TNAG-1994-FCO40-2841-Hong-Kong-extradition-laws-1989 — Page 143

CONFIDENTIAL

FM HONG KONG

TO PRIORITY FCO

TELNO 819

OF 08123OZ MARCH 89

CONFIDENTIAL

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MDLIAN 3417

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INFO PRIORITY PEKING, UKREP JLG HONG KONG

YOUR TELNO 484 : EXTRADITION

WE WERE GRATEFUL FOR YOUR HELPFUL AND SPEEDY RESPONSE. ON YOUR SPECIFIC POINTS WE HAVE THE COMMENTS SET OUT BELOW.

JUDICIAL REVIEW OF FINAL DECISION

2. PARA 6. OUR CONCERN IS ONE OF PRINCIPLE RATHER THAN OF LAW. THE LIMITATIONS YOU PROPOSE WOULD REQUIRE AN UNUSUAL AND EXPRESS LEGISLATIVE PROVISION, WOULD BE VERY SENSITIVE LOCALLY, AND WOULD SET A PRECEDENT FOR OTHER AREAS. THE DRAFT CLAUSES WE HAVE IN MIND DEALING WITH INSTRUCTIONS WOULD MAKE IT VERY DIFFICULT, BUT NOT IMPOSSIBLE, TO CHALLENGE THE CERTIFICATE. ALSO A DECISION OF THE CE WHICH IS BASED UPON THE EXERCISE OF THE DISCRETION WOULD NOT BE OPEN

PREMATURE SURRENDER) TO CHALLENGE. A DECISION WHICH IS UNLAWFUL (E.G. WOULD, HOWEVER, BE LIABLE TO JUDICIAL REVIEW. MOREOVER THE CE MIGHT

WE REFUSE TO FOLLOW INSTRUCTIONS IF THE AGREED STEPS WERE BREACHED. HAVE NOT ADDED A CLAUSE PRECLUDING CHALLENGE TO THE INSTRUCTIONS THEMSELVES. ALTHOUGH DIRECT CHALLENGE WAS NOT MENTIONED WE WARNED THE CHINESE THAT ONE OF THE CONSEQUENCES OF THE RIGHT TO INSTRUCT WAS THAT THEY MIGHT BE DRAWN INTO PROCEEDINGS. FURTHERMORE, WE WOULD NOT WISH TO SET A PRECEDENT FOR OTHER AREAS.

PERVERSE CLASSIFICATION

3. PARA 9. WE DID NOT HAVE IN MIND THAT PERVERSE CLASSIFIECATION WOULD BE ADDRESSED DIRECTLY. THE EXTENT OF THE COURT'S POWER TO CORRECT ABUSE WOULD, HOWEVER, FOLLOW FROM THE WORDING OF THE PROPOSED PROVISION. WE WILL SHOW YOU THE DRAFT PROVISION I.D.C.

LEGISLATION AND ADMINISTRATIVE PROCEDURE

4. PARA 10. WE CONTINUE TO THINK THAT WE SHOULD NOT AT THIS STAGE RAISE WITH THE CHINESE THE MATTERS DISCUSSED IN PARAS 14 TO 16 OF OUR TELNO 478, EXCEPT TO CONFIRM THE PRINCIPLE IN PARA 14(1)(A). IF WE DID OFFER OUR THOUGHTS NOW AND THE SCHEME WERE TO PROVE ACCEPTABLE

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CONFIDENTIAL