2
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Article 2(4)
8.
Article 2(4) specifies the relevant time at which double criminality must be assessed.
Article 3
9.
points in
The Malaysian Government was concerned that the definition of nationals under this Article was not entirely clear. Nevertheless, they agreed that Hong Kong could have a right to refuse the surrender of nationals but insisted that where this right was exercised the requesting Party should be entitled to request that prosecution be considered.
The obligation is only to consider prosecution: there is no obligation to prosecute. similar formulation was agreed with Canada and Australia.
Article 4
10.
A
The Malaysian Government explained that Article 4 of the Model Agreement was unacceptable. Implementation of the death penalty is an important aspect of the Malaysian system of administration of justice and an agreement should not, on its face, record that the Malaysian Government would agree to not implementing such a penalty. The model agreement provision would also compromise the discretion of the Malaysian Pardons Board to commute.
11.
The
After negotiation, it was agreed that there would be no mention of the death penalty in the Agreement. Malaysians accepted that Hong Kong would not return fugitives to face the death penalty. Such refusal would be on the basis of either Article 3 or 19 and would not constitute a breach of obligations under the Agreement. It was further agreed that there should be an exchange of letters between the two delegation heads at the same time as the Agreement itself was signed. The exchange will in effect set out the Hong Kong Government's policy of not returning and the Malaysian Government's acknowledgement of that policy.
The exchange of letters will not be registered with the Agreement under Article 102 of the Charter of the United Nations. A copy of the proposed exchange of letters is attached.
12.
The
present
Article 4 is a Malaysian reformulation of Article 5(1) of the Model Agreement. Article 5 (1) has been expanded to make it clear that if surrender is
refused because the offence is one over which the requested Party asserts jurisdiction, it will be mandatory for the requested Party to consider prosecution.