TNAG-1708-FCO40-2383-Hong-Kong-narcotics-offences-and-drug-trafficking-1987 — Page 136

Mr Smith

HKD

LORD WINCHELSEA'S LETTER

FROM:

Paul Fifoot

DATE:

4 November 1987

него

383

RECEIVER

12 NOV 1007

18

INDE

1. Lord Winchelsea's letter raises a number of difficult issues, more difficult than those in his earlier letter because he has become more precise.

2. He seeks the following assurances:

(a)

(b)

(c)

That neither the Basic Law nor enactments of the Hong Kong SAR legislature will allow the transfer of prisoners from the SAR to another part of the PRC;

IT

That the PRC have advised, and [? that we]

specifically confirm", that alleged acts of criminality in the territory of Hong Kong are not deemed under the Constitution of the PRC to be within the territory of the PRC;

That the Government "has negotiated", and that the Basic Law will contain, guarantees that will ensure that any fugitive offenders returned to Hong Kong before 1997, or subsequently surrendered to the PRC, will not be charged with offences other than those with which they might currently be charged under section 4 of the Fugitive Offenders' Act, that they would be guaranteed other rights accorded in section 4 of the Fugitive Offenders' Act, and that they would not be subject to the death penalty.

We can give him no such assurance.

3. As regards (a), we can certainly contemplate that there will be rendition of fugitive offenders between Hong Kong and the main- land after 1997 (certainly as regards offences committed post the rendition arrangements, probably also as regards pre-rendition offences) and we cannot exclude the possibility of repatriation of prisoners to serve their sentences in the SAR or the mainland. In each case, it is a question of seeking to confine the arrange- ments to offences committed within the appropriate jurisdiction and to negotiate safeguards.

4. As to (b), the PRC has certainly not advised, and we could not confirm, that an act of criminality in the SAR will not be deemed to be within the territory of the PRC. Neither of us could be expected to give any such adivce or confirmation in those terms. The Hong Kong SAR will be part of the territory of the PRC. Even if the assurance sought goes to the non-application of the Criminal Code of the mainland in Hong Kong, one must anticipate that the PRC would

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