TNAG-2880-FCO40-4152-Agreements-between-the-Hong-Kong-Special-Administrative-Regi-1993 — Page 59

FROM C2 DIVISION

HOME OFFICE.

12.1 1993 13:19

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(6)

(7)

(8)

(9)

Para 15 (on Article IV.1.h): our ability to assist other countries in confiscation matters is subject not to dual criminality but to a dual confiscability requirement. Accordingly, we recommend adding a sub paragraph i on the lines: "if the request concerns restraint or confiscation of proceeds or instruments of an activity which, had it occurred within the jurisdiction of the Requested Party, would not have been an activity in respect of which a confiscation order could have been made". Please also refer to our observation at (13) below on a possible conflict of sub paragraph h with Article XIX.1.

Para 18 (on Article V.2.i): we need to be clear here that non-national persons also are covered.

Para 23 (on Article VII.2): we need to be sure that the Requesting Party is expected to pay the expenses described at Article VII.2(a) to (d) even where these are ordinary expenses. Accordingly, we suggest that paragraphs 1 and 3 be retained and that paragraph 2 be replaced with the following:

"The Requested Party shall assume all expenses of executing a request within its boundaries except: (a) fees of counsel retained at the request of the Requesting Party; (b) fees of experts; (c) expenses of translation; (d) travel expenses and aliowances of persons; and (e) viher expenses to the extent that these are of an extraordinary nature. The Requested Party shall decide which expenses other than expenses at (a) to (d) in this paragraph are expenses of an extraordinary nature",

Para 25 (on Article VIII): please see Mrs Evans' letter to you of 10 December.

(10) Para 29 (on Article XII.1): we recommend that section 1(1)(b) documents also be covered. Accordingly, we suggest that between the words "Requesting Party" and "which is transmitted" in your draft text you add "and any document issued by a tribunal exercising criminal jurisdiction in that territory and recording a decision of that tribunal". We suggest also that you retain the words "in criminal proceedings", ie that you delete the square brackets.

(11) Para 36 (on Article XIII.1): we suggest that your square brackets round

"copies of" be deleted we doubt whether originals should be provided.

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(12) Para 46 (on Article XVIII.1): your reference to "serious arrestable offences" should read "arrestable or serious arrestable offences". We think that in new Article XVIII.2, the words "in similar circumstances" could be replaced by "were the proceeding or investigation to be one being carried on there".

/(13) Para 49