CODE 18-77
AWO Ltd.
7/84
Mr Riordan
FED
CONFIDENTIAL
Reference....
KA WAH BANK PROSECUTION: EVIDENCE FROM TAIWAN
1. You asked me to look at the suggestions in Hong Kong Telno 3889 of 15 October on the question of obtaining evidence from Taiwan. I am assuming that, for the reasons set out in paragraph 6, method 5 (A) is not acceptable.
2.
With respect of method 5 (B), I understand that the admissibiity of documents obtained in this way would fall to be determined under section 19A of the Hong Kong Evidence Ordinance (Chapter 8 of the Revised Edition of 1984). Under section 19A (i) it would have to be attached to a document signed by the Chief Secretary who would certify that it had been "received by him in connection with any criminal proceedings." These words do have rather a flavour of mutual assistance arrangements, but there is nothing which expressly refers to this, so there is really no problem.
3. The documents in question would also have to be "foreign documents" for the purposes of that section. Under section 19A (2) (a) (i) these include "any record, book or document of a public nature kept or maintained in a place outside Hong Kong. I do not think there is a problem in certifying that Taiwan is a place outside Hong Kong, and the word "public" seems uncontroversial; the wording might in fact be contrasted to that used in section 19, which refers in one place to an "official or public document." The implication that a public document is different from an official one, is helpful. The wording of section 19A (2) (a) (ii) seems less obviously relevant, and in any case refers again to "a place outside Hong Kong". The wording of these sections does not therefore seem to cause a recognition problem.
4. The second question is whether such an approach to the various Taiwanese bodies or authorities to obtain the evidence is permissible at all. As you know we do not recognise Taiwan as a State and do not in principle have government-to-government dealings with the nationalist authorities. To approach them for these purposes might be seen as contradicting that policy, and could draw an angry reaction from the Chinese.
5. I agree therefore that an approach should be hedged around with as many safeguards as possible to make it seem an indirect and low-level contact on a specific and
SB6 A BH
CONFIDENTIAL