A MAN jailed for three years for bringing illegal immigrants into Hongkong is asking to be released by the High Court on the grounds that the Legal Department did not obtain the Governor's consent before prosecuting him. About 200 similar cases are awaiting the outcome of this test case. It arose because the District Court ruled last year there should be consent from the Governor as well as the Attorney-General before a foreigner on board a foreign ship committing an offence in Hongkong waters can be prosecuted. Tse Sun-miu, 49, an illegal immigrant, was jailed by the District Court last year for being a crew member on board a fishing vessel smuggling 14 unauthorised entrants into Hongkong last April. Tse's counsel, Mr Daniel Fung, QC, leading Mr Philip Dykes, said yesterday that historically, special jurisdictional considerations had applied where an offence was committed in territorial waters and the vessel was not British and the defendant not a British subject. Where the offence was alleged to have been committed in territorial waters, the leave of the Governor was required for a prosecution to go ahead. Mr Fung said the Governor had not given his consent prior to Tse's prosecution. The only consent given was that of the Attorney-General, which would have been sufficient if the applicant had not been a foreign national or his ship had been a British ship. Counsel said failure to obtain the consent meant no court had the jurisdiction to try Tse and so his conviction was void. Last month, after a similar case was thrown out by the District Court, the Governor made an authorisation and named a Crown counsel as his delegate for exercising the consent powers. Defendants in similar cases awaiting trial have now been charged again and the prosecutions recommenced with the Governor delegating his power. Mr Fung said Tse's case had been brought before Mr Justice Mortimer because the Court of Appeal had no power to issue writs of habeas corpus or conduct a judicial review in this case. The hearing continues.
