For discussion on 11 November 1996
LegCo Panel on Security
Garrison and the Law
Introduction
The paper provides information on matters relating to garrison and the law. Members may also wish to refer to the paper discussed at the meeting of this Panel on 2 April 1996 (see Annex).
The Basic Law
2. Article 14 of the Basic Law provides that the Central Peoples Government (CPG) shall be responsible for the defence of the Hong Kong Special Administrative Region (HKSAR). The HKSAR Government shall be responsible for the maintenance of public order in the Region. Military forces stationed in the HKSAR shall not interfere in the local affairs of the Region. The HKSAR Government may, when necessary, ask the CPG for assistance from the garrison in the maintenance of public order and in disaster relief. In addition to abiding by national laws, members of the garrison shall abide by the laws of the HKSAR. Expenditure for the garrison shall be borne by the CPG.
Criminal Jurisdiction
3. A member of the British Forces in Hong Kong will normally be tried in Hong Kong courts if he commits an offence under Hong Kong law. However, under the UK Forces (Jurisdiction of Colonial Courts) Order 1965, if the alleged offence is against another member of the garrison, or is against the property of the UK government or other garrison members, or arises out of and in the course of his duty, the case will be dealt with under military jurisdiction. The Commanding Officer of the British Forces may waive military jurisdiction and hand over a case to be dealt with by Hong Kong courts even where one of the exceptions above applies. He will normally do so if an offence resulted in a serious incident or injury to a civilian, or if there is a civilian accomplice.
4. We see no reason why these principles to determine criminal jurisdiction over members of the future Chinese garrison should not continue to apply after 1997: they have been firmly in place in our legal system for more than 30 years and regarded as fair, sensible and workable. Such arrangements are also consistent with BL 14, as well as BL 19 which provides that "the courts of the HKSAR shall have jurisdiction over all cases in the Region, except that the restrictions on their jurisdiction imposed by the legal system and principles previously in force in Hong Kong shall be maintained".
Civil Jurisdiction
5. Members of the British Forces are subject to the civil jurisdiction of Hong Kong courts when acting in their private capacities. They are also liable for any acts or omissions in the course of their duties and can be sued locally. The British Garrison is vicariously liable for torts committed by military personnel in the course of their employment. Although the British Government is immune from suit in Hong Kong courts under the Crown Proceedings Ordinance (Cap.300), in practice, civil claims against the military are normally dealt with by administrative settlement through the claims branch of the British Forces. If this fails, the claimant may pursue his case in the UK civilian courts in accordance with the UK Crown Proceedings Act 1947.
6. The present arrangement under Cap.300 is not satisfactory. But it can work because the common law system, in particular the law of tort and the law of contract, is substantially the same in Hong Kong and the UK. After 1997, where a member of the PLA commits a tortious act which arises out of and in the course of duty, it is important that he and the Garrison collectively should both be liable and be subject to the jurisdiction of Hong Kong courts. We believe that this approach is consistent with Articles 8, 14, 18 and 19 of the Basic Law. If the case is to be heard in Mainland courts which operate under an entirely different legal system, it cannot be adjudicated in accordance with common law principles as at present.
References to the Military in Hong Kong Law
7. There are over 100 items of primary and subsidiary legislation in Hong Kong that contain provisions affecting the British Forces, some of which confer upon them powers and immunities necessary to carry out their duties. A summary of these provisions is set out in the paper discussed at the meeting of this Panel on 2 April. These provisions will need to be carefully examined and adapted to ensure that they will not contravene the Basic Law, and will suit the circumstances of the HKSAR after the handover. We are dealing with the matter under the overall adaptation of laws exercise and have put specific adaptation proposals to the Chinese side through the Sino-British Joint Liaison Group.
8. It is important that the military should only exercise powers expressly conferred by HKSAR statute when they are exercising their functions laid down in BL 14.
Interface with the Civilian Authority
9. BL 14 clearly provides that the HKSAR Government shall be responsible for Hong Kongs internal security. Our law enforcement agencies and emergency services have full capability to deal with any conceivable threat to Hong Kong peoples lives and property. In the highly unlikely and extremely remote circumstances that the HKSAR needed to call upon the assistance of the future Chinese garrison, the military should be asked to perform a specific task. The civilian authority should continue to be responsible for the overall control and co-ordination of incidents as at present, although civilian and military chains of command would be respected (i.e. the military will not pass orders to the HKSAR officials, while personnel of the Chinese forces will be commanded by the garrison). In carrying out their duties, members of the PLA shall only exercise the powers conferred upon them under Hong Kong law.
Contacts with the Chinese Side
10. During our contacts with Chinese defence and legal experts, we have briefed them on Hong Kongs legal and judicial systems, the criminal and civil jurisdiction of Hong Kong courts over military personnel, Hong Kong laws affecting the military, as well as our ideas for the future framework. The Chinese side gave us an informal briefing on 17 October on the drafting of the Garrison Law. We hope that there are future opportunities for us to discuss with the Chinese side on this urgent and important matter before the Law itself is finalised.
Security Branch
November 1996
Last Updated on 21 August 1998
