EC(97-98)31
For discussion
on 5 November 1997

ITEM FOR ESTABLISHMENT SUBCOMMITTEE OF
FINANCE COMMITTEE

HEAD 92 - DEPARTMENT OF JUSTICE
Subhead 001 Salaries

Members are invited to recommend to Finance Committee the following changes in the directorate establishment of the Department of Justice -

1. the creation of a permanent post of Principal Government Counsel (DL3) ($127,900 - $135,550) in the International Law Division; and

2. the redeployment of two permanent posts of Deputy Principal Government Counsel (DL2) from the Prosecutions Division to the International Law Division.

PROBLEM

The present arrangements within the Department of Justice of having different divisions handling different aspects of mutual legal assistance work are unsatisfactory and cannot cope with the increase in volume and complexity of work.

PROPOSAL

2.The Secretary for Justice (SJ) proposes -

1. establishing a new Mutual Legal Assistance (MLA) Unit in the International Law Division of the Department of Justice to centralise and strengthen the arrangements for processing requests for mutual legal assistance;

2. creating a permanent post of Principal Government Counsel (PGC) (DL3) to head the MLA Unit; and

3. redeploying two permanent posts of Deputy Principal Government Counsel (DPGC) (DL2) from the Prosecutions Division and 11 Senior Government Counsel (SGC) posts from the Civil and Prosecutions Divisions to staff the Unit.

JUSTIFICATION

The present arrangements of handling MLA work

3.At present, different Divisions within the Department of Justice are undertaking different aspects of MLA work -

1. Extradition: the Extradition and Treaties Section of the Prosecutions Division handles incoming and outgoing requests for assistance in the surrender of fugitives. It also advises Government bureaux and departments on matters in respect of extradition and evidence-taking, relevant legislation and international negotiations relating to the surrender of fugitive offenders and MLA;

2. Asset recovery: the Asset Recovery Section of the Prosecutions Division handles incoming and outgoing requests for assistance in respect of the confiscation of proceeds of crime, including applications for production orders and restraint orders;

3. Letters of request: the Civil Division handles incoming requests for assistance in obtaining evidence for foreign civil and criminal proceedings while the Prosecutions Division handles outgoing requests for assistance in obtaining evidence in respect of Hong Kong criminal proceedings;

4. Transfer of prisoners: the Legal Policy Division advises on applications for the transfer of prisoners to and from Hong Kong; and

5. Conducting negotiations: the International Law Division conducts negotiations for international agreements for the surrender of fugitive offenders, MLA and transfer of sentenced prisoners.

Problems with the existing arrangements

4.The present arrangements of having different divisions handling different aspects of MLA work make it difficult for the Department to exercise effective overall supervision, co-ordination and direction in a very important and complex area of work. This is unsatisfactory.

5.In fact, a number of other jurisdictions (such as Switzerland, Germany and the United States of America) have expressed concern about the fact that different requests in relation to mutual legal assistance were handled by different divisions of the Department.

6.The MLA work has increased in both volume and complexity in recent years and we expect this that the trend towill continue in the coming years. We set out at Enclosure 1 details of the increasing workload e in areas of MLA work. We are concerned do not expect that the existing arrangements would not be able to cope with the increasing demand.

The need for an MLA Unit

7.MLA work, of its very nature, involves contacts with authorities overseas and it is important that there should be a focal point of co-ordination and supervision of the lawyers engaged in that work. SJ considers it necessary to establish a dedicated MLA Unit to enhance the overall co-ordination, supervision, direction and efficiency in this important area of work. This will also allow the Unit to cope with the increasing complexity and sensitivity of MLA work.

8.There was considerable discussion at a 1994 Conference on "Mutual Legal Assistance" (attended by representatives from all round the world) about the need for all jurisdictions to establish centralised units to process MLA. Many jurisdictions with which Hong Kong has dealings in the context of MLA (e.g. Australia, Canada, the United States of America and the United Kingdom) have established centralised units to deal with incoming and outgoing requests relating to MLA. Hong Kong should not lag behind in this regard.

9.Establishing an MLA Unit in the International Law Division would also have the following advantages -

1. it would be easier to develop expertise as counsel in the Unit would benefit from exposure to a broader range of international legal work in this field;

2. the Department of Justice would benefit from a more efficient and flexible use of its resources. Extradition, mutual legal assistance in criminal matters and transfer of sentenced persons all require a practical knowledge of criminal law and the enforcement of it in the international arena. A dedicated MLA Unit would enable skills to be shared so that, for example, we could respond quickly and effectively to changing levels of demand for different types of assistance by redeploying resources accordingly;

3. the new Unit will process and despatch requests for MLA and assist in the implementation of international MLA agreements, so as to ensure that Hong Kong does not become, for example, a centre for remitting the proceeds of foreign crime or a destination for criminals wanted overseas;

4. Hong Kong would be able to carry out its international legal obligations more effectively;

5. jurisdictions elsewhere would benefit from the convenience of channelling their requests to one unit, with the greater assurance that the requests, which for a single crime could cover extradition, the taking of evidence, search and seizure, the freezing and confiscation of assets and eventually the transfer of a prisoner, would be carried out efficiently and promptly by people whom they know and who are familiar with the case and the issues that arise; and

6. this would greatly enhance the prospect of developing and maintaining good contacts, which are critical to the successful execution of requests by Hong Kong too.

Staffing of the new MLA Unit

10.SJ proposes to create a PGC to head the Unit. There is at present no PGC in the Department who is responsible solely for MLA. The two PGC in the Prosecutions Division who currently have the responsibility to supervise the Asset Recovery Section and the Extradition and Treaties Section have to supervise nine other sections as well, and hence cannot supervise MLA work on a day-to-day basis. Similarly, in the Civil Division, no PGC is currently able to supervise the work on incoming letters of request on a day-to-day basis; in practice, we refer difficult cases directly to the Law Officer (Civil Law). The existing PGC in the Legal Policy Division is only partially involved in transfer of prisoners matters and establishment of an MLA Unit will not reduce much of his existing workload. The PGC in the International Law Division is heavily involved in providing international legal advice and negotiating bilateral agreements and cannot, additionally, supervise the work of the MLA Unit.

11.Given that all existing PGC are occupied with other work and that the new MLA Unit will deal with a large volume of MLA requests, many of which are of complex and sensitive nature, SJ considers that an additional PGC is necessary to supervise this work and to give the work the time and focus it deserves. The officer would need to have sufficient experience and the necessary personality and drive to forge international ties and to establish the international reputation of the new Unit. The proposed duty list of the PGC is at Enclosure 2.

12.SJ further proposes to re-deploy the two DPGC posts currently leading the Asset Recovery Section and the Extradition and Treaties Section of the Prosecutions Division to the new MLA Unit. The duty lists of the two DPGC posts proposed to be re-deployed are at Enclosures 3 and 4 respectively. We will redeploy also 11 SGC posts and the necessary clerical and secretarial supporting staff from the Civil Division and the Prosecutions Division to the Unit. The proposed organisation of the International Law Division with the creation of the MLA Unit is at Enclosure 5.

FINANCIAL IMPLICATIONS

13.The additional notional annual salary cost of this proposal at MID-POINT is -

Permanent post	$	No. of post
Principal Government Counsel	1,580,400	1

14.The full annual average staff cost of the proposal, including salaries and staff on-costs, is $2,782,572.

15.In addition, this proposal will necessitate the creation of one Personal Secretary I post at a notional annual mid-point salary cost of $275,880 and a full annual average staff cost of $429,396.

16.We have included sufficient provision in the 1997-98 Estimates to meet the cost of this proposal.

BACKGROUND INFORMATION

17.We submitted a similar proposal for Members' consideration at the Establishment Subcommittee meeting on 14 June 1996. In that submission, we proposed that a central unit be established as part of the Legal Policy Division. During the meeting, Members were not satisfied with the justifications provided and also requested further information on the work of the proposed MLA Unit, and the nature and frequency of complaints received by the Department on not having a dedicated MLA Unit. We then withdrew the proposal. We have now provided further justifications and explained the MLA work in more details in the present paper. As regards the complaints, we have explained in paragraph 5 above that a number of countries have expressed concern over the present arrangements of handling MLA work. However, we do not maintain statistics in this area.

18.We now propose to put the proposed MLA Unit in the International Law Division which is responsible for negotiating the relevant agreements on extradition, transfer of prisoners and other forms of MLA. This would permit greater liaison between those officers who negotiate the agreements and those who implement them. It would also permit additional flexibility in the deployment of these officers, depending on resource needs at any particular time.

CIVIL SERVICE BUREAU COMMENTS

19.Having regard to the nature of MLA work and the need for such work to be handled centrally, the Civil Service Bureau supports the creation of a new MLA Unit in the International Law Division. The grading, ranking and number of posts proposed for creation and re-deployment are considered appropriate.

ADVICE OF THE STANDING COMMITTEE ON DIRECTORATE SALARIES AND CONDITIONS OF SERVICE

20.The Standing Committee on Directorate Salaries and Conditions of Service has advised that the grading proposed for the posts would be appropriate if the posts were to be created.

Department of Justice
October 1997

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Enclosure 1 to EC(97-98)31

Increase in MLA work

The MLA work has increased in the past few years. We set out below some statistics to illustrate the level of MLA work presently handled by the Department.

1. The number of items of advice given by the Extradition and Treaties Section and the Asset Recovery Section rose from a combined total of 1 176 in 1994, to 1 619 in 1995, 2 075 in 1996;

2. the number of requests received and made by Hong Kong in respect of the surrender of fugitive offenders was 24 in 1994, 14 in 1995, 25 in 1996 and 20 in the first nine months of this year. Details are at Appendix 1. Many of these cases involve prolonged and complex legal proceedings both in Hong Kong and in other jurisdictions;

3. the number of requests received and made by Hong Kong in respect of confiscation, restraint and investigative assistance was 10 in 1994, 5 in 1995 and 1996, and also 5 in the first nine months of this year. Details are at Appendix 2;

4. the number of letters of request received for the taking of evidence was 48 in 1994, 47 in 1995, 40 in 1996 and 43 in the first nine months of this year. Details are at Appendix 3;

5. the number of outgoing letters of request made was 13 in 1994, 9 in 1995, 14 in 1996 and 9 in the first nine months of this year. Details are at Appendix 4 (The data exclude requests for assistance which do not involve the courts.); and

6. the number of applications for the transfer of prisoners to and from Hong Kong was 5 in 1994, 23 in 1995, 13 in 1996 and 46 in the first nine months of this year. Details are at Appendix 5.

2.Although some of the statistics on MLA work above do not show an increase in cases, there was substantial increase in the level of complexity of the cases which require our Counsel to spend much more time and effort. This is partly reflected in the increase (shown in paragraph (a) above) in the items of written advice. There have also been more cases that involve white collar crime, which by their nature tend to be complex and voluminous. For example, in one recent case the Extradiction and Treaties Section had to prepare over 50 box files of evidence for a single outgoing request. It has also become a common practice for foreign law enforcement agencies to seek preliminary advice as to whether we would be able to assist them in a particular case if they were to make a request; and to ask how such a request would need to be formulated, and to whom it would have to be addressed. Such enquiries are likely to include an outline of the case, which counsel have to consider. Our response to such enquiries sometimes results in formal requests being submitted, and those formal requests appear in the statistics in the enclosures to this paper. But in other cases no request ensues, and they therefore do not appear in the statistics of requests.

3.Presently, we are continuing to negotiate international agreements to ensure that the Hong Kong Special Administrative Region (HKSAR) has arrangements for MLA in criminal cases. The Department's work with regard to MLA will increase in the coming years. The reasons are as follows -

1. Extradition: At present, we have signed eight Surrender of Fugitive Offenders Agreements, have initialled two others, and are negotiating other agreements. Further negotiations will be necessary to secure a wider network of agreements. The Central People's Government has authorised the HKSAR Government to negotiate further agreements to cover countries with which there is a practical need for such arrangements. The recently enacted Fugitive Offenders Ordinance also provides for fugitive offenders to be surrendered under ad hoc arrangements where there is no standing bilateral agreement with the requesting jurisdiction.

2. Assistance in the investigation and prosecution of crime (including restraining and confiscating the proceeds of crime): this will be the largest growth area. We have now signed three new bilateral agreements, have entered negotiations for four more, and expect to have more agreements with other countries. While former arrangements only covered drug trafficking, the new agreements cover all serious crime and the range of assistance to be provided will be greater. For instance, they provide for locating and identifying persons to give evidence, the transfer of prisoners to provide assistance, service of documents on witnesses, and the execution of requests for search and seizure. Since the agreements cover all serious crime, the proceeds of crime confiscated in Hong Kong will increase. This represents a potential, but unquantifiable, benefit to the revenue of the Government if more orders are made by the courts, although there will also be a financial cost in securing such orders. The Mutual Legal Assistance in Criminal Matters Ordinance provides for the agreements to be implemented in Hong Kong. The Ordinance also permits assistance to be given even if there are no such arrangements.

3. Transfer of prisoners: formerly there was only one bilateral agreement on this subject applying to Hong Kong, and that was between the United Kingdom and Thailand; we are now negotiating a replacement between the HKSAR and Thailand. In addition we have concluded a new bilateral agreement with the USA, and we expect it will result in applications for the transfer of prisoners between the HKSAR and the USA. Furthermore, since the Council of Europe Convention on this subject no longer applies to Hong Kong, there is a need to negotiate further bilateral agreements. The legislation to implement these agreements, namely the Transfer of Sentenced Persons Ordinance, was enacted earlier this year.

4. We will need to arrange for mutual legal assistance with other parts of China, and are assessing the scale of such work.

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Appendix 1

Statistics on Extradition

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Appendix 2

Statistics on Request for Confiscation, Restraint and Investigative Assistance

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Appendix 3

Statistics on Incoming Letters of Request Received by Hong Kong

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Appendix 4

Statistics on Outgoing Letters of Request Made by Hong Kong

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Appendix 5

Statistics on Application for Transfer of Prisoners

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Enclosure 2 to EC(97-98)31

Main duties and responsibilities of the
Principal Government Counsel (Mutual Legal Assistance)

Responsible to the Law Officer (International Law) for -

1. directing and supervising work in respect of incoming letters of request, asset recovery, surrender of fugitives, outgoing letters of request and the transfer of prisoners;

2. developing good working relationships with mutual legal assistance authorities in other jurisdictions;

3. attending international negotiations relating to mutual legal assistance;

4. advising on and assisting in the preparation and promotion of domestic legislation giving effect to Hong Kong's mutual legal assistance agreements;

5. providing guidance and training to counsel of the MLA Unit; and

6. performing such other duties as may be assigned from time to time by the Law Officer (International Law), including taking part in the overall management of the International Law Division of Department of Justice.

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Enclosure 3 to EC(97-98)31

Main duties and responsibilities of the
Deputy Principal Government Counsel (Mutual Legal Assistance) I

Responsible to the Principal Government Counsel (Mutual Legal Assistance) for -

1. directing and supervising the day-to-day work in respect of incoming letters of request and asset recovery;

2. handling litigation and advising in relation to incoming letters of request;

3. handling litigation, advising on, preparing or settling court papers and appearing in courts on matters relating to the restraint and confiscation of assets under the Drug Trafficking (Recovery of Proceeds) Ordinance and the Organised and Serious Crimes Ordinance;

4. providing legal advice in respect of Hong Kong's contribution to the Financial Action Task Force;

5. managing and overseeing employment of outside professionals and ensuring their costs are reasonable; and

6. performing such other duties as may be assigned from time to time by the Principal Government Counsel (Mutual Legal Assistance), including taking part in the overall management of the MLA Unit.

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Enclosure 4 to EC(97-98)31

Main duties and responsibilities of the
Deputy Principal Government Counsel (Mutual Legal Assistance) II

Responsible to the Principal Government Counsel (Mutual Legal Assistance) for -

1. directing and supervising the day-to-day work in respect of surrender of fugitives, outgoing letters of request and the transfer of prisoners;

2. drafting charges that comply with international treaties and conventions and with the laws relating to the surrender of fugitives in other jurisdictions;

3. overseeing the preparation of all necessary documentation connected with the surrender of fugitives;

4. attending court proceedings connected with the surrender of fugitives, including those on behalf of foreign States seeking fugitives in Hong Kong;

5. examining requisitions from foreign countries to ascertain their compliance with the Laws of Hong Kong and the terms of any relevant treaty;

6. overseeing the preparation of letters of request in criminal matters to be issued to other jurisdictions;

7. advising on requests for the transfer of prisoners to and from Hong Kong;

8. attending international negotiations relating to mutual legal assistance and surrender of fugitive offenders; and

9. performing such other duties as may be assigned from time to time by the Principal Government Counsel (Mutual Legal Assistance), including taking part in the overall management of the MLA Unit.