Page
3.
I should however like to make it clear that this advice is confined to this particular case. We should continue to ensure in other cases that the Hong Kong courts do not exercise extra territorial jurisdiction in cases where there are no real Hong Kong connections.
HKLAAS
Shelagh Brooks.
S Brooks
CONFIDENTIAL
(3
172513
MDLIAN 4736
CONFIDENTIAL
FM HONG KONG
TO PRIORITY F C O
TELNO 318
OF 301025Z JANUARY 91
кук Rak asup please.
INFO PRIORITY UKREP JLG HONG KONG, PEKING
TOP COPY Q DIST?
2
YOUR TELNO 129: LOCALISATION OF LAWS: ADMIRALTY JURISDICTION: HONG KONG CRIMINAL LAW (AMENDMENT) ORDINANCE 1990
WHEN DRAFTING THE CRIMINAL LAW (AMENDMENT) BILL, WE WERE AWARE THAT SECTION 23B 3(A)(II) WOULD RETAIN THE JURISDICTION OF HONG KONG COURTS OVER ACTS OF BRITISH NATIONALS (WHO MIGHT HAVE NO REAL CONNECTION WITH HONG KONG) WHICH TOOK PLACE ON BOARD SHIPS WHICH WERE NOT HONG KONG SHIPS AND TO WHICH THEY DID NOT BELONG. THIS POINT WAS IN FACT COVERED IN PARAGRAPHS 5 AND 6 OF THE DRAFT CONSULTATION PAPER CONTAINED IN OUR TELNO 3009 OF 12 SEPTEMBER 1989 TO YOU. IN RESPONSE TO YOUR COMMENTS ON THAT PAPER, WE FURTHER EXPLAINED IN OUR TELNO 3803 OF 16 NOVEMBER 1989 TO YOU THAT OUR INTENTION WAS TO CONTINUE TO APPLY THE LOCALISING LEGISLATION TO BRITISH CITIZENS, BRITISH DEPENDENT TERRITORIES CITIZENS, BRITISH OVERSEAS CITIZENS AND BRITISH NATIONALS COVERSEAS) INSOFAR AS BRITISH NATIONALITY WAS AT ISSUE. NEVERTHELESS, WE ALSO POINTED OUT TO YOU IN THE SAME TELNO 3808 THAT WE RECOGNISED THE NEED TO INTRODUCE AMENDMENTS AT THE ADAPTATION STAGE.
2.
THE APPARENTLY ANOMALOUS CONSEQUENCES REFERRED TO IN PARAGRAPH 2 OF TUR ARISE THEREFORE NOT FROM AN OVERSIGHT ON OUR PART WHEN DRAFTING THE LOCALISING BILL BUT FROM THE DIFFICULTY OF FINDING A SATISFACTORY TERM TO REPLACE THE TERM ''BRITISH NATIONALS''. THE PROBLEM WILL ONLY BE SOLVED WHEN WE FINALLY SETTLE ON SUCH A LEGAL DEFINITION FOR GENERAL LEGISLATIVE PURPOSES. TEMPORARILY, WE HAVE THEREFORE RETAINED THE WORDS ''BRITISH NATIONALS' IN OUR LOCALISING LEGISLATION. YOUR SUGGESTION IN PARAGRAPH 6 OF TUR THAT WE SHOULD SUBSTITUTE THE WORDS ''BRITISH NATIONAL' WITH ''BRITISH NATIONAL WHO HAS THE RIGHT OF ABODE IN HONG KONG'' HAS BEEN CONSIDERED IN THIS AND OTHER CONTEXTS BUT WE HAVE NOT UP TO NOW FELT SUFFICIENTLY CONFIDENT THAT IT IS THE RIGHT SOLUTION TO BE ADOPTED. FURTHER, ANY SUCH SOLUTION, IF ADOPTED, WOULD NEED TO BE EXPLAINED TO THE CHINESE. AS IT WOULD ONLY BE AN INTERIM MEASURE, WE ARE NOT CONVINCED THAT THIS WOULD BE ADVISABLE NOR DO WE FEEL IT WOULD BE
PAGE 1 CONFIDENTIAL
CONFIDENTIAL
172513
MDLIAN 4.
WORTHWHILE AS WE PREFER TO FOCUS ON FINDING A SOLUTION THAT WILL SURVIVE 1997.
3. IN THE MEANTIME, IT IS HIGHLY UNLIKELY THAT A BRITISH NATIONAL, HAVING NO REAL CONNECTION WITH HONG KONG, WOULD EVER BE PROSECUTED IN HONG KONG FOR AN OFFENCE UNDER HONG KONG LAW IN RESPECT OF BEHAVIOUR ON A CROSS-CHANNEL FERRY OR ON A GREEK ISLANDS PLEASURE CRUISE. HOWEVER IT IS NOT INCONCEIVABLE THAT IF A BRITISH NATIONAL WERE TO COME TO HONG KONG HAVING COMMITTED AN OFFENCE IN SUCH CIRCUMSTANCES IT MIGHT BE DESIRABLE FOR HONG KONG, AS A BRITISH DEPENDENT TERRITORY, TO HAVE SUCH JURISDICTION. IT IS TRUE THAT IF WE DELETED THE NEW SECTION 23B (3), WE COULD RELY ON SECTION 686 OF THE MERCHANT SHIPPING ACT 1984 BUT WE PREFER TO HAVE OUR OWN LAW IN PLACE WHICH CAN BE MORE READILY ADAPTED PRIOR TO 1997.
WILSON
YYYY
ΜΑΙΝ
22
LIMITED
HKD
AMD
ADDITIONAL
2
DISTRIBUTION
24
MR MCLAREN
MR BURNS
MR FIFOOT, LEGAL ADVISERS
MS BARRETT, LEGAL ADVISERS
NNNN
PAGE 2 CONFIDENTIAL
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