LegCo Paper No. CB(2) 2507/96-97
(The minutes have been seen
by the Administration)
Ref : CB2/BC/1/96/S2
Bills Committee on the Fugitive Offenders Bill
Minutes of the Sixth Meeting held on Monday, 20 January 1997 at 2:30 pm
in Conference Room A of the Legislative Council Building
Hon James TO Kun-sun (Chairman)
Hon Albert HO Chun-yan
Hon Bruce LIU Sing-lee
Members absent :
Public Officers attending:
Clerk in attendance
Mr Alan CHU
- Principal Assistant Secretary for Security
Mr John HUNTER
- Deputy Principal Crown Counsel
- (International Law)
Mr Geoffrey FOX
- Senior Assistant Law Draftsman
- Ms Lena CHI
Deputy Principal Crown Counsel
- (Extradition and Treaties)
Staff in attendance
Mrs Sharon TONG
- Chief Assistant Secretary (2)1
Mr Stephen LAM
- Assistant Legal Adviser 4
- Mr Paul WOO
- Senior Assistant Secretary (2) 5
* other commitments
I.Meeting with the Administration
Update on the Jerry LUI Kin-hongs case
Deputy Principal Crown Counsel (Extradition and Treaties) (DPCC(E&T)) informed members that an appeal to the US court was underway. The government of US and Hong Kong would submit papers in relation to the appeal by 31 January 1997 and by 14 February 1997 file any further reply to the defences submissions and replies. The date for the hearing had yet to be fixed. DPCC(E&T) also advised that there was a separate case in Connecticut in which the post reversion issues contended in LUIs case would likely be raised again. She said that certainty in the area in relation to continuity of Hong Kongs extradition arrangements which would be brought in place by the enactment of this Bill would be of great assistance to the LUIs appeal case and the other pending cases. In reply to the Chairmans enquiry, DPCC(E&T) said that she was informed that transmittal papers were being prepared for the US President for the newly signed US/HK bilateral agreement to go to the US Senate.
Follow-up on clause 3(4)
2.Arising from the deliberations at the last meeting, Assistant Legal Adviser said that he had discussed with Senior Assistant Law Draftsman (SALD) and both agreed that clause 3(4) could be amended so that it could be brought in line with section 34(3) of the Interpretation and General Clauses Ordinance (Cap. 1). A draft Committee stage amendment (CSA) would be prepared by the Administration.
(Post-meeting note: A draft CSA to amend clauses 3(4) and consequentially 3(5) has been circulated under LegCo Paper No. CB(2) 1190/96-97(01).)
Continue with clause-by-clause examination of the Bill
3.Mr Albert HO Chun-yan enquired why the "double criminality" requirement was not expressly stated in clause 5(1). Deputy Principal Crown Counsel (International Law) (DPCC(IL)) and SALD responded that the court of committal had to be satisfied, first and foremost, that the offence in question must be a relevant offence, otherwise the proceedings would end. The court would then proceed to examine whether any of the general restrictions in clause 5 applied. The threshold, therefore, was the existence of a relevant offence and sufficient evidence of that offence which would justify a fugitives trial. All bilateral agreements dealt with double criminality i.e., relevant offence, in a separate article to the general restrictions on surrender. The UK and Australian legislation, which Hong Kong followed, also dealt with the two separately.
4.Mr Bruce LIU Sing-lee enquired if restriction on surrender on grounds of humanitarian consideration ould also be laid down in clause 5(1). DPCC(IL) replied that, unlike the traditional strict grounds for refusal, humanitarian considerations varied in agreements. It was difficult to put them in the legislation because no single formulation could match up with all the agreements. It was desirable to leave them to the decision of the executive. DPCC(IL) added that in fact some jurisdictions did not prefer to set out humanitarian issues in the agreement. They were nonetheless specified in the model agreement which Hong Kong used and thus far Hong Kong had been successful in persuading the other parties to include some part of them in the terms of the agreements concerned.
5.In reply to the Chairmans query on the use of the word "appears" in clause 5(1), SALD said that it was the terminology used in section 6 of the UK Extradition Act 1988. It referred to a lower test which would be applied by an appropriate authority than such other term as "if satisfied beyond reasonable doubt" etc.
6.In response to members questions, DPCC(IL) said that both clauses 5(1)(a) and 5(1)(c) reflected the terms used in the bilateral agreements which covered offences of a political nature and cases where there was a desire to prosecute people for their political opinions etc. There might be overlapping areas in these clauses and any arguments would be decided by the court.
7.As to clauses 5(1)(c) and 5(1)(d), DPCC(IL) said that they followed the same wordings of the UK legislation. He advised that clauses 5(1)(a) and 5(1)(c) concerned whether a fugitive should be prosecuted at all for a political offence. Clause 5(1)(d), on the other hand, meant that while a fugitive should be prosecuted for the offence, he might, if surrendered for trial in the requesting jurisdiction, be prejudiced because of his race, religion, nationality or political opinions.
8.Mr Albert HO Chun-yan pointed out that, by virtue of clauses 5(2)(c) and 5(3), a fugitive could be tried, after being surrendered to the requesting jurisdiction, for any other relevant offence, subject to a consent being given by the Governor. He said that the fugitive would therefore be deprived of the protection provided under clause 5(1). DPCC(IL) responded that these clauses were to cater for situations where a fugitive had been surrendered and then another relevant offence came to light, and it would not be sensible to send the person back to the requested jurisdiction for a hearing. He remarked that these provisions also followed the UK legislation and the relevant agreements. DPCC(E&T) supplemented that the safeguard was that the Governor must be satisfied that the new proposed offence was an extraditable offence and an order could have been lawfully made under the provisions of the Ordinance. Examples covered by these provisions would be cases where a fugitive wanted for an original offence was later charged for a lesser offence, or cases where the relevant facts and evidence had already been adduced in the committal stage of the requested jurisdiction. Referring to Mr HOs concern about the possibility of a fugitive being tried for a second more serious offence, DPCC(E&T) said that extradition was essentially a process based on mutual trust and understanding that the fugitive would receive a fair trial in the requesting jurisdiction. Any bilateral agreement could not last long if a deviousness to circumvent the agreement should occur.
9.The Chairman enquired if specific measures by the Governor for the protection of the fugitive could be written into clauses 5(2) and 5(3). DPCC(IL) said that should any breach of the agreement by a requesting jurisdiction happen, a complaint and representations would indeed be made. In addition, the bilateral agreements provided that the requested party, in considering whether to consent to a request to try the fugitive for another offence, could insist on production of the supporting documents and evidence against the fugitive which the requesting party had to present to the court. The HK/Australian agreement, for example, had provisions which dealt with situations described under clause 5(2)(c).
10.The Chairman and Mr Albert HO Chun-yan maintained that the fugitive should have an express right to be heard for any other offence proceedings being instituted by the requesting jurisdiction, before the Governor decided whether consent should be given under clause 5(2)(c). They suggested that the Governor, upon receiving a request from a requesting jurisdiction for consent pursuant to clause 5(2)(c), should give notice to the fugitive and specify a period within which representations could be made by the surrendered fugitive or his representative. The Governor could then make a decision after taking the representations into account. The Administration undertook to consider an amendment along this line.
(Post-meeting note: A draft CSA to amend clauses 5(2)(c) and 5(4)(b) has been prepared by the Administration and circulated under LegCo Paper No. CB(2) 1190/96-97(01). The relevant provisions give the surrendered fugitive (or his representative) 21 days to make representations to the Governor.)
11.On the drafting point, the Administration agreed to amend both clauses 5(2) and 5(4) by deleting "an agreement made with that place" and substituting "the prescribed arrangements concerned".
(Post-meeting note: A draft CSA has been prepared and circulated under LegCo Paper No. CB(2) 1211/96-97(01).)
12.DPCC(IL) clarified that "any other channel approved by the Secretary of State" referred to, apart from the diplomatic channel, the Consulates in Hong Kong which was a more efficient means to transmit requests made by or to Hong Kong.
13.In response to members query, the Administration agreed to delete "by any person to whom it is directed or" such that only an authorized officer might execute a warrant issued under clause 7.
(Post-meeting note: A draft CSA to clause 7(3), with two consequential amendments to clause 8(1), have been circulated under LegCo Paper No. CB(2) 1190/96-97(01).)
Clauses 8 and 9
14.DPCC(IL) advised that it was a usual provision in agreements and in domestic law to permit, on arrest, the seizure of property that the fugitive had under his control to ensure that evidence of criminal activities was not lost. Usually, this proceeded by way of provisional arrest under clause 7(1)(b) because of the urgency involved in extradition cases. A fugitive who considered that the properties being seized was not material as evidence of the offence could make representation to the Governor and judicially review the Governors decision to make an order under clause 9 for the disposal of the property.
15.In reply to members queries, DPCC(IL) said that the power of search and seizure under clause 8 could only be exercised after the fugitive was arrested pursuant to a provisional, or a normal warrant of arrest. An application for provisional arrest was made on the basis that a formal request for the surrender of the fugitive would follow. The application should contain the text of the warrant of arrest in the requesting jurisdiction, a judgment of conviction, a statement of the penalty for the offence and such other information as might be required. Concerning clause 8(1) as opposed to 8(2), DPCC(IL) said that the former empowered an arresting officer to search and seize pursuant to a warrant of arrest whereas the latter called for a stricter test in that a specific search warrant was required from a magistrate. Clause 8(2) catered for situations where it was believed that property material as evidence in proving the offence could be found at any other place rather than on or under the apparent control of the fugitive. The magistrate would therefore issue a separate search warrant to a warrant of arrest. Under clause 8(2), the power of search and seizure could be exercised even though the fugitive was not under arrest. Referring to a further question, SALD said that as there would be a lapse of time between the provisional arrest of a person and the issue of an authority to proceed by the Governor, it might not be possible to seize any material evidence if the power to conduct search and seizure could only be evoked after an authority to proceed had been issued. The Chairman suggested that clause 8(2)(a) could be amended to the effect that "any property that may be material as evidence in proving an offence to which a request for surrender has been made or will be made". The Administration agreed to consider a draft CSA along the lines suggested.
(Post-meeting note: A draft CSA has been circulated under LegCo Paper No. CB(2) 1190/96-97(01). Clause 8(1)(a) is also amended to replace the reference to request for surrender in that clause with a reference to the warrant by virtue of which the fugitive is arrested.)
|16.Referring to clause 9(2), the Chairman opined that the power to dispose of the property seized under clause 8 should not rest with the Governor. DPCC(IL) agreed to prepare a draft CSA to the effect that the power should preside in the magistrate.
(Post-meeting note: A draft CSA has been circulated under LegCo Paper No. CB(2) 1190/96-97(01).)
|17.The Chairman remarked that the Administration should comprehensively review the power of search and seizure when considering the drafting of the future Mutual Legal Assistance in Criminal Matters Bill.
18.In answer to the Chairmans enquiry, DPCC(IL) said that in exercising the power conferred by clause 10(3) in respect of the person arrested and in relation to the fixing of a reasonable period after which the person would be discharged from custody, the court of committal should have regard to the period specified in the prescribed arrangements with the other jurisdiction. He said that it was usual to specify in the arrangements that the supporting documents be provided within a period of 45 to 60 days. The court was obliged to take that into consideration in determining the period referred to in clause 10(3).
19.The Chairman and Mr Albert HO Chun-yan said that clause 11(1) specified a maximum period of 15 days without extension within which the requesting jurisdiction could institute appeal proceedings to the High Court (the first appeal). However, there was no similar stipulation in clause 11(7) as to the period required for subsequent appeals to the Court of Appeal and to the Privy Council. The Chairman said that there being a strict requirement as to the first appeal, it was only fair that a definite period less than 15 days should be set for the subsequent appeals. DPCC(IL) replied that clause 11(8) restricted the period for instituting subsequent appeal proceedings to a period not longer than the maximum period specified under the law of Hong Kong. He undertook to review the drafting of clauses 11(7) and 11(8) to see if it was necessary to specify the time limits for institution of appeal proceedings.
(Post-meeting note: Draft CSAs to amend clause 11 [dealing with appeals by the requesting jurisdiction] and clause 12 [dealing with appeals by the fugitive] have been circulated under LegCo Paper No. CB(2) 1190/96-97(01). The draft CSAs set a time limit of 14 days for appeals to the Court of Appeal and the Privy Council.)
|20.Mr Albert HO Chun-yan said that in the absence of express statutory stipulation to the contrary, there should be no presumption against bail under clause 11. DPCC(IL) undertook to revert on the matter.
21.As there were parallel provisions in both clauses 11 and 12, DPCC(IL) said that the points raised as regards clause 11 would be taken into account in reviewing clause 12. (Post-meeting note under paragraph 19 is relevant.)
22.Concerning the progress on the re-enactment of application for habeas corpus, the Chairman suggested that the subject should be followed up by the LegCo Panel on Administration of Justice and Legal Services.
(Post-meeting note: The matter has been referred to the Panel on Administration of Justice and Legal Services for follow-up action.)
23.In response to the Chairmans enquiry, DPCC(IL) advised that a fugitive who had been committed pursuant to an order of committal could make submission to the Governor against the issue of an order for surrender, after all appeal proceedings had been dispensed with. The Governor would then decide on whether or not an order for surrender should be made.
II.Date of next meeting
24.The next meeting was scheduled for 28 January 1997 at 4:30 pm.
III.Close of meeting
25.The meeting closed at 4:35 pm.
5 March 1997
Last Updated on 13 Jun, 1997