worried, I think, about the possibility that the PRC might be able to exercise jurisdiction over a person whom we had returned to Hong Kong - see comment on Article 14.
4. On the subject of the list, we suggest that the final sentence of paragraph 4 of the current draft brief should be deleted, and that we should seek to make the argument on its own merits, rather than by relying on a point relating to our domestic legislation. We might point out that a prescriptive list might be difficult to amend, which might be desirable, for instance, in order to keep up with legal changes countering new developments in criminal practice; and we could also refer to the considerable intellectual gymnastics which can be required in order to match the conduct complained of both to a listed offence, and to one under the law of the requested state. There is also the considerable risk that a prescriptive list will miss out something important. It would be much more satisfactory to adopt a general 12-month rule, and if necessary incorporate exceptions to it - which would have a precedent in the European Convention on Extradition (ECE), which specifically excludes fiscal offences unless there has been a bilateral agreement on the point, or the Second Additional Protocol has been ratified.
5. On the fiscal point, it would be worth exploring the HK attitude to their extraditability. Several of the offences which they have shown in their list could be capable of covering some fiscal offences - eg items (ix), (xi), (xii), (xxv) and (xxvi). For our part, we do not object in principle to extraditing for fiscal offences.
6. If it proves impossible to move away from some form of list, we think that we could probably manage with one which included all offences punishable by 12 months' or more imprisonment, if necessary by means of a suitable catch-all provision.
7. What this amounts to, I think, is a new draft Article along the following lines:
(1) The Parties agree to surrender to each other, in the circumstances and subject to the conditions specified in these arrangements, any person who, being accused or convicted of an extradition offence as described at (3) below, committed within the territory of one Party, is found within the territory of the other Party.
(2) Surrender will also be possible in respect of an extradition offence as described at (3) below committed outside the territory of the Requesting State but in respect of which it has jurisdiction if the Requested State would, in corresponding circumstances, have jurisdiction over such an offence, provided that
(a) the Requesting Party bases its jurisdiction on the nationality of the offender; and
(b) the conduct constituting the offence occurred outside the territory of the Requested Party.
(3) An extradition offence for the purposes of these arrangements is constituted by conduct which under the laws of each Party is punishable by a term of imprisonment for a period of at least 12 months.
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