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國之四維 刑法所繫|戴啟思

建立時間 (HKT): 0424 11:00

‘….but that was in another country,

And besides, the wench is dead.’

‘The Jew of Malta’ by Christopher Marlowe, Act IV, Scene 1

The current debate about changing the law about fugitive offenders so as to permit arrangements being made for their surrender to Macao, Taiwan and the Mainland has, as you know, its origins in a case of alleged murder case concerning two Hong Kong residents.

They had visited Taiwan and one is alleged to have murdered the other and then returned to Hong Kong. Although the Taiwanese police want to investigate the homicide further and secure the presence of the suspect in Taiwan, they cannot do this because of the limitations on surrender in the existing law.

I do not want to discuss the Taiwan case or the merits of changing the law concerning fugitive offenders. That is a matter for the Legislative Council now. I do, however, want to discuss the issue of jurisdictional limits and how and why they arise.

Many people cannot understand why the law seems to set hurdles in the way of doing justice in what may seem to be an obvious case. However, limitations on the territorial extent of criminal jurisdiction are absolutely required if countries are to maintain friendly relations with one another because, with a very few exceptions, there is no such thing as a universal criminal jurisdiction enabling countries to try people for offences, irrespective of where an offence took place and the nationality of the offender.

One real case illustrates the point. In 1891 there was an attempt in an Australian court to try a man who had married a woman in the USA whilst still married to a woman he had married in Australia. The Australian statute making bigamy an offence appeared, on its face, to cover a bigamous marriage wherever it occurred.

The Privy Council, then the court of final appeal in the British Empire, pithily observed in its judgment that ‘All crime is local’ meaning that, unless the law was very clearly meant to have application outside Australia, its application would be confined to applying to things happening within Australian territorial limits. The court cited an old Latin maxim to make the point that trying to apply local laws beyond territorial limits was futile: extra territorium jus dicenti impune non paretur meaning ‘he who administers justice outside his territory is disobeyed with impunity’.

Limiting criminal jurisdiction in this way is common sense. It might be that a second marriage when a spouse is still living is not merely lawful in another country but is a feature of mainstream culture, as it is in many Middle Eastern countries today. It would be an unfriendly act for a country with a monogamous cultural tradition to claim criminal jurisdiction over polygamous marriages in a country with such a tradition, even when a national from the country with the monogamous tradition is involved for he or she may have chosen to make their home in the other country.

There are many other examples of acts done in one country that attract criminal responsibility but are tolerated in another place. The possession and use of cannabis is a topical example as more countries decriminalize possession and use of this drug. And the Sultanate of Brunei has recently reminded us that some kinds of sexual activities that are perfectly lawful in most countries are capital crimes there.

For these practical reasons, there must be some give and take between nations in this area. The law calls this mutual understanding and respect ‘comity’ and its observance is a necessary lubricant in international legal relations. It is the foundation of all extradition and mutual legal assistance agreements which are built on co-operation despite legal and cultural differences. If the differences are too great however, then there will be no agreement.

Although the Privy Council said ‘All crime is local’ that was not entirely accurate even then. Parliament could make laws with extra-territorial application if it chose but rarely did so, at least in comparison to more recent times.

The criminal law with extra-territorial application which cropped up time and again was, interestingly not an offence under statute but a common law offence, namely murder or, more accurately, unlawful killing which could include manslaughter, suicide (an offence in Hong Kong until 1967) and infanticide.

The common law extended to homicide in foreign parts so long as the perpetrator was a British subject. This was clarified by a provision in an Act of Parliament enacted in 1861 that simply declared what the common law was. That provision never found its way into the Laws of Hong Kong and so no consideration was given to adopting and adapting it after the PRC resumed sovereignty in 1997. If it had been adopted and made to apply to Hong Kong residents, the current problem with Taiwan would not have arisen as Hong Kong courts would have had jurisdiction.

As mentioned earlier, there has been a move to enact extraterritorial laws more recently. Such laws are either out of self-interest, usually economic, or because certain crimes are now recognized to be so odious as to amount to crimes against humanity and require that offenders be pursued whenever and wherever they are found.

Economic crimes committed abroad may injure interests at home even if there is no direct economic loss in the home country. The damage done may be reputational as when foreign officials are bribed by companies close to a state.

Countries are therefore willing to enact extra-territorial laws in this area and have been encouraged to do so by treaties such as the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (1997) organized by the Council of the Organization for Economic Co-Operation and Development (OECD), a European based international organization. When a country employs extra-territorial legislation to combat bribery the intervention is often a spur to the other country to get its house in order and be more ready to investigate bribery offences on its doorstep.

Although Hong Kong is not one of the eight non-European jurisdictions that have ratified the 1997 convention, the Prevention of Bribery Ordinance was amended to include bribery in the HKSAR ‘or elsewhere’ and the Criminal Jurisdiction Ordinance was enacted in 1996 to make typical economic offences like fraud, theft, false accounting criminal deception triable in the HKSAR whatever the nationality of the offender so long as there is some substantial connection with the HKSAR, providing that relevant acts done abroad would be an offence in the country concerned.

The tradition of prosecuting particularly odious crimes irrespective of nationality of the offender and location is both ancient and modern.

It is ancient inasmuch as piracy was recognised from the earliest days as an offence where countries had universal jurisdiction. A pirate operated in the seas which, like today, belonged to everybody and nobody except for seas within a country’s territorial limits.

The corollary to predation on the high seas beyond the reach of territorial law was the right of all countries to try and punish pirates, irrespective of their nationality so that pirates from Somali captured in international waters were routinely tried in Kenyan courts a decade ago even though they had not attacked a Kenyan vessel or injured a Kenyan national.

The plight of Somali pirates convicted in Kenyan courts and sent to prison was an improvement on what happened two thousand years ago. Plutarch’s Life of Julius Caesar includes a chapter where, in 75 B.C.E., Caesar was captured by pirates operating out of what is now Southern Turkey.

Caesar played the part of a cheerful and easy-going hostage for seventy-five days whist a ransom was arranged. On his release he immediately organized an expedition to capture the pirates who were then taken to Pergamon on the coast. When the Roman governor there hesitated in trying the pirates as he considered the possibility of ransoming them for his own benefit, Caesar resolved the problem by entering the prison and taking the pirates out for immediate crucifixion.

Piracy continues to exist, and the ancient offence has been enlarged with the invention of commercial air travel. Section 5 of the Aviation Security Ordinance declares acts of violence on planes and hijacking to be acts of piracy and triable in the HKSAR no matter where the acts occurred.

Other heinous offences such that universal jurisdiction is considered by many states to be required are a twentieth century phenomenon. They were borne out of the atrocities committed in the Second World War. They include acts of genocide, torture, crimes against humanity, enforced disappearances, ethnic cleansing and some war crimes. Responsibility for trying such offences has been given over to international tribunals such as the International Criminal Court. Signatories to the Rome Statute agree to co-operate to render wanted individuals to the court.

If countries are not parties to the Rome Statute, they can nonetheless recognize that some crimes transcend borders and nationalities. Hong Kong recognizes obligations arising under the UN Genocide Convention (1948) to try offences under Article 2 of that convention in the Offences Against the Person Ordinance Maritime.

Likewise, section 3 of the Crimes (Torture) Ordinance makes it clear that public officials of whatever nationality can be tried in the HKSAR for torture, being acts inflicting ‘severe pain or suffering’ on another person when carrying out, or purporting to carry out, official duties. The most famous figure to fall foul of this particular example of universal jurisdiction was General Pinochet, the former Chilean President, who was arrested in the United Kingdom in 1998 on a warrant issued by a Spanish judge for acts of torture committed by him in Chile in the 1970’s.

However, where there is no agreed universal jurisdiction or a state does not attempt to impose extraterritorial jurisdiction on its own nationals or, very exceptionally, on non-nationals, you will inevitably have the situation where acts done abroad which would amount to crimes at home will not end up in a domestic court because of a lack of jurisdiction.

If another country wishes to investigate a suspected crime under its laws and the suspect is outside the jurisdiction, then extradition is the answer provided that the other country offers minimum standards of fair treatment in its criminal justice system that are acceptable to the requested state.

This is the way the system works. Without a surrender agreement, it obviously means that people who commit crimes in other places may not face justice either in that place or in the place where they live. That is the price paid for countries maintaining the right to operate their own justice systems free from interference by others. It may breed insufferable arrogance on the part of those who benefit from the situation because they cannot be surrendered. You can only hope that such people get their comeuppance one day.

Which brings me to the opening words of this piece. They are spoken by one of the nastiest villains in the whole of English Literature. Barabas is the Jew in Christopher Marlowe’s play ‘The Jew of Malta’. He is both utterly immoral and inventively homicidal, poisoning an entire convent of nuns out of pique and murdering one Franciscan friar and framing another for that murder as he goes about plotting the destruction of many more people who had done him wrong by his own twisted reckoning.

Before he strangles the friar, he tasks Barabas about his sins, which included unlawful sexual relations with a young woman. Barabas interrupts the friar to acknowledge what he has done:

“Fornication: but that was in another country,

And besides, the wench is dead…. “

The implication behind this cynical remark is that the woman’s death may just be his responsibility.

Barabas gets his just desserts however and much more at the end of the play. He falls victim to his own ingenious trap that was meant for others and is boiled alive in cauldron watched by his intended victims. It is a pity that real life is not so straightforward.

About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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