XN000022-1996-11-20 — Page 16

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Using a common example, a British soldier driving a military vehicle on duty and committing the offence of drink driving will be subject to the jurisdiction of the local courts, because it is inconceivable that he is acting under the instructions of his commanding officer to be drunk. Therefore, the offence does not "arise out of and in the course of his duty", and the case will be tried in Hong Kong courts.

These principles have been firmly in place in our legal system for more than 30 years and regarded as fair, sensible and workable. Their continued application after 1997 are consistent with Articles 14 and 18 of the Basic Law. We believe that under the draft Garrison Law and in so far as criminal cases are concerned, things done by military personnel" in the course of their duties" should be dealt with by courts- martial. It would help reassure the community if the Chinese Government can clarify this key phrase and to define it, in law and in practice, as narrowly as possible in the same way as at present.

As regards civil cases, members of the British Forces are subject to the jurisdiction of Hong Kong courts when acting in their private capacities. They are also liable for any acts or omissions in the course of their duties and can be sued locally. The British Garrison is vicariously liable for torts committed by military personnel in the course of their employment. Although the British Government is immune from suit in Hong Kong courts under the Crown Proceedings Ordinance (Cap. 300), in practice, civil claims against the military are normally dealt with by administrative settlement through the claims branch of the British Forces. If this fails, the claimant may pursue his case in the UK civilian courts, in accordance with the UK Crown Proceedings Act 1947.

Using another example, if a British soldier driving a military lorry on duty crashed into a civilian vehicle because of his negligence, the Garrison will attempt to settle the case out of court. Failing that, the civilian may sue the soldier in Hong Kong courts. The military will back him up in the case, because the tort is committed in the course of the soldier's duties. If the civilian wants to sue the soldier's employer, i.e. the British Government, he will have to bring a civil action in the civilian courts in the UK.

The present arrangement under Cap. 300 can work because the common law system, in particular the law of tort and the law of contract, and the judicial system are substantially the same in Hong Kong and the UK. After 1997, where a member of the PLA commits a tortious act which arises out of and in the course of duty, it is important that he and the Garrison collectively should both be liable and be subject to the jurisdiction of Hong Kong courts. We believe that this approach is consistent with Articles 8, 14, 18 and 19 of the Basic Law. If the case is to be heard in the Supreme People's Court of the People's Republic of China, which operates under an entirely different legal and judicial system, it cannot be adjudicated in accordance with common law principles as at present.