TNAG-2584-FCO40-3772-Extradition-agreements-between-Hong-Kong-and-Malaysia-1992 — Page 95

0414017

COMMENT:

нкс 38416.

1992

HKD

ла

CONFIDENTIAL

FM KUALA LUMPUR

TO PRIORITY HONG KONG

TELNO MISC 27

OF 030817Z JUNE 92

INFO ROUTINE FCO, PEKING, UKREP JLG HONG KONG

см

FROM EDWARDS (LAW OFFICER, HONG KONG GOVERNMENT)

HK TELNO 1645 OF 1991: SURRENDER OF FUGITIVE OFFENDERS: MALAYSIA

SUMMARY

1.

WE HAVE INITIALLED AN AGREEMENT. MALAYSIAN DELEGATION ACCEPTS A SLIGHT VARIANT OF OUR PROPOSAL ON THE DEATH PENALTY. REMAINDER OF AGREEMENT ALSO SATISFACTORY: ALL ESSENTIAL SAFEGUARDS RETAINED.

DETAIL

A.

2.

DEATH PENALTY

I MADE A FULL PRESENTATION OF OUR PROPOSAL AS AGREED IN EXCO ARTICLE IN AGREEMENT RESTRICTED TO TAKING INTO ACCOUNT OUR REPRESENTATIONS PLUS SEPARATE EXCHANGE OF LETTERS EXPLAINING THAT, UNDER PRESENT POLICY, WE WOULD REFUSE TO RETURN FUGITIVES WHO COULD FACE THE DEATH PENALTY (IN THE ABSENCE OF SATISFACTORY ASSURANCES) UNDER EITHER ARTICLE 3 (NATIONALITY EXCEPTION) OR ARTICLE 15 (HUMANITARIAN EXCEPTION)). FOLLOWING A FULL DISCUSSION THE MALAYSIANS WERE PERSUADED TO PUT THE PROPOSAL TO THE ATTORNEY-GENERAL AND SEEK AN EARLY REPLY.

3. THE MALAYSIANS RETURNED THE FOLLOWING DAY AND SUGGESTED THAT THEY MIGHT BE WILLING TO ACCEPT A SOLUTION IN WHICH:

(A) THERE WOULD BE NO (NO) MENTION OF THE DEATH PENALTY IN THE AGREEMENT ITSELF BUT

(B) THEY ACCEPTED THAT HONG KONG WOULD NOT (NOT) RETURN FUGITIVES IF THE DEATH PENALTY COULD BE CARRIED OUT AND THAT SUCH REFUSAL WOULD NOT (NOT) BE IN BREACH OF OUR OBJECTIONS UNDER THE AGREEMENT.

I EXPLAINED THAT IT WOULD BE ESSENTIAL FOR US TO HAVE A PIECE OF PAPER RECORDING THIS UNDERSTANDING WHICH COULD BE PRODUCED TO THE CHINESE TO PROTECT OUR POSITION WHEN/IF WE WERE TO NEGOTIATE RENDITION ARRANGEMENTS WITH THEM. I ALSO EXPLAINED THAT IT WOULD ALMOST CERTAINLY BECOME NECESSARY, WHEN LEGCO SAW THE AGREEMENT IN CONNECTION WITH THE LEGISLATION THAT WE WOULD SOON BE INTRODUCING, TO ASSURE MEMBERS THAT BOTH PARTIES AGREED THAT HONG KONG WOULD NOT BE IN BREACH OF THE AGREEMENT WHEN REFUSING, UNDER EITHER ARTICLES 3 OR 19, TO RETURN FUGITIVES WHO COULD FACE THE DEATH PENALTY.

5. THE MALAYSIANS WERE AT FIRST RELUCTANT TO AGREE TO RECORD ALL THIS IN A BOUT DE PAPIER BUT AFTER FURTHER DISCUSSIONS AND CONSULTATION WITH THE ATTORNEY-GENERAL, THEY AGREED THAT THERE SHOULD BE AN EXCHANGE OF LETTERS BETWEEN THE TWO DELEGATION HEADS AT THE SAME TIME AS THE AGREEMENT ITSELF WAS SIGNED. THE EXCHANGE (TEXTS IN MIFT) SETS OUT HKG'S POLICY OF NOT (NOT) RETURNING AND THE MALAYSIAN GOVERNMENT'S ACKNOWLEDGMENT OF THAT POLICY.

6. I THOUGHT IT RIGHT, GIVEN THE SENSITIVITY OF THE DEATH PENALTY PROBLEM, TO EMPHASISE TO THE MALAYSIANS THAT OUR INITIALLING OF THE AGREEMENT WAS AD REFERENDUM GOVERNMENTS. WHILE I WAS CONFIDENT