Read the full judgment text of CACC 000287/1992 on BabelCite. This Court of Appeal judgment was delivered on 7 September 1993 before Yang CJ, Macdougall VP, Barnett J.
Criminal law – jurisdiction – immigration – ship entering Hong Kong with unauthorised entrants – s.37C(1)(a) of the Immigration Ordinance, Cap. 115 – whether Governor's consent required before prosecution – Territorial Waters Jurisdiction Act 1878 – whether s.37L of the Immigration Ordinance (Attorney General's consent) displaces Governor's consent – meaning of 'offence' in the 1878 Act – Criminal Law (Amendment) Ordinance 1990 adding s.23C to the Crimes Ordinance – Colonial Laws Validity Act 1865 – Article VII of the Letters Patent – whether proceedings a nullity for want of consent. Two crew members pleaded guilty in the District Court to offences of being members of the crew of ships which entered Hong Kong with unauthorised entrants on board, contrary to s.37C(1)(a) of the Immigration Ordinance, and were each sentenced to 4 years' imprisonment. It was not disputed that the Governor's consent to the prosecution had not been obtained. On appeal, held, allowing both appeals: the Territorial Waters Jurisdiction Act 1878 was in full force in Hong Kong until 1 January 1991, and its section 3 required the leave of the Governor before proceedings could be instituted against a non-subject for an offence within the jurisdiction of the Admiral committed in the territorial waters of a colony. The definition of 'Hong Kong' in s.3 of the Interpretation and General Clauses Ordinance, Cap. 1, includes territorial waters, so that the offence under s.37C(1)(a) could be committed within territorial waters. The definition of 'offence' in s.7 of the 1878 Act must, by virtue of s.75 of Cap. 1, be construed to include any act or default constituting an indictable offence justiciable by the courts of England or Hong Kong, and was not limited to offences having an English counterpart. Section 37L of the Immigration Ordinance, requiring the Attorney General's consent, did not displace the Governor's consent requirement, as the two consents served different policy purposes (diplomatic versus prosecutorial), and the maxim generalia specialibus non derogant did not assist the Crown. The enactment of s.23C of the Crimes Ordinance in 1990 effectively transposed the Governor's consent requirement from s.3 of the 1878 Act into local law, confirming the legislature's view that the 1878 Act had applied to Hong Kong. Accordingly, the absence of the Governor's consent in writing rendered the proceedings a nullity. Convictions quashed and sentences set aside.
Legal issues: Whether Governor's consent was required for prosecution under s.37C of the Immigration Ordinance · Whether section 37L of the Immigration Ordinance displaces the Governor's consent requirement · Whether the 1878 Act's definition of 'offence' covers colonial offences without an English equivalent
Outcome: Both appeals allowed; convictions quashed and sentences set aside for want of the Governor's consent to the prosecution.