CONFIDENTIAL
030566
MDLIAN 1252
HK MODEL WHICH RESERVES THE RIGHT NOT TO SURRENDER NATIONALS.
EDWARDS EXPLAINED THAT THE ARTICLE HAD BEEN INCLUDED AT CHINESE
INSISTENCE AND WAS ONLY INTENDED TO BE OPERABLE AFTER 1997 FOR
EXCEPTIONAL CASES OF MAINLANDERS (PARTICULARLY PUBLIC SERVANTS WORKING IN HONG KONG) AND RARE CASES INVOLVING DEFENCE AND FOREIGN AFFAIRS. SURENA EXPLAINED THAT THE US HAD ONLY RELUCTANTLY AGREED TO SUCH PROVISIONS IN THE PAST AND HAD A POLICY OF REQUIRING PROSECUTION IF SURRENDER WAS REFUSED. EDWARDS SAID THAT HK DID NOT FAVOUR ASSERTING EXTRA TERRITORIAL JURISDICTION AND THAT, IN ANY EVENT, SUCH ASSERTION, IN THE RARE CASES UNDER DISCUSSION, MIGHT NOT BE ACCEPTABLE TO THE PRC. SURENA CONCLUDED BY SUGGESTING THAT THE REAL ISSUE WAS NOT ONE OF NATIONALITY BUT DEFENCE AND FOREIGN AFFAIRS OF THE PRC WHICH WAS COVERED BY THE RIGHT TO INSTRUCT. EDWARDS SAID HE APPRECIATED THIS BUT WAS NOT CONFIDENT THAT THE PRC WOULD AGREE TO A CHANGE. CLEARLY MUCH FURTHER WORK WILL BE REQUIRED ON THIS PROBLEM.
(C) RESURRENDER
SURENA INDICATED THAT THE US WOULD REQUIRE A NO-RESURRENDER CLAUSE. EDWARDS AGREED THAT THIS COULD BE DONE AND HANDED OVER THE DRAFT TEXT IN THE BRIEF.
(D) POLITICAL PREJUDICE
SURENA POINTED OUT THAT ARTICLE 6(B) AND (C) OF THE HK MODEL PROVIDED GREATER PROTECTION FOR FUGITIVES THAN THE REFUGEES CONVENTION PROVIDED FOR REFUGEES (REFUGEES ARE NOT PROTECTED IF CHARGED WITH SERIOUS NON-POLITICAL OFFENCES). HE DID NOT THINK
THIS APPROPRIATE. EDWARDS EXPLAINED THE CHINA ANGLE AND
STRESSED THE NEED FOR EXPLICIT PROVISIONS IN THIS REGARD IN HONG
KONG'S BILATERAL EXTRADITION TREATIES AS A PRECEDENT FOR
RENDITION. IT WAS AGREED THAT THE ARTICLE WOULD REQUIRE FURTHER
DISCUSSION.
(E) PRIMA FACIE STANDARD
SURENA ASKED WHETHER OUR STANDARD COULD BE RELAXED. EDWARDS SAID THAT THIS WAS ONE OF HONG KONG'S ESSENTIAL REQUIREMENTS. A LENGTHY DISCUSSION OF THE PROBABLE CAUSE AND PRIMA FACIE TESTS REVEALED THAT THE TESTS DID NOT APPEAR TO DISCLOSE SIGNIFICANTLY DIFFERENT STANDARDS. WHAT EMERGED HOWEVER WAS THAT THE PRINCIPAL CONCERN OF THE US BOILED DOWN TO THE NATURE OF THE EVIDENCE REQUIRED. THE US CONSIDERED THAT THE REQUESTING COUNTRY SHOULD BE ENTITLED TO SUBMIT ONE COMPREHENSIVE AFFIDAVIT DETAILING THE AVAILABLE EVIDENCE RATHER THAN INDIVIDUAL AFFIDAVITS. EDWARDS EXPLAINED THAT SUCH AN APPROACH WOULD INVOLVE THE SUBMISSION OF HEARSAY EVIDENCE WHICH IS CONTRARY TO HONG KONG'S EXISTING LAW AND POLICY AND WOULD NOT BE A DESIRABLE
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