| National Security (Legislative Provisions) Bill :
Application of the proposed subversion and
secession offences outside Hong Kong
It is proposed that the offences of
subversion and secession should apply to
acts done outside Hong Kong by any Hong
Kong permanent resident. This paper explains -
| |
(1) |
the legal basis upon which
such provisions can be enacted; |
| |
(2) |
the policy justifications for
legislating in such a manner; and |
| |
(3) |
how the Administration intends
to implement these extra-territorial
provisions. |
|
| Legislative competence |
| 2. |
Neither before nor since Reunification
has Hong Kong's Legislative Council
had the powers of a sovereign legislature.
Its powers have been limited to those conferred
on it by relevant constitutional instruments. |
| 3. |
However, according to common law principles, "There
is no rule of law that the territorial
limits of a subordinate legislature define
the possible scope of its legislative enactments
or mark the field open to its vision" (Lord
Uthwatt in Wallace Brothers & Co Ltd
v Commissioner of Income Tax, Bombay City
and Bombay Suburban District (1948) LR
75 Ind App 86, at p.98). |
| 4. |
The limitation on the legislative competence
of a subordinate legislature imposed by the
common law appears to be that there must
be some "nexus" between the territory
concerned and the provisions of the legislation.
On such "nexus", Professor Peter
Wesley-Smith is of the view that the test
is whether the legislation bears a "real
or substantial relation" to the territory. |
| 5. |
Article 17 of the
Basic Law states that "The
Hong Kong Special Administrative Region shall
be vested with legislative power".
Article 73(1) empowers the Legislative Council
to "enact, amend or repeal laws in
accordance with the provisions of this Law
and legal procedures". There are no
provisions in the Basic Law which expressly
prohibit the legislature of the HKSAR from
legislating extra-territorially. However,
the Legislative Council may be subject to
the common law rule that the legislation
of a subordinate legislature needs to have
sufficient connection with the territory. |
| 6. |
Article 19(2) of the Basic Law provides
that -
"The courts of the Hong Kong Special
Administrative Region shall have jurisdiction
over all cases in the Region, except
that the restrictions on their jurisdiction
imposed
by the legal system and principles previously
in force in Hong Kong shall be maintained."
Having regard to this Article, and to
the principle of continuity that underpins
many aspects of the Basic Law, it is considered
that the Legislative Council has the power
to enact laws having extra-territorial
effect where those laws have a sufficient
connection with the Hong Kong SAR. |
| 7. |
Examples of legislation having extra-territorial
effect that were enacted before and after
Reunification are (respectively) section
4 of the Prevention of Bribery Ordinance
(Cap 201) and section 7(1A) of the Gambling
Ordinance (Cap 148). The former provides
that any person who "whether in Hong
Kong or elsewhere" bribes a public
servant shall be guilty of an offence. The
latter makes it an offence for a person to
engage in bookmaking by receiving, negotiating
or settling "outside Hong Kong" a
bet which was placed from Hong Kong. |
| 8. |
In the case of the proposed offences
of subversion and secession, the connection
with the SAR would be -
| |
(1) |
the HKSAR has a constitutional
duty to enact laws on its own to
prohibit secession and subversion
against the Central People's
Government; |
| |
(2) |
Hong Kong permanent residents
have constitutional rights under
the Basic Law, including the right
of abode; |
| |
(3) |
Hong Kong permanent residents
retain those rights, even when they
are outside Hong Kong, and therefore
continue to have a constitutional
connection with the HKSAR; and |
| |
(4) |
any act of secession or subversion
against the Central People's
Government, wherever committed, would
affect the HKSAR which is part of
the PRC. |
This combination of factors is considered
to create a sufficient connection between
acts of secession or subversion committed
outside Hong Kong by Hong Kong permanent
residents and the HKSAR to empower the
Legislative Council to prohibit such acts. |
| Policy justifications |
| 9. |
In deciding whether it is appropriate to legislate for acts
of subversion or secession committed outside Hong Kong, the following
considerations have been taken into account.
| (1) |
Comity of nations |
| |
The general principle of "comity of nations" refers
to a friendly understanding by which each nation respects
the laws and usages of other nations, without prejudice
to its own rights and interests. Under this principle,
one country does not generally legislate for activities
conducted within the jurisdiction of another country. |
| (2) |
Established exceptions |
| |
International law recognizes exceptions to the above
principle, including the following well-established principles - |
| |
| (a) |
the principle of objective territoriality,
which allows a place to assume
jurisdiction where the result or effects of the crime
are sustained
in that place; and |
| (b) |
the protective principle, which applies if
the conduct abroad threatens the
security, integrity or the proper functioning of
the government of the
place initiating the prosecution. |
|
| (3) |
Relevant foreign laws |
| |
In many other common law jurisdictions, activities
that would fall within the proposed offences of subversion
and secession would generally be covered by the law of
treason. The general rule that applies to offences of
treason in such jurisdictions is that they have extra-territorial
effect on persons who owe allegiance to the state. That
will include not only nationals of the state but also
any non-national who owes allegiance to it. For example,
in Joyce v DPP, a non-national who had improperly obtained
a British passport was convicted of treason. The conviction
was based on the fact that he owed allegiance to the
Crown on account of his continuing use of the British
passport which enabled him to obtain the protection of
the Crown in a foreign country. |
| (4) |
Hong Kong permanent residents |
| |
Since Hong Kong is not a sovereign state, it is not
possible to apply the concept of allegiance to Hong Kong
in determining the application of the proposed offences
of subversion and secession. The closest concept is that
of the protection afforded to Hong Kong permanent residents
under the Basic Law. The constitutional rights conferred
on a permanent resident subsist so long as an individual
is a permanent resident, regardless of whether he or
she is physically in Hong Kong. |
| (5) |
Legal policy |
| |
According to Francis Bennion "It would plainly
be against legal policy for persons to be able to go
abroad to commit their crime and then return without
punishment" (see Statutory Interpretation, 3rd
ed, p.290). In the context of the UK, Bennion comments
that "In the nature of things, this is more likely
to happen with Britons than foreigners. They belong to
the legislating territory, and may be likely to return
to it. Nowadays, their absence abroad may be very brief
indeed".
In the context of Hong Kong, similar
considerations apply to permanent residents.
|
| (6) |
Mainland laws |
| |
Under the principle of "one country, two systems",
Hong Kong is not obliged to adopt
the same approach to extra-territoriality as the Mainland.
However, since
the Bill deals with the protection
of national security, the extent to which relevant
Mainland laws have extra-territorial
application is a factor to be taken
into account.
Under Articles 7 and 8 of the Criminal
Law of the PRC, crimes prescribed
in that law apply outside the
PRC -
| (a) |
to any PRC citizen, but
he may be exempted if the maximum
punishment for the offence is
fixed term imprisonment of not
more than three years; and |
| (b) |
to any foreigner, provided
the minimum punishment for the
offence is fixed-term imprisonment
of not less than three years,
and provided the offence is also
punishable according to the laws
of the place where it was committed. |
|
|
| 10. |
Having regard to all these factors, and to the special status that
Hong Kong permanent residents have under the Basic Law, it is considered
appropriate to apply the proposed offences of subversion and secession
to the acts of permanent residents committed outside Hong Kong. |
| 11. |
The effect of such an approach is that there be circumstances
in which the acts of a Hong Kong permanent resident committed
outside Hong Kong (whether in the Mainland or not) might amount
to offences against the state both in Hong Kong and the Mainland.
However, the fact that there would be concurrent jurisdiction
to prosecute the person is not considered to be a problem. On
the contrary, a Hong Kong permanent resident who is arrested in
Hong Kong for an extra-territorial offence of subversion or secession
would be subject to prosecution in Hong Kong under Hong Kong laws.
Mainland laws would not be applicable in Hong Kong. |
| Interpretation |
| 12. |
The extra-territorial clauses of the offences of subversion
and secession provide for the circumstances where the courts have
jurisdiction to try these offences committed outside of the geographical
boundaries of Hong Kong. These clauses will not extend the enforcement
powers of Hong Kong authorities to investigate an offence or apprehend
a suspect outside of the territory. Enforcement of the extra-territoriality
scope of the offence provisions will be a function of various
factors including relevant principles of international law, considerations
of jurisdictional issues as well as relevant agreements on mutual
legal assistance, rendition or extradition. |
| 13. |
A Hong Kong permanent resident who committed an extra-territorial
offence of subversion or secession and who returned to Hong Kong
could be arrested and prosecuted before Hong Kong courts in the
normal way. |
Department of Justice
May 2003
#66047 v3
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