In the "One Spot Two Examinations" system, unlike the "Two Spots Two Examinations" system in which the immigration and custom facilities of each jurisdiction are located inside its border1, all these facilities of two different jurisdictions are located inside the border of one jurisdiction. This system can be used in the situation where is hard to locate these facilities beside the border, such as airports, railway stations and sea bay. By using this system, the passengers will be more convenience and save a lot of time.
A lot of countries have adopted a similar system, such as some European countries, Canada and United States of America. For example, the "preclearance system"2 between Canada and United State is very similar to the "one spot two examinations" system between Hong Kong and Mainland China. The preclearance system is used in some international airports of Canada, such as Toronto Pearson International Airport. Travellers who fly from Canada to United States from these airports will enter into a "preclearance area" inside of the airport before boarding.
In this area, travellers will pass though the Immigration, Customs, Public Health, and Department of Agriculture inspections which is operated by the United States Customs and Border Protection services. The preclearance system is regulated by the Preclearance Act of Canada 1999. 3 According to the Preclearance Act, a preclearance officer has limited power imposed by the act and the regulations within a preclearance area4, and the right to examine outside the area. If a traveller refuses to be examined or go into the preclearance area under the officer's request, the preclearance officer can only ask Canadian officers for assistance.
5 In this system, United States has no jurisdiction in the preclearance area, and this is the major difference between the preclearance system and the one spot two examination system. Until now, the one spot two examinations system is only used by Shenzhen Bay Port. This port was first used on 1 July 2007, connecting Hong Kong with Mainland by the Shenzhen Bay Bridge. This port had been discussed for a long time before it was used, however, since a lot of issues of the one spot two examination system, most of them were about the jurisdiction of the port area, cannot be solved, its construction had been delayed.
Fortunately, these issues were solved by the decision of Standing Committee of National People's Congress which was adopted at the twenty fourth meeting of NPCSC on 31 October 2006. In its decision, NPCSC authorized Hong Kong Special Administrative Region to exercise its jurisdiction in the Shenzhen Bay Port Hong Kong Port Are. 6 After NPCSC's decision, the State Council decided the area of SBPHKPA which HKSAR was authorized to exercise its jurisdiction and its land use period.
7 Besides, the Shenzhen Bay Port Hong Kong Port Area Ordinance was passed by the Hong Kong Legislative Council on 25th April 2007 in order to exercise Hong Kong's jurisdiction in the SBPHKPA. Finally, after all these debates and proceedings, the Shenzhen Bay Port was opened on time. The One Spot Two Examinations arrangement has a lot of advantages, however, though most of the legal issues of this system are solved by NPCSC's decision, some of them are still remain arguable and it is necessary to solve them in further for the further application of this system.
In the following parts, both the advantages and issues will be discussed. Advantages The "One Spot two Examinations" system is a new development of the "one country two systems" policy. Unlike the preclearance system between Canada and United States, HKSAR has total jurisdiction in the SBPHKPA under the "One Spot Two Examinations" system, and it is the most different part between the One Spot two Examinations system and other similar systems, such as the preclearance system. Besides, this is also the most advantageous part of the system for the following reasons:
Firstly, it solves the problem of how the SBPHKPA should be governed. As it is known to all, the legal systems of Mainland and HKSAR are totally different. For example, Mainland is civil law jurisdiction while HKSAR is a common law jurisdiction. Because there are too many differences between these two jurisdictions, it is impossible to apply the preclearance system used in Canada and Unite States to Hong Kong. Therefore, NPCSC chooses the solution that authorizing HKSAR to exercise its jurisdiction in the SBPHKPA.
Since HKSAR enjoys total jurisdiction in SBPHKPA, the SBPHKPA can be governed by Hong Kong Government under laws of Hong Kong, which has been well developed for decades, and the Mainland Government can also learned a lot from the experience of the Hong Kong Government. Secondly, the administration of SBPHKPA is more flexible than other similar systems. For example, in the preclearance system, the preclearance area is governed by the Preclearance Act, which is an act of Canada, and Unite States has no right to amend it.
If Unite States wants to change its policy in the area, the only thing it can do is have a discussion with Canada, and try to persuade Canada to change its act. However, because of the authorization of NPCSC, if Hong Kong Government wants to change its policy in SBPHKPA, it can pass a bill in the Hong Kong Legislative Council to change it, which is much easier than the preclearance system, and the Hong Kong Government has more flexibility on its policy of the SBPHKPA in order to adapt the fast changing circumstances of modern society. Issues of the Shenzhen Bay Port Hong Kong Port Area Ordinance
The first issue is whether Hong Kong Legislative Council has a right to pass a bill which regulates some territories outside of Hong Kong. The basis of HKSAR's legislative power is Basic Law Article 2 and 17, which state that: "The National People's Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law. " and "The Hong Kong Special Administrative Region shall be vested with legislative power…
" However, these two articles have not allowed or forbidden HKSAR to exercise its legislative power to the territories outside of Hong Kong, and no any other articles of Basic Law have mentioned this issue either. This question was raised in the Legislative Council when the bill was discussing, and all of the Legal Service Division of Legislative Council, Barrister Association of Hong Kong and the Hong Kong Government agreed that the Legislative Council should have this power though the some of their reasons were different.
In the Barrister Association's opinion, the Legislative Council won't have power of enacting a law with extra-territorial effect unless it is authorized by NPCSC under Basic Law Article 20, which says "The Hong Kong Special Administrative Region may enjoy other powers granted to it by the National People's Congress, the Standing Committee of the National People's Congress or the Central People's Government. " In this case, the Legislative Council was authorized to do so by the NPCSC's decision adopted on 30th Oct 2006.
Although in its decision NPCSC did not state the words authorizing the Legislative Council to enact a law on Shenzhen Bay Port, it was reasonable and necessary to imply these words from the NPCSC's decision, otherwise HKSAR cannot actually exercise its jurisdiction in SBPHKPA, and the decision became meaningless. This opinion is also accepted by the Hong Kong Government. 8 On the other hand, the Legal Service Division got the same conclusion from a different point of view.
The Division referred to the case R v Lau Tung Sing9, in which the Court of Appeal of Hong Kong said it was satisfied with the opinion written in Halsbury's Laws of England 4th ed. Vo1. 6 at para. 107510, and it were held that if a law was made with regard to matters that are properly its business, the law was intra vires. Though in the Lau Tung Sing case, the constitutional document was Letter Patent, this case can still be applied nowadays because it did not contravene the Basic Law.
Apparently, it is necessary for the Legislative Council to make such a law in this situation, therefore, base on this judgment, this law is not ultra vires and the Legislative Council has the right to pass it. 11 However, both of the reasons above have its weak point. First, the Barrister Association and Government's reasoning cannot be developed if the NPCSC's decision is not applied in HKSAR. This decision is regarded as a national law by Hong Kong Government but the Government insists it need not to be added into Basic Law Annex III.
According to Basic Law Article 18, the only way to apply a national in HKSAR is listed it in Annex III. Thought Hong Kong Government gave lots of reasons to explain why this decision need not to be added into Annex III in the Legislative Council, which will be discussed in the next part, all these reasons given by the Government are not supported by any authorities made by Hong Kong courts or NPCSC's interpretations of Basic Law. If the courts of Hong Kong refuse to accept these reasons in a judicial review, it is very likely the courts will also decide the Legislative Council has no right to pass the Shenzhen Bay Port Ordinance.
Second, the case Legal Service Division referred to is about Letter Patent and decided by Court of Appeal. Letter Patent is no longer in effect nowadays, and, except both the Letter Patent and Basic Law are constitutional documents of Hong Kong, these two documents are totally different. Besides, since the case was only decided by Court of Appeal, the Court of Final Appeal is not bound by this decision. Thus, CFA may also refuse to follow this case in a judicial review.