TNAG-2901-FCO40-4175-Extradition-agreements-between-Hong-Kong-and-the-UK-after-19-1993 — Page 128

Article 3

8. On the fall back position, we do not think that we are being inconsistent - we are not saying that extraterritoriality is synonymous with extraditability. On the text of your proposed Article 3(2), we would suggest that "refused" is amended to read "refuses", and that new sentences are added as follows

"....considered appropriate. For this purpose, the files, information and exhibits relating to the offence shall be transmitted without charge to the Requested Party. The Requesting Party shall be informed of the result of its request."

This mirrors the language of Article 6(2) of the ECE.

9. We would further suggest the inclusion of a new Article 3 (3), to put beyond doubt the situation of a person convicted in absentia, which would mirror the reservation we made to Article 1 of the ECE

"(3) Each Party reserves the right to refuse a surrender which is requested pursuant to or for the purpose of executing a conviction or sentence pronounced against the person concerned in his absence from the proceedings in respect of which the conviction or sentence was pronounced.'

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We will also need to be sure that we have adequately reflected the provision at section 6(2)(b) of the 1989 Act. See also our comments on Article 7(4) below.

Article 5

9. We suggest adding a new sentence to the brief for 5(3), as follows

"In any event, both possibilities must be covered expressly."

Article 7

10. Paragraph 1. We have reached the conclusion that there is no fall back position. Given the terms of our present legislation, there is no alternative to the diplomatic channel. We suggest that we can only invite the HK side to rehearse their difficulties with this option, and invite them to propose their own preference, so that we can come to a view as to how best to proceed.

11. Paragraph 3. Although we do not need all of the evidence at the initial stage, we do need some. We suggest that the paragraph is amended as follows

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'....would justify the issue of a warrant of arrest had the offence been committed within the jurisdiction of the Requested Party."