LC Paper No. CB(2)1690/98-99
(These minutes have been
seen by the Administration)
Ref : CB2/PL/AJLS
Legislative Council Members Present:
Panel on Administration of Justice and Legal Services
Minutes of special meeting
held on Saturday, 16 January 1999 at 9:00 am
in the Chamber of the Legislative Council Building
Hon Margaret NG (Chairman)
Hon Jasper TSANG Yok-sing, JP (Deputy Chairman)
Hon Albert HO Chun-yan
Hon Martin LEE Chu-ming, SC, JP
Hon James TO Kun-sun
Hon Mrs Miriam LAU Kin-yee, JP
Hon Ambrose LAU Hon-chuen, JP
Members Absent :
Hon Emily LAU Wai-hing, JP
Members Attending :
Hon David CHU Yu-lin
Public Officers Attending :
Attendance by Invitation :
- Ms Elsie LEUNG, JP
- Secretary for Justice
- Mr Douglas LAU
- Director of Crime and Security
Hong Kong Police Force
- Mrs Carrie WILLIS
- Principal Assistant Secretary
(Security) A, Security Bureau
- Mr Peter WONG
- Senior Assistant Solicitor General,
Department of Justice
Clerk in Attendance :
- Faculty of Law of the University of Hong Kong
- Professor Albert H Y CHEN
- Dean, Faculty of Law
- Dr FU Hualing
- Assistant Professor, Faculty of Law
- School of Law of the City University of Hong Kong
- Mr LING Bing
- Assistant Professor, School of Law
- Mr LIN Feng
- Assistant Professor, School of Law
- Hong Kong Bar Association
- Mr Johannes CHAN
- Law Society of Hong Kong
- Mr Raymond HO
Mr Jonathan DAW
Mr Stephen HUNG
Ms Christine CHU
Staff in Attendance :
- Mrs Percy MA
- Chief Assistant Secretary (2) 3
- Mr Arthur CHEUNG
- Assistant Legal Adviser 5
- Mr Paul WOO
- Senior Assistant Secretary (2) 3
I. Criminal jurisdiction of the Mainland and HKSAR courts
(LC Paper Nos. CB(2)830/98-99(04); 1045/98-99(01); 1054/98-99(01); 1070/98-99(01) and LC Paper No. LS94/98-99)
Meeting with academics and legal profession
The Chairman welcomed representatives of the Administration, the Faculty of Law of the University of Hong Kong, the School of Law of the City University of Hong Kong, the Hong Kong Bar Association and the Law Society of Hong Kong to the meeting. She invited the four deputations to present their views in the first part of the meeting, to be followed by the Administration's response and general discussion.
Faculty of Law of the University of Hong Kong
(LC Paper No. CB(2)1045/98-99(01))
Views of Professor Albert H Y CHEN
2. Professor Albert H Y CHEN said that he intended primarily to comment on the points made by the Government in its paper entitled "Interpretation of 'Citizen' and 'Territory' in Article 7 of the Chinese Criminal Code" (LC Paper No. CB(2)830/98-99(04)). Article 7 of the Chinese Criminal Code 1997 (CCC) provided that the Law was applicable to "PRC citizens" who committed a crime prescribed under the Law "outside the territory" of the PRC. According to the Administration's interpretation, "PRC citizens" referred to "Chinese nationals who are residents of the Mainland" and "outside the territory" referred to "outside the jurisdiction of the Mainland which did not include the HKSAR". Professor CHEN said that such interpretation had far-reaching implications in terms of both policy and understanding of the Chinese criminal laws. It also caused difficulties in understanding certain provisions of the Basic Law (BL). He made the following points -
- BL 18 provided that national laws should not be applied in the HKSAR except for those listed in Annex III to the BL. CCC was not listed in Annex III. In addition, BL 18 made no distinction as to the application of Chinese national laws to Mainland residents in the SAR or to residents of the SAR.
- BL 14 stipulated, among other things, that "In addition to abiding by national laws, members of the garrison shall abide by the laws of the Hong Kong Special Administration Region." If the "double allegiance" applicable to members of the garrison was also meant to apply to Mainland residents in the SAR, it would appear that it should have been spelt out clearly in the BL.
- To subject Mainland residents in HKSAR to "double jurisdiction" appeared to be inconsistent with the principle of "One Country, Two Systems" and Chapter III of the BL on fundamental rights and duties of HKSAR residents. Article 41 in Chapter III of the BL which provided that "Persons in the Hong Kong Special Administration Region other than Hong Kong residents shall, in accordance with law, enjoy the rights and freedoms of Hong Kong residents prescribed in this Chapter" should apply to Mainland residents in HKSAR.
- After the Reunification, the criminal laws of the HKSAR were a constituent part of the Chinese criminal law system. It was logical and legally in order for all Chinese nationals in Hong Kong, including Mainland residents, to observe solely the criminal laws of Hong Kong. By virtue of Article 7 of the CCC, they were bound by the Chinese criminal laws while they were in places outside the PRC. The laws enacted in the HKSAR, including those referred to in BL 23, should be adequate to protect the national interests and security of the PRC. There was no need to extend the application of the Chinese criminal laws to Mainland residents in the SAR.
- Article 6 of the CCC provided that the Chinese criminal laws applied where crimes were committed within the territory of the PRC, except provided otherwise by law. Of the various books which interpreted the Chinese criminal laws, some reflected the views of the Standing Committee of the National People's Congress (NPC) that the clause "except as specially provided for by law" covered the BL. This interpretation implied that while the territory of the PRC included the HKSAR, the Chinese national laws needed not be applied to HKSAR because of the exemption clause provided in Article 6 of the CCC. As the meaning of "territory" in both Articles 6 and 7 of the CCC should be the same, it therefore followed that Article 7 of the CCC should not apply to Mainland citizens in the SAR.
- Existing laws did not provide a clear differentiation between HKSAR residents and Mainland residents. If Article 7 of the CCC were to apply to Mainland residents in the SAR, legislation to this effect would be required.
- Having read some of the articles referred to in footnote 3 of the Government's paper, Professor CHEN was of the view that they were not in support of the Government's interpretation of Article 7 of the CCC. On the contrary, many articles written by prominent Mainland academics had expressed the view that criminal acts committed in the HKSAR by Mainland residents who fled to the Mainland after commission of the crimes should be subject to the jurisdiction of the Hong Kong courts. One could not therefore draw the conclusion that the Government's interpretation was supported by academics in the Mainland.
- The matter under discussion was a complicated issue which could not be resolved by the Government giving an interpretation to Article 7 of the CCC alone. The matter would need to be further studied and possibly be resolved by way of legislation by the HKSAR, following a statutory interpretation by the Standing Committee of the NPC. The NPC had made a similar statutory interpretation regarding the application of the Nationality Law of the PRC in the HKSAR.
Views of Dr FU Hualing
3. Dr FU Hualing said that despite he saw some problems with the Government's views, he inclined to accept the Government's interpretation of Articles 6 and 7 of the CCC as a workable solution to deal with the matter of criminal jurisdiction of the Mainland courts and the HKSAR courts, under the concept of "One Country, Two Systems". He opined that firstly, Hong Kong's high degree of autonomy should not be based upon how the Chinese criminal laws were worded or interpreted in the Mainland. Secondly, to preserve continuity in all areas of legal interactions between the Mainland and the HKSAR, there should be minimal changes to existing laws, and pre-reunification practices should be maintained as far as practicable subject to the provisions of the BL.
School of Law of the City University of Hong Kong
Views of Mr LING Bing
(LC Paper No. CB(2)1054/98-99(01))
4. Mr LING Bing said that he was opposed to the Government's interpretation of Article 7 of the CCC and agreed with the views of Professor H Y CHEN. Mr LING made a few additional comments as below -
- The Government's interpretation of "territory" in Article 7 of the CCC as the "jurisdictional territory" of the PRC violated the plain and literal meaning of the term, i.e. the geographical areas under the sovereignty of the PRC. The latter literal definition was in total accord with the territoriality principle of criminal jurisdiction. Following the Reunification, Hong Kong was under the sovereignty of the PRC and thus within the PRC "territory". Article 7 of the CCC was not applicable to crimes committed in the HKSAR by Mainland residents and it did not confer on Mainland courts jurisdiction over such crimes.
- Article 7 of the CCC claimed extra-territorial jurisdiction on the basis of the nationality principle in international law, which was based on the presumed allegiance which a person charged with having committed a crime abroad owed to his national state. In the PRC, such allegiance required a PRC citizen to observe the laws of China. Since the handover, the criminal laws of Hong Kong had become part of the criminal laws of the PRC. And with the promulgation of the BL, it was reasonable to expect that when a Chinese citizen was in the Mainland, his allegiance to the State required him to observe the CCC, and while he was in the HKSAR, the same allegiance required him to observe the criminal laws of Hong Kong. There was no justification to subject a Mainland resident to double jurisdiction, and double jeopardy, when he was simply resident in his own country.
- The Government had explained that it adopted a "purposive approach" in interpreting the meaning of "PRC citizens" in Article 7 of the CCC to enable Mainland courts to enforce criminal jurisdiction over Mainland residents who had escaped to the Mainland after committing crimes in Hong Kong. However, one must not lose sight of the important and fundamental principles set out in Article 3 of the CCC, which provided that an act was not a crime and did not attract punishment unless expressly specified in the law. As noted earlier, the conclusion compelled by the literal interpretation of Article 7 of the CCC was that a crime committed by a Mainland resident in Hong Kong was not subject to the CCC and thus could not be said to constitute a crime under the Chinese criminal laws. The Government's purposive interpretation, which reversed the conclusion of the literal interpretation and converted an act not otherwise measurable as criminal under the Chinese criminal laws into a crime punishable in the Mainland, contravened the fundamental principle laid down in Article 3 of the CCC.
- The lack of rendition arrangements between the Mainland and the HKSAR was immaterial to the Government's conclusion that Mainland courts had jurisdiction over crimes committed in Hong Kong by Mainland residents, as the latter being a legal and jurisdictional issue was unrelated to the former which concerned practical and administrative matters.
5. Mr LING concluded that given the BL and the purpose of the Chinese criminal laws, crimes committed in Hong Kong by Mainland residents were governed by the criminal laws of Hong Kong alone and Hong Kong courts had exclusive jurisdiction over such crimes.
Views of Mr LIN Feng
6. Mr LIN Feng said that in the main he agreed with the views expressed by Professor H Y CHEN and Mr LING Bing. He added that in the context of the Mainland and Hong Kong being "one country", he tended to accept the territoriality principle of jurisdiction in interpreting the application of Article 7 of the CCC to the people in the HKSAR. The lack of rendition arrangements between the Mainland and Hong Kong underlined the urgency in reaching an agreement between the authorities. In a more general perspective, a comprehensive approach should be adopted to deal with matters of jurisdictional conflicts between the Mainland and the HKSAR which might well extend to the civil and commercial arena.
Hong Kong Bar Association
7. Mr Johannes CHAN informed the meeting that the Bar Association had yet to come to a concluded view on the subject. The preliminary views of the Association were as follows -
- Insofar as the nationality principle of criminal jurisdiction was a recognized rule which conferred upon the state a basis for claiming jurisdiction over the acts committed by its nationals abroad, nothing prevented a state from disclaiming such power in the exercise of its criminal jurisdiction. In fact, Article 6 of the CCC carried such effect by providing that the Chinese criminal laws applied "except as specially provided for by law"; and the BL was such a law under which people in the HKSAR could be exempt from the application of the Chinese criminal laws. This was how Articles 6 and 7 of the CCC interfaced with the BL. In this regard, the Government's interpretation which allowed the Chinese criminal laws to apply to Mainland residents in Hong Kong seemed to have deviated from the principle of Article 18 and Annex III of the BL.
- The applicability of the Chinese criminal laws to the people in the HKSAR should be dealt with on the basis of the territoriality principle, rather than the nationality principle and the "jurisdictional territory" concept as adduced by the Administration. People in the HKSAR should only be subject to the laws of the SAR, irrespective of whether they were SAR residents or Mainland residents. An attempt to differentiate the two would undermine the overall integrity of the existing laws and complicate issues such as the case of the right of abode in the HKSAR being dealt with by the Court of Final Appeal.
- The concern raised by the Government about the need to bring to justice perpetrators of crimes committed in the HKSAR by non-SAR residents should be dealt with by enactment of new laws in the SAR, rather than by extending the application of the CCC to the SAR.
- The matter of criminal jurisdiction of the Mainland and HKSAR courts not only involved a legal issue, but also the fundamental rights of individuals and the successful implementation of the "One Country, Two Systems" doctrine. In the end, the solution to the issue must be the result of a full and open consultation involving all quarters of the community.
The Law Society of Hong Kong
(LC Paper No. CB(2)1070/98-99(01))
8. Mr Raymond HO elaborated on the Law Society's position as follows -
- According to Article 7 of the CCC, the Chinese criminal laws were applicable to PRC citizens who committed crimes outside the territory of the PRC. Article 7 did not apply to PRC citizens in the HKSAR because the SAR was not outside the territory of the PRC.
- By virtue of Article 18 together with Annex III of the BL, the Mainland courts did not have jurisdiction to try a person under the CCC in relation to an offence, the acts of which were wholly committed in the HKSAR.
- Any consideration to resolve the conflicts of criminal jurisdiction between the Mainland and the HKSAR courts ought to have regard to some overriding factors, i.e.
- the high degree of jurisdictional autonomy vested in the HKSAR by the BL;
- the jurisdiction of the HKSAR courts as developed by the common law and legislative enactments, and the jurisdiction of the Mainland courts under the laws of the PRC including the CCC;
- the obligations of the HKSAR under the International Covenants of Civil and Political Rights (ICCPR) and the Hong Kong Bill of Rights Ordinance, and the PRC's obligations under the ICCPR to which the PRC was now a signatory.
- Further discussions were required in respect of jurisdiction over multiple offences, continuing offences and those involving inchoate offences and cross-border crimes.
9. Mr Raymond HO added that the Law Society reserved its comments in respect of rendition arrangements with the Mainland, pending a full consultation on any draft agreement between Hong Kong and the Mainland.
The Administration's response to the deputations' views
10. At the invitation of the Chairman, the Secretary for Justice (SJ) and Senior Assistant Solicitor General (SASG) explained the Administration's position and responded to the deputations' comments as follows (SJ's speaking note on "The HKSAR's Judicial Jurisdiction" was tabled at the meeting and circulated to all Members of the Legislative Council after the meeting vide LC Paper No. CB(2)1261/98-99(01)) -
- As from 1 July 1997, a new constitutional order was in place in the form of the BL, which was passed by the National People's Congress (NPC) of the PRC. The only sensible way to interpret the Chinese criminal laws was to see how they interfaced with the working concept of "One Country, Two Systems" and the provisions of the BL. On this basis, it was appropriate for the Administration to adopt a purposive approach in interpreting "PRC citizens" and "outside the territory" in Article 7 of the CCC in that, in relation to crimes committed in the SAR, the former referred to "Chinese nationals who were residents of the Mainland" and the latter referred to "outside the jurisdiction of the Mainland".
- Article 7 of the CCC gave the Mainland courts extra-territorial jurisdiction over crimes committed by Chinese nationals. Whilst the Chinese criminal laws did not apply in Hong Kong as it was not listed in Annex III of the BL, the extra-territorial reach of Article 7 did extend to Mainland residents in Hong Kong. The legal and judicial systems of the Mainland were entirely different from those of the HKSAR. The necessary meaning of the term "territory" used in both Articles 6 and 7 of the CCC was jurisdictional territory and not territory simplicita.
- BL 19 conferred jurisdiction on Hong Kong courts over all crimes committed in Hong Kong, but it did not mean that Hong Kong had exclusive jurisdiction over such crimes. It was internationally accepted that under certain circumstances, two or more places had concurrent jurisdiction over a crime committed in one place. For example, if a British citizen committed murder in Hong Kong, both the United Kingdom and Hong Kong had the jurisdiction to try the person. Courts in the HKSAR did not have exclusive judicial jurisdiction over cross-border offences and offences committed in Hong Kong involving Mainland residents. Articles 14 and 18 of the BL did not preclude the possibility that a Mainland resident could be subject to the Chinese criminal laws and the jurisdiction of the Mainland courts for criminal acts committed in Hong Kong. Such interpretation was consistent with the principle of concurrent jurisdiction and the nationality principle of Article 7 of the CCC.
- Regarding BL 41, it should be emphasized that the rights and freedoms of persons in Hong Kong other than HKSAR residents were enjoyed "in accordance with law". The law had to be viewed in the collective sense and interpreted in the context of the legislative intent with which the law was made. According to the views expressed by Dr FU Hualing in one of his writings, as the application of the CCC was limited to the Mainland and its residents, "PRC citizens" in Article 7 of CCC, in relation to crimes committed in the SAR, should be interpreted as referring to Mainland residents only. The literal interpretation of "territory" which led to the conclusion that Article 7 of the CCC did not apply to Mainland residents in Hong Kong defeated the purpose of the Chinese criminal laws which aimed to follow a Mainland resident wherever he was;
- BL 95 empowered, but not mandatorily required, the Mainland and Hong Kong authorities to render mutual legal assistance to each other. If Article 7 of the CCC was not applicable to Mainland residents in the HKSAR, and in the absence of rendition arrangements in force between the two places, a Mainland resident who fled to to the Mainland after committing a crime in Hong Kong could get away unpunished. This could not be the legislative intent of the NPC when it passed the Chinese criminal laws and the BL.
- Chapter III of the BL facilitated the understanding of the concept of "Hong Kong residents" as people qualified to obtain identity cards. In this regard, the Registration of Persons Ordinance and its regulations regulated the issue of HKID cards and as such provided guidance on the interpretation of the concept of Hong Kong residents. According to the Chinese Nationality Law, overseas Chinese (i.e. those having settled abroad) holding a valid passport of another country were not considered to be of Chinese nationality and hence they fell outside the scope of Article 7 of the CCC.
11. Mr Martin LEE said that to maintain confidence in the independence of the legal and judicial systems in the HKSAR after the Reunification, every effort must be made by the Government to uphold the high degree of autonomy provided for in the BL. He opined that the Administration's purposive construction of Article 7 of the CCC, which excluded Hong Kong from the territory of the PRC, was not acceptable under common law principles. The argument that Hong Kong courts had no exclusive jurisdiction over crimes committed in Hong Kong generated fears that Hong Kong residents might be caught in the Mainland for acts done in the HKSAR.
12. SJ responded that the exercise of criminal jurisdiction by one or more places over a particular crime committed should not be regarded as undermining the judicial jurisdiction of the place where the crime, or some elements of the crime, occurred. It should be recognized as a legitimate means to prevent cross-border crimes and to protect the interests and reputation of the place that assumed jurisdiction. There had been precedent cases in Hong Kong which exemplified the principle of concurrent jurisdiction. For example, in November 1998, a person was convicted in the Court of First Instance of Hong Kong of the offence of conspiracy in Hong Kong to commit a murder in Singapore. SJ said that the Administration's purposive interpretation of "Chinese citizens" in Article 7 of the CCC was consistent with the legal policy identified by Francis Bennion in Statutory Interpretation where he expounded that:
"[The] enactments are applied to persons out of the jurisdiction because the policy of the [legislation], or legal policy generally, requires it. ...It would plainly be against legal policy for persons to be able to go abroad to commit their crime and then return without punishment."
13. In addressing the concern that Chinese citizens who were residents of Hong Kong might risk prosecution in the Mainland for crimes committed soley in Hong Kong, SJ said that judicial authorities in the Mainland fully respected the judicial independence of the HKSAR. This had been clearly asserted by the President of the Guangdong Provincial Higher People's Court who, after the announcement of the verdict on the appeal of CHEUNG Tze-keung and his co-accused, emphasized that under the BL, public security authorities, people's procuratorates and people's courts in the Mainland had no judicial jurisdiction over offences committed solely in the HKSAR by Hong Kong residents.
14. Mr Martin LEE asked Dr FU Hualing whether he agreed with the Government's interpretation of Article 7 of the CCC. Dr FU clarified his stance that the Mainland and the HKSAR should be treated as jurisdictions foreign to each other as far as legal system was concerned. He agreed with the Government's "jurisdictional", as opposed to "geographical", interpretation of "territory" in Article 7 of the CCC.
15. The Chairman and Mr James TO said that should "territory" be construed to mean "areas in which the PRC has jurisdiction", it would lead to absurdity in interpreting the meaning of the term which also appeared in different Chinese laws. As pointed out by Mr LING Bing in his submission, "territory" in other Chinese laws obviously carried the meaning of "areas subject to the PRC sovereignty".
16. SJ said that insofar as the CCC was concerned, particularly Articles 6 and 7, the jurisdictional interpretation of "territory" consistently applied. She advised that the case of CHEUNG Tze-keung was tried in the Mainland under Article 6 of the CCC because some elements of the crimes were planned, or carried out, in the Mainland where the accused were arrested. In the sense of Article 6, the occurrence of either a criminal act or a consequence of a crime within the territory of the PRC was deemed to constitute the commission of a crime within the PRC.
17. Professor H Y CHEN pointed out that according to the interpretation given by the NPC Legal Work Committee in "territory" in Article 6 of the CCC referred to a combination of land territory, territorial waters and air space under the sovereignty of the PRC, and the clause "except as specially provided for by law" in the same Article covered the BL of the HKSAR. Therefore, it was obvious that to interpret the HKSAR as within the territory of the PRC was consistent with the Legal Work Committee's interpretations. Professor CHEN further advised that the same interpretation was also shared by a prominent Mainland academic ZHAO Bingzhi in his Professor CHEN said that as a matter of consistency, it was only reasonable to expect that this interpretation of the meaning of "territory" should also apply to Article 7 of the CCC.
18. Mr Albert HO said that he could not accept the Administration's interpretation for the following reasons -
- The purposive approach adopted by the Administration, which derived support from policy considerations, violated the literal meaning of the CCC as well as BL 18. It was not acceptable that the law should be twisted for the purpose of achieving certain objectives such as, in the present context, to effectively combat crimes. To do so would amount to a disrespect for the rule of law. If the desired policy effects were not attainable under the existing laws, the appropriate method to deal with it was to amend the laws, or to enact new laws, through formal legislative means.
- The overall weight in terms of the quantity of authoritative views available from legal practitioners and academics appeared to be against the Administration's interpretation. In the absence of a court interpretation, one might wonder whether the Administration's views were correct.
- The lack of rendition arrangements did not reinforce the Administration's views on the jurisdiction of the Mainland and the Hong Kong courts. If it was adduced as a basis for the Administration's interpretation, one might wonder whether the Administration's interpretation would be different if a rendition agreement was in place.
19. Mr Albert HO further opined that even if it were ruled that the Mainland courts had jurisdiction over crimes committed by Mainland residents in Hong Kong, such cases should be tried under the criminal laws of the HKSAR, rather than under the Chinese criminal laws, by virtue of Article 18 and Annex III of the BL.
20. Mr Martin LEE said that using the concept of "jurisdictional territory" in interpreting Articles 6 and 7 of the CCC was very confusing. He further pointed out that if the jurisdiction prescribed under the CCC was based on the nationality principle, then the jurisdiction over a person would be universal and therefore it would be unnecessary to have separate provisions for Articles 6 and 7. He opined that "territory" in both Articles 6 and 7 of the CCC should refer to "geographical territory".
21. In response to the above queries, SJ said that it was appreciated that different people might hold different opinions on a legal issue as complicated as the one under discussion. She said that the authority to interpret the law ultimately rested with the courts, and the courts in the Mainland were the proper authorities to decide whether they had jurisdiction over a particular crime involving the Mainland, as illustrated in the trial of the CHEUNG Tze-keung and LI Yuhui cases. SASG supplemented that the purposive interpretation adopted by the Administration was based primarily on the fact that the Mainland and the HKSAR were two distinct legal entities and hence should be treated as independent jurisdictions. This interpretation was not only canvassed by practitioners and academics in the Mainland but also by people who had professional knowledge of the law and legal system of Hong Kong. As opposed to Article 7 of the CCC which was based upon the nationality principle, the effect of BL 18 was that people of Chinese nationality who were residents of Hong Kong were excluded from the application of the Chinese criminal laws in respect of crimes committed solely in the SAR. However, BL 18 did not forbid the application of the Chinese criminal laws to Mainland residents in Hong Kong. The purposive interpretation of Article 7 of the CCC, together with BL 18, led to the conclusion that Mainland residents in Hong Kong were bound by the Chinese criminal laws.
22. Mr CHU Yu-lin considered that the Administration's jurisdictional interpretation of "territory" in Article 7 of the CCC, which focused on the independence between the judicial systems of the Mainland and the HKSAR, was more in line with the principle of "One Country, Two Systems".
23. Mr TSANG Yok-sing said that, as explained by the Administration, there were certain provisions of the laws of Hong Kong which bound the conduct of Hong Kong residents abroad and which enabled Hong Kong residents committing crimes elsewhere to be tried in Hong Kong. He further pointed out that the BL did not expressly require that a Hong Kong resident who committed a crime in the Mainland to be transferred to the Mainland for trial. On the basis of the "double jeopardy" argument, he asked Mr LING Bing to clarify whether Hong Kong residents could be tried in Hong Kong for criminal acts committed in the Mainland.
24. Mr LING Bing replied that in his view, criminal jurisdiction of the Hong Kong courts was basically territorial and therefore the courts would not have jurisdiction on nationality basis over crimes committed by Hong Kong residents in the Mainland. He pointed out that following the Reunification, the Mainland-SAR relationship had become one of intra-state to which the nationality principle of criminal jurisdiction under international law should not apply. To uphold the nationality principle in the context of the Mainland-SAR relationship would amount to equating domicile with nationality which was devoid of any legal basis, either in international law or in Chinese law, with repercussions going beyond the issue of judicial jurisdiction. Mr LING maintained the view that one could only define a state's criminal jurisdiction, and the scope of application of a national criminal law, by reference to the scope of its territorial sovereignty. However, with the Reunification and the promulgation of the BL, the legal order of the PRC had been reorganized so that the allegiance of a Chinese national to the State meant that he should observe the Mainland laws when he was in the Mainland, and that he should observe the laws of the SAR when he was in the HKSAR.
25. At the invitation of the Chairman, Mr Raymond HO advised that the courts of Hong Kong had jurisdiction over Hong Kong residents over, firstly, offences within Hong Kong's territorial boundaries and secondly, offences with an extra-territorial element which Hong Kong had jurisdiction either by legislation or under common law, and thirdly, offences committed on board a ship or airplane of the HKSAR. He opined that the courts of Hong Kong could have jurisdiction over certain offences committed in the Mainland by Hong Kong residents.
26. Mr Johannes CHAN said that BL 18 stipulated that Chinese national laws did not apply in the HKSAR except those listed in Annex III to the BL. However, there were no laws passed by the NPC to specify that the laws of Hong Kong would not apply in the Mainland. This might account for the differences in the interpretation of the judicial jurisdiction of the two places.
27. Mr TSANG Yok-sing considered that the provisions of BL 18 did not necessarily mean that nobody in Hong Kong had to observe the Chinese national laws. He pointed out that, for example, while the US national laws clearly did not apply in Hong Kong, it did not mean that a US citizen in Hong Kong did not have to observe the US laws.
28. In response, Professor H Y CHEN said that the courts of Hong Kong could exercise jurisdiction over certain crimes committed by Hong Kong residents outside Hong Kong. However, such jurisdiction was limited to serious crime cases or cases within the exceptional circumstances specified in the Criminal Jurisdiction Ordinance. Contrary to the focus on the particular nature of the crimes, the Government's interpretation suggested a general jurisdiction of the Mainland courts over all criminal offences under the Chinese criminal laws committed by Mainland residents in Hong Kong.
29. Mrs Miriam LAU said that she was opposed to the Administration's interpretation. She asked whether preparation work carried out in the Mainland for a crime eventually completed outside the Mainland would itself constitute a crime under the Chinese criminal laws over which the Mainland courts had jurisdiction.
30. Dr FU Hualing responded that the trial of CHEUNG Tze-keung was an example, where the accused were charged and tried partially for the preparation for the crimes committed in Hong Kong. He said that it was not clear whether there were standard rules which the Mainland courts would apply to cross-border crimes in deciding whether the courts would assume jurisdiction. Cases might be determined on their own merits taking into account the particular circumstances.
31. Mr LING Bing advised that under Article 22 of the CCC, preparations for the purpose of committing a crime might constitute an offence under the Chinese criminal laws, but they might attract a lesser punishment than that for the substantive offence. He added that it appeared that Article 6 of the CCC partially adopted the effects principle so that if a result of a crime happened in the PRC, then the Chinese criminal laws could apply.
32. The Chairman thanked the representatives of the Administration and the deputations for their valuable views. There being no other business, the meeting ended at 12:05 pm.
Legislative Council Secretariat
15 April 1999