ERMENT HOUSE HONG KONG.
JUE 12 JAN 93 10:01
PG.03
CONFIDENTIAL
(3)
2
The
itself but an associated exchange of letters at head of delegation level (which will not be registered with the Agreement at the United Nations) addresses this question. exchange sets out HKG's policy of not returning fugitives who could face the death penalty and the Malaysian Government's acknowledgement of that policy. The Hong Kong letter states that whenever the surrender of a person is sought from Hong Kong by Malaysia in respect of an offence which carries the death penalty, HKG may make representations to the Malaysian Government and seek an assurance that the death penalty, if imposed, will not be carried out. If the Malaysian Government, in its reply to these representations, does not indicate that the death penalty will be commuted, HKG in accordance with its current policies will refuse to surrender the fugitive under other applicable provisions of the Agreement (e.g. under provisions relating to humanitarian matters).
The Malaysian letter takes note of this communication and adds a fev technical points about the powers of their various Pardon Boards etc.
4.
The result of this 18 that HKG will not have to return fugitive offenders to face the death penalty and their refusal to do so will not allow the Malaysians to claim that HKG are
in breach of the Agreement. At the same time, the package indicates to the Malaysians the very clear policy of HKG on this matter and will allow them to choose not to request the return of an offender in circumstances where they judge they won't get him because they are not prepared to give the necessary assurances.
The critical factor in solving the death penalty impasse was avoidance of reference to the issue од the face of the agreement. For the Malaysians, and, we suspect, other countries in the area, the capacity to impose the death penalty for serious drug offences is a cornerstone of their criminal justice system. An agreement which specifically provided that persons surrendered shall not be exposed to such a penalty was seen by them as an unacceptable erosion of that system.
Yours over,
Alasdair Juiler
(A Sinclair)
for Secretary for Security
c.c. David M Edwards, LO(IL)
CONFIDENTIAL