CONFIDENTIAL
Reference HKK 349/1
RECEIVED le rit ..
44
13
A
Miss Walker, HKD
CHINESE VISA OFFICE IN HONG KONG
1.
2.
(36)
Please refer to Peking telno 686 of 9 April.
It would appear that the Chinese are not content with a scale of jurisdictional immunity equivalent to that provided for in Article 43 of the Vienna Convention on Consular Relations, which would give their visa officers (of whatever rank) immunity in respect of official acts only. In drawing a distinction between those visa officers who hold diplomatic passports and those who hold service passports the MFA are clearly seeking equivalent diplomatic status for the former and equivalent consular status for the latter. It is a question of policy whether, in this context, China should be allowed any scale of immunity in excess of that laid down by the VCCR but, on the assumption that this is acceptable from the point of view of the Hong Kong Government, HKD and FED (and it is perhaps difficult to deny this to the Chinese in the face of Article 7 of the Consular Agreement) then, subject to the views of the Legal Advisers on drafting, I should like to suggest that paragraph 5 of the draft be amended to read:
3.
'Officers of the Visa Office holding diplomatic passports will be immune from the jurisdiction of the judicial and administrative authorities. Officers of the Visa Office holding service passports will be immune from the juris- diction of the judicial and administrative authorities in respect of acts performed in the exercise of official functions. The foregoing provisions of this paragraph will not, however, apply in respect of a civil action either:
(a)
(b)
arising out of a contract concluded by an officer of the Visa Office in which he does not contract expressly or impliedly on behalf of the Ministry of Foreign Affairs of the People's Republic of China; or
by a third party for damage arising from an accident in Hong Kong caused by a vehicle, vessel or aircraft.'
Ideally, if we are to grant the equivalent of immunity on the diplomatic scale to officers of the Visa Office holding diplomatic passports, we should add to subparagraphs 5(a) and (b) the three exceptions listed in Article 31(1) of the Vienna Convention on Diplomatic Relations (as was done in Article 7(3) of the draft Consular Agreement). However, I think we can do without such refinements at this last, urgent stage.
4.
I am not particularly in favour of the solution proposed by Peking in paragraph 7 of their telegram under reference, since it admits the possibility of giving all officers of the Visa Office in Hong Kong (whether holders of diplomatic or service passports) the equivalent diplomatic status to be given to consular officers and consular employees under the Consular Agreement. This would be offering the Chinese more than they are seeking and I believe
/that
CODE 18.77
CONFIDENTIAL