TNAG-2285-FCO40-3286-Cooperation-between-Hong-Kong-and-China-on-criminal-matters-1991 — Page 70

CODE 18-77

MKB 380/3.

Mr Stone

HKD

Reference

From: Jill Barrett

Assistant Legal Adviser K 166 270 3381

Date: 19 August 1991

cc: Mr Broom, UND

Mr Seaton, FED

Mr Dinsdale,

Overseas Police Adviser

CO-OPERATION WITH CHINA ON CRIMINAL MATTERS:

HK Telno 2462

と

1. I refer to your undated minute requesting advice on Hong Kong's proposal to provide certain types of assistance to Chinese law enforcement agencies in specified cases, without seeking a death penalty assurance. HKG say that this would be restricted to cases in which PRC citizens who are not HK residents have been arrested in China on suspicion of having committed one of certain specified crimes in Hong Kong.

2.

In human ights terms, our concerns would include the possibility of improper use by the Chinese authorities of any information or evidence provided by HKG, the primitive nature of the whole criminal process in China and consequent risk of wrongful convictions, and their widespread use of the death penalty for offences which are not serious by international standards. It is likely that in many cases in which HKG propose to give assistance, the accused person will be subjected to human rights violations by the PRC authorities which would be in breach of the ICCPR if China were a party. As far as the UK's international legal obligations are concerned, the question is whether the UK would incur responsibility for any violations by the Chinese, by virtue of having assisted them in any of the ways proposed. The most relevant source of obligations is the ICCPR, the scope of which is defined in Article 2, paragraph 1: "each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present

Covenant..

H

A person who is, at the time the assistance is given and at the time his human rights are violated, physically within the PRC, is a PRC national and not a HK resident, is neither within the UK's territory nor subject to its jurisdiction. It might be argued that action taken by HK officials in relation to them could bring them within UK jurisdiction even while they are physically in China; but that would be a rather artificial interpretation of Article 2. I would think that, in MLA cases, the contribution of HKG officials to any human rights violations by the Chinese would be too indirect and too speculative to engage the