THE LAW SOCIETY OF HONG KONGS SUBMISSIONS ON
THE FUGITIVE OFFENDERS BILL
COMMENTS BY THE ADMINISTRATION [by reference to the
headings in the Law Societys submission]
The Present Situation
Under this heading the Law Society have queried Hong Kongs capacity to conclude reciprocal extradition arrangements and have questioned the scope of the Bill.
Hong Kong is presently negotiating reciprocal extradition arrangements in the form of bilateral agreements under the entrustment or authority of the United Kingdom. These negotiations are being conducted on the basis of a model agreement which has been agreed with the Chinese side in the Joint Liaison Group. The PRC has agreed that Hong Kong should, on its own, negotiate and conclude a network of reciprocal extradition arrangements which will only be applicable to Hong Kong and the other jurisdiction concerned. Arrangements which are brought into force before 30 June 1997 will remain in force after that date; and the negotiation process in respect of other arrangements will continue beyond 30 June 1997.
The purpose of the Bill is to enable effect to be given to these arrangements. After enactment of the Bill the arrangements will be brought into force thus permitting requests by and to Hong Kong to be dealt with.
Doctrine of Speciality
The Law Societys comments under this heading in fact relate to the death penalty. In all the agreements thus far signed or under negotiation there is [with one exception] an Article along the following lines -
If the offence for which surrender is requested is punishable according to the law of the requesting Party with the death penalty, and if in respect of such an offence the death penalty is not provided for by the law of the requested Party or is not normally carried out, surrender may be refused unless the requesting Party gives such assurances as the requested Party considers sufficient that this penalty will not be imposed or if imposed will not be carried out.
The subordinate legislation made pursuant to clause 3(1) will annex the relevant agreements. The death penalty exception will accordingly qualify the procedures in the Ordinance. The Governor will have to consider the death penalty exception when deciding to make an order for surrender under clause 13.
The exception referred to above is the agreement with Malaysia. Malaysia would not agree to including a death penalty exception in the agreement itself. Instead there will be an Exchange of Notes in which Malaysia acknowledges that Hong Kong will be able to refuse surrender in death penalty cases unless satisfactory assurances that the death penalty will not be carried out are given.
Most fugitives are bail risks. The Courts have consistently held that bail in extradition cases should only be granted in exceptional cases [see R v Spilsbury 1898 2 Q.B. 615 at p. 622, R v Phillips 1992 A.E.R. 275, Re Nazir Chinog Divisional Court CO/792/89]. Clause 10(5) simply reflects the approach of the Courts to these matters. If special circumstances can be established bail will be available.
The Law Societys comments in fact relate to the prima facie case requirement [see clause 10(6)(b)(iii)].
The extradition hearing is not a trial. The Court of Committal need only be satisfied that the requesting jurisdiction has submitted a prima facie case. There is accordingly no point in the fugitive adducing evidence as the Court is not in a position to weigh the documentary evidence submitted by the Requesting jurisdiction against any evidence adduced by the fugitive. This provision will accordingly save Court time.
It should be noted that the fugitive may query whether the evidence submitted by the requesting jurisdiction in fact amounts to a prima facie case; and of course he is entitled to argue that one or more of the grounds appearing in clause 5 exist.
This clause is the same as section 10(2) of the Extradition Act 1989 [UK]. It can only operate where Hong Kong has advance instructions to appeal in the event of an adverse decision by the Court of Committal. The fugitive will then be detained for the purposes of that appeal. But for this provision it would be very difficult for the requesting jurisdiction to appeal as the fugitive, once discharged, would in most cases leave Hong Kong.
This clause is based on section 16 of the Extradition Act 1989 [UK]. There may be good reasons why the fugitive has not been surrendered within the time limits referred to in this clause. He may be too sick to travel; he may have submitted voluminous documentation for consideration by the Governor as to why an order for surrender should not be made. It is therefore important for the matter to be remitted to the Court for decision; it would be inappropriate for there to be an automatic discharge.
A member of the Attorney Generals Chambers will normally represent the requesting jurisdiction. In rare cases the requesting jurisdiction will be privately represented. In these cases there may be a need for the Attorney General to be also represent.
The First Schedule
Item 18 : This item reflects the fact that one of our negotiating partners [Canada] describes certain computer offences in this way. Extradition from Hong Kong will only be available for such offences if the underlying conduct would also be criminal in Hong Kong. In other words it is the conduct rather than the description of the offence which is critical. [See definition of relevant offence in clause 2(2)]
Item 43 : The Law Societys understanding is correct; if a Convention is applicable to Hong Kong the domestic law of Hong Kong will prescribe offences created by the Convention if the Convention obliges Parties to do so.
The court of committal hears the case in a like manner, and has the same jurisdiction and powers, as if the fugitive were charged with an indictable offence committed in Hong Kong (clause 10(2) of the Bill). The recently enacted Costs in Criminal Cases Ordinance (Ord. No. 39 of 1996, not yet commenced) provides that where a magistrate inquiring into an indictable offence determines not to commit the defendant for trial, he may order that costs be awarded to the defendant. It follows that the magistrate hearing the extradition committal proceeding will have like power to award costs to the fugitive if he determines not to commit him for surrender.
If a fugitive the subject of an order of committal successfully overturns that order via habeas corpus or judicial review proceedings, then he may be awarded costs under the Rules of the Supreme Court (Cap. 4 sub. leg.).
Any costs awarded will have to be paid by Hong Kong.
Last Updated on 18 Apr, 1997