LegCo Paper No. CB(2) 1220/96-97
(The minutes have been seen by
the Administration)
Ref : CB2/BC/1/96/S2
Bills Committee on the
Fugitive Offenders Bill
Minutes of the Fourth Meeting held
on Friday, 20 December 1996 at 10:45 am
in Conference Room B of the Legislative Council Building
Members Present :
Hon James TO Kun-sun (Chairman)
Hon Emily LAU Wai-hing
Hon Albert HO Chun-yan
Hon Bruce LIU Sing-lee
Members Absent:
Hon Ronald ARCULLI, OBE, JP*
Hon CHEUNG Hon-chung*
Public Officers Attending :
- Mr Alan CHU
- Principal Assistant Secretary for Security
- Mr John HUNTER
- Deputy Principal Crown Counsel
(International Law)
- Mr Geoffrey FOX
- Senior Assistant Law Draftsman
- Mr Wayne WALSH
- Senior Crown Counsel
Clerk in Attendance :
- Mrs Sharon TONG
- Chief Assistant Secretary (2)1
Staff in Attendance :
- Mr Stephen LAM
- Assistant Legal Adviser 4
- Mr Paul WOO
- Senior Assistant Secretary (2) 5
I.Meeting with the Administration
(LegCo Paper No. CB(2) 654/96-97(02) - The Law Society of Hong Kong's submission
LegCo Paper No. CB(2) 675/96-97 - The Hong Kong Bar Association's submission
LegCo Paper No. CB(2) 751/96-97(02) - Administration's response to the Law Society's submission
LegCo Paper No. CB(2) 751/96-97(03) - Administration's response to the Bar's submission
LegCo Paper No. CB(2) 654/96-97(01) - information papers from the Administration
The Bill)
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1.Deputy Principal Crown Counsel (International Law) (DPCC) elaborated on the Administration's response to the comments of the Law Society of Hong Kong (the Society) on the Bill: | Action |
The present situation
2. DPCC said that there was a misunderstanding on the part of the Society as to the capacity of Hong Kong to conclude reciprocal arrangements for the surrender of fugitive offenders. He clarified that Hong Kong would have a separate and discreet regime for the surrender of fugitive offenders in which it could negotiate and conclude a network of bilateral agreements on its own which would only be applicable to Hong Kong and the other jurisdictions concerned. The Bill, after its enactment, was to give effect to the arrangements.
Doctrine of speciality
3. DPCC stated that the Society's comments under this heading actually referred to the death penalty exception. He explained that in all the bilateral agreements signed or under negotiation there was a death penalty exclusion, which would be given effect to in the subsidiary legislation made pursuant to clause 3(1) of the Bill. The Governor, when deciding to make an order for surrender, would have to consider the question as to whether there was sufficient assurance from the requesting jurisdiction that the death penalty would not be imposed or carried out.
Clause 10(5)
DPCC said that the requirement under this clause that bail could only be available in exceptional circumstances was in keeping with what the courts had consistently held. The Chairman and Mr Albert HO Chun-yan queried why there should be an arbitrary distinction as regards the granting of bail in extradition and non-extradition cases, solely on the ground that fugitives were extremely bail risks. They held that in many non-extradition cases, the suspects concerned were also bail risks. The courts in deciding whether bail should be granted to a fugitive would weigh the various risk factors peculiar to the case. But the fact that the person was a fugitive should not necessarily reverse the procedures and burden of proof as normally applied in non-extradition cases. Mr HO maintained that as a matter of legal policy, the same principle should apply in both types of cases.
4.Senior Assistant Law Draftsman(SALD) said that an equivalent of clause 10(5) of the Bill was section 15(6) of the Australian Extradition Act 1988, which stated that a magistrate should not remand a person on bail under that section unless there were special circumstances justifying such remand. There was UK case law reflecting this provision. Matters regarding bail were not dealt with in the bilateral agreements.
5. DPCC remarked that clause 10(5) reflected existing approach of the courts to the matters. It also had an added advantage of avoiding too much waste of the courts' time on applications for bail. He advised that if this provision was to be removed, the actual situation regarding bail would remain basically the same. He noted members' concern on the matter.
Clause 11
6. Concerning statement of case under this clause, DPCC said that the court of committal's function was to examine the documentary evidence submitted by the requesting jurisdiction and to commit a person if it was satisfied that the evidence represented a prima facie case. The committal hearing was a hearing to decide whether the person should go to trial, rather than a trial itself. Therefore, whereas a fugitive could adduce evidence, the court was not in a position to balance that evidence against the evidence submitted by the requesting jurisdiction. The fugitive might indeed query whether there was in fact prima facie evidence adduced by the requesting jurisdiction, such as where the evidence was inherently contradictory. In such case it would be a matter for the Attorney General (AG) to handle. Senior Crown Counsel (SCC) supplemented that the documentary evidence presented by a requesting jurisdiction would be vetted by AG before the Governor issued the authority to proceed. There had been cases where AG had advised against the issue of an authority to proceed because of insufficient evidence. A requesting jurisdiction could adduce supplementary evidence but that had to be done before the committal hearing took place. The requesting jurisdiction could also apply for adjournment, in which case the decision whether to grant adjournment rested with the court.
7. Mr Albert HO Chun-yan enquired if a fugitive could cross-examine witnesses, as a suspect could do in local committal proceedings, with a view to contradicting the evidence produced by the requesting jurisdiction. DPCC said that clause 23(4) rendered the evidence from the fugitive and other witnesses inadmissible. The courts had held that it was a matter for the trial in the requesting state to assess the truth of the evidence and this could not be done at the committal proceedings. SCC quoted that there was established UK case law on extradition that in one particular case a witness, after giving an affidavit before the court, subsequently retracted the evidence. The court refused to take that evidence into account and went on to commit the person for extradition. The court held that the truth could only be tested in the court of the requesting jurisdiction. From a practical point of view, it might not be possible for witnesses, for example witnesses in the requesting country, to be summoned to give evidence in the requested state.
8. In response to members' concern about unfairness to the fugitive, DPCC said that the present provision was consistent with existing procedures in other common law jurisdictions, a large number of which were not even demanding the establishment of a prima facie case. For example, the systems in all the European countries, UK, Australia as well as Canada in certain cases were such that these countries only required a statement from the requesting jurisdiction setting out the allegations against the fugitive and that an extraditable offence existed. DPCC pointed out that the test now adopted by Hong Kong was the most stringent one at the moment.
9. In response to Ms Emily LAU Wai-hing's question, DPCC advised that clearly Hong Kong could not sign any agreement with UK at the moment. The Administration was aware of the need for an agreement with UK after 30 June 1997 and it was hoped that arrangements would be in place shortly after the handover.
10. Referring to the Chairman's question, SCC affirmed that the courts in Hong Kong applied in extradition cases the laws of evidence according to the law of Hong Kong. The courts could not act on hearsay evidence in establishing a prima facie case for a person's committal for trial. Clauses 10(6)(b)(ii) and (iii) of the Bill were relevant in this respect.
11. As regards the problem of protracted committal hearings, DPCC and SCC said that delay was often caused by a fugitive's continual applications for habeas corpus, appeals and judicial reviews etc. As these were issues related to fundamental human rights, cases of prolonged hearings were sometimes unavoidable.
Clause 11(2)
12. The Society's concern was that where the court of committal refused to commit the fugitive, there might not be an opportunity for the requesting jurisdiction to lodge an appeal immediately. DPCC advised that this clause was identical to section 10(2) of the UK Extradition Act 1989. It would only operate where Hong Kong had sought advance instructions to appeal on behalf of the requesting jurisdiction in the event of an adverse decision by the court. The person would then be detained for the purpose of the appeal. Otherwise, the fugitive would likely leave Hong Kong once discharged.
Clause 14
13. DPCC said that, contrary to the Society's view, the Administration's stand was that there should not be an automatic discharge of the fugitive if he had not been surrendered after the expiration of the time limits referred to in this clause. There could be valid reasons for that, such as the fugitive might be too sick to travel at the time, or he might have submitted voluminous documents for consideration by the Governor as to why an order for surrender should not be made, so that the Governor might not have sufficient time to make a final decision before the relevant period expired. It was appropriate, therefore, that the matter should be remitted to the High Court for decision, before the fugitive was finally discharged. The burden was on the fugitive to make an application under this clause for his discharge.
14. In reply to the queries by Ms Emily LAU Wai-hing and Mr Albert HO Chun-yan, DPCC said that, after a fugitive had been committed for trial, the fugitive could submit documents to the Governor to set out reasons why he should not be surrendered, on grounds listed in clause 5 or as contained in the bilateral agreement. When an application for discharge was made under this clause, the burden would then be on the requested state representing the requesting jurisdiction to account for the delay. SALD remarked that it should be noted that clause 14 concerned cases where there was prima facie evidence and the court had already decided that the fugitive should be surrendered. This clause, therefore, to some extent provided a dispensation to the fugitive.
15. The Administration undertook to reply in writing as to whether legal aid was available in extradition proceedings.
Clause 24
| 16. DPCC and SALD said that in the vast majority of cases, AG through a member of the Attorney General's Chambers would represent the requesting jurisdiction. However, there was no provision in any bilateral agreements prohibiting the requesting jurisdiction from engaging private representation in extradition proceedings. Since AG acted for the Hong Kong Government in all criminal and civil matters in which the government had an interest, clause 24 enabled AG, even in the very rare cases that the requesting jurisdiction was privately represented, to appear and be heard. | Adm |
17. In reply to the Chairman's question, DPCC said that there had been no precedent cases in Hong Kong where a requesting jurisdiction was privately represented. The Chairman enquired if it was possible to spell out clearly in clause 24 that only in the case of the requesting jurisdiction being privately represented that AG was to be separately represented. DPCC replied that the Administration intended to put it beyond doubt that AG had a right to appear in the proceedings. Clause 2(7) stipulated that acts might be done by a person on behalf of the prescribed place and clause 24 was to tie in with that provision by setting out that AG was that person. If it were to restrict clause 24 to cases where the requesting jurisdiction was privately represented, that would effectively prevent AG from appearing in the normal cases where there was no private representation of the requesting jurisdiction.
18. The Chairman opined that a separate representation of AG would be unfair to the fugitive since it would mean that there would be two counsels representing the same interests of the requesting jurisdiction. He asked if there would be areas where Hong Kong being the requested jurisdiction had separate interests and therefore a separate representation of AG was required. SALD said that in the course of proceedings, applications might be made by various parties in relation to various matters, apart form the main application being the extradition of the fugitive. AG might see the need to support or oppose certain applications. SCC stated that AG in fact acted in a dual capacity, i.e. both advising the Governor and acting on the instructions of the requesting jurisdiction. In exercising this role and where there was a conflict on certain points, the views of the Governor would always prevail. Some sort of separate representation of AG was therefore necessary. DPCC added that the policy was that AG could appear in his own right, even not specifically representing the requesting jurisdiction. In some cases, AG might have access to particular information with which he would decide to support or oppose the making of certain applications during the proceedings. He confirmed that, in the event the Governor refused to issue an authority to proceed on the advice of AG, the extradition hearing would not proceed.
| 19. The Chairman agreed that AG should have a right to appear and be heard in proceedings. Yet the role of AG should be spelt out more clearly. DPCC undertook to provide further information in writing. | Adm |
The First Schedule
Item 18
20. DPCC advised that "mischief" in relation to computer data reflected the terms used by Canada to describe certain computer offences. He said that the critical point was to examine the underlying conduct to see if the offence for which extradition was sought was a relevant offence in Hong Kong, irrespective of how the offence was described in the requesting jurisdiction.
Item 43
21. DPCC explained that multi-lateral international conventions obligated parties to the conventions to prescribe, under domestic law, offences created as a result of decisions of the organizations. Therefore, if extradition was sought in respect of an offence, the requested jurisdiction would have regard to, firstly, whether the offence was set out in the bilateral agreement, or secondly, in the convention which was applicable to it.
Costs
22. DPCC said that the magistrate hearing the committal proceedings had the authority to award costs to the fugitive if he decided not to commit the fugitive for surrender. DPCC remarked that it was not out of the Administration's control despite the fact that any costs awarded would have to be paid by Hong Kong as the requested jurisdiction, since only cases which were likely to be successful would be put to the court. Members enquired if the award of costs in this context was within the same meaning as that provided in the recently enacted Costs in Criminal Cases Ordinance. DPCC undertook to clarify.
| 23. DPCC proceeded to highlight on the Administration's comments to the submission from the Hong Kong Bar Association (the Bar): | Adm |
Paragraph 1
24. DPCC informed members that he did not know who would replace the Secretary of State for Foreign and Commonwealth Affairs after 1 July 1997. The Chairman expressed that it might be a matter to be finalized in the Sino-British Joint Liaison Group. DPCC said that the purpose of the Bill was to localize UK fugitive offenders legislation applied to Hong Kong. When the Bill was enacted, the law would need to be adapted.
Paragraph 2
25. DPCC advised that the question of rendition between Hong Kong and the People's Republic of China (PRC) was being separately discussed. This Bill represented what the Administration believed the policy should be in relation to surrender of fugitive offenders. It was a good model for arrangements between Hong Kong and every other place outside Hong Kong, including PRC. The Chairman enquired if it was technically possible to include PRC in the general application of the legislation, without involving major changes to the law. DPCC replied that to do so would require some variations to the existing contents of the Bill, such as deletion of the words in brackets "other than the People's Republic of China or any part thereof" in clause 2(1)(a)(i) and (ii). Existing clause 6 and 25 also could not operate between Hong Kong and PRC. He said that there would be separate legislation for rendition arrangements between Hong Kong and PRC.
Paragraph 3
26. DPCC said that a death penalty exception was included in all bilateral agreements applicable to Hong Kong, except in the case of Malaysia, which regarded the death penalty as a very important part of its criminal justice system and therefore did not agree to include such exception clause in the agreement itself. Instead, Malaysia had agreed to an Exchange of Notes, which was in relation to how the parties would interpret the agreement, whereby it was set out that Hong Kong could refuse to surrender a fugitive in death penalty cases unless satisfactory assurances were given that the death penalty would not be carried out. DPCC said that the death penalty exception would be reflected in the subsidiary legislation made pursuant to clause 3(1) of the Bill. At the request of the Chairman, DPCC undertook to provide a draft sample for members' information.
| 27. Members enquired if there was any fundamental objection to putting the death penalty exception expressly in the principal legislation. DPCC said that the way the proposed legislation was drafted was to give the Governor the overall discretion to refuse surrender, which would be exercised in accordance with the obligations under the agreements. All bilateral agreements contained the death penalty exception. DPCC agreed to give further thought on the proposal to include the death penalty exception in the principal legislation. | Adm
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| 28. DPCC informed that no cases of breach of assurance had come to light as regards death penalty cases. He said that Hong Kong would raise objection to the other party and might terminate the bilateral agreement in case of a breach. As a matter of general practice, Hong Kong would not ask to be informed of the result of the trial in the requesting jurisdiction after a fugitive was returned. The Chairman remarked that the Administration should consider arrangements whereby Hong Kong could have knowledge of whether any assurances given by the requesting jurisdiction had been fulfilled. DPCC noted the view. | Adm |
Paragraphs 5, 6, 7
29. DPCC pointed out that while there was an almost universal rule that no state would surrender political refuges, none of the jurisdictions had attempted to define political offences. The Chairman enquired on the desirability or otherwise of formulating an inclusive, though not exhaustive, definition as advocated by the Bar. DPCC responded that a definition would have the effect of narrowing the exception and possibly excluding a fugitive's genuine right to claim political persecution. There was also the extreme difficulty of defining political behavior. He added that the courts in practice were applying stringent criteria. Cases of political offenes were very rarely successfully claimed. The Chairman opined that it would be technically possible to provide an inclusive definition, without prejudicing the final interpretation of the court. But whether such a definition was desirable in the present context had to be further examined.
30. In response to members' enquiries, DPCC said that the Administration, in considering a request for surrender at the authority to proceed stage, would examine whether or not any of the restrictions on surrender in clause 5 applied in the case. Usually there would be nothing in the documents to suggest that the offence was an offence of a political character. It would be the fugitive who would first contend the issue before the court and the court would decide. The Governor then had the final discretion of not surrendering the fugitive if the offence was of a political character. DPCC supplemented that a fugitive committed for trial could still make representation to the Governor against surrender.
31. Referring to the Chairman's enquiry, DPCC said that clause 23(4) concerned evidence which was inadmissible in a prima facie case scenario. It did not apply to cases of political offence. The Chairman said that there could be a possibility that even in an extraditable offence situation, the fugitive could submit evidence in support of his allegation that the offence was political in nature. The Chairman requested the Administration and Assistant Legal Adviser to review the adequacy of Clause 23(4) in this respect.
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32. In answer to a related question, DPCC said that the totality of clause 5(l)(c) meant that a person committing a relevant offence which was found to be also political would not be surrendered. | Adm/
ALA4 |
II.Other Business
33. Principal Assistant Secretary for Security informed members that the Hong Kong/US Agreement for the Surrender of Fugitive Offenders would be signed in the afternoon of 20 December 1996. He provided a Legislative Council Brief together with a copy of the Agreement for members' information.
III.Date of Next Meeting
34. The next meeting was scheduled for 14 January 1997 at 4:30 pm.
IV.Close of Meeting
35. The meeting closed at 12:45 pm.
LegCo Secretariat
12 February 1997
*-- other commitments
Last Updated on 15 Apr, 1997
