, WHO PLEADED GUILTY TO USING FIREARMS IN A STREET GUN BATTLE WITH POLICE.

　　　　　HUI WAS CHARGED UNDER EMERGENCY REGULATIONS WHICH PROVIDE THE DEATH PENALTY FOR THE USE OF FIREARMS. HE AND A POLICE DETECTIVE WERE BOTH INJURED BY GUNFIRE ON JANUARY 22 THIS YEAR.

HUI, ASKING FOR MERCY, SAID HE HAD NO INTENTION OF FIRING UNTIL THE DETECTIVE FIRED AT HIM.

　　　　　JUDGE REECE, AN ENGLISHMAN, SAID THE MERCY PLEA WOULD BE PASSED TO THE PROPER AUTHORITY.

REUTER BQ OF

IERS 1

REUTER

44.

4:22A

H&52

HONGKONG SEPT 28

　　　　　　　　　　　　　　　　　　　　　　　　TWO BRITISH SOLDIERS, DRIVEP JACK LAWTON, 22, OF LAWNHEAD, STAFF OPDSHIPE, AND DEIVER NORMAN HARDMAN, 20, OF KEIGHLEY, YORKSHIRE, WERF TODAY COMMITTED FOR TRIAL ON A CHARGE OF HOLDING UP A CHINESE TAXI DRIVER WHEN ARMED WITH A STEN GUN ON AUGUST 4.

LAWTON WAS ALSO COMMITTED FOR TRIAL ON A CHARGE OF STEALING A STEN GUN AND 35 ROUNDS OF AMMUNITION FROM A POYAL ARMY SERVICE CORPS CAMP IN THE HONGKONG NEW TERRITORIES.

Ram Hut $88/0s por

MORE FD..124P

SOLDIERS 2 HONGKONG

THE TAXI DRIVEF, TANG MAN SANG, TOLD KOWLOON POLICE COURT THE SOLDIERS OFDERED HIM TO DRIVE HIS TAY! OFF A MAIN ROAD AT NIGHT. HARDMAN HELD THE GUN IN A PARCEL UNDER HIS ARMPIT.

　　　　　LAWTON STFUCK HIM ON THE NECK, TANG MAN SANG CONTINUED. THE SOLDIERS TIED HIM UP WITH A TORN TOWEL, TOOK 35 HONGKONG DOLLARS CABOUT TWO POUNDS STEPLING) AND HIS WRIST WATCH AND PUSHED HIM INTO A CREEK.

THE SOLDIERS, WHO ARE BOTH ATTACHED TO THE EIGHTH COMPANY, ROYAL ARMY SERVICE CORPS, DID NOT GIVE EVIDENCE.

　　　　　THEY WILL BE ASKED TO PLEAD WHEN THEIR TRIAL BEGINS AT THE NEXT HONGKONG CRIMINAL SESSIONS.

REUTEP FD 1306

DRAFT

Mr....

Mr.....

Littler 1879

Mr......

Harris

488/85/01

FILE No. AKP £38,

TELEGRAM/

The word Priority may, if necessary, be entered here.

Addressed to :-

волочном Hong

Kong

Repeated to :--

Number.

Savingrams only.

Your reference

Serial No.

Time and date

hours

195..

Sir

Permt. U.S. of S.

Medium :-

Urgency classification :-

Security, classification :-

Parly U.S. of S.

Nil

Unclassified

En cláir or

Minister of State

Secretary of State

Code

Cypher

Reply urgently required Priority

Immediate

(26)

Distribution :-

Emergency

Restricted Confidential

Secret Top Secret Guard

My Savingram No 1019 of 30m

Emergency Regulation 116A.

My para 2. Grateful for early notification if you intend further

extension.

зона дина

Juna 1953

Further action :-

W: 27143-5503 2,500 pads 10:50 G.5.St.

dear.

4328

Colonial Secretariat file No. 25/5251/50

SAVINGRAM

To the Secretary of State for the Colonies.

From the Governor, Hong Kong.

Date

251E

September, 1953

No.

1371

SECRET

RECEIVED

30 SEP 1953

SOCIAL SERVICES

REGIST

CHIFF

30 SEP 1953

COLOMA OFFICE

June.

Your Secret savingran No. 1019 of 30th

Emergency Regulation 116

　　　　Figures given in my savingram No. 856 of 10th June should be brought up to date by the deletion of the last column headed "January - April 1953" in sections A and B and the substitution therefor of the following :-

A-Crimes involving arms

Murder (involving firearms)

Armed robberies and attempts

Armed highway robberies

Armed robberies in British waters

Possession of arms (or explosives)

Other crimes involving arms (or

explosives)

B - Ratio of Armed and Unarmed Robberies

Armed

Unarmed

January - August 1955

January

August 1953

One Chinese male has been convicted and sentenced

to death under Emergency Regulation 116A, the sentence having been carried out, during the period April - August 1953. One Police Constable and a bystander were wounded by firearms in another incident, but the man arrested was found not guilty at his trial.

been seized:-

During the same period, the following arms have

Revolvers

Automatics

Rifles/Carbines

Machine Guns

In my opinion, the above figures support the view 25 expressed in my savingram No. 836 that there is a real need for the

continuance in force of this Regulation, and that it has a demonstrable deterrent effect.

DRAFT

FILE No...

TELEGRAM/*

HKP

488/85701

*SAVINGRAM

* The word Priority may, if necessary, be entered here.

Sided Man 15 g Repeated to: -

Addressed to:-

Mr.

.... Attam's 14/10

Mr.

Sir

F.LI

---------------ITËTTE

abo

Grovemar

Hồng Kông.

Number.

936

Permt. U.S. of S.

Medium:

Parly U.S. of S.

En clair or

Minister of Ste-

Secretary of State

Code

Cypher

Distribution:

BEA

1 @ OCT 1953

{} } -

Urgency classification:-

Nil

Reply urgently required Priority

Inkmediate

Emergency

(28)

Your

Savingsam

No. 1371.

Savingrams only.

Your reference

Serial No.

супва отр

Time and date

10 30

16.40

- d

hours

195.

Security classification: -

Unclassified

Restricted Confidential Secret Top Secret Guard

six

approve the continuance in force of Emergency Regulation 116A for a further period of months from 19th October 1953 .

Leer.

Further a 'ion: -

NOT COPIED

(11576) Wt. 14981/6292 2,500 pads 7/53 C &Co. 745(8)

Golenial Secretariat file No. 2/3011/46

SAVINGRAM

To the Secretary of State for the Colonies.

From the Governor, Hong Kong.

Date 25 September, 1955

No.

1378

Carly

　　　　　　　With reference to Mr. Creech Jones' circular savingram of 18th July, 1946, on the subject of emergenoy legislation, and in accordance with the request in the last paragraph, I repert below the general position for the six months' period from 1st March, 1953, to 31st August, 1955.

The only Emergency Regulations enacted under the Emergency Regulations Ordinance (Cap. 241) during the period under review are the Emergency (Tavortation and Emortation Ordinance) (Amendment) Regulations. 1955 (G.N.A. 99/55), designed to remedy without delay certain defects which had been discovered in the operation of the Importation and Exportation Ordinance (Cap. 50) and to make more effective the measures necessary to combat the ingenuity of persons minded to evade the restrictions imposed upon imports into and exports from the Colony. In particular :-

(a)

(b)

(*)

power is given for the cancellation of import and export permits (but with safeguards to the trader) and the fraudulent transfer of such permits is made an offence (reg. 4);

the law relating to detention, search, seizure and forfeiture is modified (regs. 7, 8 and 10) the modified provisions being largely modelled upon the Customs and Excise Act, 1952. The persona authorized to conduct searches and make arrests and seizures are more precisely defined and now specifically include revenue officers, police officers not below the rank of sub-inspector and commissioned officers of H.M. Forces;

regulation 5 of the Emergency (Exportation) (Miscellaneous Provisions) Regulations, 1951 (G.N.A. 76/51) (paña 5(a) of my despatch No. 85 of 12th September 1951 refers) is rescinded (reg. 12) and a modified version reenacted (reg. 9).

During the period under review, four units, all comprising land in the New Territories, were requisitioned. All are retrospective requisitioning for the Army.

　　　　　　　In the same peried a total of eight and a half units were derequisitioned, six and a half by Government and two by the Army. The Government derequisitioning included five uni ta of ex-enemy property which were purchased by Government.

Mr.

Sir

Littler 7/10

Harrin 9/10 at mu•

DRAFT Despatch

Hang xong

Governo.

1616

LILIJ

File No. HP 488/85/01

Permt. U.S. of S.

Parly. U.S. of S.

Minister of State

Secretary of State

Your Reference 2/3011/46

din,

40 31

OCT

Date

21./10/53

JILL+

I have ate to ack receipt of your

No. 1378 of 25th Sept 1953,

(30) despertadan savingram

the savingram No. 1378

concerning Semergency Legislation in Hong Kong,

the contents of which have been noted with interest.

I have te

FURTHER ACTION

(27808) (1) WC. 27142-5502 5m pads 10,50 G.S.50.

OLIVER LYTTEL ON

Sent Pj

1 Maytay Tal 18 diens My 3//2

M' Hall

You have already

seen

(1)

the Garr tears that the

Full Court

have occasion

may

No 5 of 1982 as numbed

to decide either that

(a) The Emergency Regs. Ord. (No 8 of 1949) is ultra vires.

or (by that E.R. 116 A is ultra vires.

He points out that in either event validating legislation with retrospective effect will be necessary,

if the fast wine their

　　　　　　　　　　　Since "the hiches with and completely upset the menchinery of Gart

an early

"reply to (i) before 1644, ala The Gour and like - preferably before 16/1 when argument before the sapcornstull I have therefore put these pps in red.

appeal from the Full Court to the Privy Council,

fourt takes place.

The relevant legislation is Hagged

كر

enclosed,

Reg.

JIGA is

is either

the 'Emergency Regs' file attached, and

aH10A)/14237/15/51.

I understand

that Mu Hopkinson is the Adviser initially concerned.

As regards the validity of Wan & the Ordinance, see

M' Dale's mins

mins 19/5/49 1mins

кый

(4).

See alsof (6)

(7)

14237/15/49 3/6/49 1hid;

in 1423

that file

which express the view See alsog') this which giver

　　　　　　　　　From that the Ordinance is intra vires in the the ang paulits.

sentence of

2 of (1) para

it wit seem that the Gar' is

merely taking precautionary measures, in seeking an advice,

but perhaps

M' Hopkinson ed

(a) Whether there seem

say

good grands for acquing that the full Const will rule the Ordinance wtro vires.

(b) whether the introduction of

validating ordinance is

the only / best way of dealing with the situation that

will then write.

passage of a

validating ordinance kap while the matter was still sub judice. i.e. before the Privy Council had

given judgement.

А.А.Андельш

8/1

Pleas

Lux May wh

your advice

no (1). A lief history

Soun

in the Anderson's mine of 8/1.

H.K. mnt

essly

anner asce end of last pass.

Wall

8/1

i N. 5 of 1922 (attached)

Sir L. Gibson

Please see (197mm Anderson's minute of 8.1 galove.

3(12) with regard to question (A) in pona 1 of (1) :-

он

It is not explained vires of the "Ordinance so I have not attempted to

question.

But in view

the rough examination

at (7)

what grounds the beeing challenged,

comicher thing Что завед

vay

the whole quartian,

14227/15/1949, it seems

faily

certain that the didinance is inter vies.

But, in view of your

Knowledge

of your fist hand

the whole problem

no doubt be able to advise

question

afinisan.

you will

this

(I hope) to confirm In Dale's premens

(1) with regard to quarkan (B) :-

quick

From

the Dulinance it

lash at feet 2 (1) of

mat molly

that the Coumb would declare Reg 116 A

ultra vines,

became of the absence

recital of envergency.

Sut 2 (1) does not require that such

be made.

i a recital should

moreover it is so dufted that the

фотов

for

ва

Cont cannet enquire into the grounds

the governes-in-Concil's belief Mich

долиновой bed to the making of the regulations,

perhaps, the long fides of the

milers,

Journer in Cancil is challenged. But this necessitate definite affirmative

должен would

& the absence

evilucę

recital of emergency

is clearly not sufficient preof, by itself. 3. If purchase, the Comt did hold that the didinante

Regulation

vives,

imagine that

way

ulka

validating Ordinance

with retrospective affect would be the

best

& most convenient with the situation.

4. But if this

Seem

the

were

way of dealing

done, it would to affect to;

quite unecesary think Hong Kong I

Privy Council, should be bold so.

J. E. Hofkumain

9.1.52

Mr. Hopkinson,

As regards ground A, I think it is pretty clear that the point involved is that considered by Mr. Dale in his minutes of 19.5.49. and 3.6.49. in 14237/15/49. I agree with the views expressed by Mr. Dale.

As regards ground B, I agree with you that it seems almost inconceivable that the Court should hold the Regulation to be ultra vires for the reason stated. The Regulations containing Article 116A purport to be made in exercise of the powers conferred by the Ordinances and it must surely be assumed, at least until the contrary be shown, that the Governor in Council was satisfied as to the existence of the emergency. Liversidge v. Anderson and Greene v. the Secretary of State which are cited in 1942 Appeal Cases, deal with executive and not legislative acts but may assist the Attorney-General.

13.

In the event of the Full Court allowing the appeal on either ground, I agree that validating legislation by Ordinance would be necessary. If ground B succeeded, the form of the legislation would rather depend on whether the Court's decision was of general application or was concerned only with the case of the Emergency Regulations Ordinance. If the decision was a general application it would probably be desirable to enact a provision of general application (possibly in the Interpretation Ordinance) dispensing with the necessity for recitals in these

cases.

I agree that validating legislation ought not to deprive a successful appellant of the fruits of his victory.

If the appeal to the Full Court succeeds it would presumably be desirable to enact the validating legislation at once because of the likeli- hood of further cases arising. Once the validating legislation was enacted there would presumably be no point in proceeding with any appeal to the Privy Council.

(Sir Leslie Gibson) 9th January, 1952.

Now Hall

Pleas

see Sir R. Gibson's minute alove.

J. z. Hoblemain

9.1.52

Mr Hopfeiern, we spoken & I have attempted a draft on the basis of

the mins alone. I home not attempted to shorten it as the A.G.

would probably scheme as full a

siply as possible,

ним

10/1

I have deleted the front of fave 2. taken

from on the

lung

based

minute

of 9.1

this

which

reasonning

Cont

referring

the AG.

cases

J.5. Hahlmei

(0.1

Mr. Paskir

Peskin.

1011

You should be aware of the fact that the question whether the Emergency Regulations Ordinance in Hong Kong is ultra vires, and whether, in particular, Regulation 116A was ultra vires the enabling Ordinance, is coming before the Full Court in Hong Kong.

The point was considered at an earlier stage by Mr. Dale (see X of Mr. Anderson's minute above) and his view, with which Sir L. Gibson agrees, is that the Ordinance is intra vires and that it is almost inconceivable that the Court will hold the Regulation to be ultra vires.

The Governor has, however, asked for our comments and it is proposed to give them as in draft herewith with which I agree.

JB S

10. 1. 1952.

2 Gov. Hong Hong tet Roy1 Secret

Hougtong

3 Hong Kay - bar. 115

nn Hall & Mr. Hopkinson to see (3).

vfros 14/2

11.1.52.

15/1/52.

12h

+ Legal library note);

M. Hopkinsa

file.

telus

H m (20) +(12) a 14237/15/51 below & (3) in this

The position about the to mergency (Requenction) Regs 1949

does not seen

entirely satisfactory

of the regs nomin

нер

in force while in others identical regs of the Emerging (Princips)

Legs free also ben bright its force,

If Inver

you

satisfied, we one

put this boys

Hall 4/2

Ting Front

на

Hay (3) hus wiser comequent und Rushford's minute at (20) file & I think he should

મ

the 1951

see this therefore

Latony Segel

15/3

The will however be 15th March.

you

Can

warange

brought wh wh

H-4453

until the

awszy I shall be glad

glud if

for this to be

then, for his consideration

5. Hopkinson's

22.2.52

Please bring up to M. Rushford

as in M. Hopkinson's minute above.

Ave

To retain lying

To wote, wide s pl. when was. Rundfod

4/2

ther's wing

wing wh

109

To me (3) mil Biplasm

ить

6/3

Lan

"REN.4/2.25/2.

Hony Kay Legal Dift Neo/st.

Hasi

With

file, would

on which

regund

200/800/12

(rens ↳ LEG 48/134/01 ·

15/3

23/2

4/3/5

e the letter offerte,

is 149

an the

you plene fit up the file (54126/13),

to which reference

54126/13/50

is made in the letten?

th Hopkinsm

J. &. Hafkammar

13·3.

The nef should be item 1097/54/20/18/50

5 Haytay - Susp. 391 Ser

My Hoptonton.

3/3/52.

I would be grateful for you

~·(4) 45),

Ellall

2175,

Ks. Claud

137

};

m2 Hall

With refenuce

* (3)

адчи

that

the

position

about

Reas,1949

E mugene (Requeritian) Reas, 1949.

not

entirely satur factory

should

have

thought

나

wohls

ہنا

bette

Lohen

Emugency (Principal)

Ридо

id intre al

fum

hur

hought

istí

force

expressly

rothe

Е пидму

(Requisitiri ) Regs

списный,

k get

them

Aut

way

avrid

anfusion

Ir might

thami

£ HK

worth

lễ tình

تا

suggest

Senni - efficically)

then

вид

though

new

jom. ta

point

'Y IK

has

Ome

heom

ट्र

wirkj

Кир

کچھ

kingcum

Legal

(Requisitm) Regs

Library

Mudany

to see

(3)

ada

Wit

position

ہا

Win

пришлось

(+)

ans

Hopkinso

ท

likely

Leave

until

Earle

y you

think

thee

I will

any

ingeniy

attempt

deal

wit

Tunin

but

the erase

think

ثل

Whils

ine

belm

приме

xlumā

thin

Sany

April

15th

buat

Madhy

considu

thum

in famili

with

The

carli

matter.

обедно

Panhay

mean time

статист

oth-

Dents

(if any)?

A.R. Rushyos

26.3.52

Ti L.

L. Gibson

1. Please

Sen (5)

the file. You will see

at pan 8 B. 88.

that

new

draft Reg. 116 has been

submitted for afferoval

at para 9

рига 9 се

have been

not

arked to make "constructive

suggestions" for improving

improving it's foren.

sme however whether

the creation

new

offence

possession of

cache

arsenal

→

good idea

anyway

of present

drafted. As is

is admitted in kma. 9,

define these

seems very difficult to definie

terms. Moreover I notice thouf neither

the UK., now

iin

malaya, where posesions of

is furnished by deaths,

Sunder offence.

Para (3) of the

there

any?

new draft regulations

that

seems to be open to objections in thub

it would

Seem

to afbly

even

possession of

rober

single firearm. For are

grenade would "constitute a

serious threat to the lives

of members of

the commmity if it fell into the posunion

of persons profmed t

it in th

execution of crimes of violence?

that the only fe

would be

of seems

definite way

the word 'cache'

Lebine it

of doing it

being

firemms

collection of two ai

six (?) a

mon frères

ammunition

explosive substance.

But Hong Kong has apparently heady

dismissed

the

iden

of defining in

terms of

Whe

umbers.

it seems to

to rebly

ine

In consequence

that the only solution

that as

it soms is impossible to dicht

clause it seems better

Satisfactory

to drop the idea of creating this new offence. They will then have to decide

to retain the death penallig

Metter

for possession of

2. The

سلية

arms

draft Regulation does

not seem to have been drafted

well

very to

гово

use

the Arms

it also

seems confrening

deg 116 - to

two separate enactments

- Ammunition Audie

deal with the

the same

However it is of the office

same type of offence. not usually the practice

to examine

office to

of subordinate legislaken.

I think

suggestion made

criticise the drafting

approve The

in hamn. I of (5). It

seems very molikely that

any attempt will

be made to declare invalid sentences

imposed under the Awns & Ammunition Ordce.

J. E. Hoffman

Action is being onfe helite with the (+) while old office precedents

of 1966 * 19%G

}

Mr. Hopkinson,

I entirely agree with your comments on a new Regulation 116(3). The Hong Kong despatch lays emphasis on the test that the quantity and character of the arms etc., must be such as to constitute a serious threat to the lives of members of the community if they fell into the possession of persons prepared to use the same in the execution of crimes of violence, but, as you say, this is clearly no test at all since a single fire arm of a lethal character would obviously constitute such a threat.

I also agree with you that we can approve the suggestion made in paragraph 11 of the despatch.

While we do not usually comment on the drafting of subsidiary legislation I think it is rather difficult to pass paragraphs (4)and(5) of the new Regulation 116 without comment in view of the fact that the Regulations have been expressly sub- mitted to us in draft. I think therefore that we should point out that -

(a) the opening words of paragraph(4)seem

unnecessary in view of the terms of section 2(4) of the Ordinance;

(8) the reference in the proviso to paragraph(4)

to imitation fire arms is probably

(c)

(a)

unnecessary but, if a reference to this point is thought desirable, it should be covered by a substantive provision and not by a proviso;

the reference to possession with lawful authority in the proviso to paragraph(4) seems clearly unnecessary because the earlier provisions of the Regulation limit the offence to possession without lawful authority;

sub-paragraph (b) of paragraph(5) seems unnecessary since "use" clearly includes use for intimidation and use for a lawful purpose would not in any event be an offence.

While there is some force in your suggestion that it would be confusing to use two separate pieces of legislation (i.e. the Arms and Ammunition Ordinance and Regulation 116) to deal with the same type of offence, I can see a possible reason for the Hong Kong proposal and I do not think we need comment on the point.

Nor Hall

(Sip Leslie Gibson) 24th April, 1952.

In connection

в.

25.3, please see Sie R. Gibson's minte

with

yem

requent of

alove

& mine of 23.4, with seference to

(5)

the file.

I fear that action

on (4)

is still delayed, while the Balans,

is trying

trying to obtain

registry old office the subject.

Mr Bunce,

Some

office precedents of 1916 +1926mm

J. E. Hofkamen Хорватой

25.4.52

krch 2 to (8) is a

proposed

of Liz 116 A whit is was

by 116 in substitution of

cantinued in force for a further pisod

of 6 months w.e.f. 19*Oct 1951 by (17) m 14237/15/5!,'

As it comes te death penalty

Le neemany

to submit

m 51 file.

He file to Ministers, see minutes of 2/11 + 13′′t 19"/"

Pl dft a reply to (5), noting week from par B(3) of (6) Met

regulation 116 has been rescinded & that it is proposed to repeal

by 116A & inest a rews may

116.

The legal Rdiences have teen consulted as requested in pose 9 (of 607) their comments

es give in Mar Hophimens min of 23/4 & 8w 6 felons mer of 24/4 suitably cummarised _ enteng by approring the suggested in para " of (5).

M. Bunce

? as in draft despatch h/w.

Hull

10/4

U. frosk

130/4

Enclosure 2 to (5) contains a draft regulation 116 to

be inserted in place of the present Regulation 116 A- copy at (10 A) on the 1951 file which was continued in force for a further period of 6 months with effect from 19th October, 1951 see (17) on 1951 file which fariod expired on the 19th Agint

So far only the possession of a grenade, bomb, etc., and the use of arms carries the death penalty. In (11) on the 1951 file it was agreed that should a grave emergency arise Regulation 116 A could be extended to provide for the death penalty not only for the use, but also for the possession of arms in serious cases, The new regulation attempts to do this but the Legal Advisers do not like the wording of it, particularly that of paragraph (3) see minutes of 23/4 and 24/4 above.

In the circumstances I suggest we reply as in the draft opposite. The Minister of State approved (17) on 14237/15/51 see his minute of 19/11/51 and the draft o; posite proposes a further extension until a satisfactory redraft has been prepared. ? Ministers should see it.

Halall

1. 5.1952.

Mr. Faskin.

You should see Mr. Hall's minute above, and the attached draft, the last paragraph of which authorises the continuation in force for a further six months of the present Regulation 116A about which there was so much discussion earlier.

The last extension grunted expired on the 19th April (previous extensions having been granted at (11) and (17) flagged in red on 14237/15/51 below).

We are proposing to grant this further extension in order to cover the period required for further consideration in Hong Kong and here of the revised draft regulation 116A submitted by the Governor in (5), which is not regarded by our Legal Advisers as satisfactory. A copy of the existing regulation 116A will be found flagged in red ▲, behind No.(5) on 14237/15/50 below.

I agree with the draft, but as the previous extensions referred to above received ministerial approval, you may wish to refer to higher authority.

6. 5. 1952.

기

puniciple

Cis the extension involves no

или

I don't think that expecially

in present cucs -

Ministers need be

honved.

موا

то

14/5-

7 Home Lone Des 763 Secret

(6)

1 0 MAY 1952

Recirculated for action on (6). vide wth of 15/4

Mr. Bunce

19/5

Rist

M. Anderson and Mr. that! to see (6) and then?

put by

120). Frost 12/5

M. Bort Mh. Kelfin. Starks no doubt hvor of para: 3(c) and peus: 3(f), respectivals, already but they may

MMA.

Здише 12/5

I thrach in should and the for how the

math of the new

mow stands

regulating new

The last sia ruouths extension granted

April 18th and wrought.

Спонилисадно

4h Leaving something

эти

from HK.

iiretly whoy on the file?

черву

测

Hong Key Decision

Seine-

sup.

1034

287452

(Decision not to pursue furths amendment of legisle)

M. Anderson

Ref. M. Sideborham's mm. ahove, (3) is answered by (8). It has been dendal next

Reg.

tume.

to prowed with, the proposed new Every. Roy. 116 for the time being, but it may

to reapers the matter abany necessary Menelale Reg. 116 A contienes

116 A critimes in force for see months from 19th. April.

453

Samme 15/7

This matter was discussed with the Govt. Pl. attach

extinct from record of meeting

reave.

161

侠

Extract from meeting

　　with foremnol Hong Kong in Colonial Office

M' Harris.

8/7/521

min 15/7.

I attach a oft reply

to (8), noting the decisions taken therein.

/1814-17.3

J.J. Andurom

Ph.

pay Hopkinom shared on the H.K. dens im in (8).

11 HONG KONG Des 1200 Secret

Uticams

7717

11. Hong Kong, Somer, 1579, Seact.

Mr. Harris

Mr. Hopkinson

Ale Sidebotham

H. see (11).

21 JUL 1952 1

-1.10.52

Emergency Regulation 1160, flagged at (101)

on 14237/15/51, renders the unlawful use of and the possession of bombs, grenades, etc, punishable by death.

In first afproving the Regulation, the of

5. stipulated (this was not made public) that his approval should be sought every for extension of the Regulation. The Sovernor has

written in (!!) accordingly.

Background to the question is given Mr. Paskin's minutes of 29/6/50

of 12/7/51

14237/15/51.

6 months

14237/15/50 and

of armes

Now, although crimes involving

have decreased, the Sovernor feels that this is

/in

in large

measure due to the deterrent effect of the Emergency Regulation, which he therefore wrihu to retain for a further 6 months

draft herewith

the Regulation in 1951,

? approve

as in

There was

P.Q. om

and the question of extension has been referred up to the S. of..

? Proceed as before.

previous occasions

Glattler

8/10.

I have

disuused

this

with Si S. Abrahas.

he considers

that

should only

agree with relucta

with reluctance to the continen

force of Rey 116 A.

argument but forward

The

2 of (11) is 7

if we

deterrence

Should

ий рин

Cause

very

plausible. But

demur that

accept without

logical reult is

the text, the anddy

that

im appears to be)

long

remmin ffection in

this. Luth penalty remmis

preventing cronies involving the

it will

have

fast the only

retaining it show that

to be returned

of my

for Landing not

warld

he evidence

in spite

the healt

penalty

Efese

that the game Javerinen

རང་བ Accordingly it

that "the situations

molikely

with himself consider

Germits" May 16 A C

he seferland (See Condition I at (14) an

hond

micreased!

Jews

14 237/15/50), for

long trime

Caree

1/semis

болу

Jenny that

scron's crime.

that there has been

مسلمان

adu

vuis

the Jamoner's доминой

be well

undang

luis

will

femit

take

however to fuil aut

the mutter, it might

this offerturity of

when he expects the situation him to repeal Key 16 A.

བསལ་ཆབ་མིའི་ཡིན +

h th

many

на

le mefl

Co. half to decide what was

meant by this plume. As the dogs. aly

Congentul

of this regulation "in

شده

the engrial enactment

the recent

in Crence

crimes

of wotence involving

the

mus.... (see farm of (19) an

14237 (15 (50), I fuel it

that the

winter led

he repeated

Guy

Cruis

manny

have been

degulation should

this type of

Seen as

had decreased & there was

immediate expectation that it would

ent agains.

J. E. Mafiliman

11.10.52

ها

breake

In (11) Hong Kong seek approval for the

continuance in force. for a further period of 6 months from the 19th October of Emergency Regulation 116A, which provides the death penalty for the possession of a grenade, bomb, or similar apparatus and the use or attempted use of arma, ammunition, or explosives. A prosecution cannot be instituted except with the consent of the Attorney General. A copy of the Regulation is at (10A) on the 1951 file.

2. The enactment of this Regulation was approved (arter much discussion) in Kinisterial minutes of 22/9/50 and 16/10/50, on the conditions given in (19) and (21) on the 1950 file.

In Condition 1(ii) of (19)/1950 the S. of S. laid

/down

down that if the Regulation was "not repealed with 6 months necessity for continuing regulation in existence will then be reviewed and my further agreement sought to continuance.

4 So far as I can trace, Regulation 116A has only been used once since it was enacted. The accused was hanged for shooting and wounding a man during an attempt at robbery.

　　　　　　5. Previous extensions of 116A have been granted at (11) tumbad and(17)" on 14237/15/51 and at (7) opposite:- Flags A, B, C.

The first two extensions received Ministerial approval; the third did not.

6. In (11) on the 1951 file it was agreed that should a grave emergency arise 116A could be extended to provide the death penalty not only for the use but also for the possession of arms in serious cases.

7. The most recent extension of 116A at (7) was granted "until a satisfactory new regulation has been drafted". In (8), however, the proposed new regulation was shelved because H.K. could not meet our objections to the draft.

8. In view of this, and because the general situation in Hong Kong is potentially as dangerous as it was when 116A was first enacted I submit that the S. of S. should approve its continuance for a further period of 6 months. Furthermore, we have only just approved a new and not wholly unobjectionable E.R. giving the Governor wide powers of deportation, and it would seem inconsistant to take away now the powers granted under 116A.

9. I have sympathy with Mr. Hopkinson's reluctance to agree to the continuance of 116A, and I agree that paragraph 2 of (11) does not disclose a state of crime as serious as that in which Regulation 116A was approved soe (19). Nevertheless, for

1950

the reasons given in paragraph 8 above, I think that the Regulation should be continued; and I doubt whether the Governor would be prepared to hazard a guess as to when the situation will permit a repeal. I see no objection to his being asked, however.

tiff. eubmitter

| as grandadh.

Jst Stanis

Precisely anything might happen in

ん

Amy Jagree thank

Yera

14, 10, 12

innabout

but a few hours havin tok 116A must contimes

in fore. Avon Barton

and I but I think

14.-10.52

уте

would wish brea

14/10

16/x

I agree. This wire however have to go up to Miuntur next time,

in the light of whatever the Eow.

iney say

ん

in two wr

зними

915710 atrace

18/11 Hong Kong SAV 1712 Secret. Lons

***

вк

میرے

H.4

Repent

Derp 1700

megs.

Manch. August 195

the cire saving

Fill attached

" Please attach a copy of the

mentioned in pare. (1) of (13) _ or the file -

and recire.

Ale. Harris

Matthin 57/1

(13) is the current edition of a 6-monthly

statement of the position

ор

Emergency Regulations, required by Circular of 18th July 1946 at (4.9 14237/c (1) attached.

Whilst I see nothing worthy of comment in that previous statements surprised that previou have not been shown to Legal Advisers. (dee

(13)

می

(6), -(5) M(15) on the '51 file, -eta.)

However,

Mr. Barton

? put by.

Shuttler 4/11

Mr. Hopkinom.

Reference (13) and for 2qM Littler's minute whook, the request for a six monthly review of Emergency Legislation quered by M'Acheron in his minute of 15/17 14237/146 uttered

9 thish

but My Creach Jones decided to ask for suck wew. ff is hear from the minutes of 14237 | C146 Hab the review was

This

Yes,

　　　Yes this is so. We who wat generally

look at Sulvidiung

legalndians (of 6.149(2) which

St.

required

What promising for adminishalive (political)

VCA 199

And I

don't whether Legal Advisers need be troubled with despatches suchas (13) opposite unless there s

Tome special print

legal opinim

is required.

? by

Partly.

The Bana

to you see a thing for as m

asm B

B). I

Malaya

Ao not?

(. I dukhove the Ech Whige of all malaze

in thenga Emerging Reghs.)

Axe Bart

бола

naching forms.

10.11

2. But the cruular on 14237/c/1/1946 does verb ask for statements of this hand of emergency legislations (a wafueng teros). This concerned with defense Regulators mode during the last were, and keption force by

The UK. Supplies & Services & Energency Jaws Acts, which are dealt with on the successer files to 14237/4/1/1946. Buverstin

use in local emergencies

for

quite separate.

обише

нови

comment. but it

of carnet

The distinction

be useful to lie statements like of this

made by 2mm Bunu is

nevertheles

revisning

loral

emergency

Legislation, seeming

what

white howers

available under

the

it would

they need not be

Emerging Bagulation's Calviance, 1982

brity to tetto Hay Kong!

Js Hobyllimon

& I fel

made in butine?

арке По

M.. Sideko Ham.

Please

Mr. Hophins is minute of 11/11.

רי

Milt

that the Cirector on

six

monthly

14237/4/1/1946 review of

9 egoce

it may be strictly time to attached did not call expressly for

losed emergency legislation of the type found in Hory Kay,

qustim for

with Mr. Hopkure that there should be mo alloway Haykay to discretinue reading regular reviens such as that at (13) oppuite.

you

know

the Emergency Powers Order in Commisl

Rewa to My Sitter to

Lith

with represe 6/11 and M. Hopkinson's

To his minute q

marginal note of "/".

but never published in Hay

21939 was extended to but

Kay, which is in the unmoned and fortunate portion of

Emergency Regulations Ordinance, 1922,

Larig

its

nade which it is preible to take emergency powro

to declare a thate of emergency,

without having formally

as would be required under the 1939 Order in Commeil.

Morcovce, in Hay Kay,

the Emergency Regulation

IWAL

enacted, verwain in operation until specifically repeated.

There are

sting

therefore

for requiring Hory Key

to key the sugich of imaging legislation under corbent

and

I kat

Har

we should

regular review

not disturb the Governor's practice of sending despatches

Suba

Wah at (13).

? Putty.

ใน

Ack receipt whing contents,

Mr. Harris

11/11 wh

? as in d. L. (t Skittles 100

Hong Kong Das 1887

118/12

B/U no

reply to (12)

KD. Clark 18

Carri

We have no

reply to (12) yet.

urgency

I think we that

are worried about

Whilst there is no

should press the Sovernor, if only he will realize that we the question of

this

emergency regulation.

? remind us in d.h.

I think it is too early to remind yet.

B.U. in

one month.

Nattame

19/4 l

میرے

the 10.81

Beant inscase in mime

when

We shall keep (15) in view, receive the Sovernor's reply to (12).

branwhite put by Hattler in

House.

پر روت

1: you

sev 1855 toc

28 11.52

Ref (12) unatale to nehead Reg 116 A yet.

Mr Harris

increase in criminal cases

Botha (15) and now

(16) which replies to para 2

is that

of (12), record. involving

our

the

ese

arms. My feeling thunder is therefore stolen and we should bave the matter to stand until Reg 1167 again

up for review (Afril 1953), and need not reply to (6).

COMU

Mr. Haphinson Mr. Sidebothan should ses (16). otherwise ? put by.

hallin 10/10

The idea

early

goshiy the Govenor whether be your prospect of repeating BR. 116 A originated in minutes of 11/10 and /

Sir A. Granthains reply at (16) is

no thus fik.

unexpected, particularly in view of (15) which we

recatly

? Ank, noting content.

not

noted

I vows

}

with the

адми

The

between (11) + (16),

to draw

any

uumbus

な

Sorch

But no

at the

of the change of wis.

sense

suggested.

enly 4 months have clafred not be possible

• it

may conchrive infernee from the

of crimes invaluing the

comparatively short period.

doubt the position will be clearer!

wat revend.

J.z, Hap kumain

16-12-52

you

shuelo a thrin see

по. 16, дари

copy & E. Reg. 116A is at

(10A) on 14237/15/51 attacher] muth-achi A purposo by his Havin's.

Minister of State

? as proposed.

4/1~

(The history of this is given in tur.

Harris's minte of 14/10/52 alive

6.9.d./

I apes. ари.

Mr Harpis

the

Dac..

ots in mine above,

کے کیے

? as in d. h.

Hong Kong - Sav 2075 secret

vky

17 Renter

20 DEC 1952

23-

for

(18) here to information ref

ER 116A.

Put by

KD-Club 22

19 ge

Am 461 sec

Sechs abbooval

25 3 5 }

contingere Reg 116 A

gole

Mr Harris (through Ar Raphenson for Raston)

At (19) the Governor requests approval for retention in force of Emergency Regulation 116A for a further 6 months from Regulation is given

19m

April 1953.

recent extension was

your min

granted.

the history of the

14/10 when Meanwhile

the most

hast

correspondence ending at (17) to explore the prospects of withdrawing the Regulation in the foreseeable future. the covernor considers the Regulation should

the Colony

remain in force, and his contention gains support held

arms

They are oft by presumed K.M.T. rupporters. (These reported wish Modern HXP 87/92/01 - Special Branch. Gype of 45

مناعة

hich is in sirculation).

In view of dir C. Jeffries minute 15/10 there, to Arnisters.

histis Wxplos- papers may have to go

λ thi

US. deny

State last saw

them 17/12 above.

The Minister

? In the special conditions prevailing,

all thnorhele, may approve the Sovernor's request.

even, of pilfer.

? as in d.h.

cove

age.

Mr. Parhia

In (19) Hong Kong seek approval for the continuance in force for a further period of six months of Emergency Regulation 116A, on the ground that conditions in the Colony are not yet such as to justify its repeal. think that we should accept the Governor's view.

The history of Emergency Regulation 116A is given in my mimate of 14/10/52 and a copy of the Regulation will be found at (10A) on the 1951 file.

We recently asked the Governor (12) whether he saw any early prospect of being able to recommend the repeal of E.R. 116A, but in his reply (16) he was not hopeful. The papers were last submitted to Ministers at

that stage. (du also Six C. Jeffries miante of 15/10/52).

(Defence and

? Approve as in draft herewith. Legal Departments have seen and have no comments).

I Hamis

(I.H. Harris)

Minister of State,

Hong Kong 'mergency Regulation 116A (copy at No.10A on 14237/15/51) authorises the death penalty or conviction for

(a) carrying or possessing without lawful authority a bomb, grenade, mine or other similar apparatus;

(b) using or attempting to use arms,

ammunition or explosive substance against any person or property even if that use does not cause death or injury.

This is of course an exceptional provision

and,

Flag A

and, as you will see from the minutes ending

with those by Mr.Griffiths of the 22nd of September 1950 and the 16th of October 1950 on 14237/15/50, the making of the regulation was approved only with some hesitation and subject to a review by the Governor, at intervals of six months,

of the necessity for its retention. The periodical reviews then directed have been carried out and each time the Governor has recommended an extension, The extension was last approved by a Minister in November 1951 - see Mr. Lennox-Boyd's minute of the 19th of that month on the 1951 file mentioned above, Subsequent extensions have been approved Departmentally.

There

While I agree that we should allow the regulation to continue for a further period of six months from Sunday next when it expires, I think that the Governor should be asked to put in a full report if, at the end of that period, he wishes to recommend its further continuance. is some risk that these renewals will come to be regarded as automatic, and that this exceptional regulation may come tó be regarded as a continuing part of the law of Hong Kong. The Secretary of State can therefore reasonably ask in October next,when it will have been in existence for three years, that he should have a fuller appreciation by the Governor than that given in No.19 on this file and should in particular be told

(a) what in the view of the Governor and his

Advisers has been the effect of the regulation; and

(b) what will be, also in their view, the

likely effect of new discontinuing it/53

I aper.

арм

Pillard

15.4.53

Capris 16

for Hong Kong

tee 1388

16453

On Littler.

(20) says Despatch follows

Acu 556

Report Sept 82 · Jeb' 53.

Draft despatch submitted in

13 4 53

aundance with

Sir Thomas Hoya's minute of 15 April 1983.

Recine to ack (21), noting contents with interest.

Jakttamis

415.

14. 22 Hong Kay Saw 688 secret. was ÷ 75.53,,

Mr Harrie

23 Hong

Ref x/ of your win 175.

? as in d.h.

Butter 7/5

thing King Des 201 8.5.53.

نبر

24 kutem

27. 5

24 (line 18) plased here for information

ref.

ER 116 A

ка селата

15 Ju ды

Aef and suppets

10.6.53

Sav

836

contiimation

E.K. 116 A

Mr. Barton-

Hr. Hopkinson Mr. Harris

Kr. Sidebothan

In accordance with Sir T. Lloyd's minute 15/4 above, we asked the Governor at (22) for a fuller appreciation of the effect of Emergency Regulation 116A (copy at 104, flagged 'A' on 14237/15/51) for presentation to the Secretary of State in October, should the Governor at that time again wish to recommend the continuance in force of the regulation.

2. The Governor's reply, jumping the gun by some four months, is at (25). Whilst it need not be shown to Kinisters at this stage, and we shall probably have to ask for a supplementary report later, nevertheless (25) is of considerable value in showing the Hong Kong lines of argument.

This

3. The Governor's statistics of crimes involving arms (paragraph 14) show that these types of crimes have been reduced to a considerable, though not wholly satisfactory, extent. does not, however, in itself provide a valid argument for abandoning the Emergency Regulation, which may be deemed to have caused the reduction. The crucial point lies in the table in paragraph 18 of (25), relating armed and unarmed robberies and showing that whilst armed robberies are decreasing, unarmed robberies are, if anything, increasing.

4 It seems reasonable to assume that, other things being equal, the number of armed and unarmed robberies will vary in more or less direct proportion. There are, I suggest, three factors which may influence that proportion:-

a) Ready availability of arms, tending to an increase

in armed crime.

b) The temper of the criminal section of the population,

c) Forces of law and order.

We must, I think, accept the unfortunate situation that, in spite of Government's efforts, arms may fairly readily be procured in Hong Kong, though not so readily as to encourage their use in crime, As regards the second factor I have mentioned, it is virtually impossible for us to form an accurate assessment, We know, however, what careful precautions the authorities have to take in respect of political disturbances, which in Hong Kong tend very rapidly towards acts of violence. When to this indication is added the depressed economic state of the Colony, to which the Governor refers in his paragraph 3, we may perhaps safely say that the decrease in armed crime since 1950 cannot with any confidence be attributed to any possible change in the temper of the criminal population. There remains the third factor: forces of law and order, of which the most relevant is Regulation 116A, There we have; firstly the strong conviction of the Governor that the Regulation is effective; and secondly the suggestive fact that it was immediately after the introduction of the Regulation that armed crime showed its sharpest decrease.

5. The above reasoning is inevitably somewhat conjectural. Nevertheless it has the appearance of validity, and it is impossible to avoid the conclusion that Emergency Regulation 1164

/ig

is at least the major cause, if not the sole cause, of the welcome decrease in armed, relatively to unarmed robberies. It seems probable, therefore, that any relaxation of the Regulation at the present time would have the effect of, at least partially, recreating the undesirable proportion of armed and unarmed crime which prevailed in 1950; and whilst we might hope that the actual numbers of cases involved would not reach 1950 levels, I consider that a grave risk would be incurred, rendered the more grave by the particular dangers of any resurgence of violence in the overcrowded Colony with its serious latent political dangers.

6. Ky impression is, therefore, that the Governor has a cogent case for recommending the continuance in force of Emergency Regulation 116A. We are not required to pass judgment at the present time, and I suggest we should acknowledge (25) as in draft herewith, and then await developments.

? as proposed.

Laque o Bastion 22/6

From

20%

The figures which the Governor gives certainly seem to confirm the view expressed at paragraph 2(a) of (25).

2. On the other hand with regard to (b) of paragraph 3 of Sir T. Lloyd's minute of 15/4/53, the Governor states at paragraph 3 that a sharp increase in the number of crimes involving the use of arms is likely to be expected during the present economic state of the Colony. If this is accepted, it would seem that the regulation may have to be kept in force for quite a long time yet, and this appears to be borne out by paragraph 5 of (25).

3. At the end of last year the Governor stated that the number of cases involving the use of arms had recently increased, and the figures for the whole of 1952 at Table B in fact show that there was a small increase over 1951. The figures for the first four months of 1953 however suggest that there has been a fair decrease since then, and it will be interesting to see whether the new low level remains constant when the Governor next reports.

J. E. Holikensoin

23rd June, 1953.

There is certainly

danger

Hat this cuptimal

regulation will

4 15/4,

李

Sir T. Lloyd said in his minute

to be

LEMME

regarded

the law of Hong Kory.

a continuing post. Hong Kong may year

the consequences in the regulation is

allowed

but they will have to

make the experiment

to Lapee

some time

باا

I doubt, however, whether we press ofor this at present.

should be wil

Meanwhile ?

? us in dragt.

23/1

Mr. Paskin.

You will see the informatio furnished in (25) in which the Governor says that he sees no prospect of being able to recommend the discontinuance in force of Regulation 116A at prosent.

It is proposed to ask him to bring this information up-to-date as in draft herewith during September next to conform with the request contained in No. (22) Sir T. Lloyd's minute of 15/4, as subsequently approved on the 16th April.

see

I agree that we need not trouble Ministers further at this stage. There is no need for the Secretary of State to commit himself to any further extension yet.

? draft may issue.

JBS

23. 6. 1953.

၄၃.

E892616

atuse.

2.G

thong

ong

Saw 1019 Beret

30.6.53

30.6.52

27 Reuter

(21) placed there reference ĥKIILA

Fur hu

KA.Clawh

? an

achein

mefab yel

ab yel past.

.. སཾཟོ་གག་མཝིཚིག

Bring up 2 weeks if still no reply to (26).

Shelter. 1419

Blu

us abone

ky. Clark 28

Mr Harris

In view of para 2 of (26), I think short telegram to the Governor would be

desirable.

The Govenor

I think we

? As in d. C.

28/9

Shitter 287

has been tola what is required of him and

should wait..

B.U. im

كذا

27 A Reuters

يا وجيه

10 days.

Witami

26/9 alum

Z-P

9-53

·25·7-53

E.R. LIGA Mhould

theat

Sau 1371 See

Awww.20

continue in fance.

you

Mr. Hopkinom.

please see

Tikes we

as before.

References previous minutes on this file

I don't

Hat Thi

Framite Govenors view is

(28). much further

and for

الساقطة

have

Fir T. Lloyd's minute of 15/4,

the S.ys.

to decide, bearing in mind is whether the time is rife for He Governor to take the plunge

This Regulation. My Imolitine are

to press

and day continue

mm opinine is that

not yet sufficiently settled for

experiment of this kind';

Hing King to make

and that the S.AS. should approve the unti namuse | in force of ER 116A for

muntis.

oh my.

મ

further period of six I should be grateful for your

Ham's

1/10:

Tom Harris

you say, (20) does not take

Log

much

further, except to show that the number of

Gunes

to show

involving

the

decrease.

contrives

2. This fact, together with the marked decrease

offences Governor's wiiw

leterrent effect.

in such

frim the

strong

the Royal Comunision

Suice

1950 tends to con that Reg. 116A has

the file

coky

Caliital Punishment,

fete that the

3. I have however put on

which para's 55-68790 (3) me partirlady interacting in this respect. You will

Commision's con las ins

selling afford

that starbies

no reliable evidence one way that although capital punishment have some deterrent effect, it is important not

to base

mag

penal policy in relation to under

exaggerated estimates of the miquely cleber-

the death penalty"

rent effect

4. Allhugh this was

muncher I thrill

said in consuchen with

the same principles must afifly

to the prevent problem he. No doubt hemm

with with to obtain the news

You

Mr Kring

this matter, from the "Treatment

of Offenders" part of veramais view is maplet 5. If nevertheles Journois aceptad

that the prevent commis

state

praunt

culo

agend

of the colony has brought about the

fear of

crimes of

Stub

volance (ou para 3 of (25)), it seems t

the regulation will have to remain in fence almost

indefinitely

J. E. Wahlemmen

10.53

Mr. King

Reference A

in Mr. Hooking. As minite above,

You

with to

expres

in spinim ? (The bushground

to Emergency Regulation 1161 is given

14.10.52).

Янними

3/10.

The amount of crime of the sort for which this measure was introduced has not been very great considering the population and airoumstances of Hong Kong. It is therefore very much open to question whether this measure has been necessary or justified. In any circumstances it is most difficult, if not impossible, to prove by statistics whether a repressive measure of this nature has, or has had, a deterrent effect. The statistics furnished by the Governor show a marked decline in crimes involving arms since the Emergency Regulations came into force, and if they prove anything, it is that the measure ought to be discontinued. The alternative seems to be to retain it indefinitely for fear that it: might be necessary to invoke it.

Incidentally, the highest figures in the return given at (78) are in respect of the possession of arms (or explosives). I imagine that the bulk of these figures are in respect of the pos- session of arms, which does not seem to be punishable by death under the Emergency Regulations. They are therefore a little misleading.

I think that Sir Kenneth Roberts-Wray ought to see.

JE K

(J.E. King) 6th October, 1953.

Mr. Sidebo tim.

Please see (28) and minutes above. Mr. King's fears my minute of

I have sympathy with

at 1/

view

1/10 |§3.

Which

Ittet hamis

The Parker (though Sink Porhood's wrong.) ..

7.10.

own conclusions a pre with those of he` Harr's att whimmate of 1/10 above until ther frymes remains at those shom in ho 28. # it would I suggest-te quati premature within Exceptionally difficult ordnation sis Hongkong to justify disenting the Emerge Reputation.

cantatriclining

the nouestion

but the

I carose, he other facian

roplaning

mot nasoma ta

rec 1 h that'

of offences;

consurovin

раси з

ttt the delevent effent ?

in langgeh urparsih.

this squlation

I agree, drawer for, dverefore,

difficult i mirite wayson

the it moocation of th

the regulation

Ihr big question

Oh foresees th

dispensed with?

future I from

Dhawa

comment? ang gust

martand wi

вибра

any hope of

from catanes,

(m pars 3425)

pomment

cromamia utuation?

Agg 9/10

As the previous minutes show, it would be a fruitless exercise to attempt to form a positive opinion whether the reduction in the number of crimes involving Arus has been due to the deterrent effect of Emergency Regulation 116A. It would be equally fruitless, in my opinion, to attempt to specify in what circumstances in the foreseeable future the Regulation should be dispensed with.

To my mind the basic justification for the Regulation and its continuance is the generally disturbed political situa- tion in the Far East (which may well deteriorate if there is no satisfactory outcome of the political conference on Korea); and the fact that Hong Kong is wide open to subversive terrorist activities inspired by a hostile Chinese Government

　　　　　　　　　　　　　　　　　　　　　　　　　which may well become even more hostile in the next few months.

In these circumstances I personally should have no hesi- tation at all in agreeing with the Governor that this Regulation should be retained in operation.

(J. J. Paskin). 10th October, 1953.

Artainly this is not the time Сиваше

to drop it. approx extension for to morether.

мор

In the absence

ገ

the Muista

State

I don't think the 5. ft. weed be

hubled.

6)..).

14/10/53

арти

Draft telegram herewith.

Justan's

14/10

19 Sang Kang Lel No 936

30 yu

Aar 1378

16/10

25-9-53

b- monebly review ab emerging regs.

hoked in hibrary

Mr. Harris

hegal.

Please see

comment from

(30), which Loes not require any

ма

I think.

? Sok.

as in d.h.

Яннаний.

18/wat mee-

31 không trong Hong

phóng

・Dosh 1616

21. 10. 53

C.-

19/22/07

НИР 319

(1454-6)

Ure of Regulation

1164.

HAP 488/25/08 by June '53 it had been invoked

52-53

3 occasions only.

HKP 488/35/01 Aug 53.

52.53

I Chinese convicted.

Death sentence carried out.

(5) F609/401/01

54. 2 Chinese convicted.

54-5.

Appeal pending. Outcome

unknown.

R. Ford.

Please kup there fapers handay

requerie & bu

in case they are requerid

tö

忡

　10 1671 bu 30

ANG

Ми в

in 3 weckt.

ARG 29.9.67.

فراند