RESPONSE TO BILLS COMMITTEE LETTER OF
23 DECEMBER

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1. The Attorney-General has locus and is accordingly entitled to be heard in proceedings under the Bill because
   1. he represents the jurisdiction requesting surrender. In this regard it should be noted that the agreements being concluded obligate Hong Kong to provide representation in proceedings in Hong Kong.
   2. proceedings under the Bill will only be able to commence after the Governor has issued an authority to proceed. The Attorney-General will accordingly also have locus to represent the Governor.

   Clause 24 may accordingly be categorised as an ‘avoidance of doubt’ provision. Whereas the Administration would prefer to retain it we can agree to its omission.

2. &
3. It is unnecessary to include a reference to the death penalty in the primary legislation. The subsidiary legislation [i.e. the order made under clause 3(1)] will provide that the procedures in the Bill will apply. All the Orders will recite the relevant agreements and provide for the aforementioned procedures to be limited by the provisions in the agreements. If an Order does not provide for a death penalty exception LegCo will have the power to repeal the Order. A ‘mock-up’ draft Order is attached for member’s information.

4. The Bill does not change the existing position in relation to legal aid in extradition proceedings. That position is as follows. Legal aid is not available to the fugitive at the committal stage. However the fugitive can be represented before the magistrate under the Duty Lawyers Scheme. A brief description of this scheme is to be found in the 1996 Hong Kong Year Book [attached]. Apart from the committal hearing, a fugitive could apply for legal aid in all other proceedings relating to the extradition process (e.g. habeas corpus, judicial review and appeals therefrom).

5. The effect of clause 10(2)(a) of the Bill is that the magistrate has power to award costs to the fugitive.

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