TNAG-2332-FCO40-3393-Future-of-Hong-Kong-localisation-of-laws-admiralty-jurisdic-1991 — Page 4

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HAC370/7

20 FEB 1991

©

Localisation of Laws: general ?

P.4.

From: Paul Fifoot

Legal Advisers

Date: 8 January 1991

CC Ms Barrett

Mr Saint

spanty,

HKD

Mr Barton, AMD

HONG KONG: LOCALISATION OF LAWS

1.

Thank you for sending me a copy of the Hong Kong Criminal Law (Amendment) Bill 1990. This Bill (now apparently an Ordinance) seeks to localise certain United Kingdom laws relating to Admiralty jurisdiction and relies, in part insofar as it purports to have extraterritorial operation, on the Hong Kong (Legislative Powers) Order 1986. On the whole it is unexceptionable. There is, however, one provision which, whether or not it is strictly within the powers of Hong Kong

(and I think it is more than arguable that it is not) is thoroughly objectionable.

2. Section 23B(3) (a) (ii) provides that an act of a British national "on board a ship which is neither a Hong Kong ship nor a ship to which the person belongs" will constitute an offence under Hong Kong law if:-

(a) apart from this provision the act does not constitute an offence [which must, I think, mean that it does not constitute an offence under Hong Kong law because it is not within their jurisdiction]; and

(b) the act would, if it took place in Hong Kong, constitute an

offence under the law of Hong Kong.

According to the Explanatory Memorandum this provision is intended to reflect part of section 686 of the Merchant Shipping Act 1894.

3. The effect of that provision in is that if I am on a cross-channel ferry between Dover and Calais and I steal some article from a fellow passenger I am committing an offence against the law of Hong Kong. Equally, if I am holidaying in the Greek Islands and go aboard a French friend's yacht and commit grievous bodily harm, I am committing an offence against the law of Hong Kong. Whatever we intended by giving Hong Kong power to make laws having extraterritorial operation, we did not intend that.

6PFACB