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Research Study on the Agreement Between Hong Kong and the Mainland Concerning Surrender of Fugitive Offenders

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Research Study on the Agreement Between Hong Kong and the Mainland Concerning Surrender of Fugitive Offenders RP05/00-01 Research Study on the Agreement between Hong Kong and the Mainland concerning Surrender of Fugitive Offenders March 2001 Prepared by Mr CHAU Pak-kwan Mr Stephen LAM Research and Library Services Division and Legal Service Division Legislative Council Secretariat 5th Floor, Citibank Tower, 3 Garden Road, Central, Hong Kong Telephone : (852) 2869 7735 Facsimile : (852) 2525 0990 Website : http://www.legco.gov.hk E-mail : [email protected] C O N T E N T S page Executive Summary Introduction 1 Background 1 Scope of Study 1 Chapter 1 -Principles and Approaches in Extradition Treaties Signed 2 by China with Foreign Countries Legal Basis of China’s Extradition System 2 China’s Domestic Legal Norms 2 International Legal Norms 3 Basic Principles and Contents of Sino-Foreign Bilateral Extradition 8 Treaties Basic Principles 8 Basic Contents 9 Extraditable Offences 10 Circumstances under which extradition should be refused 12 Circumstances under which extradition may be refused 14 Principle of Non-extradition for Political Offences 15 Principle of Non-extradition for Death Penalty 21 Chapter 2 -Arrangements for the Surrender of Fugitive Offenders 24 between Hong Kong and Foreign Countries Fugitive Offenders Ordinance 24 Surrender of Fugitive Offenders 24 Persons Liable to be Surrendered 25 Relevant Offences 26 General Restrictions on Surrender 26 Procedural Safeguards 26 Treatment of Persons Surrendered from Prescribed Place 27 Transit 28 Mutual Legal Assistance in Criminal Matters 28 ---------------------------------------------------------------------------------------------------------------------------- The Legislative Council Secretariat welcomes the re-publication, in part or in whole, of this research report, and also its translation in other languages. Materials may be reproduced freely for non- commercial purposes, provided acknowledgement is made to the Research and Library Services Division of the Legislative Council Secretariat as the source and one copy of the reproduction is sent to the Legislative Council Library. Chapter 3 -Inter-regional Arrangements for the Surrender of Fugitive 29 Offenders in Other Places Arrangements for the Surrender of Fugitive Offenders between States in the 29 United States Constitution 29 Federal Laws 30 State Laws 31 Habeas Corpus 32 Issue of Death Penalty 33 Issue of Political Offenders 33 Establishment of an Interstate Rendition System 34 Arrangements for the Surrender of Fugitive Offenders between Mainland 35 China and Taiwan Jinmen Agreement Model 36 Issues Relating to the Surrender of Aircraft Hijackers 38 Arrangement for the Surrender of Fugitive Offenders between the Two 41 Sides Chapter 4 -Division of Criminal Jurisdiction between the Mainland 43 and Hong Kong Criminal Jurisdiction 43 Criminal Jurisdiction/Spatial Effect of Criminal Law 43 Principles of Criminal Jurisdiction 44 Extraterritorial Criminal Jurisdiction 45 Jurisdiction of Criminal Litigation 46 Spatial Effect of the Chinese Criminal Law 47 Characteristics of the Chinese Criminal Law 47 Spatial Effect of the Chinese Criminal Law 47 Criminal Jurisdiction of Hong Kong 52 Characteristics of Hong Kong Criminal Law 52 Territorial Jurisdiction 52 Extraterritorial Jurisdiction 52 Criminal Jurisdiction Controversies between the Mainland and Hong Kong 54 Arising from the Cheung Tze-keung Case Article 6 of the Chinese Criminal Law 55 Article 24 of the Chinese Criminal Procedure Law 58 Criminal Jurisdiction Controversies between the Mainland and Hong Kong 61 Arising from the Li Yuhui Case Controversy over “Lingyu” (領域) and “Fayu” (法域) 61 Principles in Dividing Criminal Jurisdiction between the Mainland and 65 Hong Kong Chapter 5 - Regulatory Model for the Agreement on the Surrender of 72 Fugitive Offenders between the Mainland and Hong Kong Regulatory Model for the Agreement on the Surrender of Fugitive 72 Offenders between the Mainland and Hong Kong Past Experience of Judicial Assistance between the Mainland and Hong 73 Kong Commitments made by Hong Kong Government 75 Regulatory Model for the Agreement on the Surrender of Fugitive 76 Offenders between the Mainland and Hong Kong Scope and Contents in the Formulation of the Agreement on the Surrender 78 of Fugitive Offenders between the Mainland and Hong Kong Principle of Double Criminality 79 Issue of Death Penalty 80 Principle of Non-extradition for Political Offences 83 Fair Trial 85 Principle of Double Jeopardy 89 Habeas Corpus 90 Review Mechanism 91 Appendices 95 I. The Extradition Treaty between the People's Republic of China 95 and Romania (Chinese Version) II Details of Hong Kong Legislation Relating to Mutual Legal 102 Assistance in Criminal Matters III. Jinmen Agreement 106 IV. Statistics of Cross-Strait Mutual Request for Assistance in Detaining 107 Criminal Suspects Escaped to the Other Side and Frequency of Successful Detention by the Police Administration of the Ministry of Internal Affairs of Taiwan on the Enforcement of the "Jinmen Agreement" V. Draft Agreement on the Surrender of Aircraft Hijackers between 108 the Two Sides and Related Matters VI. Legislative Explanations of the Draft Regulation on Handling 111 Criminal Cases Entrusted by the Mainland Region VII. Extradition Law of the People’s Republic of China 115 VIII. Arrangement of the Supreme People's Court on the Service of the 130 Civil and Commercial Judicial Documents by Reciprocal Mandate between the Courts of the Mainland and the Hong Kong Special Administrative Region IX. Arrangement of the Supreme People's Court on Reciprocal 133 Enforcement of the Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region X. Arrangements on the Establishment of a Reciprocal Notification 137 Mechanism between the Mainland Public Security Authorities and the Hong Kong Police XI. Model Treaty on Extradition 139 References 146 EXECUTIVE SUMMARY Principles and Approaches in Extradition Treaties Signed by China with Foreign Countries 1. The first extradition treaty signed by China with a foreign country was the one signed with Thailand in 1993. By March 2000, the Standing Committee of the National People’s Congress had ratified 10 bilateral extradition treaties with other countries. These countries are Thailand, Belarus, Russia, Bulgaria, Kazakhstan, Romania, Mongolia, Kirghizstan, Ukraine and Cambodia. 2. The extradition treaties signed between China and other countries generally follow the extradition principles which are recognized internationally, including the principle of double criminality, the principle of specialty, the principle of non-extradition for political offences, the principle of non- extradition for nationals and the principle of either extradition or prosecution. 3. The contents and structure of the ten extradition treaties signed between China and foreign countries are very similar and mainly cover the following aspects, including the obligation to extradite, extraditable offences, the circumstances under which extradition should be refused, the circumstances under which extradition may be refused, the principle of specialty, the applicable law to deal with extradition requests and the dispute resolution. 4. The concept of “political offences” is very often not directly mentioned in the bilateral extradition treaties signed between China and other countries. Instead, the granting of political asylum is used as a reason for the refusal of extradition. In some of its bilateral extradition treaties, political asylum is in fact employed to substitute for non-extradition for political offences. 5. When China signs bilateral extradition treaties with other countries, it tries to avoid directly incorporating the principle of “non-extradition for death penalty” in a treaty. Nevertheless, according to the current judicial extradition practice in China, the norm of “non-extradition for death penalty” is accepted to a certain extent. Arrangements for the Surrender of Fugitive Offenders between Hong Kong and Foreign Countries 6. The law governing the surrender of fugitive offenders in Hong Kong is the Fugitive Offenders Ordinance (Cap. 503). The existing Fugitive Offenders Ordinance does not apply to the Mainland. After its reunification with China, the Hong Kong Special Administrative Region (HKSAR), under the Basic Law, has been authorized by the Central Government to negotiate and conclude agreements on the surrender of fugitive offenders with foreign countries. Hong Kong has so far entered into such agreements with more than 10 countries. In the form of subsidiary legislation, such agreements become part of the Hong Kong laws. The Fugitive Offenders Ordinance provides guidance on principles and procedures of the surrender of fugitive offenders. 7. Section 5 of the Fugitive Offenders Ordinance provides for grounds of refusing the surrender of persons to prescribed places, including: where the offence in question is political in nature; where the request for surrender appears to be made for the purpose of punishing the person on account of his race, religion, nationality or political opinions, or that the person might be prejudiced at his trial on these grounds; where the person was convicted in his absence; where if the offence had occurred in Hong Kong, the law of Hong Kong relating to previous acquittal or conviction would preclude the prosecution, or the imposition or enforcement of a sentence, in respect of that offence; where there is no guarantee that the person would not be tried for a crime other than that for which his surrender was granted; or where there is
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