R. v. LEUNG KWOK SING

IN THE COURT OF APPEAL

1992, No. 287
(Criminal)

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J U D G M E N T  O F  T H E  C O U R T

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Macdougall, V.-P.,

1. On 2 July 1992 the 1st appellant, HUI Lan-chak, pleaded guilty in the District Court to being a member of the crew of a ship which on 28 April 1992 had entered Hong Kong with unauthorised entrants on board, contrary to section 37C(1) (a) of the Immigration Ordinance, Cap. 115, and was sentenced to 4 years' imprisonment.

2. The 2nd appellant, Leung Kwok-sing, pleaded guilty in the District Court on 11 November 1992 to having committed an offence against section 37C(1) (a) on 16 September 1992. He was sentenced to 4 years' imprisonment on 9 December of that year.

3. Both appellants now appeal against their convictions on the ground that in each case the proceedings before the court were a nullity for want of the Governor's consent to the prosecution. It is not disputed that the Governor's consent was not obtained and that an offence against section 37C is an indictable offence.

4. Part VIIA of the Immigration Ordinance, of which section 37C forms part, came into operation in 1979. The relevant part of section 37C(1)(a) provides:

"37C(1)..... if a ship enters Hong Kong with an unauthorised entrant on board -

(a) each member of the crew;

(b) .....

(c) ..... commits an offence....."

5. Section 37L which also forms part of Part VIIA provides:

"37L. No prosecution shall be brought under this Part without the consent of the Attorney General."

6. The foundation of the submission made by Mr. Fung on behalf of the appellants, is the Territorial Waters Jurisdiction Act of 1878, the relevant provisions of which are as follows:

"Whereas the rightful jurisdiction of Her Majesty, her heirs and successors, extends and has always extended over the open seas adjacent to the coasts of the United Kingdom and of all other parts of Her Majesty's dominions to such a distance as is necessary for the defence and security of such dominions:

And whereas it is expedient that all offences committed on the open sea within a certain distance of the coasts of the United Kingdom and of all other parts of Her Majesty's dominions, by whomsoever committed, should be dealt with according to law:

1......

2. Amendment of law as to jurisdiction of the Admiral

An offence committed by a person, whether he is or is not a subject of Her Majesty, on the open sea within the territorial waters of Her Majesty's dominions, is an offence within the jurisdiction of the Admiral, although it may have been committed on board or by means of a foreign ship, and the person who committed such offence may be arrested, tried, and punished accordingly.

3. Restriction on institution of proceedings for punishment of offence

Proceedings for the trial and punishment of a person who is not a subject of Her Majesty, and who is charged with any such offence as is declared by this Act to be within the jurisdiction of the Admiral, shall not be instituted in any court of the United Kingdom, except with the consent of one of Her Majesty's Principal Secretaries of State, and on his certificate that the institution of such proceedings is in his opinion expedient, and shall not be instituted in any of the dominions of Her Majesty out of the United Kingdom, except with the leave of the Governor of the part of the dominions in which such proceedings are proposed to be instituted, and on his certificate that it is expedient that such proceedings should be instituted."

7. This Act was passed to remedy the jurisdictional deficiency that the decision of the majority of the court in R. v. Keyn (1876)2 Ex.D.63 had revealed, namely that the courts in England had no jurisdiction to try a foreigner charged with committing an offence while passing the English coast in a foreign ship, notwithstanding that the offence occurred within three miles of the coast.

8. It was contended for the appellants that at the time of the passage into law of Part VIIA of the Immigration Ordinance and on the dates both on which the alleged offences were committed and the convictions recorded and sentences passed, section 23C of the Crimes Ordinance, to which the relevant provisions of the 1878 Act concerning the Governor's consent had been transposed, applied to Hong Kong, and that therefore the consent of the Governor was necessary before the proceedings in the present cases were instituted.

9. The 1878 Act remained in full force in Hong Kong until the enactment of the Criminal Law (Amendment) Ordinance 1990 which became law on 1 January 1991. This Ordinance was passed as a consequence of the Hong Kong Act 1985, which was enacted "to make provision for and in connection with the ending of British sovereignty and jurisdiction over Hong Kong", and the making of the Hong Kong (Legislative Powers) Order 1986.

10. Paragraph 3 of the schedule to the Hong Kong Act provides:

"3(1) Her Majesty may before the relevant date by Order in Council make such provision as appears to Her Majesty to be necessary or expedient in consequence of or in connection with the provisions of section 1(1) of this Act -

(a) for repealing or amending any enactment so far as it is part of the law of Hong Kong; and

(b) 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.

(2) Her Majesty may before, on or after the relevant date by Order in Council make such provision as appears to Her Majesty to be necessary or expedient in consequence of or in connection with the provisions of section 1(1) of this Act for repealing or mending, so far as it relates to Hong Kong, any enactment forming part of the law of, or of any part of, the United Kingdom or of a British possession other than Hong Kong and any provision contained in Northern Ireland legislation.

(3) An Order under this paragraph may be made so as to have effect from the relevant date or as respects any time before or after that date."

11. The Hong Kong (Legislative Powers) Order reads as follows:

"Her Majesty, in exercise of the powers conferred upon Her by paragraph 3 of the Schedule to the Hong Kong Act 1985(a) and all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:-

1. (1) This Order may be cited as the Hong Kong (Legislative Powers) Order 1986.

(2) This Order shall come into operation on 26th August 1986.

2. The Governor of Hong Kong, by and with the advice and consent of the Legislative Council of Hong Kong, may, in addition to any other power conferred on the legislature of Hong Kong -

(a) repeal or amend any enactment so far as it is part of the law of Hong Kong;

(b) make laws having extra-territorial operation.

being an enactment or laws relating to -

(i) civil aviation,

(ii) merchant shipping,

(iii) admiralty jurisdiction."

12. The Criminal Law (Amendment) Ordinance 1990 amended the Crimes Ordinance Cap. 200 by adding sections 23A, 23B and 23C. It also provided by section 5 that the 1878 Act had no application to, inter alia, any offence described in section 23B.

13. The long title of the Criminal Law (Amendment) Ordinance reads:

"An Ordinance to amend the criminal law by providing that certain acts committed or occurring on board certain ships or otherwise on the sea or in certain places elsewhere are to constitute offences; that certain acts committed or occurring in the waters of Hong Kong on board or by means of certain ships are to constitute offences; and for related purposes."

14. Sections 23B, 23C and 5 to which we have just referred are as follows:

"23B Application of criminal law to Hong Kong ships on high seas etc.

(1) .....

(2) Any act of any person which -

(a) takes place in the waters of Hong Kong on board, or is committed in such waters by means of, a ship which is not a Hong Kong ship; and

(b) would, were the ship a Hong Kong ship, constitute an indictable offence under the law of Hong Kong, shall, subject to subsections (5) and (7), whatever the citizenship or nationality of the person, constitute that offence."

Subsections (5) and (7) have no relevance to the arguments advanced on these applications.

"23C Certain proceedings to be instituted only with consent of Governor

(1) Proceedings to which this section applies shall be instituted only with the consent in writing of the Governor who shall give such consent only if, in his opinion, their institution is expedient.

(2) This section applies to any proceedings for an indictable offence, other than piracy, which is alleged to have been committed -

(a) within the waters of Hong Kong;

(b) by a person who is not a British national; and

(c) on board, or by means of, a ship which is not a British ship.

(3) In this section "British ship" includes a Hong Kong ship."

"5. Cesser

(1) None of the enactments specified in subsection

(2) shall apply in relation to -

(a) any act within the meaning of section 23A of the Crimes Ordinance (Cap. 200) which constitutes an offence by virtue of section 23B(1), (2) or (3) of that Ordinance;

(b) .....

(c) ....

(2) The enactments referred to in subsection (1) are-

(a) the Offences at Sea Act 1799 (1799 s.37 U.K.);

(b) the Admiralty Offences (Colonial) Act 1849 (1849 c.96 U.K.);

(c) the Territorial Waters Jurisdiction Act 1878 (1878 c.73 U.K.);

(d) sections 686 and 687 of the Merchant Shipping Act 1894 (1894 c.60 U.K.)."

15. It is accepted that section 23A, which is an interpretation section, does not bear on these applications. It is therefore not necessary to state its terms.

16. The explanatory memorandum to the Criminal Law (Amendment) Bill 1990 stated:

"The purpose of this Bill is to amend the criminal law so as to localize the criminal jurisdiction of the Hong Kong courts in relation to crimes committed at sea and in certain places elsewhere.

2. Clause 2 amends Part III of the Crimes Ordinance (Cap. 200) by inserting three new sections (23A to 23C). In particular -

(a) .....

(b) .....

(c) new section 23B(2) localizes the Territorial Waters Jurisdiction Act 1878 (1878 c.73 U.K.) by applying the principle referred to in subparagraph (b) to certain acts committed in the waters of Hong Kong on board or by means of ships which are not Hong Kong ships;

The principle referred to in subparagraph (b) was expressed as follows:

"As a result criminal acts which are justiciable in Admiralty courts and are now triable in Hong Kong by virtue of a jurisdiction conferred by United Kingdom enactments will be triable by Hong Kong's courts because they will become offences under the law of Hong Kong itself.

(d) .....

(e) .....

(f) new section 23C requires the permission of the Governor to be obtained before proceedings for certain indictable offences are instituted; this derives from section 3 of the Territorial Waters Jurisdiction Act 1878 (1878 c.73 U.K.)"

17. Since section 37C of the Immigration Ordinance uses the words "if a ship enters Hong Kong", it is necessary to turn to section 3 of the Interpretation and General Clauses Ordinance Cap. 1 for the definition of Hong Kong. It is defined thus:

"'Colony' and 'Hong Kong' means the area of land and the area of Deep Bay and Mirs Bay lying within the boundaries specified in schedule 2 and the territorial waters appertaining thereto;"

"Territorial waters" are defined in section 3 as follows:

"'Territorial waters' means such part of the sea adjacent to the coast of the colony as is deemed by international law to constitute the territorial waters of Hong Kong"

18. Mr. Fung submitted that although Hong Kong has at all times had jurisdiction over its territorial waters, its legislative powers in respect of these waters were limited by an imperial statute, the 1878 Act, until the Criminal Law (Amendment) Ordinance 1990 came into operation on 1 January 1991. Territorial waters, however, do not include enclosed waters, otherwise known as waters inter fauces terrae, such as Deep Bay and Mirs Bay. The 1878 Act has no application to them. This, he submitted, is clear from the following passage of the judgment of Cockburn CJ in R v. Keyn:

"If an offence was committed in a bay, gulf, or estuary, inter fauces terrae, the common law could deal with it, because the parts of the sea so circumstanced were held to be within the body of the adjacent county or counties; but, along the coast, on the external sea, the jurisdiction of the common law extended no further than to low-water mark."

19. The legislature of Hong Kong has therefore at all times been empowered to legislate unhindered by any imperial enactment, as to its enclosed waters. Had section 37C of the Immigration Ordinance provided that it was an offence to be a member of the crew of a ship which enters the enclosed waters of Hong Kong, the 1878 Act would have had no application and the leave of the Governor and his certificate that it is expedient that proceedings for the trial and punishment of the alleged offender would therefore have not been required.

20. Mr. Fung cited The State of New South Wales and ors v. The Commonwealth of Australia (1975) 135 CLR 337 in which the majority of the High Court of Australia expressed the view that the boundaries of the former Australian colonial States ended at the low water mark and that, since sovereign rights in the territorial sea had been vested in the Imperial Crown, the Crown in right of a colonial state had not enjoyed those rights.

21. Barwick CJ said at p.368:

"Suffice it to say that the Imperial Crown, as representing the Empire, had at all relevant times dominion according to international law over the Imperial territorial seas. Had the Imperial authorities been minded to do so, they could have placed such part of these territorial waters as washed the shores of a colony within the control of the government of that colony as representing the Imperial executive and legislature. But Great Britain as the nation state must have remained responsible internationally for the performance of the obligations associated with the territorial sea. The Imperial Parliament could have authorized the executive to place the colonial territorial seas under the control of the appropriate colony: but no statute of the Imperial Parliament did so."

and later,

"The colonists inherited the common law: but it operated only in the realm which ended at low-water mark. This was decided in Req. v. Keyn, a decision with which I respectfully agree. See also Harris v. Owners of Franconia (1877) L.R.2 C.P.D. 173 and Blackpool Pier Co. Ltd. v. Fylde Union (1877)36 L.T. 251. Thus, property in and power over the territorial seas could not have come by the common law."

22. At page 491 Jacobs J said this:

"Whether the boundaries of the colony are proclaimed by letters patent or delineated by statute, far from there being an implication that some part of the sea was intended to be included, the implication must be to the contrary. However, it should be noted that the colony, like England, will include the waters intra fauces terrae and the seashore between high and low-water mark and the accretions thereto by slow and imperceptible change: Attorney-General (Southern Nigeria) v. John Holt and Co. (Liverpool) Ltd. [1915] A.C. 599.

Nor could there be any rule of law operating to bring within the boundaries of a colony, defined by letters patent or by statute or otherwise, a part of the seas which did not expressly or by implication fall within the boundaries so defined. The same reasons which prevent the words used being taken by implication to include the open sea preclude such a rule of law.

It is therefore not to the point to say that the Imperial Crown had, by the time the Australian colonies were founded and by the time the various letters patent and Imperial statutes were made or passed, limited its claim to the open seas to the three mile strip of sea adjoining its various dominions. That did not change the common law even though the change might need to be recognized by the common law in its recognition of the King's prerogative to claim such part or parts of the world's oceans as he saw fit and to withdraw such claim.

It will be apparent from what I have written that I regard Reg. v. Keyn (1876)2 Ex.D.63 as correct in result. To describe it as a case concerned with the respective extents of jurisdiction of the common law courts and the court of Admiralty is not to diminish the importance of the decision but to emphasize its essential importance in the present context. The courts of common law had no jurisdiction because the common law did not extend to regulate the rights and obligations of persons beyond the boundaries of the counties. The law (other than statute law) governing the rights and obligations of persons and things upon the sea was the English maritime law in content substantially the same as the common maritime law (unless any statute provided otherwise): The Gaetano and Maria (1882) 7 P.D. 137, at p.143; The Tojo Maru [1972] AC 242. The jurisdiction of the Lord High Admiral extended to those persons matters and things which under the maritime law could be subject to or determined by his court. The criminal jurisdiction under the maritime law did not extend to the acts of foreigners on a foreign ship in a place where the maritime law was the applicable law. Whether or not the seas are described as outside the realm depends not on the extent of the realm but on the meaning given to the word, as I have earlier said, and in Reg. v. Keyn the question was the meaning of that word in the Statutes of Richard II. It was not strictly necessary to decide in Reg. v. Keyn whether the Crown of England owned the sea or any part thereof below low-water mark and not infra fauces terrae. The important point was that the common law did not extend there."

23. It is clear that in enacting the Act of 1878, parliament, while intending to fill the jurisdictional vacuum whose existence the decision in R. v. Keyn had revealed, also recognised the policy implications of enforcing municipal law in waters in which a neighbouring State might claim an interest or as to which other considerations of public international law might arise. It therefore took the precaution of ensuring that the risk of conflict with other States would be minimised by providing, first, that only indictable offences could be tried by the municipal courts and, second, that in the case of a proposed trial in the United Kingdom, the trial could not proceed without the consent of one of Her Majesty's Principal Secretaries of State, or in the case of a proposed trial in a colony, without the leave of the Governor of the part of the dominions in which the proceedings were proposed to be instituted, and his certificate that it was expedient that such proceedings should be instituted.

24. It was contended by Mr. Cross for the Crown that by enacting section 37L of the Immigration Ordinance, which provides that no prosecution shall be brought under Part VIIA of that Ordinance without the consent of the Attorney General, the legislature intended that no other consent would be necessary before proceedings were commenced in cases such as those now before us. Furthermore, applying the maxim qeneralia specialibus non derogant, the requirement in section 23C of the Crimes Ordinance, that proceedings for an indictable offence alleged to have been committed on board or by means of a non British ship by a non British national, would not operate so as to override the specific provisions of section 37L.

25. We do not think that there is any force in these contentions. There is no reason now, nor was there any reason before the enactment of section 23C, that two consents should not have been required. The considerations with which the Governor is concerned are of a diplomatic nature and are different from those which influence the Attorney General in deciding whether to commence proceedings in any particular case.

26. We accept the submission that, by enacting section 23C, the legislature did not intend that it should derogate from the provisions of section 37L. It clearly intended that the consent of the Attorney General should continue to be a prerequisite to the bringing of proceedings under Part VIIA. But that is not a valid basis for contending that it was intended by sec. 37L that the consent of the Attorney General alone was required, regardless of the provisions of the 1878 Act, that were then fully applicable to Hong Kong, or of any subsequent local enactment that might require an additional consent.

27. Sections 2 and 3 of the Colonial Laws Validity Act 1865 provide as follows:

"2. Colonial laws, when void for repugnancy

Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.

3. Colonial laws, when not void for repugnancy

No colonial law shall be or be deemed to have been void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament, order, or regulation as aforesaid."

28. In The Queen v. Marais [1902] AC 51 the Lord Chancellor said at p.54:

"In construing [the Colonial Laws Validity Act] an Act of Parliament or any provision thereof shall be said to extend to any Colony when it is made applicable to such Colony by the express words or necessary intendment of any Act of Parliament. The obvious purpose and meaning of that statute was to preserve the right of the Imperial Legislature to legislate even for the Colony, although a local legislature had been given, and to make it impossible, when an Imperial statute had been passed expressly for the purpose of governing that Colony, for the Colonial legislature in that sense to enact anything repugnant to an express law applied to the Colony by the Imperial Legislature itself."

29. It is beyond doubt that when the legislature enacted Part VIIA of the Immigration Ordinance it had no power to enact any provision that was repugnant to the 1878 Act or, indeed, any applicable Order in Council.

30. We were referred to Article VII of the Letters Patent:

"The Governor, by and with the advice of the Legislative Council, may make laws for the peace, order, and good government of the Colony."

31. We accept Mr. Cross's submission that in the light of the definition of "Colony" and "Hong Kong" in section 3 of the Interpretation and General Clauses Ordinance it was never necessary, when considering legislation such as the Immigration Ordinance which refers to 'Hong Kong' and 'Colony', to look to or rely on the 1878 Act for jurisdiction or to rely on the jurisdiction of the admiral thereunder, and that the only constraint on the legislative power of Hong Kong is the Colonial Laws Validity Act.

32. It was further contended on behalf of the Crown that a colonial legislature may validly enact legislation having extra territorial effect. In this connection we were referred to Pianka v. R. [1979] AC 197. Since, however, that case concerned the exercise of sovereign powers by the independent state, Jamaica, we do not think that it is of any assistance in resolving the matters raised on this appeal.

33. The question is not whether the legislature of Hong Kong was empowered to legislate as to matters within its territorial waters. Nor, indeed, is it whether, in enacting Part VIIA of the Immigration Ordinance, the legislature invalidly exercised its powers by seeking to pass legislation that was repugnant to an Imperial Act. We have not the slightest doubt that the enactment of Part VIIA of the Immigration Ordinance was a perfectly valid exercise by the legislature of its legislative powers. There is nothing in Part VIIA which is repugnant to the 1878 Act.

34. Mr. Cross submitted that, by virtue of Article VII of the Letters Patent, the legislature of Hong Kong had conferred on it unrestricted power to legislate with respect to any matter within the boundaries of its own territory - boundaries which it has itself defined.

35. He cited the following passage from the judgment of the Privy Council delivered by Lord Macmillan in Croft v. Dunphy [1933] AC 156 at p.163:

"Once 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."

36. However, the issue in Croft v. Dunphy was not whether Canada had enacted legislation which was repugnant to an Imperial Act, but whether, having full power to enact customs laws, the Canadian legislature had exceeded its legislative competence by introducing into such legislation provisions designed to operate beyond three marine miles of the coast of Canada. The passage to which Mr. Cross referred must be read in that context. In our opinion there is nothing in Croft v. Dunphy that lends support to the proposition that the conferral on a colonial legislature of a general power to legislate for its peace, order and good government empowers it to override any Imperial legislation that has application to it.

37. Mr. Cross submitted that, in any event, section 3 of the 1878 Act had never had any application to proceedings for an offence against section 37C(1)(a) of the Immigration Ordinance. He referred to the following opening words of section 3 read in conjunction with the definition of "offence" in section 7 of the Act:

"Proceedings for the trial and punishment of a person who is not a subject of Her Majesty and who is charged with any such offence as is declared by this Act to be within the jurisdiction of the Admiral shall not be instituted...." (Mr. Cross's emphasis)

38. Section 7 defines "offence" as follows:

"'offence' as used in this Act means an act neglect or default of such a description as would, if committed within the body of a county in England, be punishable on indictment according to the law of England for the time being in force."

39. This submission rested on two bases. First, the offence created by section 37C(1)(a) has no equivalent in England, but is peculiar to Hong Kong and, secondly, an offence which is committed by entering the territorial waters of Hong Kong is, by its very nature, not one, such as murder, wounding or robbery, that is capable of being committed within the body of a county in England.

40. If the interpretation for which the Crown contends be correct, the conclusion seems inescapable that Parliament must have intended that the leave of the Governor was a prerequisite to the commencement of proceedings for the trial of such offences as are declared to be indictable in England, but that his leave was not necessary where proceedings were to be instituted for the trial of any offence created by colonial legislation which had no counterpart in the law of England.

41. We do not think that that can possibly have been Parliament's intention. Such an interpretation would defeat the very object, which section 3 of the 1878 Act sought to attain, of permitting proceedings against a foreign national for an offence committed within territorial waters of a colony to commence only after the policy implications of those proposed proceedings had been considered by the Governor. Furthermore, it is plain from Schedule 2 of the Interpretation and General Clauses Ordinance, which specifies the boundaries of Hong Kong, that an offence created by section 37C(1)(a) is capable of being committed by a member of a crew whose ship enters enclosed waters from China or Chinese waters without passing through territorial waters as defined in that Ordinance. That an offence is also capable of being committed against sec. 37C(1)(a) by first entering territorial waters before entering enclosed waters does not render an offence under that section incapable of being committed within the body of Hong Kong.

42. In our view the definition of "offence" in the 1878 Act must be construed to give effect to Parliament's intention. Section 75 of the Interpretation and General Clauses Ordinance provides:

"75. An imperial enactment shall be judicially noticed as such and shall be read with such modifications as to names, localities, courts, officers, persons, moneys, penalties or otherwise as may be necessary to make the same applicable to the circumstances of the colony".

43. "Offence" must therefore be read as meaning any act, neglect or default which constitutes an indictable offence that is justiciable by the courts of England or Hong Kong.

44. Moreover, by enacting section 5 of the Criminal Law (Amendment) Ordinance 1990, the legislature plainly thought that the 1878 Act applied to Hong Kong. It is equally clear that, by amending the Crimes Ordinance at the same time by adding section 23C to require the consent in writing of the Governor to any proceedings for an indictable offence alleged to have been committed within the waters of Hong Kong on board or by means of a ship which is not a British ship by a person who is not a British national, the legislature intended to transpose, and effectively did transpose, the relevant provisions of section 3 of the 1878 Act to a Hong Kong Ordinance.

45. Mr. Cross's fall back position was that the Governor, by assenting on 2 August 1979 to the Immigration Ordinance (Amendment) (No. 3) Ordinance in which it was provided that the consent of the Attorney General was required for a prosecution under Part VIIA of the principal Ordinance, thereby assented to the delegation of his powers under section 3 of the 1878 Act to the Attorney General.

46. We have no hesitation in rejecting that submission. By assenting to the amending Ordinance the Governor was doing no more than giving his assent to its becoming law. It is impossible to say that the act of assent extended to one of delegation of his powers under different legislation.

47. For the reasons we have given we have come to the conclusion that the consent in writing of the Governor was a necessary prerequisite for the trial of each appellant. Since this consent was not obtained both convictions must be quashed.

48. We therefore allow the appeals, quash the convictions and set aside the sentences.