EMERGENCY (DEPORTATION AND DETENTION) REGULATIONS

EMERGENCY (DEPORTATION AND DETENTION) REGULATIONS

EMERGENCY (DEPORTATION AND DETENTION) REGULATIONS

ARRANGEMENT OF REGULATIONS.

Regulation. Page

1. Citation ... ... ... ... ... ... ... ... ... ... ... ... ... ... H 2

2. Interpretation ... ... ... ... ... ... ... ... ... ... ... ... ... H 2

3. Advisory Tribunals ... ... ... ... ... ... ... ... ... ... ... ... H 2

4. Declarations as to impracticability of deportation ... ...
... ... ... H 2

5. Power of Governor to certify cases as unsuitable to be dealt with
under regulations ... ... ... ... ... ... ... ... ... ... ... ... H 2

6. Commissioner of Police to refer certain cases to Tribunal ... ... ... ... H 3

7. Warrants for further detention ... ... ... ... ... ... ... ... ... H 3

8. Bail ... ... ... ... ... ... ... ... ... ... ... ... ... ... ... H 3

9. Claim not to be an alien ... ... ... ... ... ... ... ... ... ... ... H 4

to. Functions of Tribunal ... ... ... ... ... ... ... ... ... ... ... H 4

11. Functions of Governor in Council upon consideration of report of

Tribunal ... ... ... ... ... ... ... ... ... ... ... ... ... ... H 4

12. Detention orders ... ... ... ... ... ... ... ... ... ... ... ... H 5

13. Procedure of Tribunal ... ... ... ... . ... ... ... ... ... ... H6

14. Powers of Tribunal with regard to obtaining evidence and the conduct

of proceedings, and certain offences ... ... ... ... ... ... ... ... H 6

15. Twelve-monthly review by Tribunal ... ... ... ... ... ... ... ... H 7

16. Suspension of long procedure under the Deportation of Aliens

Ordinance ... ... ... ... ... ... ... ... ... ... ... ... ... H 7

17. Suspension of detention and deportation orders ... ... ... ... ... ... H 7

18. Detention of detained persons and internal management of places of

detention ... ... ... ... ... ... ... ... ... ... ... ... ... ... H 8

19. Officers to be appointed to effect detention ... ... ... ... ... ... ... H 8

20. Management, etc., of places of detention ... ...
. ... ... ... ... H 8

21. Discipline of officers, etc . ... ... ... ... ... ... ... ... ... ... ... H 9

22. Detained persons not liable to engage in compulsory work ... 1
... H 9

23. Power of Governor to prescribe form of instruments ... ... ... ... ... H 9

24. Deportation cases pending at the commencement of these regulations ... H






9

25. Saving of appointments ... ... ... ... ... ... ... ... ... ... ... H 9





EMERGENCY (DEPORTATION AND DETENTION)
REGULATIONS.

(Cap. 241, section 2).

[27th July, 1962.1

1. These regulations may be cited as the Emergency
(Deportation and Detention) Regulations.

2. In these regulations, unless the context otherwise requires-

'detained person' means a person in relation to whom a detention
order is in force;

'detention order- means an order made by the Governor under
paragraph (1) of regulation 12;

'place of detention' means a place appointed under paragraph (1)
of regulation 18 to be a place of detention.

3. (1) For the purposes of these regulations, there shall be
a tribunal or tribunals and every tribunal shall be called a Deporta-
tion and Detention Advisory Tribunal (hereinafter referred to as
a Tribunal).

(2) Every Tribunal shall be composed of a President or a
President sitting with one or two members selected by the President
from the panel appointed under paragraph (4).

(3) A President of a Tribunal shall be a judicial officer or
barrister or solicitor appointed by the Chief Justice.

(4) The Governor may appoint such persons as he thinks fit
to be members of a panel for the purposes of this regulation.

4. (1) Where the Governor in Council is satisfied that de-
portation is impracticable in the case of. any class or description
of persons and is likely to continue to be impracticable for a period
of six months, he may declare that the deportation of those persons
who fall within that class or description of persons is impracticable.

(2) Any such declaration shall be valid for a period of six
months from the date thereof or until it is cancelled, whichever
is the earlier.

5. The Governor may certify the case of any person as
being unsuitable to be dealt with under these regulations.





6. (1) Notwithstanding anything contained in the Deportation of
Aliens Ordinance, the case of a person who has been arrested on a
warrant issued under subsection (1) of section 4 of that Ordinance, other
than a person whose case is certified by the Governor, at the time of the
issue of the warrant, as being unsuitable to be dealt with under these
regulations, shall be referred by the Commissioner of Police to a Tribunal
upon the completion of police inquiries.

(2) Where a deportation order that was issued before the
commencement of these regulations is in force after their commencement
and the Commissioner of Police is of opinion that it would be contrary to
the public interest that the person against whom the deportation order is
in force, not being a person in relation to whom a detention order made
under these regulations or the Emergency (Detention Orders)
Regulations 1956 is in force, should be at large in the Colony if his
deportation is impracticable, he shall, unless the case is certified by the
Governor as being unsuitable to be dealt with under these regulations,
refer the case to a Tribunal upon the completion of police inquiries.

7. Where the person arrested and detained under a warrant issued
under subsection (1) of section 4 of the Deportation of Aliens Ordinance
is a person whose case falls to be dealt with under these regulations, the
powers conferred upon the Governor by subsection (2) of section 5 of
that Ordinance (which subsection relates to warrants for further
detention) are hereby transferred to the President of a Tribunal and shall
not, in relation to such person, be exercised by the Governor; and a
warrant issued by the President of a Tribunal under the powers
conferred by this regulation may be in the prescribed form with such
variation as the case may require.

8. (1) The President of a Tribunal or the Commissioner of Police or
any police officer authorized in writing by the Commissioner of Police to
act on his behalf for the purposes of this regulation may, at any time,
admit to bail any person in custody whose case falls to be dealt with
under these regulations by virtue of paragraph (1) of regulation 6, upon
his entering into a recognizance, with or without sureties, to appear and
surrender himself at such time and place as may be named in the
recognizance.

(2) Every recognizance taken before the President of a Tribunal or
the Commissioner of Police or before an officer authorized by him to 'act
on his behalf shall be subject to proceedings for the estreating thereof
as if it had been taken before a magistrate.

(3) The recognizance of bail may be in Form 5 in the First Schedule
to the Deportation of Aliens Ordinance with such variation as the case
may require.





9. (1) Where any person whose case falls to be dealt with under
these regulations (hereinafter referred to in this regulation as the
claimant) claims that he is not an alien, the Secretary for Chinese
Affairs shall investigate such claim.



(2) For the purposes of these regulations, the onus of proving that
a claimant is not an alien shall be on the claimant.



(3) If the Secretary for Chinese Affairs is of the opinion that the
claimant is not an alien, he shall report his opinion to the Colonial
Secretary.

(4) If the Secretary for Chinese Affairs is of the opinion that the
claimant is an alien, he shall report his opinion to the Tribunal having
cognizance of the case which may adopt such opinion or may itself make
such further investigation of the claim as it thinks desirable, and in either
event the Tribunal shall embody its own opinion in its report on the case
to the Governor in Council under paragraph (2) of regulation 10.

10. (1) It shall be the duty of a Tribunal to inquire into any case
referred to it under regulation 6 and

(a)where the case was referred to it under paragraph (1) of that
regulation, to advise the Governor in Council

(i) whether or not there are good grounds for the issue
under the Deportation of Aliens Ordinance of a deportation
order against the person concerned; and

(ii) whether or not it would be contrary to the public interest
that such person should be at large in the Colony if his
deportation is impracticable; and

(b)where the case was referred to it under paragraph (2) of that
regulation, to advise the Governor in Council whether or not it
would be contrary to the public interest that the person against
whom the deportation order is in force should be at large in the
Colony if this deportation is impracticable.

(2) A Tribunal shall embody its advice in a report to be made to the
Governor in Council.

11. (1) Upon consideration of the report of a Tribunal on a case
referred to the Tribunal under paragraph (1) of regulation 6, the Governor
in Council shall determine

(a)whether or not to issue a deportation order under the
Deportation of Aliens Ordinance against the person
concerned; and





(b)where a deportation order is issued, whether or not it would be
contrary to the public interest that the person concerned
should be at large in the Colony if his deportation is
impracticable.

(2) Upon consideration of the report of the Tribunal on a case
referred to the Tribunal under paragraph (2) of regulation 6, the
Governor in Council shall determine whether or not it would be contrary
to the public interest that the person against whom the deportation
order is in force should be at large in the Colony
if his deportation is impracticable.

(3) This regulation is not in derogation of subsection (1) or
(2) if section 3 of the Police Supervision Ordinance.

12. (1) Where-

(a)the person against whom a deportation order is in force is one
of those persons whose deportation is declared to be
impracticable by a declaration for the time being in force under
regulation 4; or

(b)the Governor in Council is otherwise satisfied that the
deportation of the person against whom a deportation order is
in force is impracticable; and

(c)under regulation 11, the Governor in Council has determined
that it would be contrary to the public interest that such person
should be at large in the Colony if his deportation is
impracticable,

the Governor may make an order directing that such person be detained
until he is satisfied that the deportation of such person is practicable or
that the release of such person in the Colony can be tolerated.

(2) A detention order may be in the prescribed form and shall be
signed by the Clerk of Councils.

(3) The Commissioner of Police shall cause a copy of a detention
order to be served upon the person to whom it relates as soon as
practicable.

(4) A detention order signed by the Clerk of Councils, or a copy of
a detention order certified by the Clerk of Councils to be a true copy,
shall be conclusive for all purposes that the order was validly made in
relation to the person named therein on the date specified therein, and,
until the contrary is proved, any document that purports to be a
detention order and to be signed by the Clerk of Councils, or any
document that purports to be a copy of a detention order and to be
certified by the Clerk of Councils to be a true copy, shall be deemed,
respectively, to be a detention order signed by the Clerk of Councils or a
copy of a detention order certified by the Clerk of Councils to be a true
copy.





13. (1) The procedure of a Tribunal in the carrying out of its
functions shall be in accordance with any rules made under paragraph
(2), or where no such rule is applicable, as a Tribunal may in any
particular case determine.

(2) The Governor in Council may make rules as to the procedure of
every Tribunal in the carrying out of its functions and may also make
rules providing for

(a)the inquiry by the Tribunal at the same time into more than one
case referred to it under regulation 6;

(b)the giving by the Tribunal of its advice to the Governor in
Council pursuant to regulation 10 without hearing any oral
evidence other than the evidence of the person whose case is
being considered and any witness whom he calls and the
giving by the Tribunal of its advice to the Governor in Council
pursuant to regulation 15 without hearing any oral evidence;

(e)the reception and consideration of material by the Tribunal
notwithstanding that it would not be admissible in the courts
of the Colony under the law relating to evidence;

(d)the hearing by the Tribunal of the evidence of a witness in the
absence of the person whose case is being considered or
reviewed and his counsel or solicitor, if any;

(e) the protection of informers.

(3) Any person.whose case has been referred to a Tribunal shall be
entitled to be heard in person or by, counsel or solicitor; and every such
person shall be informed by the Tribunal of his rights under this
regulation.

(4) The Commissioner of Police shall be entitled to be represented
before a Tribunal by a public officer.

(5) Every hearing by a Tribunal shall be in camera.

14. (1) For the purposes of an inquiry under these regulations, a
Tribunal shall have the following powers

(a) to take evidence and examine witnesses on oath; and

(b)to summon any person to attend the inquiry to give evidence
or to produce any document or other thing in his possession
and to examine him as a witness or require him to produce any
document or other thing in his possession.

(2) A witness summons shall be in such form as the President of a
Tribunal shall direct and shall be signed by the President.





(3) Any person who, being summoned to attend as a witness or to
produce any document or any other thing to a Tribunal, refuses or
neglects to do so or to answer any questions put to him by or with the
concurrence of a Tribunal shall be guilty of an offence and shall be liable
on summary conviction to a fine of five hundred dollars and to
imprisonment for three months:

Provided that no person shall be bound to incriminate himself and
every witness shall in respect of any evidence given by him before a
Tribunal be entitled to the privileges to which he would be entitled if
giving evidence before a court of justice.

(4) Any person who behaves in an insulting manner or uses any
threatening or insulting expression to or in the presence of a Tribunal
shall be guilty of an offence and shall be liable on summary conviction
to a fine of five hundred dollars and to imprisonment for three months.

(5) Any proceedings for an offence under paragraph (3) or (4) may,
in the discretion of the magistrate, be held in camera:

Provided that the delivery by the magistrate of his determination
and any proceedings subsequent thereto, other than a review under
section 104 of the Magistrates Ordinance that requires the hearing of
evidence, shall take place in open and public court.

15. (1) The case of every detained person shall be reviewed by a
Tribunal at or before the end of each period of twelve months during
which such person is detained, and such Tribunal shall make a report to
the Governor in Council embodying its advice as to the continuance in
force or suspension or revocation of, or any other matter relating to, the
detention order in question.

(2) In calculating the periods of twelve months for the purposes of
paragraph (1), any period during which the detained person was at large
shall be excluded.

16. During the continuance in force of these regulations,
subsections (3) to (9) inclusive of section 4 of the Deportation of Aliens
Ordinance shall, in relation to persons whose cases fall to be dealt with
under these regulations, be suspended, and subsection (2) of section 3
of the Deportation of Aliens Ordinance shall be read as if for the words
'upon any inquiry in the manner prescribed in section 4' there were
substituted the words 'having considered the report of a Deportation
and Detention Advisory Tribunal made under regulation 10 of the
Emergency (Deportation and Detention) Regulations'.

17. (1) The Governor may direct that the operation of a detention
order be suspended and such suspension may be made subject to such
conditions as he thinks fit; and, where a detention





order is suspended subject to conditions, the Governor may direct
that the operation of any deportation order relating to the person
named in that detention order also be suspended subject to the
observance by such person of the conditions of the suspension of
the detention order.

(2) The Governor in Council may revoke any suspension of
a detention order or deportation order.

(3) Paragraphs (1) and (2) shall be in addition to and not in
derogation of section 46 of the Interpretation and General Clauses
Ordinance.

18. (1) The Governor may appoint any place to be a place
of detention for the purposes of these regulations, and a detained
person who is detained in a place of detention in accordance with
any directions given under paragraph (2) shall be deemed to be in
lawful custody.

(2) The Governor may give directions consistent with these
regulations as to the internal management of, and otherwise in
connexion with, any place of detention and as to the discipline of
persons detained therein.

19. The Governor may appoint a Superintendent and other
officers under the control of the Superintendent to effect the deten-
tion of detained persons in accordance with these regulations and
any directions given under paragraph (2) of regulation 18.

20. (1) For the purposes of this regulation-
'officer' means an officer appointed under regulation 19;
-Superintendent' means the Superintendent appointed under
regulation 19.

(2) The Prisons Ordinance and the Prison Rules except such
provisions thereof as are inconsistent with these regulations, shall
apply, so far as they are applicable, to the detention of detained
persons as they apply to persons detained in prison under the
Deportation of Aliens Ordinance, and as if for the word or words
in the first column of the Table hereunder there were substituted
the word or words opposite thereto in the second column of the
said Table incorporating such grammatical variations thereof as
may be required.

TABLE.
First column. Second column.
Commissioner Superintendent
officer of the prison
officer of the Prisons Departmentofficer
prison officer
prison place of detention
prisoner detained person
the Medical Officer a medical officer authorized by
the Superintendent.





21. Any officer of the Prisons Department who is an officer
appointed under regulation 19 and any other person employed in
a place of detention shall be subject to Part V of the Prison Rules
(which relate to the discipline of officers of the Prisons Department
and persons in prisons) in all respects as if the place of detention
were a prison and the persons detained therein were prisoners.

22. (1) No detained person shall be required to engage in
work.

(2) Detained persons may receive payment for voluntary work
in accordance with rates to be approved by the Governor.

23. The Governor may by order prescribe the form of any
instrument that may under these regulations be in the prescribed
form.

24. For the avoidance of doubt, it is hereby declared that,
where at the commencement of these regulations any person is
detained under a warrant of arrest and detention issued under
subsection (1) of section 4 of the Deportation of Aliens Ordinance
or under a warrant for further detention issued under the said
Ordinance, his case shall be dealt with under these regulations,
unless the Governor certifies it as being unsuitable to be so dealt
with.

25. All appointments made under regulation 8 of the Emer-
gency (Detention Orders) Regulations 1956, that are extant at the
commencement of these regulations shall be deemed to have been
lawfully made under regulation 19 of these regulations.
G.N.A. 50/62. G.N.A. 68/62. L.N. 81/63. G.N.A. 66/62. Citation. Interpretation. Advisory Tribunals. L.N. 81/63. Declarations as to impracticability of deportation. Power of Governor to certify cases as unsuitable to be dealt with under regulations. Commissioner of Police to refer certain cases to Tribunal. (Cap. 240.) (G.N.A. 104/56.) Warrants for further detention. (Cap. 240.) Bail. (Cap. 240.) Claim not to be an alien. Functions of Tribunal. (Cap. 240.) Functions of Governor in Council upon consideration of report of Tribunal. (Cap. 240.) (Cap. 224.) Detention orders. Procedure of Tribunal. G.N.A. 68/62. Powers of Tribunal with regard to obtaining evidence and the conduct of proceedings, and certain offences. (Cap. 227.) Twelve-monthly review by Tribunal. Suspension of long procedure under the Deportation of Aliens Ordinance. (Cap. 240.) Suspension of detention and deportation orders. (Cap. 1.) Detention of detained persons and internal management of places of detention. Officers to be appointed to effect detention. Management, etc., of places of detention. (Cap. 234 and sub. leg.) (Cap. 240.) Discipline of officers, etc. (Cap. 234, sub. leg.) Detained persons not liable to engage in compulsory work. Power of Governor to prescribe form of instruments. Deportation cases pending at the commencement of these regulations. (Cap. 240.) Saving of appointments. (G.N.A. 104/56.)

G.N.A. 50/62. G.N.A. 68/62. L.N. 81/63. G.N.A. 66/62. Citation. Interpretation. Advisory Tribunals. L.N. 81/63. Declarations as to impracticability of deportation. Power of Governor to certify cases as unsuitable to be dealt with under regulations. Commissioner of Police to refer certain cases to Tribunal. (Cap. 240.) (G.N.A. 104/56.) Warrants for further detention. (Cap. 240.) Bail. (Cap. 240.) Claim not to be an alien. Functions of Tribunal. (Cap. 240.) Functions of Governor in Council upon consideration of report of Tribunal. (Cap. 240.) (Cap. 224.) Detention orders. Procedure of Tribunal. G.N.A. 68/62. Powers of Tribunal with regard to obtaining evidence and the conduct of proceedings, and certain offences. (Cap. 227.) Twelve-monthly review by Tribunal. Suspension of long procedure under the Deportation of Aliens Ordinance. (Cap. 240.) Suspension of detention and deportation orders. (Cap. 1.) Detention of detained persons and internal management of places of detention. Officers to be appointed to effect detention. Management, etc., of places of detention. (Cap. 234 and sub. leg.) (Cap. 240.) Discipline of officers, etc. (Cap. 234, sub. leg.) Detained persons not liable to engage in compulsory work. Power of Governor to prescribe form of instruments. Deportation cases pending at the commencement of these regulations. (Cap. 240.) Saving of appointments. (G.N.A. 104/56.)

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