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Following is the speech by the Secretary for Justice, Ms Elsie Leung, in the motion debate on 'The HKSAR's judicial jurisdiction' in the Legislative Council today (Wednesday):

Mr Deputy President,

This motion involves two statements. The first refers to two cases in the Mainland and what the SAR Government has done, or not done, in respect of them. The second statement urges the Government to expeditiously discuss and conclude an agreement on rendition arrangements between the Mainland and the SAR. Later this afternoon, the Secretary for Security will be discussing the administrative and policy aspects of both statements. I wish to address the legal aspects of the first statement, and to demonstrate that the allegations made against the Government are unjustified.

It is true that the two cases referred to have caused widespread concern among Hong Kong people. But I believe that when the cases are fully understood, and put in their proper context, many of the concerns will disappear. Part of the problem is that the jurisdictional aspects of cross-boundary crime are not widely understood. I would therefore like to clarify some of the basic principles.

No exclusive jurisdiction

First, it must be understood that there is no country or region in the world that has an exclusive judicial jurisdiction over crimes committed within its boundaries. Were this the case, it would be relatively easy for criminals to escape from justice.

There are two ways in which a crime committed in one place may be the subject of criminal proceedings in another place. First, that other place may have jurisdiction because the crime was planned there, or was completed there, or because one or more elements of the crime occurred there. Hong Kong's own criminal law exemplifies this principle. For example, under section 5 of the Offences Against the Person Ordinance, it is an offence for any person in Hong Kong to conspire to murder any other person anywhere in the world. Last month, someone was convicted in the Court of First Instance of the offence of conspiracy in Hong Kong to commit a murder in Singapore. In addition, under the Criminal Jurisdiction Ordinance, Hong Kong courts have jurisdiction over specified offences of fraud and dishonesty if any part of the conduct or of the results that are required to be proved for a conviction of such an offence takes place in Hong Kong.

If Hong Kong, or any other place, exercises its criminal jurisdiction in such circumstances this should not be regarded as undermining the judicial jurisdiction of the place where the crime, or some elements of the crime, were committed. It should be recognised as a legitimate means to prevent cross-border crime and to protect the interests and reputation of the place that assumes jurisdiction. These bases of jurisdiction are fully consistent with the international law principles of 'objective' and 'subjective' territoriality.

The second way in which criminal proceedings in one place may arise out of conduct occurring elsewhere is on the basis of extra-territorial offences. An extra-territorial offence is one that can be committed outside the borders of the country or region that created the offence. As a matter of international law, it is permissible for States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory. Many, if not all, legal systems have such offences.

As I am sure you will know, Spain is currently claiming jurisdiction to prosecute General Pinochet for crimes of genocide, torture and hostage-taking allegedly committed in Chile. But extra-territorial offences are not limited to crimes against humanity, or to crimes that are prohibited by international treaties.

Some countries including Israel, Italy and Turkey, have jurisdiction over the criminal conduct of their nationals committed abroad. The UK has jurisdiction over certain offences committed by British subjects anywhere in the world, including treason, murder, bigamy, perjury and breach of the Official Secrets Act. The United States exercises extra-territorial jurisdiction in respect of (for example) its anti-trust legislation, and in respect of air piracy and hostage-taking.

Hong Kong has a number of extra-territorial offences. For example, the offence of offering an advantage to a public servant, contrary to section 4 of the Prevention of Bribery Ordinance, can be committed 'in Hong Kong or elsewhere'. Offences under the Crimes (Torture) Ordinance, and the Internationally Protected Persons and Taking of Hostages Ordinance are triable in Hong Kong irrespective of the nationality of the offender and of whether they were committed in Hong Kong or elsewhere. In 1990, the Privy Council held that a conspiracy entered into elsewhere to commit a crime in Hong Kong is triable by Hong Kong courts. In reaching its decision, the court commented that 'crime is now established on an international scale and the common law must face this new reality.' The Administration has recently proposed that certain sex offences against children should have extra-territorial application.

Concurrent jurisdiction

As a result of the principles I have outlined, no place has exclusive criminal judicial jurisdiction over crimes committed in that place. On the contrary, there are many situations in which two or more places have concurrent jurisdiction. For example, if a British citizen commits a murder in Hong Kong, both the United Kingdom and Hong Kong have the jurisdiction to try him.

In such a situation, what can the SAR Government do if the offender is arrested in the UK? The answer is that, if it has sufficient evidence against the offender, it can formally request the UK Government to return him to Hong Kong in accordance with the extradition agreement between the SAR and the UK. I should point out, however, that extradition agreements commonly permit the country that is requested to surrender an alleged offender to decline to surrender him if that country has the jurisdiction to try him for the relevant offence.

If Hong Kong and another place have concurrent jurisdiction over a case, but there is no extradition agreement in force between them, there is no legal basis for Hong Kong to request the return of the alleged offender to Hong Kong.

Concern about the two cases

Let me now turn to the two cases referred to in the motion. Some people have expressed concern that Hong Kong residents might be tried in the Mainland for offences committed in Hong Kong, or even for acts which constitute offences in the Mainland but are not unlawful in Hong Kong. There is no legal basis for such concern.

I will begin by restating two fundamental aspects of the principle of "One Country, Two Systems". First, under Article 18 of the Basic Law, the national laws of the People's Republic of China are not applicable to the Hong Kong Special Administrative Region, except for those listed in Annex III of the Basic Law. The Chinese Criminal Law is not so included and therefore does not apply to the HKSAR.

Secondly, under Article 19 of the Basic Law, the courts of the HKSAR have jurisdiction over any person who is alleged to have committed an offence under Hong Kong law.

Cheung's case

Neither of these two fundamental principles has been undermined by the arrest and trial of Cheung Tze-keung and his co-accused in the Mainland. They were tried not just for offences related to alleged kidnappings in Hong Kong, but also for offences involving the illegal sale and purchase of explosives and smuggling of weapons and ammunition, which occurred in the Mainland where they were arrested. Although the kidnappings were allegedly perpetrated in Hong Kong, they were planned in the Mainland; the preparatory work, including the purchase of vehicles, weapons and equipment for use in the kidnappings, was carried out in the Mainland. It must clearly be understood that whereas Cheung Tze-keung was sentenced to life imprisonment in respect of the kidnapping offences and the smuggling offence, it was only in relation to the explosives offence that he received the death penalty. That explosives offence occurred after the dates of the alleged kidnappings.

Article 6 of the Chinese Criminal Law provides that the Law is applicable to all who commit crimes within the territory of the PRC, and that the occurrence of either an act or a consequence of a crime within the territory of the PRC is deemed to constitute its commission within the PRC. In other words, to plan an offence in the Mainland which is to occur elsewhere is treated as a criminal act justifiable in the Mainland. It is on the basis of these facts that the Mainland judiciary exercised jurisdiction over the case. It did so not because Hong Kong is part of the PRC, but because the case falls within the jurisdictional territory of Mainland courts.

It is true that some of the offences that were planned in the Mainland were allegedly committed in Hong Kong. This means that, if there were sufficient evidence that those crimes were committed in Hong Kong, the SAR courts would also have jurisdiction over them. But, as I have explained earlier, there is nothing unusual about a situation in which the courts of two places have concurrent jurisdiction over a case. Nor does such concurrent jurisdiction in any way impair the judicial jurisdiction of either place.

Li's case

The other case referred to in the motion relates to Li Yu-hui, a resident of Mainland China who is alleged to have committed five murders in Hong Kong. He was arrested and will be tried in the Mainland.

On what basis do the Mainland courts exercise jurisdiction in this case? The answer is supplied by Article 7 of the Chinese Criminal Law which gives the Mainland courts extra-territorial jurisdiction over crimes committed by Chinese nationals. Article 7 provides as follows.

'This Law shall be applicable to any citizen of the People's Republic of China who commits a crime prescribed in this Law outside the territory and territorial waters and space of the People's Republic of China; however, if the maximum punishment to be imposed is fixed - term imprisonment of not more than three years as stipulated in this Law, he may be exempted from the investigation for his criminal responsibility.'

It is my understanding that, whilst the Chinese Criminal Law does not apply in Hong Kong, the extra-territorial reach of Article 7 does extend to Hong Kong. I would ask Honourable Members to note that the words used in Articles 6 and 7 are ¡§»â°ì¡¨ and not ¡§»â¤g¡¨. The necessary implication of ¡§»â°ì¡¨ is jurisdictional territory and not territory simplicity. Ideally, the case of Li Yu-hui is to be tried in Hong Kong. However, in the absence of a rendition agreement, there is no legal basis for requesting him to be sent back to Hong Kong for trial. The important issue is whether the Mainland court does have jurisdiction over the case. I am satisfied that both the Mainland court and SAR court have jurisdiction over the matter, and since the accused was arrested in Mainland and since there is no legal machinery for him to be brought back to Hong Kong, the allegation that the jurisdiction of the Hong Kong court has been eroded or the confidence in the autonomy of the SAR's judicial jurisdiction being impaired is totally unsubstantiated. I am aware that some lawyers disagree with my interpretation of Article 7 and consider that it does not apply to acts done in Hong Kong. They are, of course, entitled to their own opinions.

If my view is correct, does this mean that Chinese citizens who are residents of Hong Kong can be prosecuted in the Mainland for criminal acts committed solely in Hong Kong? It is my understanding that this is not the case.

I believe that the only sensible way to interpret the Chinese Criminal Law is to see how it interfaces with the Basic Law. As I mentioned earlier, Articles 18 and 19 of the Basic Law have the effect that the Chinese Criminal Law does not apply to Hong Kong; and crimes that take place in Hong Kong are subject to the jurisdiction of the Hong Kong courts. An administrative arrangement exists between Hong Kong and the Mainland under which a person who is alleged to have committed an offence in Hong Kong and who is arrested in the Mainland will be returned to Hong Kong to face trial in Hong Kong if three conditions are satisfied, i.e. (1) he is a Hong Kong resident, (2) the offence was committed entirely in Hong Kong and (3) he is not accused of having committed any offence in the Mainland.

Since 1990, 128 fugitive offenders have been returned to Hong Kong under these arrangements and there is no reason to believe that the Mainland will depart from that practice. The Mainland courts have not asserted jurisdiction under Article 7 of the Criminal Law of the PRC over crimes committed exclusively in Hong Kong by Hong Kong residents and there is no basis for assuming that they will do so in future. On the contrary, Mainland authorities (including the President of the Guangdong Provincial People's Higher Court Mr. Lu Botao) have recently confirmed that, under the provisions of the Basic Law, the Public Security Bureau, the Procuratorate and the courts in the Mainland have no jurisdiction over Hong Kong residents in respect of crimes committed solely in Hong Kong.

As from the 1 July 1997, we have a new constitutional order in the form of the Basic Law, a piece of legislation passed by the National People's Congress of the People's Republic of China which is an entirely different legal system from the HKSAR legal system. How the Basic Law interfaces with the laws of the PRC and the domestic law is an area of uncharted waters. One should adopt an open mind and explore into such sphere zealously. Unjustifiable allegations that bring our legal system into disrepute are not beneficial to the Special Administrative Region. I would refer Honorable Members to several articles written by Chinese Law experts who teach, or are doing research, in our universities and understand both the Mainland legal system and the Hong Kong legal system: they are the articles of Professor Gu Minkang, Dr Zhu Guobin and Dr Lin Laifan of the City University appearing in Ming Pao on the 23 November, Professor Wang Chen Quang of the same university appearing in Wen Wei Pao on the 25, 26 and 27 November and of Professor Wan Hong She, Professor of Jilin University appearing in the December issue of Hong Kong Economic Journal Monthly Magazine. Professor Chen Guangzhong, Vice President of China Law Society also spoke on the subject as reported by Xinhua News Agency, Chungking. From these articles, you will find my interpretation of Articles 6 and 7 of the Criminal Law of the PRC as expressed in my press statement of the 3rd November is not without foundation. I shall be happy to provide Honorable Members with copies of these articles on request.

Seeking the return of the defendants

The motion alleges that the SAR Government has not tried its utmost to seek the return of those who are suspected of violating the law in the SAR for trial in the SAR courts. I will address this allegation from the legal perspective, and the Secretary for Security will later this afternoon address it from the administrative perspective.

On what legal basis could the Administration have sought the return of the defendants in the two cases referred to? If there were sufficient evidence against the defendants, the Hong Kong courts would have jurisdiction to try them for offences allegedly committed in Hong Kong. However, the only way in which the Hong Kong Government can make a formal request for the surrender of an alleged criminal by another place is on the basis of an arrangement for the surrender of fugitive offenders made with that place. Similarly, Hong Kong will only surrender an alleged criminal to another place on the basis of such an arrangement.

There is no such arrangement between the Hong Kong SAR and the Mainland. As a matter of law, there was therefore no basis on which a formal request could have been made to the Mainland for the surrender of the defendants in the two cases referred to, and Honourable Members would not ask the Government to take any step which is not in accordance with the rule of law.

Mr Deputy President, before we criticise the events surrounding the two cases, let us consider what our attitude would be had the position been reversed. Imagine that a murder took place in the Mainland, that had been planned in Hong Kong. Or imagine an offence against section 4 of the Prevention of Bribery Ordinance occurred in the Mainland. If the Hong Kong courts were to try those who planned the murder, or those who committed the corruption offence, would we say that the trials undermined the judicial jurisdiction of the Mainland? Would we agree to surrender those persons to the Mainland to face trial there in the absence of any arrangement for the surrender of fugitive offenders? The answer to both questions must be a resounding 'no'.

We must not apply double standards. We must respect the judicial jurisdiction of Mainland courts, and we must accept that we cannot make a formal request for the surrender of alleged offenders in the absence of an arrangement to do so.

The Administration therefore firmly rejects the allegation in this motion that it failed to safeguard the SAR's judicial jurisdiction and undermined the public confidence in that jurisdiction.

End/Wednesday, December 9, 1998

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