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6. The double criminality rule, as applied to the dependent
territories is therefore of recent origin and not wholly
logical. This application could be changed either by amending
the Fugitive Offenders Act, or, more simply, by Order in Council.
Moreover if the law was amended, it is possible, depending on the
drafting, that it could be made to apply to Mr Godber without
being specifically retrospective in form. On the analogy of
extradition agreements with foreign countries, these would
normally apply to criminals who had fled to escape prosecution for
crimes committed before the agreement came into force.
7. It might therefore be possible to achieve the return of
Mr Godber by legislative action, without straining the funda-
mental principles of the law. In the immediate context of this
case there would be much to be said for this. It would also
presumably be possible to continue stoplisting Mr Godber if new
legislation or an Order in Council was in prospect. We would,
however, be in some danger of attack on the contrary ground that
we should never have permitted Section 10 of the Prevention of
Bribery Ordinance to be passed in Hong Kong. This is what the
Law Officers were afraid of when the Ordinance was first under
discussion. In view of this we should only contemplate changing
the law if there was broad support from all parties in Parliament.
Even an Order in Council would require an affirmative resolution
by both Houses.
8.
Whether it would be worthwhile even then must be a matter
for political judgement. The Hong Kong Government are not
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/likely