TNAG-2090-FCO40-2975-Diplomatic-representation-of-third-countries-in-Hong-Kong-1991 — Page 49

CONFIDENTIAL

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CONFIDENTIAL

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TO ROUTINE HONG KONG

TELNO 2302

OF 30183OZ NOVEMBER 90

INFO ROUTINE BANGKOK, JAKARTA

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338

151620 MDLOAN 5225

YOUR TELNO 3496: INDONESIAN AND THAI CONSULATES GENERAL IN HONG KONG: PROSECUTION OF CONSULAR EMPLOYEES

1. WE AGREE THAT IN THIS CASE THE SENSIBLE COURSE WOULD BE TO SEEK A WAIVER, FOR AS YOU POINT OUT, THE COOPERATION OF MEMBERS OF STAFF OF THE TWO CONSULATES GENERAL WILL BE NEEDED IF A SUCCESSFUL CASE IS TO BE BROUGHT.

2.

OUR LEGAL ADVISERS HAVE COMMENTED THAT THE GENERAL RULE REFLECTED IN ARTICLE 44 OF THE VIENNA CONVENTION ON CONSULAR RELTIONS IS THAT CONSULAR OFFICERS AND CONSULAR EMPLOYEES ARE LIABLE TO GIVE EVIDENCE. HOWEVER, A CONSULAR OFFICER CANNOT BE COMPELLED TO DO SO CARTICLE 44(1) AND FURTHERMORE NO MEMBER OF A CONSULAR POST IS UNDER ANY OBLIGATION TO GIVE EVIDENCE CONCERNING MATTERS CONNECTED WITH THE EXERCISE OF THEIR FUNCTIONS OR TO PRODUCE OFFICIAL CORRESPONDENCE OR DOCUMENTS (ARTICLE 44(3).

3. THE ARGUMENT CONTAINED IN PARA 2 OF TUR THAT CRIMINAL ACTS CAN ALWAYS BE REGARDED AS EXTRANEOUS TO THE EXERCISE OF CONSULAR FUNCTIONS, GOES TOO FAR AND WOULD MAKE ARTICLE 43(1) LARGELY WORTHLESS AS YOU POINT OUT. THE QUESTION MUST BE WHETHER THE ACT CONCERNED WAS PERFORMED IN THE EXERCISE OF CONSULAR FUNCTIONS IE WHETHER THE CRIME WAS COMMITTED IN THE COURSE OF AN ACT WHICH THE OFFICER WAS UNDER A DUTY TO PERFORM.

HURD

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