COMMENTS BY THE ADMINISTRATION [by reference to paragraphs in the Bar Associations Submissions]

Paragraph 1

When the Bill is enacted the question of adaptation will have to be discussed with the Chinese side in the Joint Liaison Group.

Paragraph 2

This question is being separately discussed. The PRC fully understands that fugitives will only be able to be surrendered to places outside Hong Kong pursuant to Hong Kong legislation. The final form of that legislation cannot be settled until the discussions referred to have been completed.

Paragraph 3

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 or 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 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.

The Articles are substantially the same as the relevant Article in the European Convention. 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. [See clause 3(1) of the Bill]. The Governor will have to consider the death penalty exception when deciding to make an order for surrender under clause 13.

At the Bills Committee on 10 December it was suggested that the discretion in relation to the death penalty should not appear in the subordinate legislation as this legislation can be easily amended. In this regard it should be noted that orders under clause 3(1) may only be repealed, not amended. If, accordingly, an agreement did not include a death penalty exception [or, as with Malaysia, an appropriate alternative safeguard] Legislative Council could repeal the order.

It was also suggested that the matter should not be left entirely to the Governor. There is no legislation of which we are aware where the courts can exercise the discretion. The determination of whether assurances that the death penalty will not be carried out are satisfactory is a function of the executive.

Paragraphs 5, 6, 7

The courts have been unable to formulate a generally agreed definition which can apply to all cases. All the surrounding facts and circumstances will be relevant to reaching a conclusion. Both the character of the offence and the motives of the requesting Party need to be examined.

As is recognised in paragraph 6 there is an almost universal rule that no state will surrender political refuges. In this request commentators recognise that the origins of the political offence exception derive from the need to preserve the right to grant ‘political asylum’ in appropriate cases.

It was suggested at the Bills Committee on 10 December that consideration should be given to formulating a definition which prescribed a number of offences which could not be ‘political offences’. Such an approach would of course narrow the exception. And the effect could be to exclude a genuine case. In this regard it should be noted that successful pleas of ‘political offence’ are very rare. The test is applied quite stringently by the courts and it is the Administration’s view that this is the best approach. The absence of a definition has the clear advantage of leaving the courts with a degree of freedom to arrive at common sense decisions in the light of the circumstances of a particular case. And of course the fugitive can adduce evidence.

Finally it should be noted that all bilateral agreements of which we are aware include a political offence exception; none seek to provide comprehensive definition although a few exclude specified offences from the possibility of being adjudged political offences.

Paragraph 8

As the Bar recognised at the Bills Committee meeting on 10 December the basis of an extradition relationship is a willingness by the Parties to enforce each others criminal verdicts.

If the system of justice in a jurisdiction with which Hong Kong Government had arrangements deteriorated to an extent that our assessment was that a fair trial could not be guaranteed the appropriate course would be to terminate the agreement. If the matter only came to light in the context of a current case the appropriate course may be to refuse surrender even though this might technically involve a breach of the agreement.

Provisions based on the ICCPR are not usually found in extradition agreements. There are no provisions in the ICCPR which seek to impose obligations on Parties in relation to the basis on which they extradite fugitives.

If we were to introduce exceptions to granting surrender based on guarantees in the ICCPR jurisdictions with which we have signed agreements could object on the basis that our implementing legislation did not reflect the agreement.

It is the Administration’s view that the existing guarantees in the Bill [see clauses 5 and 10] which are consistent with the international norms are quite sufficient to safeguard the rights of fugitives. To pursue the course proposed would raise considerable difficulties.

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