Hong Kong Regulations

FUGITIVE OFFENDERS (CANADA) ORDER - SCHEDULE SCHEDULE

[section 2]

AGREEMENT BETWEEN THE GOVERNMENT OF HONG KONG AND THE GOVERNMENT OF CANADA FOR
THE SURRENDER OF FUGITIVE OFFENDERS

The Government of Hong Kong, having been duly authorised to conclude this
Agreement by the sovereign government which is responsible for its foreign
affairs, and the Government of Canada (hereinafter called 'the Parties');

Desiring to make provision for the reciprocal surrender of fugitive offenders;

Affirming their respect for each other's legal system and judicial
institutions;

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 under
Article 2 of this Agreement.

ARTICLE 2

Offences

(1) Surrender 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 or manslaughter, including criminal negligence causing
               death;

        (ii)   aiding, abetting, counselling or procuring suicide;

        (iii)  maliciously wounding; aggravated assault; inflicting grievous
               bodily harm; assault occasioning bodily harm;

        (iv)   offences against the laws relating to sexual assault, including
               rape and indecent assault;

        (v)    gross indecency with a child;

        (vi)   kidnapping; abduction; false imprisonment; unlawful
               confinement; dealing in slaves or other persons; taking a
               hostage;

        (vii)  offences against the law relating to dangerous drugs, including
               narcotics and psychoactive/psychotropic substances;

        (viii) theft; robbery; burglary, including breaking and entering;
               blackmail; extortion; handling or receiving stolen property;

        (ix)   offences against the laws relating to fraud, including
               conspiracy to defraud; false accounting; obtaining property or
               pecuniary advantage by false pretences;

        (x)    offences against bankruptcy law;

        (xi)   false statements by company directors and other officers;

        (xii)  offences against the laws relating to counterfeiting;

        (xiii) offences against the laws relating to forgery or uttering a
               forged or false document;

        (xiv)  offences against the laws relating to corruption, including
               bribery, secret commissions and breach of trust;

        (xv)   perjury and subornation of perjury; attempting to pervert the
               course of justice;

        (xvi)  arson; criminal damage or mischief, including mischief in
               relation to computer data;

        (xvii) offences against the laws relating to firearms, ammunition or
               explosives;

        (xviii) offences against the laws relating to protection of public
               health and the environment;

        (xix)  piracy;

        (xx)   unlawful seizure, hijacking or other offences relating to the
               unlawful control of aircraft;

        (xxi)  offences relating to unlawful escape from custody;

        (xxii) smuggling, including offences against the laws applying to the
               import and export of historical and archaeological items;

        (xxiii) facilitating, for gain, the illegal immigration of persons;

        (xxiv) offences for which fugitive offenders may be surrendered under
               international conventions binding on the Parties; offences
               created as a result of decisions of international organisations
               which are binding on the Parties;

        (xxv)  offences involving fraud relating to fiscal matters, taxes or
               duties;

        (xxvi) offences related to possession or laundering of proceeds
               obtained from the commission of any offence for which surrender
               may be granted under this Agreement;

        (xxvii) an attempt, incitement or conspiracy to commit, or any
               assistance or other participation in, any offence for which
               surrender may be granted under this Agreement.

(2) Where surrender of a fugitive offender is requested for the purpose of
carrying out a sentence, a further requirement shall be that a period of
imprisonment or detention of at least six months remains 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) For the purposes of paragraph (1) of this Article, an offence shall be an
offence according to the laws of both Parties if the conduct constituting the
offence was an offence in the requesting Party at the time it was committed
and an offence in the requested Party at the time the request for surrender is
received.

ARTICLE 3

Surrender of Nationals

The Government of Hong Kong reserves the right to refuse the surrender of
nationals of the state whose Government is responsible for its foreign
affairs. Where the Government of Hong Kong exercises this right, the
Government of Canada may request that the case be submitted to the competent
authorities of Hong Kong in order that proceedings for prosecution of the
person may be considered.

ARTICLE 4

Death Penalty

If the offence for which surrender of a fugitive offender is requested under
this Agreement is punishable according to the law of the requesting Party with
the death penalty, and if in respect of such an offence the death penalty is
not provided for by the law of the requested Party or is not normally carried
out, surrender may be refused unless the requesting Party gives such
assurances as the requested Party considers sufficient that a sentence of
death will not be imposed or, if imposed, will not be carried out.

ARTICLE 5

Mandatory Refusal to Surrender

(1) A fugitive offender shall not be surrendered if the requested Party has
substantial grounds for believing:

   (a)  that the offence of which that person is accused or was convicted is
        an offence of a political character;

   (b)  that the request for surrender (though purporting to be made on
        account of an offence for which surrender may be granted) is in fact
        made for the purpose of prosecution or punishment on account of race,
        religion, nationality or political opinions; or

   (c)  that the person might, if returned, be prejudiced at that person's
        trial or punished, detained or restricted in his or her personal
        liberty by reason of race, religion, nationality or political
        opinions.

(2) A fugitive offender who has been finally acquitted, convicted or pardoned
or whose prosecution is barred or whose conviction has been set aside under
the law of the requesting or requested Party for any offence set out in the
request shall not be surrendered for that offence.

ARTICLE 6

Discretionary Refusal to Surrender

(1) The requested Party may refuse to surrender a fugitive offender for an
offence which is regarded by its law as having been committed within the
jurisdiction of its courts. If the requested Party so refuses, the requesting
Party may request that the case be submitted to its competent authorities in
order that proceedings for prosecution may be considered.

(2) The surrender of any person sought under the terms of this Agreement may
be refused if it appears to the requested Party that:

   (a)  by reason of the trivial nature of the offence of which the person is
        accused or was convicted; or

   (b)  by reason of the passage of time since the person is alleged to have
        committed it or has become unlawfully at large as the case may be; or

   (c)  because the accusation against the person is not made in good faith in
        the interests of justice; or

   (d)  because there exist valid humanitarian grounds, it would, having
        regard to all the circumstances, be unjust or oppressive to return the
        person.

(3) The requested Party may refuse surrender where the person sought has been
finally acquitted or convicted in a third jurisdiction for the same offence
for which surrender is requested and, if convicted, the sentence imposed has
been fully enforced or is no longer enforceable.

ARTICLE 7

Postponed Surrender

If the person sought is being proceeded against or is under punishment in the
jurisdiction of the requested Party for any offence other than that for which
surrender is requested, surrender may be granted or deferred until the
conclusion of the proceedings and the execution of any punishment imposed.

ARTICLE 8

The Request and Supporting Documents

(1) Requests for the surrender of a fugitive offender shall be made to such
appropriate authority as may be notified from time to time by one Party to the
other.

(2) All requests shall be supported by:

   (a)  as accurate a description as possible of the person sought, together
        with any other information which would help to establish the person's
        identity, nationality and location;

   (b)  a statement and particulars of the offence for which surrender is
        requested;

   (c)  the text of the legal provisions, if any, creating the offence, and a
        statement of the punishment which can be imposed therefor and any time
        limit on the institution of proceedings or on the execution of any
        punishment for that offence.

(3) If the request relates to an accused person it shall be supported 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 committal for trial if the offence
had been committed within the jurisdiction of the requested Party. Such
evidence may include originals or copies of statements or depositions, whether
taken in the jurisdiction of the requesting Party or elsewhere, purporting to
have been taken on oath or affirmation together with any exhibits referred to
therein.

(4) If the request relates to a person already convicted, it shall be
supported by a certificate of conviction and:

   (a)  if the person has not been sentenced, a certificate or statement to
        that effect by the appropriate court and a copy of the warrant of
        arrest; or

   (b)  if the person has been sentenced, a certificate or statement that the
        sentence is enforceable and indicating how much of the sentence has
        still to be served.

(5) Documents supporting a request for surrender shall be admitted in evidence
as proof of the facts contained therein if duly authenticated. Documents are
duly authenticated if they purport to be:

   (a)  signed or certified by a judge, magistrate or an official of the
        requesting Party; and

   (b)  sealed with the official seal of a competent authority of the
        requesting Party.

(6) Any translation of documents submitted in support of a request for
surrender provided by the requesting Party shall be admitted for all purposes
in proceedings for surrender.

ARTICLE 9

Language of Documentation

All documents submitted in accordance with this Agreement shall be in or
translated into an official language of the requested Party, to be specified
by the requested Party in each case.

ARTICLE 10

Additional Documentation

If the documentation submitted by the requesting Party is found to be
insufficient to allow the requested Party to make a decision in pursuance of
this Agreement, the latter Party shall request the necessary supplementary
documentation and may fix a time limit for receipt thereof.

ARTICLE 11

Provisional Arrest

(1) In urgent cases the person sought may, at the discretion of the requested
Party and in accordance with its law, be provisionally arrested on the
application of the requesting Party.

(2) The application for provisional arrest shall contain an indication of
intention to request the surrender of the person sought, a statement of the
existence of a warrant of arrest or a judgment of conviction against that
person, information concerning identity, nationality and probable location, a
description of the person, a brief description of the offence and the facts of
the case and a statement of the sentence that can be or has been imposed for
the offence and, where applicable, how much of that sentence remains to be
served.

(3) An application for provisional arrest may be transmitted by any means
affording a record in writing through the channel notified under paragraph (1)
of Article 8 or through the International Criminal Police Organisation
(Interpol).

(4) The provisional arrest of the person sought shall be terminated upon the
expiration of sixty days from the date of arrest if the request for surrender
and supporting documents have not been received. The release of a person
pursuant to this paragraph shall not prevent the institution or continuation
of surrender proceedings if the request and the supporting documents are
received subsequently.

ARTICLE 12

Concurrent Requests

If the surrender of a fugitive offender is requested concurrently by one of
the Parties and a State or States with whom Canada or Hong Kong, whichever is
being requested, has arrangements for the surrender of fugitive offenders, the
requested Party shall make its decision in so far as its law allows having
regard to all the circumstances including the provisions in this regard in any
agreements in force between the requested Party and the requesting Parties,
the relative seriousness and place of commission of the offences, the
respective dates of the requests, the nationality of the person sought and the
possibility of subsequent surrender to another State, and notify the other
Party of its decision in the event of surrender of the fugitive to another
jurisdiction.

ARTICLE 13

Representation and Costs

(1) The requested Party shall make the necessary arrangements for legal
representation and assistance in any proceedings arising out of requests for
the surrender of a fugitive offender. In the case of requests made by Hong
Kong, the Attorney-General of Canada shall conduct the proceedings. In the
case of requests made by Canada, the proceedings shall be conducted by the
competent legal authorities in accordance with the law and practice of Hong
Kong.

(2) Expenses incurred in the jurisdiction of the requested Party arising from
the request or by reason of surrender shall be borne by that Party. If it
becomes apparent that expenses of an extraordinary nature are likely to be
incurred, the Parties shall consult to determine how these expenses shall be
met.

ARTICLE 14

Basis for Surrender

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 conduct constituting the
offence of which that person is accused had occurred in the territory of the
requested Party or to prove that the person sought is the person convicted by
the courts of the requesting Party.

ARTICLE 15

Arrangements for Surrender

(1) The requested Party shall, as soon as a decision on the request for
surrender has been made, communicate that decision to the requesting Party.
Reasons shall be given for any complete or partial refusal of a request for
surrender.

(2) The requested Party shall surrender the person sought to the appropriate
authorities of the requesting Party at a mutually convenient location in the
jurisdiction of the requested Party.

(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 Parties, the person shall be released on the expiry of thirty
days thereafter and the requested Party may subsequently refuse to surrender
that person 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
that case the Parties shall agree a new date for surrender and the provisions
of paragraph (3) of this Article shall apply.

ARTICLE 16

Surrender of Property

(1) To the extent permitted under the law of the requested Party, when a
request for surrender of a fugitive offender is granted, the requested Party:

   (a)  shall hand over to the requesting Party all articles, including sums
        of money,

        (i)    which may serve as proof of the offence; or

        (ii)   which have been acquired by the person sought as a result of
               the offence and are in that person's possession or are
               discovered subsequently.

   (b)  may, if the articles in question are liable to seizure or confiscation
        within the jurisdiction of the requested Party in connection with
        pending proceedings, temporarily retain them or hand them over on
        condition they are returned.

(2) The provisions of paragraph (1) shall not prejudice the rights of the
requested Party or of any person other than the person sought. When such
rights exist the articles shall on request be returned to the requested Party
without charge as soon as practicable after the end of the proceedings.

(3) The articles in question shall, if the requesting Party so requests, be
surrendered to that Party even if the surrender cannot be carried out due to
the death or escape of the person sought.

ARTICLE 17

Rule of Specialty

(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 surrender other than:

   (a)  the offence in respect of which surrender is granted;

   (b)  any lesser offence, however described, disclosed by the facts in
        respect of which surrender was granted provided such an offence is an
        offence for which the person sought can be surrendered under this
        Agreement and the requested Party consents;

   (c)  any other offence being an offence for which surrender may be granted
        under this Agreement and the requested Party consents; unless that
        person has first had an opportunity to leave the jurisdiction of the
        requesting Party and has not done so within forty days of having been
        free to do so or has returned voluntarily to that jurisdiction having
        left it.

(2) A Party whose consent is requested under paragraph (1)(c) of this Article
may require the submission of any document referred to in Article 8 and any
statement made by the surrendered person on the matter.

ARTICLE 18

Re-surrender

(1) Where a person has been surrendered to the requesting Party, that Party
shall not surrender the person to any other jurisdiction for an offence
committed before that person's surrender unless:

   (a)  the requested Party consents; or

   (b)  the person has first had an opportunity to leave the jurisdiction of
        the requesting Party and has not done so within forty days of having
        been free to do so or has returned voluntarily to that jurisdiction
        having left it.

(2) A party whose consent is requested under sub-paragraph (a) of paragraph
(1) of this Article may require the production of the documents submitted by
the other jurisdiction in support of its request for surrender.

ARTICLE 19

Transit

To the extent permitted by its law, transit through the jurisdiction of a
Party may be granted on a request in writing. The Party through whose
jurisdiction transit will occur may request the information referred to in
paragraph (2) of Article 11.

ARTICLE 20

Entry into Force, Suspension and Termination

(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) The provisions of this Agreement shall apply to requests made after its
entry into force regardless of the date of the commission of the offence or
offences set out in the request.

(3) Each of the Parties may suspend or terminate this Agreement at any time by
giving notice to the other through the channel notified under paragraph (1) of
Article 8. Suspension shall take effect on receipt of the relevant notice. In
the case of termination the Agreement shall cease to have effect six months
after the receipt of notice to terminate.

In witness whereof the undersigned, being duly authorised by their respective
governments have signed this Agreement.

Done at Hong Kong this 7th day of September One thousand nine hundred and
ninety three in the Chinese, English and French languages, each text being
equally authentic.