TNAG-1586-FCO40-2160-Hong-Kong-extradition-application-of-UK-extradition-treatie-1986 — Page 242

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The Hong Kong legislation

5.

Amendments were made to the Hong Kong (Extradition) Ordinance (Cap. 236) in 1936 by the Counterfeit Currency (Convention) Ordinance (No. 20 of 1936). The principal amendment was to insert a new, penultimate paragraph into the preamble to the Ordinance, as follows -

"AND WHEREAS the First Schedule to the Extradition

Act 1870, was extended to divers crimes by the Extradition Act 1873, to slave trade offences by the Slave Trade Act 1873, to bribery by the Extradition Act 1906, to offences relating to dangerous drugs by the Extradition Act 1932, and to offences in connexion with counterfeit currency by the Counterfeit Currency (Convention) Act 1935:"

At the same time, references in the body of the Ordinance to the "Extradition Acts 1870 and 1873" were supplemented by inserting the words, "as so extended" (viz. by the Acts recited in the new penultimate paragraph of the preamble). The purpose of these various changes in 1936 was, according to the "Objects and Reasons" of the Bill, "to make it clear that references in (Cap. 236.) 7 to the Extradition Act 1870, cover the crimes and offences added to the First Schedule to that Act by subsequent Acts including the Counterfeit Currency (Convention)_7 Act of 1935".

6.

So the amendment was seeking to resolve doubts arising under the Extradition Acts about what were, and what were not, extradition crimes in Hong Kong. However, the amendment was not the subject of an Order in Council under section 18 of the 1870 Act.

The judgment of Mr. Justice Mantell

7.

In the course of his judgment in the recent High Court case, Mr. Justice Mantell observed that "the Acts

i.e. the Extradition Acts 7 are applicable to Hong Kong as to every other British possession unless the contrary is provided for by Order in Council". He appears to have derived this conclusion from the terms of section 17 of the 1870 Act alone; in principle all amendments to the Act apply to Hong Kong automatically. Thus, in spite of the difficulties that were previously perceived as arising from the absence of any express provision in post-1873 Acts applying such Acts to Hong Kong (difficulties which the 1936 amendments to our Ordinance were seeking to overcome) the learned judge accepted that amendments made by Parliament to the list of extradition crimes contained in the First Schedule to the Extradition Act do extend to Hong Kong (both those expressed to apply to colonies and those that are not). If that is the correct principle, it follows that the 1936 amendments were unnecessary.