THE QUEEN v. LAU TUNG SING

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J U D G M E N T

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Power, J.A.:

1. This is the judgment of the court.

2. The appellant LAU Tung-sing was convicted after trial before Judge Leonard in the District Court of two offences under the Immigration Ordinance Cap.115. He was, on the first offence, jointly charged with LAM Shui-Yuen who was found not guilty That offence alleged that contrary to s.37D(1)(a) and s.37J of the Immigration Ordinance he and Lam "between an unknown day in April and the 6th day of July 1987 in Fukien Province of the People's Republic of China, together with other persons unknown arranged the passage to Hong Kong (of) unauthorized entrants, namely WONG Yu-hau alias Wong Ming-chi, HUI Kam-cheung alias WONG Chak-kwong or HUI Kin-hong and HUI Chuen-sang alias WONG Chuen-mou." The second offence alleged that contrary to s.37D(1)(a) of the Immigration Ordinance the appellant assisted the passage within Hong Kong of unauthorized entrants. Particulars of that offence were that he on the 8th day of July 1987 he assisted the passage within Hong Kong of the same three persons.

3. The trial judge convicted the appellant on both charges being satisfied that the three unauthorized entrants each of whom gave evidence, were telling a credible and naturally consistent story".

4. The appellant now appeals against both convictions. The Grounds of Appeal are as follows:

"1. There was no jurisdiction to try the Appellant for the offence of arranging the passage to Hong Kong of unauthorised entrants, as the whole offence as alleged and found took place in the Fukien Province of the People's Republic of China.

2     There was no jurisdiction to try the Appellant for the offence of arranging in the Fukien Province of the People's Republic of China for the passage to Hong Kong of unauthorized entrants, as Section,, 371 of the Immigration Ordinance cap 115, which purported to give the Hong, Kong Courts such jurisdiction, is ultra vires the legislative competence of the Hong Kong Legislature in whole or in part, as being a colonial criminal statutory law purporting to grant extra-territorial jurisdiction over offences; committed partly or wholly out of Hong Kong.

3. Section 37J of the Immigration. Ordinance, Cap 115-is a statutory law repugnant to or inconsistent with the Hong Kong Act 1985 (Imp) and the Hong Kong (Legislative Powers) Order 1986 (imp), and/or the Colonial Laws Validity Act 1865 (Imp),

4.     There was no jurisdiction in a Hong Kong Court to try the Appellant, for an offence wholly committed in a foreign country as, inter there was no evidence or proof that the Appellant was a Hong Kong permanent resident or British Citizen or otherwise was domiciled in Hong Kong

5.     The convictions are unsafe and unsatisfactory as

(A) The learned trial Judge failed or failed sufficiently to consider the evidence relating to each charge separately.

(B)     The learned trial Judge wrongly gave weight to the evidence of the accomplices by considering it to be corroborated, when such items identified as being corroborative of the accomplice evidence, were in law incapable of amounting to corroboration."

5. Mr. McCoy, who. appears for the appellant, agreed that Grounds(1) and (2) really present the same ground namely. That s.37J of the Immigration ordinance is ultra vires the legislative competence of the Hong Kong Legislature as it purports to grant extra-territorial jurisdiction over offences committed wholly out of Hong Kong.

6. The Court initially heard argument only as to Grounds (1), (2) and (3) and now delivers its decision upon those grounds.

The sections with which we are concerned are s.3,7D(l) & s.37J which provide, as follows:

"37D (1) Subject to subsection (2) any person who, on his own behalf or on behalf of any other person; who then or not such other person is in Hong Kong-

(a)     arranges or assists the passage to, or within, Hong Kong,

(b) offers to arrange or assist the passage to, or within, Hong Kong; or

(c) does or offers to do an act preparatory to or, for the purpose of arranging or assisting the passage, to or within, Hong Kong,

of a person who is, or of a conveyance which carries, an unauthorized entrant, commits an offence and is liable

(i)     on conviction on indictment in a fine of $5,000,000 and to imprisonment for life;

(ii) on summary conviction to a fine of $100,000 and to imprisonment for 3 yeas."

"37J. Without prejudice to any law or enactment to the like or a similar effect as that of this section, where any person is in Hong Kong, he may be charged and convicted in respect of anything which was done or which occurred wholly or partly outside Hong Kong that would have been an offence under this Part if it had been done or had occurred within Hong Kong."

7. It was the contention of Mr. McCoy that Macleod v. Attorney General for Now South Wales, [1891] A.C. 455 "unequivocally declared the existence of doctrine of colonial (criminal) extra territorial legislative incompetance" and that this doctrine far from ever having been overruled is "still avidly followed in parts of the Commonwealth". The issue in Macleod's case was whether s.54 of the Criminal Law Amendment Act 1883 of new South Wales which enacted that "whosoever being married marries another person during the life of the former husband or wife wheresoever such second marriage takes place, shall be liable to penal servitude for seven years" was intra vires fires the New South Wales Colonial Legislature. He relied upon the words of Lord Halsbury who, when delivering the judgment of the Judicial Committee, said, at p.456:

"In the first place, it is necessary to construe the word 'whosoever' and in its proper meaning it comprehends all persons all over the world, natives of whatever country. The next word which has to be construed is 'wheresoever'. There is no limit of person, according to one construction of 'whosoevere'; and the word 'whosoever' is equally universal in its application. Therefore, if their Lordships construe the statute as it stands and upon the bare words, any person, married to any other person, who marries a second time anywhere in the habitable globe, is amenable to the criminal jurisdiction of New South Wales, if he can be caught in that Colony. That seems to their Lordships to be an impossible construction of the statute; the Colony can have no such jurisdiction, and their Lordships do not desire to, attribute to the Colonial Legislature an effort to enlarge their jurisdiction to, such an extent as would be inconsistent with the powers committed to a colony, and, indeed, inconsistent with the most familiar principles of international law it therefore becomes necessary to search for imitations, to see what would be the reasonable limitation to apply to words so general; and their Lordships take it that the words 'Whosoever being married' mean, 'Whosoever being married, and who is amenable, at the time of the offence committed to the jurisdiction of the Colony of New South Wales."

8. His Lordship then went on to observe that the construction which he was placing upon the section received support "from the subordinate arrangements which the statute makes for the trial, the form of the indictment, the venue and so forth." He then stated that "the result, as it appears to their Lordships must that there was no jurisdiction to try the alleged offender for this conviction should be set aside."

9. Up to this point it is plain that Lord Halsbury was treating the matter as one of construction.

10. Having rejected an "impossible construction" as the Judicial Committee did "not desire to attribute to the Colonial Legislature an effort to enlarge their, jurisdiction to such an extent as would be inconsistent with the powers committed to a Colony, and, indeed, "inconsistent with the most familiar principles of international law", the Committee sought the reasonable limitation to apply to words so general

11. It is to be noted that those appearing for the Respondent Attorney-General for New South Wales argued only "that he point of jurisdiction had never been taken" below and that full legislative power had been given to the local legislative."

12. It was never suggested to the court that the "peace, order and good government" of New South Wales with regard to which the Colonial Legislature was empowered to the act laws required that persons having been married in the colony and having committed bigamy elsewhere and having then returned to the colony should be subjected to the laws of the colony against bigamous marriage. One cannot say what their Lordships' approach might have been had such an argument been advanced. Suffice to say that they arrived at the narrow construction adopted in the absence of any such argument.

13. It must be said that their Lordships, went on to add, and. Mr. McCoy relies heavily upon this passage, that they were of opinion that if a wider construction had been applied to the statute, and it was supposed, that it was intended thereby to comprehend cases so wide as those insisted on at the bar, it would have been beyond the jurisdiction of the Colony to enact such a law. Their jurisdiction is confined within their own territories, and the maxim which has been more than once quoted, 'Extra territorium jus dicenti impure non paretur', would be applicable to such a case." While this passage does give some support to Mr. McCoy's contentions it seems to us very arguable that its primary aim was, again, to reject the contention of "full legislative power" made by those appearing for the respondent rather than to attempt nicely to define the limits of colonial jurisdiction.

14. Mr. McCoy submits that Macleod's case firmly proclaims what he, describes as the doctrine of colonial (criminal) extra-territorial legislative incompetence.

15. He argues that those who oppose view can find no comfort in The Trial of Earl Russell [1901] A.C. 446 again. a prosecution for bigamy in which the Judicial Committee rejected the suggestion of counsel for Earl Russell that the reasons given for the decision in Macleod v. Attorney General of New South Wales had equal application (to legislation of the Parliament of the United Kingdom. This was so he argues, not because Macleod's case was wrongly decided but because, as Lord Halsbury made clear, considerations which apply to colonial legislatures have no application to the Imperial Parliament. Indeed, he swept the matter away by saying simply that it was "really too plain for argument".

16. Mr. McCoy then referred to Ashbury v. Ellis [1893] A.C. 339. It is interesting to note that Lord Halsbury, although he did not deliver the judgment in that appeal, was a member of the Judicial Committee. What was in issue was whether the New Zealand Legislature had power to authorize the making of Rule 53 of the New Zealand Civil Procedure, Code which gave the court power to give leave to a plaintiff to issue a writ and proceed without service in actions founded on any contract made or entered into or wholly or in part to be performed within the colony, or proof that the defendant is absent from the colony at the time of the issuing of the writ, arid that he is likely to continue absent, and that he has no attorney or agent in the colony known to the plaintiff who will accept service......"

   Counsels for the appellant, who was domiciled in England and who was absent from the colony at the time of the commencement of the action, argued, inter ail, that, insofar as the rule purported to apple to a person who was not born in News Zealand and who had never been domiciled or resident in New Zealand, it was ultra vireos and relied in part at least, on Macleod's case. The court construed the rule by asking whether it was within the power given to the Legislature of New Zealand by the Imperial Act of Parliament which empowered it to make Laws for the Peace, Order and good Government of New Zealand provided that no such Laws be repugnant to the Laws of England The Judicial Committee. Did Not, surprisingly given that. Lord Halsbury had presided in Macleod's case, make any reference in its judgment to that decision. Lord Halsbury who delivered the judgment held, at p.344 that:

"If the New Zealand Legislature had enacted that, in a concrete case such as the present be the New Zealand Courts should have power to give the plaintiff a decree notwithstanding that the defendant held himself aloof, we should hardly have heard the suggestion that such a law was not one for the peace, order and good government of New Zealand. Of course they have framed their law in more abstracts and flexible terms But taking those terms, their Lordships are clear that it is for the peace order and good Government of New Zealand that the Courts of New Zealand should in any case of contracts made or to be performed in New Zealand have the power of judging whether they well or will not proceed in the absence of the Defendant the power is a highly reasonable one So far as regards services of process on persons not within their local jurisdiction, or substituted service, or notice in lieu thereof, in proper cases the English Courts have it conferred on them by the Imperial Parliament. The New Zealand Legislature, it is true has only a limited authority but in passing the rules under discussion, it has been careful to keep within its limits

17. It is true that the Privy Council was here concerned with Civil procedure rules and with a matter of contract but what is important to note for our purposes is that the matter Was determined after a staminate on as to whether or not the law, was required for "the Peace, order and good government" of the colony. The Judicial Committee was quite unprepared to accept (p. 342) "that the moment an attempt is made by New Zealand law to affect persons out of New Zealand, that moment the local limitations if the jurisdiction are exceeded, and the attempt is nugatory"

18. The arguments of Mr. McCoy clearly receive no support from the approach adopted in Ashbury's case.

19. Mr. McCoy next referred to the Attorney General for Canada v. Cain [1906] A.C. 542, In this matter, the Privy Council had to determine whether s.6 of the Canadian Alien Labour Act which allowed the Attorney General of Canada to deport illegal immigrants to the country whence they had come was ultra was the Canadian Parliament by virtue of the fact that extra-territorial constraint must necessarily be exercised in effecting such an expulsion The matter was decided by resorting to an approach which does not appear to have been raised in either Macleod's Case orAshbury's Case. The court stated that it was conceded that sovereign states have the power to expel aliens and to do everything necessary effectively to exercise that power including the placing of constraint upon the person being expelled outside the boundaries of the state. The court stated that as the Canadian Alien Labor Act was sensed to by the Crown the Dominion Government was clothed with the power of the Crow to expel aliens which of necessity included the power to impose extra-territorial constraint "to the same extent as the Imperial Government could itself have imposed the constraint for a similar purpose had the statute never been passed". Here the court seems to have been satisfied that any extra-territorial objection was overcome, by the fact that the Crown, having assented to the act had delegated its powers which were not subjected to extra-territorial considerations to the government of Canada. Although both the Australian and the New Zealand legislation must have received Similar assent such an approach was never-considered either Macleod or Ashbury. It is to be noted that in 1908 in Hong Kong, Piggott C.J., relying upon the authority of Cain's case, adopted this approach in Re Chan Yue-shan ex p Chan King-po [1908] 4 H.K.L.R 128.

20. The cases cited above indicate three possible approaches to the determination of the validity of laws enacted by colonial legislatures with extra-territorial implications.

21. The first adopted in Macleod's case calls for a construction of the statute governed by strictly limiting its effect to acts which occur within the territorial boundaries of the colony.

22. The second approach, adopted in Ashbury's case is to test the legislative competence of the colonial legislature by asking whether the real purpose of the enactment was or the "peace order and good Government of the colony"

23. The third approach adopted in Cain's case is to ask whether the Crown has by assenting to the colonial legislation, clothed the colonial government with a power which there to for the Crown itself had, possessed. We should perhaps say immediately that we are by no means persuaded as to the correctness of this third approach. We readily adopt the words of Roberts C. J. in this regard who said, when delivering the decision of the court in Winfat Enterprises (H.K.) Co. Ltd. v. Attorney General [1984] H.K.L.R. 32, at p.50:

"The defendant also argued the ground advanced obiter by the Chief Justice in Pong Wai-ting [1925] HKLR 22 that rum the exercise of the Crown's power of non-disallowance, which was notified for each ordinance, might have cured any defect caused by the Governor giving his assent when he should have reserved an ordinance.

    Kempster, J. accepting this argument found that the ordinances of which the plaintiff complained were ratified by non-disallowance, amounting in law to express authorization, though this does not seem to have been necessary to his decision.

    In view of our finding as to the effect of s.4 of the Colonial Laws Validity Act, it is not necessary for us to pronounce a view on this proposition. However, we would not like it to be thought that we agree with it, since there must be grave objections in principle to attributing to the Crown, in its prerogative guise, power to give force to an otherwise invalid law by the mere act of deciding not to disallow it.

24. The next case to which Mr. McCoy referred to was Croft V. Dunphy [1933] A.C. 156. The Privy Council was here concerned with a " Hovering Act" passed by the Parliament of Canada. The Act gave power to customs officers to board and examine the cargo of any Canadian vessels hovering within 12 marine miles of the dominion of Canada. The question was whether the Dominion Parliament had power to pass legislation purporting to operate beyond its territorial limits, i.e. to a distance of 12 miles.

25. We must first dispose of the submission of Mr. McCoy that, in 1929 which was the time when the search and seizure occurred, Canada was juridically distinguishable from a colony. He concedes that the Statute of westminster, which gave dominions "full power to make laws having extra-territorial operation", was not passed until 1931 but submits that this was merely declaratory legislation giving effect to a status quo already if existence and already recognized in the Balfour Declaration of 1926. A reading of the judgment makes it clear that the court did not recognize any such status quo. Indeed the court was clearly satisfied that the legislative authority of the Parliament of Canada derived from s.91 of the British North America Act of 1867 and it expressly refused to consider the submission that s.3 of the Statute of Westminster had retrospective effect.

26. The British North America Act of 1867 authorized the Canadian legislature to in make laws for the peace order and good government of Canada " It gave authority under head 2 to make laws for the regulation of trade and commerce and under head 3 to make laws with regard to taxation. Lord Macmillan, who delivered the judgment of the Judicial Committee stated at p.163, that it was not contested that under the British North America Act the Dominion legislature has full power to enact customs laws for Canada, but it is maintained that it is debarred from introducing into such legislation any provisions designed to operate beyond its shares or any rate beyond a marine league from the coast."

27. It was their Lordship's opinion, at p.163, that "the Parliament of Canada is not, under. any such disability. One it is found that a particular topic of legislation is among those upon which the Dominion parliament may competently legislate as being for the peace, order and good government of Canada or as being one of the specific subjects enumerated in s.91 of the British North America Act, their Lordships see no reason to restrict the permitted scope of such legislation by any other consideration than is applicable to the legislation of a fully Sovereign State." There is it must be admitted, the complicating factor that, in, this case the regulation of customs fell within heads (2) and (3), of s.91. It is, however, of significance for our purposes that the court said that the Parliament of Canada was not under any territorial disability as long as the legislation was either for the peace, order and good, government of Canada or under one of the specific heads in s.91." (Our underlining). The Judicial Committee, was referred on argument to Macleod's case but it mane no mention there of in its judgment. It seems clear from the judgment that the court was satisfied that legislation having extra-territorial affect that was shown to be for the peace order and  good government of Canada would be valid in exactly the same Way as legislation having extra-territorial effect that was enacted pursuant to the specific power to make laws regulating customs. The judgment makes it plain that extra-territoriality of itself does not invalidate, the law as long as it is made in the valid exercise of a power conferred, whatever that power  may be.

28. Given the decision in Croft v. Dunphy, it is not to be wondered at that the doctrine of extra-territorial restraint, which finds its most explicit exposition in Macleod's case was referred to in 1935 by viscount Sanky at p.520 in, 1935 in the Britsh Coal Corporation & others v. The King [1935].A.C. 500 as a doctrine of somewhat obscure extent".

29. Mr. McCoy with his usual thoroughness referred us to range of cases since. 1935 from many sources making reference to Macleod's case. We do not need to refer to them all Some such as Walloce Brothers & Co. Ltd. (1948) 75 Ind App. 86 (PC) R. v. Fineberg (No.l) [1968] N.Z.L.R 119, were very much against any assessment of legislative competence by the taking of a strict territorial approach. Indeed Moller J. in the latter case said, at p.122:

"......it seems now to be accepted that the principle enunciated in (Macleod's case) is not a correct statement of the law the correct statement being, found instead in the Later case of Croft v. Dunphy......"

Some such as Public Prosecutor v. Rajappan [1986] 1 M.L.J. 152 and Winfat Enterprises (H.K.) Co. Ltd. v. Attorney General [1983] H.K.L.R. 211, refer to Macleod's case but make it clear that the matter is essentially one of construction.

30. Salleh Abas L.P. in the former case held that the extra territorial application of any penal statute, even one passed by a fully sovereign, legislature, had to be determined by construing the statute in the Light of the presumption against extra-territorial application of penal statutes.

31. Kempster, J. in the latter case, at p.225, stated:

"The formula for the peace, order and good government" of a colony is, in theory at least, subject to the examination of the court which may hold an ordinance to be beyond the powers so entrusted to the subordinate legislature and void but such a power has been held to  authorize the utmost discretion of enactment for the attainment of the objects pointed to and a court will not inquire whether any particular enactment of this character does in fact promote the peace, order or good government of the Colony Chenard & Co. v. Arissol [1949] AC 127. Less. drastically the court will, in the event of ambiguity, seek so, to construe an ordinance as to render its provisions consistent with the comity of nations and the established rules of public international law. Bloxam v. Favre [1883] 8 PD 101 at p.107 Macleod v. Attorney General for New South Wales [1891] AC at p.457 Salomon v. Commissioner of Customs and Excise[1966] 3 All ER at pp.874 to 875."

32. To say as Mr. McCoy does that Hong Kong courts have always accepted Macleod s case is to sap very little unless one goes on to ask for what it has been accepted. We are satisfied that it has not, as the passing reference made to it by Kempster, J., set out above, indicates, been accepted as authority establishing what Mr. McCoy refers to as a doctrine of colonial (criminal) extra-territorial incompetence. Indeed, on the appeals brought by the plaintiff from the decision of Kempster, J., first to the Court of Appeal, [1984] H.K.L.R. 32, and then to the Judicial Committee, [1985] 1 A.C. 733, neither court felt it necessary to make reference of any sort to that decision.

33. Mr. Findlay, Crown Prosecutor, who appears with Mr. Lugar-Mawson for the Crown, argues that the legislative power in Hong Kong is embodied in Article VII of the Hong Kong Letters Patent 1917 to 1988 which provides that "The Governer, by and with the advice and consent of the Legislative Council, may make laws for the peace, order and good government of the Colony". He submits that the Immigration Ordinance and particularly s.37J is clearly made pursuant to the power to legislate for the peace, order and good government of the Colony. He relies when commenting on Macleod v. The Attorney General for New South Wales upon the words of Sir John Salmend in an article in L.Q.R. 1917 vol.33.p.117 at p.130 where he says:

"There is no genuine rule of substantive constitutional law which prevents a colonial legislature from enacting such extra-territorial prohibitions or authorizations as may be required for peace, order and good government of the colony and as are not repugnant to the enactment of the imperial Parliament."

He relies also on the decisions in The Attorney General for Canada v. Cain and Croft v. Dunphy to which reference has already been made. He refers also to the judgment of the Privy Council, delivered by Lord Uthwatt, in Wallace Brothers &. Co. Ltd. v. Commissioner of Income Tax, Bombay City and Bombay Suburban District (1948) 75 Ind. App.86 where His Lordship, at p.98, said:

"The contentions of the appellant company were that legislation in regard to income tax having an extra-territorial operation was ultra vireos the Central Indian legislature and that the impugned legislation had that operation. Both contentions were disputed by the respondent Their Lordships do not approach the matter on the formal lines embodied in these contentions. There is no rule of law that the territorial limits of a subordinate legislature define the possible scope of its legislative enactments or mark the field open to its vision. The ambit of the powers possessed by a subordinate legislature depends on the proper construction of the statute conferring those powers. No doubt the enabling statute has to be read against the background that only a defined territory has been committed to the charge of the legislature. Concern by a subordinate legislature with affairs or persons outside its own territory may there fore suggest a query whether the legislature is in truth minding its own business It does not compel the Conclusion that it is not. The enabling statute has to be fairly construed."

34. This decision makes it clear that the question to be asked is whether there is sufficient connection between the extra-territorial effect of the impugned legislation and the territory.

35. We are satisfied that the position is properly stated in Halsbury's Laws of England 4th Ed. Vo1.6 at para. 1075 as follows:

"There is a presumption that the legislation of a dependent legislature is to be interpreted as having only local application this presumption is stronger than the ordinary presumption applicable to the enactments of the United Kingdom and. other non-dependent legislatures. Indeed, there can be said to be a rule that, in the absence of authority expressly conferred for that purpose, dependent legislatures are incompetent to legislate with extra-territorial effect. This rule is of some what obscure extent, and its existence has been doubted but the better view is that it exists, though within a narrow field of operation. The rule is not that the territorial limits of a dependent legislature define the possible limits of its legislative enactments; rather, the rule is that those enactments which purport to have an extra-territorial operation, application or effect will be valid only if they bear a substantial relationship to the peace, order and good government of the dependent territory concerned, whether generally or in respect of particular, subjects In particular, legislation creating any liability must base that liability on some fact, circumstance event or thing which is relevantly connected, to a sufficient degree, with the territory concerned."

We are satisfied that Macleod's case must be regarded as a decision that was concerned with the construction of a particular statute and further that it was one in which the court was not asked to address itself to the considerations that were material both in Croft v. Dunphy and in the present case.

36. This issue is not whether the law has, some extra territorial application but whether it was enacted for the peace, order and good government of the Colony. What the court must ask is whether, given the, delegated legislative power of the colonial legislature, it is making a law with regard to matters that are properly, its business. If it is then the law is intra vires.

37. We have no doubt that legislation which imposes liability upon a person who, having arranged the passage of unauthorized entrants into Hong Kong, then comes to Hong Kong is sufficiently connected with the peace order and good government of Hong Kong to make it intra vires the legislative power. Indeed, Mr. McCoy conceded that the legislation did concern itself with the peace, order and good government of the colony. The appellant therefore fails on the first two grounds.

38. We turn now to the third ground.

39. Mr. McCoy submitted that the Letters Patent which carne into effect pursuant to the terms of s.2 of the Colonial Letters Patent Act 1863 gave the Governor the right by and with the advice and consent of the Legislative Council to make laws for the peace, order and good government of the colony but gave no power to make laws having extra-territorial effect. Such power was granted by The Chinese Passengers Act 1855 but this was repealed in 1977. It was also given by the Hong Kong Act of 1985 in which, s.3(1)(b) of the Schedule, authorizes Her Majesty by Order in Council to make provision for enabling the legislature of Hong Kong to repeal or amend any enactment so far as it is part of that law and to make laws having extra-territorial operation" The Hong Kong (Legislative Powers) Order 1986 passed pursuant to the Hong Kong Act permits the Hong Kong Legislature in s.2(b).to make laws having extra-territorial operation regarding (i) civil aviation, (ii) merchant shipping, (iii.) admiralty jurisdiction. It is Mr. McCoy's submission that the Hong Kong Legislature can only legislate extra-territorially for these three matters and that the present legislation, therefore is invalid. This argument is met by the conclusion which we have already reached. It is, indeed, another aspect of the extra-territorial argument advanced in grounds (1) and (2). The answer to it is that the legislation is not "extra-territorial" in the sense in which that term is used in s.2(b) of the Hong Kong (Legislative Powers) order 1986 nor in any sense that makes it an ultra vires exercise of power by the Hong Kong legislature. For these reasons the appellant fails also in his third ground of appeal.

40. The matter will be adjourned to a date to be fixed to hear argument upon the remaining grounds of appeal.