|
This paper discusses -
| (1) |
the provision in the Hong Kong
Act dealing with extraterritorial laws; |
| (2) |
the extent to which the proposed
offence of sedition would have extraterritorial
effect; and |
| (3) |
why it is possible for the proposed
offences of subversion and secession
to extend to extraterritorial acts
of Hong Kong permanent residents. |
|
Hong Kong Act
|
| 2. |
The Hong Kong Act was enacted in 1985
to provide that, as from 1 July 1997, the
UK should no longer have sovereignty or
jurisdiction over any part of Hong Kong.
|
| 3. |
The Schedule to the Act (amongst other
things) empowered Her Majesty, by Order
in Council, to make such provision as appeared
necessary or expedient in consequence of
or in connection with the main purpose
of the Act to enable the legislature of
Hong Kong to make laws having extraterritorial
operation. Two orders in Council were made
under that power. |
| 4. |
The effect of the above provisions is
discussed in "Constitutional and
Administrative Law" by Professor
Peter Wesley-Smith (see annex 1). It is
clear from that discussion that the Hong
Kong legislature's power to enact
laws with extraterritorial operation was
not limited to the areas covered by the
two Orders in Council.
|
| 5. |
It is not therefore considered that the
Act throws any light on the extent to which
the SAR's legislature may enact laws
having extraterritorial effect. |
| Extraterritorial effect of
sedition |
| 6. |
The proposed offence of sedition would
be committed if a person -
| (a) |
incites others to commit an offence
of treason, subversion or secession;
or |
| (b) |
incites others to engage, in Hong
Kong or elsewhere, in violent public
disorder that would seriously endanger
the stability of the People's Republic
of China. |
|
| 7. |
So far as paragraph 6(a) is concerned ?/p>
| (a) |
treason could be committed
outside Hong Kong only by a Chinese
national who is a Hong Kong permanent
resident; |
| (b) |
subversion and secession
could be committed outside Hong Kong
only by any Hong Kong permanent resident. |
As a result, it would be an offence of sedition for any person
in Hong Kong to incite extraterritorial offences of treason, subversion
or secession by such a person. However, it would not be an offence
to incite other persons to commit acts of treason, subversion
or secession elsewhere. |
| 8. |
So far as paragraph 6(b) is concerned, the incitement must take
place in Hong Kong, even though the violent public disorder incited
is to take place elsewhere. |
| Extraterritorial effect of subversion and secession |
| 9. |
The Administration has been asked to explain why it thinks the
proposed application of subversion and secession to acts outside
Hong Kong of Hong Kong permanent residents would satisfy the nexus
test. |
| 10. |
The two leading Hong Kong cases on this subject are R
v Lau Tung-sing [1989] 1 HKLR 490 and Somchai
Liangsiriprasert v Government of USA [1990] 1 HKLR 85. The appellant
in R v Lau Tung-sing had
been convicted of arranging passage to
Hong Kong of an unauthorized entrant, the offence having taken
place in China. Section 37J
of the Immigration Ordinance provided that "where any person
is in Hong Kong, he may be charged and convicted in respect to
anything which was done or which occurred wholly or partly outside
Hong Kong that would have been an offence under this Part if it
had been done or had occurred within Hong Kong". Power
JA held :
The issue is not whether the law has some extraterritorial
application but whether it was enacted for the peace, order
and good government of the colony. What the court must ask
is whether, given the delegated legislative power of the colonial
legislature, it is making a law with regard to matters that
are properly its business. If it is, then the law is intra
vires.
We have no doubt that legislation which imposes liability
upon a person who, having arranged the passage of unauthorized
entrants into Hong Kong, then comes to Hong Kong is sufficiently
connected with the peace, order and good government of
Hong Kong to make it intra vires the legislative power.
Similarly, in Somchai Liangsiriprasert v Government
of USA it was held that conduct in relation to dangerous drugs aimed
or directed at Hong Kong "is properly 'the business' of
the legislature", whether it occurs "just within
Hong Kong; just across the border; or at [some] greater distance
away ..... " |
| 11. |
In both cases, extraterritorial provisions were upheld on the
basis of the impact that the prohibited act could have on Hong
Kong, irrespective of the nationality or other status of the defendant. |
| 12. |
A summary of cases decided in respect of non-sovereign legislatures
in other common law jurisdictions is at
annex 2. These cases indicate that there may be sufficient nexus
for extraterritorial legislation
if -
| (a) |
the relevant person is domiciled
or resident in the particular jurisdiction;
or |
| (b) |
there is a need to protect
the defence or public security of the
jurisdiction. |
|
| 13. |
In paragraph 8 of Paper No. 36, the Administration set out four
factors that it considers are sufficient to create a nexus for
the proposed extraterritorial offences of subversion and secession.
In the light of the authorities referred to above, the Administration
repeats its view that the Legislative Council has the authority
to enact those offences. |
| 14. |
The Administration does not accept that the Legislative Council
can only prohibit acts done outside Hong Kong if they relate to
harmful activities planned to take place in Hong Kong. Since Hong
Kong is part of the PRC, activities that would seriously endanger
the stability or territorial integrity of the PRC would also harm
Hong Kong, even if the harmful activities do not take place here. |
| 15. |
This view is supported by a case decided in Singapore - Re
Choo Jee Jeng (1959) 25 MLR 77. In that case, a Singaporean law
created certain powers with a view to preventing a person from
acting in any manner prejudicial to the security or public order
of Malaya. Malaya was then defined as the Colony of Singapore
and the Federation of Malaya. This law was challenged as being
outside the powers of Singapore's non-sovereign legislature.
The challenge was rejected and the extraterritorial effect of
the law upheld as being for the peace, order and good government
of Singapore. |
