A BILL

Amend the Immigration Ordinance.

Enacted by the Provisional Legislative Council.

1. Short title and commencement

(1) This Ordinance may be cited as the Immigration (Amendment) Ordinance 1998.

(2) Section 2 of this Ordinance shall be deemed to have come into operation on 9 January 1998.

(3) Except as provided in subsection (2), this Ordinance shall come into operation on the day on which it is published in the Gazette.

(4) Subsection (2) shall not give retrospective effect to any provision of this Ordinance creating any criminal offence or providing for any increase in the penalty for a criminal offence and, accordingly--

(a) no person shall, by virtue of that subsection, be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under Hong Kong or international law, at the time when it was committed; and

(b) no heavier penalty shall, by virtue of that subsection, be imposed for the commission of a criminal offence than the one that was applicable at the time when the criminal offence was committed.

2. Section added

The Immigration Ordinance (Cap. 115) is amended by adding immediately before section 13A--

"13AA. Application of Part IIIA

(1) This Part does not apply to or in relation to a person in any case where, after arriving or landing in Hong Kong, the person is first detained under this Ordinance in connection with that arrival or landing on or after the commencement of this section.

(2) Where, after arriving or landing in Hong Kong, a person is subsequently removed from Hong Kong under this Ordinance or departs Hong Kong voluntarily, this Part shall cease to have any application to or in relation to the person in respect of that arrival or landing or of the period between that arrival or landing and the subsequent removal or departure from Hong Kong and, accordingly, as from the date of that removal or departure--

(a) all rights conferred on the person under this Part in respect of that arrival or landing or that period shall be extinguished; and

(b) no proceedings shall lie under this Part in respect of that arrival or landing or that period.

(3)

(a) Except as provided in paragraph (b), subsection (2) applies whether the removal or departure referred to in that subsection is effected before, on or after the commencement of this section.

(b) Subsection (2) does not apply in relation to a removal or departure from Hong Kong effected before the commencement of this section in any case where the person so removed or so departing--

(i) before that commencement, again arrived or landed in Hong Kong and had been detained under this Ordinance in connection with that arrival or landing; and

(ii) since the arrival or landing referred to in subparagraph (i), has not been removed from Hong Kong under this Ordinance and has not departed Hong Kong voluntarily.".

3. Detention pending removal or deportation

Section 32 is amended----

(a) in subsection (1)(a), by repealing "until he is so removed" and substituting "Pending his removal under that section";

(b) by adding--

"(3B) Subject to subsections (3C) and (3D), where--

(a) a person is being detained pending his removal from Hong Kong; and

(b) a request has been made to the relevant authorities of a place outside Hong Kong by the Government for approval to remove the person to that place,

for the purposes of detention under subsection (1), (3) or (3A), "pending removal" (等候遣離) includes awaiting a response to the request from those authorities.

(3C) For the avoidance of doubt, nothing in subsection (3B) shall be interpreted as giving authority to the Director under subsection (1), (3) or (3A) to detain a person for a purpose other than pending his removal from Hong Kong.

(3D) For the further avoidance of doubt, nothing in subsection (3B) shall prevent a court, in applying subsection (4A), from determining that a person has been detained for an unreasonable period.";

"(4A) The detention of a person under this section shall not be unlawful by reason of the period of the detention if that period is reasonable having regard to all the circumstances affecting that person's detention including, in the case of a person being detained pending his removal from Hong Kong--

(a) the extent to which it is possible to make arrangements to effect his removal; and

(b) whether or not the person has declined arrangements made or proposed for his removal.".

4. Sections amended

(1) Sections 19(6), 53(8)(b), 53A(1) and 53B are amended by repealing "or the Deputy Director of Immigration" and substituting ", the Deputy Director of Immigration or any assistant director of immigration".

(2) Sections 32(2A) and (3A) and 63(1)(a) are amended by repealing "or Deputy Director of Immigration" wherever it appears and substituting", the Deputy Director of Immigration or any assistant director of immigration".

Explanatory Memorandum

This Bill amends the Immigration Ordinance (Cap. 115) to provide for--

(a) the disapplication of Part IIIA of the Ordinance in relation to all arrivals in Hong Kong of residents and former residents of Vietnam, and the extinction of rights under that Part whenever such a person departs or is removed from Hong Kong (clause 2);

(b) clarification of the powers conferred under section 32 of the Ordinance in relation to the detention of persons pending their removal from Hong Kong, to the same effect as applies in relation to similar powers under section 13D of the Ordinance (clause 3);

(c) expansion of the definition of "Director" in section 19(6) of the Ordinance to include any assistant director of immigration (clause 4).

2. The Bill also provides that the amendments relating to the disapplication of Part IIIA of the Ordinance shall take effect as from the date of publication of the Bill in the Gazette (clause 1(2)).