LC Paper No. CB(2) 716/98-99

Ref : CB2/SS/5/98

Purpose

1 This paper reports on the deliberations of the Subcommittee on the five resolutions made under section 4 of the Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525) (the Ordinance).

Background

2. The Ordinance became fully operational on 20 February 1998. Section 4(1) of the Ordinance provides that the Chief Executive in Council may, with the approval of the Legislative Council (LegCo), in relation to any arrangements for mutual legal assistance, by order (to which is annexed a copy of the arrangements) direct that the Ordinance shall, subject to such modifications thereto as may be specified in the order, apply as between Hong Kong and the place outside Hong Kong to which the arrangements relate. Section 4(3) requires that the modifications be summarized in a Schedule to the order. Section 4(7) restricts the LegCo's power under section 35(b) of the Interpretation and General Clauses Ordinance (Cap. 1) to amend the whole or any part of the subsidiary legislation by only allowing the LegCo to approve or repeal the whole subsidiary legislation.

3. Before reunification, the Hong Kong Government has signed two bilateral agreements with the Governments of Australia and France; and following the reunification, the Hong Kong Special Administrative Region (HKSAR) Government has signed three bilateral agreements with the Governments of New Zealand, the United Kingdom and the United States of America concerning mutual legal assistance in criminal matters.

4. At the meeting of the Executive Council on 13 October 1998, the Council advised and the Chief Executive ordered that the following five Orders be made under section 4(1) of the Ordinance -

1. Mutual Legal Assistance in Criminal Matters (Australia) Order;
   
   
2. Mutual Legal Assistance in Criminal Matters (France) Order;
   
   
3. Mutual Legal Assistance in Criminal Matters (New Zealand) Order;
   
   
4. Mutual Legal Assistance in Criminal Matters (United Kingdom) Order; and
   
   
5. Mutual Legal Assistance in Criminal Matters (United States of America) Order.

5. The above five Orders will permit the bilateral agreements mentioned in paragraph 3 above to be brought into force. Schedule 1 to each of the Orders contains a copy of the bilateral agreement entered into between Hong Kong and the country concerned.

6. The five Orders specify the scope and procedures in relation to the provision of assistance in criminal matters. They also provide for safeguards in the rights of persons involved in criminal proceedings. They are substantially in conformity with the provisions in the Ordinance.

7. The five Orders will come into operation on days to be appointed respectively by the Secretary for Security by notice in the Gazette.

The Five Resolutions

8. The Secretary for Security had originally given notices to move five resolutions at the Legislative Council meeting on 11 November 1998 seeking the LegCo's approval of the five Orders mentioned in paragraph 4 above. The Secretary for Security had subsequently withdrawn the notices in view of the House Committee's decision to form a subcommittee to study the five Orders.

The Subcommittee

9. At the House Committee meeting held on 30 October 1998, members agreed that a Subcommittee should be formed to study the five Orders.

10. Under the chairmanship of Hon James TO Kun-sun, the Subcommittee held a meeting with the Administration on 17 November 1998. A membership list of the Subcommittee is at the Appendix.

Deliberations of the Subcommittee

11. Members have agreed that the Legal Service Division's Report (LC Paper No. LS 56/98-99), which sets out the background to the making of the five Orders and the reasons for the modifications to the Ordinance detailed in the Schedules to the Orders, should be used as the basis for discussion.

The Australia Order

12. In response to members' enquiries on the modifications to the Ordinance set out in Schedule 2 to the Australia Order, the Administration has advised that the modifications reflect areas in which the Hong Kong/Australia Agreement varies from the Ordinance. These variations reflect the practice in the relevant legislation of Australia. Such modifications to the Ordinance are necessary to enable Hong Kong to comply with the obligations in the Agreement.

13. The Administration has explained that section 5(1)(e) of the Ordinance provides that the Secretary for Justice shall refuse assistance if the request relates to the prosecution of a person for an offence in respect of which he has been convicted, acquitted, pardoned or punished in the requesting jurisdiction. Article IV(1)(e) of the Agreement extends this protection to the requested jurisdiction as well. The modification to section 5(1)(e) of the Ordinance reflects the provision in the Agreement.

14. The Administration has further explained that under section 17 of the Ordinance, a person who comes to Hong Kong from another jurisdiction to render assistance is given certain immunities. These immunities cease to apply if the person has had the opportunity of leaving Hong Kong and has remained in Hong Kong otherwise than for the purpose of rendering assistance. Article XVII(2) of the Agreement provides that the immunities will continue to be applicable for a period of fifteen days after the person has had the opportunity of leaving Hong Kong. The modification reflects the additional protection in the Agreement by providing for a fifteen days' period in section 17.

15. In response to the Chairman's query concerning paragraph 2 in Article IV of the Agreement, the Administration has pointed out that this paragraph is new to the model agreement and provides for three discretionary grounds for refusing assistance. The model agreement does not deal with the "lapse of time" issue as there is hardly any serious offence in Hong Kong which could not be prosecuted by reason of lapse of time. The inclusion of paragraph 2(a) in Article IV was in response to the Australian Government's request that the Agreement should provide for discretionary ground for refusing assistance in the rare case where the offence could not be prosecuted by reason of lapse of time if the offence had been committed within the jurisdiction of the Requested Party.

16. The Administration has pointed out that Article VIII of the Agreement deals with confidentiality and limitations of use of material provided. The Australian Government has, however, requested that it should be made clear in Article IV, which deals with limitations on compliance, that the Requested Party may refuse assistance if the Requesting Party cannot guarantee that the material provided could be treated confidentially. In reply to members' question as to how the provisions in Article VIII would apply in relation to court proceedings in Hong Kong which are held in open court, the Administration has explained that such proceedings could be held in camera.

17. The Administration has also explained that the discretionary ground for refusing assistance in paragraph 2(c) in Article IV, which covers offences committed outside the area under the jurisdiction of the Requesting Party, is an extension of the double criminality requirement.

18. Members are of the view that the Australia Order should be supported.

The France Order

19. The Subcommittee has noted that the first of the two modifications set out in Schedule 2 to the France Order is identical to the modification in the Australia Order which extends the protection in section 5(1)(e) of the Ordinance relating to conviction, acquittal or pardon in the requested jurisdiction.

20. The Administration has explained that the other modification to section 5(1)(e) is to provide for refusal of assistance if the offence, had it occurred in Hong Kong, could no longer be prosecuted by reason of lapse of time. This modification reflects Article IV(1)(f) of the Hong Kong/France Agreement. The French Government has asked for the inclusion of the "lapse of time" provision in the Agreement as there are a number of offences under the Continental legal system where a statutory time limit for prosecution is specified.

21. Members have pointed out that the modification to section 17 concerning the period of immunity in the France Order is different from that provided for in the Australia Order. The Administration has explained that this reflects the different practices adopted in the countries concerned.

22. In reply to the Chairman's enquiry, the Administration has advised that paragraph 1(g) of Article IV of the Agreement is a variation to the model agreement. Article IV(1)(g) modifies the double criminality requirement to the effect that where assistance does not involve the use of compulsory measures (e.g. taking evidence, executing requests for search and seizure, confiscating the proceeds of crime) assistance can nevertheless be granted. In practical terms this means that the only assistance which does not require double criminality is "informal assistance" such as the provision of information regarding a person's whereabouts. This assistance is in any event normally provided through INTERPOL. The variation is accordingly of little practical significance. The Administration has further explained that if the French Government requests the Police in Hong Kong to interview a person in a police station, the person is under no compulsion to provide information and can refuse to cooperate.

23. According to the Administration, Article IX of the Agreement derives from Article IX(4) of the model agreement. It is included as a separate Article since under the French law all requests are executed by judicial authorities and persons can attend these requests, such as attending an application for the issue of a search warrant. It was therefore decided that, in the light of French law, this provision should be of general application and not limited to requests for the taking of evidence. Members are of the view that Article IX protects the rights of the individual and they consider that this Article should be of general application and included as a separate Article in the Agreement.

24. Members have concluded that the France Order should be supported.

The New Zealand Order

25. The Administration has pointed out that the first modification to section 5(1)(e) of the Ordinance set out in Schedule 2 to the New Zealand Order extends the protection in relation to conviction, acquittal or pardon in the requesting state, requested state or a third jurisdiction. As the general application of the New Zealand law provides protection in relation to previous convictions etc. in the requested jurisdiction and third jurisdictions as well, the New Zealand Government has therefore requested that it be incorporated in the HKSAR/New Zealand Agreement. The HKSAR has acceded to the request, given that the types of mutual legal assistance are mainly confined to identifying and locating persons, taking evidence and executing requests for search and seizure etc. and do not involve extradition which is provided for in other legislation.

26. Members have noted that -

1. the further modification to section 5(1)(e) is the same as the modification provided for in the France Order. This reflects the provision in Article IV(4) of the Agreement; and
   
   
2. the modification to section 17 is the same as the modification provided for in the Australia Order except that the period of immunity is twenty one days. This reflects the additional protection in Article XVII(2) of the Agreement.

27. Members have concluded that the New Zealand Order should be supported.

The United Kingdom (UK) Order

28. Members have noted that -

1. the first modification to section 5(1)(e) of the Ordinance is exactly the same as the modification provided for in the France Order. This reflects the provision in Article IV(1)(e) of the HKSAR/UK Agreement; and
   
   
2. the further modification to section 5(1)(e) is exactly the same as the modification provided for in the France Order. This reflects the provision in Article IV(1)(e) of the Agreement.

29. In response to members' enquiries concerning the new paragraph (h) added to section 5(1), the Administration has explained that the new paragraph provides that the Secretary for Justice shall refuse assistance if the request relates to confiscation of the proceeds of crime and the underlying offence would not be a basis for confiscation in Hong Kong had the offence occurred in Hong Kong. The new paragraph was included at the request of the UK Government as they have indicated that they have limited resources to enforce foreign confiscation orders. The modification reflects Article IV(1)(h) of the Agreement.

30. Members have noted that the modification to section 17(3) of the Ordinance is exactly the same as the modification provided for in the Australia Order. This reflects the additional protection in Article XVII(2) of the Agreement.

31. The Administration has also advised that section 17 gives various immunities to persons who come to Hong Kong to provide assistance. Section 23 is designed to ensure that persons who travel from Hong Kong to other jurisdictions to render assistance receive immunities. Immunity from civil suit is one of the immunities specified in sections 17 and 23. The modifications to sections 17(1) and 23(2) remove this immunity since it is not provided for in the Agreement. This is because the UK legislation does not give any guarantee that a person who travels to UK to render assistance in a criminal case would not be prosecuted in a civil suit. In response to a member's enquiry, the Administration has explained that there is no provision under the Ordinance requiring a person to travel to UK to render assistance in a criminal case. The rendering of such assistance is entirely voluntary.

32. Members are of the view that the UK Order should be supported.

The United States of America (US) Order

33. In the course of examining the US Order, members consider that the Administration should provide further details on certain aspects of the US Order. The Subcommittee will make a further report upon completion of its deliberations on the US Order.

Recommendation

34. The Subcommittee recommends that the Australia Order, the France Order, the New Zealand Order and the UK Order made under section 4(1) of the Ordinance be supported.

35. The Subcommittee further recommends that the Administration give notices to move the resolutions on the four Orders mentioned in paragraph 34 above at the Council meeting on 9 December 1998.


Legislative Council Secretariat
26 November 1998

Appendix