TNAG-2174-FCO40-3111-Hong-Kong-Bill-of-Rights-1990 — Page 149

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REPRODUCED IN ANY WAY IN THE CHINESE TEXT OF EITHER THE COVENANT OR THE BILL). THE SAME WOULD APPLY TO ARTICLES 10, 16(3)(B), 18

AND 19.

6.

ARTICLE 9: RESTRICTIONS ON EXPULSION: AS DRAFTED, THIS CAN BE CONSTRUED THAT PEOPLE WHO HAVE RIGHT OF ABODE IN HONG KONG MAY BE EXPELLED AND WITHOUT DUE PROCESS. THIS IS A CONSEQUENCE OF REDRAFTING THE COVENANT TO MEET THE CIRCUMSTANCES OF HONG KONG. WE SUGGEST THE ADDITION OF A PROVISO QUOTE NOTHING IN THIS

ARTICLE SHALL BE READ AS AUTHORISING THE EXPULSION FROM HONG KONG

OF A PERSON WHO HAS THE RIGHT OF ABODE IN HONG KONG UNQUOTE.

7.

ARTICLE 11(6): COMPARABLE OFFENCES IN TWO JURISDICTIONS: WE

HAVE CONSIDERED WHETHER THIS PROVISION SHOULD BE CONFINED TO HONG

KONG. ALTHOUGH CHINESE CRIMINAL LAW WILL NOT APPLY IN HONG KONG

AFTER 1997, THE SAME SERIES OF ACTS OCCURRING IN HONG KONG AND IN THE MAINLAND MAY AMOUNT TO COMPARABLE OFFENCES IN BOTH JURISDICTIONS EG ECONOMIC CRIMES, FRAUD. AS DRAFTED, PARAGRAPH (6) WOULD MEAN THAT A PERSON COULD BE TRIED IN THE SAME COUNTRY A

SECOND TIME EVEN IF HE HAD ALREADY BEEN TRIED AND CONVICTED OR ACQUITTED IN ANOTHER JURISDICATION OF THAT COUNTRY FOR A

COMPARABLE CRIME IN RESPECT OF THE SAME ACT. WE HAVE CONCLUDED

THAT FOR THE PURPOSES OF THE BILL OF RIGHTS, YOU ARE RIGHT TO HAVE DRAFTED AS YOU HAVE. ATTEMPTING TO TAKE ACCOUNT OF THE

POSITION ONCE HONG KONG HAS BECOME PART OF THE PRC RAISES

DIFFICULT AND DELICATE QUESTIONS. THE RIGHT TIME TO ADDRESS THESE WOULD BE WHEN WE DISCUSS CRIMINAL JURISDICATION, RENDITION AND CONNECTED SUBJECTS WITH THE CHINESE. WE WOULD CERTAINLY NOT

WANT TO MUDDY THE WATERS OF THE BILL WITH SUCH SUBJECTS.

8. ARTICLE 21: RIGHT TO NATIONALITY: WE NOTE THAT YOU HAVE

OMITTED ARTICLE 24(3) OF THE COVENANT. ALTHOUGH THIS PARAGRAPH

APPLIES IN HONG KONG LAW TODAY WE ACCEPT THAT IT IS NOT A MATTER

WITHIN HONG KONG FUTURE AUTONOMY AND WOULD BE PROVOCATIVE TO THE CHINESE. WE THEREFORE AGREE WITH ITS OMISSION.

HURD

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