Fugitive law change feasible

May 7, 2019

Secretary for Justice Teresa Cheng: 
There are some provisions in the Criminal Jurisdiction Ordinance that provide for certain crimes or certain crimes that have an extra-territorial effect. Now if one is to look at the Criminal Jurisdiction Ordinance, there are actually generally two areas by which an exception could be created. First, when it deals with implementing international multilateral conventions, then extra-territorial jurisdiction may be exercised. Secondly, it’s whether it’s a certain part of the act, either the whole or part of it happens in Hong Kong, in other words, the relevant act that the court has to look at, then the criminal courts in Hong Kong may have jurisdiction. So, in the context of looking at whether one should simply amend the legislation to include extra-territorial acts to become a criminal law in Hong Kong, one has to look at the retrospectivity point that I mentioned, in other words if you are creating an offence effectively stating that the court has jurisdiction to deal with a particular act which is actually committed outside of Hong Kong, in the criminal courts in Hong Kong, you will actually be creating a situation whereby the criminal law jurisdiction is now extended to an offence that did not exist at the time of the legislation. In other words, it cannot assist one of the factors that the Secretary for Security has said and that is to deal with the Taiwan murder case that happened last year, because the law cannot have retrospectivity. And one cannot have retrospectivity because it goes back to our Bill of Rights Article 12.

The Government’s proposed fugitive law change is the best option to deal with a Taiwan homicide case involving a Hong Kong suspect, Secretary for Justice Teresa Cheng said today.

Ms Cheng made the statement at a press conference on the Fugitive Offenders & Mutual Legal Assistance in Criminal Matters (Amendment) Bill 2019.

She said options proposed by the community to handle the Taiwan murder case, including amending the Criminal Jurisdiction Ordinance to allow local courts to try Hong Kong suspects for serious crimes committed abroad, were impractical.

Ms Cheng said some provisions in the ordinance that provide for certain crimes have an extra-territorial effect.

“First, when it deals with implementing international multilateral conventions, then extra-territorial jurisdiction may be exercised.

“Secondly, it’s whether it’s a certain part of the act, either the whole or part of it happens in Hong Kong, in other words, the relevant act that the court has to look at, then the criminal courts in Hong Kong may have jurisdiction.”

When considering whether one should amend the legislation to include extra-territorial acts to become a criminal law in Hong Kong, one has to consider retrospectivity, Ms Cheng added.

“If you are creating an offence effectively stating that the court has jurisdiction to deal with a particular act which is actually committed outside of Hong Kong, in the criminal courts in Hong Kong, you will actually be creating a situation whereby the criminal law jurisdiction is now extended to an offence that did not exist at the time of the legislation.”

The justice chief noted the legislation could not help deal with the Taiwan murder case because it had no retrospectivity, adding that criminal offences or penalties have no retrospective effect under Article 12 of the Hong Kong Bill of Rights Ordinance.