Agreement with Hong Kong for the Surrender of Fugitive Offenders
Signed at Hong Kong on December 20, 1996
Read the first time in the Senate March 3, 1997
LETTER OF TRANSMITTAL
THE WHITE HOUSE, March 3, 1997.
To the Senate of the United States:
With a view to receiving the advice and consent of the Senate to ratification as a
treaty, I transmit herewith the Agreement Between the Government of the United
States of America and the Government of Hong Kong for the Surrender of
Fugitive Offenders signed at Hong Kong on December 20, 1996 (hereinafter
referred to as “the Agreement”). in addition, I transmit for the information of the
Senate, the report of the Department of State with respect to the Agreement. As a
treaty, this Agreement will not require implementing legislation.
This Agreement will, upon entry into force, enhance cooperation between the
law enforcement communities of the United States and Hong Kong, and will
provide a framework and basic protections for extraditions after the reversion of
Hong Kong to the sovereignty of the People’s Republic of China on July 1, 1997.
Given the absence of an extradition treaty with the People’s Republic of China, this
Treaty would provide the means to continue an extradition relationship with Hong
Kong after reversion and avoid a gap in law enforcement. It will thereby make a
significant contribution to international law enforcement efforts.
The provisions of this Agreement follow generally the form and content of
extradition treaties recently concluded by the United States. in addition, the
Agreement contains several provisions specially designed in light of the particular
status of Hong Kong. the Agreement’s basic protections for fugitives are also
made expressly applicable to fugitives surrendered by the two parties before the
new treaty enters into force.
I recommend that the Senate give early and favorable consideration to the
Agreement and give its advice and consent to its ratification as a treaty.
WILLIAM J. CLINTON.
LETTER OF SUBMITTAL
DEPARTMENT OF STATE,
Washington, February 4, 1997.
THE PRESIDENT,
The White House.
THE PRESIDENT: I have the honor to submit to you the Agreement between
the Government of the United States of America and the Government of Hong
Kong for the Surrender of Fugitive Offenders, (hereinafter referred to as “the
Agreement”), signed at Hong Kong on December 20, 1996. I recommend that the
Agreement be transferred to the Senate for its advice and consent to ratification as
a treaty as soon as possible so that it may become effective prior to the reversion
of Hong Kong to the sovereignty of the People’s Republic of China (PRC) on July
1, 1997. Given the absence of an extradition treaty with the PRC, this US-Hong
Kong treaty would provide the means to ensure an ongoing extradition relationship
with Hong Kong, avoiding a gap in our law enforcement relationship.
The Agreement follows generally the form and content of extradition treaties
recently concluded by the United States. It represents a concerted effort by the
Department of State and the Department of Justice to modernize the legal tools
available for the extradition of serious offenders such as narcotics traffickers and
terrorists and also to address the particular issues related to the status of Hong
Kong.
Although entitled an “Agreement” to reflect Hong Kong’s unique juridical status,
for purposes of U.S. law, the instrument will be considered to be a treaty, and
therefore I am submitting it to you for transmittal to the Senate for advice and
consent to ratification. in that regard, I note that Hong Kong is entering into the
Agreement with the authorization of “the sovereign government which is
responsible for its foreign affairs.” At present, that is the United Kingdom.
However, the PRC has also approved the Agreement and authorized its
continuation in force after July 1, 1997 through approval of the Sino-British Joint
Liaison Group. for ease of reference, the relevant sovereign is referred to in this
report as the PRC although there could be a brief period after the treaty enters into
force when the sovereign would still be the United Kingdom.
Article 1 obligates each Party to extradite to the other, in accordance with the
provisions of the Agreement, any person wanted for prosecution or for the
imposition or enforcement of a sentence in respect of an offense described in
Article 2.
Article 2 contains an extensive list of offenses for which the Parties agree to
surrender fugitive offenders, provided that the offense is punishable by both parties
by imprisonment or other form of detention for more than one year, or by a more
severe penalty. Significantly, the Agreement follows the modern dual criminality
model by including as the last item in the list of offenses, “any other offense which
is punishable under the laws of both Parties by imprisonment or other form of
detention for more than one year, or by a more severe penalty, unless surrender
for such offense is prohibited by the laws of the requested Party.” Inclusion of this
dual criminality clause obviates the need to renegotiate or supplement the
Agreement as offenses become punishable under the laws of both Parties. in
keeping with most recently negotiated U.S. extradition treaties, the Article further
provides that in determining whether an offense is an offense under the law of the
requested Party, the conduct of the person shall be examined by reference to the
totality of the underlying criminal conduct without reference to the elements of the
offense prescribed by the law of the requested Party. Article 2(5) contains the
standard provision found in other extradition treaties that an offense under military
law shall not be considered to be an offense for purposes of paragraph (1) of this
Article.
Article 3, like most modern extradition treaties concluded by the United States,
provides that surrender shall not normally be refused on the ground that the person
sought is a national of the requested Party. However, the executive authority of
Hong Kong reserves the right to refuse surrender of nationals of the PRC in cases
in which: (1) the requested surrender relates to the defense, foreign affairs or
essential public interest or policy of the PRC, or (2) the person sought neither has
the right of abode in Hong Kong nor has entered Hong Kong for the purpose of
settlement, and the PRC has jurisdiction over the offense and has commenced or
completed proceedings for the prosecution of that person. the executive authority
of the United States reserves the same right to refuse the surrender of U.S.
nationals on grounds of defense, foreign affairs or essential public interest or policy
of the United States of America. Article 3(4) provides that in a case in which the
person sought by the United States has neither the right of abode in Hong Kong
nor has entered Hong Kong for the purpose of settlement, and the PRC has
jurisdiction and is investigating an offense by that person, action on the extradition
request by the United States may be deferred until the investigation has been
expeditiously concluded. Article 3(5) provides that in cases in which extradition is
refused on the grounds of its relation to defense, foreign affairs or essential public
interest or policy, the requesting Party may request that the case be submitted to
the competent authorities of the requested Party who will consider whether to
bring a prosecution. the delegations expressed their shared intention that this
Article would rarely be invoked.
Under Article 4, when an offense for which surrender is sought is punishable by
death under the laws of the requesting Party and is not so punishable under the
laws of the requested Party, the requested Party, may refuse surrender unless the
other Party provides assurances that the death penalty will not be imposed or, if
imposed, will not be carried out. the United States has agreed to a similar
formulation in other modern extradition treaties.
Article 5, following modern practice, bars surrender when the person sought has
been convicted or acquitted in the requested Party for the same offense, but does
not bar extradition if the competent authorities in the requested Party have declined
to prosecute or have decided to discontinue criminal proceedings.
Article 6 incorporates a political offense exception to extradition similar to
provisions contained in U.S. extradition treaties concluded in recent years with a
number of other countries. After prohibiting extradition for offenses of a political
character, the Article expressly excludes from the reach of the exception an
offense for which both Parties are obliged pursuant to a multilateral international
agreement to extradite the person sought or to submit the case to their competent
authorities for decision as to prosecution (e.g., aircraft hijacking pursuant to the
Hague Convention for the Suppression of Unlawful Seizure of Aircraft, done at the
Hague December 16, 1970, and entered into force October 14, 1971 (22 U.S.T.
1641; TIAS No. 7192); aircraft sabotage pursuant to the Montreal Convention
for the Suppression of Unlawful Acts Against the Safety of Civil Aviation, done at
Montreal September 23, 1971, and entered into force January 26, 1973, (24
U.S.T. 564; TIAS No. 7570); crimes against internationally protected persons,
including diplomats, under the Convention on the Prevention and Punishment of
Crimes Against Internationally Protected Persons, including Diplomatic Agents,
done at New York on December 14, 1973, and entered into force February 20,
1977 (28 U.S.T. 1975; TIAS No. 8532); and hostage taking, pursuant to the
International Convention Against the Taking of Hostages, done at New York on
December 17, 1979, and entered into force June 3, 1983, and for the United
States January 6, 1985 (TIAS No. 11081). the article likewise excludes from the
reach of the political offense exception murder or other willful crime against the
person of the head of state of the United States or the PRC or a member of the
Head of State’s immediate family. a conspiracy or attempt to commit this offense
or the multilateral international agreement offenses described above shall also not
be considered to be an offense of a political character.
Article 6 further mandates the denial of extradition if the competent authority of
the requested Party, which is expressly designated in the Article as the executive
authority in the United States, determines (1) that the request was politically
motivated, (2) that the request was made for the primary purpose of prosecuting
or punishing the person sought on account of his race, religion, nationality or
political opinion, or (3) that the person sought is likely to be denied a fair trail or
punished on account of his race, religion, nationality, or political opinions. the
United States has agreed to the inclusion of such a comprehensive provision in a
few other modern extradition treaties.
Article 7, as in the U.S.-Norway extradition treaty, provides that the competent
authority of the requested Party, which is designated as the executive authority in
the United States, may in its discretion refuse the surrender of a fugitive when it
believes that such surrender is likely to entail exceptionally serious consequences
related to the age or health of the fugitive. This provision has rarely been accepted
by the United States and the delegations expressed their shared expectation that
this Article would apply only in the most unusual and extraordinary circumstances.
Article 8 describes the documents that are required to support a request for
extradition, following other modern extradition treaties.
Article 9 establishes the procedures under which documents submitted pursuant
to Article 8 shall be received and admitted into evidence in the requested Party.
These provisions are also similar to those found in other modern extradition
treaties.
Article 10, in keeping with other modern extradition treaties, provides for the
provisional arrest and detention of the person sought pending receipt of a fully
documented extradition, request in conformity with Article 8. Article 10(5) limits
the period that the person sought may be so held to no more than sixty days and
explicitly provides that the discharge of the person sought from custody due to
lapse of time does not prejudice subsequent rearrest and extradition upon later
receipt of the extradition request and supporting documents.
Article 11 again reflects U.S. practice in modern extradition treaties, providing
that if the executive authority of the requested Party has received requests for the
extradition of a fugitive offender from more than one country with which either
Party has arrangements for the surrender of fugitive offenders, it shall make its
decision having regard to all the circumstances, including the relevant provisions of
such agreements or arrangements, the place of commission of the offenses, their
relative seriousness, the respective dates of the requests, the nationality of the
fugitive offender, the nationality of the victim, and the possibility of subsequent
surrender to another jurisdiction.
Article 12 contains provisions on representation and expenses that are similar to
those found in other modern extradition treaties. Specifically, the requested Party
bears ordinary expenses for the legal representation of the requesting Party in any
proceedings arising out of a request for surrender of a fugitive offender. in the
event that the requesting Party arranges its own additional legal representation and
assistance, it bears any additional expenses incurred. Article 12(3) clarifies that
neither Party shall make any pecuniary claim against the other Party arising out of
the arrest, detention, examination, or surrender of persons sought under the
Agreement.
Pursuant to Article 13, a fugitive offender shall be surrendered only if the
evidence is found sufficient according to the law of the requested Party either to
justify the committal for trial of the person sought if the offense of which he had
been accused had been committed in the territory of the requested Party or to
establish that he is the person found guilty, convicted or sentenced by the courts of
the requesting Party. These requirements are found in many modern U.S.
extradition treaties and preserve the “probable cause” standard in cases of
requests to the United States.
Article 14 sets forth the standard procedures to govern the surrender and return
of fugitive offenders, including the release from custody of a fugitive offender if the
requesting Party does not take custody of the person claimed on the date agreed
to by the Parties. Like other recent extradition treaties, it provides that, if a request
is denied in whole or in part, the requested Party, to the extent permitted under its
law, is to provide an explanation of the reasons for the denial and, at the request of
the requesting Party, copies of pertinent judicial decisions.
Article 15 follows other modern extradition treaties in providing that when a
person is surrendered, the requested Party shall, so far as its law allows and
subject to conditions it may impose to protect the rights of other claimants, furnish
the requesting Party with all sums of money and other articles which may serve as
evidence in the requesting Party’s prosecution or which may have been acquired
by the person sought as a result of the offense and are in his or her possession.
Article 16 expressly incorporates into the Agreement a typical formulation of the
rule of speciality. It provides, subject to specific exceptions, that a person
extradited under the Agreement may not be proceeded against, sentenced or
detained with a view to the carrying out of a sentence for any offense committed
prior to his surrender other than that for which extradition has been granted unless
the requested Party consents. Furthermore, the requesting Party may not surrender
or transfer such person beyond its jurisdiction for the offense for which his
surrender was granted or for an offense committed prior to his original surrender
without the consent of the requested Party. in the case of Hong Kong, this consent
requirement would apply to any proposed surrender or transfer outside of Hong
Kong. the limitations imposed under Article 16 do not apply if the person has had
an opportunity to leave the jurisdiction of the Party to which he has been
surrendered and has not done so within thirty days or leaves and voluntarily
returns.
Article 17, which resembles provisions in most recent United States extradition
treaties, provides for the temporary or deferred surrender of persons who are
serving a sentence or are being prosecuted in the territory of the requested Party.
Article 18 permits surrender without further proceedings if the person sought
gives his consent, as is the case in most modern treaties. It further provides that, to
the extent required under the law of the requested Party, the rule of speciality in
Article 16 shall apply to such transfers. Although U.S. law does not impose
speciality limitations in such cases, the Hong Kong negotiators informed the United
States delegation that such speciality limitations apply under Hong Kong law.
Article 19 governs the transit through the territory of one Party of a person being
surrendered to the other Party by a third state. As with similar provisions in other
recent extradition treaties, it provides that either Party may authorize such transit
through its jurisdiction and that the person in transit may be detained in custody
during the period of transit.
Article 20 contains final clauses dealing with the Agreement’s entry into force,
termination and application. of particular importance, Paragraph 3 makes the
Agreement’s restrictions on capital punishment and on prosecutions and transfers
for offenses other than those for which extradition was granted, set forth in Articles
4 and 16, expressly applicable to fugitive offenders who have been surrendered
between the parties prior to the Agreement’s entry into force. It also specifies that
the Agreement would apply to requests for surrender pending at the date of its
entry into force. Paragraph 1 provides for entry into force thirty days after the date
on which the Parties have notified each other in writing that their respective
requirements for entry into force have been complied with. Such mutual notification
will therefore need to take place no later than May 30 in order to avoid a law
enforcement gap upon reversion on July 1. Paragraph 2 provides for termination
six months after receipt of written notice by either Party. Paragraph 4, like the
parallel provision in almost all recent United States extradition treaties, stipulates
that the Agreement is retroactive, in the sense that it applies to offenses committed
both before and after its entry into force, provided that the offense was an offense
under the laws of both parties at the time the request is made.
A Technical Analysis explaining in detail the provisions of the Agreement is being
prepared by the United States negotiating delegation and will be submitted
separately to the Senate Committee on Foreign Relations.
The Department of Justice joins the Department of State in favoring approval of
this Treaty by the Senate at an early date.
Respectfully submitted,
MADELEINE ALBRIGHT.
The Government of the United States of America and the Government of Hong
Kong, having been duly authorised to conclude this Agreement by the sovereign
government which is responsible for its foreign affairs (hereinafter called “the
Parties”);
Desiring to make provision for effective cooperation in the suppression of crime
and for the reciprocal surrender of fugitive offenders;
Have agreed as follows:
ARTICLE 1
Obligation to Surrender
The Parties agree to surrender to each other, subject to the provisions laid down
in this Agreement, any person who is found in the jurisdiction of the requested
Party and who is wanted by the requesting Party for prosecution or for the
imposition or enforcement of a sentence in respect of an offence described in
Article 2.
ARTICLE 2
Description of Offences
(1) Surrender of fugitive offenders shall be granted for an offence coming within
any of the following descriptions of offences in so far as it is according to the laws
of both Parties punishable by imprisonment or other form of detention for more
than one year, or by a more severe penalty:
(i) Murder; manslaughter; assault with intent to commit murder;
(ii) Aiding, abetting, counselling or procuring suicide;
(iii) Maliciously wounding; maiming; inflicting grievous bodily harm; assault
occasioning actual bodily harm;
(iv) Offences of a sexual nature, including rape, sexual assault, indecent
assault, unlawful sexual acts upon children or persons with mental disabilities;
(v) Kidnapping; abduction; false imprisonment; dealing or trafficking in
slaves or other persons; taking a hostage;
(vi) Criminal intimidation; blackmail; extortion;
(vii) Offences against the laws relating to drugs, including narcotics and
psychotropic substances and precursors and essential chemicals used in the
illegal manufacture of narcotic drugs and psychotropic substances, and
offences relating to the proceeds of drug trafficking;
(viii) Offences relating to possession or laundering of proceeds obtained
from the commission of any offence for which surrender may be granted under
this Agreement;
(ix) Criminal exploitation of children, whether for sexual or other purposes
(including commercial dealing in child pornography);
(x) Obtaining property or pecuniary advantage by deception; theft; robbery;
burglary, housebreaking, or similar offences; unlawful handling or receiving of
property; false accounting; embezzlement; any other offence in respect of
property involving fraud;
(xi) Offences involving the unlawful use of computers;
(xii) Offences against bankruptcy laws;
(xiii) Offences against the laws relating to corporations or companies,
including offences committed by officers, directors and promoters;
(xiv) Offences relating to securities and futures trading;
(xv) Any offence relating to counterfeiting; any offence against the laws
relating to forgery or uttering what is forged;
(xvi) An offence against the law relating to bribery of persons, including
public officials, as well as unlawful payments connected with public contracting
or other expenditures of public funds;
(xvii) Perjury and subornation of perjury; false statements; attempting to
pervert or obstruct the course of justice;
(xviii) Criminal damage, including arson;
(xix) An offence against the law relating to firearms, weapons, or explosives;
(xx) An offence relating to the protection of public health or the environment;
(xxi) An offence against the laws relating to protection of intellectual
property, copyrights, patents, or trademarks;
(xxii) Offences relating to fiscal matters, taxes or duties, notwithstanding that
the law of the requested Party does not impose the same kind of tax or duty or
does not contain a tax, duty, or customs regulation of the same kind as the law
of the requesting Party;
(xxiii) An offence against the laws relating to the control of exportation or
importation of goods of any type, or the international transfer of funds;
(xxiv) Smuggling; offences against laws relating to the import or export of
prohibited items, including historical and archaeological as well as other items;
(xxv) Immigration offences including fraudulent acquisition or use of a
passport or visa;
(xxvi) Arranging, for financial gain, the illegal entry of persons into the
jurisdiction of the requesting Party;
(xxvii) An offence relating to gambling or lotteries;
(xxviii) Mutiny or other mutinous acts committed on board a vessel at sea;
(xxix) Piracy;
(xxx) Unlawful use, destruction, possession, control, seizure or hijacking of
aircraft, vessels or other means of transportation;
(xxxi) Genocide or direct and public incitement to commit genocide;
(xxxii) Offences under multilateral international conventions, binding on the
Parties, for which fugitive offenders may be surrendered;
(xxxiii) Impeding the arrest, detection or prosecution of a person who has or
is believed to have committed an offence for which surrender may be granted
under this Agreement;
(xxxiv) Offences related to unlawful escape from custody, or flight to avoid
prosecution;
(xxxv) Aiding, abetting, counselling or procuring the commission of, inciting,
being an accessory before or after the fact to, or attempting or conspiring to
commit any offence for which surrender may be granted under this Agreement;
(xxxvi) Any other offence which is punishable under the laws of both Parties
by imprisonment or other form of detention for more than one year, or by a
more severe penalty, unless surrender for such offence is prohibited by the
laws of the requested Party.
(2) Where surrender of a fugitive offender is requested for the purpose of
carrying out a sentence, a further requirement shall be that, in the case of a period
of imprisonment or detention, at least six months remain to be served.
(3) for the purpose of this Article, in determining whether an offence is an
offence against the law of the requested Party, the conduct of the person shall be
examined by reference to the totality of the acts or omissions alleged against the
person without reference to the elements of the offence prescribed by the law of
the requesting Party.
(4) An offence shall fall within the description of offences in this Article:
(a) whether or not the laws of the Parties place the offence within the same
category of offences or describe the offence by the same terminology; or
(b) whether or not the offence is one for which United States federal law
requires the showing of such matters as interstate transportation, or use of the
mails or of other facilities affecting interstate or foreign commerce, such
matters being merely for the purpose of establishing jurisdiction in a United
States federal court.
(5) for the avoidance of doubt, an offence under military law, which is not an
offence under ordinary criminal law, shall not be considered to be an offence for
purposes of paragraph (1) of this Article.
ARTICLE 3
Surrender of Nationals
(1) Except as provided in paragraphs (2) and (3) of this Article, surrender shall
not be refused on grounds relating to the nationality of the person sought.
(2) the executive authority of the Government of the United States of America
reserves the right to refuse the surrender of nationals of the United States of
America in cases in which the requested surrender relates to the defence, foreign
affairs or essential public interest or policy of the United States of America.
(3) the executive authority of the Government of Hong Kong reserves the right
to refuse the surrender of nationals of the State whose government is responsible
for the foreign affairs relating to Hong Kong in cases in which:
(a) the requested surrender relates to the defence, foreign affairs or essential
public interest or policy of the State whose government is responsible for the
foreign affairs relating to Hong Kong, or
(b) the person sought neither has the right of abode in Hong Kong nor has
entered Hong Kong for the purpose of settlement, and the State whose
government is responsible for the foreign affairs relating to Hong Kong has
jurisdiction over the offence relating to the requested surrender and has
commenced or completed proceedings for the prosecution of that person.
(4) in cases in which the person sought by the United States of America neither
has the right of abode in Hong Kong nor has entered Hong Kong for the purpose
of settlement and the State whose government is responsible for the foreign affairs
relating to Hong Kong has jurisdiction over the offence and is investigating the
offence, action on the request may be deferred until such time as the investigation
has been expeditiously concluded.
(5) Where the right to refuse surrender is exercised in accordance with
paragraph (2) or paragraph (3)(a) of this Article, the requesting Party may request
that the case be submitted to the competent authorities of the requested Party in
order that proceedings for prosecution may be considered.
ARTICLE 4
Capital Punishment
(1) When the offence for which surrender is sought is punishable by death under
the laws of the requesting Party and is not punishable by death under the laws of
the requested Party, the requested Party may refuse surrender unless the
requesting Party provides assurances that the death penalty will not be imposed or,
if imposed, will not be carried out.
(2) in instances in which a requesting Party has provided an assurance that the
death penalty will not be carried out, the death penalty, if imposed by the courts of
the requesting Party, shall not be carried out.
ARTICLE 5
Prior Proceedings
(1) Surrender shall not be granted when the person sought has been convicted
or acquitted in the requested Party for the offence for which surrender is
requested.
(2) Surrender shall not be precluded by the fact that the authorities in the
requested Party have decided not to prosecute the person sought for the acts for
which surrender is requested or to discontinue any criminal proceedings which
have been instituted against the person sought for those acts.
ARTICLE 6
Political Offences
(1) a fugitive offender shall not be surrendered if the offence of which that person
is accused or was convicted is an offence of a political character.
(2) for the purposes of this Article, the following offences shall not be considered
to be offences of a political character:
(a) murder or other willful crime against the person of the Head of State of
the United States, or, in the case of Hong Kong, the Head of State whose
government is responsible for its foreign affairs, or in either case of a member
of the Head of State’s immediate family;
(b) an offence for which both Parties have an obligation pursuant to a
multilateral international agreement to surrender the person sought or to submit
the case to their competent authorities for decision as to prosecution;
(c) a conspiracy or attempt to commit any of the foregoing offences, or
aiding or abetting a person who commits or attempts to commit such offences.
(3) Notwithstanding the terms of paragraph (2) of this Article, surrender shall not
be granted if the competent authority of the requested Party, which for the United
States shall be the executive authority, determines:
(a) that the request was politically motivated;
(b) that the request for surrender, though purporting to be made on account
of an offence for which surrender may be granted, 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; or
(c) that the person sought is likely to be denied a fair trial or punished on
account of his race, religion, nationality, or political opinions.
ARTICLE 7
Humanitarian Considerations
The competent authority of the requested Party, which for the United States shall
be the executive authority, may refuse the surrender of a fugitive when such
surrender is likely to entail exceptionally serious consequences related to age or
health.
ARTICLE 8
Required Documents
(1) 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.
(2) All requests shall be accompanied by:
(a) a description of the person sought, together with any other information
which would help to establish his identity and nationality including, if known,
his whereabouts;
(b) information describing the facts of the offence and the procedural history
of the case; and
(c) a statement of the provisions of the law describing the offence for which
surrender is requested and a statement of the punishment which can be
imposed therefor and a specification of any time limit which is imposed on the
institution of proceedings.
(3) If the request relates to a person wanted for prosecution, it shall also be
accompanied by a copy of the warrant of arrest issued by a judge, magistrate or
other competent authority of the requesting Party and by such evidence as,
according to the law of the requested Party, would justify his committal for trial if
the offence had been committed within the jurisdiction of the requested Party.
(4) If the request relates to a person found guilty, convicted or sentenced, it shall
also be accompanied by:
(a) a copy of any certificate or record in relation to the finding of guilt, the
conviction or the sentence; and
(b) if the person was found guilty or convicted but not sentenced, a
statement or record to that effect by the appropriate court and a copy of the
warrant of arrest; or
(c) if the person was sentenced, a statement that the sentence is enforceable
and indicating how much of the sentence has still to be served.
(5) All documents submitted by the requesting Party in accordance with this
Agreement shall be in or translated into an official language of the requested Party,
or any other language agreed upon by the Parties.
ARTICLE 9
Admissibility and Authentication
Documents accompanying a request for surrender shall be received and
admitted as evidence if:
(a) in the case of a request from the United States of America, they are:
(i) signed or certified by a state or federal judge, magistrate or official of
the United States of America, and
(ii) sealed with the official seal of the competent authority of the United
States of America;
(b) in the case of a request from Hong Kong, they are certified by the
principal consular officer of the United States resident there; or
(c) they are certified or authenticated in any other manner accepted by the
law of the requested Party.
ARTICLE 10
Provisional Arrest
(1) in urgent cases the person sought may, in accordance with the law of the
requested Party, be provisionally arrested on the application of the requesting
Party.
(2) the application shall contain a description of the person sought, information
as to his whereabouts, an indication of intention to request his surrender, a
statement of the existence and terms of a warrant of arrest or that the person has
been found guilty, convicted or sentenced, a statement of the maximum punishment
that can be imposed or the punishment that has been imposed for the offence, and
a statement of the acts or omissions (including time and place) alleged to constitute
the offence.
(3) the requesting Party shall be notified without delay of the disposition of its
application and the reasons for any refusal.
(4) An application for provisional arrest shall be in writing and shall be
forwarded through the same channels as a request for surrender or through the
International Criminal Police Organisation (Interpol).
(5) the provisional arrest of the person sought shall be terminated upon the
expiration of sixty days from the date of his arrest if the request for his surrender
supported, as required, by the documents referred to in paragraphs (2) to (4) of
Article 8 have not been received by the requested Party. This provision shall not
prevent his re-arrest or surrender if the request for his surrender is received
subsequently.
ARTICLE 11
Concurrent Requests
If the surrender of a fugitive offender is requested concurrently by one of the
Parties and a State or States with which the United States of America or Hong
Kong, whichever is being requested, has arrangements for the surrender of fugitive
offenders, the executive authority of the requested Party shall make its decision
having regard to all the circumstances, including the relevant provisions of such
arrangements, the place of commission of the offences, their relative seriousness,
the respective dates of the requests, the nationality of the fugitive offender, the
nationality of the victim, and the possibility of subsequent surrender to another
jurisdiction.
ARTICLE 12
Representation and Expenses
(1) 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 a request for the surrender of a fugitive offender. in the
event that the requesting Party arranges its own additional legal representation and
assistance, it shall bear any additional expenses incurred.
(2) the requesting Party shall bear the expenses related to the translation of
documents and the international transportation of the person surrendered from the
jurisdiction of the requested Party. the requested Party shall bear all other
expenses incurred in its jurisdiction.
(3) Neither Party shall make any pecuniary claim against the other Party arising
out of the arrest, detention, examination, or surrender of persons sought under this
Agreement.
ARTICLE 13
Standard of Proof
A fugitive offender shall be surrendered only if the evidence be found sufficient
according to the law of the requested Party either to justify the committal for trial
of the person sought if the offence of which he is accused had been committed in
the territory of the requested Party or to establish that he is the person found guilty,
convicted or sentenced by the courts of the requesting Party.
ARTICLE 14
Terms of Surrender
(1) If a fugitive offender is to be surrendered, the person sought 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.
(2) the requested Party shall promptly notify the requesting Party of its decision
on the request for surrender. If the request is denied in whole or in part, the
requested Party, to the extent permitted under its law, shall provide an explanation
of the reasons for the denial. the requested Party shall provide copies of the
pertinent judicial decisions upon request.
(3) Subject to the provisions of paragraph (4) of this Article, if the requesting
Party does not take custody of the person claimed on the date agreed by the two
Parties, he may be released from custody, and the executive authority of the
requested Party may subsequently refuse to surrender him for the same offence.
(4) If circumstances beyond its control prevent a Party from surrendering or
taking over the person to be surrendered, it shall notify the other Party. in such
case, 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)
of this Article shall apply.
ARTICLE 15
Transfer of Property
When a person is surrendered pursuant to Articles 1 or 18 of this Agreement,
the requested Party shall, so far as its law allows and subject to such conditions as
it may impose having regard to the rights of other claimants, furnish the requesting
Party with all sums of money and other articles:
(a) which may serve as proof of the offences to which the request relates; or
(b) which may have been acquired by the person sought as a result of the
offence and are in his possession.
ARTICLE 16
Speciality
(1) a fugitive offender who has been surrendered shall not be proceeded against,
sentenced or detained with a view to the carrying out of a sentence for any offence
committed prior to his surrender other than:
(a) the offence in respect of which his return is ordered;
(b) any lesser offence, however described, disclosed by the facts in respect
of which his return was ordered, provided such an offence is an offence for
which he can be returned under this Agreement;
(c) any other offence for which surrender may be granted under this
Agreement in respect of which the requested Party consents to his so being
proceeded against, sentenced or detained. for the purpose of this
sub-paragraph:
(i) the requested Party may require the submission of the documents
called for in Article 8; and
(ii) the person surrendered may be detained by the requesting Party for
up to ninety days while the request is being processed.
(2) a person surrendered under this Agreement may not be surrendered or
transferred beyond the jurisdiction of the requesting Party for the offence for which
his surrender was granted, or for an offence committed prior to his original
surrender, unless the requested Party consents.
(3) Paragraphs (1) and (2) of this Article shall not prevent a person being
proceeded against, sentenced or detained, or surrendered to another jurisdiction, if
he has had an opportunity to leave the jurisdiction of the Party to which he has
been surrendered and has not done so within thirty days or has voluntarily returned
to that jurisdiction having left it.
ARTICLE 17
Temporary and Deferred Surrender
(1) If a request for surrender is made in respect of a person who is serving a
sentence in accordance with the laws of the requested Party, that Party may
temporarily surrender such person to the requesting Party for the purpose of
prosecution.
(2) If a request for surrender is made in respect of a person who is being
proceeded against by the requested Party, the requested Party:
(a) shall proceed with the proceedings for surrender after the prosecution
against such person has been concluded and he is acquitted; or
(b) may, if such person is convicted and sentenced to imprisonment,
proceed with the proceedings for surrender and, upon his committal,
temporarily surrender that person to the requesting Party for the purpose of
prosecution.
(3) Where a person is temporarily surrendered, he shall be kept in custody by
the requesting Party and 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
(1) If the person sought consents to surrender to the requesting Party, the
requested Party may surrender the person as expeditiously as possible without
further proceedings.
(2) to the extent required under the law of the requested Party, the provisions of
Article 16 shall apply to a person surrendered pursuant to this Article.
ARTICLE 19
Transit
(1) Either Party may authorise transportation through its jurisdiction of a person
surrendered to the other Party by a third State. a request for transit shall be made
in writing and shall contain a description of the person being transported and a
brief statement of the facts of the case. a person in transit may be detained in
custody during the period of transit.
(2) No authorisation is required where air transportation is used and no landing
is scheduled in the jurisdiction of the Party. If an unscheduled landing occurs in the
jurisdiction of the other Party, the other Party may require the request for transit as
provided in paragraph (1). That Party shall detain the person to be transported
until the request for transit is received and 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
(1) This 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.
(2) Either Party may terminate the Agreement at any time by giving notice to the
other in writing. in that event, the Agreement shall cease to have effect six months
after the receipt of the notice.
(3) This Agreement shall apply to 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. Articles 4 and 16 of this Agreement shall apply to fugitive offenders
who have been surrendered between the Parties prior to the entry into force of this
Agreement.
(4) This Agreement shall apply to offences committed before as well as after it
enters into force provided that, at the time of making the request, the offence is an
offence under the laws of both Parties.
IN WITNESS WHEREOF, the undersigned, being duly authorised by their
respective governments, have signed this Agreement.
DONE at Hong Kong, in duplicate, this twentieth day of December one
thousand nine hundred and ninety six in the English and Chinese languages, both
texts being equally authentic.
FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA:
[Signature]
FOR THE GOVERNMENT OF HONG KONG:
[Signature]
S. Treaty Doc. No. 105-3, 1996 WL 799154 (Treaty)