Bills Committee on the
Fugitive Offenders Bill

I. Meeting with Deputations

Meeting with the Law Society of Hong Kong (the Society)

[LegCo Paper No. CB(2) 654/96-97(02)]

Mr Andrew LAM briefed members on the views of the Society on the Fugitive Offenders Bill (the Bill). The Society’s submission had been circulated to members before the meeting under LegCo paper No. CB(2) 654/96-97(02).

Action

2. Deputy Principal Crown Counsel (International Law)(DPCC) advised that the Administration would respond in writing to the Society’s comments after the meeting. Meanwhile, he made some preliminary remarks in relation to the Society’s queries as follows:

Adm

(a) The Chinese side in the Sino-British Joint Liaison Group (JLG) had agreed that Hong Kong could have its own law and bilateral agreements with other jurisdictions on surrender of fugitive offenders which would remain in force after 1997. In fact, Hong Kong was negotiating bilateral agreements with a number of countries at the moment.

(b) On the issue of capital punishment, all the bilateral agreements which applied to Hong Kong provided that extradition would not be granted for offences carrying a death penalty unless assurance was given that the death penalty would not be imposed or carried out on the fugitive. The European Convention on Extradition had a clause which was identical to what Hong Kong had in its signed agreements as regards death penalty, and parties to the Convention tended not to put this in their legislation. The Administration therefore intended to follow the normal approach. However, the subsidiary legislation made pursuant to clause 3(1) would annex the relevant agreement, which sets out in clear terms the various discretionary grounds for refusal including the death penalty ground. When exercising discretion to refuse surrender on the death penalty ground, the Governor would in effect act in accordance with the provisions of the subsidiary legislation.

(c) Clause 10(5) of the Bill which stipulated that the court would not grant bail in extradition cases unless under special circumstances reflected existing judicial practices in Hong Kong, for the reason that fugitive offenders were regarded as cases of extremely high bail risks. A fugitive could be remanded on bail but he must be able to establish special circumstances justifying such remand.

(d) The Law Society’s comments on clause 11 in fact related to the prima facie case requirement. Basically the court was only required to satisfy itself that there was prima facie evidence for the offence. This requirement was also consistent with current practices.

(e) Clause 11(2) provided that a fugitive should be kept in custody consequent to the prescribed place informing the court that it intended to make an appeal, immediately upon a refusal to commit the fugitive by the court. This provision was consistent with section 10(2) of the UK Extradition Act 1989, whose purpose was to ensure that the fugitive would be available for the appeal.

(f) As for clause 14 on discharge in case of delay, the Administration’s view was that an application for a person’s discharge had to be made to the High Court, rather than an automatic discharge. There could be valid reasons why that person could not be surrendered before the relevant period expired. For example the person might be too sick to travel, or because of the inability of the Governor to deal with large amount of documentation within a short period of time for him to decide on his final order. The decision should therefore be left to the court to judge whether there were justifiable grounds for the delay.

(g) The Attorney General entitled to be heard in any proceedings. In practice, it would be one of the delegates of the Attorney General representing the requesting jurisdiction. In very rare cases, the requesting jurisdiction might require private representation in accordance with a bilateral agreement. However, there had never been a case in Hong Kong where the Attorney General had to appear under such circumstances.

3. Members pointed out that localized legislation was essential to bring into operation Hong Kong’s bilateral agreements on surrender of fugitive offenders, otherwise Hong Kong might become a haven for fugitives after the sovereignty handover. In addition, the proposed legislation to a large extent reflected existing procedures and practices. Members asked for the reasons for the Society’s objection to the Bill.

4. Mr Andrew LAM and Mr Melville BOASE replied that the Society’s view was that it could not endorse the Bill entirely in its present form since there were a number of issues which required clarification, as presented in the Society’s submission. Some doubts had been cleared such as upon the knowledge that the full content of the Bill had been agreed with the Chinese side. The Society might be prepared for a review pending the response from the Administration to the other issues.

5. In reply to Mr Bruce LIU Sing-lee’s question. Mr Andrew LAM said that the general view of the Society was that the restrictions on surrender stated in clause 5 of the Bill were sufficient, except that no express reference had been made regarding the death penalty exception.

Meeting with the Hong Kong Bar Association (the Bar)

[LegCo Paper No. CB(2) 675/96-97(01)]

6. Mr John MULLICK and Mr Philip DYKES elaborated on the salient points raised in the Bar’s submission, which had been circulated to members under LegCo Paper No. CB(2) 675/96-97(01).

Death penalty

7. In response to Mr Bruce LIU Sing-lee’s enquiry on capital punishment, Mr John MULLICK said that the Bar was of the opinion that the Bill should specify in clear terms the circumstances under which a particular discretion by the executive would operate. In particular, reference should be drawn from Article 11 of the European Convention on Extradition where it was stated that "If the offence for which extradition is requested is punishable by death under the law of the requesting Party, and if in respect of such offence the death penalty is not provided for by the law of the requested Party or is not normally carried out, extradition may be refused unless the requesting Party gives such assurance as the requested Party considers sufficient that the death penalty will not be carried out." This provision was a reaffirmation of legislation existed in many countries and it bound all countries with signatories to this particular Convention. The ethic behind was that death penalty in itself was a mode of punishment which was repugnant to many civilized countries and an issue of such significance should not be dealt with in the subsidiary legislation which could be amended easily. The Bar was also concerned as to what arrangements might be in place after the handover, such as whether or not there would be in existence some form of judicial scrutiny, in respect of the return of fugitives to the PRC.

Bill of Rights implications

8. Mr John MULLICK submitted that the Bill might involve the Bill of Rights (BOR) implications because it provided no restrictions on the surrender of fugitives whose convictions might be in breach of the International Covenants on Civil and Political Rights (ICCPR), such as the right of a person to a fair and public hearing and a fair trial etc. He remarked that there were countries where their systems of proving offences were such that certain presumptions were placed against the accused, contrary to the common law principle that a person was presumed to be innocent unless proved otherwise. There were also problems associated with convictions in absentia, the absence of legal aid and legal representation and the quality of such representation etc. Since countries had different systems, the Bar held that, depending on which countries might be asking for the surrender, the Administration had to look into the requests on a case by case basis to see if in fact the fugitives had been tried and convicted in accordance with what was understood to be the basic safeguard laid down in the BOR and the ICCPR.

9. In response to the Chairman’s question, Mr John MULLICK and Mr Philip DYKES said that human rights implications also arose as regards how the executive would exercise his discretion under the Bill. An international law was not a check on the executive’s decision since it was not binding upon the states. Only local/national laws and constitutional laws were effective checks. Article 39 of the Basic Law which provided that the provisions of the international conventions on human rights should be implemented could not serve as a constitutional constraint on the executive’s discretion. The Bar therefore proposed that some provisions should be written into the legislation providing that the fugitives should be subject to the protection of the BOR and the ICCPR and circumscribing the executive’s discretion to the effect that in no circumstances would it put Hong Kong in breach of the international covenants which would continue to apply to Hong Kong. Mr DYKES quoted as an example the UK Immigration Asylum Act 1993(the Act), which formed the framework for which all administrative decisions in UK in relation to refugees were made. Under the Act, it was required that the UK Home Secretary should not make any decisions that might put UK in breach of its obligations under the Geneva Convention.

10. DPCC remarked that ICCPR only dealt with domestic trials. Therefore, it would be irrelevant to incorporate ICCPR provisions into a legislation which involved extradition matters. The United Nations had chosen not to deal with the question of extradition in ICCPR. The UK, as a party to ICCPR, also had not seen the necessity to put in its local legislation provisions that would enable it to fulfill its obligations under the Convention. The basis of extradition arrangements was that Hong Kong was reasonably satisfied of the systems in the other jurisdictions and was prepared to enforce the criminal verdict of these countries. To build into an extradition agreement a restriction to surrender on the ground of an absence of a fair trial in the requesting jurisdiction would ruin the basis of trust for any bilateral agreement. This practice in fact did not appear in any extradition agreements. DPCC stated that if at some stage Hong Kong came to the conclusion that the system of administration of justice in another jurisdiction had changed to such an extent that the person surrendered would not receive a fair trial, then it would indeed become a matter for Hong Kong to consider terminating the agreement or for the executive to refuse to extradite, despite by so doing the refusal might place Hong Kong in breach of its obligations under the agreement. DPCC further advised that there was a definite time frame for the enactment of the Bill. The proposal to spell out the implementation of ICCPR provisions in the legislation would mean that the Bill had to be reverted back to the JLG, where the Chinese side might have difficulties with any changes that had no precedent in other bilateral relationships.

Offences related to the PRC

11. Referring to the arrangements with regard to PRC-related offences, Mr John MULLICK said that there was no framework in respect of the criteria which could be applied to deal with requests from the PRC for the return of fugitives in Hong Kong. The present Bill was a localization of an UK legislation which did not cover arrangements with the PRC, the latter being a matter within the purview of the central Government. Mr Philip DYKES supplemented that one could look upon the Bill as a draft for any future legislation to regulate relationship with China, and it remained a matter for the legislature to be satisfied that there would be sufficient safeguards as regards the protection of human rights.

Meaning of "an offence of a political character"

12. In response to members’ enquiry on the possibility of giving a more precise meaning to the phrase "an offence of a political character" in clause 5(1)(a) of the Bill, Mr John MULLICK stated that there had been too few cases and leading texts which could satisfy most people’s understanding of the term. The Privy Council was also remarkably absent in any consideration of this particular subject. He said that in some parts of the world, many people had been convicted for acts which were merely utterances of an opinion against the administration. None of these had really been covered by any precedent cases in Hong Kong. The Bar was concerned that it was not clear whether the views expressed by a dissident would be brought within any tests that would be applied in future in this jurisdiction in deciding offences of a political character. The Bar would suggest that some provisions should be incorporated into clause 5 setting out more specifically that offences of a political character would include, though not exhaustively, certain particular acts of the fugitive. Such an inclusive definition had the point that it would not exclude the court’s findings which would take into account all the circumstances and facts of a particular case.

13. Mr Ronald ARCULLI was concerned that while an inclusive definition would bring some clarity to the meaning of a political offence, it might at the same time undesirably narrow the scope of the phrase. Mr John MULLICK and Mr Philip DYKES admitted that an inclusive definition might circumscribe to a certain extent the general discretion in this area. Nevertheless, one could envisage some acts which clearly were not amenable to arguments. An all-embracing definition was never intended and it was a matter for the legislature to weigh the pros and cons of deriving a more precise meaning to the term.

Provision on bail

14. Mr Albert HO Chun-yan queried the presumption against bail in clause 10(5) as being inconsistent with the general fundamental principles as regards bail. Mr Philip DYKES reckoned that there had been a practical consideration in that the means for securing a fugitive’s attendance in court might be difficult if bail was granted, as the person might not have any substantial connections with Hong Kong. In addition, extradition hearings usually followed a definite time schedule, as different from criminal trials where repeated adjournments were not uncommon. Mr John MULLICK held that clause 10(5) was drafted too narrowly. He suggested that the court should be given more discretions in connection with the granting of bail.

II. Continue Discussion with the Administration

Presentation on "supporting documents"

15. At the invitation of the Chairman, Mr Wayne WALSH explained on the supporting documents associated with a recent request from the US for the surrender of a fugitive offender wanted for murder and other offences. Copies of the documents were tabled at the meeting and distributed to absent members after the meeting.

16. The documents were classified for ease of reference as follows:

(a) A-C : Authentication under seal of the US Department of Justice of the evidence provided by the US under the bilateral agreement.

(b) D : The Prosecutor’s affidavit of the facts of the case and the charges for which the fugitive was wanted.

(c) E : An example of an offence for which the fugitive was sought was punishable by death if convicted.

(d) F : An example of an assurance given by the US authority that the death penalty would not be sought or applied.

(e) G : The affidavit was sworn and certified by a US Magistrate Judge.

(f) H : The certified copy of the Warrant of Arrest which set out the offences for which the fugitive was wanted in the US. The conduct was translated into the equivalent Hong Kong offences.

(g) I : The US indictment which set out the details of the charges.

(h) J : An example of a witness affidavit.

(i) K : An example of the witness identifying the fugitive for the purpose of the court of committal in Hong Kong.

(j) : The remaining papers were other evidence with photographs and exhibits.

17. In reply to the Chairman’s enquiry, Mr Wayne WALSH said that in order to prove a prima facie case, sometimes additional evidence would need to be obtained from the requesting jurisdictions. In this particular case, the US had been requested to furnish supplementary evidence on separate occasion for the purpose of committing the fugitive.

Administration’s response to the deputations

18. The Administration undertook to provide written responses to the submissions from both the Law Society of Hong Kong and the Hong Kong Bar Association before the next meeting.

Adm

III. Date of Next Meeting

19. The next meeting would be held on 20 December 1996 at 10:45 am.

IV. Close of Meeting

20. The meeting closed at 4:25 pm.

LegCo Secretariat
16 January 1997