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The Secretary for Security, Mrs Regina Ip, today (Saturday) further clarified the application of the Chinese Criminal Code (CCC) to the cases of Cheung Tze-keung and Li Yuhui.
Meeting the media to answer their queries about the two cases, she pointed out that under Article 18 of the Basic Law, only the PRC national laws included in Annex III of the Basic Law apply to the HKSAR. The CCC has not been so included, so it does not apply to the HKSAR.
"In Cheung's case, even though Cheung is a Hong Kong resident, the CCC is applied because he is alleged to have committed offences in the Mainland in respect of which Article 6 of the CCC is relevant," she said.
Section 6 of the CCC provides that unless specified otherwise by law, it applies to all crimes committed within the territory of the PRC. It also provides that the occurrence of whether an act or a consequence of a crime within the territory of the PRC is deemed as committing a crime within the territory of the PRC.
"In Li's case, Li is a Mainland resident. Although the alleged offence occurred in the HKSAR, he is under investigation and may stand trial in the Mainland under Section 7 of the CCC, " Mrs Ip went on.
Section 7 of the CCC provides that it is applicable to PRC citizens who commit the crimes specified in this law outside the territory of the PRC.
"Read in the light of the Basic Law, the term 'the territory of the PRC' refers to the jurisdiction rather than geographical territory. In this context, the HKSAR is not within the 'territory' of the PRC," according to the Acting Solicitor General, Mr Stephen Wong.
Speaking on the same occasion, Mr Wong explained that Article 7 of the CCC would only apply to Mainland residents but not to Hong Kong residents because Hong Kong residents are Chinese nationals only within the meaning of the Nationality Law (included in Annex III of the Basic Law under Article 18) which applies to the HKSAR, and not within the meaning of the CCC.
Mrs Ip said that under Article 19 of the Basic Law, SAR courts have jurisdiction over any person, whether SAR residents or otherwise, having committed offences in breach of SAR criminal laws in the SAR.
"However, Basic Law Article 19 does not expressly confer exclusive jurisdiction on SAR courts for offences committed in Hong Kong in breach of SAR laws.
Concurrent jurisdiction is not uncommon, especially in criminal law," she said.
Turning to the case of Lau Kwok-wah, over which there has been concern that he being tried in the Mainland solely for a crime committed in Hong Kong, Mrs Ip said: "from the information available to the Police, from what we have learnt from the Mainland authorities in the course of our investigation into the alleged offences and from our police officer who has been present throughout the court proceedings, we have reasons to believe that Lau was involved in the planning of the alleged crime while he was in the Mainland, and that he is being tried in the Mainland for offences committed in the Mainland under the Mainland law."
"The system of judicial proceedings in the HKSAR and the Mainland are different. It will be inappropriate to interpret the proceedings conducted in the Mainland on the basis of the HKSAR's system. It is also not proper to consider the Statement of Offences in isolation and to draw any conclusion on the sole basis on this Statement," she said.
She added that Police investigation on Lau's involvement in the alleged offences was continuing.
"In the event that there is sufficient evidence to press charges against Lau, we shall seek his return to Hong Kong after the judicial proceedings in the Mainland have been completed. This is in line with international practice on surrender of fugitive offenders," she said.
Ends/Saturday, November 7, 1998
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