2.A judgment of the above case was tabled for members information. Senior Crown Counsel (SCC) informed members that the US court had taken a narrow approach in ruling on this case. In a nutshell, the judge held that the arrangements for the surrender of fugitive offenders under the UK/US agreement as applied to Hong Kong would cease to be effective after 30 June 1997 when Hong Kong would have been reverted to the sovereignty of China. Since US did not have extradition arrangements with China and Mr LUI Kin-hong, if surrendered to Hong Kong, could not be tried before 1 July 1997, his rights under the existing UK/US agreement would be abrogated after the changeover of sovereignty. The Administration did not agree to this view and an appeal was underway. Deputy Principal Crown Counsel (DPCC) said that the enactment of the Fugitive Offenders Bill would be helpful in dealing with this as well as other similar cases. Clause 28 on transitional provisions was of particular relevance in that it set out that people who were surrendered to Hong Kong under arrangements that would not go beyond the changeover would nonetheless be entitled to the protections provided under the Ordinance after the changeover. In LUIs case, if the new legislation were to be in place before the changeover, the fugitive would be subject to the protections provided by the relevant bilateral agreement under which he was surrendered. DPCC added that the newly signed agreement between Hong Kong and US had also been submitted. It would, however, require the passage of the Bill to give effect to this agreement.

3.In response to members questions, DPCC said that the US Senate had yet to ratify the HK/US agreement. However, clause 28 of the Bill was not dependent upon the agreements coming into force. Senior Assistant Law Draftsman(SALD) said that by virtue of the authority under the Interpretation and General Clauses Ordinance (Cap.1), different provisions of a Bill could take effect at different times. If there was a need to do so, therefore, clause 28 could be brought into operation separately in advance of other provisions.

4.In reply to Ms Emily LAUs enquiry, SCC advised that the US judge in making his decision only ruled on a legal point in relation to the sovereignty issue. The court had not made a judgment about the judicial systems of China or of the Hong Kong Special Administration Region.

5.The Chairman enquired about the progress of ratification as regards the arrangements for surrender of fugitive offenders in countries which had concluded bilateral agreements with Hong Kong. DPCC informed that Philippines had gone through the necessary procedures while US would ratify the agreement soon. The Administration did not expect there would be problems with other countries. The relevant agreements would come into force once the Bill was passed.

6.The Chairman remarked that further developments in LUIs case could be followed up by the relevant Legislative Council Panels, if necessary.

Continue discussion on the Bill

(LegCo Paper No. CB(2) 902/96-97(01)

LegCo Paper No. CB(2) 902/96-97(02)

LegCo Paper No. CB(2) 654/96-97(01)

Supporting documents

The Bill)

The Attorney General (AG) entitled to be heard in committal proceedings

7.DPCC advised that AG had locus to appear in committal proceedings for two reasons. Firstly, the bilateral agreements obligated AG to represent the requesting jurisdictions in the proceedings in Hong Kong.. Despite this had not been specifically covered under existing legislation, the court had accepted that AG should be entitled to be represented in the proceedings, and where applicable, in the subsequent appeals. Secondly, proceedings under the Bill could only commence after the Governor had issued an authority to proceed. AG therefore had to represent the Governor in the proceedings. Clause 24 was an "avoidance of doubt" provision which set out the existing position.

8.Addressing the Chairmans concern about double representation of the requesting jurisdiction, DPCC said that almost invariably AG would act on behalf of the requesting jurisdictions. There had been no precedent case where a requesting jurisdiction was privately represented. Even if such an occasion arose, AG would still have to be present in the proceedings to represent the Governor. This would also enable AG to advise the Governor, after the court had decided that the fugitive should be surrendered, on whether the Governor should make the final order for surrender. DPCC said that the presence of AG would not prejudice the interests of the fugitive. Mr Albert HO Chun-yan enquired if it was advisable to add a proviso to the effect that where a requesting jurisdiction was privately represented, the purpose of AGs presence in the proceedings would be limited to fulfiling a watching role, subject to the need for AG to address the court on specific issues on behalf of the Governor. DPCC undertook to consider the suggestion.

Adm

Death penalty exception

9.DPCC said that the best way to cover the death penalty exception was to deal with it by way of subsidiary legislation, i.e. the order made under clause 3(1), which would made it clear that the procedures in the Ordinance should apply between Hong Kong and the place outside Hong Kong to which the arrangements for the surrender of fugitive offenders related, subject to the limitations, restrictions, exceptions and qualifications contained in the order. All the orders would recite the terms of the relevant bilateral agreements which invariably would include the death penalty exception, and therefore ensure that the Governor would have to consider the death penalty exception in all cases. If an order did not provide for a death penalty exception, the Legislative Council would have the power to repeal the order. The Administration submitted a "mock-up" draft order for members reference.

10.The Chairman opined that it might be a better safeguard if the death penalty exception could be expressly stated in the principal legislation, since it could not be said with certainty that in future no agreement would be negotiated without a death penalty exception in it. The Chairman also suggested that the Bill should specify that any order to be made under clause 3(1) should not be inconsistent with the principal legislation. Principal Assistant Secretary for Security (PAS(S)) responded that the effect would be the same because the death penalty exception would become part of the law, whether it was stated in the principal legislation or be dealt with in the subsidiary legislation. He undertook to consider the Chairmans suggestion.

Adm

Legal aid

11.PAS(S) and DPCC advised that legal aid was not available at the committal hearing stage. However, a fugitive could be represented before the magistrate under the Duty Lawyers Scheme. Other than the committal hearing, a fugitive would apply for legal aid in other proceedings related to the surrender such as judicial reviews and appeals. PAS(S) added that the Director of Administration had been asked to take into consideration the matter of extradition in his current review on the scope of legal aid.

12.The Chairman remarked that representations provided under the Duty Lawyers Scheme were often related to relatively minor offences while extradition cases were of a more serious nature. He requested the Administration to provide information as to whether fugitives were satisfied with the legal representations provided under the Duty Lawyers Scheme.	Adm

Costs to the fugitives

13.DPCC clarified that the magistrate had power to award costs to the fugitive pursuant to clause 10 in case the magistrate refused to commit the fugitive for surrender.

Bail

14.Mr Albert HO Chun-yan said that a uniform set of principles in respect of bail should be applied in both extradition and non-extradition cases. In any case, a magistrate had to look into the circumstances to decide if bail should be granted. The onus should not be shifted to the fugitive in applying for bail in extradition cases. SCC said that in some jurisdictions such as US, the presumption against bail in committal proceedings was not contained in the legislation but was established by case laws. He undertook to provide the relevant case laws for members reference.

Adm

Discretionary grounds for refusing surrender

15.Mr Albert HO Chun-yan enquired of the reasons for not listing in the Ordinance the discretionary grounds for refusing surrender. DPCC replied that unlike the mandatory grounds in clause 5 which the court must look at, discretionary grounds were matters for the executive to consider, and they varied considerably in each bilateral agreement. Since they were not mandatory grounds, it was not incumbent upon the Governor to make his final decision solely upon those stipulations. The Administration therefore did not prefer to put the discretionary grounds in the legislation. DPCC supplemented that Hong Kong whilst negotiating bilateral agreements had been referring to a model agreement which set out a variety of discretionary grounds for refusing surrender. A lot of jurisdictions, however, had been disinclined to state specifically as many discretionary grounds as Hong Kong would have wanted in the agreement.

16.In reply to the Chairmans questions, DPCC said that the discretionary grounds contained in the bilateral agreements applied to both parties to the agreement. If Hong Kong put in its legislation certain grounds for refusal and exercise them in regard to another jurisdiction, this could mean a breach of agreement by Hong Kong if such grounds for refusal had not been included in the agreement entered into with that jurisdiction.

17.As regards the death penalty exception, DPCC said that Thailand was reluctant to put it in the agreement. Although the sovereign in Thailand would likely commute a death sentence, the Thailand government did not want to commit its sovereign in advance by having the death penalty exception stated in the agreement.

18.Mr Albert HO Chun-yan said that he would not insist that there should be express provisions on discretionary grounds for refusal in the Bill.

Handling of death penalty cases

19.Referring to the Chairmans question on protection of the fugitives in death penalty cases, DPCC said that in all the bilateral agreements applied to Hong Kong there was a death penalty exception provision. Arrangements as regards the surrender of fugitive offenders involved an element of trust between the parties concerned such that where the issue of death penalty came into the picture, the assurance given by the requesting jurisdiction that the death penalty would not be carried out would be binding and accordingly honoured. It was up to the requested jurisdiction to assess the standard and level of assurance that was given. The authority to give the undertaking varied according to the constitutional set-up of each jurisdiction. It might reside in a pardons board, or rest with the sovereign or Head of State. Hong Kong, when acting as a requested jurisdiction, would ensure that the assurance given by the requesting jurisdiction would be pitched at the right level. DPCC added that Hong Kong was adopting a practice which was common in all countries which refused to surrender fugitive offenders for offences carrying a death penalty. The Chairman emphasized that Hong Kong must satisfy itself that the standard of assurance provided by a requesting jurisdiction should not be lower than that required by other advanced countries in handling similar requests for surrender.

20.Regarding another question by the Chairman on whether a fugitive could legally challenge in the court of the requesting jurisdiction a repudiation of the undertaking given by the requesting jurisdiction, DPCC undertook to revert to the meeting with more information. He said that as far as US was concerned, an undertaking given pursuant to a treaty which formed part of the domestic law was binding on the States and the courts. He was not aware of any precedent case where a death penalty was carried out on a fugitive surrendered to a requesting jurisdiction, despite an undertaking had been given by the requesting jurisdiction that the death penalty would not be carried out.

Adm

Clause-by-clause examination of the Bill

Clause 2(1) - "arrangements for the surrender of fugitive offenders"

21.The Chairman enquired of the effects of deleting the words in brackets "other than the Peoples Republic of China or any part thereof." PAS(S) and DPCC replied that the purpose of the Bill was to localize existing arrangements which were UK based and which did not include the Peoples Republic of China (PRC). To delete the said wordings would mean that the scope of the Bill would exceed localization and substantial changes had to be made to the Bill, such as in respect of clauses 6 and 25. The matter of surrender of fugitive offenders between Guangdong and Hong Kong was being discussed separately and there would have to be separate legislation to cover the arrangements.

Clause 2(1) - "authorized officer"

22.PAS(S) and DPCC explained that as the Customs Drug Investigation Bureau could be involved in extradition cases, members of the Customs and Excise Service were included as authorized officers to enable them to apply to the magistrate for a warrant of arrest. The Administration would submit draft Committee stage amendment to include members of the Independent Commission Against Corruption. It was not necessary to specify the rank of the officers concerned since these officers were responsible for the execution of warrants of arrest, or search warrants.

Adm

23.In reply to the Chairmans enquiry, DPCC said that in common law jurisdictions, it was the magistrate who would decide whether a person should stand trial. In committal proceedings, the magistrate would decide whether a fugitive should be surrendered to stand trial in the requesting jurisdiction. But the courts decision was not related to a judgment as to the fugitive being guilty or otherwise. The magistrate as the court of committal was in line with existing law and the general common law approach.

Clause 2 (1) - "supporting documents"

24.DPCC said that the definition of supporting documents was consistent with UK legislation. It reflected what had been stated in the model agreement and the bilateral agreements concluded with other countries. There was also a parallel definition in section 19(3) of the Australian Extradition Act (1988). The Chairman requested Assistant Legal Adviser (ALA) to confirm whether the definition was copied from UK legislation and to bring out points worth noting if there were differences.

ALA4

Clause 2(2) (b)

25.The Chairman enquired of the criteria for establishing whether or not the conduct of a fugitive, if occurred in Hong Kong, would constitute a relevant offence. DPCC replied that in order not to be caught by the different descriptions of an offence, the best way was to refer to the actual conduct in question, examine it in the context of the Hong Kong law and determine whether it was also a criminal offence in Hong Kong. This was essentially the "double criminality" test for an extraditable offence. The evidence provided in the supporting documents submitted by the requesting jurisdiction would enable the requested jurisdiction to make an assessment. DPCC said that the intention of the person to commit the offence in particular case would be relevant if the law in Hong Kong required that a mens rea had to be established.

26.In response to Mr Albert Ho Chun-yans question, DPCC said that the threshold of 12-month imprisonment in respect of a relevant offence was the international norm. There was no requirement lower than that. For those jurisdictions which adopted a higher standard of 24 months, the criterion would be given effect to by suitable modification of the order made under clause 3(1) as regards the arrangements for surrender.

Clause 2(6)(b)

27.DPCC and SALD clarified that some persons might have been charged with an offence and fled the jurisdiction before trial, while some others might have been convicted of an offence and then fled the jurisdiction after a sentence had been imposed on them. The Bill covered fugitive offenders either accused or convicted of an offence.

Clause 3

28.DPCC said that in clause 3(1)(b), "qualifications" contained in the order could comprehend, for instance, the discretionary grounds in bilateral arrangements which could be exercised by the Governor to refuse the surrender of a fugitive. The Governor in Council was considered to be the appropriate authority under clause 3(1).

29Referring to the clause 3(4), the Chairman expressed doubt that whether "the end of a session or a dissolution of the Legislative Council" would cover the scenario of a changeover of sovereignty. He said that whereas in practical terms the present session would end in June 1997, it differed from the past in that in this particular case the session would end because of the expiration of the Letters Patent upon the revert of sovereignty, not as a result of the Governor declaring by notice in the Gazette that the session would end. SALD said that, in his opinion, clause 3(4) did not specify in what circumstances a session should end. He proposed that the words "by whatever means" might be added after "............expire at the end of a session" in clause 3(4). The Chairman requested ALA to review the legal implications of clause 3(4) in conjunction with SALDs proposal.

ALA4

III.Date of Next Meeting

30.The next meeting would be held on 20 January 1997 at 2:30 pm.

IV.Close of Meeting

31.Themeeting closed at 6:35 pm.

LegCo Secretariat

26 February 1997

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