TNAG-2332-FCO40-3393-Future-of-Hong-Kong-localisation-of-laws-admiralty-jurisdic-1991 — Page 11

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28 JAN 1991

TO PRIORITY HONG KONG TELNO 129

OF 111130Z JANUARY 91

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LOCALISATION OF LAWS: ADMIRALTY JURISDICTION: HONG KONG CRIMINAL LAW (AMENDMENT) ORDINANCE 1990

1.

OUR LEGAL ADVISERS HAVE NOW STUDIED THIS ORDINANCE WHICH LOCALISES CERTAIN UK LAWS RELATING TO ADMIRALTY JURISDICTION. THERE IS ONE PROVISION WHICH, SINCE THERE IS NO REAL HONG KONG CONNECTIONS IS QUESTIONABLE ON GROUNDS OF EXTRATERRITORIALITY NOTWITHSTANDING THE HONG KONG (LEGISLATIVE POWERS) ORDER 1986 AND WHICH, IN ANY CASE, IS UNDESIRABLE.

2. SECTION 23B(3)(A)(II), AS DRAFTED, HAS THE EFFECT, FOR EXAMPLE, THAT A PERSON ON A CROSS CHANNEL FERRY BETWEEN DOVER AND CALAIS WHO STEALS FROM A FOLLOW PASSENGER IS COMMITTING AN OFFENCE AGAINST THE LAW OF HONG KONG. SIMILARLY, A BRITISH TOURIST HOLIDAYING IN THE GREEK ISLANDS WHO BOARDS A FRENCH YACHT AND COMMITS GRIEVOUS BODILY HARM IS COMMITTING AN OFFENCE AGAINST THE LAW OF HONG KONG.

3. WE ACCEPT THAT THE PRESENT LAW OF HONG KONG, BY VIRTUE OF THE ADMIRALTY OFFENCES (COLONIAL) ACT 1849 AND THE MERCHANT SHIPPING ACT 1894, GIVES HONG KONG JURISDICTION IN SUCH CASES. THAT IS THE CONSEQUENCE OF HAVING A LAW OF IMPERIAL EXTENT (THE MERCHANT SHIPPING ACT) TOGETHER WITH AN IMPERIAL SYSTEM OF ADMIRALTY COURTS. BUT IT IS A VERY DIFFERENT THING FOR A COLONIAL LEGISLATURE TO TAKE JURISDICTION IN CASES WHICH MAY HAVE NO CONCEIVABLE CONNECTION WITH THE COLONY CONCERNED.

4.

THE PROBLEM ARISES FROM THE FACT THAT THE INTERPRETATION CLAUSE OF THIS SECTION DEFINES ''BRITISH NATIONAL' AS ANY PERSON WHO IS A BRITISH CITIZEN OR A BDTC BY REASON OF A

CONNECTION WITH ANY DEPENDENCY WHATSOEVER RATHER THAN LIMITING ITSELF TO BRITISH NATIONALS WITH A HONG KONG CONNECTION. WHERE THE RELEVANT ACTS ARE COMMITTED BY A BRITISH NATIONAL CONNECTED WITH HONG KONG, THERE COULD BE SOME JUSTIFICATION IN THE FAR REACHING JURISDICTION. BUT THERE IS NO JUSTIFICATION FOR THE ORDINANCE TO INCLUDE OTHER BRITISH NATIONALS.

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