Hong Kong Regulations

FUGITIVE OFFENDERS (AUSTRALIA) ORDER - SCHEDULE SCHEDULE

[section 2]

AGREEMENT FOR THE SURRENDER OF ACCUSED AND CONVICTED PERSONS BETWEEN THE
GOVERNMENT OF HONG KONG AND THE GOVERNMENT OF AUSTRALIA

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 Australia

Desiring to make provision for the surrender of persons accused or convicted
of a criminal offence;

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

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)    offences relating to the unlawful taking of human life;

        (ii)   genocide;

        (iii)  offences relating to unlawful wounding or injuring; assault
               including assault occasioning bodily harm and threats to kill;
               intentional or reckless endangering of life;

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

        (v)    offences relating to the unlawful termination of pregnancy;

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

        (vii)  stealing, abandoning, exposing or unlawfully detaining a child;
               any other offences involving the exploitation of children;

        (viii) offences of a sexual nature including rape, sexual assault,
               indecent assault and unlawful sexual acts upon children;
               statutory sexual offences;

        (ix)   offences against laws relating to prostitution and premises
               kept for the purposes of prostitution;

        (x)    offences against laws relating to drugs, including narcotics
               and psychotropic substances;

        (xi)   theft, robbery, burglary (including breaking and entering);
               blackmail and extortion; handling or receiving stolen property;
               any offence against the law relating to unlawful deprivation of
               property;

        (xii)  criminal damage to property; arson;

        (xiii) offences involving the unlawful use of computers;

        (xiv)  offences against the laws relating to fraudulent activities;
               obtaining property, money, valuable securities or pecuniary
               advantage by false pretences or deception; embezzlement;
               conspiracy to defraud; false accounting;

        (xv)   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;

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

        (xvii) offences against the laws relating to bankruptcy or insolvency;

        (xviii) offences against the laws relating to companies and
               securities;

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

        (xx)   offences against the laws relating to the administration of
               justice; perjury; subornation of perjury; attempting to pervert
               the course of justice;

        (xxi)  offences relating to unlawful escape from custody; mutiny in
               prison;

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

        (xxiii) unlawful use, possession, control, seizure or hijacking of
               aircraft, vessels or other means of transportation;

        (xxiv) piracy;

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

        (xxvi) smuggling; offences against law relating to the import and
               export of prohibited items, including historical and
               archaeological items;

        (xxvii) facilitating for gain the illegal immigration of persons;

        (xxviii) offences for which surrender may be granted under
               international conventions binding on the Parties; offences
               created as a result of decisions of international organisations
               which are binding on the Parties;

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

        (xxx)  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;

        (xxxi) any other offences for which surrender may be granted in
               accordance with the laws of both Parties.

(2) Where surrender 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 purposes of this Article, in determining whether an offence is an
offence punishable under the laws of both Parties the totality of the acts or
omissions alleged against the person whose surrender is sought shall be taken
into account 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 against the law of the requesting Party at the time it
was committed and an offence against the law of the requested Party at the
time the request for surrender is received.

ARTICLE 3

SURRENDER OF NATIONALS

(1) The Government of Australia reserves the right to refuse the surrender of
its 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.

(2) Where the requested Party exercises this right, the requesting Party may
request that the case be submitted to the competent authorities of the
requested Party in order that proceedings for prosecution of the person may be
considered.

ARTICLE 4

DEATH PENALTY

If the offence for which surrender 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 this penalty will not be imposed
or if imposed will not be carried out.

ARTICLE 5

BASIS FOR SURRENDER

A person 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 that person is accused
had been committed 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 6

REFUSAL OF SURRENDER

(1) A person 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 trial or
        punished, detained or restricted in his or her personal liberty by
        reason of race, religion, nationality or political opinions.

(2) For the purposes of paragraph (1), an offence of a political character
does not include any offence in respect of which both Parties have an
obligation in accordance with a multilateral agreement either to surrender the
person sought or to submit the case to their competent authorities for
decision as to prosecution.

(3) Surrender for an offence shall be refused if the person whose surrender is
sought cannot under the law of either Party be prosecuted or punished for that
offence.

ARTICLE 7

DISCRETIONARY REFUSAL OF SURRENDER

Surrender may be refused if the requested Party considers that:

   (a)  the offence is, having regard to all the circumstances, not
        sufficiently serious to warrant the surrender;

   (b)  there has been excessive delay, for reasons which cannot be imputed to
        the person sought, in bringing charges, in bringing the case to trial
        or in making the person serve his or her sentence or the remainder
        thereof;

   (c)  the offence for which surrender is sought was committed within the
        jurisdiction of its courts;

   (d)  the surrender might place that Party in breach of its obligations
        under international treaties; or

   (e)  in the circumstances of the case, the surrender would be incompatible
        with humanitarian considerations in view of the age, health or other
        personal circumstances of the person sought.

ARTICLE 8

POSTPONEMENT OF SURRENDER

If the person sought is being proceeded against or is under punishment in the
jurisdiction of the requested Party for any other offence, surrender shall be
deferred until the conclusion of the proceedings and the execution of any
punishment awarded.

ARTICLE 9

THE REQUEST AND SUPPORTING DOCUMENTS

(1) Requests for surrender and related documents shall be conveyed through the
appropriate authority as may be notified from time to time by one Party to the
other.

(2) The request shall be accompanied by:

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

   (b)  a statement of each offence for which surrender is sought and a
        statement of the acts and omissions which are alleged against the
        person in respect of each offence; and

   (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 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 committal for trial if the
offence had been committed within the jurisdiction of the requested Party.

(4) If the request relates to a person already convicted or sentenced, it
shall also be accompanied by:

   (a)  a copy of the certificate of the conviction or sentence; and

   (b)  if the person was convicted but not sentenced, a statement to that
        effect by the appropriate court and a copy of the warrant of arrest;
        or

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

ARTICLE 10

AUTHENTICATION

(1) Any document that, in accordance with Article 9, accompanies a request for
surrender shall be admitted in evidence, if authenticated, in any proceedings
in the jurisdiction of the requested Party.

(2) A document is authenticated for the purposes of this Agreement if:

   (a)  it purports to be signed or certified by a Judge, Magistrate or other
        officer authorised by the requesting Party; and

   (b)  it purports to be sealed with an official or public seal of the
        requesting Party or of an officer of the requesting Party.

ARTICLE 11

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 12

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. The application for provisional arrest shall contain an
indication of intention to request the surrender of the person sought and the
text of a warrant of arrest or a judgment of conviction against that person, a
statement of the penalty for that offence, and such further information, if
any, as would be necessary to justify the issue of a warrant of arrest had the
offence been committed, or the person sought convicted, within the
jurisdiction of the requested Party.

(2) An application for provisional arrest may be forwarded through the same
channels as a request for surrender or through the International Criminal
Police Organisation (Interpol).

(3) The provisional arrest of the person sought shall be terminated upon the
expiration of forty-five days from the date of arrest if the request for
surrender has not been received, unless the requesting Party can justify
continued provisional arrest of the person sought in which case the period of
provisional arrest shall be terminated upon the expiration of a reasonable
time not being more than a further fifteen days. This provision shall not
prevent the re-arrest or surrender of the person sought if the request for
that person's surrender is received subsequently.

ARTICLE 13

ADDITIONAL INFORMATION

(1) If the information communicated 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
information and may fix a time-limit for receipt thereof.

(2) If the person whose surrender is sought is under arrest and the additional
information furnished is not sufficient in accordance with this Agreement or
is not received within the time specified, the person may be discharged. Such
discharge shall not preclude the requesting Party from making a fresh request
for the surrender of the person.

ARTICLE 14

CONCURRENT REQUESTS

If the surrender of a person is requested concurrently by one of the Parties
and a state with whom Australia or Hong Kong, whichever is being requested,
has agreements or arrangements for the surrender of accused and convicted
persons, the requested Party shall make its decision 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 and ordinary place of residence of the person
sought and the possibility of subsequent surrender to another state, and
furnish the other Party with information justifying its decision in the event
of surrender of the person to another jurisdiction.

ARTICLE 15

REPRESENTATION AND COSTS

(1) The requested Party shall make all necessary arrangements for and meet the
costs of any proceedings arising out of a request for surrender and shall
otherwise represent the interests of the requesting Party.

(2) If it becomes apparent that exceptional expenses may be incurred as a
result of a request for surrender the Parties shall consult with a view to
deciding how these expenses will be met.

(3) The requested Party shall bear the expenses arising out of the arrest and
detention of the person whose surrender is sought until that person is
surrendered. The requesting Party shall bear all subsequent expenses.

ARTICLE 16

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.

(2) When a person is to be surrendered, that person shall be sent by the
authorities of the requested Party to such convenient place of departure
within that Party's jurisdiction as the requesting Party shall indicate.

(3) Subject to the provisions of paragraph (4) of this Article, the requesting
Party shall remove the person within the period specified by the requested
Party and if the person is not removed within that period the requested Party
may 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 two Parties shall agree a new date for surrender and the
provisions of paragraph (3) of this Article shall apply.

ARTICLE 17

SURRENDER OF PROPERTY

(1) When a request for surrender is granted the requested Party shall, so far
as its law allows hand over, upon request, to the requesting Party all
articles, including sums of money:

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

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

(2) The requested Party may temporarily retain any property mentioned in
paragraph (1) if it is the subject of, or is required for, proceedings in that
jurisdiction, or it may temporarily surrender it on condition that it be
returned free of charge.

(3) These provisions 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 possible after the end of the proceedings.

(4) The property mentioned in paragraph (1) shall, if the requesting Party so
requests, be surrendered even though the person cannot be surrendered owing to
death, disappearance or escape.

ARTICLE 18

RULE OF SPECIALITY

(1) A person who has been surrendered shall not be proceeded against,
sentenced or detained with a view to the carrying out of any sentence for any
offence committed prior to surrender other than:

   (a)  the offence in respect of which return is ordered;

   (b)  any lesser offence, however described, disclosed by the facts in
        respect of which return was ordered provided such an offence is an
        offence for which the person sought can be returned under this
        Agreement;

   (c)  any other offence being an offence for which surrender may be granted
        under this Agreement in respect of which the requested Party consents
        to the person being dealt with; unless that person has first had an
        opportunity to leave Australia or Hong Kong, as the case may be, and
        has not done so within forty days of having been free to leave or has
        returned after having left.

(2) A Party whose consent is requested under paragraph (1)(c) may require the
submission of any document or statement mentioned in Article 9.

ARTICLE 19

RESURRENDER

(1) Where a person has been surrendered to the requesting Party by the
requested Party, that person is not liable to surrender or rendition to any
other state or jurisdiction for an offence committed before that person's
surrender unless:

   (a)  the requested Party consents to that surrender or rendition; or

   (b)  the person has first had an opportunity to leave Australia or Hong
        Kong, as the case may be, and has not done so within forty days of
        having been free to leave or has returned after having left.

(2) A Party whose consent is requested under paragraph (1)(a) may require the
submission of any document or statement mentioned in Article 9.

ARTICLE 20

TRANSIT

(1) 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)(b) of Article 9.

(2) Permission, if given, for the transit of a person shall include permission
for the person to be held in custody during transit.

ARTICLE 21

ENTRY INTO FORCE 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 commission of the offence or
offences set out in the request.

(3) Each of the Parties may terminate this Agreement at any time by giving
notice in writing to the other through the same channels as a request for
surrender. In that event the Agreement shall cease to have effect six months
after the receipt of notice.

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

Done at Hong Kong, this fifteenth day of November one thousand nine hundred
and ninety three, in the Chinese and English languages, each text being
equally authentic.