CONFIDENTIAL
10
1
MDLIAN 6521
EXPLANATION WOULD BE UNPOPULAR.
9.
THE LAW RELATING TO JUDICIAL REVIEW HAS BEEN EXPLAINED DURING TALKS. NO MATTER WHAT PROVISION IS INSERTED IN OUR DOMESTIC LEGISLATION, THE POSSIBLIITY OF A DECISION TAKEN BY THE CE UNDER INSTRUCTION BEING QUASHED BY A COURT CANNOT BE ENTIRELY ELIMINATED. THE MORE INFORMED THE CE IS IN RELATION TO HIS DECISION, HOWEVER, THE MORE DIFFICULT WILL IT BE FOR SUCH A DECISION TO BE CHALLENGED ON THE GROUNDS THAT IT WAS ARBITRARY OR IRRATIONAL.
(F) NO INSTRUCTION TO MAKE A REQUEST
IF
10. THE DRAFT STEPS RELATING TO REQUESTS BY HONG KONG PROVIDE ONLY FOR A RIGHT TO BLOCK REQUESTS, NOT A RIGHT TO INSTRUCT THAT A REQUEST BE MADE. IT IS FUNDAMENTAL TO OUR THINKING THAT THERE SHOULD BE NO ACTUAL OR PERCEIVED INTERFERENCE WITH THE PROSECUTING AUTHORITY. IF THE PROSECUTING AUTHORITY DOES NOT WISH TO PRESS CHARGES IT WOULD BE POINTLESS TO ORDER THE CE TO MAKE A REQUEST. THE PROSECUTING AUTHORITY WISHED TO PRESS CHARGES IT IS MOST UNLIKELY THAT THE CE WOULD REFUSE TO MAKE A REQUEST. IF HE DID, THE CPG OUGHT NOT TO INTERVENE TO OVERRULE THE CE, THEREBY INVOLVING ITSELF IN A POTENTIAL DISPUTE WHICH SHOULD REMAIN INTERNAL. MOREOVER, FROM A PRACTICLA POINT OF VIEW, IT IS DIFFICULT TO SEE HOW A RIGHT TO INSTRUCT THE CE COULD ARISE. WHAT CASES WOULD BE NOTIFIED TO THE CPG? COULD THE CPG ISSUE AN INSTRUCTION REGARDLESS OF WHETHER THE PROSECUTING AUTHORITY HAD EVIDENCE AGAINST THE PERSON CONCERNED?
(G) REQUESTS BY HONG KONG, GROUNDS FOR REFERRAL
11.
THE PHRASE' IN PARENTHESES IN PARA 5 AND PARAGRAPH 10 OF MIPT REFLECT SOME INTERNAL DEBATE AS TO WHETHER THE EFFECT OF PROCEEDINGS IN THE REQUESTED JURISDICTION MIGHT THEMSELVES GIVE CAUSE TO REFER
A CASE TO THE CPG. WE THINK IT UNREALISTIC TO EXCLUDE THAT AS A GROUND. MOREOVER, THE INCLUSION OF THE PARAGRAPH AS THE WORDS IN PARENTHESES IMPLIES THAT THE EFFECT OF PROCEEDINGS IN HONG KONG
WOULD NOT BE SUCH A GROUND.
WILSON
YYYY
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