TNAG-2879-FCO40-4151-Agreements-between-the-Hong-Kong-Special-Administrative-Regi-1993 — Page 19

NEGOTIATING BRIEF FOR HK/HKSAR AGREEMENT ON SURRENDER OF FUGITIVE OFFENDERS

General Point

1)

UK to explain that at present the Extradition Act 1989, section 3 only allows the UK to give domestic effect to extradition agreements which have been concluded with a foreign state, not with a part of a foreign state, such as the HKSAR. We are exploring ways in which this problem can be resolved, so enabling the UK to enter into an agreement on surrender of fugitive offenders with the HKSAR.

Preamble

2) UK to propose that "provisions" becomes "provision" or

"arrangements".

Article 1

3)

UK to ask HK about the reference to "an offence under Article 2 committed within the jurisdiction of the one Party.". The UK definition of "extradition crime" includes an extraterritorial offence against the law of a foreign state" which satisfies certain conditions. One condition is that the foreign state bases its jurisdiction on the nationality of the offender. What is the position in HK as regards extraterritorial offences? Does HK base its jurisdiction on the nationality of the offender? The UK would not wish to include offences which took place in the PRC over which HK would have extraterritorial jurisdiction.

Article 2

4)

Paragraph 1: General Comment

As a

UK. The list approach in the HK model text is old-fashioned. It was the approach adopted in the Commonwealth scheme but this has been abandoned. matter of policy the UK has moved away from this and does not now enter into any new agreements in which extradition crimes are based on a list. In any case, the UK found a number of practical problems with such an approach. The UK Extradition Act 1989 adopts as an alternative approach a definition of "extradition crime" in which offences are punishable with imprisonment for twelve months or more. Domestically the UK would be unable to implement any agreement based on the list system since the 1898 Act does not allow for this in respect of new agreements.

The HK definition is in any case onerous in that it requires two conditions to be met for an offence to qualify as an extradition crime:

a) it is a listed offence; and

b) it is punishable by imprisonment or other form of

detention for more than one year.