My Leeks
Hong Kong Dept)
CONFIDENTIAL
FROM:
Paul Fifoot
DATE: 18 August 1986
Ni chinese
نية جين
HKADY CS
HONG KONG: EXTRADITION
1.
Mr Peirce's letter of 30 July merely raises the problem. He does not seek any particular advice. Doubtless, we must wait on Mr Jeaffreson's report.
The present
2. However, my first thoughts are as follows. Chinese Extradition Ordinance (and this is the correct title) only deals with Chinese nationals. Even if the PRC were pre- pared to use it, it would only be available for part of the problem and presumably not for that part which was exemplified by the case of Mr Luo Jinglun.
3. There are precedents for assuming extra-territorial criminal jurisdiction in respect of such international agree- ments as hijacking or agreements about internationally pro- tected persons. The jurisdiction is assumed in consequence of an obligation either to extradite or to try, but the offences are very limited and, presumably, common to all the parties to the relevant international Convention. In addition there is nothing to prevent a state asserting extra-territorial juris- diction over its own nationals. United Kingdom does so in relation to murder, bigamy and various other offences. However, the problem here is that of getting the evidence. There would be objection to a state asserting extra-territorial criminal jurisdiction over persons who were not its nationals.
4. So far as China is concerned, I don't see the extra- territorial jurisdiction route as providing a way into the post-1997 arrangements but perhaps a possible route would be to adopt some system of backing warrants, that is to say a warrant for arrest and removal is issued in one jurisdiction (China) and is "backed" by signature of a judicial authority in another jurisdiction (Hong Kong). At this stage it might well be possible to make the backing depend upon the satis- faction of the judicial authority of certain preliminary issues though the more that looks like extradition the less attractive it will be to the Chinese after 1997.
Podkoper
Paul Fifoot
Legal Advisers
CONFIDENTIAL
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