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When Can a Person be Prosecuted in Hong Kong for a Cross-border Crime?

2013-05-01

Introduction

In modern times, with the advancement of technologies, some crimes are no longer restricted by geographic or territorial limits.  A person does not necessarily have to be physically present in the place where the crime is intended to take place.  A crime can also be committed in a place where the intended results occur elsewhere.  In such kind of cross-border crimes, do Hong Kong Courts have jurisdiction to try the crimes?  This article explores the extra-territorial criminal jurisdiction of the Courts in Hong Kong.


Common Law

Traditional territorial limitations

Traditionally, at common law, the basic principle is that the Courts in Hong Kong only have jurisdiction over criminal offences which are committed within the territorial limits of Hong Kong.  The traditional view is that the Courts are generally not concerned with crimes committed outside the boundaries of Hong Kong since the Hong Kong criminal law was developed to protect local community.  If a crime is committed in another place, it should be left to that place to enforce its laws to protect their own citizens.

What if only part of the crime is committed in Hong Kong?

In situations where the criminal conducts were partly committed inside Hong Kong and partly outside Hong Kong, under the common law, the Courts in Hong Kong have jurisdiction to try the offences which take effect in Hong Kong.  For example, where a person is outside the boundaries of Hong Kong but employs an innocent agent to commit a crime in Hong Kong, that person will be subject to the criminal jurisdiction in Hong Kong.  Similarly, if a person who is outside Hong Kong counsels and procures an offence which is committed in Hong Kong, he is guilty of an offence and may be tried in Hong Kong.

In the case of A-G v Yeung Sun-shun [1987] 2 HKC 92, the conspiracy to defraud was formed outside Hong Kong but the act in furtherance of the conspiracy was committed in Hong Kong by an innocent agent.  In that case, the Court held that it had jurisdiction to try the matter.

 

Criminal Jurisdiction Ordinance

The Criminal Jurisdiction Ordinance (Cap.461) (“CJO”) was enacted in December 1994 to address the jurisdictional problems associated with international fraud and to codify the extra-territorial jurisdictions of the Courts in Hong Kong in relation to criminal matters. 

The offences to which the CJO applies are listed in section 2(2) and section 2(3) of the CJO.  The offences under section 2(2) are “Group A” offences which cover offences of dishonesty under the Theft Ordinance (Cap.210) and the Crimes Ordinance (Cap.200) such as theft, fraud, deceptions, blackmail and offences relating to false instruments etc.  The offences under section 2(3) are “Group B” offences which cover conspiracy, attempting or incitement to commit a Group A offence, and the offence of conspiracy to defraud.

The effect of the CJO is to enable the Courts in Hong Kong to exercise jurisdiction over the offences as listed in section 2(2) and section 2(3) of the CJO in the following circumstances:-

1.        where the act or omission or part of the results which are required to be proved for conviction of the offence takes place in Hong Kong;

2.        where there is an attempt to commit the offences in Hong Kong, whether or not the attempt is made in Hong Kong or elsewhere and irrespective of whether it has an effect in Hong Kong;

3.        where there is an attempt or incitement in Hong Kong to commit the offences outside Hong Kong;

4.        where there is a conspiracy to commit the offences in Hong Kong, irrespective of where the conspiracy is formed and whether or not anything is done in Hong Kong to further the conspiracy; or

5.        where there is a conspiracy in Hong Kong to do some acts outside Hong Kong which if done in Hong Kong would constitute the offences, provided that the intended conduct is an offence in the jurisdiction where the object is intended to be carried out.


Conclusion

The Courts in Hong Kong will have jurisdiction over the criminal offences set out under sections 2(2) & 2(3) of the CJO regardless of whether the offences involve “foreign” elements.  For criminal offences not covered by the CJO, the common law principles will apply in determining whether the Courts in Hong Kong would have jurisdiction to try the matter.

Due to the increasing number of international computer crimes, the Government in 2002 proposed to extend the Group A offences under the CJO to cover certain computer related offences, i.e. (1) unauthorized access to computer by telecommunications, (2) criminal damage relating to the misuse of a computer and (3) access to computer with criminal or dishonest intent.  However, there has been no substantial progress since 2002 and the three computer offences are yet to be covered by the CJO.




For enquiries, please contact our Litigation & Dispute Resolution Department:

E: criminal@onc.hk                                                          T: (852) 2810 1212
W:
www.onc.hk                                                                F: (852) 2804 6311

19th Floor, Three Exchange Square, 8 Connaught Place, Central, Hong Kong

Important: The law and procedure on this subject are very specialised and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.

Published by ONC Lawyers © 2013


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