LIN DEPENS.
CE Garrett
Hong Kong Department FCO
King Charles Street
LONDON
SW1A 2AH
ра
37079.
74
CROWN OFFICE
Regent Road Edinburgh EH7 5BL
Telephone: 031-557 3800
Fax: 031-5578208
BRCISTRY
370
RECEIV
L. DEC 1993
INDLX
CONFIDENTIAL
FEGISTRY Asion Taken
29 NOVEMBER 1993
Dear Mr Garrett,
AGREEMENTS BETWEEN THE UK AND HONG KONG AFTER 1997
Thank you for copying to me your letter of 22 November and enclosures.
Generally I think that the model treaty is a useful starting point for negotiation. There is one point of Scottish interest and another of more general interest which arise.
1
Article I(2) (h) specifies "tracing, restraining, forfeiting and confiscating the proceeds and instrumentalities of criminal activities". In Scotland criminal confiscation is confined to drug trafficking and possible legislation for general criminal confiscation must await a long delayed Scottish Law Commission report on forfeiture and confiscation. We understand that the report is fairly imminent and I would hope that we will have legislation in place by 1997, but it may be as well to flag this (hopefully temporary) deficiency, as it has been flagged with the Americans in the UK/US MLAT discussions, although I appreciate that Article XIX(3) and (4) probably allow a party to decline such assistance where domestic law does not allow it.
2
I am a little concerned about the oral request provision - and in particular the allowance of 10 days for written confirmation. Given modern communications and the reasonable expectation that English will continue to be generally spoken in the criminal authorities of Hong Kong is there really any reason why a period of 10 days should be allowed for written confirmation? I appreciate that such provisions have appeared in other agreements, but there are fairly severe practical restraints on how much assistance can be given on an oral request. We do routinely obtain court orders on foreign FAX requests or telexes, but I would be very uneasy in seeking a court order under the 1990 Act in Scotland on an oral foreign request. Would there not be justification for requiring immediate confirmation of an oral request?
I am copying this to recipients of yours.
Yous sincerely,
Мати шар
N MCFADYEN
CONFIDENTIAL