Bills Committee on the
Fugitive Offenders Bill

I. Confirmation of minutes of meeting on 20 November 1996

(LegCo Paper No. CB(2) 535/96-97)

The minutes of the meeting on 20 November 1996 were confirmed.

II. Meeting with the Administration

(LegCo Paper No. CB(2) 534/96-97(01) - Explanatory memorandum prepared by the Administration

Legislative Council Brief issued by the Security Branch - Ref: SBCR1/2716/89

Legal Service Division Report issued under LegCo Paper LS29/96-97

The Bill)

Briefing by the Administration

The Administration advised members that existing arrangements for the surrender of fugitives were based on bilateral and multilateral treaties which the UK had signed and applied to Hong Kong. As these UK-based arrangements would lapse after the handover, there was an urgent need to introduce localized legislation before 1 July 1997 to enable the new bilateral agreements with other jurisdictions for the surrender of fugitive offenders to remain in force. The Fugitive Offenders Bill (the Bill) had its principles substantially in line with the UK Extradition Act 1989 and it primarily followed the existing procedures for handling requests for surrender. Some improvements, on the other hand, had been made in certain areas such as setting out in clear terms the channels for appeal and a series of time limits to enable the appeals to be properly dealt with. In the "Miscellaneous" part of the Bill, there were detailed transitional provisions to cover requests made pursuant to existing arrangements which would cease to exist.

On procedures, the Administration gave a brief outline of the key features of the arrangements for handling requests for surrender -

1. Authority to proceed: proceedings before a magistrate might only commence after the Governor had issued an authority to proceed.
2. Arrest of the fugitive
3. Search and seizure of property under the control of the arrested person.
4. Committal proceedings on receipt of the Governor’s authority to proceed: based on the acquired evidence, the magistrate could then hear the case and, if the magistrate was satisfied that the fugitive was liable to be surrendered, commit the fugitive to await the Governor’s decision. In making his decision to commit the fugitive, the magistrate must be satisfied that the offence was a relevant offence and that none of the general restrictions against surrender as set out in clause 5 of the Bill was applicable.
5. Appeals: an avenue of appeal was provided for the requesting jurisdiction and the fugitive respectively.
6. Governor’s decision: the Governor had a final discretion to approve or refuse surrender, in the event that the fugitive remained committed to await surrender after appeals had been dealt with.

Discussion on the Bill

Mandatory and discretionary grounds for refusing surrender

In response to members’ questions, Deputy Principal Crown Counsel (DPCC) said that there were both mandatory and discretionary grounds for refusing to surrender a fugitive. The former were listed in clause 5. Discretionary gounds were cast in wider terms and they were matters for the executive arm of the Government to decide, such as cases involving capital punishment and humanitarian considerations. Hong Kong had been concluding bilateral agreements whereby the restrictions stipulated in clause 5 of the Bill were put in as being mandatory refusal grounds. At present, Hong Kong had signed agreements with five countries and was awaiting signature with three more. In addition, negotiation with a number of other countries were in progress.

5. DPCC remarked that it would be inadvisable to take out something which was discretionary from the bilateral agreements and make it mandatoryin domestic legislation. This might lead to undesirable consequences of inflexibility and adversely affecting the faith of negotiating partners in the local system.

6. At the Chairman’s request, the Administration undertook to provide copies of the relevant parts of the five bilateral agreements containing general discretions which could be exercised to refuse surrender, as well as a summary of similar provisions in some of the more recent treaties which UK had signed and applied to Hong Kong, for comparison purpose.

Adm

7. Concerning the Governor’s authority to approve or refuse surrender, DPCC clarified that an order for surrender by the Governor could only be made where the magistrate had issued an order of committal. The Governor would have no discretion to surrender a person if the magistrate had refused to commit that person. The Governor, however, had a total discretion of not ordering the surrender, despite an order of committal had been issued. He could also decide not to issue an authority to proceed on receipt of a request for surrender, if he was satisfied that an order for surrender could not lawfully be made, or would not in fact be made. But the Governor would in most cases let the matter be heard by the magistrate in the first instance.

8. Mr Ronald ARCULLI enquired of the meaning in clause 6(2) of "................ the Governor may issue an authority to proceed unless it appears to him that an order for surrender in relation to the person concerned could not lawfully be made, or would not in fact be made." He said that it appeared that this provision would give the Governor an absolute power of interpreting the law at the very initial stage. DPCC responded that cases of " an order which could not lawfully be made" were closely related to those mandatory refusal grounds under clause 5. In practice, it would be unlikely for the Governor to reject a request out of hand even if it appeared that there was insufficient evidence from the outset. In most such cases, the matter would be referred back to the requesting jurisdiction for more substantiating information. As regards cases of " orders which would not in fact be made", the Governor would have to focus on the discretionary grounds set out in the respective bilateral agreements concerned, and to refuse surrender if any of those conditions applied. In the latter cases, it could not be said that the surrender could not lawfully be made, since the element of discretion was present. DPCC added that in exercising his absolute authority to decline a request, the Governor would always be mindful of the obligations which Hong Kong had to observe under the relevant bilateral agreements.

9. Members opined that in order to make it more specific, clause 6(2) could be amended to read ".................. could not lawfully be made under section 5, or would not in fact be made." The Administration noted the suggestion.

Adm

10. In response to Mr Albert HO Chun-yan’s question, DPCC said that Hong Kong would not enter into agreement with a foreign state if there were doubts about the existence of a fair and reasonable criminal justice system in that jurisdiction. Whereas treaty making was a matter for the executive, the role to ratify a treaty rested with the Parliament. Clause 3 of the Bill therefore provided that the Legislative Council had the power to repeal an order made by the Governor under subsection (1) which aimed at bringing into force a bilateral agreement in relation to any arrangements for the surrender of fugitive offenders. DPCC remarked that there had been no precedent cases where negotiation of arrangements was terminated for reason of an unfair system in the other jurisdiction.

Death penalty

11. Mr Ronald ARCULLI said that a number of Hong Kong’s neighbouring countries had death penalty imposed for certain offences. He was concerned that Hong Kong might become a haven for convicted offenders for the reason that the requesting jurisdictions would not give an undertaking that the death penalty would not be carried out and therefore Hong Kong had to refuse the request for surrender. The Administration replied that the Bill would not change the present position. The current practice was that Hong Kong would not extradite a person in the absence of an assurance from the appropriate authority in the requesting country that the death penalty would not be carried out in relation to the offence. Members requested the Administration to provide some examples of relevant cases for reference.

Adm

12. Responding to the Chairman’s question, DPCC said that particulars in respect of the offence for which an extradition was sought and the penalty which might be imposed on the offence would be contained in the supporting documents which the requesting jurisdiction was obliged to provide. At members’ request, the Administration would provide a sample of such documents for reference. An officer from the Extradition Unit of the Attorney General’s Chambers would give a presentation on the documents at the next meeting.

Adm

Nationals

13. Members enquired on the treaty arrangements regarding the surrender of nationals of the sovereign power. DPCC said that for some of the European countries, their constitutions stated that there should be a discretion to surrender their own nationals, on the basis that these countries had possessed extensive extra-territorial jurisdiction for their courts to try their own nationals, irrespective of where the crimes were committed. Common law countries, including UK, however, had limited extra-territorial authority. In order to avoid criminals escaping punishment, therefore, Hong Kong would normally give effect to requests for surrender, subject to other conditions being fulfilled. DPCC added that of the some 90 countries with which Hong Kong had extradition arrangements via UK, about half were commonwealth countries where there were not agreements but reciprocal domestic legislations. Nearly all of these commonwealth countries were common law countries. The rest of the countries were the civil law countries of Europe, South America, and some countries in Africa etc.

Speciality protection

14. Mr Bruce LIU Sing-lee enquired on the procedures to deal with cases where the alleged offence, and its punishment, had changed following the surrender of the accused person. DPCC explained that when an overseas jurisdiction made a request, the court in Hong Kong would have to be satisfied that the supporting documents, which listed the offence in question and the penalty, were also supplied. The requesting jurisdiction could only deal with the person in relation to the offence for which that person was first surrendered. This requirement was provided in clause 5(2) of the Bill. As to the meaning of "unless he has first had an opportunity to leave that place" in the same clause, DPCC explained that a requesting jurisdiction should not be bound forever never to deal with a person for offences other than that in respect of which his surrender was ordered. Therefore, the law provided that the speciality protection would cease to exist the second time the person returned to that place voluntarily.

Conviction in absentia

15. DPCC clarified that cases of an arrested person absconding whilst on bail did not fall under the category of "conviction in absentia" because in the former cases, a conviction had not been obtained. An offender who refused to go to the court, escaped and subsequently convicted in his absence could rely on clause 5(1)(b) to argue against extradition. However, provided that the requesting jurisdiction guaranteed a re-trial in his presence, the person would lose his right under clause 5(1)(b).

Restriction on re-surrender

16. Referring to the Chairman’s question, DPCC said that the no-resurrender condition in clause 5(4) was reciprocal and common in all the Hong Kong’s signed agreements. Although there was no way of knowing that the condition would be observed, Hong Kong was selecting her negotiating partners whom she trusted would oblige by their undertakings. Under international law, it was the responsibility of the sovereign power to keep to the treaty obligations. In a hypothetical situation of Hong Kong breaching a prescribed obligation, after 30 June 1997, the other party would have to lodge its complaint with the relevant Chinese authorities. DPCC asserted that all the negotiating partners of Hong Kong were content with the present provisions of the agreed arrangements.

17. The Chairman enquired if there could be legal implications in case, after the change of sovereignty, a fugitive offender was arrested in Hong Kong by the People’s Liberation Army(PLA) and surrendered to the Hong Kong Special Administration Region Government. DPCC said that it was unlikely that the PLA would have power of arrest in Hong Kong. The Sino-British Joint Liaison Group (JLG) had agreed that all bilateral agreements of Hong Kong should be administered by the law enforcement authorities of Hong Kong. No queries so far had come from other jurisdictions.

Offence of a political character

18. Regarding members’ enquiry on the interpretation of "an offence of a political character (and irrespective of how that offence is described in the prescribed arrangements concerned)" in clause 5(1)(a), DPCC advised that the courts in common law jurisdictions had been unable to provide a precise definition of the term. The pertinent consideration was for the court to judge that, irrespective of how the matter was described, the person was in fact sought for political motives, not for the actual offence itself. For example, an offence might be described as embezzlement in the prescribed arrangement. However, it could still be a political offence if it was an embezzlement of an employee of the State and the court’s view was taken that he had been persecuted because he had held political beliefs different to the present government. DPCC said that every extradition treaty which UK had negotiated had this political offence provision included as a condition for restricting surrender.

19. Mr Bruce LIU Sing-lee pointed out that the same issue of offence of a political character had been deliberated by the Bills Committee formed to examine the Evidence (Amendment) Bill 1996. That Bills Committee was of the view that a binding definition was not possible, and that it would better protect the rights of the accused for the court to exercise a degree of freedom to make common sense decisions in the light of the particular circumstances of individual cases. At members’ request, the Administration would provide some information in writing, including such as case studies of other jurisdictions, to elaborate on the common law interpretation of political offences.

Adm

Double criminality and Schedule 1

20. Responding to the Chairman’s questions, DPCC said that the notion of double criminality was that the conduct constituting the offence must be an offence in both the requesting and requested jurisdictions, and it would be a relevant offence if it came within any of the descriptions specified in Schedule 1 and was punishable in Hong Kong with imprisonment for at least 12 months. He added that UK had experienced problems in cases where the fugitives being sought had successfully established an absence of double criminality because the offence was described differently. Schedule 1 of the Bill was therefore cast in very wide terms. In making a decision, the authorities would look at the underlying conduct rather than the actual description of the offence. The second criterion for a relevant offence referred to offences punishable with imprisonment for more than 12 months, ie, the punishment the court had power to impose, rather than the actual sentence the court might impose. DPCC advised that most of the cases dealt with in Hong Kong were related to drugs and white-collar crimes, and occasionally cases of murder and armed robberies.

21. Mr Ronald ARCULLI enquired if it was necessary to establish the element of mens rea of an offence committed elsewhere. He pointed out that some offences which required the proving of a guilty intent in Hong Kong could be strict liability offences in other jurisdictions, ie, just the act itself could constitute an offence. DPCC replied that while it was not necessary for the requesting jurisdiction to specify the equivalent offence in Hong Kong, it would have to provide sufficient evidence in the supporting documents to enable a Hong Kong court to establish whether there was the intent that would be necessary to make the alleged offence the equivalent relevant offence under the Hong Kong law. Mr ARCULLI remarked that it would be more difficult to decide on cases such as commercial crimes than pure criminal acts, and careful comparisons had to be made to the laws in both jurisdictions.

22. Members enquired if all offences punishable in Hong Kong with imprisonment for more than 12 months were included in Schedule 1. DPCC stated that Schedule 1 was intended to include all relevant offences. Individual treaty arrangements, however, would only cover those offences which were of relevance to the negotiating parties. Because different systems existed amongst countries, some specific offences, such as those related to securities and futures trading, might not find their equivalents in some other jurisdictions. DPCC further advised that Schedule 1 would be suitably amended when necessary, such as cover offences that had been missed or offences emerging both in Hong Kong or elsewhere. If new serious offences did happen, there would be a need to re-negotiate some of the treaties.

23. Members noted that item 39 in Schedule 1 described generally "offences relating to women and girls". They asked if it would give rise to Bill of Rights (BOR) implications. DPCC explained that this clause was insisted upon during the negotiation with Malaysia to particularly cater for situations where certain conducts regarded as offences in some jurisdictions, for example offences relating to women and girls in Islamic countries, were not offences in Hong Kong, and therefore surrender of the person would be refused. He stressed that the inclusion of this item was for the protection of women and girls and it would not contravene the BOR. The Chairman suggested that the element of protection might need to be highlighted in the Schedule.

Adm

Consultation with the Chinese side

24. In reply to members’ questions, Deputy Secretary for Security (DSS) said that the two sides on the JLG had confirmed their agreement to the Bill in its entirety. The Bill had reflected provisions in Hong Kong’s bilateral agreements. Since this localization of law item was necessary for providing the legal backing for new bilateral arrangements, she called for members’ support for the Bill, subject to any necessary amendments, if any, that had to be made.

25. Mr HO Chun-yan enquired if this Bill would serve as the basic framework for the future arrangements for rendition between China and Hong Kong after the handover. DSS replied that the Administration intended to draw references from this localized legslation for future rendition arrangements, as existing procedures and practices had proved to be effective. She hoped that, despite it might be necessary to make some adaptations in certain areas, the fundamental principles tantamount to the present legislation would be adopted.

Meeting with deputations

26. The Chairman advised that the Law Society of Hong Kong and the Hong Kong Bar Association should be invited to present their views on the Bill at the next meeting with the Administration.

(Post-meeting note: The two organizations have sent in their submissions on the Bill and taken part in discussion at the meeting on 10 December 1996).

III. Date of Next Meeting

27. In order to allow the Administration sufficient time to prepare the requested information, members agreed that the meeting originally scheduled for 5 December 1996 at 2:30 pm be cancelled.

28. The next meeting would be held on 10 December 1996 at 2:30 pm.

IV. Close of Meeting

29. The meeting closed at 4:25 pm.

LegCo Secretariat
31 December 1996