TNAG-2549-FCO40-3724-Hong-Kong-Cathay-Pacific-Airways-1992 — Page 2

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FROM: A J Young

Assistant Legal Adviser

DATE: 17 December 1992

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AMD 12

JURISDICTION OVER CRIMINAL OFFENCES COMMITTED ON BOARD AIRCRAFT

1.

This minute responds to your manuscript note on a letter of 20

December addressed to Mr Woodrow in HKD. You have asked for my general views on jurisdiction over criminal offences committed on board aircraft.

AST PAPER

2.

From the tenor of the letter it is implied by Cathay Pacific that the matter is unregulated. This is not the case as indicated in

Sean Gates' letter of 26 November to Cathay. The matter was codified in the Tokyo Convention on Offences and certain other Acts committed on board Aircraft of 14 September 1963. This became law in the UK by virtue of the Tokyo Convention Act 1967. Most of that Act has been repealed and the latest version of its contents appears as Section 92 of the Civil Aviation Act 1982 a copy of which I attach at Flag L.

on

3. In essence Section 92 provides that offences which occur board British-controlled aircraft while in flight count as offences in UK law. Jurisdiction over the offence is conferred the UK courts as if the offence had occurred on the ground in the part of the UK where the defendant happens to be. The key element

for present purposes

is

phrase "British-controlled aircraft" means an aircraft which is registered in the UK.

4.

that

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The position is similar in the Dependent Territories with the substitution of the Territory for the UK. The matter is governed by the Tokyo Convention Act 1967 (Overseas Territories) Order 1968 a copy of which I attach as Flag M. The Order applies to Hong Kong.

5.

in

The only potentially material difference in the regime is that in the 1967 Order the definition of "British-controlled Aircraft" means one which is "for the time being registered the United Kingdom or in any Territory". Any apparent overlap works in favour of giving jurisdiction over offences to the Territory not the UK. This must be to deal with the situation of those Territories which do not have their own aircraft registers but use UK registered aircraft for local operations.

6.

an

Therefore, in the case of an offence occurring on board aircraft registered in Hong Kong only the Hong Kong government has jurisdiction. Cathay Pacific should pursue their in Hong Kong with respect to the institution by the authorities of extradition proceedings in the UK as Mr advised.

complaint Hong Kong Gates

TAJ. You

283/

A J Young K276 270-3283

CODE 18-77