TNAG-2387-FCO40-3469-Extradition-from-the-UK-to-Hong-Kong-case-of-Lorrain-Esme-Os-1991 — Page 47

Mr Paul

HKD

HKD 384

3847

RECEIVED IN REGISTRY

19 APR 1991

DESK OFFICER

INDEX

From: Ms J Barrett

PA

Assistant Legal Adviser

K 166 270 3381

Date: 22 March 1991

cc: Sir Arthur Watts, Legal Adviser

13

LORRAIN ESME OSMAN:

HABEAS CORPUS APPLICATION NO. 5

1. As you know, Mr Osman has for some years been resisting extradition to Hong Kong, where he is wanted to stand trial for serious criminal offences. He has recently launched his fifth habeas corpus application, which, in substance, challenges the power of the Home Secretary to order Osman's return to Hong Kong. The Home Office is therefore the Department principally concerned in defending this case. However, one of the grounds on which Osman has based this application is that he could receive adverse treatment after 1997 from the Chinese authorities. Counsel instructed by the Home Office, together with Treasury Solicitors, have taken the view that an Affidavit is required to set out the facts regarding the arrangements which have been made with the Chinese for Hong Kong after 1997. In their view, the Affidavit needs to come from the FCO (or, if we prefer, Hong Kong Government), and they have therefore asked for our assistance and sent their Draft Affidavit for our consideration.

2. My legal advice is that an FCO Affidavit for the purposes of these proceedings would be most effective if sworn by yourself, as Head of Hong Kong Department, being the Department in the FCO with responsibility for the matters to which the Affidavit relates. It is normal practice for Affidavits to be sworn at Head of Department level, though there is no absolute rule about this, and if you considered that there were good reasons to delegate this matter to another person in your Department, that may well be acceptable. An alternative would be to ask Hong Kong Government to have it sworn by an appropriate person there. The wording of the Affidavit will need to be cleared with HKG in any event.

3.

As to the content of the present draft, I understand from Mr Hague that you have some misgivings, particularly about making assessments of the effects of PRC law after 1997. Legal Advisers share your concerns, our view being that the text should state facts and not attempt legal argument or predictions. I have therefore redrafted it making substantial changes to the final two paragraphs. The earlier paragraphs