opportunity to prosecute him if he had not left within the stipulated period. Therefore, should there perhaps be some amendment to paragraph (2)?
Article XIX
I note that in paragraph (2), assistance is expressly stated to be subject to the law of the Requested Party. In paragraph (3), there is no such statement, and it seems to be implied that each party would assist in relation to the confiscation of the proceeds of crime, subject obviously to other provisions of the Agreement. No doubt the Home Office will look at the question of whether there is sufficient detail in this very important Article, and I will also forward a copy to the Asset Forfeiture Unit in this Division which deals with the Restraint and Confiscation of the proceeds of Customs crimes. Although I am not an expert is this area, it occurs to me that it might be prudent to include specific provisions on topics such as conflicts between Confiscation Orders in both the Requested and the Requesting States, and details of the nature of the Confiscation Order in question, whether it is final etc.
Generally, I note that there is not, at present, any Article defining the territories in which the Agreement will apply, and clearly this is a matter for yourselves to consider together with the Home Office.
(iii) I am not sure what you mean by "transitional
difficulties". I would suppose that the existing legislation in Hong Kong would remain in force until the hand over, and possibly for some time thereafter, bearing in mind the terms of paragraph 3(3) of the Joint Declaration (?) and Section II of Annex I. I do not have any proposals to make with regard to other steps which might be taken to enhance Mutual Legal Assistance, apart obviously from the reaching of early agreement in relation to the MLAT.
(iv) We are content with the proposal that there be
negotiations this September, and we would wish to be represented at such negotiations.
I hope that the above comments are helpful, and please do not hesitate to contact me if you require any clarification of the above views.
Э
MR R A H MASH
Principal Legal Officer
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