[Senate Executive Report 105-2]
[From the U.S. Government Publishing Office]
105th Congress Exec. Rept.
SENATE
1st Session 105-2
_______________________________________________________________________
U.S.-HONG KONG EXTRADITION TREATY
_______
August 19, 1997.--Ordered to be printed
_______________________________________________________________________
Mr. Helms, from the Committee on Foreign Relations, submitted the
following
R E P O R T
[To accompany Treaty Doc. 105-3]
The Committee on Foreign Relations to which was referred
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,
having considered the same, reports favorably thereon with two
understandings, two declarations, and one proviso, and
recommends that the Senate give its advice and consent to the
ratification thereof as set forth in this report and the
accompanying resolution of ratification.
CONTENTS
Page
I. Purpose..........................................................1
II. Background.......................................................2
III. Summary..........................................................3
IV. Entry Into Force and Termination.................................8
V. Committee Action.................................................8
VI. Committee Comments...............................................8
VII. Explanation of Proposed Treaty..................................10
VIII.Resolution of Ratification......................................25
IX. Appendix........................................................29
I. Purpose
This agreement: (1) identifies the offenses for which
extradition will be granted, (2) establishes procedures to be
followed in presenting extradition requests, (3) enumerates
exceptions to the duty to extradite, (4) specifies the evidence
required to support a finding of a duty to extradite, and (5)
sets forth administrative provisions for bearing costs and
legal representation.
II. Background
On December 20, 1996, the United States and Hong Kong
signed the Agreement for the Surrender of Fugitive Offenders.
That agreement will replace the existing extradition
relationship with Hong Kong, which is governed by the United
States-United Kingdom extradition treaty.
Because of Hong Kong's unique status, the Agreement was
signed by Hong Kong with the ``authorization'' of its sovereign
nation (People's Republic of China (PRC)) following a
negotiation conducted under the auspices of the ``Joint Liaison
Group'' (JLG) established by the Sino-British Joint Declaration
on the Question of Hong Kong. 1 The People's
Republic of China approved the text of the Agreement in
September, permitting the U.S. and Hong Kong to sign in
December. The Government of the People's Republic of China
transmitted a diplomatic note to the United States on March 31,
1997, affirming that the Agreement will continue to apply to
the Hong Kong Special Administrative Region (HKSAR) after July
1, 1997, when Hong Kong formally reverted to the PRC.
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\1\ Under the Joint Declaration, sovereignty over Hong Kong was
transferred to the PRC on July 1, 1997. Hong Kong is organized as a
Special Administrative Region (HKSAR) with a ``high degree of
autonomy'' except in foreign and defense affairs. Among the incidents
to this autonomy is the ability of the HKSAR to maintain its own
executive; legislative, and independent judicial systems for a least 50
years under a ``one country, two systems'' policy. Though the PRC
assumed ultimate power over Hong Kong's foreign affairs, the Joint
Declaration nonetheless envisions the HKSAR maintaining its own
external relations in many fields through a network of international
agreements. However, the permissible reach of this network and the role
of the PRC are not always clear.
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As the U.S.-Hong Kong Agreement is an unprecedented U.S.
treaty relationship, it is important to note the negotiation
history that led to the agreement between the U.S. and Hong
Kong. Under the JLG process, four members each from the U.K.
and the PRC (with support staff and experts as needed) review
international agreements with regard to continuing obligations
under them. In the case of new agreements, including this
extradition agreement, the negotiation partners played the
following roles: (1) the JLG agreed to a model agreement; (2)
the U.K. Government, on behalf of the Hong Kong Government,
asked the PRC to approve a list of negotiating partners
(including the U.S.); (3) after approval of a negotiating
partner, the British Foreign Secretary executed a formal
entrustment to empower the Hong Kong Government to conduct
negotiations on its behalf with the approved partner (in this
case the U.S.) on the basis of the model agreement; (4) after
the Hong Kong Government and the approved partner initialed the
text of the agreement, the text was passed by the British
Government to the PRC Government through the JLG for its
approval (the PRC Government was permitted to seek
clarification if the initialed text departed significantly from
the model agreement and further negotiations would then be
required); and (5) the PRC approved the text of the agreement,
permitting its signature by the Government of Hong Kong and the
negotiating partner (the U.S. in this case).
Unlike in the United States, Hong Kong requires additional
implementing legislation, extradition heretofore having been
conducted under the U.K. authority. The State Department has
informed the Committee that the Surrender of Fugitive Offenders
Ordinance went into force on April 25, 1997. Subordinate
legislation under the Ordinance, the Fugitive Offenders (United
States of America) Order, specifically permitting the Agreement
to be implemented, has also been approved. It will become
effective on the same day that the Agreement enters into force.
Because of this unprecedented relationship with the PRC, a
country with which the United States does not have an
extradition treaty relationship, there are several key
provisions in the treaty permitting the United States to reject
an extradition request. Under the proposed Hong Kong Agreement
the Secretary retains independent authority to determine
whether a request may be denied because it is politically
motivated (Art. 6). Specifically, the treaty gives the
Secretary of State 2 the ability to reject an
extradition request (even after a U.S. court recommends
extradition) if she determines that the requesting party is
attempting to try the individual sought on account of his or
her race, religion, nationality, or political opinion, or that
the individual will be prejudiced in his or her trial or
punishment on these grounds. Under traditional U.S. extradition
practice the Secretary of State has exercised similar authority
(even absent express treaty provisions).
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\2\ The Hong Kong Agreement gives this authority to the
``executive authority'' for the United States. U.S. statute names the
Secretary of State as the ``executive authority.'' (18 U.S.C.
Sec. 3184). The Agreement does not designate Hong Kong's executive
authority. The State Department has informed the Committee that it
understands that in that the ``competent authority'' in Hong Kong under
this article is likely to be the judiciary.
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In addition, the Hong Kong Agreement contains a
humanitarian provision (Art. 7) similar to those found in a
number of U.S. extradition agreements. This provision permits
the Secretary of State to refuse surrender if it ``is likely to
entail exceptionally serious consequences related to age or
health.''
Finally, the treaty places limitations on the surrender of
nationals (Art. 3). Specifically, the treaty gives the United
States the right to refuse to surrender a U.S. citizen when it
implicates the ``defense, foreign affairs or essential public
interest or policy'' of the United States. Hong Kong has a
similar right of refusal when surrender implicates the
``defense, foreign affairs or essential public interest or
policy'' of the PRC.
III. Summary
a. general
An extradition treaty is an international agreement in
which the Requested State agrees, at the request of the
Requesting State and under specified conditions, to turn over
persons who are within its jurisdiction and who are charged
with crimes against, or are fugitives from, the Requesting
State. The United States is a party to approximately 100
bilateral extradition treaties, and several multilateral
extradition treaties.
In recent years the Departments of State and Justice have
led an effort to modernize U.S. bilateral extradition treaties
to better combat international criminal activity, such as drug
trafficking, terrorism and money laundering. Modern extradition
treaties (1) identify the offenses for which extradition will
be granted, (2) establish procedures to be followed in
presenting extradition requests, (3) enumerate exceptions to
the duty to extradite, (4) specify the evidence required to
support a finding of a duty to extradite, and (5) set forth
administrative provisions for bearing costs and legal
representation.
The importance of extradition treaties as a tool for law
enforcement is reflected in the increase in the number of
extraditions of individuals under treaties. In l995, 131
persons were extradited to the U.S. for prosecution for crimes
committed in the U.S, and the U.S. extradited 79 individuals to
other countries for prosecution. Since 1991, in Hong Kong
alone, 56 persons were extradited to the U.S. for narcotics-
related crimes, 12 for white collar crimes, and 23 for violent
and other crimes.
In the United States, the legal procedures for extradition
are governed by both federal statute and self-executing
treaties. Federal statute controls the judicial process for
making a certification to the Secretary of State that she may
extradite an individual under an existing treaty. Courts have
held that the following elements must exist in order for a
court to find that the Secretary of State may extradite: (1)
the existence of a treaty enumerating crimes with which a
defendant is charged; (2) charges for which extradition is
sought are actually pending against the defendant in the
requesting nation and are extraditable under the treaty; (3)
the defendant is the same individual sought for trial in the
requesting nation; (4) probable cause exists to believe that
the defendant is guilty of charges pending against him in the
requesting nation; and (5) the acts alleged to have been
committed by the defendant are punishable as criminal conduct
in the requesting nation and under the criminal law of the
United States.
Once a court has made a determination that an individual
may be extradited under U.S. law, and so certifies to the
Secretary of State, she may still refrain from extraditing an
individual on foreign policy grounds, as defined in the
treaties themselves (or even absent express treaty provisions).
b. major provisions
1. Extraditable Offenses (Article 2)
The Hong Kong Extradition Agreement identifies an
extraditable offense as either a crime enumerated in a long
list of covered felonies (punishable by imprisonment of more
than one year), or any other offense that is punishable by
imprisonment of more than one year by both the requesting and
requested Party 3 (Art. 2(1)). Although many modern
U.S. treaties merely apply such a ``dual criminality test,'' to
determine whether an offense is extraditable, the hybrid
application of dual criminality in addition to a listing of
felonies has precedent in many modern U.S. extradition
treaties.
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\3\ This concept is termed ``dual criminality.''
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Like other recent extradition agreements, the Hong Kong
Agreement contains provisions to facilitate transfer where
jurisdictional elements or defined terms differ in the
particular elements of the criminal act under the laws of the
respective parties, but where both Parties still regard the
underlying conduct as punishable. In the past, differences in
how each legal system defines a crime for the same criminal
conduct has hampered extradition. To avoid this problem when
both parties consider an act to be criminal, the Hong Kong
Agreement directs a requested party to examine an extradition
request with ``reference to the totality of the acts or
omissions alleged'' and not with ``reference to the elements of
the offense prescribed by the law of the requesting Party''
(Art. 2(3)). The Agreement further directs that extradition not
be denied on the basis of differences in terminology or
classification or on the basis of an element of a U.S. federal
offense that has been included solely to establish U.S. federal
jurisdiction. (Art. 2(4)(b)).
2. Extraterritorial Offenses (Article 1)
With very limited exceptions, recent extradition treaties
make express provision for extraterritorial crimes.
4 The Hong Kong Agreement differs from most modern
agreements in not having any express reference to
extraterritorial crimes. At the same time, it also differs from
other modern U.S. agreements that do not have explicit
extraterritoriality clauses (including the U.K., New Zealand,
and Belgium agreements) in not expressly limiting coverage to
offenses within the jurisdiction or territory of one of the
parties. Instead, the Hong Kong Agreement broadly states the
obligation to surrender in terms of persons found in the
jurisdiction of the requested party who are wanted ``in respect
of'' a covered offense (Art. 1). This language may appear to
make the place the crime is committed irrelevant, but more
limited interpretations certainly are possible. For example, it
may be intended that extradition for extraterritorial crimes be
guided by a dual criminality standard that would limit
extradition for extraterritorial offenses to those that would
still be within the criminal jurisdiction of the requested
Party even if committed outside its territory. According to the
technical analysis submitted by the Executive Branch (the
analysis is included in this report), the United States is
relying on existing precedent to require extradition of certain
extraterritorial crimes. Specifically the technical analysis
states that should the U.S. request extradition for an offense
committed outside the territory of the U.S., Hong Kong will
surrender the fugitive if Hong Kong would enjoy
extraterritorial jurisdiction in similar circumstances.
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\4\ ``Extraterritorial offenses,'' under the treaties are those
that occur outside a nation's jurisdiction, but are punishable under
the criminal law of the requested party. Prior to 1960, the obligation
to extradite under U.S. treaties was typically limited to offenses
committed within a nation's territory.
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3. Surrender of Nationals (Article 3)
The Hong Kong Agreement provides for limited discretion to
refuse to extradite nationals. The ``executive authority'' of
the Government of the United States is given the right to
refuse the surrender of its nationals if surrender implicates
the ``defense, foreign affairs or essential public interest or
policy'' of the United States (Art. 3(2)). The ``executive
authority'' of the Government of Hong Kong is similarly given a
right of refusal.
Although this is a reciprocal right, it is important to
note the inclusion of the PRC in this right of refusal.
Specifically, the treaty permits Hong Kong to refuse
extradition if the PRC (not the Government of Hong Kong) has an
interest relating to defense, foreign affairs, or essential
public interest or policy (Art.3 (3)(a)). Further, Hong Kong
has the right to refuse surrender of nationals of the PRC
located in Hong Kong, but who do not have a right of abode or
have not settled in Hong Kong, if the PRC has jurisdiction over
the person subject to extradition and has commenced or
completed proceedings for the prosecution of that person (Art.
3(3)(b)). An extradition request may also be deferred for such
person if the PRC is investigating that person for the same
offense. (Art. 3(4)).
4. Political Offense/Political Motivation Exceptions (Article
6)
In general, the Hong Kong Agreement excepts political
offenses from the obligation to surrender. Even though U.S.
extradition practice universally has precluded extradition for
political offenses, there has been a trend over the past 20
years toward narrowing the scope of the political offense
exception to exclude from its protections crimes such as
terrorism, hijacking, and murder of political leaders. The Hong
Kong Agreement comports with that trend.
Under the Hong Kong Agreement, there are three instances in
which the exception to the obligation to surrender does not
apply: (1) the murder or other willful crime against the Head
of State (or his or her immediate family) of the United States
or the PRC (Art. 6(2)(a)); (2) an offense for which both
parties (the U.S. and Hong Kong) have an obligation under a
multilateral agreement to surrender (Art. 6(2)(b)); and (3) a
competent authority of the requested party, which is specified
as the executive authority in the case of the United States,
determines that a request was either (i) politically motivated;
(ii) made primarily to try or punish an individual on account
of race, religion, political opinion, or nationality; or (iii)
would deny the person sought a fair trial or would punish that
person on account of race, religion, nationality, or political
opinion (Art. 6(3)). The first two exceptions--relating to
political offenses--are matters for the courts to decide. The
third exception--relating to political motivation--is a matter
for the Secretary of State to decide.
5. Humanitarian Exception (Article 7)
The Hong Kong Agreement contains a separate provision that
permits the parties to refuse to extradite for humanitarian
considerations. Specifically, if the surrender is ``likely to
entail exceptionally serious consequences related to age or
health'' the competent authority (the Agreement expressly
provides in Article 7 that it shall be the executive authority
in the U.S.) may refuse to surrender an individual. A similar
provision is found in a number of U.S. extradition treaties.
6. Speciality (Article 16)
The Hong Kong Agreement prohibits the requesting party from
prosecuting a person surrendered under the treaty for any crime
except that which the person was surrendered or for an offense
that is a lesser included offense 5 of that for
which the person is surrendered, but only if the lesser
included offense itself is an extraditable offense (Art.
16(1)(b)) 6. For example, if kidnaping is a lesser
included offense of a murder, the person surrendered may also
be prosecuted for kidnaping as it is also an extraditable
offense. A surrendered individual also may be tried for a
different offense than was the subject of an extradition
request if the requested party consents to prosecution of that
offense (Art. 16(1)(c)). A surrendered individual loses
protection under the rule of speciality if the individual has
not left the territory of the requesting party within 30 days
of having an opportunity to do so or if the individual has left
the territory and voluntarily returned. (Art. 16(3)).
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\5\ A lesser included offense is one which is composed of some,
but not all elements of a greater offense and which does not have any
element not included in greater offense so that it is impossible to
commit the greater offense without necessarily committing the lesser
offense.
\6\ This provision is called the ``rule of speciality'' and is
designed to assure that an extradited individual is not extradited for
one offense as a subterfuge for obtaining the defendant to stand trial
on unrelated matters. Though the rule applies under every U.S.
bilateral extradition treaty, many exceptions commonly are included.
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7. Third Party Transfers (Article 16)
The Hong Kong Agreement combines the rule of speciality
provisions with restrictions on the transfer of a surrendered
person to jurisdictions outside that of the Parties to the
Agreement (the Government of Hong Kong and the Government of
the United States). Unless the requested party consents, a
surrendered individual may not be surrendered or transferred
beyond the jurisdiction of the requesting party for the
purposes of trial or punishment for any offense committed prior
to transfer to the requesting party (Art. 16(2)). As with the
rule of speciality this restriction lapses if the individual
has not left the territory of the requesting party within 30
days of having an opportunity to do so or if the individual has
left that territory and voluntarily returned. This limitation
is increasingly common in U.S. extradition treaties, although
some agreements contain less restrictive limits on third party
transfers.
8. Capital Punishment (Article 4)
The Hong Kong Agreement provides that the requested Party
may refuse extradition whenever the extraditable offense is
punishable by death in the jurisdiction of the requesting, but
not the requested, Party, unless the requesting Party furnishes
such assurances as the requested Party considers sufficient
that the death sentence will not be imposed and executed (Art.
4(1)). 7 The Hong Kong Agreement also has an
additional provision barring a Party from carrying out a death
sentence handed down by a court in a case in which the
requesting Party had given assurances that capital punishment
would not be imposed (Art. 4(2)).
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\7\ Death penalty provisions have become standard in recent U.S.
extradition agreements. These provisions permit extradition for serious
crimes when one Party, whose laws do not permit capital punishment,
might otherwise deny surrender of individuals detained for such crimes.
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9. Prior Prosecution (Article 5)
Like other recent treaties, the Hong Kong Agreement bars
extradition for an offense for which the person sought has been
convicted or acquitted in the requested Party. Because the
restriction is limited to offenses and not acts, it appears
that extradition may be permissible where extradition is sought
for a different offense arising from the same pattern of
conduct that was the basis of the requested Party prosecution
(Art. 5(1)). The Hong Kong Agreement also states that
investigations or prosecutions that have been dropped by the
requested Party do not preclude extradition based on the same
facts (Art. 5(2)). Unlike some recent treaties, the Agreement
does not permit discretionary denials of extradition in such
cases.
10. Retroactivity and Lapse of Time
The Agreement covers offenses committed before its date of
entry into force if the offense is punishable under the laws of
both Parties at the time the request is made (Art. 20(4)).
Retroactivity is typical in U.S. bilateral extradition treaties
and does not raise an ex post facto issue so long as the
activity for which extradition is being sought was criminal
when the person committed the act.
The Hong Kong Agreement does not contain an express
provision on the statutes of limitation. Some, but not all,
recent U.S. bilateral extradition treaties contain provisions
that expressly bar extradition for offenses whose prosecution
would be barred by an applicable statute of limitations.
IV. Entry Into Force and Termination
a. entry into force
This Treaty enters into force thirty days after the date on
which the parties have notified each other that their
respective requirements for the entry into force have been
complied with. (Art. 20(1)).
b. termination
This Treaty contains a standard termination clause
providing for withdrawal six months after notice by a Party of
an intent to terminate the Treaty. (Art 20(2)).
V. Committee Action
The Committee on Foreign Relations held a public hearing on
the proposed treaty on Wednesday, June 3, 1997. (See appendix.)
The hearing was chaired by Senator Thomas. The Committee
considered the proposed treaty on Wednesday, July 30, 1997, and
ordered the proposed treaty favorably reported by voice vote,
with two understandings, two declarations, and one proviso and
with the recommendation that the Senate give its advice and
consent to the ratification of the proposed treaty.
VI. Committee Comments
The treaty raised several key questions for the Committee
and the Senate to consider, not least of which is the unique
nature of the treaty itself. The agreement is with a sub-
sovereign entity, not a sovereign state. Such an arrangement is
not the norm. It raises, in particular, a fundamental question
about whether the treaty partner has the power to enter such an
agreement. It is clear that Hong Kong does; the Agreement has
been authorized by both the previous sovereign (the United
Kingdom) and the current sovereign (the People's Republic of
China).
It bears noting, however, that the United States does not
have an extradition treaty with the PRC (nor with any other
communist country), in large measure because the concept of
extraditing individuals to a system which does not afford basic
due process rights to criminal defendants runs counter to
American notions of justice and fundamental fairness. Because
of that concern, and the concern that Beijing may not adhere to
its promise to permit Hong Kong to maintain a high degree of
autonomy, the Senate must scrutinize this Agreement with
particular care. The judgment about whether to proceed with
this extradition treaty rests, ultimately, not on the good
faith of the government in Beijing, but on the following
considerations: (1) whether the agreement is adequately drafted
to protect extradited persons against Chinese interference with
the Hong Kong judicial system; (2) whether U.S. law enforcement
interests require an extradition agreement with Hong Kong; and
(3) whether the Administration is committed to vigilant
monitoring of the treaty and prepared to stop implementing the
agreement, or abrogate it if PRC disregards its provisions.
The Committee has answered these questions in the
affirmative and recommends that the Senate give its advice and
consent to ratification of the extradition agreement, subject
to the conditions contained in the resolution of ratification.
The Committee is persuaded that the agreement is adequately
drafted to protect extradited persons against Chinese
interference with Hong Kong's judicial system, and that the
Administration is committed to vigilant monitoring of the
agreement. The Committee emphasizes that U.S. law enforcement
interests dictate concluding an extradition agreement on Hong
Kong.
Equally important, the conclusion and effective
implementation of bilateral agreements with Hong Kong serves
another important American policy interest: the enhancement of
the Hong Kong government's ability to maintain the ``high
degree of autonomy'' promised by the Sino-British Joint
Declaration. In supporting ratification of the treaty, the
Committee believes that the Senate would send a clear message
that bilateral treaty relationships with Hong Kong serve to
strengthen, not diminish, the autonomy of the Hong Kong
government. Another message is provided in the resolution of
ratification itself: the strong belief of the Committee that
PRC must respect the independence of the judicial system in
Hong Kong. In the Sino-British Joint Declaration, the PRC
government made a solemn pledge to respect the autonomy of Hong
Kong, and promised that the Hong Kong judicial power would be
exercised ``independently'' and would be ``free from any
interference.'' Adherence to this commitment by Beijing must be
considered an essential element to continued U.S. participation
in this Agreement. The Committee's resolution of ratification
includes a strong and unequivocal statement of the Senate's
expectations regarding the autonomy of the Hong Kong courts,
particularly in the area of final adjudication.
Furthermore, the Committee notes that the treaty includes a
number of safeguards which address concerns about Beijing's
interference with Hong Kong's judicial system. These include:
prohibitions on the transfer of extradited persons to Beijing
without U.S. consent, prohibition on prosecution of an
extradited person for offenses other than those for which the
person was surrendered, and the U.S.'s ability to decline to
extradite anyone ``likely to be denied a fair trial or punished
on account of his race, religion, nationality, or political
opinions.''
The Committee notes with concern that the Technical
Analysis submitted by the Executive Branch indicates that the
Hong Kong delegation informed the U.S. delegation that it is
possible that the PRC will require requests for extradition
involving Hong Kong to be made through Beijing. This
possibility is plainly inconsistent with Hong Kong's authority
to enter into this agreement. The treaty partner here is Hong
Kong, not the government in Beijing, and as such the Committee
expects that formal requests for extradition by the United
States will be submitted to the government in Hong Kong.
It is abundantly clear that U.S. law enforcement interests
require a mechanism to extradite fugitives to and from Hong
Kong. The extradition relationship, in the past and at present,
is decidedly one-sided--in favor of the United States. Since
1991, the Hong Kong has returned 64 fugitives to the U.S., and
the U.S. has returned 7 to Hong Kong. The U.S. has returned no
U.S. citizens to Hong Kong. Eleven U.S. citizens have been
returned to the U.S. to face charges here. At present, there
are 51 pending extradition requests made by the United States
to Hong Kong. By contrast, Hong Kong has but five requests
pending with the United States. The majority of the fugitives
extradited to the U.S. faced narcotics trafficking charges.
Indeed, of the 51 pending U.S. requests, 35 involve narcotics
charges. Hong Kong is also a center for alien smuggling,
illegal customs transhipment, counterfeiting and other crimes
that have direct effect on the U.S. The Committee fears that
without this treaty, there is a strong possibility that Hong
Kong will become a ``safe haven'' for drug dealers and other
criminals, enabling them to elude the long arm of U.S. justice.
The Committee strongly urges the Departments of State and
Justice to monitor the agreement with great vigilance and be
prepared to stop extraditing people under it if the PRC fails
to respect its terms. The Committee's hearing on the
extradition treaty elicited commitments from the State and
Justice Departments that the U.S. government will ``monitor
implementation of this agreement very closely, and to ensure
that all of its terms are complied with, both in form as well
as in substance.''
In any treaty relationship, there is always a risk that the
treaty partner will turn out to be unreliable. That risk is
particularly acute here, where the treaty partner is,
ultimately, subject to the control of another government. That
government, a communist government going through a dramatic
economic transformation, and a political transition brought
about by the death of its long-time leader, has not always
proven to be reliable in upholding its international
commitments. Nonetheless, the Committee believes that the
safeguards inherent in the treaty, and the important benefits
to U.S. law enforcement interests that will flow from the
treaty, argue for proceeding with Senate advice and consent.
VII. Explanation of Proposed Treaty
The following is the Technical Analysis of the Extradition
Treaty submitted to the Committee on Foreign Relations by the
Departments of State and Justice prior to the Committee hearing
to consider pending extradition treaties:
On December 20, 1996, the United States signed an Agreement
for the Surrender of Fugitive Offenders with the Government of
Hong Kong (``the Agreement''). The Agreement is the result of
three years of negotiation, and is of particular importance
because our current extradition relationship with Hong Kong, a
crown colony of the United Kingdom, is governed by our
extradition treaties with the United Kingdom, 8 and
on July 1, 1997, Hong Kong will revert to the sovereignty of
the People's Republic of China, with which we have no
extradition treaty.
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\8\ U.S.-U.K. Extradition Treaty signed June 8, 1972, entered into
force January 21, 1977 (28 UST 227, TIAS 8468) and the Supplementary
Treaty signed June 25, 1985, entered into force December 23, 1986 (TIAS
12050).
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The Hong Kong Government was granted an entrustment by the
British Government authorizing it to negotiate this extradition
agreement directly with the United States and bring it into
force. In order to insure that the Agreement will remain in
force after 1997, a draft text of the Agreement was presented
to the Joint Liaison Group (JLG), which is composed of
representatives of both the British and Chinese Governments,
and meets periodically to discuss issues related to the status
of post-1997 Hong Kong. The JLG approved the commencement of
negotiations, and the final text was approved by the JLG prior
to signing. Thus, the People's Republic of China agreed,
through the JLG, to permit Hong Kong to negotiate this
Agreement, approved its final terms, and has indicated that it
will remain in force after July 1, 1997. In addition, the
People's Republic of China has provided a diplomatic note
confirming that this Agreement will continue in force after the
date of reversion.
This instrument is being submitted to the Senate for advice
and consent to ratification, and, upon ratification and entry
into force, it will be a treaty for purposes of U.S. law. At
the request of the Hong Kong delegation, and in keeping with
other agreements for the surrender of fugitives Hong Kong has
concluded with other countries, the instrument is entitled an
``agreement'' rather than ``treaty.'' Similarly, the instrument
is described as one for the ``surrender'' of fugitives instead
of for ``extradition,'' at the request of Hong Kong. The United
States accommodated the Hong Kong delegation's semantic
preferences, but this agreement is nevertheless intended to be
a ``treaty or convention for extradition between the United
States and a foreign government'' for purposes of Title 18,
United States Code, Section 3184.
It is anticipated that the Agreement will be implemented in
the United States pursuant to the procedural framework provided
by Title 18, United States Code, Section 3184 et seq. No new
implementing legislation will be needed. Hong Kong has enacted
its own internal extradition ordinance that will apply to
requests under the Agreement 9.
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\9\ Currently, Hong Kong carries out the extradition obligations
contained in British extradition treaties applicable to Hong Kong via
the British Extradition Act. The Hong Kong Government has enacted a new
Fugitive Offenders Ordinance that will enable Hong Kong to implement
its new extradition agreements, including this one and those with
Australia, the Netherlands, Canada, Malaysia, the Philippines and
Indonesia, beyond July 1, 1997.
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article 1--obligation to surrender
The first article of the Agreement formally obligates each
party to surrender to the other persons found within the
jurisdiction of the requested party who are wanted by the
requesting party for prosecution, or for the imposition or
enforcement of a sentence, for those offenses described in
Article 2 of the Agreement. In other words, this article
requires the parties to surrender both fugitives who have been
formally charged with crimes covered by Article 2, but who have
not yet been tried and convicted, and fugitives who have been
tried and convicted for such offenses, but who have fled prior
to sentencing or before completion of an imposed sentence. The
obligation to surrender is subject to the other provisions of
the Agreement.
article 2--description of offenses
This article contains the basic guidelines for determining
what are extraditable offenses. Paragraph 1 contains a list of
offenses for which, as long as they are punishable by both
Parties 10 by more than a year imprisonment or some
more severe punishment, surrender must be granted.
11 The list is comprehensive, and includes both
offenses of traditional importance to federal and state law
enforcement authorities in the United States, (e.g., drug
trafficking, crimes of violence including those terrorist
offenses covered by the multilateral conventions, various forms
of fraud), and crimes of more recent interest and concern
(e.g., money laundering, child pornography, alien smuggling).
In addition, paragraph 1 of this article follows the modern
dual criminality model by requiring surrender for any other
offense punishable by the laws in each Party by more than one
year imprisonment or by a more severe penalty, so long as
surrender is not prohibited by the laws of the requested Party.
This ``catch all'' provision will obviate the need to
renegotiate the Agreement or supplement it when both Parties
pass laws dealing with new types of criminal activity. Finally,
paragraph 1 follows the practice of recent U.S. extradition
treaties in stating that surrender should be granted for
attempting to commit, conspiring to commit, or otherwise
participating in an offense covered by the Agreement.
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\10 \ The term ``laws of both Parties'' is intended to include
state and local criminal laws in the United States, as well as those
federal criminal statutes enacted by the U.S. Congress.
\11 \ Some provisions of the Agreement, while fully consistent with
U.S. law enforcement interests, differ from those contained in several
recently negotiated U.S. extradition treaties. This is due largely to
the unique nature of the current and future status of Hong Kong. The
inclusion of a list of specific extraditable offenses (provided that
the offense is punishable by both parties by imprisonment or other form
of detention for more than one year) was deemed by Hong Kong to be an
important part of the draft text approved by the JLG. The U.S.
delegation agreed to accept the list, once Hong Kong agreed to include
in it a ``catch-all'' double criminality provision permitting surrender
for all other offenses punishable in both jurisdictions by more than a
year imprisonment (provided the law of the requested party does not
prohibit surrender).
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Paragraph 2 of Article 2 requires that in a request for a
fugitive already convicted and sentenced in the requesting
country, at least six months remain to be served on that
sentence. This provision is sometimes included in U.S.
extradition treaties in an attempt to limit extradition,
because of the significant costs associated with the process,
to serious cases. (See, for example, Article 2(2) of the U.S.
extradition treaty with Mexico). Hong Kong is willing to
surrender in post-conviction cases only when the fugitive has a
significant amount of time to serve on the outstanding
sentence, so the U.S. delegation agreed to the inclusion of
this paragraph.
Paragraph 3 of Article 2 provides guidance on the type of
analysis to be conducted by the requested Party in determining
whether an offense for which surrender is requested is covered
by the Agreement. The paragraph makes it clear that the
requested Party shall look to the conduct, or the totality of
the underlying acts and omissions, alleged to have been
committed by the fugitive in order to determine whether such
conduct would constitute an offense under its laws.
12 It is not necessary for the requested party to
examine the elements of the offense prescribed by the law in
the requesting state. For example, should the United States
seek the extradition of an accused drug kingpin wanted for
prosecution on Continuing Criminal Enterprise (CCE) charges,
Hong Kong will examine the underlying conduct which led to the
U.S. charges, and determine whether similar conduct in Hong
Kong would constitute an offense covered by the Agreement.
Under such an analysis, since the conduct necessary to violate
the CCE statute would constitute violations of Hong Kong
narcotics laws if committed in that jurisdiction, and since
narcotics offenses are covered by the extradition agreement,
surrender of fugitives on the CCE charges would be required.
13
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\12 \ Should the United States request extradition for an offense
committed outside the territory of the U.S., Hong Kong will surrender
the fugitive if Hong Kong would enjoy extraterritorial jurisdiction in
similar circumstances. See Liangsiriprasert (Somchai) v. Government of
the United States of AMERICA, [1991] 1 A.C. 225, a decision of the
Privy Council in London, dealing with this issue under similar language
in the US- UK treaty currently applicable to Hong Kong.
\13 \ See In re Lawrence Louis Levy, 1987 Hong Kong Supreme Court
and Court of Appeals decisions, making clear the extraditability of CCE
from Hong Kong, and describing the kind of dual criminality analysis to
be conducted by Hong Kong extradition courts.
---------------------------------------------------------------------------
Paragraph 4 of this article further reflects the intention
of both parties to interpret the principles of this article
broadly. The first subparagraph makes it clear that in
determining whether an offense is covered by the Agreement, it
makes no difference whether the requested and requesting
Parties place it within the same category of offenses, or
describe it by the same terminology. Thus the parties are to
disregard differences in the categorization of an offense in
determining whether it falls within the list of offenses
contained in Article 2(1), or in determining whether double
criminality exists under the ``catch all'' provision in Article
2(1)(xxxvi). The second subparagraph addresses the confusion
faced by some foreign judges by the fact that many United
States federal statutes require proof of certain elements (such
as use of the mails or interstate transportation) solely to
establish jurisdiction in United States federal courts. Foreign
judges may know of no similar requirement in their own criminal
law, and on occasion have denied the extradition of fugitives
sought by the United States on federal charges on this basis.
The subparagraph requires that such elements be disregarded in
determining whether an offense is covered by the list, or in
applying the double criminality principle. For example, it will
ensure that the Hong Kong authorities treat United States mail
fraud charges (18 U.S.C. Sec. 1341) in the same manner as fraud
charges under state laws, and view the federal crime of
interstate transportation of stolen property (18 U.S.C.
Sec. 2314) in the same manner as unlawful possession of stolen
property. Provisions similar to those in paragraph 4 of this
article are contained in all recent United States extradition
treaties.
Paragraph 5 of article 2 provides that an offense under
military law, which is not an offense under ordinary criminal
law, is not an offense under paragraph 1 of this article.
14
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\14 \ An example of such a crime is desertion. Matter of
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D.Cal. 1988).
---------------------------------------------------------------------------
article 3--surrender of nationals
Paragraph 1 of Article 3 states that surrender shall not be
refused, except under certain circumstances, on the ground of
the nationality of the person sought. The exclusion of
nationality as a ground for refusal of extradition is
consistent with the longstanding U.S. policy in favor of
governments extraditing their own citizens or nationals.
However, the Hong Kong delegation made it clear throughout the
negotiations that it would refuse to sign any extradition
agreement that failed to provide the requested Party with the
right, in narrowly defined circumstances, to deny the
extradition of nationals. According to Hong Kong, such
discretion was essential in obtaining PRC approval of the
extradition agreement with the United States.
Accordingly, the third paragraph of Article 3 states that
the executive authority in Hong Kong reserves the right to
refuse the surrender of nationals of the State whose government
is responsible for its foreign affairs (i.e., for Hong Kong,
the United Kingdom prior to July 1, 1997, and the People's
Republic of China after that date), if (a) the requested
surrender relates to the defense, foreign affairs or essential
public interest or policy of that State or (b) the person
neither has the right of abode in Hong Kong nor has entered
Hong Kong for the purpose of settlement, 15 and the
State whose government is responsible for Hong Kong's foreign
affairs has jurisdiction over the offense and has commenced or
completed proceedings for the prosecution of that person. The
Hong Kong delegation repeatedly assured the U.S. delegation
that this discretion to deny surrender will rarely, if ever, be
used.
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\15\ The Hong Kong delegation explained that the phrase ``has
entered Hong Kong for the purpose of settlement'' is a term of art,
referring to an immigration policy aimed at family unification.
---------------------------------------------------------------------------
The second paragraph of Article 3, for the purposes of
creating reciprocal rights and obligations under the Agreement,
provides the executive authority of the United States with the
same narrowly drawn discretion to deny the extradition of U.S.
nationals if the requested surrender relates to the defense,
foreign affairs or essential public interest or policy of the
United States. The U.S. delegation expressed its expectation
that this provision will rarely, if ever, be used;
nevertheless, it would provide an important protection for our
nationals if we found it necessary in a particular case.
Under this new agreement, Hong Kong will continue to
surrender Hong Kong residents 16 to the United
States. Hong Kong will also surrender, subject to the
aforementioned exceptions, nationals of both the United Kingdom
and the People's Republic of China (who are located in Hong
Kong) to the United States.
---------------------------------------------------------------------------
\16\ As a sub-state entity, Hong Kong does not have its own
``nationals.''
---------------------------------------------------------------------------
Paragraph 4 of Article 3 provides that in a case in which
the PRC (after July 1, 1997) has jurisdiction and is
investigating an offense by a person who neither has the right
of abode in Hong Kong nor has entered Hong Kong for the purpose
of settlement, extradition may be deferred until the
investigation has been expeditiously concluded.
The fifth paragraph of Article 3 permits the requesting
Party to request, in a case in which surrender is denied under
the circumstances described in Article 3(2) or 3(3)(a), that
the case be submitted to the competent authorities of the
requested Party for possible prosecution. So if in an
exceptional case involving an essential public interest or
policy of the PRC (again, after July 1, 1997), the executive
authority of Hong Kong were to refuse to surrender a PRC
national to the United States, the United States could request
that Hong Kong submit the case to its domestic authorities so
that proceedings for the PRC national's prosecution in Hong
Kong could be considered.
article 4--capital punishment
The first paragraph of Article 4 permits the requested
Party to refuse surrender in cases in which the offense for
which extradition is sought is punishable by death in the
requesting Party, but is not punishable by death in the
requested Party, unless the requesting Party provides
assurances that the death penalty will not be imposed, or if
imposed, will not be carried out. Similar provisions are found
in many recent United States extradition treaties.
17 Hong Kong has repealed the death penalty for all
offenses, and it is likely that Hong Kong would require
assurances pursuant to this article should the United States
seek the surrender of a fugitive wanted for a capital offense.
However, the decision concerning whether to provide such
assurances will remain with the appropriate authorities in the
United States. In a state case, it is the practice of the U.S.
Government to provide death penalty assurances only when, and
to the extent that, state authorities are willing to do so.
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\17\ E.g., Article 7, U.S.-Netherlands Treaty; Article 6, U.S.-
Ireland Treaty.
---------------------------------------------------------------------------
Paragraph 2 of this article provides that when the
requesting Party gives assurances in accordance with paragraph
1, the assurances shall be respected, and the death penalty, if
imposed, shall not be carried
article 5--prior proceedings
This article will permit surrender in situations in which
the fugitive is charged with different offenses in both
countries arising out of the same basic transaction.
Article 5(1), which prohibits surrender if the offender has
been convicted or acquitted in the requested Party for the
offense for which extradition is requested, is similar to
language found in many United States extradition treaties. This
paragraph will, however, permit extradition in situations in
which the activities of the fugitive result in his being
charged with different offenses in each jurisdiction arising
out of the same basic transaction.
Article 5(2) makes it clear that neither Party can refuse
to surrender an offender to the other on the ground that the
requested Party's authorities declined to prosecute the
offender, or instituted criminal proceedings against the
offender and thereafter elected to discontinue the proceedings.
This provision was included because the decision of the
requested Party to forego prosecution, or to drop the charges
already filed, may have resulted from failure to obtain
sufficient evidence or witnesses available for trial, and the
requesting Party may not suffer from the same impediments. This
provision should enhance the ability to surrender to the
jurisdiction that has the better chance of a successful
prosecution.
article 6--political offenses
Paragraph 1 of this article prohibits surrender for
political offenses. This is a common provision in United States
extradition treaties.
Paragraph 2 describes several categories of offenses which
shall not be considered to be political offenses.
First, Article 6(2)(a) states that the political offense
exception does not apply where there is a murder or other
willful crime against the life of the Head of State of the
United States, or against the life of the Head of State of the
government responsible for the foreign affairs of Hong Kong, or
a member of either Head of State's family.
Second, Article 6(2)(b) states that the political offense
exception does not apply to offenses for which both Parties
have an international obligation pursuant to a multilateral
international agreement to either surrender the person sought,
or to submit the matter for domestic prosecution. The
conventions to which this clause will apply until July 1, 1997
include the Convention for the Suppression of Unlawful Seizures
of Aircraft (Hijacking) 18, the Convention for the
Suppression of Unlawful Acts Against the Safety of Civil
Aviation (Sabotage) 19, the Convention on the
Prevention and Punishment of Crimes Against Internationally
Protected Persons, Including Diplomatic Agents 20,
and the International Convention Against the Taking of Hostages
21. After July 1, 1997, this clause will continue to
apply to those international conventions containing ``extradite
or prosecute provisions'' applicable to Hong Kong. The
presumption under the Joint Declaration and Basic Law is that
these and other multilateral treaties currently applicable to
Hong Kong will continue to apply, and indeed it appears that
the PRC will extend the applicability of some multilateral
treaties to Hong Kong that were not extended by the UK. A
formal process has been established for confirming the
applicability to Hong Kong of each such treaty as well as any
relevant reservations of understandings.
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\18 \ Done at the Hague December 16, 1970, and entered into force
October 14, 1971 (22 UST 1641; TIAS 7192).
\19 \ Done at Montreal September 23, 1971, entered into force
January 26, 1973 (24 UST 564; TIAS 7570).
\20\ Done at New York December 14, 1973, entered into force
February 20, 1977 (28 UST 1975; TIAS 8532).
\21\ Done at New York December 17, 1979, entered into force June
3, 1983 and for the United States January 6, 1985 (TIAS 11081).
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Third, Article 6(2)(c) states that the political offense
exception does not apply to conspiring or attempting to commit,
or for aiding or abetting the commission or attempted
commission of the foregoing offenses under 6(2)(a) and (b).
Paragraph 3 of the article describes other situations in
which the competent authority in the requested Party, which for
the United States shall be the executive authority,
22 shall refuse surrender.
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\22\ The competent authority in Hong Kong for making decisions
pursuant to this paragraph is likely to be the judiciary.
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First, Article 6(3)(a) states that surrender must be denied
if the competent authority determines that the request was
politically motivated. Similar provisions appear in other U.S.
extradition treaties. 23 In the United States, the
longstanding law and practice has been that the Secretary of
State alone has the discretion to determine whether an
extradition request is based on improper political motivation.
24
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\23\ See Article III(3), U.S.-Jamaica Extradition Treaty, signed
at Kingston June 14, 1983, entered into force September 24, 1984;
Article 5(4), U.S.-Spain Extradition Treaty, signed May 29, 1970;
Article 4, U.S.-Netherlands Extradition Treaty, signed at The Hague
June 24, 1980, entered into force September 15, 1983 (TIAS 10733); and
Article IV(c), U.S.-Ireland Extradition Treaty, signed at Washington
July 13, 1983, entered into force December 15, 1984 (TIAS 10813).
\24 \ See Eain v. Wilkes, 641 F.2d 504 (7th Cir. 1981); In re
Lincoln, 288 F. 70, (E.D.N.Y. 1915); Koskotas v. Roche, 740 F.Supp. 904
(D.Mass. 1990), aff'd 931 F.2d 169 (1st Cir. 1991); Matter of
Extradition of Singh, 123 F.R.D. 127 (D.N.J. 1987); Quinn v. Robinson,
783 F.2d 776 (9th Cir. 1986); Sindona v. Grant, 461 F.Supp 199 (1978).
---------------------------------------------------------------------------
Second, Article 6(3)(b) states that a request for surrender
must be denied if, though purporting to be made on account of
an offense covered by the Agreement, it was in fact made for
the primary purpose of prosecuting or punishing the person
sought on account of his race, religion, nationality or
political opinion. Similar provisions appear in some recent
U.S. extradition treaties. 25
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\25 \ See Article IV(c), U.S.-Ireland Extradition Treaty, signed at
Washington July 13, 1983, entered into force December 15, 1984 (TIAS
10813); Article III(2)(b), U.S.-Jamaica Extradition Treaty,signed at
Kingston June 14, 1983, entered into force September 24, 1984.
---------------------------------------------------------------------------
Third, Article 6(3)(c) states that surrender must be denied
if the person sought is likely to be denied a fair trial or
punished on account of his race, religion, nationality, or
political opinions. Again, a similar provision appears in some
other recent U.S. extradition treaties. 26
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\26 \ See Article III(2)(c), U.S.-Jamaica Extradition Treaty,
signed at Kingston June 14, 1983, entered into force September 24,
1984.
---------------------------------------------------------------------------
article 7--humanitarian considerations
This article provides the competent authority of the
requested Party, which again for the United States shall be the
executive authority, with the discretion to refuse the
surrender of a fugitive when such surrender is likely to entail
exceptionally serious consequences related to age or health.
This type of provision, although normally deemed unnecessary by
U.S. negotiators, does appear in a few other U.S. extradition
treaties. 27
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\27 \ See Article 7(2)(b), U.S.-Norway Extradition Treaty, signed
at Oslo June 9, 1977; entered into force March 7, 1980; Article V(6),
U.S.-Sweden Extradition Treaty, signed October 24, 1961, entered into
force December 3, 1963.
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article 8--required documents
This article sets out the documentary and evidentiary
requirements for a request for surrender, and is generally
similar to articles in the United States' recent extradition
treaties.
Article 8(1) states that requests for the surrender of a
fugitive offender shall be made in writing by and to the
appropriate authorities of the Parties as may be notified
between them from time to time. It is anticipated that requests
both from and to Hong Kong will be channeled through the U.S.
Consulate in Hong Kong 28. Currently, U.S. requests
for extradition from Hong Kong are presented to Hong Kong by
the U.S. Consulate, at the direction of the U.S. Department of
State and in consultation with the U.S. Department of Justice.
That practice will continue. Hong Kong requests for extradition
from the United States are currently presented to the United
States through the British Embassy in Washington. This practice
will change after the Agreement enters into force. It is our
understanding that requests will be presented directly to the
U.S. Consulate in Hong Kong for transmission by the Consulate
to the State Department in Washington, and then on to the
Justice Department. However, a formal extradition request
either to or from Hong Kong may be preceded by a request for
the provisional arrest of the fugitive pursuant to Article 10
of the Agreement. Such requests for provisional arrest may be
made through the same channel required for making formal
requests, or forwarded through the International Criminal
Police Organization (INTERPOL).
---------------------------------------------------------------------------
\28 \ The Hong Kong delegation informed the U.S. delegation that it
is possible that after 1997, the PRC will require requests for
extradition involving Hong Kong to be made through Beijing. However, it
is hoped that the speedy and efficient practice of direct requests both
to and from Hong Kong will continue even after Hong Kong's reversion to
PRC sovereignty.
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Article 8(2) outlines the information which must accompany
every request for surrender under the Agreement. Most of the
items will assist the requested Party in identifying and
locating the fugitive, and in determining the exact nature of,
and punishment for, the offense for which surrender is being
requested.
Article 8(3) describes the additional information needed
when the person is sought for trial by authorities in the
requesting Party; Article 8(4) lists the information needed, in
addition to the requirements of Article 8(2), when the person
sought has been tried and convicted in the requesting Party.
Article 8(3) states that if the fugitive is a person who
has not yet been convicted of the crime for which surrender is
requested, the requesting Party must provide a copy of the
arrest warrant, and ``such evidence as, according to the law of
the requested Party, would justify his committal for trial if
the offense had been committed within the jurisdiction of the
requested Party.'' This is consistent with fundamental
extradition jurisprudence in the United States, under which
this language is interpreted to require countries seeking
extradition from the U.S. to provide evidence establishing
probable cause. 29 However, Hong Kong under its
current law requires prima facie evidence of guilt in order to
either extradite a fugitive, or to commit a case for trial in
Hong Kong. During the negotiations, the Hong Kong delegation
indicated that Hong Kong does not plan to change this
evidentiary standard for either extradition, or committal for
trial. Consequently, U.S. requests to Hong Kong for the
surrender of fugitives will likely require prima facie evidence
even after the Agreement enters into force, i.e., the same
quantum of evidence we provide under the current extradition
treaty.
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\29\ Courts applying 18 U.S.C. Sec. 3184 have long required
probable cause for international extradition. Restatement (Third) of
the Foreign Relations Law of the United States, Section 476, comment b.
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Article 8(4) lists the information needed to surrender a
person already found guilty, convicted or sentenced in the
requesting Party. Once a conviction has been obtained, no
showing of either probable cause or prima facie evidence of
guilt is required. In essence, the fact of conviction speaks
for itself, a position taken in recent United States court
decisions. 30 What is required are (a) a copy of a
certificate or record of the finding of guilt, conviction, or
sentence, and (b) if the person was found guilty or convicted
but not sentenced, a statement or record to that effect and a
copy of the arrest warrant, or (c) if the person was sentenced,
a statement that the sentence remains enforceable and an
indication of how much of it remains to be served.
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\30 \ See Spatola v. United States, 741 F.Supp. 362, 374 (E.D.N.Y.
1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v. Clark, 470
F. Supp. 976 (D.Vt. 1979).
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Article 8(5) states that all documents submitted by the
requesting Party shall be in or translated into an official
language of the requested Party, or any other language agreed
upon by the Parties. Currently, extradition requests both to
and from Hong Kong are made in English. That practice will
continue under this Agreement. However, this paragraph
recognizes that in the years after 1997, an increasing
percentage of judges in Hong Kong may be local Hong Kong
Chinese. Should the official language of the courts in Hong
Kong change from English to Chinese, U.S. requests for
fugitives would then need to be in or translated into Chinese.
However, even if the official language of Hong Kong becomes
Chinese, upon agreement of the Parties, our requests may still
be made in English.
article 9--admissibility and authentication
Article 9 governs the authentication procedures for
documents intended for use in extradition proceedings.
Article 9(a) deals with requests for surrender made by the
United States to Hong Kong. Documents accompanying such
requests shall be received and admitted as evidence in Hong
Kong if they are signed or certified by a state or federal
judge, magistrate or official 31 of the United
States of AMERICA, and they are sealed with the official seal
of the competent authority 32 of the United States.
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\31 \ For example, pursuant to Federal Rule of Criminal Procedure
9(b), the clerk of court shall sign arrest warrants issued for persons
charged by information or indictment.
\32 \ The competent authority for the United States is the
executive authority. The seals of both the Department of Justice and
the Department of State are routinely attached to documents submitted
in support of U.S. requests for extradition.
---------------------------------------------------------------------------
Article 9(b) deals with surrender requests made by Hong
Kong to the United States. Documents accompanying such requests
shall be received and admitted as evidence in the United States
if they are certified by the principal U.S. consular officer
resident in Hong Kong. This provision reflects a slight
variation of procedure described in 18 U.S.C. Sec. 3190. That
statute ensures the admissibility in extradition proceedings of
evidence that is certified by ``the principal diplomatic or
consular officer of the United States resident in such foreign
country. . . .'' However, Hong Kong is not a country. Thus,
this paragraph will ensure that extradition documents may be
certified and made admissible in U.S. extradition proceedings
by the certificate of the principal U.S. consular officer at
our consulate in Hong Kong, without having to be sent for
certification to either London (pre-July 1 1997) or Beijing
(post- July 1 1997).
Article 9(c) provides a second method for authenticating
evidence in an extradition proceeding, by permitting such
evidence to be admitted if it is authenticated in any manner
accepted by the laws of the requested Party. This paragraph
should ensure that relevant evidence, which would normally
satisfy the evidentiary rules of the requested Party, is not
excluded at the extradition hearing because of an inadvertent
error or omission in the authentication process.
article 10--provisional arrest
This article describes the process by which a person
located in the territory of one Party may be arrested and
detained while the formal extradition papers are being
prepared.
Article 10(1) states that in urgent cases and upon request
of the requesting Party, the requested Party may provisionally
arrest a fugitive, in accordance with its law. An article
governing provisional arrest of fugitives is standard in all
modern U.S. extradition treaties.
Paragraph 2 of Article 10 sets forth the information which
the requesting Party must provide in support of such a request.
Paragraph 3 of the article states that the requesting Party
must be notified without delay of the outcome of the request
for provisional arrest and the reasons for any refusal to
execute it.
Paragraph 4 of Article 10 describes the procedure for
making a provisional arrest request. The paragraph makes it
clear that the request shall be in writing, and made either
through the same channels as a formal surrender request, or
through INTERPOL.
Article 10(5) states that if the formal surrender request
with the necessary supporting documents has not been received
by the requested Party within sixty days of arrest, the
provisional arrest--and thus the custody of the fugitive--shall
be terminated. However, the paragraph goes on to state that the
person may be taken into custody again, and surrendered, if the
surrender request is received subsequently.
article 11--concurrent requests
This article reflects the practice of many recent United
States extradition treaties and lists factors which the
executive authority of the requested Party must consider in
determining to which jurisdiction a person should be
surrendered when reviewing competing requests from a Party to
the Agreement and one or more other countries for the
extradition of the same person. For the United States, the
Secretary of State would make this decision. 33
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\33\ See Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla.
1990), aff'd 932 F.2d 977 (11th Cir. 1991).
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article 12--representation and expenses
The first paragraph of Article 12 states that the requested
Party shall, at its own expense, make the necessary
arrangements for the requesting Party's legal representation
and assistance in any proceedings arising out of the request
for surrender. The United States will represent Hong Kong in
connection with court proceedings related to requests from Hong
Kong for persons located in the United States. Hong Kong,
through its Attorney General's Office, will represent the
United States in connection with court proceedings related to
requests from the United States for persons located in Hong
Kong. In addition, the paragraph states that if the requesting
Party decides to arrange for additional legal representation
and assistance (i.e., above and beyond that provided on a cost-
free basis by the requested Party, such as the hiring of
private counsel to assist in the presentation of the
extradition request), the requesting Party shall bear any
additional expenses incurred.
Paragraph 2 of Article 12 provides that the requested Party
will bear all expenses of extradition incurred in its
jurisdiction except those relating to the international
transportation of the fugitive to the requesting Party, and the
translation of documents, which expenses are to be paid by the
requesting Party.
Article 12(3) provides that neither Party shall make a
pecuniary claim against the other in connection with matters
arising out of a request for surrender, including arrest,
detention, examination, and surrender of the fugitive. This
includes any claim by the fugitive for damages, reimbursement,
or legal fees, or other expenses occasioned by the execution of
the surrender request.
article 13--standard of proof
This article sets out the quantum of evidence needed for
surrender of a fugitive. For an accused person, the evidence
must be sufficient according to the law of the requested Party
to justify committal for trial if the offense had been
committed in the territory of the requested Party. As explained
in the analysis of Article 8(3), supra, this means that under
the current law of the Parties, requests by the U.S. for
fugitives located in Hong Kong must be accompanied by prima
facie evidence, and requests by Hong Kong for fugitives located
in the United States must be supported by evidence establishing
probable cause. For a person found guilty, convicted or
sentenced by the courts of the requesting Party, all that this
paragraph requires is evidence to establish that the person
sought is actually the person found guilty, convicted or
sentenced. Such evidence of identity is in addition to the
information regarding such persons required by Article 8(4) of
the Agreement.
article 14--terms of surrender
This article deals with matters related to the ultimate
surrender of fugitives at the end of the extradition process.
Paragraph 1 of Article 14 states that when available for
surrender, the fugitive shall be sent by the authorities of the
requested Party to such convenient place of departure within
that Party's jurisdiction as agreed upon by the Parties. Thus,
for example, if Hong Kong were to seek the surrender of a
fugitive located in Kansas City, the Parties may agree for U.S.
authorities to escort him in custody to a city on the West
Coast, so that he may be handed over to the Hong Kong escort
agents at the port of exit from the United States.
Paragraph 2 requires that the requested Party promptly
notify the requesting Party of its decision on the request for
surrender. If the request is denied, the requested Party must
provide an explanation of the reasons for the denial. In
addition and upon request, the requested Party must provide the
requesting Party with copies of pertinent judicial decisions
related to the request.
Paragraph 3 of the Article states that if the requesting
Party does not remove the fugitive on the agreed upon date, he
may be released from custody, and the executive authority of
the requested Party may subsequently refuse to surrender him
for the same offense. United States law requires that such
surrender occur within two calendar months of the finding that
the offender is extraditable 34, or of the
conclusion of any litigation challenging that finding
35, whichever is later.
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\34\ Title 18, United States Code, Section 3188.
\35\ Jimenez v. United States District Court, 84 S. Ct. 14, 11
L.Ed. 2d 30 (1963)(decided by Goldberg, J., in chambers). See also
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713
F.2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624
(1978).
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Paragraph 4 of Article 14 states that if circumstances
beyond its control prevent a Party from surrendering or picking
up the person to be surrendered, it shall notify the other
Party. Then, except to the extent inconsistent with the law of
the requested Party, the two Parties shall agree on a new date
for surrender--and the provisions of paragraph 3 shall apply.
Thus, if it becomes necessary for either Party to re-schedule
the pick up or transfer of a fugitive, that will be possible.
However, if the transfer of a fugitive from the U.S. to Hong
Kong is delayed beyond two calendar months from the finding of
extraditability or the conclusion of litigation challenging
that finding, and the fugitive applies for release, it will be
up to a U.S. judge to determine whether the circumstances which
led to the delay constituted ``sufficient cause'' 36
not to order the fugitive's release.
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\36\ Title 18, United States Code, Section 3188.
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article 15--transfer of property
This article requires the requested Party to, consistent
with its laws and subject to conditions related to the rights
of other claimants, furnish the requesting Party with certain
categories of things along with the person surrendered.
Specifically, money and other articles which may serve as proof
of the offenses to which the request for surrender relates, and
money or other articles which may have been acquired by the
person sought as a result of the offense and are in his
possession, are to be furnished. Thus, for example, physical or
documentary evidence of the crime for which surrender is
sought, and any proceeds of such crime found on the fugitive at
the time of his arrest, are to be turned over.
article 16--speciality
This article covers the principle known as the rule of
speciality (or specialty), which is a standard aspect of United
States extradition practice. The rule of speciality insures
that a fugitive surrendered for one offense is not tried or
punished for other crimes subject to certain specific
exceptions. In other words, the rule prevents a request for
extradition from being used as a subterfuge to obtain custody
of a person for trial or service of sentence on charges which
may not be extraditable under the Agreement, or which are not
properly documented at the time that the request is granted.
This paragraph contains a variety of exceptions to the rule
that have developed over the years. It states that a person
surrendered under the Agreement may only be proceeded against,
sentenced, or detained with a view to the carrying out of a
sentence for (1) the offense for which surrender was ordered,
(2) lesser offenses revealed by the facts in respect of which
request for surrender was ordered, provided such offenses are
covered by the Agreement, and (3) any offenses for which the
requested Party consents 37. The paragraph also
makes it clear that the rule applies only to offenses committed
prior to the surrender of a fugitive.
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\37\ In the United States, the Secretary of State has the
authority to grant such consent. See Berenguer v. Vance, 473 F. Supp.
1195 (D.D.C. 1979). It should be noted that in cases in which consent
is requested to try, sentence, or punish a person for an offense other
than that for which surrender was ordered, the requested Party may
require submission of the documents called for in Article 8, and may
detain the fugitive in custody for up to ninety days while the request
is being processed.
---------------------------------------------------------------------------
Paragraph 2 of this article prohibits the requesting Party
from re-surrendering a person, or transferring him beyond its
jurisdiction, without the consent of the requested Party. These
limitations on further surrender and transfer apply to offenses
for which the person was originally surrendered, and to any
other offenses he may have committed prior to his original
surrender. Thus, absent U.S. consent, a person surrendered to
Hong Kong pursuant to this Agreement may not be further
surrendered for the same crimes, or for other offenses
committed prior to his surrender, to any third country, or even
to the People's Republic of China (other parts of the PRC being
``beyond the jurisdiction'' of Hong Kong). Nor may Hong Kong
unilaterally decide to transfer a person surrendered pursuant
to this Agreement, (either to a third country or to the PRC),
for the service of his Hong Kong imposed sentence. In addition,
pursuant to Article 20(3) of the Agreement, the provisions of
Article 16 shall also apply to fugitives extradited pursuant to
requests pending when the Agreement enters into force, and to
any other fugitive offenders previously surrendered between the
parties. Consequently, persons extradited to Hong Kong under
the terms of our existing treaty with the United Kingdom will
not, even after 1997, be surrendered or transferred to other
jurisdictions (including the PRC) for the offenses for which
their extradition was granted, or for any other offenses
committed prior to their extradition, absent the consent of the
United States. The Agreement meets a goal of U.S. negotiators
in ensuring that persons extradited to Hong Kong (in the past
or in the future) will be prosecuted and punished for those
crimes in Hong Kong.
Finally, Paragraph 3 of the article permits the trial,
sentencing, detention, or surrender to another jurisdiction of
a surrendered person if (1) he has had an opportunity to leave
the jurisdiction to which he was surrendered and has not done
so within thirty days, or (2) he voluntarily returns to the
jurisdiction having left it.
article 17--temporary and deferred surrender
Paragraph 1 of this article addresses those situations in
which a surrender request is made for a person already serving
a sentence for a conviction in the requested Party. The
paragraph states that the requested Party may temporarily
surrender such a person to the requesting Party for purpose of
prosecution.
Paragraph 2 deals with requests for surrender made for
persons being proceeded against by the requested Party. The
requested Party must proceed with the surrender proceedings
after the prosecution against the person sought has been
concluded and he is acquitted. 38 Implicit in this
provision is the notion that a prosecution in the requested
Party permits that Party to defer surrender proceedings while
its own criminal proceedings are pending. Pursuant to this
paragraph, if the person sought is convicted and sentenced to
imprisonment, the requested Party may continue surrender
proceedings and, upon committal, temporarily surrender him to
the requesting Party for purpose of prosecution. Implicit in
this provision is the notion that the requested Party may
choose to wait until completion of the service of sentence
before continuing with the surrender proceedings.
---------------------------------------------------------------------------
\38\ Article 17(2)(a) should be read in a manner which is
compatible with Article 5, which prohibits surrender if the person
sought has been convicted or acquitted in the requested Party for the
same offense.
---------------------------------------------------------------------------
The temporary transfer provisions of paragraphs 1 and 2
further the interests of justice. They permit trial of the
person sought while evidence and witnesses are more likely to
be available, thereby increasing the likelihood of successful
prosecution. Such transfer may also be advantageous to the
person sought in that : (1) it allows him to resolve the
charges sooner; (2) it may make it possible for him to serve
any sentence in the requesting Party concurrently with the
sentence in the requested Party; and (3) it permits him to
defend against the charges while favorable evidence is fresh
and more likely to be available to him. Similar temporary
surrender provisions are found in many recent extradition
treaties.
Paragraph 3 of the article states that when a person is
temporarily surrendered, he shall be kept in custody by the
requesting Party. He shall also be returned to the requested
Party after the conclusion of the proceedings against him, in
accordance with conditions to be determined by agreement of the
Parties.
article 18--surrender by consent
Persons sought for extradition frequently elect to waive
their right to extradition proceedings and to expedite their
return to the requesting State. Paragraph 1 of this article
provides that when a fugitive consents to be surrendered to the
requesting Party, the requested Party may surrender the person
as expeditiously as possible without further proceedings. The
Parties anticipate that in such cases there would be no need
for the formal documents described in Article 8 or for further
judicial proceedings of any kind.
Paragraph 2 of Article 18 states that to the extent
required under the law of the requested Party, the provisions
of Article 16 (rule of speciality) shall apply to a person
surrendered pursuant to this Article. Since surrender pursuant
to this article would amount to voluntary return of the
fugitive, and not a formal surrender pursuant to the Agreement,
the United States does not view the rule of speciality as
applicable to such surrenders.
article 19--transit
Article 19(1) gives each Party the power to authorize
transit through its jurisdiction of a person being surrendered
to the other Party by a third country, and to hold such persons
in custody during the period of transit. Transit requests shall
be in writing. Each request for transit must contain a
description of the person whose transit is proposed, and a
brief statement of the facts of the case with respect to which
he is being surrendered to the requesting Party.
Article 19(2) makes it clear that no advance authorization
is needed if the person is being transported by air, and no
landing is scheduled in the jurisdiction of the Party to be
transited. Should an unscheduled landing occur, a written
request for transit as provided for in Paragraph 1 may be
required at that time. However, the person must be kept in
custody before the request for transit is received and until
the transit is effected, so long as the request is received
within ninety-six hours of the unscheduled landing.
article 20--entry into force, termination and application
Paragraph 1 of Article 20 states that the Agreement shall
enter into force thirty days after the date on which the
Parties have notified each other in writing that their
respective requirements for the entry into force of this
Agreement have been complied with.
Paragraph 2 of the article states that either Party may
terminate the Agreement by giving notice to the other in
writing, however the Agreement shall only cease to have effect
six months after the receipt of such notice.
Paragraph 3 of the article sets out those categories of
cases to which this Agreement applies. It shall apply to all
requests for surrender made after its entry into force. It
shall also apply to requests for surrender pending at the date
of its entry into force. Finally, Articles 4 (capital
punishment) and 16 (speciality) shall apply to fugitive
offenders surrendered between the Parties prior to the
Agreement's entry into force.
Paragraph 4 of Article 20, like most of the other United
States extradition treaties negotiated in the past two decades,
makes the Agreement retroactive, in that it covers offenses
committed before as well as after it enters into force.
VIII. Resolution of Ratification
Resolved, (two-thirds of the Senators present concurring
therein), That the Senate advise and consent to the
ratification of 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 (Treaty Doc. 105-3), subject to the
understandings of subsection (a), the declarations of
subsection (b), and the proviso of subsection (c).
(a) UNDERSTANDINGS.--The Senate's advice and consent is
subject to the following two understandings, which shall be
included in the instrument of ratification, and shall be
binding on the President:
(1) THIRD PARTY TRANSFERS.-- The United States
understands that Article 16(2) permits the transfer of
persons surrendered to Hong Kong under this Agreement
beyond the jurisdiction of Hong Kong when the United
States so consents, but that the United States will not
apply Article 16(2) of the Agreement to permit the
transfer of persons surrendered to the Government of
Hong Kong to any other jurisdiction in the People's
Republic of China, unless the person being surrendered
consents to the transfer.
(2) HONG KONG COURTS' POWER OF FINAL ADJUDICATION.--
The United States understands that Hong Kong's courts
have the power of final adjudication over all matters
within Hong Kong's autonomy as guaranteed in the 1984
Sino-British Joint Declaration on the Question of Hong
Kong, signed on December 19, 1984, and ratified on May
27, 1985. The United States expects that any exceptions
to the jurisdiction of the Hong Kong courts for acts of
state shall be construed narrowly. The United States
understands that the exemption for acts of state does
not diminish the responsibilities of the Hong Kong
authorities with respect to extradition or the rights
of an individual to a fair trial in Hong Kong courts.
Any attempt by the Government of Hong Kong or the
Government of the People's Republic of China to curtail
the jurisdiction and power of final adjudication of the
Hong Kong courts may be considered grounds for
withdrawal from the Agreement.
(b) DECLARATIONS.--The Senate's advice and consent is
subject to the following two declarations, which shall be
binding on the President:
(1) REPORT ON THE HONG KONG JUDICIAL SYSTEM.-- One
year after entry into force, the Secretary of State, in
coordination with the Attorney General, shall prepare
and submit a report to the Committee on Foreign
Relations that addresses the following issues during
the period after entry into force of the Agreement:
(i) an assessment of the independence of the
Hong Kong judicial system from the Government
of the People's Republic of China, including a
summary of any instances in which the
Government of the People's Republic of China
has infringed upon the independence of the Hong
Kong judiciary;
(ii) an assessment of the due process
accorded all persons under the jurisdiction of
the Government of Hong Kong;
(iii) an assessment of the due process
accorded persons extradited to Hong Kong by the
United States;
(iv) an accounting of the citizenship and
number of persons extradited to Hong Kong from
the United States, and the citizenship and
number of persons extradited to the United
States from Hong Kong;
(v) an accounting of the destination of third
party transfer of persons who were originally
extradited from the United States, and the
citizenship of those persons;
(vi) a summary of the types of crimes for
which persons have been extradited between the
United States and Hong Kong;
(2) TREATY INTERPRETATION.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification with
respect to the INF Treaty.
(c) PROVISO.-- The resolution of ratification is subject to
the following proviso, which shall not be included in the
instrument of ratification to be signed by the President:
(1) SUPREMACY OF THE CONSTITUTION.--Nothing in the
Treaty requires or authorizes legislation or other
action by the United States of America that is
prohibited by the Constitution of the United States as
interpreted by the United States.
A P P E N D I X
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
(TREATY DOC. 105-3)
C O N T E N T S
__________
Page
June 3, 1997
Borek, Jamison S., Deputy Legal Advisor, U.S. Department of State 38
Prepared statement........................................... 41
Richard, Mark, Deputy Assistant Attorney General, Criminal
Division, U.S. Department of Justice........................... 35
Prepared statement........................................... 36
Appendix
Letter to Chairman Helms from Barbara Larkin..................... 59
Response of Jamison S. Borek to Questions Asked by:
Senator Helms................................................ 59
Senator Biden................................................ 61
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 (TREATY DOC. 105-3)
----------
TUESDAY, JUNE 3, 1997
U.S. Senate
Committee on Foreign Relations
Washington, DC.
The committee met, pursuant to notice, at 10:05 a.m., in
room SD-419, Dirksen Senate Office Building, Hon. Craig Thomas,
presiding.
Present: Senators Thomas, Ashcroft, Kerry, and Robb.
Senator Thomas. We will begin. Thank you very much for
being here, the witnesses, and also the rest of you. Glad to
have you.
Today the committee will consider the agreement for the
surrender of fugitive offenders between the United States and
Hong Kong, signed in December of last year, the Hong Kong
Extradition Treaty. Criminal activities originating in Hong
Kong and aimed at the United States or U.S. interests for a
variety of reasons is on the rise -- software, intellectual
property, smuggling of illegal immigrants, and drug smuggling,
to name just a few of the problem areas. With that rise in
crime, there will become an increasing need for the United
States to seek extradition of individuals from Hong Kong.
At present, these extraditions are governed by an agreement
between the United States and the United Kingdom. This
agreement expires, however, upon Hong Kong reversion to the
PRC. The treaty we consider today will replace the expired
agreement, and ensure the continuation of the important
cooperation between the law enforcement communities of Hong
Kong and the United States. It is especially important because
the U.S. lacks an extradition treaty with the People's Republic
of China, and the treaty will provide the means for
continuation of an extradition relationship with Hong Kong
after reversion, and avoid a gap in law enforcement.
Most of the provisions of this treaty follow the form and
the content of extradition treaties presently in force with the
U.S. In addition, it contains several provisions especially
designed in light of the peculiar status of Hong Kong as a
special administrative region of the PRC. I support the
movement of this treaty and will work to move it as quickly as
possible for the advice and consent of the full Senate.
We are especially pleased that you came to talk with us
about it. I think it is not generally controversial, but it is
very important. I am pleased to be joined by the Senator from
Missouri. Would you have any comments, Senator Ashcroft?
Senator Ashcroft. Thank you, Mr. Chairman. I want to thank
you for this series of hearings that you have been holding on
Hong Kong, including the broader relationship between the
United States and China. I think these are well worth our
inquiry, and I appreciate the fact that you have focussed the
attention of the full committee as well as the subcommittee on
these issues.
Hong Kong certainly serves as a prism through which to
evaluate the future course of United States-China relations,
and determine which policies the United States should adopt to
best encourage the growth of free markets and democracy in the
People's Republic of China. To most Americans, a hearing on the
seemingly nebulous topic of extradition treaties is not
particularly important. But let us not be distracted by the
complex legal jargon that accompanies such treaties.
Extradition agreements strike at the very heart of equality
before the law, one of the most cherished freedoms that people
should enjoy, I believe, around the globe. It certainly is a
cherished freedom in America.
Our judicial system seeks to protect the due process rights
of foreigner and native citizen alike. Our extradition treaties
with our nations are based on the premise that any person we
transfer to a foreign court system will receive similarly just
treatment. The extradition treaty with Hong Kong is thus a very
important consideration in assessing the future prospects of
freedom for the Colony under Chinese rule. We need to consider
the extradition treaty in light of China's overall behavior
toward Hong Kong in recent months.
China's actions to undermine democracy in Hong Kong cast
doubt on the future of civil liberties in the British Colony.
China has declared the elected Hong Kong legislature invalid,
and appointed a handpicked provisional legislative body.
China's appointed chief executive of Hong Kong, Chi Hua,
recently announced additional measures to restrict civil
liberties in the colony. Public protests will have to receive
prior approval, and could be banned to protect national
security. Hong Kong political organizations will be required to
register with the government, and will be prohibited from
seeking or receiving funds from overseas organizations. Under
China's definition of a Hong Kong political group,
international organizations that expose China's human rights
abuses will also be banned from receiving critical foreign
funding.
In light of these troubling steps being taken by Beijing,
not to mention China's violation of trade agreements, weapons
proliferation commitments, and human rights standards, there
are few doubts in my mind that China will violate this
extradition treaty that we are considering today.
The extradition treaty contains provisions that supposedly
preserve due process and the ability of the U.S. to refuse
extradition requests that are politically motivated. As with
all international agreements, however, effective enforcement is
essential to protect American interests. The strongest treaty
language in the world is meaningless without Presidential
vigilance -- a vigilance I find appallingly lacking in the
current administration.
This administration has failed to confront consistently
China on human rights violations, trade barriers and weapons
proliferation. I am concerned that the administration will
adopt a similarly lax attitude in the enforcement of this
treaty. The Clinton administration's defense of Hong Kong in
other areas has been weak at best. The White House has been
hesitant to meet with political activists from the Colony, and
Vice President Gore failed to include Hong Kong in the
itinerary of his recent trip to East Asia. The 6 million people
in Hong Kong deserve better treatment from America. The fight
to preserve liberty in Hong Kong could be the battle that
determines the outcome of the overall campaign to cultivate
democracy in China.
Hong Kong serves as yet another example of liberty to over
1 billion Chinese. The effective removal of that example would
set back the march of freedom.
Mr. Chairman, tomorrow, will be the 8th anniversary of the
Tiananmen Square massacre. Several thousand heroes of liberty
lost their lives in that bloodbath. Several hundred more were
tortured and imprisoned without the due process protections of
a fair court system. Let us be honest. We are not signing this
extradition treaty with Hong Kong, but with Beijing. By doing
so, we are placing our stamp of approval on Chinese control of
Hong Kong's court system, a court system that will increasingly
be an extension of the Chinese Communist Party.
The United States has never before signed a treaty to
extradite human beings to a totalitarian communist regime.
China has already amended Hong Kong's Bill of Rights to strip
the courts of the power to strike down laws which violate civil
liberties guaranteed in the Hong Kong Constitution. As Beijing
continues its assault on Hong Kong's court system, we could see
more egregious violations of due process. The heroes of
Tiananmen Square truly loved their country and were willing to
make the personal sacrifice to take a determined stand against
political tyranny.
The Clinton administration could learn a lesson from these
demonstrators, who shook the foundations of the Chinese
Communist Party 8 years ago. In the long run, honesty is the
best policy, and the forthright stand against the atrocities
being committed by Beijing will do more for a stable United
States-China relationship than repeated acts of appeasement.
We in America need to realize what the Tiananmen Square
protesters recognized long ago -- that the forces of justice
and liberty are at work in the Chinese people just as they have
been at work with such stunning effect in other nations around
the world. When China embraces democracy, along with a just
court system and an open press, just as South Korea, Taiwan and
Japan have done, it will be good to say we have been at the
side of the Chinese people all along.
Thank you, Mr. Chairman.
[The prepared statement of Senator Ashcroft follows:]
Prepared Statement of Senator John Ashcroft
I want to thank Chairman Helms for his careful consideration of the
U.S.-Hong Kong Extradition Treaty. Hong Kong certainly serves as a
prism through which to evaluate the future of United States-China
relations. The policies which the United States adopts to preserve
liberty in the former British colony should help to determine the
policies that will help promote the growth of freedom in China itself.
While extradition treaties can be rather nebulous documents, let us
not be distracted by the complex legal jargon that accompanies such
treaties. Extradition agreements strike at the very heart of equality
before the law, one of our most cherished freedoms in America. Our
judicial system seeks to protect the due process rights of foreigner
and native citizen alike, and our extradition treaties with other
nations are based on the premise that any person the United States
transfers to a foreign court system will receive similarly just
treatment.
The extradition treaty with Hong Kong is thus very important in
assessing the future prospects for freedom in Hong Kong under Chinese
rule. China's actions to undermine democracy in Hong Kong cast doubt on
the future of civil liberties in the British colony, and we need to
consider this extradition treaty in that light. China has declared the
elected Hong Kong legislature invalid and, in its stead, appointed a
hand-picked provisional legislative body. China's appointed chief
executive of Hong Kong, Tung Chee-hwa, recently announced additional
measures further restricting civil liberties in the colony.
For instance, public protests must receive prior approval and could
be banned to protect ``national security.'' Hong Kong's political
organizations will be required to register with the government and will
be prohibited from seeking or receiving funds from overseas
organizations. Under China's new definition of a Hong Kong political
group, international organizations that expose China's human rights
abuses also will be banned from receiving critical foreign funding.
China has already amended Hong Kong's Bill of Rights to strip the
courts of the power to strike down laws which violate civil liberties
guaranteed in the Hong Kong constitution. Further assaults on Hong
Kong's court system by Beijing could set the stage for intolerable and
egregious violations of due process.
In light of these troubling steps taken by Beijing, not to mention
China's violation of trade agreements, weapons proliferation
commitments, and human rights standards, the United States must be on
guard against any attempts by China to violate this extradition treaty
in the future.
The U.S.-Hong Kong extradition treaty contains provisions that
preserve the ability of the United States to refuse extradition
requests that are politically motivated. Article 6 of the extradition
treaty also gives the United States the prerogative to refuse
extradition requests where the offender is ``likely to be denied a fair
trial or punished on account of his race, religion, nationality, or
political opinions.'' Finally, and perhaps most importantly, the
extradition treaty forbids third party transfers of persons extradited
to Hong Kong beyond the jurisdiction of Hong Kong without the consent
of the United States.
The resolution of ratification drafted by the Foreign Relations
Committee strengthens these safeguards by requiring the consent of the
fugitive offender before a third party transfer can take place. The
resolution also requires the Secretary of State to issue a report one
year after the treaty takes effect on the independence of Hong Kong's
court system. Finally, the resolution states that any attempt by China
to curtail the jurisdiction or final adjudication of the Hong Kong
courts could be considered grounds for withdrawal from the extradition
treaty.
As with all international agreements, however, effective
enforcement is essential to protect American interests. The strongest
treaty language in the world is meaningless without presidential
vigilance, a vigilance too often lacking in this Administration. This
Administration has failed to confront China consistently on human
rights violations, trade barriers, and weapons proliferation. I am
concerned that the Administration may adopt a similar indifference in
the enforcement of this treaty.
The United States needs to stand by Hong Kong now more than ever,
and I want to do just that. However, the United States has never before
signed a treaty to extradite accused individuals to a totalitarian
communist regime. To the extent that Hong Kong's court system becomes a
mere extension of the Communist Party in China, the United States must
have the resolve not to cooperate with that court system. If we will
use them, the resolution of ratification and the extradition treaty
contain the provisions to address future attempts by China to subvert
judicial independence in Hong Kong.
In light of these safeguards, I will not challenge the U.S.-Hong
Kong extradition treaty at this time. However, should China encroach on
the autonomy of Hong Kong's judicial system, then I will be among the
first calling for the United States to withdraw from the treaty.
Mr. Chairman, thank you for allowing me to speak on this important
subject. I look forward to working with you to ensure that this
extradition treaty is honored by China and enforced by the United
States.
Senator Thomas. Thank you, Senator.
We have as witnesses this morning Mr. Mark Richard, Deputy
Assistant Attorney General of the Criminal Division, U.S.
Department of Justice; and Ms. Jamison S. Borek, Deputy Legal
Advisor, U.S. Department of State.
Mr. Richard, would you care to begin, sir.
STATEMENT OF MARK RICHARD, DEPUTY ASSISTANT ATTORNEY GENERAL,
CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. Richard. Thank you very much, Mr. Chairman.
With your permission, I would submit my complete statement
for the record and merely summarize it.
Senator Thomas. For both of you, your complete statements
will be part of the record.
Mr. Richard. As you have indicated, Hong Kong is currently
one of our most closest and reliable law enforcement partners.
Since 1991, under the existing U.S.-U.K. treaty, Hong Kong has
returned 64 fugitives to the United States for prosecution. The
vast majority of these fugitives were in the field of narcotics
trafficking. During the same period, the United States returned
seven fugitives to Hong Kong. Most of these crimes ranged from
fraud to violent crimes.
There is, as reflected in these statistics, a compelling
law enforcement need to continue our extradition relationship
with the authorities in Hong Kong. As a stable and
sophisticated financial center, Hong Kong has long been an
attractive place for money-laundering activity. Significantly,
Hong Kong has also been known as an important site for
narcotics trafficking. Incidentally, these crimes are directed
principally at the United States. Hong Kong's location also
makes it an attractive center for schemes involving the
smuggling of aliens into the United States. It is also a
natural hub for illegal customs transshipment, counterfeiting
and other criminal activities that have direct effects in the
United States.
In negotiating this new agreement, we made every effort to
ensure that extradition will be available for the widest
possible range of offenses. Let me, if I may, turn to some
specific provisions of the agreement itself that hopefully will
address at least in part some of the concerns expressed by
Senator Ashcroft in his opening statement. I would like to just
highlight some.
One, we have the modern concept of dual criminality, which
permits extradition for any crime punishable in both
jurisdictions by imprisonment of more than 1 year. That is
incorporated into this agreement. In practice, this agreement
will expand the range of extraditable offenses. Customs
offenses such as smuggling and export control violations will
now be extraditable, as will intellectual property offenses,
computer crimes, gambling, money laundering related to any
extraditable offense, and weapons offenses.
The agreement envisions that, as a general rule,
extradition will not be denied on the basis of nationality.
However, the agreement contains narrow exceptions that take
into account Hong Kong's unique status.
Under Article 3 of the agreement, the executive authorities
of both the United States and Hong Kong have the right to
refuse the surrender of nationals if the requested surrender
relates to the defense, foreign affairs or essential public
interests in the requested parties.
Article 16 of the agreement, I think, is of critical
importance, because it incorporates a principle of extradition
law known as a rule of specialty. It provides the legal basis
to ensure that fugitives surrendered by the United States to
Hong Kong will not be prosecuted for additional offenses or
resurrendered beyond Hong Kong's borders without the permission
of the United States.
Fugitives, therefore, extradited by the United States to
Hong Kong cannot be resurrendered by the Hong Kong special
administrative region to the mainland PRC. Moreover this
protection, rule of specialty, is specifically extended to all
persons who have been extradited by the United States prior to
the time the new agreement comes into force.
In conclusion, I would like to just point out that as in
other extradition areas with other countries, the extradition
process is a cumbersome one and it is a technical one, but it
is one that must be constantly monitored for compliance with
fundamental fairness and conformity with the agreement.
I certainly agree with the Senator that in this, we have to
be particularly vigilant. I think, speaking certainly for the
Department of Justice -- and I would be presumptuous enough to
speak for the State Department in this regard -- to say that we
both intend to monitor implementation of this agreement very
closely, and to ensure that all of its terms are complied with,
both in form as well as in substance.
Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Richard follows:]
Prepared Statement of Mark M. Richard
Mr. Chairman, I am pleased to appear before the Committee today to
present the views of the Department of Justice on an extradition
agreement that is of great importance to the future of United States -
Hong Kong law enforcement relations.
The Department of Justice participated in the negotiation of this
agreement with Hong Kong and joins the Department of State in urging
the Committee to report favorably to the Senate and recommend that the
Senate give its advice and consent to ratification.
Hong Kong is currently one of our closest and most reliable law
enforcement partners. Overall, the United States - Hong Kong law
enforcement relationship can be described as excellent. This is
particularly true with respect to extradition.
In 1991, the United States began negotiating the agreement that is
now before you for advice and consent to ratification. Since that time,
under the existing U.S.-U.K. treaty, Hong Kong has returned 64
fugitives to the United States for prosecution and/or punishment. The
vast majority of those fugitives were accused narcotics traffickers
wanted by either state or federal prosecutors. During that same period,
the United States has returned 7 fugitives to Hong Kong for prosecution
and/or punishment for offenses ranging from fraud to violent crimes.
There is a compelling law enforcement need to continue our
extradition relationship with the authorities in Hong Kong. As a stable
and sophisticated financial center, Hong Kong has long been an
attractive place for money laundering activity, despite aggressive law
enforcement efforts to combat the problem.
Significantly, Hong Kong has also been known as an important site
for narcotics trafficking. In addition to serving as a conduit for the
flow of drugs, Hong Kong is often chosen as the place where illicit
narcotics deals are consummated. In fact, many of the traffickers
extradited to the United States by the Hong Kong Government were later
prosecuted for conspiring in Hong Kong to import heroin into the United
States. The Royal Hong Kong Police and the Hong Kong Customs and Excise
Department work closely with the U.S. law enforcement community in
sharing information and conducting joint investigations. Similar
cooperation between the Department of Justice and the Hong Kong
Attorney General's Chambers has resulted in many successful extradition
cases.
Hong Kong's location also makes it an attractive center for schemes
involving the smuggling of aliens into the United States. Hong Kong
immigration officials have conducted numerous joint investigations with
our Immigration and Naturalization Service to detect and arrest alien
smugglers and to intercept persons who attempt to enter the United
States illegally.
Hong Kong is also a natural hub for illegal customs transhipment,
counterfeiting and other criminal activities that have direct effects
in the United States. Due to limitations of scope of the existing U.S.-
U.K. extradition treaty and Hong Kong's domestic laws implementing that
treaty, some of the aforementioned offenses, including alien smuggling
and most customs crimes, are not presently extraditable. In negotiating
our new extradition agreement, we made every effort to ensure that
extradition will be available for the widest possible range of
offenses. Our goal is to provide all U.S. law enforcement agencies,
both those with representatives stationed in Hong Kong, including the
FBI, DEA, Customs Service, INS, Secret Service and Diplomatic Security,
and those federal, state and local agencies who do not have
representatives posted in Hong Kong, with the benefits of a
comprehensive, modern extradition treaty.
Our current and projected law enforcement needs provide sound
policy reasons to both maintain and strengthen our ties with Hong Kong,
as reflected by the letter and spirit of the Hong Kong Policy Act
passed by Congress. Our support for swift approval of this agreement is
premised upon our recognition of the continuing need for an extradition
relationship with Hong Kong. In implementing the new agreement, we will
continue to monitor closely the status of the legal system of Hong
Kong.
Under the Sino-British Joint Declaration on the Question of Hong
Kong, the U.N.- registered bilateral treaty between the U.K. and the
P.R.C., Hong Kong will retain both its capitalist system and its
British-based common law system until at least the year 2047. The
People's Republic of China has undertaken an international legal
obligation under the Joint Declaration to preserve the independence of
Hong Kong's judiciary and to maintain the same system of laws and due
process that exists in Hong Kong today.
Two weeks ago, it was announced in Hong Kong that Andrew Li Kwok-
nang will become the first Chief Justice of the Hong Kong Special
Administrative Region's (HKSAR) Court of Final Appeal. Provided for
under the Basic Law and described further in a subsequent Sino-British
Joint Liaison Group (JLG) agreement, the Court of Final Appeal will
replace the British Privy Council as Hong Kong's highest appellate
court.
According to press reports, the choice of Mr. Li as future Chief
Justice has received immediate and widespread support in London,
Beijing, and perhaps most importantly, Hong Kong. Governor Patten,
future Secretary of Justice Elsie Leung, along with academics, members
of the Hong Kong Bar Association, and others have made public
statements endorsing the appointment of Andrew Li as a strong
indication that judicial independence and the rule of law will continue
in Hong Kong. The Department of Justice views the appointment of Mr. Li
as a positive sign and, along with the Department of State, will pay
close attention to developments in Hong Kong as additional members of
the Court of Final Appeal are nominated in the coming weeks.
I would like to turn now to the extradition agreement itself.
Because the Departments of Justice and State have prepared and
submitted to the Committee a detailed technical analysis of the various
articles of this agreement, I will simply highlight some of the
important features of the agreement. Many of those features are found
in other U.S. extradition treaties that have recently come into force.
This agreement also contains certain provisions that reflect Hong
Kong's unique situation and our concomitant interests.
The term ``agreement'' was used instead of ``treaty'' at the
request of the Hong Kong Government. However, this agreement will be a
treaty for purposes of United States law.
The modern concept of ``dual criminality,'' which permits
extradition for any crime punishable in both jurisdictions by
imprisonment of more than one year, is incorporated into Article 2 of
the agreement. In this context, a dual criminality clause is used to
supplement a comprehensive list of offenses designed to underscore the
availability of extradition for crimes that are of particular interest
to each party.
In practice, this agreement will expand the range of extraditable
offenses. For the first time, the United States will be able to
extradite fugitives from Hong Kong directly for alien smuggling and
visa fraud. Until now, we have had to limit our extradition requests in
alien smuggling cases to situations in which extraditable crimes, such
as extortion or kidnapping, have occurred.
Likewise, customs offenses such as smuggling and export control
violations will become extraditable. In the past, due to restrictions
under the U.S.-U.K. treaty and Hong Kong law, extradition in this area
has been limited to fraud cases involving clear financial loss.
Among the other crimes that will become extraditable for the first
time are intellectual property offenses, computer crimes, bail jumping,
gambling, money laundering related to any extraditable crime, and
weapons offenses.
The agreement envisions that as a general rule, extradition will
not be denied on the basis of nationality. This principle, found in
Article 3, is consistent with longstanding U.S. policy favoring the
extradition of nationals. However, the agreement contains narrow
exceptions that take into account Hong Kong's unique status under the
Chinese ``one country, two systems'' approach to reversion.
Under Article 3 of the agreement, the executive authorities of both
the United States and Hong Kong have the right to refuse the surrender
of nationals (in the case of Hong Kong, this means Chinese nationals)
if the requested surrender relates to the defense, foreign affairs, or
essential public interest of the requested Party.
Article 3 also permits the executive authority in Hong Kong to
refuse the surrender of a Chinese national who does not have what is
called the ``right of abode'' in Hong Kong or has not ``entered Hong
Kong for the purpose of settlement,'' if the P.R.C. has jurisdiction
over the offense and has commenced or completed proceedings for the
prosecution of that person. (The term ``right of abode'' refers to
legal residents of Hong Kong, and the language concerning entry ``for
the purpose of settlement'' is a term of art referring to an ongoing
family reunification policy in Hong Kong).
Article 3 also provides that in the event that the surrender of a
national is refused, the case may be submitted to the competent
authorities of the requested Party for possible domestic prosecution.
Article 16 of the agreement incorporates a principle of extradition
law known as the ``rule of specialty.'' That principle is also
reflected in Section 17 of Hong Kong's new Surrender of Fugitive
Offenders (SFO) Ordinance, which will serve as Hong Kong's domestic
implementing legislation for new extradition agreements, including this
one. Article 16 of the extradition agreement provides the legal basis
to ensure that fugitives surrendered by the United States to Hong Kong
will not be prosecuted for additional offenses or re-surrendered beyond
Hong Kong's borders without the permission of the United States. Under
the formulation of the language used in Article 16, which prohibits
transfer of extradited persons ``beyond the jurisdiction of the
requesting Party,'' fugitives extradited by the United States to Hong
Kong cannot be re-surrendered by the Hong Kong Special Administrative
Region to the mainland People's Republic of China.
Under Article 20 of the agreement, the protection of the rule of
specialty is specifically extended to all persons who have been
extradited by the United States to Hong Kong prior to time that the new
agreement comes into force.
There is clear justification for continuing an effective and
vibrant bilateral law enforcement relationship with Hong Kong. Future
cooperation with Hong Kong will be an integral part of the U.S.
Government's strategy to combat Asian organized crime. It is also
important that Hong Kong does not become a haven for fugitives from
U.S. justice due to the lack of an extradition treaty.
Since 1991, the Departments of Justice and State have been working
to build an infrastructure for our future law enforcement relationship
with Hong Kong. We believe that the extradition agreement now before
you is the cornerstone, which, together with agreements in the areas of
mutual legal assistance and prisoner transfer that are also before the
Committee, will protect U.S. law enforcement interests and support the
autonomy of Hong Kong.
Thank you, Mr. Chairman.
Senator Thomas. Thank you, sir. Ms. Borek.
STATEMENT OF JAMISON S. BOREK, DEPUTY LEGAL ADVISOR, U.S.
DEPARTMENT OF STATE
Ms. Borek. Thank you, Mr. Chairman.
I am pleased to appear before you today to testify in
support of this extradition treaty. As you know, as was clear
at our earlier hearing and as Mr. Richard has testified, we
have a very important law enforcement relation with Hong Kong,
and we wish to preserve this law enforcement relationship.
Extradition is an essential part of the relationship. Since
1991 alone, Hong Kong has extradited over 60 fugitives to the
United States and we have sent seven to Hong Kong.
In the Hong Kong Policy Act, the Congress in fact already
authorized and approved the continuance in force of our
extradition relationship. Section 201(b) of the Hong Kong
Policy Act provided that we could continue, in effect, treaties
that currently applied to Hong Kong, such as the U.S.-U.K.
Extradition Treaty with Hong Kong, after reversion.
Unfortunately, it was the uniform view of the United Kingdom,
the Hong Kong Government, and the People's Republic of China
that it was not appropriate to continue a treaty we had with
the United Kingdom as applied to Hong Kong; and the preference
was to negotiate a new treaty, as they have done with a number
of other countries, such as Netherlands, Canada, Australia,
Malaysia, and the Philippines.
We do understand that it will be possible to continue our
relationship with Hong Kong in very much its current form
because of two features of the arrangements for the future of
Hong Kong. As you know, the status of Hong Kong after reversion
is spelled out in two important documents, the 1984 Joint
Declaration between the People's Republic of China and the
United Kingdom on the question of Hong Kong. This is an
international agreement, registered with the U.N. second, the
1990 Basic Law, which was promulgated by the People's Republic
of China as internal law for the imitation of the Joint
Declaration.
These provide fundamentally for continuity in the legal
system and autonomy for the criminal justice system in Hong
Kong. This is the central feature of maintaining a separate and
independent extradition law enforcement relationship with Hong
Kong, apart from that with the People's Republic of China.
There are numerous provisions, and I will not go into them
all, in the Joint Declaration and Basic Law, which speak to the
separateness of the criminal justice system. Basically, there
is a separate executive authority, separate courts, separate
prisons, separate prosecution. There are special guarantees and
express guarantees of due process rights, and continuation of
the general common law legal system, and certain features which
are unusual, such as the trial by jury. There is an express
guarantee of independence in the prosecution of cases.
As it appears from these documents, and as we have been
assured by the Secretary of Security and the Solicitor General
and others in Hong Kong, there is simply no machinery for
intervention by the Central People's Government in Hong Kong in
the criminal justice system. While you cannot rule out the
possibility of influence, the Hong Kong Government officials
remain responsible for their own criminal justice system and
for the fulfillment of the obligations under the extradition
agreement.
This is not to say, of course, that there are no risks
associated with reversion. Consistent with the Hong Kong Policy
Act, however, we seek to maintain those agreements and ties
which are consistent with the autonomy which Hong Kong will
enjoy under the Joint Declaration and Basic Law.
We have been over these arrangements very carefully with
the Government of Hong Kong to see that this will be an arm's
length relationship between their criminal justice system and
the criminal justice system of the People's Republic of China.
There will be some changes undoubtedly. There will be some
turnover of personnel. I think generally, however, people have
been very pleased with some of the new appointments. The new
Chief Justice of the Court of Final Appeals, for example, who
was recently announced, the new Secretary of Justice, and
others, who will be continuing in place, such as the Secretary
of Security.
There will be a new Court of Final Appeal to replace the
Privy Council of the House of Lords, which obviously becomes an
inappropriate mechanism. This will, however, be a Hong Kong
institution, which is separate and independent.
Most troubling perhaps, and the one clear point of contact
is that there is a degree of ultimate authority in the Standing
Committee of the National People's Congress to interpret the
Basic Law. This is not a blank check. It is a procedure which
is expected fairly rarely. It operates only after the Hong Kong
courts have had a full and independent review of a case. It has
certain safeguards as to the restricted scope and the
procedures by which it can be invoked. Most fundamentally, it
does not bear affirmatively on a criminal trial.
It is easy to see that the People's Republic of China might
be able to prevent, for example, a central government official
from being tried in Hong Kong, but the same ability to
interfere affirmatively with a trial does not exist. We have
been assured by the Solicitor General of Hong Kong that this
mechanism cannot negate the fundamental fair trial guarantees
which are clearly set forth in the Basic Law. As I say, this is
the one point of contact in an otherwise completely independent
system.
Moreover, as Mr. Richard has testified, to the extent there
are risks, the extradition agreement also contains tools to
address these risks. Before we would extradite someone, we
would be able to assess the nature of the charge, the reasons
for which it is brought, the possibility that there is a
political aspect, and the overall state of due process in the
Hong Kong legal system.
We are not obliged to extradite for political offenses or
where there is a political motivation for the offense. We are
not obliged to extradite our nationals where we feel that there
is an official public interest or policy at stake for any
reason which we choose.
There are other factors as well. I will not go into all of
them, but the basic conclusion is that this agreement is
designed to take account of the future situation in Hong Kong,
the potential for good, and the risks for problems. We believe
that this will provide a sound basis to continue our important
extradition relation and to support also the institutions and
people of Hong Kong in the future.
Thank you, Mr. Chairman.
[The prepared statement and information submitted by Ms.
Borek follows:]
Prepared Statement of Jamison S. Borek
Mr. Chairman and members of the Committee: I am pleased to appear
before you today to testify in support of a new extradition treaty
between the United States and Hong Kong. The Department of State
greatly appreciates this opportunity to move toward ratification of
this important treaty. Combating international crime is a major focus
of United States foreign policy. President Clinton has repeatedly
highlighted the threat posed to our national security and the need for
international cooperation in fighting transborder criminal activity,
especially violent crime, terrorism, drug trafficking, alien smuggling
and the laundering of proceeds of organized crime.
Hong Kong is one of our most valuable allies in this fight against
international crime, and law enforcement is an important and vital
element of our bilateral relationship. The ability to pursue fugitives
who flee to Hong Kong and extradite them to the United States for trial
is an essential part of that relationship. Since 1991 alone, Hong Kong
has extradited over 60 fugitives to the United States and we have sent
seven to Hong Kong under the 1972 treaty between the United States and
the United Kingdom and the 1985 Supplementary Treaty, both made
applicable to the Crown Colony of Hong Kong. This treaty, however, will
cease to be effective for Hong Kong as of July 1, 1997, when Hong Kong
reverts to the sovereignty of the People's Republic of China. Because
of the importance of our law enforcement relationship with Hong Kong,
we have anticipated this change and have negotiated the new treaty that
you have before you. To complete the picture, we have also negotiated
new treaties in the areas of mutual legal assistance and prisoner
transfer which have recently been submitted to you as well for advice
and consent.
This new treaty, the Agreement Between the Government of the United
States of America and the Government of Hong Kong for the Surrender of
Fugitive Offenders (``the Treaty'') will, when ratified, provide the
basis under U.S. law for extraditions from the United States and for
requesting extraditions from Hong Kong. The Treaty is entered into with
the sovereign assent and authorization of both the United Kingdom and
the People's Republic of China (``PRC''). The Treaty itself expressly
provides that Hong Kong enters into it 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
specifically authorized the negotiation and conclusion of the Treaty,
as well as its continuation in force after the reversion on July 1,
1997.
To date Hong Kong has followed this same process to negotiate and
sign agreements for surrender of fugitive offenders with six countries
in addition to the United States: the Netherlands, Canada, Australia,
Malaysia, Philippines, and Indonesia. With your permission, I would
also provide the committee with a diplomatic note for the record from
the Government of the United Kingdom explaining in some detail the
process established for authorizing and approving these new agreements
and the role of the Joint Liaison Group.
After July 1, Hong Kong will continue to operate autonomously in
the field of law enforcement. The status of Hong Kong after reversion
is spelled out in two important documents. First, the 1984 Sino-British
Joint Declaration on the Quest Lon of Hong Kong, which is an
international agreement registered with the United Nations, provides
for the transition of sovereignty from the United Kingdom to China. In
so doing it embodies the concept of ``one country, two systems'' for
Hong Kong, under which Hong Kong will retain a high degree of autonomy
in all matters except foreign affairs and defense. In addition, the
1990 Basic Law promulgated by the People's Republic of China provides
the fundamental governing framework for implementing the principles of
the Joint Declaration in the future Hong Kong Special Administrative
Region.
Together these instruments explicitly provide for the continuation
of the capitalist system and way of life unchanged in the HKSAR for 50
years; for continuity of the legal system and laws; for an independent
judiciary and for independent prosecution. They also provide for the
continued applicability of the International Covenant on Civil and
Political Rights to the HKSAR and provide other specific protections
for individual rights and basic freedoms. The Basic Law expressly
prohibits interference by the PRC in affairs administered by the HKSAR.
In sum, they provide that law enforcement and criminal justice,
including police force, prosecution, trial and imprisonment will be a
matter administered independently by the HKSAR by Hong Kong courts
under Hong Kong law.
The continued ability to extradite and to request extradition is an
essential element in preserving our important law enforcement
relationship with Hong Kong. It will avoid the possibility that Hong
Kong could become a refuge for fugitives escaping justice from the
United States. At the same time, it will allow us to return fugitives
wanted in Hong Kong. Apart from law enforcement considerations,
ratification of this Treaty would also be an important step in putting
US-Hong Kong relations on a stable footing for the post-1997 period,
and would support the goals of the US-Hong Kong Policy Act in
continuing separate legal arrangements between the United States and
Hong Kong after reversion.
The Treaty will not require implementing legislation in the United
States. For its part, Hong Kong enacted the Fugitive Offenders
Ordinance on April 25, 1997, providing the general statutory basis for
Hong Kong to implement its agreements in this area. Subsidiary
legislation required by the Ordinance to bring the Treaty within the
general framework is pending and we are advised that it will be brought
into force on the day the Treaty enters into force.
Overall, the Treaty provides significant advantages to the United
States, particularly when compared to the absence of any agreement on
these issues. Most of the Treaty's provisions are those found in other
recently negotiated bilateral extradition treaties. This treaty
incorporates the revised and modernized features contained the treaties
presented to you last year. First, it define extraditable offenses to
include conduct which is punishable by imprisonment or deprivation of
liberty for a period of one year or more in both states (the so-called
``dual criminality'' approach). Although there is an extensive list of
specific offenses for which the parties agree to extradite fugitives,
the last item in the list is a blanket reference to all other offenses
that are punishable under the laws of both parties by more than one
year imprisonment. Of particular importance in our extradition
relationship with Hong Kong is the fact that this provision will for
the first time make crimes such as alien smuggling, intellectual
property violations and customs offenses extraditable. More generally,
the dual criminality approach obviates the need to renegotiate treaties
to cover new offenses should both states pass laws to address new types
of criminal activity. Second, this treaty provides that attempts and
conspiracies to commit extraditable offenses are themselves
extraditable offenses. This ensures that certain drug-related offenses
and offenses under our continuing criminal enterprise and racketeer
influence and corrupt organization statutes are covered by the
treaties.
Third, it provides for the extradition of nationals by both
Parties. This provision is specially adapted to the circumstances of
Hong Kong, but also provides for the fact that the great majority of
our extradition requests, according to past practice, will likely be
for Chinese nationals resident in Hong Kong.
Finally, it contains a provision which permits the temporary
surrender of a fugitive to the Requesting Party when that person is
facing prosecution for, or serving a sentence on, charges within the
Requested Party.
Certain other provisions have been included that are of particular
value given the special circumstances of Hong Kong, including
protections for fugitives after Hong Kong's reversion. Article 16, for
instance, provides the customary protections referred to as the ``rule
of specialty.'' This provides that an extradited fugitive cannot be
tried or punished nor transferred outside the jurisdiction of the
requesting Party for crimes committed prior to surrender unless the
sending Party consents or the person has had an opportunity to leave
the jurisdiction and has chosen not to do so or has left and
voluntarily returned. In the Treaty, the specialty provision has been
specifically adapted to take account of the precise situation of Hong
Kong, and thus prohibits the surrender or transfer of a fugitive
anywhere beyond the jurisdiction of the Special Administrative Region
of Hong Kong.
Furthermore, under Article 20, these protections are made expressly
applicable to persons who have been surrendered between the parties
prior to its entry into force. That is, the Treaty expressly extends
these protections to persons who have already been extradited under the
existing treaty. We believe that the specialty protection of the
current treaty would continue to apply to such persons even in the
absence of the new treaty. These provisions, however, make clear that
anyone we extradite to Hong Kong is fully protected from being tried
for other crimes or surrendered outside of Hong Kong to other parts of
the PRC or anywhere else for the same or prior crimes without the
express consent of the United States.
Article 3 of the Treaty provides that each Party shall normally
surrender its nationals, except in special circumstances. It grants the
executive authority of the United States the right to refuse surrender
of a U.S. national if the requested surrender relates to the defense,
foreign affairs or essential public interest or policy of the United
States. It reserves the same right to the executive authority of Hong
Kong. In addition, the executive authority of Hong Kong may refuse
surrender if the person neither has the right of abode in Hong Kong nor
has entered Hong Kong for the purpose of settlement. In that event,
however, the PRC must have jurisdiction over the offense and must have
commenced or completed proceedings for the prosecution of the person.
The Hong Kong Government believes that its discretion to deny
extradition on these grounds would rarely, if ever, be used. Similarly,
the United States does not anticipate the need to exercise this right,
but it would provide an important protection for our nationals if we
found it necessary in a particular case.
Further protections, applicable to both U.S. nationals and aliens,
include the discretion in Article 7 to refuse surrender of a fugitive
when the surrender is likely to entail exceptionally serious
consequences related to the fugitives age or health. In addition,
Article 6 provides that surrender shall be refused if it is determined
that (1) the request was politically motivated, (2) the primary purpose
of the request was to prosecute or punish a person for reasons of race,
religion, nationality or political opinion, or (3) the person sought is
likely to be denied a fair trial or be punished account of his race,
religion or national origin. Finally, if the death penalty were to be
re-enacted under Hong Kong law, Article 4 provides for conditioning
surrender on assurances that it will not be imposed or carried out if
surrender is sought for an offense punishable by death under Hong Kong
law but not under U.S. law.
Taken together these provisions of the treaty give us a solid
framework for maintaining the important law enforcement relationship
with Hong Kong while also establishing the necessary protections for
individuals whose extradition might be requested.
Thank you, Mr. Chairman, for this opportunity to testify before you
today. I will be happy to answer any further questions that the
Committee may have.
__________
Note No: 12/97
Her Britannic Majesty's Embassy present their compliments to the
United States Department of State and have the honour to inform the
United States Department of State of the arrangements agreed between
the Government of the United Kingdom of Great Britain and Northern
Ireland and the Government of the People's Republic of China relating
to the application to Hong Kong after 30 June 1997 of bilateral
agreements and, in particular, to extradition arrangements between the
United States and the Hong Kong Special Administrative Region of the
PRC (HKSAR).
The Status of the Sino-British Joint Declaration on the Question of
Hong Kong
The Sino-British Joint Declaration on the Question of Hong Kong,
signed on 19 December 1984, is an international treaty, registered at
the United Nations, under which the United Kingdom undertakes to
restore sovereignty over Hong Kong to China with effect from 1 July
1997 and the Chinese Government sets out the basic policies that it
undertakes to implement regarding Hong Kong, including that the HKSAR
shall have a high degree of autonomy except in the fields of foreign
affairs and defence. The HKSAR will be vested with executive,
legislative and independent judicial power, including that of final
adjudication. It will retain the status of a free port and a separate
customs territory as well as an international financial centre, and it
will have independent finances. The HKSAR may on its own maintain and
develop economic and cultural relations and conclude relevant
agreements with states, regions and relevant international
organisations. The HKSAR Government may on its own issue travel
documents for entry into an exit from Hong Kong. Annex I to the Joint
Declaration elaborates these basic policies. The Joint Declaration and
its Annexes are equally binding.
The Authority of the Sino-British Joint Liaison Group
The British and Chinese Governments agreed in the Joint Declaration
to establish a Joint Liaison Group to discuss the effective
implementation of the Joint Declaration as well as matters relating to
the smooth transfer of government at midnight; on 30 June 1997. In
accordance with Annex II to the Joint Declaration, the Joint Liaison
Group consists of a Senior Representative of Ambassadorial rank and
four members from each side, with support staff and experts as needed.
General principles relating to the continued application of existing
bilateral agreements to HKSAR
During the Joint Declaration negotiations, Britain and China agreed
that, in line with the high degree of autonomy to be enjoyed by the
HKSAR in the areas described in para 3 above, the HKSAR could have its
own network of agreements with third countries, separate from China, in
these areas. The Joint Declaration provides that:
``International agreements to which the People's Republic of
China is not a party but which are implemented in Hong Kong may
remain implemented in the HKSAR.'' (sentence 138)
But Section 1(1) of the Hong Kong Act 1985 provides that:
``As from 1st July 1997 Her Majesty shall no longer have
sovereignty or jurisdiction over any part of Hong Kong.''
One consequence of the provision for the transfer of sovereignty
was uncertainty as to the continued application to Hong Kong after the
handover of existing bilateral agreements between the UK and third
countries at present extended to Hong Kong.
Accordingly, the British and Chinese Governments had to consider
how to ensure that Hong Kong has in place before 1 July 1997 a network
of Hong Kong/third country bilateral agreements, replacing the UK/third
country agreements extended to Hong Kong, capable of remaining in
effect as provided for by JD 138.
The process the two governments agreed in the Joint Liaison Group
enables the Hong Kong Government to negotiate the agreements it needs
and allows these agreements to continue in effect after the handover
without any further action or checking by China, since the entire
process will have been scrutinised and agreed by the Chinese Government
through the Joint Liaison Group.
The basic steps in the process carried out through exchanges in the
Joint Liaison Group are:
--a Model Agreement, eg a model Surrender of Fugitive Offenders
Agreement, is negotiated and agreed;
--on behalf of the Hong Kong Government, the British Government asks
the Chinese Government to approve a list of negotiating
partners;
--once the Chinese Government approves the proposed partners, the
British Foreign Secretary signs a formal entrustment
authorising the Hong Kong Government to negotiate on its own
behalf with those partners on the basis of the Model Agreement;
--once the Hong Kong Government and an approved partner reach
agreement, they initial the text. The British Government pass
the initialled text to the Chinese Government through the Joint
Liaison Group for approval.
The Chinese Government may seek clarification if the initialled
text departs significantly from the Model Agreement. Further
negotiations between the Hong Kong Government and the approved
partner may be necessary. Once the Chinese Government has
approved the initialled text, the Hong Kong Government and the
approved partner can sign the agreement.
An agreement so concluded and brought into force before the
handover will remain in effect after the handover, notwithstanding that
China may itself separately have concluded a bilateral agreement in the
same area with the same approved partner.
The process described above is already well underway to ensure that
existing UK/third country bilateral agreements which have been extended
to Hong Kong are, where appropriate, replaced before 1 July 1997 by a
Hong Kong/third country bilateral agreement capable of continuing in
effect in the HKSAR.
The HK/US Agreement for the Surrender of Fugitive Offenders
In line with the process described above, the Joint Liaison Group
has agreed a Model Surrender of Fugitive Offenders Agreement and the
Chinese Government has approved a number of negotiating partners,
including the United States, with which the Hong Kong Government has,
under entrustment by the British Foreign Secretary, concluded new
agreements for the surrender of fugitive offenders to replace the
existing agreements extended to Hong Kong by the United Kingdom, and to
continue in force after the handover.
In the case of the HK/US Surrender of Fugitive Offenders agreement,
the Chinese Government approved the text of the agreement during the
thirty-seventh plenary meeting of the Joint Liaison Group, held in
Peking from 17 to 19 September 1996.
A copy of the Joint Communique issued after that meeting is at
Annex A. A copy of the press statement released by the British Senior
Representative to the Joint Liaison Group in conjunction with the Joint
Communique, recording at paragraph 7 the approval of the Chinese
Government to the initialled agreement, is at Annex B. The HK/US
Agreement for the Surrender of Fugitive Offenders was duly signed in
Hong Kong on 20 December 1996 the United States Consul-General in Hong
Kong and the Hong Kong Secretary for Security. The British Senior
Representative to the Joint Liaison Group and a Chinese Representative
to the Joint Liaison Group were present at the signing ceremony.
Her Britannic Majesty's Embassy wishes to draw to the attention of
the United States Department of State a statement issued by the Chinese
Ministry of Foreign Affairs spokesman on 21 January, at Annex C. The
British Government endorses the Chinese Government's statement that the
Hong Kong-US Surrender of Fugitive Offenders Agreement shall remain
valid after 30 June 1997.
For Hong Kong's part, it will be necessary to enact legislation to
enable this Agreement, and others like it, to be implemented in Hong
Kong. Accordingly, a Fugitive Offenders Bill, which has been agreed by
the Chinese Government through the Joint Liaison Group, has already
been introduced into the Hong Kong Legislative Council. We are
confident that this legislation will be enacted before 30 June.
Her Britannic Majesty's Embassy avail themselves of this
opportunity to renew to the United States Department of State the
assurances of their highest considerations.
British Embassy,
Washington, DC,
24 January 1997.
__________
Annex A
Joint Communique issued after the 17-18 September 1996 meeting of the
Joint Liaison Group
1. The Joint Liaison Group held its thirty-seventh meeting in
Peking from 17 to 19 September 1996.
2. The Group had a discussion about the Transfer of Government,
including the transitional Budget and related matters, transfer of
Archives, Government assets, the Handover Ceremony etc; matters
relating to Hong Kong's international rights and obligations; Hong
Kong's Air Services Agreements; Civil Service matters; the Defence of
Hong Kong and Public Order; franchises and contacts extending beyond
1997 and related matters (including the Railway Development strategy
and Container Terminals); Investment Promotion and Protection
Agreements between Hong Kong and relevant countries; Surrender of
Fugitive Offenders Agreements between Hong Kong and certain countries;
the Reciprocal Recognition and Enforcement of Judgements in civil and
commercial matters between Hong Kong and foreign countries;
Localisation of Laws, Adaptation of Laws; the Court of Final Appeal;
the implementation of the provisions of the Joint Declaration relating
to the Right of Abode in Hong Kong after 1997; Visa Abolition
Agreements; and Vietnamese Migrants in Hong Kong (boat people and
refugees).
3. The next meeting of the Joint Liaison Group will take place in
Hong Kong at a time to be decided.
__________
Annex B
Press statement released by the British Senior Representative to the
Joint Liaison Group after the 17-19 September 1996 meeting of the Joint
Liaison Group
1. I hope that you have all received copies of the press
communique, which lists the subjects we discussed at this week's
meeting. Before taking your questions, I would like to expand a bit on
what is in the communique and give you a few personal impressions of
how the meeting went.
2. There are now less than 300 days to go before the handover, and
both sides are acutely aware of the need to accelerate the pace of our
work if we are to complete our agenda by 30 June 1997. This will be a
key theme of Mr. Rifkind's meeting with Vice Premier Qlan in New York.
Since JLG XXXVI, we have held a record number of expert meetings--22 in
all--and a further three expert meetings have taken place in the
margins of this Plenary. Those meetings have produced good results, and
we have thus been able to gather a very respectable harvest of
agreements this week.
3. First, and perhaps most important, we have reached agreement on
CT9. Ambassador Zhao and I signed an Agreed Minute earlier today, which
makes it possible for the project to proceed without further delay. The
HKG will now be submitting the matter to their Land Commission for
approval of the Land Grant. This is excellent news for Hong Kong, not
only because of the economic benefits that will flow from this
agreement, but also because of the positive signal it sends to the
international investment community. The HKG's objectives to enlarge the
capacity of the container port and to introduce more competition among
operators have been achieved. Everyone regrets the long delay in
achieving the result, but the important point is that the deal is now
agreed.
4. We also signed an Agreed Minute on the Galaxy Satellite TV
Licence--another franchise straddling 1997. That was very welcome, as
it means there are now no long-outstanding contracts or franchises on
the JLG agenda: (you will recall that the PCS issue licenses for the
next generation of mobile phones) was successfully resolved last July.
5. The second area where we made good progress was air services. We
reached agreement on 2 ASAs--with Thiland and Burma (Myanmar). We also
reached agreement on Hong Kong negotiating its own overflight
agreements with various countries. Those are of vital importance to
Hong Kong's civil aviation interest and we expect negotiations to begin
in the near future. We still have a substantial backlog of work on air
services, and little time in which to complete it.
6. Further progress was made on the localisation of laws programme.
Agreement was reached on the introduction in Hong Kong of Bills first
relating to the Surrender of Fugitive Offenders and second relating to
Civil Aviation, Carriage by air, replacing UK legislation on
compensation for people who sustain injury or loss while using
international air services.
7. We also approved for signature an important new agreement with
the USA on the Surrender of Fugitive Offenders. Arrangements can (copy
unreadable) for the Hong Kong Government to sign the agreement with
(copy unreadable).
8. It was also agreed that Hong Kong could continue to participate
in the International Civil Aviation Organisation. Our agreement ensures
that Hong Kong will continue to be able to play a full role in the
business of ICAO and derive the full benefits if ICAO membership.
9. We also confirmed agreement at this meeting on the continued
application to Hong Kong of a large number of multilateral agreements--
58 in all: a record number. These include 46 International Labour
Conventions and 12 Conventions relating to amongst other things, the
rights of women, and the elimination of racial discrimination. We also
continued to make progress on the mechanism for the continued
application of international rights and obligations to the Hong Kong
SAR.
10. We also made important progress on travel documents such as
Documents of Identity, Hong Kong Re-entry Permits, and Seamens'
Identity Books. The Chinese side confirmed that such travel documents
in use before 1 July 1997 would continue to be issued until such time
as new SAR documents were available. We have welcomed this sensible and
pragmatic solution. Details will be worked out later between experts.
11. In sum, this was a good JLG. We are not making serious
progress. But we remain very conscious of the need to resolve many
important issues including those relating to continuity of law in Hong
Kong. Progress on adaptation of laws is not as fast as I would like,
although experts agreed to meet again in early October. And the Chinese
side have yet to live up to their undertaking, given at JLG XXXVI, to
discuss with us the Garrison Law. Further discussions will also be
needed on important immigration issues including Right or Abode and
Visa Abolition Agreements, although good progress was made on those
subjects at export level this week.
12. During this JLG we also had a vigorous series of exchanges on
the Provisional legislature. I made the British side's view very plain.
We believe firmly that it is unjustified, unnecessary, and a serious
disruption at a time when the great majority of people in Hong Kong
want continuity and a smooth transition. I cannot claim that there was
any meeting of minds on this matter. Finally, Ambassador Ahao and I
have continued our discussions about the Handover Ceremony, but there
is still more work to be done. We intend to press on hard with our
exchanges in order to deliver a result in time for the Foreign
Ministers' meeting in New York next week.
__________
Annex C
CHINESE SPOKESMAN SAYS INDEPENDENCE OF JUDICIAL SYSTEM NOT AN ISSUE
Text of Report by Xinhua News Agency
Beijing, 21st January: It is groundless to question the independent
nature of the judicial system of the future Hong Kong Special
Administrative Region (HKSAR), Chinese Foreign Ministry spokesman Shen
Guofang stated at a regular press conference in Beijing today [21st
January].
Some correspondents asked: Recently, when a US district court was
trying a case involving the extradition to Hong Kong of a Hong Kong
resident named Jerry Lui Hin-kong, the independent nature of the
judicial system of the future Hong Kong Special Administrative Region
was called in question by some people. How would you comment on this?
Shen answered: The Chinese government will resume the exercise of
sovereignty over Hong Kong and establish the Hong Kong Special
Administrative Region [HKSAR] on 1st July 1997. The Sino-British Joint
Declaration and the Basic Law of the HKSAR stipulate that the laws
currently in force in Hong Kong will remain basically unchanged; the
laws previously enforced in Hong Kong, that is, the common law, rules
of equity, ordinances, subordinate legislation and customary law shall
be maintained, except for any that contravene the Basic Law, and
subject to any amendment by the legislature of the HKSAR. The HKSAR
shall be vested with independent judicial power, including that of
final adjudication, and the courts of the HKSAR shall independently
adjudicate cases in accordance with the laws applicable in the region,
free from any interference.
He continued: The agreement between Hong Kong and the United States
on the surrender of fugitive offenders which had been approved through
discussions by the Sino-British Joint Liaison Group and was recently
signed shall remain valid after 1st July 1997.
He said: In view of the foregoing, it is groundless to question the
independent nature of the judicial system of the future Hong Kong
Special Administrative Region.
Source: Xinhua news agency, Beijing, in English 1007 GMT 21 Jan 97
Senator Thomas. Thank you very much.
The concern will likely be the involvement of the PRC. What
is the difference between this treaty, Mr. Richard, and the one
that was in place, basically, with Great Britain?
Mr. Richard. Well, of course, this treaty provides a
broader scope of offenses that are covered by the agreement.
Significantly, it has greater discretion with respect to the
ultimate decision to extradite. It contains express provisions
regarding political motivation and political offenses. It has
limitations on extradition. It provides a humanitarian basis
for denying extradition, which is not contained, to my
recollection, in the U.K. treaty.
The agreement with the U.K. does not provide assurances
against transfers beyond the jurisdiction. The rule of
specialty, I do not believe, is as well articulated in the
existing agreement as it is in the current proposed extradition
treaty. Finally, the political offense exception contained in
this agreement is far more narrow than the U.K. treaty
provides. The U.K. treaty provides that a political offense
exception should not, in effect, be available involving any
crime of violence.
This agreement with Hong Kong is much more narrow in its
scope, and just provides a political offense exception to
extradition will only be available, if you will, for
multilateral conventions that we are both parties to, as well
as attacks on the head of state and close family members.
So there is a lot of differences in form between the
existing treaty and the new agreement. Many of them are
designed to ensure that we have maximum flexibility in the
administration of the agreement and a broader scope of coverage
than exists in the current agreement.
Senator Thomas. Who negotiated the agreement?
Mr. Richard. The current agreement? A joint team between
the State Department and the Department of Justice, along
with----
Senator Thomas. With whom? With whom did you negotiate?
Mr. Richard. With the Hong Kong authorities, after
receiving the appropriate endorsement for the beginning, or
commencement, of extradition arrangements with the coordinating
committee of the British, and the PRC.
Senator Thomas. So this is unique, then? This is not a
sovereign that you are dealing with, so there is approval,
then, from the PRC for this treaty?
Mr. Richard. That is correct.
Senator Thomas. And is that why it is different from the
previous one?
Mr. Richard. Well, certainly that is a major difference.
This is a unique situation. I am not familiar that we have any
similar or analogous arrangement with any other subgovernmental
component. I may be mistaken on that point. But it is unique
and fashioned to accommodate the uniqueness of the situation. I
think, as I indicated, it satisfies both our law enforcement
needs and our need to ensure that we have maximum flexibility
in its administration.
Senator Thomas. Would you anticipate, Ms. Borek, any change
or that there be any difference after the changeover? Do you
think that there will be -- I presume that is one reason we are
seeking to do it now, before the changeover, is that correct?
Ms. Borek. Well, primarily, we would like to have it in
force, to continue our extradition relationship. There is a 30-
day entry into force provision. So there is already going to be
a bit of a gap. That interrupts the extradition relationship.
That was the primary reason for trying to do it before the
changeover. I do not think there should be any significant
change as of July 1.
As I say, there are some personnel changes, but they do not
seem to be -- by and large, they seem to be encouraging. As Mr.
Richard said, we do have the specific approval of the final
agreement, specific authorization for its continuation in force
by the PRC, as well as the U.K. so that is, I think, clearly
established on all sides.
Senator Thomas. I think you indicated in your statement
that it prohibits interference under the Basic Law. Or on the
other hand, is it not true that the PRC does retain control
over foreign affairs, and that interpretation will be theirs as
to whether or not the foreign affairs are the issue? Is that
not true?
Ms. Borek. Well, there is this one point of contact only I
think in the criminal justice system. There is no mechanism or
means by which they can interfere directly in the prosecution
of cases and the actual actions of the executive branch simply
by saying it is a foreign affairs matter. They have retained a
certain ability in the extradition agreement, and this was
something we negotiated and it was a fairly narrow exception,
to refuse to extradite someone who was a Chinese national for
foreign affairs reasons.
They have also retained some flexibility -- basically a
priority -- for Chinese nationals who are not Hong Kong
residents, where there is a Chinese interest in prosecution.
But the points of contact, I think, are specific. It is not
like a wholesale ability to go in and just say, well, today I
am going to do this because it is a foreign affairs thing.
While they have authority over foreign affairs, there are
particular mechanisms by which they are to exercise that
authority. In the case of prosecution, there is no mechanism.
In the case of the courts, there is this reserved authority for
the National People's Congress Standing Committee, which I
mentioned before.
Senator Thomas. This is not a matter of prosecution; it is
a matter of extradition, is it not?
Ms. Borek. But I guess what I am thinking is what we are
concerned about is that when we do extradite someone, that it
be a fair prosecution and a fair trial.
Senator Thomas. I see. You indicated, I think also in your
statement, that the majority of our extradition requests have
been for Chinese nationals who are residents in Hong Kong.
Ms. Borek. Yes.
Senator Thomas. Would you not expect there to be some sort
of resistance to that sort of extradition, maybe based on
foreign policy or foreign affairs?
Ms. Borek. Not as a general principle. The agreement
establishes the presumption that there would be extradition of
nationals. This is something that was clearly articulated and
understood by everyone in the negotiation process. Also I might
say that, in the areas which we are talking about -- for
example, drugs -- the People's Republic of China does have an
interest also in seeing that people are prosecuted. At the
higher levels, they have a very aggressive policy against drugs
independently, even though we do not have a very much
cooperative effort in that regard.
Senator Thomas. What if you, Mr. Richard, did not have
cooperation on the extradition, and let us say it is claimed
foreign involvement, what would you do about it? What is the
relief valve for the United States?
Mr. Richard. Well, that would be a very significant event
if we did not have an extradition relationship, given the
significant role that Hong Kong currently plays.
Senator Thomas. Excuse me a second. Can you hear in the
back of the room?
Mr. Richard. I am sorry.
Senator Thomas. Pull that up a little closer, if you will,
sir, please.
Mr. Richard. Given the nature of the law enforcement
problem that we have been confronting in Hong Kong for quite a
while, with respect to money laundering and other related
offenses, the failure to have a viable extradition relationship
would be a very significant blow to our law enforcement
interests. It would, in effect, establish Hong Kong as a major
safe haven, if you will, for criminal activity.
Senator Thomas. I understand that. I think my question is,
if you ask for extradition, but for some reason or other, you
think it should be done under the treaty, but the PRC steps in
and refuses it, what do you do about it? We just had a hearing
last week, for instance, on I think prison work or something.
In 4 years, we were never given the chance to do anything about
it. So I guess a lot of people will be a little concerned that
we are going into a treaty, but is it enforceable? What do you
do?
Mr. Richard. Well, the treaty uniquely provides that a
denial should be accompanied by an explanation of why it was
denied. If we see that the agreement is of course being
perverted, if you will, in its application, we would then have
to assess it.
We would determine or attempt to determine where that is
coming from, and whether it is unique to the nature of the
persons we are seeking or the nature of the crimes we are
looking at and then, hopefully, in conjunction with our State
Department colleagues, devise an effective response. This,
though, is no different than other extradition relationship we
have around the world.
Senator Thomas. It is different in that you are not dealing
with a sovereign here, is it not?
Mr. Richard. Well, it is in the sense that, yes, our
initial contact points are with the Hong Kong authorities. But
in the sense that we have a treaty partner who is not
implementing the agreement in good faith, it presents us with
the same types of challenges -- how do we bring the appropriate
pressure and in what arena and in what multiple arenas? And
that is not going to be unique to this particular situation.
Senator Thomas. I see.
We have been joined by two other Senators.
Senator Robb, do you have a comment, sir, and questions?
Senator Robb. Thank you, Mr. Chairman. I apologize. I had
two other meetings and I was unable to be here for the opening
testimony, but I have been visited over the last couple of
years by individuals who were concerned about the prospects
that are addressed in this particular hearing. One in
particular, I just might ask you, because of his prior
relationship to the State Department and what have you, Judge
Abe Sofaer, had expressed real concern about the extradition
treaty as it appeared to be developing at that time.
Now, I do not know whether you covered this in your opening
statements, and if you have, you need not go into any great
detail, but I would be interested in terms of the objections
that he raised generally.
First of all, have either of you had an opportunity to
discuss those concerns that he raised with him, particularly
with respect to extradition, where there might be political
motivation involved or extra territorial allegations of extra
territorial conduct that might or might not fall under the
treaty?
Ms. Borek. He has not raised with the State Department, at
least to my knowledge, specific concerns about the extradition
treaty. I do not know at what stage he would have been talking
about it. At present, there is a protection against having to
extradite when there is a politically motivated prosecution.
That is one of the somewhat unusual features.
Senator Robb. But who makes the determination? I guess that
is the question.
Ms. Borek. The Secretary of State.
Senator Robb. And that is not subject to interpretation or
review?
Ms. Borek. No, it is in the category of considerations to
which the Secretary usually looks at.
Also on the extra territoriality, I do not think we expect
that to be a problem. That is something which we would be
having a relationship in those areas in which Hong Kong and the
United States both approach the question in the same way as far
as extra territorial crimes. Obviously, when you are dealing
with international organized crime and money laundering and
drugs, you do have activities which take place in those two
countries.
Senator Robb. Specifically, and I apologize, it has been
some period of time since I discussed this and I have just been
involved in other matters this morning, but have either of you
or your respective Departments of State or Justice had occasion
to deal with the concerns that were raised at the time?
I state it in this manner only because it seemed to me that
this was the kind of thing that there ought to have been some
consultation, if indeed there were legitimate concerns that
might have been addressed in that way. My question has to do
with whether or not there has been consultation between the
Department of State and/or the Department of Justice with him,
or if you have had any communications one way or another?
Mr. Richard. I cannot answer that question at the moment. I
assume there was plenty of opportunities, if you will, between
the prosecutors that handled the case and the defense counsel
for this issue to come up. But I do not know specifically if
that did. I would be glad to find out and let you know.
Senator Robb. I would not normally state it in terms of a
specific individual, but I remember there were concerns that,
at least as they were presented, seemed to me were worthy of
consideration. I did not know whether those had been resolved.
One last question, if I may. What kind of signal would this
send to both the Hong Kong and the PRC and other nations if the
Senate did not ratify in this particular instance?
Mr. Richard. Well, I mean, from a law enforcement point of
view, it would be a very significant step. It would certainly
undercut our ability to try to maintain, if not improve upon,
our current law enforcement arrangements. It would certainly
weaken our ability to respond to international organized crime
and narcotics, and it would be a very significant blow, not
just to our relationship with Hong Kong or the PRC, but also to
our attempt to mobilize the international community, as a
community, to address these problems.
It requires a matrix of agreements and arrangements around
the world. For us not to have a viable relationship with the
Hong Kong authorities would be a very significant message and a
significant blow to our effectiveness.
Ms. Borek. Let me add that I think I can say that, with
regard to the specific case that Mr. Sofaer was concerned
about, this treaty speaks very directly to helping that case.
Because the particular concern there was that someone might be
resurrendered to the PRC. This treaty contains express,
specific safeguards that no one who is extradited either under
it or prior, even now, would be resurrendered for other crimes
as this individual was concerned about. We think that is, in
any case, the rule. But the treaty would be of assistance in
that it makes that rule very clear.
The reaction in Hong Kong demonstrates that they are very
much concerned to have an extradition relationship and very
much distressed, I think, across the board -- people of all
different political opinions -- to think that we would take the
position now that they have no autonomy, that there is no point
in even pursuing the agreement because they are just puppets of
the PRC. I think that is a very negative and distressing signal
from the point of view of even in Hong Kong.
Senator Robb. A final question. Did either one of you
during the course of your testimony -- and I will rely on the
testimony that you have submitted and the record of this
hearing for any additional information, and if there are other
questions, I will submit them in writing -- but were there any
reservations that either of you expressed about the treaty at
this point, or are both Departments solidly behind
ratification?
Mr. Richard. I think, speaking for the Department, we are
very pleased with the agreement. But it would be foolish for
any of us not to be sensitive toward these concerns. I think we
all have concerns. But they are not unique in the sense that we
have concerns under other extradition treaties that require a
certain level of vigilance to ensure that the systems are in
fact affording extraditees due process and the like.
The system as currently established, and which has worked
very effectively over these years, is to provide the Secretary
of State the final judgment of whether or not to issue the
surrender warrant after a judicial finding of extraditability.
That has always been a safeguard, if you will, to address
problems across the board, regardless of the provisions in the
treaty. This treaty, though, goes further, because it
articulates in greater detail all of the variety of
considerations that can be taken into account in making a
decision of extraditability, and a decision to in fact issue
the surrender warrant.
So it is not a question of reservations, it is a question
of ensuring that we monitor the situation as we go along, in
consultation with the Congress, and evaluate if there are
emerging trends that give us concerns.
Senator Robb. Thank you.
Ms. Borek, would you like to add anything to that?
Ms. Borek. No, I think that is exactly right. This is a
good treaty for the situation. We will have to, obviously, pay
attention to the administration of the treaty.
Senator Robb. Thank you.
Thank you, Mr. Chairman.
Senator Thomas. Senator Kerry, glad to have you, sir.
Senator Kerry. Thank you, Mr. Chairman.
Thank you for proceeding forward in a timely manner on this
treaty, which is obviously important in the context of events
coming up at the end of the month.
Since 1991, I think 64 people have been extradited from
Hong Kong to the United States, 56 of whom were extradited for
drug-related offenses -- drug crimes, drug-related offenses --
whereas, in that same span of time, only seven people have been
extradited from the United States to Hong Kong. So there is
clearly a compelling need for the United States to continue to
have this relationship in place. Obviously, I guess there were
13 white collar crimes and 24 violent crimes, including murder
and rapes. So, on all levels, it has proven to be very
important to us.
The principal concern I guess most of us have is the sort
of escape hatches and their definitions, the Article 16
prohibition -- are you confident, both of you -- and this is
the principal concern I think I have -- that the insurance
represented in Article 16 is adequate?
Mr. Richard. Well, I think even without the provision,
under existing arrangements and domestic law, the Secretary of
State would always retain the option to deny extradition in
circumstances where she feels uncomfortable for whatever
reason. I think this goes a step further, because it
incorporates that concept in the context of the agreement
itself.
Senator Kerry. Well, it goes a little further than that,
does it not, Mark, in the sense that it -- you are not allowed
to transfer somebody from Hong Kong to Beijing without our
agreement?
Mr. Richard. Our consent, that is correct.
Senator Kerry. But that is after we have already agreed to
transfer him. We could transfer them to Hong Kong, and they
could subsequently make a decision to send them to Beijing?
Mr. Richard. Well, they would have to seek our concurrence.
Senator Kerry. Correct. I am asking you whether we are
feeling safe enough about the context of the treaty that that
request is going to be forthcoming, or that we have adequate
recourse in the event it were not?
Mr. Richard. I would have to say, under the circumstances,
this probably goes as far as one could imagine going to ensure
that we have maximum control and authority here. The difficulty
may be, and I cannot address it, is our ability to monitor, for
example, subsequent incarceration and location.
I would hope, and I cannot speak from special knowledge,
that there would be a sufficient continued nexus between our
consular in Hong Kong and these individuals, so that we are
monitoring them where they are incarcerated, and if there are
any other proceedings instituted against them. Obviously, if
there is any indication that we have a problem with that, we
would have to respond to it in a forceful, diplomatic fashion.
Senator Kerry. I would think it would have to be a
requisite that there be that kind of accountability or
tracking.
Mr. Richard. Sure.
Senator Kerry. It would be critical, obviously.
When you say respond to it, what would the treaty, per se,
allow us to do in response to it? I assume we would hold up on
any further extraditions.
Mr. Richard. Well, I would hope -- I mean it is not
explicitly contained there -- but I would hope that we would
have the ability to interview the individuals directly, to
gather information as to his or her treatment and to take
whatever action we think is appropriate in response to what we
perceive to be a violation. I assume that the primary response
would be in the diplomatic arena, to bring pressure for
compliance.
This is an agreement that, based on prior statistics, is
somewhat lopsided, in that we are getting more people back than
we are given. The fact that we are expanding the number of
offenses suggests that this disparity in usage will expand with
the years under this agreement, because we now have more
offenses that we are particularly interested in. So, if
anything, this disparity will continue and expand.
But with respect to these individuals that are extradited
from the U.S. there, we will have to establish regimes to
position ourselves so as to effectively monitor it. But I am
not sure, again, given the 90 or so extradition arrangements we
already have with countries, that we do not have the same
obligation, if you will, with respect to those individuals. We
should be always monitoring what happens. All of the treaties
we have preclude prosecution for offenses not covered by the
extradition request.
We have to ensure that wherever the treaty is, that that is
adhered to. It is a fundamental principle of extradition.
Especially in this circumstance, we would have to monitor it
even more closely, to ensure that we have full compliance.
Ms. Borek. May I add to that?
I think we do not really have to wait until there is a
problem. Right now, under Hong Kong law, in fact it is not
possible to transfer someone to the PRC. But they will be
expecting to develop arrangements. The arrangements they now
have make it clear, as a matter of domestic law, that they
cannot transfer someone to another jurisdiction without the
consent of the United States. So even leaving aside the treaty
obligation, even under Hong Kong law at present, there is no
way that they could violate that obligation.
We will, of course, be watching any developments in this
area that are relevant. If there seem to be a potential even
for something to occur which was not consistent with the
treaty, then I think we could intervene at that stage. Hong
Kong is not a big place, and I think we should be able to have
a very detailed idea of what is going on.
Mr. Richard. Let me, if I may, just add one thought. We had
specifically included in our statements the fact that this
extradition arrangement is analogous to other countries
arrangements with the PRC and Hong Kong. There are, at least at
this present time, I think five or six additional countries
that have similar agreements, and I suspect -- I mean these are
all of our allies -- I suspect that we will be in consultation
with them, to the extent that we detect problems emerging in
their extradition relationships.
We have a variety of additional options of working, even in
a concerted way, to ensure that there is full compliance. So,
it is a situation that is going to have take careful monitoring
in the years ahead. But I think the risks, while apparent, are
nevertheless, appropriate to be taken under the circumstances.
Senator Kerry. I assume, in your opening testimony, which I
apologize also for not being able to be here for, that you
commented on the general sort of importance of this. But could
you just underscore, in the context of the interests we have in
the region and of our crime fighting, how critical it is in
your judgment to have this or not have this and what it might
mean? Just underscore that.
Mr. Richard. Well, Hong Kong is unique in so many different
ways. It is a financial center, and is one that has
historically been a hub of money laundering. We enjoy an
extremely good relationship with the Hong Kong authorities
addressing this problem. We now have, under this agreement, an
expansion of the coverage in money laundering. So it is not
just money laundering predicated on narcotics offenses, but it
is money laundering predicated on any other extraditable
offense. So money laundering is a major problem in Hong Kong,
and one that this agreement is critical for. Otherwise, we are
creating a safe haven for offenders. But it is not just limited
to narcotics trafficking.
Because of its location, it has been a major source of
customs violations. It is a major source of white collar crime,
of actual narcotics trafficking, a whole litany of offenses,
including intellectual property offenses, all of which are
frequently centered out of Hong Kong because of the financial
nature of the Colony, the transportation ease and the location,
and the fact that it plays a critical part in regional law
enforcement events.
Our whole Asian organized crime strategy, in part, is
predicated on the availability of a good and viable law
enforcement relationship with Hong Kong authorities. Remove
that relationship, and I think we have significant impediments
to devising effective responses. So I see dire consequences to
U.S. interests, both law enforcement and interests across the
board, if we do not maintain a viable relationship with this
entity.
Senator Kerry. Thank you, sir. I appreciate your comments.
I just wanted the record to reflect that.
Thank you, Mr. Chairman.
Senator Thomas. Thank you very much.
This agreement gives the sovereign the right to refuse
extradition where the surrender would implicate defense,
foreign affairs, essential public interests of policy, or other
sovereignty. How do you interpret this provision, Ms. Borek?
Ms. Borek. Well, this is up to each party to interpret for
themselves. We are assured -- we were assured, in the course of
negotiations by the Hong Kong Government and also after
consultations with the PRC, that this would not be an everyday
exception, that this would be something they expected to
invoke, if at all, very, very rarely. I think the same is true
for us.
In our case, I think if we had a concern about -- if for
some reason we did have a concern that there was a request for
extradition that just presented sort of an insurmountable
temptation for someone to do something untoward, that might --
I would consider that an essential public interest on our part.
On the part of China, I expect that this would operate if
we sought the extradition of someone who was in fact an
official or for something which the central government had done
which it did not wish to be subjected to jurisdiction for. I
think that is the most likely thing in that case.
There are many countries with whom we do not have any
provision for the extradition of nationals as a matter of
obligation. But we thought it was very important in this case
because we do seek a lot of Hong Kong residents.
Senator Thomas. Sure. I think the concern, and I think a
legitimate one, is that you talk about other countries, and
certainly there are, but this is a unique agreement. This is an
agreement with a party that is not a sovereign.
Now, you say, and it is true apparently, there is agreement
with the PRC. Nevertheless, I think it is fair to say that one
of the difficulties has been the enforcement of treaties with
the PRC. I cited one a few moments ago, about the prison labor
and some others. So there is an inquiry, at least on the part
of Members of Congress, as to what you are going to do about
it. What we usually hear from the State Department or Justice
is, well, we will talk to them at the highest levels.
Well, that is not a very satisfactory answer. That is kind
of what we hear all the time. So I think that is where you will
find some concern in this particular agreement, which is
unique.
On Article 16 and the idea of a transfer, but no transfer
without consent, so it does not prohibit such transfers, what
would be your view if the Senate changed that to prohibit
transfers?
Mr. Richard. Well, one, it would be problematic whether the
other side would agree to such a change. It would probably
incur a very significant hiatus in any agreement and, in
effect, terminate for an unspecified period of time an
extradition relationship. Frankly, I think to the extent we
already are required to give our approval before it is done, I
am not sure that we do not have sufficient assurances.
Let me give you an example. Let us assume that an
individual extradited there wishes to be transferred for the
fact that his or her family is located in the PRC and would
like to be situated in such a location where he or she has more
frequent contact with them and that the prisoner wants to move
and we are convinced that this is done in sincerity, would we
agree or not agree? I do not know. But that provision would
preclude us even considering it for humanitarian reasons.
I would suggest that it just might not be necessary to
accomplish that purpose. If they are going to ignore the
agreement, they will ignore that provision, just like any other
provision, if they choose to do that. The key, I would suggest,
is oversight and monitoring, rather than worrying about
specific provisions.
Your opening remark, I think was right on the money when
you said the best agreement is worthless if it is not
implemented in good faith and effectively. I think we have a
good agreement. Whether it will be implemented in good faith is
of course the question and one that we will have to monitor and
work with you to ensure that we have compliance in the spirit
of the agreement.
Senator Thomas. The agreement explicitly recognizes the
executive authority as the competent authority in the United
States. It is silent about the issue for Hong Kong. What entity
is the competent authority for Hong Kong?
Mr. Richard. My understanding is, and I may be mistaken, is
that it is anticipated that it will probably, at least in part,
be their judicial authorities.
Senator Thomas. Why do we be explicit about it for the
United States and not for Hong Kong?
Mr. Richard. Because we have historically tried to avoid
taking what we consider to be essentially political issues and
making them subject to judicial review. We think it is a
separation of powers issue on our part. These are essentially
judgments to be made by the Secretary of State, rather than our
courts.
Senator Thomas. But we could accomplish that without having
it in the agreement, if they do not have it in their agreement.
Mr. Richard. Well, without it in the agreement, we are
laying ourselves open to an assertion as to who makes those
calls. You have a litigable issue immediately presenting itself
to our courts. By articulating who has the authority, which is
a reflection of existing authority----
Senator Thomas. We do not normally articulate how we are
going to behave in the United States in treaties with others,
do we?
Mr. Richard. No, but we are trying to avoid unnecessary
litigation in the United States on this point.
Senator Thomas. So we do it through a treaty with another
country?
Mr. Richard. No, no. We do it through articulating what is
in fact the common practice.
Senator Thomas. It just seems a little odd that we would
articulate our behavior but not expect them to articulate
theirs in a treaty.
Mr. Richard. Well, I am not sure that, for our purposes, it
matters that much as to who is making the decision. Now, it is
the same thing in many other treaties, where decisions that are
traditionally made by our executive branch in the U.S. are, in
other countries, traditionally made by the courts.
Senator Thomas. Well, we are not communicating. I am
saying, if it is our decision, we make that decision without
putting it in a treaty with another country.
Mr. Richard. Sure. Sure.
Senator Thomas. Well, I think we have covered -- Article 16
seems to be the most contentious among the articles, as you
have pointed out.
Do you have any further comment? Yes, ma'am?
Ms. Borek. Could I speak a little bit to the question of
compliance? Because this is something that we started out with
as well.
The original thought was very much more focussed on how to
ensure the compliance by the People's Republic of China in this
agreement, given that they were not a direct party. But the
more we went into the actual arrangements for Hong Kong, the
more it became clear that the Hong Kong Government actually has
the power itself, and we were assured of this -- it is not only
our reading, but we were also assured of this by everyone we
met with in the Hong Kong Government -- to comply or not comply
with the agreement.
So what we are really talking about here, fundamentally, is
will the Hong Kong Government comply with this agreement? If
the People's Republic of China is going to interfere with the
agreement, it is going to be in some very dramatic, wholly
flagrant fashion, like just grabbing somebody completely off
the street. But under the agreement, the Hong Kong Government
really does have the power itself to decide whether to comply
with the agreement or not.
In that area, I think the risks are more subtle and long
term, and that if we were looking at a deteriorating situation,
it would be something not overnight, but something where we
would have an opportunity to see that things were deteriorating
and to take steps before there was a problem, rather than
afterwards. I think that is the most comforting feature of this
treaty, is that we are not really looking to the People's
Republic of China to comply with it, we are looking to the Hong
Kong Government.
Senator Thomas. Sure. Well, and of course, that is the
concern everyone has, in terms of the turnover, is, will Hong
Kong have the ability to do that? We hope so. Expect so. But if
they do not, then it will be another question.
In addition to U.S. ratification, Hong Kong needs to
approve legislation to bring this into force. Do you know the
status of that?
Ms. Borek. They have general legislation in force, and the
special legislation that will add us to it is basically laid on
the table so that they can bring it into force as soon as we
are ready to bring it into force.
Senator Thomas. Then this will be done by the original
Legco?
Ms. Borek. Well, it is an executive order. No, the way it
works is it is an executive order that adds us to the general
legislation, which has already been passed. So it designates us
under it.
Senator Thomas. Thanks to both of you, I appreciate your
being here. Thank you very much for your response. You may get
some more questions in writing as the record stays open.
Mr. Richard. Thank you.
Senator Thomas. The committee will be adjourned.
[Whereupon, at 11:05 a.m., the hearing was adjourned,
subject to the call of the Chair.]
A P P E N D I X
----------
United States Department of State,
Washington, DC 20520,
July 11, 1997.
The Hon. Jesse Helms,
Chairman,
Committee on Foreign Relations,
U.S. Senate.
Dear Mr. Chairman: Following the June 3, 1997 hearing at which the
Honorable Jamison S. Borek testified, additional questions were
submitted for the record. Please find enclosed the responses to those
questions.
If we can be of further assistance to you, please do nothesitate to
contact us.
Sincerely,
Barbara Larkin,
Assistant Secretary,
Legislative Affairs.
Responses of Jamison S. Borek to Questions Asked by Senator Helms
Question 1. The Hong Kong Agreement is unprecedented in that the
U.S. has negotiated a treaty with a party that is not a sovereign, has
been signed by the party not the sovereign, yet the authority to sign
the treaty is granted by the sovereign (but in this case both the
United Kingdom and the People's Republic of China have given that
authority through the process established by the Joint Liaison Group,
established to facilitate the transfer of Hong Kong rule).
Is the precedent of this Agreement limited to the Hong Kong
situation?
Will this Agreement provide the State Department with a
precedent for other unusual treaty relationships?
What are the potential pitfalls of treaty enforcement as a
result of this unusual treaty relationship?
Are you confident that the PRC will respect this Agreement
and involve itself only where its authority is explicitly
recognized?
Answer. Hong Kong presents a unique situation. The United States
has a long history of direct involvement with Hong Kong as a crown
colony of Great Britain, including an active law enforcement
relationship. Given the importance of our law enforcement interest and
the autonomy of the Hong Kong criminal justice system after reversion,
as set forth in the Joint Declaration and Basic Law, we have every
reason to continue that relationship. we do not know of or currently
anticipate another situation that would be addressed in the same way.
We believe that the treaty can be successfully implemented because
it is the Hong Kong government and not the PRC which has the power and
authority to fulfill its obligations under the treaty.
We expect that the PRC will respect this Agreement; indeed, it has
provided us with a diplomatic note expressly confirming its support of
the treaty. Furthermore, the relationship between the PRC and Hong Kong
in this area is spelled out in the Joint Declaration and Basic Law, and
we expect the PRC to honor its commitments under both.
Question 2. The treaty gives the Secretary of State the ability to
refuse extradition where there is a concern that the request for
extradition is politically motivated. What investigation will be
undertaken prior to extradition to ensure a request is not politically
motivated? Are you confident that this provision will give the U.S.
adequate basis for refusal of extradition if the U.S. loses confidence
in the Hong Kong judicial system?
Answer. This provision exists in most modern treaties. For Hong
Kong, as with other countries, the Department will review any requests
that might be politically motivated and determine in each case how best
to proceed, including how best to obtain further information. The
fugitive will also be likely to raise the issue if he or she believes
that such a finding should be made and has the right to present written
materials to the Secretary of State for her consideration in making the
determination.
This and other provisions of the treaty provide the United States
with ample grounds for refusing extradition of a fugitive if
circumstances warranted that result. If the United States were to lose
confidence in the Hong Kong judicial system altogether, however, it
would be able to terminate the treaty.
Question 3. What recourse does the U.S. have when the Hong Kong
Government refuses to extradite in contradiction to a treaty provision?
Answer. As with any other treaty partner, the United States would
assess the circumstances giving rise to the refusal to extradite and
take whatever steps it felt were appropriate with the government of
Hong Kong to reach a satisfactory resolution. Successful implementation
of extradition treaties depends on the continued willingness to
extradite on both sides. Ultimately, the treaty is terminable by either
party with six months notice.
Question 4. Article 16 of the treaty regarding the transfer of
persons to third parties does not completely prohibit such transfers.
Instead, Article 16 provides that persons may be transferred with the
express consent of the Requested country. Is there any instance in
which the United States would consent to a transfer to the PRC? If so,
please explain. If not, why did negotiators not agree to a prohibition
against transfers to other jurisdictions?
Answer. Under current circumstances, the United States would not
anticipate consenting to the transfer of a person by Hong Kong to other
parts of the PRC except as an exceptional matter. While any
circumstances in which we might consent are at this point hypothetical,
one could imagine, a situation in which the prisoner wished to be
transferred to the PRC, for instance to be reunited with family.
Retransfer with the consent of the Requested party is a standard
provision in modern extradition treaties. While it would give the
Secretary of State the discretion to consent to transfer to other parts
of the PRC, its reach is much broader. If a fugitive were extradited by
one Party to the other on fraud or other charges, for instance, this
language provides a means for either Hong Kong or the United States to
agree to retransfer to another treaty partner, such as the United
Kingdom, for trial for murder or terrorist offenses.
Question 5. Would you support the addition of such a prohibition by
the Senate in its resolution of ratification?
Answer. We would not support the addition of such a prohibition,
which would delete a valuable authority in the treaty. The ability of
one treaty partner to agree to a request from the other for the
retransfer of a fugitive is a recognized principle of international law
and a valuable tool in fighting international crime. As noted above,
the retransfer provision is not limited to transfers from Hong Kong to
other parts of the PRC but provides a mechanism for transfers by either
Party to a third state. Without the ability of the requested Party to
consent to retransfer, a fugitive extradited to either Hong Kong or the
United States could effectively find refuge from being sent to a third
State that sought him for other, possibly more serious, offenses.
Even assuming that a limitation concerned only United States
consent to transfers to other parts of the PRC, such a prohibition is
unnecessary and could even be harmful in some cases, for instance where
the goal is reuniting a family and the prisoner consents. Furthermore,
such a prohibition would be a permanent restriction on what would
otherwise give the Secretary of State the ability to respond to
changing circumstances. Extradition treaties have been in force with
some of our treaty partners for over a hundred years, a period of time
in which the PRC could evolve in such a manner that decisions on
transfer would be viewed in a different light.
Question 6. The Agreement does not explicitly apply to
extraterritorial offenses, although the State Department's Legal
Adviser's Office has said that the parties will determine its
application on a negotiated case-by-case basis. Does the failure to
explicitly provide for extraterritorial offenses make the treaty
sufficiently vague to give a reluctant Requested State ``wiggle room''
to avoid its possible obligation to extradite individuals for crimes
committed outside its territory?
Answer. The understanding between the parties is that Hong Kong
would extradite for extraterritorial offenses if it would have
extraterritorial jurisdiction over an offense committed outside its
territory in similar circumstances. This is the agreement embodied more
often than not in modern U.S. extradition treaties. We do not
anticipate that either Hong Kong or the United States will use the
absence of such language as a basis for refusing extradition.
Question 7. The Agreement gives the sovereign the right to refuse
extradition when surrender would implicate the ``defense, foreign
affairs or essential public interest or policy'' of either sovereign.
How does the State Department Legal Adviser's Office interpret this
provision? Can you cite an example of a case in which this would be
applied?
Answer. This provision was included at the request of Hong Kong,
primarily in recognition of the role of the PRC as the sovereign
responsible for Hong Kong's foreign affairs and defense. We anticipate
that this provision would, for instance, be relied upon if we were to
request extradition of a PRC government official for offenses that the
PRC regarded as official acts. While both sides indicated that they did
not anticipate exercising this authority except in rare instances, for
the United States, the reference to ``essential public interest or
policy'' could conceivably be a relevant protection in an individual
case, especially if conditions were to change significantly in Hong
Kong.
Question 8. The Agreement explicitly recognizes the executive
authority as the competent authority for the United States but is
silent on the issue for Hong Kong. What entity is the competent
authority for Hong Kong? What role will the PRC play in the designated
competent authority?
Answer. We understand that for Hong Kong the ``competent
authority'' in Articles 6(3) and 7 is likely to be the judiciary. In
Article 8 (3) , concerning the issuance of arrest warrants, the
``competent authority'' for both the United States and Hong Kong would
be a member of the judiciary empowered to issue such warrants. In other
articles (e.g., Articles 3 and 11), as indicated in the treaty, the
competent authority for Hong Kong is the executive. In each case these
will be authorities of the Hong Kong Special Administrative Region, not
of the central government of the PRC.
Question 9. What were some of the principal disagreements between
the Parties during the negotiations?
Answer. The negotiation of this treaty began with the rather
unusual situation of each Party presenting a model text, thus giving
rise to a number of issues to be addressed. These included, for
instance, Hong Kong's preference for a list of all extraditable
offenses in Article 2 as opposed to our strong preference for ``dual
criminality'' language, which avoids the need to amend a treaty as
changes are made to one or both Parties, criminal laws. In the end, the
two approaches were combined so that, although the list remains, the
last item in the list captures the dual criminality approach.
Similarly, the two Parties had different approaches to the extradition
of nationals. Hong Kong wanted rather broad exceptions to the
obligation to extradite nationals while the United States preferred
narrower grounds for denial of a request to extradite. The result in
Article 3 provides a balanced compromise, with potentially useful
protections for both Parties.
Question 10. Unlike the U.S., in addition to ratification of the
Agreement, Hong Kong must approve legislation to bring this Agreement
into force. What is the status of that legislation?
Answer. Hong Kong had no requirement for ratification but did have
to enact a Surrender of Fugitive Offenders ordinance to provide a
legislative basis for implementing the treaty. That Ordinance went into
operation April 25, 1997. Subordinate legislation under the Ordinance,
the Fugitive Offenders (United States of America) Order, specifically
permitting the U.S.-Hong Kong agreement to be implemented, has also
been made. It will be brought into operation on the same day that the
Treaty enters into force.
__________
Responses of Jamison S. Borek to Questions Asked by Senator Biden
Question 1. Does the term ``any lesser offence'' in Article
16(1)(b) mean a lesser included offense as that term is understood in
U.S. law?
Answer. Yes, this language would cover a lesser included offense.
It is possible in a given case, depending on the facts, that other
related offenses of a less serious nature could be covered, even if
they were not technically ``lesser included offenses,'' so long as they
were themselves extraditable offenses.
Question 2. What is the ``competent authority'' for Hong Kong?
Answer. Articles 6(3) and 7 prohibit surrender in situations where
``the competent authority of the requested Party, which for the United
States shall be the executive authority,'' finds that the request was
politically motivated, would result in discriminatory treatment or
would entail exceptionally serious consequences related to age or
health. We understand that for Hong Kong the ``competent authority'' in
these two situations is likely to be the judiciary. In Article 8(3),
concerning the issuance of an arrest warrant, the ``competent
authority'' for Hong Kong refers to a member of the judiciary empowered
to issue such warrants. In other articles (e.g., Articles 3 and 11), as
indicated, the competent authority for Hong Kong is the executive.
Question 3. In Article 6(3) and Article 7, the treaty states that
the ``competent authority of the requested party, which for the United
States shall be the executive authority . . . .''
Who is the ``competent authority'' for the United States
under Article 8(3) and Article 9(a)(ii)?
Answer. In Article 8(3), for the United States the ``competent
authority'' would always be a judge or magistrate judge.
In Article 9(a)(ii), the United States will use the official seal
of the Attorney General, which is in turn authenticated by the
Secretary of State.
Question 4. What does the offense ``criminal damage'' set forth in
Article 2(1)(xviii) encompass?
Answer. ``Criminal damage'' covers the broad category of vandalism,
including property damage. As with any other offense, to be
extraditable, it would have to be punishable by imprisonment for more
than one year or by a more severe penalty.
Question 5. Does the term ``kidnapping'' as used in Article 2(1)(v)
include parental abduction, such as the offense of international
parental abduction set forth in 18 U.S.C. 1204?
Answer. Yes, in the view of the United States the term
``kidnapping'' includes parental child abduction, so long as that
offense is punishable by imprisonment or other form of detention for
more than one year, or by a more severe penalty. International parental
abduction (18 U.S. C. 1204) meets that test. Whether or not Hong Kong
views ``kidnapping'' as extending to this offense, the offense is
covered by Article 2(1)(xxxvi), which covers any dual criminality
offense so long as it is punishable by more than one year, or by a more
severe penalty, and so long as surrender is not prohibited by the laws
of the requested Party.
Question 6. The Sino-British Joint Declaration states that the
basic policies of the People's Republic of China regarding Hong Kong
will ``remain unchanged for 50 years.'' (para. 3(12))
Is there any understanding between the parties that the
Agreement will be formally reviewed prior to the end of this
period?
Answer. The United States will, of course, be monitoring the
situation in Hong Kong at all times. Although there is no understanding
that the Agreement will be formally reviewed prior to the end of the 50
years stated in the Joint Declaration, the United States can request
review whenever it believes such review is warranted. Furthermore,
under Article 20(2), the United States can terminate the Agreement with
six months notice at any time.
Question 7. Please provide a list of the ``multilateral
international agreement[s]'' which are encompassed by the terms of
Article 6(2)(b).
Answer. The Sino-British Joint Liaison Group has announced that
many multilateral conventions are agreed to be applicable to Hong Kong
after its reversion to the sovereignty of the People's Republic of
China. Included in those conventions are the following encompassed by
the terms of Article 6(2)(b):
The Convention for the Suppression of Unlawful Seizure of
Aircraft (``the Hague Convention''), done at The Hague,
December 16, 1970, entered into force October 14,1971 (22
U.S.T. 1641; TIAS No. 7192).
The Convention for the Suppression of Unlawful Acts Against
the Safety of Civil Aviation (``the Montreal Convention''),
done at Montreal September 23, 1971, entered into force January
26, 1973 (24 U.S.T. 564; TIAS No. 7570).
Protocol for the Suppression of Unlawful Acts of Violence at
Airports Serving International Civil Aviation, Supplementary to
the Convention for the Suppression of Unlawful Acts Against the
Safety of Civil Aviation done at Montreal on 23 September 1971,
done at Montreal February 24, 1988, entered into force August
6, 1989, and for the United States November 18, 1994.
Convention on the Prevention and Punishment of Crimes
Against Internationally Protected Persons, Including Diplomatic
Agents, done at New York, December 14, 1973, entered into force
February 20, 1977 (28 U.S.T. 1975; TIAS No. 8532).
International Convention Against the Taking of Hostages,
done at New York, December 17, 1979, entered into force June 3,
1983, and for the United States January 6, 1985 (TIAS No.
11081).
United Nations Convention against Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment, done at New York
December 10, 1984, entered into force June 26, 1987 and for the
United States November 20, 1994.
United Nationals Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances, done at Vienna
December 20, 1988, entered into force November 11, 1990.
The Convention on the Prevention and Punishment of the Crime of
Genocide (done at Paris December 9, 1948, entered into force January
12, 1951 and for the United States February 23, 1989),which provides
that genocide and other enumerated acts are not to be considered as
political crimes for the purpose of extradition, will also apply to the
HKSAR.
Question 8. What does the term ``upon his committal'' in Article
17(2)(b) refer to? That is, does it refer to his committal to prison
for the offense in the requested Party, or does it refer to committal
to the requesting Party pursuant to this Agreement?
Answer. The reference to committal in Article 17(2)(b) is to the
committal for extradition to the requesting Party pursuant to this
Agreement.
Question 9. The Technical Analysis submitted by the Administration
states that ``implicit [in Article 17(2)(b)] is the notion that the
requested Party may choose to wait until completion of the service of
sentence before continuing with the surrender proceedings.''
What purpose would be served by delaying the surrender
proceedings until completion of service of sentence in the
requested Party?
Under what circumstances would such delay be undertaken by
the United States?
Answer. Article 17(2)(b) provides a firm treaty basis for
accommodating requests for extradition for a person who is being
proceeded against by the requested Party. Either Party might prefer to
wait until the completion of the service of sentence in a particular
case before extraditing a fugitive. The United States might choose to
do so, for instance, in a case where deferral would not jeopardize Hong
Kong's case, particularly if there was only a short period of
imprisonment at issue.
Question 10. The Technical Analysis states that ``the United States
does not view the rule of speciality as applicable'' to cases where a
person consents to surrender under Article 18.
Does the Hong Kong government view the rule of speciality to
apply to such a situation?
Answer. In Hong Kong, the Fugitive Offenders Ordinance requires
that fugitives who consent to surrender shall not be surrendered by
order of the Governor unless they will be entitled to specialty
protection.
Question 11. What is the ``requirement for entry into force,'' set
forth in Article 20(1) under Hong Kong law?
Answer. Hong Kong had to enact its Surrender of Fugitive Offenders
Ordinance to provide a legislative basis for implementing the treaty.
That Ordinance went into operation April 25, 1997. Subordinate
legislation under the Ordinance, the Fugitive Offenders (United States
of America) Order, specifically permitting the U.S. - Hong Kong
agreement to be implemented, has also been made. It will be brought
into operation on the same day that the Treaty enters into force.
Question 12. If this Agreement does not enter into force by July 1,
1997, will any extradition arrangement be in effect between the United
States and Hong Kong?
If not, what are the consequences for U.S. interests?
Answer. Hong Kong is currently one of our closest and most reliable
law enforcement partners. We enjoy an excellent relationship,
particularly with respect to extradition. As of July 1, 1997, there
will be no extradition arrangement in effect between the United States
and Hong Kong. The treaty, on its terms, comes into force 30 days after
the two govenunents notify each other in writing that their respective
requirements for the entry into force of the treaty have been complied
with. Hong Kong has already passed legislation to fulfill its domestic
requirements but we will not be able to notify Hong Kong until such
time as the Senate gives advice and consent and the President ratifies
the treaty. Thus, we know there will be a gap on July 1, 1997, when the
US-UK extradition treaty currently applicable to Hong Kong ceases to
apply.
The lack of an extradition treaty will mean that under U.S. law we
will have no ability to surrender persons to Hong Kong (unless a case
fits a narrow statutory exception for non-Americans committing violent
crimes against Americans abroad). On this basis, we have recently
agreed to the release on bail of a fugitive being sought by Hong Kong.
The majority of the 64 fugitives Hong Kong has returned to the
United States since 1991 were accused narcotics traffickers wanted by
either state or federal prosecutors. In addition, Hong Kong is an
attractive site for money laundering, alien smuggling, illegal customs
transshipment and counterfeiting. Hong Kong has indicated to us
informally that cases commenced under the current treaty will continue
even in the absence of a new treaty and last week arrested a U.S.
fugitive who is an alleged narcotics trafficker. For requests made in
the interim between reversion on July 1, 1997, and the entry into force
of the new extradition agreement, however, the United States probably
will be unable to secure the extradition, or even arrest pending
extradition, from Hong Kong of fugitives charged with these serious
crimes.
As a result, if the gap is of very short duration, we expect only
minimal disruption of pending cases. If the gap is prolonged, the
consequences would be much more serious, due to our inability to
continue to extradite persons either to or (in the case of new
requests) from Hong Kong.
Question 13. How many extradition requests made by the United
States to Hong Kong are currently pending?
Please provide a list containing (1) the name of the person
sought for surrender (if release of such name is permissible
under the Privacy Act); (2) the offenses for which surrender of
that person is sought; and (3) the jurisdiction in which such
person faces indictment or has already been convicted.
Answer. Attached is a list of 51 currently pending requests by the
United States for the extradition or provisional arrest pending
extradition of fugitives from Hong Kong. These include cases in which
the provisional arrest request was submitted to Hong Kong because of a
likelihood that the person would travel to Hong Kong although such
travel may not yet have occurred. Each number represents a different
individual. We have omitted the names of these fugitives, most of whom
have not yet been arrested, because release of the names publicly would
risk jeopardizing ongoing law enforcement investigations.
There are 51 pending extradition requests to Hong Kong from the
United States. The offenses and jurisdictions are provided below.
Pending Case--U.S. Requests to Hong Kong
June 10, 1997
OFFENSE CATEGORY JURISDICTION
1. Narcotics Eastern District of Virginia
2. Narcotics Eastern District of New York
3. White Collar (mail fraud, money Districts of New Jersey and
laundering, firearms offenses) Maryland
4. Narcotics Eastern District of New York
5. Persons (conspiracy to commit Southern District of New York
murder, assault, robbery, murder)
6. Narcotics Northern District of Florida
7. Narcotics Eastern District of New York
8. Persons (ransom, kidnapping, hostage Southern District of New York
taking, extortion, conspiracy)
9. Persons (ransom, kidnapping, Southern District of New York
extortion, hostage taking, conspiracy)
10. Persons (extortion, obstruct District of New Jersey
justice, kidnapping, hostage taking)
11. Narcotics Eastern District of New York
12. White Collar, Property Northern District of California
(racketeering, extortion, arson)
13. Narcotics Northern District of California
14. White Collar (mail fraud, forgery) Northern District of California
15. Narcotics Eastern District of New York
16. Persons (murder, assault w/intent State of Massachusetts (Suffolk
to commit murder, conspiracy) County)
17. Narcotics Eastern District of New York
18. Narcotics, Persons (murder, firearm Eastern District of New York
offenses, interstate commerce)
19. Narcotics Northern District of Florida
20. Narcotics District of Northern Mariana
Islands
21. Narcotics Eastern District of New York
22. Persons, Misc (racketeering; Southern District of New York
firearms, alien smuggling, hostage
taking)
23. Narcotics Southern District of New York
24. Narcotics Eastern District of New York
25. Persons (hostage taking, aiding/ Southern District of New York
abetting)
26. Narcotics, White Collar (money Central District of California
laundering, conspiracy)
27. Narcotics, White Collar (money Central District of California
laundering, conspiracy)
28. Persons (murder, assault w/intent State of Massachusetts (Suffolk
to murder, conspiracy) County)
29. Persons, White Collar (hostage Southern District of New York
taking, money laundering)
30. Narcotics Eastern District of New York
31. Narcotics Eastern District of New York
32. Persons (murder, assault w/intent State of Massachusetts (Suffolk
to murder, conspiracy) County)
33. Narcotics Eastern District of New York
34. Narcotics, White Collar (money Eastern District of New York
laundering)
35. Narcotics Eastern District of New York
36. Narcotics District of Nevada
37. Narcotics District of New Jersey
38. Narcotics Eastern District of New York
39. Narcotics Eastern District of New York
40. Narcotics Eastern District of New York
41. Persons, Misc (hostage taking, Southern District of New York
alien smuggling, racketeering;
firearms)
42. Narcotics Eastern District of New York
43. Narcotics Eastern District of New York
44. Narcotics Southern District of New York
45. White Collar, Misc (extortion, Central District of California
firearm offenses)
46. Narcotics Southern District of New York
47. White Collar (conspiracy to defraud Middle District of Florida
U.S., mail fraud, false claims)
48. Narcotics Southern District of New York
49. Narcotics Eastern District of New York
50. Narcotics Eastern District of New York
51. Narcotics Central District of California
Question 14. How many extradition requests made by Hong Kong to the
United States are currently pending?
Answer. Five requests from Hong Kong are pending with the United
States.
Question 15. Article 16(2) permits the surrender or transfer beyond
the jurisdiction of the requesting Party of the requested Party
consents.
Does the term ``jurisdiction of the requesting Party,'' as
it applies to Hong Kong, refer to the territory of the Hong
Kong Special Administrative Region?
With regard to requests by Hong Kong to transfer a person
surrendered under this Agreement to the People's Republic of
China, will the United States have a presumption against such
transfers? Under what circumstances will the United States
consent to such transfers?
Answer. Yes, the ``jurisdiction of the requesting Party'' for Hong
Kong is the Hong Kong Special Administrative Region. Thus, Article 16
covers transfer even to other parts of the People's Republic of China.
Under current circumstances, the United States would not anticipate
consenting to the transfer of a person by Hong Kong to other parts of
the PRC except as an exceptional matter. While any circumstances in
which we might consent are at this point hypothetical, one could
imagine a situation in which the prisoner wished to be transferred to
the PRC, for instance to be reunited with family.
Question 16. The Technical Analysis submitted to the Committee
states on page 17, footnote 21, that the Hong Kong delegation informed
the U.S. delegation that ``it is possible that after 1997, the PRC will
require requests for extradition involving Hong Kong to be made through
Beijing.''
What would be the purpose for the PRC requiring requests to
be transmitted through Beijing?
Has the United States conducted any diplomatic discussions,
formal orinformal, in writing or orally, with the People's
Republic of China regarding this matter? If so, please describe
the substance of those discussions.
Answer. A request from the PRC that all extradition requests be
transmitted through Beijing would have the effect of keeping the
requests in formal diplomatic channels between the two sovereigns. This
would also give the PRC the ability to track requests so that it would
know when its nationals are involved, although the PRC could also
accomplish this by requiring advance notice from the Hong Kong
government of any requests. We have had no discussion on this issue
with the PRC.
Question 17. Compare the standard of the prima facie case required
under Hong Kong law (pursuant to Articles 8(3) and 13) to the standard
of probable cause under U.S. law.
Answer. Under Hong Kong law, a prima facie case is a case supported
by evidence which, if unexplained or uncontradicted, is sufficient to
carry the case to the jury (or trier of fact) and to sustain a verdict
(or finding) in favor of the side of the issue which it supports, but
which may be contradicted by other evidence.
Under United States law, probable cause requires a lesser quantum
of evidence, i.e., sufficient to establish a reasonable basis to
believe the crime was committed and that the person before the court is
the person accused of the crime.