Hong Kong Regulations

FUGITIVE OFFENDERS (MALAYSIA) ORDER - SCHEDULE 1

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


[section 2]
(L.N. 82 of 2007)

The Government 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 Malaysia;

Desiring to make provision 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, being accused or convicted of 
an offence under Article 2 committed within the jurisdiction of the one 
Party, is found within the jurisdiction of the other Party.

ARTICLE 2

NATURE 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 for 
not less than one year or by a more severe penalty;
(i)	murder;
(ii)	manslaughter or culpable homicide not amounting to murder;
(iii)	aiding, abetting, counselling or procuring suicide;
(iv)	wounding, inflicting grievous bodily harm; assault occasioning 
actual bodily harm;
(v)	rape;
(vi)	indecent assault or use of criminal force with intent to 
outrage modesty;
(vii)	an offence punishable under the laws relating to women and 
girls;
(viii)	gross indecency with a child;
(ix)	abduction and kidnapping;
(x)	false imprisonment;
(xi)	dealing in slaves or other persons;
(xii)	an offence against the law relating to dangerous drugs 
including narcotics and psycho-tropic substances;
(xiii)	an offence relating to the possession or laundering of 
proceeds obtained from the commission of any offence for which surrender 
may be granted;
(xiv)	cheating, criminal breach of trust or obtaining property or 
pecuniary advantage by deception;
(xv)	housebreaking or burglary, theft and handling or receiving 
stolen property;
(xvi)	robbery;
(xvii)	extortion or blackmail;
(xviii)	embezzlement or criminal misappropriation;
(xix)	criminal breach of trust;
(xx)	fraud, conspiracy to commit fraud or to defraud;
(xxi)	an offence of criminal conspiracy;
(xxii)	an offence against bankruptcy laws;
(xxiii)	an offence against the laws relating to companies and 
securities;
(xxiv)	an offence relating to fiscal matter, 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;
(xxv)	counterfeiting, forgery and related offences;
(xxvi)	an offence against the laws relating to bribery and 
corruption;
(xxvii)	perjury; attempting to pervert the course of justice;
(xxviii)	criminal damage, including arson or mischief by fire;
(xxix)	an offence against the law relating to firearms or 
ammunition;
(xxx)	an offence against the law relating to explosives;
(xxxi)	sinking or destroying a vessel at sea; assaults on board a 
ship on the high seas with intent to destroy life or to do grievous bodily 
harm; revolt or conspiracy to revolt by two or more persons on board a 
ship on the high seas against the authority of the master;
(xxxii)	unlawful seizure or exercise of control of an aircraft;
(xxxiii)	impeding the arrest or prosecution of a person who has or 
is believed to have committed an offence for which surrender may be 
granted under this Agreement and which is punishable according to the laws 
of both Parties by imprisonment for a period of five years or more;
(xxxiv)	smuggling;
(xxxv)	piracy;
(xxxvi)	an attempt or conspiracy or instigation or incitement to 
commit, or participation in, any offence for which surrender may be 
granted under this Agreement;
(xxxvii)	an offence for which fugitive offenders may be surrendered 
under any International Convention binding on both Parties.

(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 at least six months remains 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 purpose 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 Malaysia 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

JURISDICTION

(1)	Surrender may be refused for an offence which is regarded as 
one over which the requested Party has jurisdiction.

(2)	If surrender is refused pursuant to paragraph (1), the 
requested Party shall submit the case to its competent authorities with a 
view to causing the fugitive offender to be proceeded against under its 
laws.

ARTICLE 5

TEMPORARY AND DEFERRED SURRENDER

(1)	If the 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 the 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 6

RESTRICTIONS ON 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 his return (though purporting to be made 
on account of an offence for which surrender may be granted) is in fact 
made for the purpose of prosecuting or punishing him on account of his 
race, religion, nationality or political opinions; or
(c)	that he might, if returned, be prejudiced at his trial or 
punished, detained or restricted in his personal liberty by reason of his 
race, religion, nationality or political opinions.

(2)	For the purposes of this Agreement, the following offences 
shall not be considered to be of a political character:
(a)	murder or other wilful crime against the person of the Head of 
State of Malaysia, 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 States's immediate family;
(b)	any offence which is not to be regarded as an offence of a 
political character by virtue of an international agreement binding on 
both Parties;
(c)	an attempt or conspiracy to commit or participate in, any such 
offences.

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

ARTICLE 7

PROCEDURES AND DOCUMENTATION FOR SURRENDER

(1)	The request for surrender of a fugitive offender shall be made 
to 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 his 
identity and nationality including, if known, his 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 a 
specification of any time limit that is imposed on the institution of 
proceedings, or on the execution of any punishment imposed, for that 
offence.

(3)	If the request relates to an accused person, it shall also be 
accompanied by a 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 already convicted and 
sentenced, or convicted but not yet sentenced, it shall also be 
accompanied by:
(a)	in respect of a person convicted and sentenced, a certificate 
of the conviction and sentence and a statement showing how much of the 
sentence has not been carried out; and

(b)	in respect of a person convicted but not yet sentenced, a 
statement to that effect by the appropriate court and the warrant of 
arrest.

ARTICLE 8

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 competent authorities of the requesting Party. The application for 
provisional arrest shall contain an indication of intention to request the 
surrender of the person sought and a statement of the existence of a 
warrant of arrest or a judgment of conviction against that person, 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 been 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 his arrest if the 
request for his surrender shall not have been received. This provision 
shall not prevent the re-arrest or surrender of the person sought if the 
request for his surrender is received subsequently.

ARTICLE 9

ADDITIONAL DOCUMENTATION

(1)	If the requested Party considers that the documents furnished 
in support of the request for the surrender of a person sought are not 
sufficient to fulfill the requirements of this Agreement, that Party shall 
request the submission of necessary additional documents. The requested 
Party may set a time limit for the submission of such documents, and may 
grant a reasonable extension of the time limit upon application of the 
requesting Party setting forth reasons therefor.

(2)	If the person sought is in custody and the additional documents 
submitted are not sufficient, or if such documents are not received within 
the period specified by the requested Party, that person may be discharged 
from custody. Such discharge shall not prejudice the rearrest and the 
surrender of the person if the additional documents are subsequently 
received.

ARTICLE 10

CONCURRENT REQUESTS

If the surrender of a fugitive offender is requested concurrently by one 
of the Parties and a State or States with which Malaysia 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 order of the receipt of the 
requests, the relative seriousness and place of commission of the 
offences, the nationality of the person sought and the possibility of 
subsequent surrender to another State, and shall furnish the other Party 
with information justifying its decision in the event of surrender of the 
fugitive to another jurisdiction.

ARTICLE 11

ADMISSIBILITY AND AUTHENTICATION

The authorities of the requested Party shall admit as evidence, in any 
proceedings for the surrender of a fugitive offender, a sworn deposition 
or affirmation taken in the jurisdiction of the requesting Party, any 
warrant, any copy of any such deposition, affirmation or warrant, and any 
certificate of a conviction or sentence if it is authenticated:
(a)	in the case of a warrant by being signed, or in the case of any 
other original document by being certified, by a judge, magistrate or 
other competent authority of the requesting Party, or in the case of a 
copy by being so certified to be a true copy of the original; and
(b)	either by the oath of some witness or by being sealed with the 
official seal of the competent authority of the requesting Party;
or in any such other manner as may be permitted by the law of the 
requested Party.

ARTICLE 12

TRANSLATION

The requesting Party shall on request provide an authenticated translation 
of all documents relating to the request into a language acceptable to the 
requested Party. This provision shall not affect the admissibility of an 
untranslated document furnished by the requesting Party.

ARTICLE 13

REPRESENTATION AND COSTS

(1)	(a)	The requested Party shall, if asked by the 
requesting Party, make the necessary 
arrangements for that Party's legal representation and assistance in any 
proceedings arising out of a request for the surrender of a fugitive 
offender.
(b)	In the event that the requesting Party arranges its own legal 
representation and assistance, it shall bear any costs incurred.
(c)	Where expenses are of a substantial or extraordinary nature, 
the Parties shall consult to determine the manner in which the costs shall 
be borne.

(2)	Subject to the provisions of paragraphs (1)(b) and (1)(c) of 
this Article, expenses incurred in the jurisdiction of the requested Party 
by reason of surrender shall be borne by that Party.

(3)	The cost of sending a fugitive offender to the jurisdiction of 
the requesting Party shall be borne by that Party.

ARTICLE 14

PRIMA FACIE RULE AND TERMS OF SURRENDER

(1)	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 prove that he is the identical person convicted by the courts 
of the requesting Party.

(2)	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 the requesting 
Party shall indicate.

(3)	Subject to the provisions of paragraph (4) of this Article, if 
the requesting Party does not take custody of the person sought on the 
date agreed by the two Parties, he shall be released on the expiry of such 
period as is specified under the law of the requested Party, and 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 that case, the two Parties shall agree to a new date 
for surrendered and the provisions of paragraph (3) of this Article shall 
apply.

ARTICLE 15

SURRENDER BY CONSENT

(1)	If the person sought consents to return to the jurisdiction of 
the requesting Party after personally being advised by a competent 
judicial authority of the effect of such consent under the law of the 
requested Party, the requested Party may surrender him without formal 
surrender proceedings.

(2)	The surrender of a person pursuant to this Article shall be 
subject to Article 17.

ARTICLE 16

SURRENDER OF PROPERTY

(1)	To the extent permitted under its law, the requested Party may 
seize and surrender to the requesting Party all property (including sums 
of money) found in the possession of the fugitive offender at the time of 
his arrest which may serve as proof of the offence in respect of which 
surrender is granted.

(2)	If the property in question is liable to seizure or 
confiscation within the jurisdiction of the requested Party the latter 
may, in connection with pending proceedings, temporarily retain it or hand 
it over on condition it is returned.

(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 property shall on request be returned to the requested 
Party without charge as soon as possible after the end of the proceedings.

ARTICLE 17

RULE OF SPECIALITY

A fugitive offender who has been surrendered shall not be proceeded 
against, sentenced or kept in custody 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 being an offence for which surrender may be 
granted under this Agreement in respect of which the requested Party may 
consents to his being dealt with;
unless he has first had an opportunity to leave the jurisdiction of the 
Party to which he has been surrendered and he had not done so within forty 
days of his having been free to leave the jurisdiction or has returned to 
that jurisdiction having left it.

ARTICLE 18

RESURRENDER

A fugitive offender who has been surrendered shall not be resurrendered to 
another jurisdiction for trial or punishment for any offence that is 
committed before his return to Hong Kong or Malaysia as the case may be, 
unless
(a)	the consent of the appropriate authority of the requested Party 
has been obtained; or
(b)	he has first had an opportunity to leave the jurisdiction of 
the Party to which he has been surrendered and he had not done so within 
twenty one days of his having been free to leave the jurisdiction or has 
returned to that jurisdiction having left it.

ARTICLE 19

ADDITIONAL GROUNDS OF REFUSAL

(1)	The surrender of any person sought under the terms of this 
Agreement may be refused if it appears to the appropriate authority of the 
requested Party that:
(a)	by reason of the trivial nature of the offence of which he is 
accused or was convicted; or
(b)	by reason of the passage of time since he is alleged to have 

committed it or to have become unlawfully at large as the case may be; or
(c)	because the accusation against him 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 him.

(2)	The requested Party may also refuse to surrender a fugitive 
offender:
(a)	where the Government of Malaysia is the requested Party, where 
the surrender would significantly affect the interests of the Government 
of Malaysia in matters of defence or foreign affairs;
(b)	where the Government of Hong Kong is the requested Party, where 
the surrender would significantly affect the interests of Government 
responsible for Hong Kong's foreign affairs in matters of defence or 
foreign affairs.

ARTICLE 20

TRANSIT

(1)	Either Party may authorise transit through its area of a person 
surrendered to the other Party by a State not party to this Agreement. A 
request for transit shall be made through an authority to be notified from 
time to time by one Party to the other. The facilities of the 
International Criminal Police Organisation (INTERPOL) may be used to 
transmit such a request. It 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 kept in custody during the period transit.

(2)	No authorisation is required where air transportation is used 
and no landing is scheduled in the area of a Party. If an unscheduled 
landing occurs in the area of a Party, that Party may require the other 
Party to make a 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 96 hours of the unscheduled landing.

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

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

Done at Hong Kong this eleventh day of January One thousand nine hundred 
and ninety five in Bahasa Malaysia, in the Chinese and English languages, 
each text being equally authentic.