Hong Kong Regulations

FUGITIVE OFFENDERS (MALAYSIA) ORDER - SCHEDULE 2

PROTOCOL SUPPLEMENTARY TO THE AGREEMENT BETWEEN THE GOVERNMENT OF HONG KONG AND THE GOVERNMENT OF MALAYSIA FOR THE SURRENDER OF FUGITIVE OFFENDERS, DONE AT HONG KONG ON 11 JANUARY 1995

The Government of the Hong Kong Special Administrative Region of the 
People’s Republic of China, having been duly authorised to conclude this 
Protocol by the Central People’s Government of the People’s Republic of 
China and the Government of Malaysia (hereinafter referred to as “the 
Parties to this Protocol”),

Recalling the Agreement between the Government of Hong Kong and the 
Government of Malaysia for the surrender of fugitive offenders, done at 
Hong Kong on 11 January 1995;

Recognizing that the People’s Republic of China resumed the exercise of 
sovereignty over Hong Kong with effect from 1 July 1997 and in accordance 
with its constitution has on that date established the Hong Kong Special 
Administrative Region of the People’s Republic of China; 

Noting that the Government of the People’s Republic of China has confirmed 
the continued application of the said Agreement to the Hong Kong Special 
Administrative Region and its recognition as an agreement entered into 
between the Government of the Hong Kong Special Administrative Region 
under the authorisation of the Government of the People’s Republic of 
China and the Government of Malaysia;

Desiring to adopt provisions supplementary to those of the said Agreement 
to promote more effective implementation of the said Agreement, 

Have agreed as follows:

Article I

This Protocol supplements the Agreement between the Government of Hong 
Kong and the Government of Malaysia for the surrender of fugitive 
offenders, done at Hong Kong on 11 January 1995 (hereinafter referred to 
as “the Agreement”) and the Agreement and this Protocol shall be read and 
interpreted together as one single instrument.

Article II

Article 2(1) of the Agreement shall be amended—
(a)	in the chapeau, by replacing the words “not less than one year” 
by the words “more than 12 months”;
(b)	in item (viii), by adding after the word “child” the words “, a 
mental defective or an unconscious person”;
(c)	in item (xi), by inserting after the word “dealing” the words 
“or trafficking”;
(d)	by inserting after item (xi) the following items:
“(xia)	taking a hostage;
(xib)	criminal intimidation;”;
(e)	in item (xii), by adding after the word “substances” the words 
“, precursors and essential chemicals used in the illegal manufacture of 
narcotics and psychotropic substances”;
(f)	in item (xxii), by inserting after the word “bankruptcy” the 
words “or insolvency”;
(g)	in item (xxiii), by replacing the words “and securities” by the 
words “, securities and futures trading”;
(h)	by inserting after item (xxiii) the following item: 
“(xxiiia)	an offence involving the unlawful use of computers;”;
(i)	by inserting after item (xxv) the following items:
“(xxva)	an offence against the laws relating to the protection of 
intellectual property, copyrights, patents or trademarks;
(xxvb)	an offence against the laws relating to immigration 
including offences relating to passports and visas;
(xxvc)	arranging or facilitating for financial gain, the illegal 
entry of persons into a jurisdiction;
(xxvd)	an offence against the laws relating to gambling, betting or 
lotteries;”;
(j)	in item (xxviii), by adding after the word “fire” the words “or 
mischief in relation to computer data”;
(k)	in item (xxxii), by adding after the word “aircraft” the words 
“or other means of transportation”;
(l)	in item (xxxv), by adding after the word “piracy” the words 
“involving ships or aircraft or other means of transportation”;
(m)	by replacing item (xxxvi) by the following item:
“(xxxvi)	an attempt or conspiracy or instigation or incitement to 
commit, aiding or abetting, counselling, causing or procuring the 
commission of, or participation in or being accessory before or after the 
fact to, any offence for which surrender may be granted under this 
Agreement;”;
(n)	by replacing the full stop at the end of item (xxxvii) by a 
semicolon; and
(o)	by adding after item (xxxvii) the following item: 
“(xxxviii)	any other offence for which surrender may be granted in 
accordance with the law of the requested Party.”.

Article III

Article 5 of the Agreement shall be amended in paragraph (1): 
(a)	by replacing the full stop at the end of paragraph (1) by a 
colon; and
(b)	by inserting after paragraph (1) the following proviso: 
“Provided that the requested Party may refuse the surrender of such person 
until such person has served that sentence.”.

Article IV

Article 8 of the Agreement shall be amended by inserting after paragraph 
(2) the following paragraph:
“(2A)	On receipt of the application, the requested Party shall take 
appropriate steps to secure the arrest of the person sought. The 
requesting Party shall be notified without delay of the disposition of the 
application and the reasons for any denial.”.

Article V

Article 16 of the Agreement shall be amended by adding after paragraph (3) 
the following paragraph:
“(4)	The property 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 fugitive offender.”.

Article VI

Article 17 of the Agreement shall be amended—
(a)	by renumbering the existing paragraph as paragraph (1); and 
(b)	by adding after paragraph (1) the following paragraph:
“(2)	For the purpose of paragraph (1)(c) of this Article, a Party 
whose consent is required may require the submission of any document or 
statement referred to in Article 7, and any statement made by the 
surrendered person on the matter for its consideration.”.

Article VII

The Agreement shall be amended by replacing Article 18 by the following 
Article:
“(1)	A fugitive offender who has been surrendered under this 
Agreement shall not be resurrendered by the requesting Party to a third 
State or an international tribunal established in accordance with a 
multilateral international convention that applies to the requesting Party 
for trial or punishment for any offence that is committed before his 
surrender to the requesting Party unless—
(a)	the requested Party consents; and
(b)	if under the convention the consent of another State is 
required, that State consents.
(2)	Paragraph (1) of this Article shall not prevent the resurrender 
of a surrendered fugitive offender to a third State or the relevant 
international tribunal established in accordance with a multilateral 
international convention that applies to the requesting Party if—
(a)	that fugitive offender leaves the territory of the requesting 
Party after the surrender and voluntarily returns to it; or
(b)	that fugitive offender does not leave the territory of the 
requesting Party within forty days of the day on which the person is free 
to leave.
(3)	For the purpose of paragraph (1)(a) of this Article, a Party 
whose consent is requested may require the submission of any document or 
statement referred to in Article 7, and any statement made by the 
surrendered person on the matter for its consideration.”.

Article VIII

Article 19(2)(a) of the Agreement shall be amended by replacing the words 
“defence or foreign affairs” by the words “national security or public 
order”.

Article IX

This Protocol shall enter into force 30 days after the date on which the 
Parties to this Protocol have notified each other in writing that their 
respective requirements for the entry into force of the Protocol have been 
complied with.

IN WITNESS WHEREOF the undersigned, being duly authorised by their 
respective Governments, have signed this Protocol.

Done in duplicate at Hong Kong this 17th day of October Two thousand and 
six, in the Chinese, English and Malay languages, each text being equally 
authentic.
(Schedule 2 added L.N. 82 of 2007)