摘要(Abstract)：
I.INTRODUCTIONCo-location juxtaposed control arrangement has been discussed since2009 after the Express Rail Link Project at West Kowloon was passed by the Legislative Council.The project was originally planned to spend about 6.5billion HKD.It was not passed without controversy in 2009 as the choice of
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作者(Author): 梁美芬;
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参考文献(References)：
- 1 NEWS OF PEOPLE OBJECTED THE HIGH-SPEED RAILWAY IN KAM SHEUNG ROAD,at http://paper.wenweipo.com/2010/01/05/HK1001050013.htm(Last visited on June 20,2017).
- 2 LC Paper No.CB(4)1136/15-16(06).Paper on the construction of the Hong Kong section of the Guangzhou-Shenzhen-Hong Kong Express Rail Link prepared by the Legislative Council Secretariat(updated background brief).
- 3 Opposition voices mainly come from the residents in the affected areas of the construction sites.109
- 4 Article 1 of the Basic Law of HKSAR.
- 5 Under the Basic Law of HKSAR,the jurisdiction of Hong Kong is not absolute under“One Country,Two Systems”as Hong Kong is not an independent sovereignty.See article 19 and article 158 of the Basic Law.
- 6 Article 7 of the Basic Law states:“the revenues derived therefrom shall be exclusively at the disposal of the government of the region.”
- 7 Article 2 of the Basic Law:“the National People’s Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive,legislative and independent judicial power,including that of final adjudication,in accordance with the provisions of this law.”
- 8 Section 7 of the Shenzhen Bay Port Hong Kong Port Area Ordinance(2007).
- 9 DENNIS KWOK,at https://news.mingpao.com/pns/dailynews/web_tc/article/20151204/s00012/1449164000304(Last visited on June 20,2017).
- 10 MICHAEL TIEN,at http://hk.apple.nextmedia.com/news/art/20150519/19152847(Last visited on June 20,2017).
- 11 Prof.Mo Jihong expressed this view in a delegation in Hong Kong in March 2017 at City University of Hong Kong.
- 12 Paragraph 3,article 18 of the Basic Law.
- 13 Preclearance Act of Canada(S.C.1999,C20).
- 14 Id.,section 7(1):the Minister may designate preclearance areas where preclearance officers may preclear travelers and goods for entry into the US.
- 15 Id.,section 11(1):a preclearance officer may exercise the powers conferred and perform the duties imposed on the officer under this Act and the regulations only in a preclearance area.Section 11(2):outside a preclearance area,a preclearance officer may examine a means of transport that is subject to preclearance,including goods,currency and monetary instruments that are in,or that are to be loaded onto,that means of transport.Section 11(2):if a traveller refuses to go to a preclearance area,the preclearance officer may request a Canadian officer to take the traveller to the preclearance area,and the Canadian officer is authorized to do so.
- 16 Id.,section 6(2):when proceedings are instituted in Canada with respect to an act or omission that occurs in a preclearance area and that is an offence under Canadian law punishable by indictment or....
- 17 Id.,section 23(2):the senior officer may direct the traveller to be searched only if the officer suspects on reasonable grounds....
- 18 Id.,section 12(1):a preclearance officer is,if the officer acts on reasonable grounds,justified in doing what the officer is required or authorized to do under this act or the regulations,and in using as much force as is necessary for that purpose.
- 19 Id.,section 13:a preclearance officer may request a Canadian officer to assist in exercising the powers of search,examination,seizure and detention conferred on the preclearance officer by this act,and the Canadian officer is authorized to exercise those powers.
- 20 Id.,section 15(2):if requested to do so by a preclearance officer,a traveler must present to the officer any of their goods,remove any covering from the goods,unload any means of transport or open any part of it,or open or unpack any package or container that the officer wishes to examine;section 24(1):a preclearance officer may detain any traveler if the officer believes on reasonable grounds that the traveller has contravened section 33 or has committed an offence under an act of parliament that is punishable by indictment or on summary conviction.
- 21 Id.,section 19-22.
- 22 Id.,section 37.No decision of a preclearance officer to refuse preclearance,or to refuse the admission of persons or the importation of goods to the US,is subject to judicial review in Canada.
- 23 An Inspection of Juxtaposed Controls(UK)November,2012-March,2013,border force had developed good working relationships with the local authorities.Para 1.18 states,“border force had taken a number of steps to close the Lille loophole.They were liaising effectively with Eurostar and the local authorities to identify passengers who intended to evade immigration control.In addition,further measures were in operation on board high-risk services,which were assisting in identifying passengers seeking to abuse this travel route and preventing them from being able to enter the UK undetected.”At http://icinspector.independent.gov.uk/wp-content/uploads/2013/08/An-Inspection-of-Juxtaposed-Controls-Final.pdf(Last visied on June 20,2017).
- 24 The treaty between the government of the United Kingdom of Great Britain and Northern Ireland and the government of the French Republic concerning the implementation of frontier controls at the sea ports of both countries on the channel and Northern Sea,Le Touquet,February 4,2003(Le Touquet Treaty)and the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the French Republic concerning the carrying service weapons by the officers of the UK Border Agency on French territory in application of the treaty concerning the implementation of the frontier controls at the sea ports of both countries on the channel and Northern Sea,Paris,May 24,2011(Paris Treaty).
- 25 Home office response to the independent chief inspector’s report on the juxtaposed control:para 3.6 states,“border force regularly discusses site security with Eurotunnel and the French authorities,promptly raising any issues or concerns with them for action.”At http://icinspector.independent.gov.uk/wp-content/uploads/2013/08/Home-Office-Response-to-Juxtaposed-Report.pdf(Last visied on June 20,2017).
- 26 Id.,para 3.7 states,“border force will continue to only deploy officers to work in the boarding lanes if they have the required training and skills to carry out duties effectively according to legislation and designated powers.Border force has taken immediate action to reissue guidance to staff regarding the limits of the current UK control zone.”
- 27 John Vine CBE QPM,Independent Chief Inspector of Borders and Immigration,An Inspection of Juxtaposed Controls November2012-March 2013,11.
- 28 Section 7 states:“First,a court has jurisdiction to hear and determine any cause or matter,civil or criminal,arising from the operation of this ordinance in like manner as it has jurisdiction as regards the operation of the laws of Hong Kong in Hong Kong.Second,without prejudice to the generality of subsection(1),a court has the power to make a court order that adjudicates on,confers or imposes a right or obligation the territorial limit of which is confined to,or includes,the Hong Kong Port Area.”
- 29 The jurisdictional disputes in the cross-border well-known cases such as Cheung Tze-Keung,Telford Garden and Luk Yu Teahouse.None of these happened in the Shenzhen Bay Port.
- 30 “Due process”is a common law term referring to procedural justice.
- 31 Priscilla M F Leung,HKSAR Basic Law:Hybrid of Common Law and Chinese Law,Lexis Nexis 301(2007).
- 32 The author added the words“or transition”.
- 33 Ignazio Castellucc,Legal Hybridity in Hong Kong and Macau,Mc Gill Law Journal 672(2012).
- 34 AN SCHOLAR IN THE MAINLAND CHINA POINTED THAT THE CONSTRUCTION OF TWO CHECKS AT THE STATIONOF West Kowloon WILL STIMULATE CONTRADICTIONS AND SUGGESTED TO CHOOSE THE STATION OF FUTIAN,at http://hk.apple.nextmedia.com/realtime/news/20170423/56600269(Last visied on June 20,2017).
- 35 Vice-director of the Hong Kong Basic Law Committee Zhang Rongshun,Ming Pao Daily,April 23,2017,at A1.
- 36 Supra note 34.
- 37 Zhao Bingzhi,Outline of Reasonably Dividing Criminal Jurisdiction between the Mainland China and Hong Kong and Macao Special Administrative Regions,4 The Jurist 10(2002).
- 38 Ignazio Castellucc,supra note 33,677-678.
- 39 Id.,678.Ignazio Castellucc also described the legal situations of the two SARs as legal hybrids under one China.
- 40 Ignazio Castellucc,supra note 33,688.
- 41 Id.,713.
- 42 Criminal Appeal No.3 1139 of 1998(Guangdong Province Higher People’s Court).
- 43 Priscilla Leung,supra note 31,302.The crimes include kidnapping the sons of billionaires in Hong Kong and smuggling armed weapons across the border.THE BACKGROUND AND FACTS OF THE BIG SPENDER CASE,at www.isinolaw.com(Last visited on June 20,2017).
- 44 Id.,according to Hong Kong law,the victims must report crimes such as kidnap and rape,otherwise the police may not have reason to commence an investigation.In this case,the victim,a son of a billionaire in Hong Kong had not reported to the Hong Kong police,thus causing some difficulties for the Hong Kong police to initiate an investigation in Hong Kong jurisdiction.
- 45 NEWS ABOUT CHEUNG TZE-KEUNG’S KIDNAP OF LI ZEJU THE SON OF THE WEALTHY BUSINESSMAN LIJIACHENG IN 1998,at http://orientaldaily.on.cc/cnt/news/20131129/00176_005.html(Last visited on June 20,2017).
- 46 Paragraph 3 of article 6 of the Criminal Law of the PRC(Criminal Law)states:if a criminal act or its consequence takes place within the territory or territory or territorial waters or space of the People’s Republic of China,the crime shall be deemed to have been committed within the territory and territorial waters and space of the People’s Republic of China.
- 47 Cheung Tze-keung participated in a crime of illegal smuggling weapons from the mainland to Hong Kong.
- 48 Priscilla M F Leung,supra note 31,302.See also Priscilla Leung,The Big Spender Case,Hong Kong Lawyer(1999).
- 49 Lv Yanfeng,On the Principle of Interregional Judicial Assistance in Criminal Matters in China,5 Journal of Henan Administrative Institute of Politics and Law 64(2005).
- 50 PRISCILLA MF LEUNG,COMPARATIVE LEGAL STUDIES BETWEEN HONG KONG,TAIWAN&MAINLAND CHINA,at 177-183(Joint Publishing House,2003).
- 51 Lv Yanfeng,supra note 49,66.
- 52 Priscilla Leung,supra note 48.
- 53 Lv Yanfeng,supra note 49,66.
- 54 Han Depei&Huang Jin,Establishing the Law on Interregional Conflict to Solve the Interregional Legal Conflict among the Mainland China,Taiwan,Hong Kong and Macau,4 Wuhan University Journal(Philosophy&Social Sciences)58(1993).
- 55 Zhao Bingzhi&Tian Hongjie,Research on the Conflict of Criminal Jurisdiction between the Mainland China and Hong Kong,6The Jurist 102(1999).
- 56 Priscilla Leung,supra note 31,“the better argument with regard to the exemption application of article 7 of the PRC Criminal Law to Hong Kong permanent residents is with reference to paragraph 1 of article 6 of the Criminal Law states the following:[t]his law shall be applicable to anyone who commits a crime within the territory and territorial waters and space of the People’s Republic of China,except as otherwise specifically provided by law.The term‘except as otherwise specifically provided by law’provides for the separate regulation of the autonomous regions and the laws of Hong Kong and Macau.By adopting this exemption clause,it can be argued that the whole of the Criminal Law would not apply to Hong Kong nor to the Hong Kong people and thus there is no need to reinterpret article 7 of the Criminal Law to serve the purpose of‘One Country,Two Systems’.The same argument applies to other national laws not listed in Annex III of the Basic Law,including those without‘exemption clauses’.The Basic Law,as a‘special’national law of the PRC prevails over other general national laws in accordance with Chinese legal principles.The Criminal Law is a‘general’national law and thus the Basic Law prevails.Annex III does not stipulate that the Criminal Law is to applied to Hong Kong nor do other kinds of Chinese laws not listed in the Annex.Those Chinese laws,no matter how their substance may appear to be possibly applicable to Chinese citizens which include HKPRs,they should not apply to HKSAR nor HKPRs in the territories of Hong Kong unless those HKPRs commit the crime or conduct the act on the mainland,then subject to the principle of‘the venue where the acts committed’,the Chinese courts can then assert jurisdiction.One must be clear that this is because the acts or parts of the acts are committed on the mainland but not because the HKPRs are subject to the Chinese Criminal Law even though they commit crimes in Hong Kong.”
- 57 Priscilla Leung,supra note 31,305,306.Another significant case involving assertion of jurisdiction between the Chinese courts and the Hong Kong courts is the Luk Yu Teahouse Murder Case.
- 58 Zhao Bingzhi,supra note 37,110.
- 59 Zhao Bingzhi&Tian Hongjie,supra note 55,104.
- 60 Priscilla Leung,supra note 31,306.The following case analysis is quoted from Priscilla Leung,Luk Yu Teahouse Murder Case,Hong Kong Lawyer 43-48,April Issue(2003).
- 61 THE SUMMARY OF GREAT EVENTS OF 1998 AND 1999 IN HONG KONG,at http://www.info.gov.hk/info/sar2/rule_c.htm(Last visited on June 20,2017).
- 62 Priscilla Leung,supra note 31,Chinese court asserts jurisdiction if the accused is a mainland Chinese citizen or the criminal act is done in the mainland jurisdiction.
- 63 Zhao Bingzhi,supra note 37,113.
- 64 At http://hk.on.cc/hk/bkn/cnt/news/20160628/bkn-20160628102342644-0628_00822_001.html(Last visited on June 20,2017).
- 65 Priscilla M F Leung,supra note 31,307-308;and Zhao Bingzhi,supra note 37,103.
- 66 Id.,308.
- 67 Id.,this principle was implemented after the Second World War when more and more people were demanding the abolition of capital punishment.Hence,the principle has been applied to countries where there is no capital punishment.
- 68 Id.,309.
- 69 HUANG JIN&HUANG FENG,STUDY ON INTERREGIONAL JUDICIAL ASSISTANCE,at 234(China University of Political Science and Law Press,1993).
- 70 Zhao Bingzhi&Tian Hongjie,supra note 55,102-103.
- 71 ZHAO BINGZHI&TIAN HONGJIE,RESEARCH ON THE CONFLICT OF CRIMINAL JURISDICTION BETWEEN THEMAINLAND CHINA AND HONG KONG:THE REFLECTION ON CHEUNG TZE-KEUNG CASE,in GAO MINGXUAN&ZHAO BINGZHI,STUDY ON CHINESE INTERREGIONAL CRIMINAL LAW AND CRIMINAL JUDICIAL ASSISTANCE,at142,186(Law Press,China Fangzheng Press,2000).
