TNAG-2088-FCO40-2973-Diplomatic-representation-of-third-countries-in-Hong-Kong-1990 — Page 14

CODE

18-77

HKB

400/1

RECEIVED IN

RY

15 MAR 1990

DESK OFFICEF

INDEX

Mrs Lik

Protocol Department

A

RESTRICTED

Reference

A

17 Haywell

we await

reply.

ARREST OF VENEZUELAN CONSULAR OFFICER IN HONG KONG

97

(CACS

7413

1. You will have seen Mr Berman's minute of 8 March 1990.

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2. I think one should start in this matter from the general principle that consular officers do not enjoy immunity from prosecution in respect of criminal acts. Article 43(1) of the Vienna Convention on Consular Relations (VCCR) does, however, provide that they : "shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions". The fraudulent acts of which Mr Ramirez is accused were clearly connected with his performance of consular functions ie the issue of travel documentation. It would, however, be going one step further to say that such acts were performed in the exercise of consular functions'. I take it that the Venezuelans do not dispute that the acts, if performed, were fraudulent and were not carried out with their authority.

3. In a case decided in 1977 in the New Zealand Supreme Court, it was held that the crucial question was whether the act concerned was 'required of' the Consular officer in the exercise of his functions. It has also been stated in the context of Article 38 of the VCDR that a diplomatic agent who is a national or permanent resident of the receiving State would not be immune in the case of a driving offence committed on the way to an official engagement. There is, of course, the argument that 'criminal' acts can always be regarded as extraneous to "consular" functions and, for this reason, a risk that a court would decide that Mr Ramirez was immune from their jurisdiction, given the particular circumstances in which these alleged offences were committed. The Hong Kong Government were, therefore, advised that a waiver should be sought in order to put the question beyond doubt. Recent telegrams from Hong Kong now suggest that the prospect of obtaining such a waiver is somewhat remote. In these circumstances, we need to make a careful assessment of our legal position under the VCCR before any proceedings are commenced. In this connection, it would be helpful to have from the HKD (as requested previously) full details of the precise nature of the offences allegedly committed by Mr Ramirez, the charges they propose to bring against him, together with the maximum penalties available if he is convicted. On the facts, as

JFLAGB

RESTRICTED