R. v. Hui Lan Chak
Read the full judgment text of CACC 287/1992 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.
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CACC000287/1992 IN THE COURT OF APPEAL 1992, No. 287 ______________
______________ 1992, No. 538 ______________
______________ Coram: Hon. Yang, C.J., Macdougall, V.-P., & Barnett, J. Dates of hearing: 10 and 11 August 1993 Date of judgment: 7 September 1993 ______________________________________ J U D G M E N T O F T H E C O U R T ______________________________________ Macdougall, V.-P., 1. On 2 July 1992 the 1st appellant, HUI Lan-chak, pleaded guilty in the District Court to being a member of the crew of a ship which on 28 April 1992 had entered Hong Kong with unauthorised entrants on board, contrary to section 37C(1) (a) of the Immigration Ordinance, Cap. 115, and was sentenced to 4 years' imprisonment. 2. The 2nd appellant, Leung Kwok-sing, pleaded guilty in the District Court on 11 November 1992 to having committed an offence against section 37C(1) (a) on 16 September 1992. He was sentenced to 4 years' imprisonment on 9 December of that year. 3. Both appellants now appeal against their convictions on the ground that in each case the proceedings before the court were a nullity for want of the Governor's consent to the prosecution. It is not disputed that the Governor's consent was not obtained and that an offence against section 37C is an indictable offence. 4. Part VIIA of the Immigration Ordinance, of which section 37C forms part, came into operation in 1979. The relevant part of section 37C(1)(a) provides:
5. Section 37L which also forms part of Part VIIA provides:
6. The foundation of the submission made by Mr. Fung on behalf of the appellants, is the Territorial Waters Jurisdiction Act of 1878, the relevant provisions of which are as follows:
7. This Act was passed to remedy the jurisdictional deficiency that the decision of the majority of the court in R. v. Keyn (1876)2 Ex.D.63 had revealed, namely that the courts in England had no jurisdiction to try a foreigner charged with committing an offence while passing the English coast in a foreign ship, notwithstanding that the offence occurred within three miles of the coast. 8. It was contended for the appellants that at the time of the passage into law of Part VIIA of the Immigration Ordinance and on the dates both on which the alleged offences were committed and the convictions recorded and sentences passed, section 23C of the Crimes Ordinance, to which the relevant provisions of the 1878 Act concerning the Governor's consent had been transposed, applied to Hong Kong, and that therefore the consent of the Governor was necessary before the proceedings in the present cases were instituted. 9. The 1878 Act remained in full force in Hong Kong until the enactment of the Criminal Law (Amendment) Ordinance 1990 which became law on 1 January 1991. This Ordinance was passed as a consequence of the Hong Kong Act 1985, which was enacted "to make provision for and in connection with the ending of British sovereignty and jurisdiction over Hong Kong", and the making of the Hong Kong (Legislative Powers) Order 1986. 10. Paragraph 3 of the schedule to the Hong Kong Act provides:
11. The Hong Kong (Legislative Powers) Order reads as follows:
12. The Criminal Law (Amendment) Ordinance 1990 amended the Crimes Ordinance Cap. 200 by adding sections 23A, 23B and 23C. It also provided by section 5 that the 1878 Act had no application to, inter alia, any offence described in section 23B. 13. The long title of the Criminal Law (Amendment) Ordinance reads:
14. Sections 23B, 23C and 5 to which we have just referred are as follows:
Subsections (5) and (7) have no relevance to the arguments advanced on these applications.
15. It is accepted that section 23A, which is an interpretation section, does not bear on these applications. It is therefore not necessary to state its terms. 16. The explanatory memorandum to the Criminal Law (Amendment) Bill 1990 stated:
17. Since section 37C of the Immigration Ordinance uses the words "if a ship enters Hong Kong", it is necessary to turn to section 3 of the Interpretation and General Clauses Ordinance Cap. 1 for the definition of Hong Kong. It is defined thus:
18. Mr. Fung submitted that although Hong Kong has at all times had jurisdiction over its territorial waters, its legislative powers in respect of these waters were limited by an imperial statute, the 1878 Act, until the Criminal Law (Amendment) Ordinance 1990 came into operation on 1 January 1991. Territorial waters, however, do not include enclosed waters, otherwise known as waters inter fauces terrae, such as Deep Bay and Mirs Bay. The 1878 Act has no application to them. This, he submitted, is clear from the following passage of the judgment of Cockburn CJ in R v. Keyn:
19. The legislature of Hong Kong has therefore at all times been empowered to legislate unhindered by any imperial enactment, as to its enclosed waters. Had section 37C of the Immigration Ordinance provided that it was an offence to be a member of the crew of a ship which enters the enclosed waters of Hong Kong, the 1878 Act would have had no application and the leave of the Governor and his certificate that it is expedient that proceedings for the trial and punishment of the alleged offender would therefore have not been required. 20. Mr. Fung cited The State of New South Wales and ors v. The Commonwealth of Australia (1975) 135 CLR 337 in which the majority of the High Court of Australia expressed the view that the boundaries of the former Australian colonial States ended at the low water mark and that, since sovereign rights in the territorial sea had been vested in the Imperial Crown, the Crown in right of a colonial state had not enjoyed those rights. 21. Barwick CJ said at p.368:
22. At page 491 Jacobs J said this:
23. It is clear that in enacting the Act of 1878, parliament, while intending to fill the jurisdictional vacuum whose existence the decision in R. v. Keyn had revealed, also recognised the policy implications of enforcing municipal law in waters in which a neighbouring State might claim an interest or as to which other considerations of public international law might arise. It therefore took the precaution of ensuring that the risk of conflict with other States would be minimised by providing, first, that only indictable offences could be tried by the municipal courts and, second, that in the case of a proposed trial in the United Kingdom, the trial could not proceed without the consent of one of Her Majesty's Principal Secretaries of State, or in the case of a proposed trial in a colony, without the leave of the Governor of the part of the dominions in which the proceedings were proposed to be instituted, and his certificate that it was expedient that such proceedings should be instituted. 24. It was contended by Mr. Cross for the Crown that by enacting section 37L of the Immigration Ordinance, which provides that no prosecution shall be brought under Part VIIA of that Ordinance without the consent of the Attorney General, the legislature intended that no other consent would be necessary before proceedings were commenced in cases such as those now before us. Furthermore, applying the maxim qeneralia specialibus non derogant, the requirement in section 23C of the Crimes Ordinance, that proceedings for an indictable offence alleged to have been committed on board or by means of a non British ship by a non British national, would not operate so as to override the specific provisions of section 37L. 25. We do not think that there is any force in these contentions. There is no reason now, nor was there any reason before the enactment of section 23C, that two consents should not have been required. The considerations with which the Governor is concerned are of a diplomatic nature and are different from those which influence the Attorney General in deciding whether to commence proceedings in any particular case. 26. We accept the submission that, by enacting section 23C, the legislature did not intend that it should derogate from the provisions of section 37L. It clearly intended that the consent of the Attorney General should continue to be a prerequisite to the bringing of proceedings under Part VIIA. But that is not a valid basis for contending that it was intended by sec. 37L that the consent of the Attorney General alone was required, regardless of the provisions of the 1878 Act, that were then fully applicable to Hong Kong, or of any subsequent local enactment that might require an additional consent. 27. Sections 2 and 3 of the Colonial Laws Validity Act 1865 provide as follows:
28. In The Queen v. Marais [1902] AC 51 the Lord Chancellor said at p.54:
29. It is beyond doubt that when the legislature enacted Part VIIA of the Immigration Ordinance it had no power to enact any provision that was repugnant to the 1878 Act or, indeed, any applicable Order in Council. 30. We were referred to Article VII of the Letters Patent:
31. We accept Mr. Cross's submission that in the light of the definition of "Colony" and "Hong Kong" in section 3 of the Interpretation and General Clauses Ordinance it was never necessary, when considering legislation such as the Immigration Ordinance which refers to 'Hong Kong' and 'Colony', to look to or rely on the 1878 Act for jurisdiction or to rely on the jurisdiction of the admiral thereunder, and that the only constraint on the legislative power of Hong Kong is the Colonial Laws Validity Act. 32. It was further contended on behalf of the Crown that a colonial legislature may validly enact legislation having extra territorial effect. In this connection we were referred to Pianka v. R. [1979] AC 197. Since, however, that case concerned the exercise of sovereign powers by the independent state, Jamaica, we do not think that it is of any assistance in resolving the matters raised on this appeal. 33. The question is not whether the legislature of Hong Kong was empowered to legislate as to matters within its territorial waters. Nor, indeed, is it whether, in enacting Part VIIA of the Immigration Ordinance, the legislature invalidly exercised its powers by seeking to pass legislation that was repugnant to an Imperial Act. We have not the slightest doubt that the enactment of Part VIIA of the Immigration Ordinance was a perfectly valid exercise by the legislature of its legislative powers. There is nothing in Part VIIA which is repugnant to the 1878 Act. 34. Mr. Cross submitted that, by virtue of Article VII of the Letters Patent, the legislature of Hong Kong had conferred on it unrestricted power to legislate with respect to any matter within the boundaries of its own territory - boundaries which it has itself defined. 35. He cited the following passage from the judgment of the Privy Council delivered by Lord Macmillan in Croft v. Dunphy [1933] AC 156 at p.163:
36. However, the issue in Croft v. Dunphy was not whether Canada had enacted legislation which was repugnant to an Imperial Act, but whether, having full power to enact customs laws, the Canadian legislature had exceeded its legislative competence by introducing into such legislation provisions designed to operate beyond three marine miles of the coast of Canada. The passage to which Mr. Cross referred must be read in that context. In our opinion there is nothing in Croft v. Dunphy that lends support to the proposition that the conferral on a colonial legislature of a general power to legislate for its peace, order and good government empowers it to override any Imperial legislation that has application to it. 37. Mr. Cross submitted that, in any event, section 3 of the 1878 Act had never had any application to proceedings for an offence against section 37C(1)(a) of the Immigration Ordinance. He referred to the following opening words of section 3 read in conjunction with the definition of "offence" in section 7 of the Act:
38. Section 7 defines "offence" as follows:
39. This submission rested on two bases. First, the offence created by section 37C(1)(a) has no equivalent in England, but is peculiar to Hong Kong and, secondly, an offence which is committed by entering the territorial waters of Hong Kong is, by its very nature, not one, such as murder, wounding or robbery, that is capable of being committed within the body of a county in England. 40. If the interpretation for which the Crown contends be correct, the conclusion seems inescapable that Parliament must have intended that the leave of the Governor was a prerequisite to the commencement of proceedings for the trial of such offences as are declared to be indictable in England, but that his leave was not necessary where proceedings were to be instituted for the trial of any offence created by colonial legislation which had no counterpart in the law of England. 41. We do not think that that can possibly have been Parliament's intention. Such an interpretation would defeat the very object, which section 3 of the 1878 Act sought to attain, of permitting proceedings against a foreign national for an offence committed within territorial waters of a colony to commence only after the policy implications of those proposed proceedings had been considered by the Governor. Furthermore, it is plain from Schedule 2 of the Interpretation and General Clauses Ordinance, which specifies the boundaries of Hong Kong, that an offence created by section 37C(1)(a) is capable of being committed by a member of a crew whose ship enters enclosed waters from China or Chinese waters without passing through territorial waters as defined in that Ordinance. That an offence is also capable of being committed against sec. 37C(1)(a) by first entering territorial waters before entering enclosed waters does not render an offence under that section incapable of being committed within the body of Hong Kong. 42. In our view the definition of "offence" in the 1878 Act must be construed to give effect to Parliament's intention. Section 75 of the Interpretation and General Clauses Ordinance provides:
43. "Offence" must therefore be read as meaning any act, neglect or default which constitutes an indictable offence that is justiciable by the courts of England or Hong Kong. 44. Moreover, by enacting section 5 of the Criminal Law (Amendment) Ordinance 1990, the legislature plainly thought that the 1878 Act applied to Hong Kong. It is equally clear that, by amending the Crimes Ordinance at the same time by adding section 23C to require the consent in writing of the Governor to any proceedings for an indictable offence alleged to have been committed within the waters of Hong Kong on board or by means of a ship which is not a British ship by a person who is not a British national, the legislature intended to transpose, and effectively did transpose, the relevant provisions of section 3 of the 1878 Act to a Hong Kong Ordinance. 45. Mr. Cross's fall back position was that the Governor, by assenting on 2 August 1979 to the Immigration Ordinance (Amendment) (No. 3) Ordinance in which it was provided that the consent of the Attorney General was required for a prosecution under Part VIIA of the principal Ordinance, thereby assented to the delegation of his powers under section 3 of the 1878 Act to the Attorney General. 46. We have no hesitation in rejecting that submission. By assenting to the amending Ordinance the Governor was doing no more than giving his assent to its becoming law. It is impossible to say that the act of assent extended to one of delegation of his powers under different legislation. 47. For the reasons we have given we have come to the conclusion that the consent in writing of the Governor was a necessary prerequisite for the trial of each appellant. Since this consent was not obtained both convictions must be quashed. 48. We therefore allow the appeals, quash the convictions and set aside the sentences.
Representation: Mr. Daniel Fung, Q.C. & Mr. Philip Dykes assigned by DLA for both appellants Mr. I.G. Cross, Q.C. & Miss M.A. Crabtree for the respondent |