||Title:||FUGITIVE OFFENDERS (UNITED KINGDOM) ORDER||Gazette Number:||L.N. 157 of 1998|
THE GOVERNMENT OF THE HONG KONG SPECIAL ADMINISTRATIVE
REGION OF THE PEOPLE'S REPUBLIC OF CHINA AND
THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN
AND NORTHERN IRELAND
FOR THE SURRENDER OF FUGITIVE OFFENDERS
The Government of the Hong Kong Special Administrative Region of the People's Republic of China ("Hong Kong Special Administrative Region"), having been duly authorised to conclude this Agreement by the Central People's Government of the People's Republic of China, and the Government of the United Kingdom of Great Britain and Northern Ireland ("United Kingdom"), (hereinafter referred to as "the Parties");
Desiring to make arrangements for the reciprocal surrender of fugitive offenders;
Have agreed as follows:
Obligation to Surrender
The Parties agree to surrender to each other, subject to the provisions laid down in this Agreement and in accordance with the law of the requested Party, any person who is found in the jurisdiction of the requested Party and who is wanted by the requesting Party for prosecution or for the imposition or enforcement of a sentence in respect of an offence under Article 2. Such persons shall, for the purposes of this Agreement, be referred to as "fugitive offenders".
(1) Surrender shall be granted for an offence coming within any of the following descriptions of offences in so far as it is according to the laws of both Parties punishable by imprisonment or other form of detention of twelve months or more, or by a more severe penalty:
(i) Murder; manslaughter or culpable homicide
(2) Where surrender of a fugitive offender is requested for the purpose of carrying out a sentence, a further requirement shall be that in the case of a period of imprisonment or detention at least six months remain to be served.
(ii) Aiding, abetting, counselling or procuring suicide
(iii) Maliciously wounding; inflicting grievous bodily harm; assault occasioning actual bodily harm or injury; assault
(v) Indecent assault
(vi) Gross indecency with a child
(vii) Kidnapping, abduction; child theft (plagium); child abduction; false imprisonment
(viii) Offences against the law relating to dangerous drugs
(ix) Obtaining property or pecuniary advantage by deception; fraud; theft; robbery; burglary; blackmail; handling stolen goods and reset; embezzlement
(x) Offences against bankruptcy law
(xi) False statements by company directors and other officers
(xii) Any offence against the law of counterfeiting of coins; counterfeiting of currency; any offence against the law relating to forgery; fraudulent and false accounting
(xiii) Bribery or corruption
(xiv) Offences relating to fiscal matters, taxes or duties, notwithstanding that the law of the requested Party does not impose the same kind of tax or duty or does not contain a tax, duty or customs regulation of the same kind as the law of the requesting Party
(xv) Perjury and subornation of perjury; attempting to pervert the course of justice
(xvi) Criminal damage, including arson and fire raising
(xvii) An offence against the law relating to firearms
(xviii) An offence against the law relating to explosives
(xix) Sinking or destroying a vessel at sea; assaults on board a ship on the high seas with intent to destroy life or to do grievous bodily harm; revolt or conspiracy to revolt by two or more persons on board a ship on the high seas against the authority of the master
(xx) Piracy, involving ships or aircraft, according to international law
(xxi) Dealing in slaves
(xxii) Genocide or conspiracy or direct and public incitement to commit genocide
(xxiii) Unlawful seizure or exercise of control of an aircraft
(xxiv) Impeding the arrest or prosecution of a person who has or is believed to have committed an offence for which surrender may be granted under this Agreement and which is punishable according to the laws of both Parties by imprisonment or other form of detention of a period of five years or more
(xxv) Conspiracy to commit fraud or to defraud
(xxvii) Offences for which fugitive offenders may be surrendered under International Conventions binding on the Parties
(xxviii) An attempt or conspiracy to commit, or inciting, participating in, any offence for which surrender may be granted under this Agreement
(xxix) Any other offences for which surrender may be granted in accordance with the laws of both Parties
(3) For the purpose of paragraph (1) of this Article, in determining whether an offence is an offence punishable under the laws of both Parties the totality of the acts or omissions alleged against the fugitive offender shall be taken into account without reference to the elements of the offence prescribed by the law of the requesting Party.
(4) For the purposes of paragraph (1) of this Article, an offence shall be an offence according to the laws of both Parties if the acts or omissions alleged against the fugitive offender were an offence against the law of the requesting Party at the time it was committed and an offence against the law of the requested Party at the time the request for surrender is received.
(5) Conduct in a vessel, aircraft or hovercraft registered by a Party shall be treated as if it were conducted in the area of that Party.
Surrender of Nationals
(1) Except as provided in paragraphs (2) and (3) of this Article, surrender shall not be refused on grounds relating to the nationality of the person sought.
(2) The executive authority of the Government of the United Kingdom reserves the right to refuse the surrender of nationals of the United Kingdom in cases in which the requested surrender relates to the defence, foreign affairs or essential public interest or policy of the United Kingdom.
(3) The executive authority of the Government of the Hong Kong Special Administrative Region reserves the right to refuse the surrender of nationals of the People's Republic of China in cases in which:
(a) the requested surrender relates to the defence, foreign affairs or essential public interest or policy of the People's Republic of China, or
(4) In cases in which the person sought by the United Kingdom neither has the right of abode in the Hong Kong Special Administrative Region nor has entered the Hong Kong Special Administrative Region for the purpose of settlement and the People's Republic of China has jurisdiction over the offence and is investigating the offence, action on the request may be deferred until such time as the investigation has been expeditiously concluded.
(b) the person sought neither has the right of abode in the Hong Kong Special Administrative Region nor has entered the Hong Kong Special Administrative Region for the purpose of settlement, and the People's Republic of China has jurisdiction over the offence relating to the requested surrender and has commenced or completed proceedings for the prosecution of that person.
(5) Where the right to refuse surrender is exercised in accordance with paragraph (2) or paragraph (3)(a) of this Article, the requesting Party may request that the case be submitted to the competent authorities of the requested Party in order that proceedings for prosecution may be considered.
If the offence for which surrender of a fugitive offender is requested under this Agreement is punishable according to the law of the requesting Party with the death penalty, and if in respect of such an offence the death penalty is not provided for by the law of the requested Party or is not normally carried out, surrender may be refused unless the requesting Party gives such assurances as the requested Party considers sufficient that this penalty will not be imposed or, if imposed, will not be carried out.
Refusal of Surrender
(1) A person shall not be surrendered if it appears to the requested Party:
(a) that the offence of which that person is accused or was convicted is an offence of a political character;
(2) Surrender of the person sought shall be refused if it appears to the requested Party that:
(b) that the offence of which that person is accused or was convicted is an offence under military law which is not also an offence under the general criminal law;
(c) that the request for his return (though purporting to be made on account of an offence for which surrender may be granted) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions; or
(d) that he might, if returned, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.
(a) by reason of the trivial nature of the offence of which he is accused or convicted; or
it would, having regard to all the circumstances, be unjust or oppressive to return him.
(b) by reason of the passage of time since he is alleged to have committed the offence or to have become unlawfully at large as the case may be; or
(c) because the accusation against him is not made in good faith in the interests of justice; or
(d) because such a surrender is likely to entail exceptionally serious consequences related to age or health
(3) A person shall not be surrendered for any offence which has been committed outside the area of the requesting Party unless
(a) the requested Party would in corresponding circumstances have jurisdiction over such an offence; or
(4) Surrender for an offence shall be refused if the person whose surrender is sought cannot under the law of either Party be prosecuted or punished for that offence.
(b) when the Government of the United Kingdom is the requesting Party jurisdiction over the offence is based on the fugitive offender's nationality.
(5) The requested Party may refuse to surrender a fugitive offender for an offence which is regarded by its law as having been committed within the jurisdiction of its courts.
If the person is being proceeded against or under punishment in the jurisdiction of the requested Party for any other offence, his surrender may be deferred until the conclusion of the proceedings and the execution of any punishment awarded to him.
Liability to Surrender
A fugitive offender shall be surrendered only if:
(a) for an accused person
(b) in the case of a person already convicted there is sufficient information provided showing that the sentence is enforceable and that he is the person convicted.
(i) in the case of a request to the Hong Kong Special Administrative Region, there is sufficient evidence provided, according to the law of the requested Party, to justify the committal for trial of the person sought if the offence of which he is accused were committed in the territory of the requested Party; or
(ii) in the case of a request to the United Kingdom, there is sufficient evidence provided, according to the law of the requested Party, to make a case requiring an answer by that person if the offence had been committed within the jurisdiction of the requested Party and if the proceedings were a summary trial of an information against him;
The Request and Supporting Documents
(1) Requests for the surrender of a fugitive offender shall be made in writing by and to the appropriate authorities as may be notified from time to time.
(2) The request shall be accompanied by:
(a) as accurate a description as possible of the person sought, together with any other information which would help to establish his identity and nationality including, if known, his place of residence;
(3) If the request relates to an accused person, it shall also be accompanied by an authenticated copy of the warrant of arrest issued by a judge, magistrate, or competent authority of the requesting Party and by sufficient evidence as specified in Article 7(a).
(b) a statement and particulars of the offence for which surrender is requested;
(c) the text of the legal provisions, if any, creating the offence, and a statement of the punishment which can be imposed therefore and whether any time limit is imposed on the institution of proceedings, or on the execution of any punishment imposed, for that offence.
(4) If the request relates to a person already convicted or sentenced, it shall also be accompanied by:
(a) an authenticated copy of the certificate of the conviction or sentence; and
(b) a statement that the sentence is enforceable and indicating how much of the sentence remains to be served; and
(c) in the case of a person convicted but not sentenced, a statement to that effect by the appropriate court and an authenticated copy of the warrant of arrest.
(1) In urgent cases the person sought may, in accordance with the law of the requested Party, be provisionally arrested on the application of the competent authorities of the requesting Party. The application for provisional arrest shall contain an indication of intention to request the surrender of the person sought and a statement of the existence of a warrant of arrest or a judgment of conviction against that person, and such further information, including details identifying that person, as would be necessary to justify the issue of a warrant of arrest had the offence been committed, or the person sought been convicted, within the jurisdiction of the requested Party.
(2) An application for provisional arrest may be forwarded through the same channels as a request for surrender or through the International Criminal Police Organisation (Interpol).
(3) The provisional arrest of the person sought shall not normally extend beyond sixty days from the date of his arrest if the request for his surrender shall not have been received. Where a person is released, this provision shall not prevent the re-arrest or surrender of the person sought if the request for his surrender is received subsequently.
(1) If the information communicated by the requesting Party is found to be insufficient to allow the requested Party to make a decision in pursuance of this Agreement, the latter Party shall request the necessary supplementary information and may fix a time-limit for receipt thereof.
(2) If the person whose surrender is sought is under arrest and the additional information furnished is not sufficient in accordance with this Agreement or is not received within the time specified, the person may be discharged. Such discharge shall not preclude the requesting Party from making a fresh request for the surrender of the person.
(1) Any document that, in accordance with Article 8 or 10, supports a request for surrender shall be admitted in evidence, if authenticated, in any proceedings in the jurisdiction of the requested Party.
(2) A document is authenticated for the purposes of this Agreement if:
(a) it purports to be signed by a Judge, Magistrate or other officer of a competent authority in the jurisdiction where they were issued; and
or if it is authenticated in any other such manner as may be permitted by the law of the requested Party.
(b) it purports to be certified by being sealed with an official or public seal of the competent authority of the requesting Party or of an officer of the requesting Party
If the surrender of a fugitive offender is requested concurrently by one of the Parties and a Government or Governments with whom the United Kingdom or the Hong Kong Special Administrative Region, whichever is being requested, has arrangements for the surrender of fugitive offenders, the requested Party shall make its decision in so far as its law allows having regard to all the circumstances including the provisions in this regard in any agreements in force between the requested Party and other requesting Governments, the relative seriousness and places of commission of the offences, the respective dates of the requests, the nationality or citizenship and ordinary residence of the person sought and the possibility of subsequent surrender to another State, and shall furnish the other Party with information justifying its decision in the event of surrender of the fugitive to another jurisdiction.
Language of Documentation
In any particular case the requested Party may require documents submitted in accordance with this Agreement to be translated into, an official language of the requested Party. Any such translation shall be certified in the manner specified by the law of the requested Party.
Representation and Costs
(1) The requested Party shall make all necessary arrangements for and meet the costs of any proceedings arising out of a request for surrender and shall otherwise represent the interests of the requesting Party.
(2) If it becomes apparent that exceptional expenses may be incurred as a result of a request for surrender, the Parties shall consult with a view to deciding how these expenses will be met.
(3) In the event that the requesting Party arranges its own legal representation and assistance, it shall bear any costs incurred.
(4) The requested Party shall bear the expenses arising out of the arrest and detention of the person whose surrender is sought until that person has been surrendered. The requesting Party shall bear all subsequent expenses.
Arrangements for Surrender
(1) The requested Party shall promptly communicate its decision on the request for surrender to the requesting Party. Reasons shall be given for any complete or partial refusal of the request.
(2) If a fugitive offender is to be surrendered, he shall be taken by the authorities of the requested Party on a date agreed with the requesting Party to a mutually convenient place of departure within the jurisdiction of the requested Party. The requested Party shall inform the requesting Party of the length of time for which the fugitive offender was detained in connection with the request for his surrender.
(3) If the requesting Party does not take custody of the fugitive offender on the date agreed by the two Parties, he may, in accordance with the law of the requested Party, apply for discharge and unless sufficient cause is shown to the contrary, he may be released.
(4) Where a fugitive offender is released in accordance with paragraph (3) of this Article the requested Party may subsequently refuse to surrender him for the same offence.
Surrender of Property
(1) When a request for surrender of a fugitive offender is granted the requested Party shall, at the request of the requesting Party and in accordance with its law, hand over to the requesting Party all articles, including sums of money,
(a) which may serve as proof of the offence; or
(2) If the articles in question are liable to seizure or confiscation within the jurisdiction of the requested Party the latter may, in connection with pending proceedings, temporarily retain them or hand them over on condition they are returned.
(b) which have been acquired by the fugitive offender as a result of the offence and are in his possession or discovered subsequently.
(3) These provisions shall not prejudice the rights of the requested Party or of any person other than the fugitive offender. When such rights exist the articles shall on request be returned to the requested Party without charge as soon as possible after the end of the proceedings.
(1) A fugitive offender who has been surrendered shall not be proceeded against, sentenced, detained or subjected to any other restriction of personal liberty by the requesting Party for any offence committed prior to his surrender other than:
(a) the offence in respect of which his return is ordered;
unless he has first had an opportunity to leave the jurisdiction of the requesting Party and has not done so within forty days of his having been free to do so or has returned voluntarily to that jurisdiction having left it.
(b) any lesser offence however described disclosed by the facts in respect of which his return was ordered, provided such an offence is an offence for which he can be returned under this Agreement;
(c) any other offence being an offence for which surrender may be granted under this Agreement in respect of which the requested Party may consent his being dealt with;
(2) Consent shall not be given by a requested Party under paragraph (1)(c) above in respect of an offence in relation to which an order for the return of the fugitive offender could not lawfully be made, or would not in fact be made.
(1) Where a fugitive offender has been surrendered to the requesting Party, that Party shall not surrender him to any other jurisdiction for an offence committed before his surrender unless:
(a) the requested Party consents; or
(2) The Party whose consent is requested may require the production of the documents submitted by the other jurisdiction in support of its request for surrender.
(b) he has first had an opportunity to leave the jurisdiction of the requesting Party and has not done so within forty days of having been free to do so or has returned voluntarily to that jurisdiction having left it.
Application of the Agreement
This Agreement shall apply:
(1) In relation to the United Kingdom:
(a) to England and Wales, Scotland, and Northern Ireland; and
(2) In relation to the Hong Kong Special Administrative Region of the People's Republic of China, to such Region.
(b) to the Isle of Man and the Channel Islands and to any other territory for whose international relations the United Kingdom is responsible and to which this Agreement shall have been extended, subject to any modification, by an exchange of notes through the diplomatic channel;
Entry into force, Suspension and Termination
(1) Each of the Parties shall notify the other in writing of the completion of those procedures necessary to enable this Agreement to enter into force. The Agreement shall enter into force thirty days after the date of the later of the notifications.
(2) Either Party may suspend or terminate this Agreement at any time by giving notice to the other through the same channels as a request for the surrender of a fugitive offender. Suspension shall take effect on receipt of a notice to suspend. In the case of termination the Agreement shall cease to have effect six months after the receipt of a notice to terminate.
In witnesses hereof the undersigned, being duly authorised by their respective Governments, have signed this Agreement.
Done at Hong Kong, this fifth day of November one thousand nine hundred and ninety seven, in the Chinese and English languages, each text being equally authentic.