1. To provide information from past experience, as to whether fugitives were satisfied with the legal representations provided under the Duty Lawyers Scheme.

The Duty Lawyer Scheme provides legal representation to any defendant, including a fugitive offender facing extradition from Hong Kong, in the Magistrates’ Courts where the interests of justice so require.

Legal assistance provided by the Duty Lawyer Scheme includes representation of the fugitive in the Magistracy during the initial stages following arrest, and subsequently at committal proceedings.

As far as legal assistance is concerned, fugitive offenders are treated no differently from other defendants charged with a criminal offence in the Magistrates’ Courts. The Scheme is therefore of value to the fugitive offenders and is steadily utilized by defendants facing extradition as indicated by the following statistics -

Our experience is that those who do not seek assistance under the Duty Lawyer Scheme are represented by private lawyers.

2. To provide case laws in respect of the application for bail by fugitives in other jurisdictions.

Clause 10(b) of the Bill contains a presumption against bail. This is not unusual in the context of extradition proceedings.

The Australian Extradition Act 1988, section 15(6), contains a similar provision.

In the United States, there is also a presumption against bail in extradition proceedings. This presumption is not contained in the legislation, but is established by case law. See, for example, the extract from an Order dated April 25 1996 of Judge Tauro on the Jerry Lui Case, at pages 12-15.

In the United Kingdom a fugitive is entitled to bail, but the courts have noted that these cases are not to be treated in the same way as domestic bail applications. In R v Phillips [1922] All E.R., the court said there was an added ingredient in considering bail in extradition cases in that the United Kingdom had entered into international treaty obligations to ensure that the fugitive was returned to the requesting state for trial. In Re Nazir Chinoy (Divisional Court, 10 December 1990), the court said bail can be granted in exceptional circumstances.

Clause 10(2)(a) of the Bill gives the court of committal like jurisdiction and power (including the "power to remand in custody or on bail") as if the person brought before it were charged with an indictable offence committed in Hong Kong. Clause 10(5) of the Bill makes it clear that although the court of committal has power to grant bail as if the proceedings were domestic proceedings, the test for granting bail is not the same.

The legislation and cases referred to above are at Annexure C.

3. To consider specifying in the Bill that any order to be made under clause 3(1) should not be inconsistent with the principal Ordinance.

Clause 3(8) provides that the arrangements to which orders under clause 3(1) relate must be substantially in conformity with the provisions of the Ordinance. It is considered that this provision meets the concern raised; obviously arrangements will differ slightly as between each other and the provisions of the Ordinance.

4. To include members of ICAC as authorised officers [clause 2]

A draft CSA has been prepared to amend the definition of authorised officer by -

1. including ICAC officers as authorised officers, and
2. also including other persons authorised by the AG.

The amendment at (b) is intended purely to give greater flexibility.

[The draft CSA is at page 1 of Annexure B - opposite clause 2(1).]

5. To amend clause 3(4) so as to bring it in line with the provision in section 34(3), Interpretation and General Clauses Ordinance (Cap.1)

A draft CSA has been prepared to amend clause 3(4) as suggested. The CSA also consequentially amends clause 3(5) to bring it into line with the amended clause 3(4).

[The draft CSA is at pages 1 and 2 of Annexure B - opposite clause 3.]

6. Before the Governor gives consent under clause 5(2)(c), a fugitive should be provided a period within which he can make representations to the Governor. This is to ensure that the fugitive will be given a chance to be heard for any other offence being instituted by the requesting jurisdiction

A draft CSA has been prepared to amend clause 5 to provide for the above not only in relation to clause 5(2)(c) (the Governor’s discretion to consent to a surrendered fugitive being dealt with in respect of relevant offences other than those for which he was surrendered), but also in relation to clause 5(4)(b) (the Governor’s discretion to consent to the re-surrender of a surrendered fugitive to another place outside Hong Kong other than the prescribed place to which he was surrendered). The relevant provisions give the surrendered fugitive (or his representative) 21 days to make representations to the Governor, and the Governor is required to take any such representations into account before making a decision.

[The draft CSA is at pages 2-5 of Annexure B - opposite clause 5.]

7. To delete "by any person to whom it is directed or" from clause 7(3)

A draft CSA has been prepared to amend clause 7(3) as suggested. Now only an authorized officer may execute a warrant issued under clause 7. There are two consequential amendments to clause 8(1) of the Bill.

[The draft CSA is at page 5 of Annexure B - opposite clause 7(3). The consequential is also at page 5 of Annexure B - opposite clause 8, see (a)(i) and (a)(iii).]

8. To consider amending clause 8(2)(a) to the effect that any property that may be material as evidence in proving an offence to which a request for surrender has been made or will be made

A draft CSA has been prepared to amend clause 8(2)(a) as suggested. As a corollary to that amendment, clause 8(1)(a) is also amended to replace the reference to request for surrender in that clause with a reference to the warrant by virtue of which the fugitive is arrested.

[The draft CSA is at page 5 of Annexure B - opposite clause 8, see (a)(ii) and (b).]

9. To further examine clause 9. Members consider that the power to dispose of the property should rest with the court rather than the Governor

A draft CSA has been prepared to delete clause 9(2) and substitute a new clause 9(2) which gives a magistrate, rather than the Governor, the power to dispose of property seized under clause 8.

[The draft CSA is at pages 5, 6, 7 of Annexure B - opposite clause 9(2).]

10. To consider specifying in clauses 11(7) and 11(8) the period within which proceedings for an appeal may be instituted.

Draft CSAs have been prepared to amend clause 11 [dealing with appeals by the requesting jurisdiction] and clause 12 [dealing with appeals by the fugitive]. The draft CSAs set a time limit of 14 days for appeals to the Court of Appeal and the Privy Council.

[The draft CSAs are at pages 7 and 8 of Annexure B - opposite clause 11(7) and (8) and clause 12(7) and (8).]

11. To review the drafting of clause 14(3)(b) to make it clear that no appeal has been instituted after the normal period for having such proceedings brought before any other court.

A draft CSA has been prepared to make it clear that the period of one month does not begin to run until the time limit for appeals has expired. The previous provision provided, in effect that the period began to run when the original application for judicial review was rejected or no appeal had been lodged. This provision was not apt to cope with the situation where an appeal was lodged. The new wording closely follows that used in section 16(4)(b) of the U.K. Extradition Act 1989. A similar amendment is also made to clause 15(8)(b).

[The draft CSAs are at pages 8 and 9 of Annexure B - opposite clause 14, see (a), and clause 15(8)(b).].

12. To add a provision in clause 14 to the effect that where an order is granted pursuant to clause 14(4) by the court, no further request for surrender should be made of that person for the offence to which the original order related (sic)

A draft CSA has been prepared to specifically meet this point.

[The draft CSA is at page 9 of Annexure B - opposite clause 14, see (b).]

13. To advise on the policy intent of the provisions in clause 15 and how they will be operated.

Clause 15 reflects provisions in the agreements Hong Kong is concluding. The policy intent is to permit prisoners serving sentences of imprisonment in Hong Kong to be temporarily surrendered to places outside Hong Kong to stand trial for offences committed there. Such a person will only be temporarily surrendered if the place outside Hong Kong guarantees that the person will remain in custody whilst on trial in that place AND on completion of the trial be returned to Hong Kong to continue serving the Hong Kong sentence.

The reason behind the policy is that persons serving lengthy terms of imprisonment in one jurisdiction may, but for the capacity to order temporary surrender, avoid trial in another jurisdiction since by the time they have served their original sentence of imprisonment the evidence against them may be unavailable.

Implementation of the policy will depend on all the circumstances of the particular case. And of course it should be noted that temporary surrender is at the discretion of the requested jurisdiction. The circumstances which would be relevant are -

the length of time which remains to be served in the requested jurisdiction.
the seriousness of the offence in the requesting jurisdiction.
the likely length of proceedings in the requesting jurisdiction.
whether the custody in the requesting jurisdiction would be appropriately secure.

14. Under clause 17 in case where the surrendering jurisdiction does not consent to a person being tried for any other offence, the person has to be given an opportunity of leaving Hong Kong. To consider whether or not the person should be informed that he will be tried for another offence after the 40 days has lapsed.

It is not usual to provide in legislation that persons be informed of the content of legislation that may have some bearing on their future action. Certainly we are not aware of a precedent in extradition legislation. If there was a requirement to inform the person at the time of his conviction and the person had to serve, say, fifteen years it would be difficult to prove, on his discharge, that he had been informed. And, in most cases, the fugitive would have forgotten the original information. If he had to be informed at the time of discharge it would, administratively, be very difficult to ensure that this occurred.

In all the circumstances we are not in favour of making the legislative provision suggested.

15. To consider whether the court should be the appropriate authority, rather than the Governor, to decide on whether or not to arrange for the fugitive to be sent back free of charge as provided under clause 18

Upon further reflection it is considered that it should be mandatory rather than discretionary to send a fugitive back free of charge where the circumstances specified in paragraph (a) or (b) of clause 18(2) arise. If that is accepted, then no purpose would be served by replacing the Governor with a court in that clause. Accordingly, a draft CSA has been prepared to amend clause 18(2) to require the Governor to arrange to send a fugitive back free of charge where the specified circumstances occur and the fugitive requests the Governor to do so.

[The draft CSA is at page 9 of Annexure B - opposite clause 18(2).]

16. To add a provision to clause 19 to make it clear that the person was kept in custody on behalf of the prescribed place

A draft CSA has been prepared amending clause 19 to add new clause 19(2) and (3). New clause 19(2) makes it clear that no magistrate or court may remand or release on bail a fugitive the subject of an undertaking referred to in clause 19(1) which is still binding. (This does not, of course, prejudice the fugitive’s discharge from custody pursuant to clause 19(1)(i)(B)). New clause 19(3) (which to some extent parallels clause 16) makes it clear that such an undertaking is sufficient authority to arrange for the fugitive’s return to the prescribed place concerned upon the occurrence of any event specified in the undertaking as an event which "triggers" that return. (Say, for example, the fugitive’s trial in H.K. has concluded and there is no appeal pending).

[The draft CSA is at pages 10 and 11 of Annexure B - opposite clause 19.]

17. For consistency the power to issue a warrant under clause 20(2) should rest with the Governor.

A draft CSA has been prepared empowering the Governor, rather than a magistrate, to extend the period of custody beyond forty eight hours.

[The draft CSA is at pages 11 and 12 of Annexure B - opposite clause 20.]

18. To advise on the practice under the Hague Convention 1961 concerning the authentication of documents.

The full title of this Convention is CONVENTION ABOLISHING THE REQUIREMENT OF LEGALISATION FOR FOREIGN PUBLIC DOCUMENTS (The Hague, 5 October 1961). The Convention currently applies to Hong Kong and will continue to do so after 30 June 1997.

The features of this Convention are -

foreign public documents which have to be produced in another jurisdiction need NOT be legalised [some extradition documents will be foreign public documents].
legalisation means the formality by which diplomatic or consular agents of the jurisdiction where the document was produced certify the authenticity of the signature, the capacity in which the person signing the document has signed, and, where appropriate, the identity of the seal or stamp which it bears.
instead of legalisation there is to be a ‘certificate’ from the competent authority of the State from which the document emanates.
such a certificate will certify the authenticity of the signature, the capacity in which the person signing the document has signed and where appropriate the identity of the seal or stamp which the document bears.
the Convention is only to override the formalities in bilateral agreements if they are more rigorous than the formalities required by the certificate.

The ‘certificate’ process is clearly more rigorous than the authentication requirements in our bilateral agreements which are reflected in the Bill. In this regard it should be noted that extradition documents only need to purport to be signed or sealed.

19. To review the drafting of clause 23(2) to avoid an extreme case where court judgments will be signed by non-judicial officers.

We have carefully re-examined this provision and have prepared a draft CSA as a result. In the course of our researches we noted that -

• affidavits from requesting jurisdictions are sometimes sworn before, for instance, a notary public, who is not a judge magistrate or officer of the Requesting Party. In such a case the prosecutor (who is an officer of the Requesting Party) will certify the evidence.

documents (including evidence) could have originated in a third jurisdiction. Clause 23(2)(a), insofar as it refers to the place where the document was issued is, accordingly deficient.
court judgments are often signed by non-judicial officers. Certificates of conviction from some jurisdictions may be signed by an official in the court registry.
; we do not believe that use of the word ‘officer’ is apt to result in junior staff authenticating documents. This is not the international practice. In the case of In Re Espinosa (1985) the Divisional Court held that ‘officer" included ‘a public prosecutor or person in some such comparable position’.

Our conclusion is that flexibility is necessary in provisions of this type to cater for differing authentication procedures in requesting jurisdictions, and the redrafted provision reflects this. We have however attempted to provide greater clarity by providing an inclusive definition of ‘competent authority’.

[The draft CSA is at page 13 of Annexure B - opposite clause 23, see (a) and (c).]

20. To consider adding a provide in clause 24 that if the requesting jurisdiction is privately represented, then the Attorney General will appear and be heard in the proceedings.

Clause 24 of the Bill gives the Attorney General right of audience in all extradition cases.

It is usual practise for the Attorney General to appear on behalf of the requesting State. This is desirable for a number of reasons :

1. the Attorney General must advise the Governor whether there is sufficient evidence to proceed with the request;
2. the Attorney General works closely with Interpol and the investigating authorities throughout the duration of the court proceedings. Strict confidentiality must be maintained;
3. the Attorney General must advise the Governor whether to surrender the fugitive;
4. Hong Kong meets all costs relating to the extradition, including court representation;
5. Hong Kong has treaty obligations to prosecute the extradition expeditiously, competently and in good faith.

The briefing of outside counsel to act for the requesting state would only arise in extremely rare circumstances e.g. a serious conflict of interest.

In the rare case where this did become necessary, the Attorney General should be present because the extradition is by nature a government to government request and considerations such as those listed in paragraph 2 above apply.

If the Committee remains opposed to this provision in its present form, then the Administration will agree to delete it. Right of audience will then be governed by the presiding magistrate.

21. To review the drafting of clause 25(4)(a)(i). Whether it should read ‘application for the issue of a provisional warrant for the arrest ......’.

The clause referred to relates to applications by Hong Kong for ‘provisional arrest’ of fugitives from Hong Kong in places outside Hong Kong. ‘Provisional arrest’ is not defined in the Bill. There is however a definition of ‘provisional warrant’ which only relates to arrests in Hong Kong. It is therefore appropriate to distinguish an arrest outside Hong Kong by referring to such an arrest as a ‘provisional arrest’. Additionally it should be noted that the term ‘provisional arrest’ is used in the agreements Hong Kong is concluding. The clause should accordingly remain as drafted.

22. On admissibility of evidence to add a provision under clause 10(2) to the effect that the magistrate has to be satisfied that the person brought before the court is in fact the person named in the request for surrender.

A draft CSA has been prepared to specifically meet this point.

[The draft CSA is at pages 12 and 13 of Annexure B - opposite clause 23, see (b) and (c).]

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