[Senate Treaty Document 105-3]
[From the U.S. Government Publishing Office]



105th Congress                                              Treaty Doc.
                                SENATE

 1st Session                                                      105-3
_______________________________________________________________________


 
   AGREEMENT WITH HONG KONG FOR THE SURRENDER OF FUGITIVE OFFENDERS

                               __________

                                MESSAGE

                                  FROM

                   THE PRESIDENT OF THE UNITED STATES

                              TRANSMITTING

 AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND 
  THE GOVERNMENT OF HONG KONG FOR THE SURRENDER OF FUGITIVE OFFENDERS 
                SIGNED AT HONG KONG ON DECEMBER 20, 1996




 March 3, 1997.--Agreement was read the first time and, together with 
the accompanying papers, referred to the Committee on Foreign Relations 
          and ordered to be printed for the use of the Senate


                         LETTER OF TRANSMITTAL

                              ----------                              

                                    The White House, March 3, 1997.
To the Senate of the United States:
    With a view to receiving the advice and consent of the 
Senate to ratification as a treaty, I transmit herewith the 
Agreement Between the Government of the United States of 
America and the Government of Hong Kong for the Surrender of 
Fugitive Offenders signed at Hong Kong on December 20, 1996 
(hereinafter referred to as ``the Agreement''). In addition, I 
transmit for the information of the Senate, the report of the 
Department of State with respect to the Agreement. As a treaty, 
this Agreement will not require implementing legislation.
    This Agreement will, upon entry into force, enhance 
cooperation between the law enforcement communities of the 
United States and Hong Kong, and will provide a framework and 
basic protections for extraditions after the reversion of Hong 
Kong to the sovereignty of the People's Republic of China on 
July 1, 1997. Given the absence of an extradition treaty with 
the People's Republic of China, this Treaty would provide the 
means to continue an extradition relationship with Hong Kong 
after reversion and avoid a gap in law enforcement. It will 
thereby make a significant contribution to international law 
enforcement efforts.
    The provisions of this Agreement follow generally the form 
and content of extradition treaties recently concluded by the 
United States. In addition, the Agreement contains several 
provisions specially designed in light of the particular status 
of Hong Kong. The Agreement's basic protections for fugitives 
are also made expressly applicable to fugitives surrendered by 
the two parties before the new treaty enters into force.
    I recommend that the Senate give early and favorable 
consideration to the Agreement and give its advice and consent 
to its ratification as a treaty.
                                                William J. Clinton.


                          LETTER OF SUBMITTAL

                              ----------                              

                                       Department of State,
                                      Washington, February 4, 1997.
The President,
The White House.
    The President: I have the honor to submit to you the 
Agreement between the Government of the United States of 
America and the Government of Hong Kong For the Surrender of 
Fugitive Offenders, (hereinafter referred to as ``the 
Agreement''), signed at Hong Kong on December 20, 1996. I 
recommend that the Agreement be transferred to the Senate for 
its advice and consent to ratification as a treaty as soon as 
possible so that it may become effective prior to the reversion 
of Hong Kong to the sovereignty of the People's Republic of 
China (PRC) on July 1, 1997. Given the absence of an 
extradition treaty with the PRC, this US-Hong Kong treaty would 
provide the means to ensure an ongoing extradition relationship 
with Hong Kong, avoiding a gap in our law enforcement 
relationship.
    The Agreement follows generally the form and content of 
extradition treaties recently concluded by the United States. 
It represents a concerted effort by the Department of State and 
the Department of Justice to modernize the legal tools 
available for the extradition of serious offenders such as 
narcotics traffickers and terrorists and also to address the 
particular issues related to the status of Hong Kong.
    Although entitled an ``Agreement'' to reflect Hong Kong's 
unique juridical status, for purposes of U.S. law, the 
instrument will be considered to be a treaty, and therefore I 
am submitting it to you for transmittal to the Senate for 
advice and consent to ratification. In that regard, I note that 
Hong Kong is entering into the Agreement with the authorization 
of ``the sovereign government which is responsible for its 
foreign affairs.'' At present, that is the United Kingdom. 
However, the PRC has also approved the Agreement and authorized 
its continuation in force after July 1, 1997 through approval 
of the Sino-British Joint Liaison Group. For ease of reference, 
the relevant sovereign is referred to in this report as the PRC 
although there could be a brief period after the treaty enters 
into force when the sovereign would still be the United 
Kingdom.
    Article 1 obligates each Party to extradite to the other, 
in accordance with the provisions of theAgreement, any person 
wanted for prosecution or for the imposition or enforcement of a 
sentence in respect of an offense described in Article 2.
    Article 2 contains an extensive list of offenses for which 
the Parties agree to surrender fugitive offenders, provided 
that the offense is punishable by both parties by imprisonment 
or other form of detention for more than one year, or by a more 
severe penalty. Significantly, the Agreement follows the modern 
dual criminality model by including as the last item in the 
list of offenses, ``any other offense which is punishable under 
the laws of both Parties by imprisonment or other form of 
detention for more than one year, or by a more severe penalty, 
unless surrender for such offense is prohibited by the laws of 
the requested Party.'' Inclusion of this dual criminality 
clause obviates the need to renegotiate or supplement the 
Agreement as offenses become punishable under the laws of both 
Parties. In keeping with most recently negotiated U.S. 
extradition treaties, the Article further provides that in 
determining whether an offense is an offense under the law of 
the requested Party, the conduct of the person shall be 
examined by reference to the totality of the underlying 
criminal conduct without reference to the elements of the 
offense prescribed by the law of the requested Party. Article 
2(5) contains the standard provision found in other extradition 
treaties that an offense under military law shall not be 
considered to be an offense for purposes of paragraph (1) of 
this Article.
    Article 3, like most modern extradition treaties concluded 
by the United States, provides that surrender shall not 
normally be refused on the ground that the person sought is a 
national of the requested Party. However, the executive 
authority of Hong Kong reserves the right to refuse surrender 
of nationals of the PRC in cases in which: (1) the requested 
surrender relates to the defense, foreign affairs or essential 
public interest or policy of the PRC, or (2) the person sought 
neither has the right of abode in Hong Kong nor has entered 
Hong Kong for the purpose of settlement, and the PRC has 
jurisdiction over the offense and has commenced or completed 
proceedings for the prosecution of that person. The executive 
authority of the United States reserves the same right to 
refuse the surrender of U.S. nationals on grounds of defense, 
foreign affairs or essential public interest or policy of the 
United States of America. Article 3(4) provides that in a case 
in which the person sought by the United States has neither the 
right of abode in Hong Kong nor has entered Hong Kong for the 
purpose of settlement, and the PRC has jurisdiction and is 
investigating an offense by that person, action on the 
extradition request by the United States may be deferred until 
the investigation has been expeditiously concluded. Article 
3(5) provides that in cases in which extradition is refused on 
the grounds of its relationto defense, foreign affairs or 
essential public interest or policy, the requesting Party may request 
that the case be submitted to the competent authorities of the 
requested Party who will consider whether to bring a prosecution. The 
delegations expressed their shared intention that this Article would 
rarely be invoked.
    Under Article 4, when an offense for which surrender is 
sought is punishable by death under the laws of the requesting 
Party and is not so punishable under the laws of the requested 
Party, the requested Party, may refuse surrender unless the 
other Party provides assurances that the death penalty will not 
be imposed or, if imposed, will not be carried out. The United 
States has agreed to a similar formulation in other modern 
extradition treaties.
    Article 5, following modern practice, bars surrender when 
the person sought has been convicted or acquitted in the 
requested Party for the same offense, but does not bar 
extradition if the competent authorities in the requested Party 
have declined to prosecute or have decided to discontinue 
criminal proceedings.
    Article 6 incorporates a political offense exception to 
extradition similar to provisions contained in U.S. extradition 
treaties concluded in recent years with a number of other 
countries. After prohibiting extradition for offenses of a 
political character, the Article expressly excludes from the 
reach of the exception an offense for which both Parties are 
obliged pursuant to a multilateral international agreement to 
extradite the person sought or to submit the case to their 
competent authorities for decision as to prosecution (e.g., 
aircraft hijacking pursuant to The Hague Convention for the 
Suppression of Unlawful Seizure of Aircraft, done at The Hague 
December 16, 1970, and entered into force October 14, 1971 (22 
U.S.T. 1641; TIAS No. 7192); aircraft sabotage pursuant to the 
Montreal Convention for the Suppression of Unlawful Acts 
Against the Safety of Civil Aviation, done at Montreal 
September 23, 1971, and entered into force January 26, 1973, 
(24 U.S.T. 564; TIAS No. 7570); crimes against internationally 
protected persons, including diplomats, under the Convention on 
the Prevention and Punishment of Crimes Against Internationally 
Protected Persons, including Diplomatic Agents, done at New 
York on December 14, 1973, and entered into force February 20, 
1977 (28 U.S.T. 1975; TIAS No. 8532); and hostage taking, 
pursuant to the International Convention Against the Taking of 
Hostages, done at New York on December 17, 1979, and entered 
into force June 3, 1983, and for the United States January 6, 
1985 (TIAS No. 11081). The article likewise excludes from the 
reach of the political offense exception murder or other 
willful crime against the person of the head of state of the 
United States or the PRC or a member of the Head of State's 
immediate family. A conspiracy or attempt tocommit this offense 
or the multilateral international agreement offenses described above 
shall also not be considered to be an offense of a political character.
    Article 6 further mandates the denial of extradition if the 
competent authority of the requested Party, which is expressly 
designated in the Article as the executive authority in the 
United States, determines (1) that the request was politically 
motivated, (2) that the request was made for the primary 
purpose of prosecuting or punishing the person sought on 
account of his race, religion, nationality or political 
opinion, or (3) that the person sought is likely to be denied a 
fair trail or punished on account of his race, religion, 
nationality, or political opinions. The United States has 
agreed to the inclusion of such a comprehensive provision in a 
few other modern extradition treaties.
    Article 7, as in the U.S.-Norway extradition treaty, 
provides that the competent authority of the requested Party, 
which is designated as the executive authority in the United 
States, may in its discretion refuse the surrender of a 
fugitive when it believes that such surrender is likely to 
entail exceptionally serious consequences related to the age or 
health of the fugitive. This provision has rarely been accepted 
by the United States and the delegations expressed their shared 
expectation that this Article would apply only in the most 
unusual and extraordinary circumstances.
    Article 8 describes the documents that are required to 
support a request for extradition, following other modern 
extradition treaties.
    Article 9 establishes the procedures under which documents 
submitted pursuant to Article 8 shall be received and admitted 
into evidence in the requested Party. These provisions are also 
similar to those found in other modern extradition treaties.
    Article 10, in keeping with other modern extradition 
treaties, provides for the provisional arrest and detention of 
the person sought pending receipt of a fully documented 
extradition, request in conformity with Article 8. Article 
10(5) limits the period that the person sought may be so held 
to no more than sixty days and explicitly provides that the 
discharge of the person sought from custody due to lapse of 
time does not prejudice subsequent rearrest and extradition 
upon later receipt of the extradition request and supporting 
documents.
    Article 11 again reflects U.S. practice in modern 
extradition treaties, providing that if the executive authority 
of the requested Party has received requests for the 
extradition of a fugitive offender from more than one country 
with which either Party has arrangements for the surrender of 
fugitive offenders, it shall make its decision having regard to 
all the circumstances, including the relevantprovisions of such 
agreements or arrangements, the place of commission of the offenses, 
their relative seriousness, the respective dates of the requests, the 
nationality of the fugitive offender, the nationality of the victim, 
and the possibility of subsequent surrender to another jurisdiction.
    Article 12 contains provisions on representation and 
expenses that are similar to those found in other modern 
extradition treaties. Specifically, the requested Party bears 
ordinary expenses for the legal representation of the 
requesting Party in any proceedings arising out of a request 
for surrender of a fugitive offender. In the event that the 
requesting Party arranges its own additional legal 
representation and assistance, it bears any additional expenses 
incurred. Article 12(3) clarifies that neither Party shall make 
any pecuniary claim against the other Party arising out of the 
arrest, detention, examination, or surrender of persons sought 
under the Agreement.
    Pursuant to Article 13, a fugitive offender shall be 
surrendered only if the evidence is found sufficient according 
to the law of the requested Party either to justify the 
committal for trial of the person sought if the offense of 
which he had been accused had been committed in the territory 
of the requested Party or to establish that he is the person 
found guilty, convicted or sentenced by the courts of the 
requesting Party. These requirements are found in many modern 
U.S. extradition treaties and preserve the ``probable cause'' 
standard in cases of requests to the United States.
    Article 14 sets forth the standard procedures to govern the 
surrender and return of fugitive offenders, including the 
release from custody of a fugitive offender if the requesting 
Party does not take custody of the person claimed on the date 
agreed to by the Parties. Like other recent extradition 
treaties, it provides that, if a request is denied in whole or 
in part, the requested Party, to the extent permitted under its 
law, is to provide an explanation of the reasons for the denial 
and, at the request of the requesting Party, copies of 
pertinent judicial decisions.
    Article 15 follows other modern extradition treaties in 
providing that when a person is surrendered, the requested 
Party shall, so far as its law allows and subject to conditions 
it may impose to protect the rights of other claimants, furnish 
the requesting Party with all sums of money and other articles 
which may serve as evidence in the requesting Party's 
prosecution or which may have been acquired by the person 
sought as a result of the offense and are in his or her 
possession.
    Article 16 expressly incorporates into the Agreement a 
typical formulation of the rule of speciality. It provides, 
subject to specificexceptions, that a person extradited under 
the Agreement may not be proceeded against, sentenced or detained with 
a view to the carrying out of a sentence for any offense committed 
prior to his surrender other than that for which extradition has been 
granted unless the requested Party consents. Furthermore, the 
requesting Party may not surrender or transfer such person beyond its 
jurisdiction for the offense for which his surrender was granted or for 
an offense committed prior to his original surrender without the 
consent of the requested Party. In the case of Hong Kong, this consent 
requirement would apply to any proposed surrender or transfer outside 
of Hong Kong. The limitations imposed under Article 16 do not apply if 
the person has had an opportunity to leave the jurisdiction of the 
Party to which he has been surrendered and has not done so within 
thirty days or leaves and voluntarily returns.
    Article 17, which resembles provisions in most recent 
United States extradition treaties, provides for the temporary 
or deferred surrender of persons who are serving a sentence or 
are being prosecuted in the territory of the requested Party.
    Article 18 permits surrender without further proceedings if 
the person sought gives his consent, as is the case in most 
modern treaties. It further provides that, to the extent 
required under the law of the requested Party, the rule of 
speciality in Article 16 shall apply to such transfers. 
Although U.S. law does not impose speciality limitations in 
such cases, the Hong Kong negotiators informed the United 
States delegation that such speciality limitations apply under 
Hong Kong law.
    Article 19 governs the transit through the territory of one 
Party of a person being surrendered to the other Party by a 
third state. As with similar provisions in other recent 
extradition treaties, it provides that either Party may 
authorize such transit through its jurisdiction and that the 
person in transit may be detained in custody during the period 
of transit.
    Article 20 contains final clauses dealing with the 
Agreement's entry into force, termination and application. Of 
particular importance, Paragraph 3 makes the Agreement's 
restrictions on capital punishment and on prosecutions and 
transfers for offenses other than those for which extradition 
was granted, set forth in Articles 4 and 16, expressly 
applicable to fugitive offenders who have been surrendered 
between the parties prior to the Agreement's entry into force. 
It also specifies that the Agreement would apply to requests 
for surrender pending at the date of its entry into force. 
Paragraph 1 provides for entry into force thirty days after the 
date on which the Parties have notified each other in writing 
that their respective requirements for entry into force have 
been complied with. Such mutual notification will therefore 
need to take place no later than May 30 in order to avoid a law 
enforcement gap upon reversion on July 1. Paragraph 2 provides 
for termination six months after receipt of written notice by 
either Party. Paragraph 4, like the parallel provision in 
almost all recent United States extradition treaties, 
stipulates that the Agreement is retroactive, in the sense that 
it applies to offenses committed both before and after its 
entry into force, provided that the offense was an offense 
under the laws of both parties at the time the request is made.
    A Technical Analysis explaining in detail the provisions of 
the Agreement is being prepared by the United States 
negotiating delegation and will be submitted separately to the 
Senate Committee on Foreign Relations.
    The Department of Justice joins the Department of State in 
favoring approval of this Treaty by the Senate at an early 
date.
    Respectfully submitted,
                                                Madeleine Albright.




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