R. v. REMY MARTINS DUGGAM

Criminal Appeal No. 96 of 1995

Headnote

Per Yang CJ, Mortimer JA

Acts taking place on board an aircraft which is not "British-controlled" in flight outside Hong Kong airspace are not offences against the law in force in Hong Kong.

True construction of Tokyo Convention Act 1967 (Overseas Territories) Order 1968 s.1(1) and 1(3) of Schedule 1.

Section 1(3) provides for jurisdiction but does not create any extraterritorial offence under the law in force in Hong Kong. Proceedings below for "offences" on board a Qantas flight outside Hong Kong airspace for acts which, if they happened in Hong Kong would amount to offences against s.17(1) of the Theft Ordinance, were a nullity.

Per Mayo JA (dissenting)

Section 1(3) is a deeming provision which provides that an offence committed on board an aircraft in flight shall be deemed to have been committed in the Territory where the offender happens to be. The court before whom the appellant appeared therefore had jurisdiction to try him for offences aboard the Qantas aircraft in flight.

IN THE COURT OF APPEAL

1995, No. 96
(Criminal)

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J U D G M E N T

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Mortimer JA: This is an appeal against conviction. The appellant having been granted leave to appeal out of time. On 20 January 1995 he pleaded guilty before Deputy Judge Geiser in the District Court to four offences of obtaining property by deception and one offence of attempting to commit a similar offence. He was sentenced to 18 months imprisonment concurrent on each charge.

The facts

2. The appellant was in possession of two credit cards belonging to another person. On 8 September 1994 using a Barclaycard in the name of Duggan, he obtained duty free items worth over $10,000 on a Qantas flight from Singapore to Hong Kong. On the same flight, on another occasion, he obtained more goods worth $660 using the same card. These offences were charged in count 1 and count 2.

3. On the next day, 9 September 1994, he flew back from Hong Kong to Singapore also on a Qantas flight. Using the same card, he gave two more orders for goods and obtained $6,803 worth on the first occasion and $8,129 worth on the second occasion. These matters were charged in counts 3 and 4.

4. On 24 October 1994, on a Qantas flight from Singapore to Hong Kong, his luck ran out. He was by this time under suspicion. He presented another card in an attempt to obtain goods but the staff refused to accept it. On arrival in Hong Kong he was handed over to the police.

5. There is no dispute that the acts complained of, which were the subject of the charges, took place outside Hong Kong and its airspace aboard an aircraft which was not British controlled. Further, if it be relevant, the appellant is not a Hong Kong resident or citizen.

The application

6. The central issue for the determination of this Court is whether the acts charged in the indictment were offences under Hong Kong Law. Clearly the court has no jurisdiction to try the appellant for acts which are not offences against the local law.

7. There is a subsidiary issue whether this Court has jurisdiction to entertain an appeal when it is contended - as here - that the proceedings in the court below were a nullity. But Mr Reading, for the Crown, rightly concedes the point. See In the matter of an Application by Tse Sun Mui for leave to apply for judicial review, CA Nos 90 and 98 of 1993 (unreported).

The applicable law

8. There is no doubt that the offence of obtaining property by deception contrary to s.17(1) of the Theft Ordinance, Cap. 210 and attempting to commit that offence (see s.101B of the Criminal Procedure Ordinance, Cap. 221) is not extraterritorial.

9. The general rule in Hong Kong (as in England) is that acts or omissions which take place outside the Territory are not offences under Hong Kong law. See Treacy v DPP [1971] AC 537 per Lord Morris of Borth-y-Gest at 552. If - outside recognised common law exemptions - any such act is an offence under Hong Kong law it must be created such by statute. The limited exemptions provided in ss. 8 and 9 of the Offences Against the Person Ordinance, Cap. 212 in murder charges, and at common law for conspiracies entered into abroad to commit crimes in Hong Kong (see Somchai Liangsiriprasert v Government of the United States of America [1991] 1 AC 225) serve to emphasise the general rule.

10. Acts which take place aboard an aircraft outside the jurisdiction prima facie are not offences against Hong Kong law. Exemptions are created by the Tokyo Convention Act 1967 (Overseas Territories) Order 1968. This order extends the 1967 Act with necessary modifications to Hong Kong and other overseas territories. The power to do so is provided by s. 8(1).

11. The Order provides in s. 1(1) of Schedule 1:

"Any act or omission taking place on board a British-controlled aircraft while in flight elsewhere than in or over the Territory which, if taking place in the Territory, would constitute an offence under the law in force in the Territory shall constitute that offence:"

This subsection creates offences under the law of Hong Kong which otherwise would be simply acts or omissions. It is to be noted that such offences are created only if they take place on board a British-controlled aircraft while in flight elsewhere than in or over the Territory.

12. Section 1(2) provides that no proceedings for an offence under the law of Hong Kong committed on board an aircraft while in flight elsewhere than in or over the Territory shall not be instituted save with the consent of the Attorney General.

13. Section 1(3) provides:

"For the purpose of conferring jurisdiction, any offence under the law in force in the Territory committed on board an aircraft in flight shall be deemed to have been committed in any place in the Territory where the offender may for the time being be; ..." (emphasis added)

Submissions of counsel

14. Section 1(3) above has been the subject of contrary submissions. Mr Reading submits that this section both creates the necessary offence of obtaining property by deception when on board any aircraft outside the Territory and confers jurisdiction on the Hong Kong court to try such an offence when an accused is before it. In support he points out that it is necessary for the Attorney General to give his consent under subsection (2) and this plays an important part in conferring jurisdiction to try the offence. Further, he prays in aid of his interpretation the powers of the aircraft commander under ss. 3(1) and (2)(b). The relevant parts provide:

"3	(1)	The provisions of subsections (2) to (5) of this section shall have effect for the purposes of any proceedings before any court in the Territory."
	(2)	If the commander of an aircraft in flight, wherever that aircraft may be, has reasonable grounds to believe in respect of any person on board the aircraft ...

that the person in question has done on the aircraft while in flight any act which in the opinion of the commander is a serious offence under any law in force in the country in which the aircraft is registered ..."

He also relies upon the provisions which enable a commander to hand over such a person to the authorities in either a "territory" or in "any other convention country". See subsection (5)(b)(ii).

15. Mr Mullick, for the appellant, submits that only s. 1(1) of the Order creates extraterritorial offences under Hong Kong law. Section 1(3) of the Order, he contends, creates no extraterritorial offences. It simply clarifies that those offences against Hong Kong law committed on board any aircraft in flight are deemed to have been committed where the offender is for the time being so that the courts' jurisdiction is provided for.

The Order examined

16. For my part, I accept the effect of Mr Mullick's submissions for the reasons which follow. The general principle that offences against Hong Kong criminal law are only offences if committed within the Territory (including its airspace) is defeated only by clear statutory provision. Behaviour which takes place outside Hong Kong can be the subject of lawful prosecution here only, if by some exception it is contrary to the local criminal law.

17. Section 1(1) makes this clear. It creates offences out of what otherwise would simply be acts or omissions taking place on board a British-controlled aircraft while in flight elsewhere than in or over the Territory. This is the provision which creates the relevant offence against the Hong Kong criminal law.

18. Subsection (3) - which it must be conceded does not have much impact in Hong Kong because of its limited geographical area - does not create any offence. It deals only with offences under the law in force in the Territory. Note the words ... "any offence under the law in force in the territory committed on board an aircraft in flight".

19. The equivalent section in the 1967 Act has more practical effect in the United Kingdom with its different internal jurisdictions. Section 1(3) only confers jurisdiction for offences which have been committed on board an aircraft. It has therefore the effect of giving a Hong Kong court jurisdiction to try an accused who is before it and against whom it is alleged that:

(i) He has committed offences either in Hong Kong or Hong Kong airspace aboard any aircraft (offences within the jurisdiction); and/or

(ii) He has committed elsewhere offences aboard a British-controlled aircraft (offences created by s. 1(1)).

Were this not so, s. 1(1) would be otiose as it would be completely subsumed in the breadth of offences created and the jurisdiction conferred by s. 1(3).

20. Nor do Mr Reading's submissions under s. 3 concerning the powers of the commander of an aircraft assist him. Under s.3(2)(b) these are limited by the words "a serious offence under any law in force in the country in which the aircraft is registered ...". To be consistent with the interpretation of s. 1(3) he contends for, the powers of the commander would need to be much wider.

Conclusion

21. I would hold that on a true construction of the Tokyo Convention Act 1967 (Overseas) Order 1958, the acts which took place aboard an aircraft which was not British-controlled while in flight elsewhere then in or over Hong Kong, do not constitute offences under s. 17(1) of the Theft Ordinance even though those acts would have constituted an offence under the section if they had taken place within Hong Kong or its airspace. Further, that there is no other provision in the Order (in particular s. 1(3)) which makes those acts an offence under the law in force in Hong Kong.

22. In these circumstances, the appellant purported to plead guilty to acts which were not offences under the Hong Kong law. In my judgment, the proceedings before the District Court were a nullity. I would allow the appeal and set aside the purported convictions and sentences.

Epilogue

23. Before leaving the case, I express the hope that signatories to the Tokyo Convention will be astute in seeking the extradition for prosecution of those who commit offences aboard their registered or controlled aircraft. Failing this, "crime" committed aboard aircraft may go unchecked.

Mayo, J.A.:

24. I have had the advantage of seeing the draft judgment of Mortimer, JA.

25. With the greatest respect I find myself unable to agree with the conclusion he reaches.

26. He has very helpfully set out all the relevant facts.

27. The situation is that the alleged offences were committed extra-territorially on an aircraft which it is common ground was not a British aircraft.

28. The aircraft was registered in Australia which was a signatory to the Tokyo Convention 1963.

29. The provisions of the Convention form part of the laws of Australia by virtue of the Civil Aviation Act 1991.

30. The UK was also a signatory to the Convention and the provisions of the Convention were applied to Hong Kong by the Tokyo Convention 1967 (Overseas Territories) Order 1968.

31. The simple question which has to be determined is whether the Convention confers jurisdiction on the Courts of Hong Kong to try and sentence the appellant in respect of the offences he is alleged to have committed.

32. Schedule 1 to the said Order commences in the following manner:-

"SCHEDULE 1 TO THE ORDER Article 3.

PROVISIONS OF TOKYO CONVENTION ACT 1967 AS EXTENDED TO THE TERRITORIES SPECIFIED IN SCHEDULE 2

1. (1) Any act or omission taking place on board a British-controlled aircraft while in flight elsewhere than in or over the Territory which, if taking place in the Territory, would constitute an offence under the law in force in the Territory shall constitute that offence:

Provided that this subsection shall not apply to any act or omission which is expressly or impliedly authorised by or under that law when taking place outside the Territory.

(2) No proceedings for any offence under the law in force in Territory committed on board an aircraft while in flight elsewhere than in or over the Territory (other than an offence under, or under any instrument made under, the Civil Aviation Act 1949(a)) shall be instituted except by or with the consent of the competent authority of the Territory, but the foregoing provisions of this subsection shall not prevent the arrest, or the issue of a warrant for the arrest, of any person in respect of any offence, or the remanding in custody or on bail of any person charged with any offence.

(3) For the purpose of conferring jurisdiction, any offence under the law in force in the Territory committed on board an aircraft in flight shall be deemed to have been committed in any place in the Territory where the offender may for the time being be; and section 62(1) of the Civil Aviation Act 1949 as set out with modifications and adaptations in the First Schedule to the Colonial Civil Aviation (Application of Act) Order 1952(b) is hereby revoked in its application to the Territory."

33. I read 1(3) as being a deeming section. It provides that where an offence has been committed on board an aircraft in flight it shall be deemed that the offence has been committed in any place in the Territory where the offender may be.

34. I do not see any difficulty here. The offender, as a result of other powers which were exercisable by the Captain of the Qantas flight, delivered the appellant to the relevant Authorities in Hong Kong. He is accordingly physically in Hong Kong and under s1(3) he is deemed to have committed the offences he was charged with in the "Territory" which in the present case is Hong Kong.

35. I do not accept the criticism made by Mortimer JA that this interpretation of the subsection renders subsection (1) otiose.

36. The important distinction which has to be drawn is the physical presence of the offender in the territory.

37. Such presence is not required under subsection (1). The subsection would seem to me to be intended to apply to a situation where extradition proceedings may be contemplated.

38. The requirement contained in subsection (2) of the consent of the competent Authority in the Territory would seem to me to provide a sufficient safe guard to ensure that the comity of signatory Territories is maintained.

39. The necessary consent was obtained in the present case.

40. For the reasons I have given I am satisfied that the Courts of Hong Kong did have jurisdiction to hear this case and that the appellant was properly convicted. In my view the application for leave should be granted and treating the application for leave as the substantive hearing the appeal should be dismissed.

Yang, C.J.:

41. I have had the opportunity of considering both judgments in draft.

42. It is accepted that s. 17(1) of the Theft Ordinance is not extraterritorial and the facts are not in dispute. The narrow question in this appeal, therefore, is whether the appellant's acts aboard the Qantas flight outside Hong Kong airspace were offences against the law in force in Hong Kong and amenable to the jurisdiction of the Hong Kong court.

43. Such acts are not offences against the law in force in Hong Kong unless they are so created by the Tokyo Act 1967 (Overseas Territories) Order 1968 s. 1 of Schedule 1. As s. 1(1) concerns only acts aboard British-controlled aircraft in flight elsewhere than in or over the Territory, this appeal is resolved by the true construction of s. 1(3).

44. Mayo JA interprets the s. 1(3) as having both the effect of making the acts aboard the Qantas flight offences under Hong Kong law and of deeming such offences to have been committed in the place in the Territory where the offender happens to be.

45. Although this is one practical solution to the problem addressed by the Tokyo Convention, in my judgment, s.1(3) does not bear that construction with its wide implications. Section 1(3) does not create an offence under Hong Kong law. It concerns only "any offence under the law in force in the Territory" and provides for jurisdiction over such offences. It is a penal provision which must be strictly interpreted.

46. In the result, therefore, I find myself in agreement with both the reasoning and the conclusion of Mortimer JA that the acts aboard the Qantas were not offences under the law in force in the Territory and that the proceedings before the District Court were a nullity.

47. For these reasons, I would also allow the appeal.

48. I order that the appeal be allowed and the convictions and sentences quashed.