• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month
Page
  1. 1
    1
  2. 2
    2
  3. 3
    3
  4. 4
    4
  5. 5
    5
  6. 6
    6
  7. 7
    7
  8. 8
    8
  9. 9
    9
  10. 10
    10
  11. 11
    11
  12. 12
    12
  13. 13
    13
  14. 14
    14
  15. 15
    15
  16. 16
    16
  17. 17
    17
  18. 18
    18
  19. 19
    19
  20. 20
    20
  21. 21
    21
  22. 22
    22
  23. 23
    23
  24. 24
    24
  25. 25
    25
  26. 26
    26
  27. 27
    27
  28. 28
    28
  29. 29
    29
  30. 30
    30
  31. 31
    31
  32. 32
    32
  33. 33
    33
  34. 34
    34

Hong Kong Constitutional Law - 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.

Extracts from this document...

Introduction

CROSS-BORDER CRIME AND JURISDICTION 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. ...read more.

Middle

If this principle is to be included from the agreement, Mainland felony offenders may treat Hong Kong as a haven to avoid the death penalty and take advantage from the loopholes of differences between the laws of the two jurisdictions.98 Nevertheless, if this principle is to be excluded from the rendition agreement between Hong Kong and China, unless special provisions were made for the waiver of the death penalty, it may put Hong Kong in a situation of violating the ICCPR. Non-extradition of Political Offence Further, the principle of "Non-extradition of Political Offence" also creates difficulty for the formulation of a formal rendition agreement. This principle received international recognition as a general principle for rendition agreement.99The provisions in the FOO provides that no surrender shall be made if the request is for the handling of an offence which is of political character100 or the request is for the purpose of punishing one's political opinions.101 Although this principle is an internationally recognized one which has been adopted between Hong Kong and foreign countries, there are views expressed that considering the nature of one country, the exclusion of this principle is beneficial to the maintenance of China's sovereignty and political system.102 Nevertheless, there are views expressed that as the political system and the protection of political rights between the two places are different, in order to maintain the stability of Hong Kong's system and life style, this principle should be included in the agreement.103 In addition to the three principles mentioned above, other issues must be considered such as principle of protecting a fair trial, principle of double jeopardy as well as the review mechanism for any extradition requests.104 Further study on these issues need to be addressed in reaching a formal rendition agreement. Conclusion Regarding the issue of jurisdictional controversies arose from the cross border cases, after considered the different views from scholars, on one hand, it will appear that the provision in BL support a conclusion that the Mainland courts should not be conferred with jurisdiction over crime took place in Hong Kong by adopting the nationality principle. ...read more.

Conclusion

91 See note 3 above, at pages 79-80. 92 See Note 3 above, at page 79. 93 Ibid. 94 Section (1)(a) of the Fugitives Offenders Ordinance. 95 Article 39 (1) of The Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China. 96 Article 2 of the Hong Kong Bill of Rights Ordinance; see also Article 6 of the International Covenant on Civil and Political Rights. 97 Article 3 of the Hong Kong Bill of Rights Ordinance; see also Article 7 of t he International Covenant on Civil and Political Rights. 98 Qichang Lao, "Sizng zai zhongguo neidi ji zianggang liangdi dacheng yijiao taofan xieding shang de wneti yanjiu (Study of the Issues concerning death penalty in the agreement on surrender of fugitive offenders between the Mainland and Hong Kong)" in Weiyun Xiao(ed) xianggang Jjibenfa de Chenggong Shijian (The Successful Practice of Hong Kong Basic Law) (Beijing: Beijing Daxue Chubanshe, 2000) p 172. 99 See note 3 above, at page 84. 100 Section (5)(a) of the Hong Kong Bill of Rights Ordinance. 101 Section (5)(c) of the Hong Kong Bill of Rights Ordinance. 102 See note 3 above, at page 84. 103 Ibid; Bing Ling, "Neidi yu xianggang xingshi quanxiaquan Chongtu ji yindu wenti yanjiu (A study on the Conflict of Criminal Jurisdiction between the Mainland and Hong Kong and the Problem of Extradition)" [note 41 above] pp. 351-352. 104 See note 3 above, at pages 85-90. 105 See note 54 above, at page 421. 106 See note 51 above. 107 See note 54 above, at page 412. 108 See note 3 above, at page 66. 109 See note 54 above, at page 418. 110 See note 98 above, at page 179. 111 See note 103 above. 112 Fu Hualing "One Country and Two Systems: Will Hong Kong and the Mainland Reach an Agreement on Rendition" (1999) Hong Kong Lawyer. 113 See note 3 above, at pages 29-42. ?? ?? ?? ?? GDEHKL Year 1: Hong Kong Constitutional Law Cross-border Crime and Jurisdiction Ho Chung Yan 10493500 Page 1 of 34 ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Other Jurisdictions section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree Other Jurisdictions essays

  1. There is a fundamental difference between Constitutional supremacy and Parliamentary Supremacy.

    claim that it originated in the 16th century when the Parliament asserted the supremacy of statue over the church.

  2. Legal education in India. Legal education and quality of law graduates have great ...

    In addition, a number of new subjects have been added in the syllabus in an anxiety to teach all possible latest subjects. For instance, Intellectual Property Laws, Consumer Protection Law, Environmental Laws, Investment Laws, Insurance Laws, Cyber Law, Human Rights, Public Lawyering ,etc.

  1. Al-Kateb v Godwin [2004] HCA 37. The Political, Social and Economic Significance of Al-Kateb

    80 CLR 533. This was discussed at length by Gummow J in Al-Kateb v Godwin, above n 1, at [87] and [89]. 13 Curtin, above n 6, 357. 14 For instance, see Boyle, above n 11, 126. 15 See Al-Kateb v Godwin, above n 1, per Kirby J at [179].

  2. Anticipatory Bail under CRPC. A critical study of the recent amendments and judicial interpretation ...

    However normally it is to be presumed that the Court of Session would be first approached for the grant of Anticipatory Bail unless an adequate case is made out for straightaway approaching to the High Court directly without first coming before the Court of Session.

  1. Differences between the Chinese and British Legal systems in respect to forign investement.

    Thirdly, I would like to critically discuss the important factors concerns with import and export controls. As we are undoubtedly aware that both Chinese government and British government are trying their best to protect their native industries. However, when we analyse it in details, it is not difficult for us

  2. Homicide - Maltese Law.

    Murder is a result crime. It is consummated with the death of the passive subject. If the agent had the required mens rea, and his acts caused the death of the child, after birth, the agent would be guilty of wilful homicide. As in English law, under Maltese law it is generally held that the

  1. International Human Rights Laws - North Korea.

    There are multiple factors that contribute to these food shortages. Since 1994 North Korea has faced a series of natural disasters, as well as "state-run economic mismanagement"33 that have caused severe food shortages. One source reports that nearly three million people died from 1994 to 1999 due to these problems.34

  2. Outline the laws and government policies that have shaped and continue to affect Indigenous ...

    Recent studies commissioned by the Commonwealth Attorney General's Department have confirmed fundamental gaps exist in the criminal justice system and judicial management of sexual assault cases involving Indigenous women victimised within their own communities.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work