4.
It is true 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 a case. That is the consequence of having a law of imperial extent such as the Merchant Shipping Act together with an imperial system of Admiralty courts. But it is a very different thing for a colonial legislature to reach out, even under such a power as is conferred by the Hong Kong (Legislative Powers) Order 1986, to attract acts by persons, and in circumstances, which have no conceivable connection with the colony concerned. We should, therefore, take the point up with the HKG.
5. Part of the trouble is that the present Ordinance fixes on the concept of a British national which includes any person who, eg is a British citizen or a British dependent territories citizen by reason of a connection with any dependency whatsoever rather than on British nationals with a Hong Kong connection. When the relevant acts by a British national are in some way connected with Hong Kong, as is the case with the offence referred to in section 26B (3) (a) (i), there is some justification. But the fact that Hong Kong presently enjoys this jurisdiction by virtue of imperial enactments in no way justifies Hong Kong legislating as in subparagraph (ii) of that subsection in the present Ordinance.
If,
6. In fact, Hong Kong does not need to legislate for this purpose at present since the structure of section 5 of the Ordinance would enable the Hong Kong courts to continue to exercise jurisdiction under section 686 of the Merchant Shipping Act were this provision deleted from section 23B (3). however, Hong Kong wished to retain the substance of subparagraph (ii) in order to have jurisdiction after 1997 in relation to any SAR belonger, then it would be possible at present to substitute for the words "British national" the words. "British national who has the right of abode in Hong Kong" insofar as subsection 3(a) applies in relation to subparagraph (ii).
of
Paul Fifoot
Legal Advisers
8 January 1991
6PFACB
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