For information
on 20 November 1997

Provisional Legislative Council
Panel on Security

Transfer of Prisoners

Purpose

This paper informs Members of the arrangements for the transfer of prisoners not of Hong Kong origin who are willing to serve their sentences in their country of origin.

Background

2.The purpose of transferring sentenced persons to their own countries to serve their sentences is to facilitate their rehabilitation, by returning to an environment free of language and cultural barriers and where their friends and relatives can visit them on a regular basis.

3.The Transfer of Sentenced Persons Ordinance (TSP) came into operation on 6 June 1997, and provides the legislative backing for implementing arrangements for the transfer of prisoners.

Transfer of Foreign Prisoners

4.Under the TSP Ordinance, transfers can only be effected if arrangements have been concluded with the jurisdiction concerned. Consistent with the terms of the TSP Ordinance, these arrangements must provide that :-

1. the conduct in respect of which the sentenced person is imprisoned be criminal in both jurisdictions;

2. both the receiving and transferring jurisdictions as well as the sentenced person shall consent to the transfer; and

3. any adjustment to the sentence by the transferring jurisdiction (for instance, by way of pardon, reduction of sentence) be given effect to by the receiving jurisdiction.

5.The arrangements referred to can take the form of bilateral agreements which regulate the transfer of prisoners generally, and arrangements for the transfer of a particular prisoner. Our preference is to proceed by way of bilateral agreements although until we have a reasonable network of bilaterals, we will need to have recourse to arrangements for the transfer of particular prisoners.

6.So far, we have signed two bilateral agreements, one with the United States on 15 April 1997, and the second one with the United Kingdom on 5 November 1997. Discussions with other countries are continuing.

7.We have received requests from 53 prisoners of foreign nationalities wishing to be transferred back to their countries of origin to serve the remainder of their sentences. We expect 19 of these prisoners can be transferred under bilateral agreements either signed or about to be signed in the near future. The remaining 34 will be dealt with under arrangements for the transfer of a particular prisoner.

8.Our law, at present, only empowers us to deal with transfers between the Hong Kong Special Administrative Region (HKSAR) and places outside the HKSAR excluding other parts of People's Republic of China (PRC). New legislation will have to be in place before transfer between the HKSAR and the Mainland can take place. Our priority is to negotiate arrangements within the framework of our existing law. TSP falls under the area of juridical assistance. There are a number of juridical assistance issues which need to be discussed with the Mainland. We are working on more urgent issues such as rendition. We also hope to be able to discuss with the Mainland on TSP in the future.

Security Bureau
November 1997