LC Paper No. CB(2) 139/99-00
(These minutes have been seen by the Administration)

Ref : CB2/SS/5/98

Minutes of the second meeting of the
Subcommittee on five resolutions made under section 4
of the Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525)
held on Monday, 20 September 1999 at 8:30 am
in Conference Room A of the Legislative Council Building

Mutual Legal Assistance in Criminal Matters (United States of America) Order

Members Present :

Hon James TO Kun-sun (Chairman)
Hon Margaret NG
Hon Jasper TSANG Yok-sing, JP

Member Attending :

Hon Eric LI Ka-cheung, JP

Absent with Apology :

Hon Mrs Miriam LAU Kin-yee, JP

Public Officers attending :

Mr John Hunter

Deputy Principal Government Counsel (International Law)

Mrs Carrie Willis

Principal Assistant Secretary (Security)

Mr K CHOW

Assistant Secretary (Security)

Clerk in Attendance :

Mr LAW Wing-lok

Chief Assistant Secretary (2) 5

Staff in Attendance :

Mr Stephen LAM

Assistant Legal Adviser 4

Miss Mary SO

Senior Assistant Secretary (2)8

I. Confirmation of minutes held on 17 November 1999
(LC Paper No. CB(2) 2767/98-99)

The minutes were confirmed.

II. Meeting with the Administration
(LC Paper No. CB(2) 2768/98-99(01))

2. The Chairman welcomed representatives of the Administration to the meeting, and invited them to brief members on the Administration's paper detailing he responses to the concerns/queries raised by members at the last meeting held on 17 November 1998 on the Mutual Legal Assistance in Criminal Matters (United States of America) Order (the US Order).

Death Penalty

3. Deputy Principal Government Counsel (International Law) (Dep PGC) highlighted the salient points in paragraphs 3 to 8 of the paper which addressed members' concern that there was no provision in the HKSAR/US Agreement (the Agreement) for refusal of assistance by the requested Party if the request related to an offence which carried death penalty within the jurisdiction of the Requesting Party. In particular, he said that at the negotiations the US delegation did not consider it was appropriate to include an Article in the Agreement which provided for either an mandatory or discretionary death penalty exception on the grounds that neither the European Convention, the UN model agreement nor the Commonwealth Scheme provided for such exception. He added that the US Government accepted that a jurisdiction which did not impose the death penalty might refuse assistance for an offence which carried the death penalty on the basis of an "essential interests" clause provided in Article 3(1)(b) of the Agreement. In other words, if the Secretary for Justice (SJ) were to refuse a US request by the exercise of her discretion pursuant to section 5(3)(c) of the Mutual Legal Assistance in Criminal Matters Ordinance (the Ordinance), the US Government would not consider this refusal to be a breach of the Agreement.

4. Referring to an extract of the Report of the Senate Foreign Relations Committee mentioned in paragraph 5 of the paper, Miss Margaret NG enquired whether the word "country" should be taken to mean jurisdiction, and if so, a written confirmation from the US Government should be sought to put the meaning of country beyond doubts. Dep PGC agreed to obtain written confirmation from the US Government that the reference to "country" was not significant in the present context and that the HKSAR would be entitled to refuse assistance in death penalty cases pursuant to Article 3(1) of the Agreement.	Adm
5. Miss Margaret NG further enquired whether the fact that the Mainland had not abolished capital punishment would be one of the factors that SJ would consider in exercising her discretion to grant or refuse assistance to the US Government pursuant to section 5(3)(c) of the Ordinance. Dep PGC replied that, whereas he could not speak for SJ, it was relevant to note that Hong Kong and the Mainland had different legal systems. As requested by Miss NG, Dep PGC undertook to seek confirmation from SJ in this regard.	Adm

6. The Chairman enquired whether it would be a breach of the Agreement if SJ were to openly declare that she would always refuse assistance for offences which carried a death penalty by relying on the "essential interests" clause in the Agreement on the basis that Hong Kong did not have capital punishment. Dep PGC replied that such declaration would defeat the purpose of the essential interests provision in the Agreement, which allowed SJ to exercise her discretion in relation to US requests involving offences for which the death penalty might be carried out.

7. Miss Margaret NG pointed out that as the Administration had rendered assistance to the Mainland authorities on offences which carried a death penalty, it would be difficult for SJ to justify her refusal to grant assistance in relation to similar requests from the US Government on the grounds of essential interests. The Chairman echoed Miss NG's views.

8. Dep PGC said that he could not see the US Government would want to enter into dialogue with the Requested Party on such a subjective matter as what were considered to be the essential interests of the Requested Party. Dep PGC further said that as the US Government had accepted that a jurisdiction which did not impose the death penalty might refuse assistance for an offence which carried the death penalty on the basis of an essential interests provision in the particular Agreement, he considered that so long as the SAR Government was not unreasonable in applying the essential interests provision to refuse assistance for death penalty offences, a debate on such refusal should not arise.

9. In response to Miss NG's request, Dep PGC undertook to seek clarification from SJ on whether the rendering of assistance by the SAR Government to the Mainland authorities on offences involving death penalty would inhibit SJ to deny a similar request from the US Government. Principal Assistant Secretary (Security) supplemented that at present Hong Kong did not have formal agreement with the Mainland on mutual legal assistance in criminal matters.

10. In reply to Miss Margaret NG's further enquiry, Dep PGC said that assistance rendered to the US Government by the SAR Government during the investigation stage would not prejudice Hong Kong in resisting extradition of a person who was charged with a death penalty offence in the US. He pointed out that the Administration was bound by the Fugitive Offenders Ordinance (Cap. 503) to refuse extradition of a person charged with a death penalty offence in another jurisdiction.

Double Criminality

11. Dep PGC highlighted the main points set out in paragraphs 9 to 18 of the paper regarding the double criminality issue. In particular, he pointed out that the US Government initially would not agree to the inclusion of double criminality requirement in the Agreement on the grounds that none of their existing agreements included such a requirement and the prevailing international practice did not require double criminality to exist before assistance could be provided. Noting the double criminality requirement in the Hong Kong legislation, the US Government compromised by listing certain serious offences in the Annex to Schedule 1 of the US Order requiring assistance to be given irrespective of whether the offences would constitute offences under the laws of the Requested Party.

12. The Chairman expressed concern about Article 1(3) of the Agreement which required the rendering of assistance for criminal offences relating to taxation, custom duties and foreign export control. In his view, such offences could be open to wide interpretation and it would be very difficult for the SAR Government to refuse requests for assistance in relation to such offences from the US Government.

13. Dep PGC responded that as the laws on taxation, customs duties and foreign import and export varied greatly in different jurisdictions, it was considered appropriate that double criminality requirement should not be applied to mutual legal assistance. He pointed out that even in the extradition agreement between the SAR Government and the US Government, there was an Article stipulating that the surrender of a fugitive should be granted even though the same tax or customs duties was not imposed. Dep PGC further said that in response to the representations of the Hong Kong Society of Accountants (HKSA), when considering the Mutual Legal Assistance in Criminal Matters Bill in 1997, the Council agreed to add various provisions in the Bill at the Committee stage to restrict the provision of assistance in relation to external offences relating to taxation. These provisions were not modified by the US Order.

14. Miss Margaret NG said that she would support the US Order if the rights of Hong Kong people would not be compromised by the double criminality exception provision in the Agreement. Dep PGC assured members that the offences set out in the Annex to the Agreement were not inconsistent or repugnant to offences under Hong Kong law.

15. Mr Eric LI said that he would need to consult HKSA before he could confirm whether the Administration's response detailed in paragraphs 20 to 23 of the paper was acceptable to the accounting profession.

16. Mr Eric LI pointed out that the word "may" was used in of Article 1(3) of the other four Agreements signed with Australia, France, New Zealand, and the United Kingdom, and enquired why the word "shall" was used in Article 1(3) of the Agreement. Dep PGC said that he would attempt to find out the reasons for the discrepancy.	Adm

17. Mr Eric LI expressed concern that the US Government might not be aware of the provisions restricting the provision of assistance in relation to external offences relating to taxation in the Ordinance, having regard to the fact that there was no mention of these provisions in the Technical Analysis prepared by the US Government on Article 3 of the Agreement relating to limitations on providing assistance. As the Agreement was signed prior to the enactment of the Ordinance, Mr LI enquired whether the Administration had apprised the US Government of these provisions. Dep PGC pointed out that the US Government had read the Ordinance after it was enacted and had not raised any objection to the provisions restricting the provision of assistance to foreign jurisdictions relating to tax offences. Dep PGC reiterated that these provisions were not modified by the US Order.

Item 8 of the Annex to the Agreement

18. Members noted that the Legislative Council would be consulted if it was agreed that further offences should be added to the Annex to the Agreement. This was because the US Order would need to be amended to provide for further modification of the Ordinance.

III. Date of next meeting

19. Members agreed that a further meeting would be arranged upon receiving the Administration's reply on the points raised in paragraphs 4, 5 and 16 above.

20. The meeting ended at 10:10 am.

Legislative Council Secretariat
20 October 1999