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Following is a question by the Hon James To and a reply by the Secretary for Security, Mr Ambrose S K Lee, in the Legislative Council today (November 8):
Question:
The murder case in Luk Yu Tea House & Restaurant came to trial recently in a Mainland court. Although the case occurred in Hong Kong and involved five Hong Kong people, it was heard by a court in the Mainland. In this connection, will the Government inform this Council:
(a) of the reasons why the murder case which took place in Hong Kong came to trial in the Mainland and not in Hong Kong, and the legal basis for such an arrangement; whether it has considered if such an arrangement would contravene the provisions of the Basic Law regarding the jurisdiction of Hong Kong and the principle of "One Country, Two Systems"; if it has, of the results of its consideration;
(b) whether the Chief Executive or the Secretary for Security has requested the Mainland authorities to surrender the suspects to Hong Kong; if so, of the way and process by which the request was made; if not, whether any other officials of Hong Kong have made such a request; if they have, of the requesting department(s), the rank(s) of the official(s) making the request, as well as the way and process by which the request was made; and the Mainland department(s) and the rank(s) of the official(s) approached, as well as their replies; and
(c) whether the Mainland authorities have requested the Government of the Hong Kong Special Administrative Region to assist in providing information relating to the case; if they have, of the information requested, the way and process by which the request was made, and whether such information includes those materials obtained with statutory authority (including the powers to search and seize) conferred by the laws of Hong Kong?
Reply:
Madam President,
(a) Under Article 19 of the Basic Law, Hong Kong courts have jurisdiction over any person who is alleged to have committed an offence under Hong Kong's criminal law. As the Luk Yu Teahouse case occurred in Hong Kong, Hong Kong courts have jurisdiction over it. However, like the courts of other jurisdictions, Hong Kong courts do not have "exclusive jurisdiction". There are situations in which another country or jurisdiction is entitled, under its own laws, to institute criminal proceedings against a person alleged to have committed an offence in Hong Kong. Similarly, there are situations in which proceedings may be brought in Hong Kong courts for offences committed outside Hong Kong.
According to the existing administrative arrangement between Hong Kong and the Mainland, the Mainland may return to Hong Kong those Hong Kong people having committed crimes solely in Hong Kong. However, this arrangement is not applicable to cases over which the Mainland has jurisdiction. In addition, if the suspects concerned were first arrested by the Mainland authorities, Mainland courts would be entitled to first deal with the offences committed by the suspects in the Mainland and to proceed with the trial.
Internationally, it is not uncommon for two or more places to have concurrent jurisdiction over the same case, depending mainly on the jurisdiction conferred by the relevant laws of these places. For a crime occurring in one place, for example, another 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 also reflects 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. In 1998, a person was convicted in Hong Kong's Court of First Instance of the offence of conspiracy in Hong Kong to commit a murder in Singapore.
We understand that the Hong Kong people arrested in the present Luk Yu Teahouse case were suspected of having committed the offence of "intentional homicide" under Article 232 of the Criminal Law of the People's Republic of China. The Mainland procuratorate authorities considered Mainland courts to have jurisdiction over this case on the ground that the suspects' preparatory criminal acts took place in the Mainland.
There is no inconsistency between the handling of this case and the usual international practice of dealing with concurrent criminal jurisdiction. There is also no contravention with the Basic Law and the principle of "One Country, Two Systems".
(b) Under the existing police cooperative arrangement between the Mainland and Hong Kong, the Police are the authority liaising with the Mainland public security authorities. All along and in accordance with the existing administrative arrangement between Hong Kong and the Mainland, if Hong Kong would like to request the Mainland to return to it Hong Kong people who have committed crimes in Hong Kong, the Police would raise the requests with the Mainland public security authorities.
In this case, according to established practice, the Police have, on behalf of the Hong Kong Special Administrative Region Government, written to the Mainland public security authorities to request for the return of the Hong Kong people concerned then involved in this case.
The corresponding public security authority in the Mainland responded that as the relevant preparatory criminal acts took place in the Mainland, the Mainland has jurisdiction over this case.
(c) During the investigation of this case, the Mainland public security authority has, according to the general international police cooperation arrangements, requested the Hong Kong Police to provide relevant information and intelligence, including photographs and receipts related to the case and copies of the statements made by the victim's friends, relatives and witnesses.
In response thereto, the Hong Kong Police have provided certain information to the Mainland public security authority. Such information were all legally obtained by the Police.
Ends/Wednesday, November 8, 2006
Issued at HKT 12:54
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