TNAG-2285-FCO40-3286-Cooperation-between-Hong-Kong-and-China-on-criminal-matters-1991 — Page 72

CODE 18-77

Reference.

I am not aware

rights implications of granting the request. that any such arrangement is yet in operation, but suggest you ask NTCD for further information about this.

5.

We

Hong Kong's plans to negotiate a series of bilateral agreements with third countries on mutual legal assistance, and then eventually to use these as a model for negotiating similar arrangements with China, provide further reasons for caution. HK's present proposals will seriously undermine that strategy, as is acknowledged in the final sentence of para.10 of the Exco Memorandum. Please refer to the paper handed to the Chinese by UKREP JLG on 7 September 1990 entitled "Arrangements for Mutual Assistance in Criminal Matters". told the Chinese that many types of assistance can only be provided if permitted by statutory powers (see paras 2 and 3 of the paper); yet several of our examples of types of assistance which cannot be given without legal authority are the same or very similar to those which HK now propose to offer the Chinese without legal authority (para 8 of TUR). Furthermore, the arrangements envisaged in HK's model MLA treaty include a variety of safeguards which are lacking in the present proposal, for example;

6.

-

(a) Safeguards Article IV described in para 14

of the Exco paper, (a) - (g), as well as the death penalty provision.

(b) Procedures para 16 of the Exco paper envisages

that the Attorney General's chambers would be the Central Authority. That is much more satisfactory than leaving the final decision to the officials proposed in para 12 of TUR.

If HK tell the Chinese that the range of assistance proposed is in fact available now through administrative channels, without all the safeguards incorporated in the MLA model agreement, this will pull the rug from underneath our carefully-constructed MLA proposals. If the Chinese can have criminal co-operation now without the need for a legal framework, how can we hope to persuade them that one is necessary later? The authors of HKtel 2571 may see their proposals as a "pragmatic approach", but once this is conceded the pressure to extend assistance into other areas will be immense.

JB3AAI

Will Fant Вал wett

Jill Barrett