Hong Kong Constitutional Law

Under the principle of "One Country, Two Systems", the mainland of the PRC ("Mainland") uses a continental civil law system, while the Hong Kong Special Administrative Region is under the common law system. After the handover of Hong Kong's sovereignty to the PRC in 1997, economic and social interaction among people from the two places increased rapidly. As a result thereof, the number of cross-border crimes has also increased,1 which has given rise to some controversies in respect of the jurisdiction of Hong Kong and Mainland courts over cross-border crime.

Furthermore, in order to combat cross-border crime in an effective way, clear principles and details on practice as to under which conditions suspects should be transferred between Hong Kong and the Mainland is essential. In this paper, I will examine the division of criminal jurisdiction by first defining criminal jurisdiction and providing a background followed by a discussion over the jurisdictional controversies arising from two landmark cases in a constitutional perspective.

Then, I will examine the relevance of a rendition agreement in solving these controversies and the principles in deciding jurisdiction between Hong Kong and the Mainland over cross-border cases. Lastly, I will explore the difficulties in reaching a formal rendition agreement between Hong Kong and the PRC. Criminal Jurisdiction In general, criminal jurisdiction refers to the right of a sovereign state to prosecute, try and punish a crime that occurs within its sovereignty. 2 In defining the scope of criminal jurisdiction, there are four basic factors to take into consideration.

They are: (i) the place where the crime was committed; (ii) the nature of the person who commited the crime; (iii) the nature of the victim of the crime; and (iv) the nature of the crime. 3 These factors derive different principles of criminal jurisdiction4 namely, the territorial principle, the nationality principle, the passive personality principle, the protective principle and the universality principle. 5 All these principles except the territorial principle are principles for the application of extraterritorial jurisdiction. 6 Hong Kong applies mainly the territorial principle in exercising its criminal jurisdiction.

Hong Kong only has limited extra-territorial jurisdiction which is provided by law. 7 On the other hand, the Mainland uses the eclectic approach in which the territorial principle is the basic rule, with the personality and the protective principles as its supplements. 8 Background The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China ("BL") which prescribes the systems to be practiced in the Hong Kong,9 affirms at Article 18 and 19 Hong Kong's right to enjoy independent judicial power and final adjudication.

10 No national law shall be applied in Hong Kong unless they are written on Annex III of the BL. 11 Mainland courts cannot intervene in the judicial jurisdiction or the legal sovereignty of the courts in Hong Kong12 and the legal independence enjoyed by Hong Kong Courts is parallel to their counterparts in the Mainland. 13 That is to say, Hong Kong courts enjoy exclusive criminal jurisdiction within its borders and Hong Kong residents while inside Hong Kong, have no duty to abide by the PRC Criminal Law as it is not listed in the Annex III.

14 On the other hand, mainlanders in Hong Kong are subject to the jurisdiction of Hong Kong Courts. The Controversies arising from the Big Spender Case In 1998, Cheung Tse-Keung, a Hong Kong resident who committed kidnapping and armed robbery in Hong Kong was prosecuted, tried and sentenced under PRC criminal law. 15 This provoked a debate over the exercising of jurisdiction on cross-border cases between Hong Kong and the Mainland courts16 which came from the differences in interpreting Article 6 of the PRC Criminal Law.

17 Article 6 of the PRC Criminal Law is applicable when a person commits a crime within the territory of the PRC. 18 Some people opined that the Mainland courts have no jurisdiction on a crime committed within Hong Kong's judicial territory. 19 Scholar Benny Tai expressed that Article 18 of the BL had excluded the applicability of the PRC Criminal Law20 in Hong Kong and hence Article 6 of the PRC Criminal Law should have no effect on criminal acts committed within Hong Kong.

He further expressed the view that Article 19 of the BL provides that Hong Kong courts have jurisdiction over all cases in Hong Kong, as it not only defines the judicial jurisdiction of Hong Kong but also divides the judicial jurisdiction between Hong Kong and the Mainland. 21 Cheung's case infringes the jurisdiction of Hong Kong,22 and undermined certain provisions in the Basic Law and the concept of one country, two systems. 23 The chance of receiving fair trials by the offenders was in doubt.

24 The defence lawyer of Cheung even commented that "this in not only a death sentence for Cheung Tse-keung but also a death sentence for 'one country, two systems' ". 25 However, Paragraph 3 of Article 6 of the PRC Criminal Law provides that a crime is deemed to have occurred in the territory of the PRC if either the criminal act or its consequence happened in the PRC's territory. 26 The Secretary for Justice Elsie Leung pointed out that according to Article 22 of the PRC Criminal Law, the preparation for a crime in itself is a crime.

27 Although the kidnapping and robbery were allegedly committed in Hong Kong, preparatory work was carried out in the Mainland including planning and the purchase of weapons and equipment. 28 She stated that the Mainland courts did have jurisdiction over Cheung's case, the argument that the principle of "one country, two systems" was undermined is only a misconception. 29 Likewise, Professor Fu and Professor Cullen, while acknowledging the effect of Article 18 they noted that under the BL, there is no provision allowing Hong Kong to be sealed off from other places in this world under a form of legal protection to nullify foreign laws.

30 They stated that the BL does not provide power for Hong Kong to determine which laws in other jurisdictions to be excluded from applying on its residents. 31 In brief, the issue is whether Hong Kong enjoys exclusive jurisdiction. If it does not then a situation of concurrent jurisdiction must exist, in which case which jurisdiction should prevail over another? 32 How should we determine who has jurisdiction.