Hong Kong Regulations

FUGITIVE OFFENDERS (REPUBLIC OF KOREA) ORDER - SCHEDULE SCHEDULE

[section 2]

AGREEMENT FOR THE SURRENDER OF FUGITIVE OFFENDERS BETWEEN THE GOVERNMENT OF
THE HONG KONG SPECIAL ADMINISTRATIVE REGION OF THE PEOPLE’S REPUBLIC OF
CHINA AND THE GOVERNMENT OF THE REPUBLIC OF KOREA#

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

Desiring to make provisions 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
referred to in Article 2 of this Agreement.

ARTICLE 2

Offences

1. Surrender of fugitive offenders shall be granted for an offence coming
within any of the descriptions of offences specified in the Annex to this
Agreement, which shall form an integral part of this Agreement, in so far as
the offence 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. 2. In determining whether an offence is against the laws of
both Parties:

   (a)  it shall not matter whether the laws of the Parties place the offence
        within the same category of offence or denominate the offence by the
        same terminology;

   (b)  the totality of the conduct alleged against the person whose surrender
        is sought shall be taken into account and it shall not matter whether,
        under the laws of the Parties, the constituent elements of the offence
        differ. 3. 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 (6) months
        remains to be served. 4. Where the surrender of a fugitive offender is
        requested for the purpose of carrying out a sentence, the Requested
        Party may refuse surrender if it appears that the conviction was
        obtained in his absence and he did not have the opportunity of being
        tried in his presence, unless he has the opportunity to have his case
        retried in his presence. Requests for the surrender of persons
        convicted in their absence shall be accompanied by the supporting
        documents referred to in paragraph 3 of Article 8 as well as the
        supporting documents referred to in paragraph 4 of Article 8. 5.
        Surrender may be granted pursuant to the provisions of this Agreement
        in respect of an offence, provided that:

   (a)  it was an offence in the Requesting Party at the time of the conduct
        constituting the offence; and

   (b)  the conduct alleged would, if it had taken place in the jurisdiction
        of the Requested Party at the time of the making of the request for
        surrender, have constituted an offence against the law in force in the
        jurisdiction of the Requested Party.

ARTICLE 3

Surrender of Nationals

1. The Government of the Hong Kong Special Administrative Region reserves the
right to refuse the surrender of nationals of the People’s Republic of
China. The Government of the Republic of Korea reserves the right to refuse
the surrender of its nationals. 2. Where the Requested Party exercises this
right, the Requesting Party may request that the case be submitted to the
authorities of the Requested Party in order that proceedings for prosecution
of the person may be considered. That Party shall inform the Requesting Party
of any action taken and the outcome of any prosecution. 3. Nationality shall
be determined at the time of the commission of the offence for which surrender
is requested.

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 the death penalty
will not be imposed or, if imposed, will not be carried out.

ARTICLE 5

Mandatory Refusal of Surrender

Surrender shall not be granted under this Agreement in any of the following
circumstances:

   (a)  when the Requested Party has substantial grounds for believing that
        the offence for which surrender is requested is a political offence or
        an offence connected with a political offence. Reference to a
        political offence shall not include the following offences:

        (i)    the taking or attempted taking of the life or an attack on the
               person of a Head of State or Head of Government or a member of
               the person’ s immediate family; and

        (ii)   any offence which, by reason of a multilateral international
               agreement, the Parties must not treat as a political offence or
               an offence connected with a political offence;

   (b)  when the person sought is being prosecuted by the Requested Party for
        the offence for which the surrender is requested;

   (c)  when the person sought has been finally convicted or acquitted by the
        Requested Party for the offence for which the person’s surrender is
        requested;

   (d)  when the prosecution or the punishment for the offence for which
        surrender is requested would be barred by reasons prescribed under the
        law of either Party including a law relating to the lapse of time;

   (e)  when the Requested Party has substantial grounds for believing that
        the request for surrender has been presented with a view to
        prosecuting or punishing the person sought, by reason of race,
        religion, nationality or political opinion, or that that person’s
        position may be prejudiced for any of those reasons.

ARTICLE 6

Discretionary Refusal of Surrender

Surrender may be refused under this Agreement in any of the following
circumstances:

   (a)  when the offence for which surrender is sought is regarded under the
        law of the Requested Party as having been committed in whole or in
        part within the territory or area of the Requested Party, and in case
        of such refusal the Requesting Party may request that the case be
        submitted to the authorities of the Requested Party in order that
        proceedings for prosecution may be considered;

   (b)  when 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;

   (c)  when, in exceptional cases, the Requested Party while also taking into
        account the seriousness of the offence and the interests of the
        Requesting Party deems that, because of the personal circumstances of
        the person sought, the surrender would be incompatible with
        humanitarian considerations; and

   (d)  when it appears to the Requested Party that, by reason of the passage
        of time since the person is alleged to have committed the offence for
        which surrender is sought or to have become unlawfully at large it
        would, having regard to all the circumstances, be unjust or oppressive
        to return him.

ARTICLE 7

Postponed or Temporary Surrender

1. If the person sought is being proceeded against or under punishment in the
jurisdiction of the Requested Party for an offence other than that for which
the person’s surrender is requested, the person’s surrender may be
deferred until the conclusion of the proceedings and the execution of any
punishment awarded to him. 2. If the request for surrender is granted in the
case of a person who is being proceeded against or under punishment in the
jurisdiction of the Requested Party for an offence other than that for which
the person’s surrender is requested, the Requested Party may temporarily
surrender the person sought to the Requesting Party for the purpose of
prosecution. The person so surrendered shall be kept in custody in the
Requesting Party and shall be returned to the Requested Party after the
conclusion of the proceedings against that person, in accordance with
conditions to be determined between the Parties.

ARTICLE 8

Request and Supporting Documents

1. Requests for surrender shall be made in writing to the competent authority
of the Requested Party through the Consulate General of the Republic of Korea
in Hong Kong, unless the Parties otherwise agree. The competent authority for
the Republic of Korea shall be the Ministry of Justice and the competent
authority for the Hong Kong Special Administrative Region shall be the
Department of Justice, unless a different competent authority is notified by
either 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 the
        person’s identity and nationality including, if known, his or her
        whereabouts;

   (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 for it and whether
        any time limit is imposed on the institution of proceedings, or on the
        execution of any punishment imposed, for that offence. 3. A request
        for surrender of a person who is sought for prosecution shall also be
        accompanied by:

   (a)  a warrant of arrest issued by a judge or magistrate of the Requesting
        Party or a copy of that warrant; and

   (b)  such evidence as, according to the law of the Requested Party, would
        permit a decision to be taken to surrender that person for the offence
        for which surrender is requested. 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)  (i) 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

        (ii)   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. 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, prosecutor or an official
        of the Requesting Party; and

   (b)  sealed with the official seal of the competent authority of the
        Requesting Party. 6. All documents submitted in accordance with this
        Agreement shall be in or translated into an official language of the
        Requested Party, unless the Requested Party dispenses with this
        requirement.

ARTICLE 9

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
authority of the Requesting Party. The application for provisional arrest
shall contain:

   (a)  a description of the person sought;

   (b)  the location of the person sought, if known;

   (c)  a brief statement of the facts of the case, including, if possible,
        the time and location of the offence;

   (d)  a description of the laws violated and the sentence prescribed by the
        law;

   (e)  a statement of the existence of a warrant of arrest or a judgement of
        conviction against the person sought; and

   (f)  a statement that a request for surrender of the person sought will
        follow. 2. An application for provisional arrest may be forwarded to
        the competent authority of the Requested Party by any means affording
        a record in writing through the same channels as a request for
        surrender or through direct contact between the competent authorities
        of both Parties. 3. On receipt of such an application, the Requested
        Party shall take the necessary steps to secure the arrest of the
        person sought and the Requesting Party shall be promptly notified of
        the result of its request. 4. The provisional arrest of the person
        sought shall be terminated upon the expiration of forty-five (45) 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 further fifteen
        (15) days. This provision shall not prevent the re-arrest or surrender
        of the person sought if the request for surrender is received
        subsequently.

ARTICLE 10

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 11

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 released from custody.
Such release shall not preclude the Requesting Party from making a fresh
request for the surrender of that person. 3. Where the person is released from
custody in accordance with paragraph 2, the Requested Party shall notify the
Requesting Party as soon as practicable.

ARTICLE 12

Concurrent Requests

1. If the Requested Party receives requests from the other Party and from any
other jurisdiction for the surrender of the same person either for the same
offence or for different offences, the Requested Party shall determine to
which jurisdiction the person is to be surrendered and shall notify each
requesting jurisdiction of its decision. 2. In determining to which
jurisdiction a person is to be surrendered, the Requested Party shall have
regard to all the circumstances including the provisions in this regard in any
agreements in force between the Requested Party and the Requesting Party or
other jurisdictions, the relative seriousness and place of commission of the
offences, the respective dates of the requests, the nationality and the
ordinary place of residence of the person sought, and the possibility of
subsequent surrender to another jurisdiction, and shall furnish the other
Party with information justifying its decision in the event of surrender of
the fugitive to another jurisdiction.

ARTICLE 13

Representation and Costs

1. The Requested Party shall, if asked by the Requesting Party, 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
legal representation and assistance, it shall bear any costs incurred. 2. The
Requesting Party shall bear the expenses related to the translation of
documents and the transportation of the person surrendered from the Requested
Party to the Requesting Party. The Requested Party shall pay all other
expenses incurred in its jurisdiction by reason of the proceedings.

ARTICLE 14

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 sought within the time prescribed by the law of the
Requested Party, the person may be released and the Requested Party may
subsequently refuse to surrender the 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 upon a new date for surrender and the
provisions of paragraph 3 of this Article shall apply.

ARTICLE 15

Surrender of Property

1. To the extent permitted under the laws of the Requested Party, when a
request for surrender of a fugitive offender is granted, the Requested Party
shall hand over to the Requesting Party all property, 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 the person’s possession or discovered
        subsequently. 2. If the property in question is liable to seizure or
        confiscation within the jurisdiction of the Requested Party, that
        Party may, in connection with pending proceedings, temporarily retain
        it or hand it over to the Requesting Party 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. 4. The property mentioned in paragraph 1 shall, if
        the Requesting Party so requests, be handed over to that Party to the
        extent permitted by the laws of the Requested Party, even if the
        surrender cannot be carried out due to the death or escape of the
        person sought.

ARTICLE 16

Rule of 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 surrender other than:

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

   (b)  an equivalent or lesser offence, however described, based on the facts
        in respect of which his surrender was granted, provided such offence
        is one for which he could be surrendered under this Agreement;

   (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 (40) 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
        subparagraph (c) of paragraph 1 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 17

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 (40) 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 subparagraph (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 18

Transit

1. To the extent permitted by its law, the right to transport through the
jurisdiction of one of the Parties a person surrendered to the other Party by
a third party may be granted on request made by any means affording a record
in writing. The request for transit shall contain a description of the person
being transported and a brief statement of the facts of the case. The request
for transit may be forwarded to the competent authority of the Requested Party
through the same channels as a request for surrender or through direct contact
between the competent authorities of both Parties. 2. Permission for the
transit of a person surrendered shall include authorization for accompanying
officials to hold that person in custody or request and obtain assistance from
authorities in the Party of transit in maintaining custody. 3. Where a person
is being held in custody pursuant to paragraph 2 of this Article, the Party in
whose jurisdiction the person is being held may direct that the person be
released if transportation is not continued within a reasonable time. 4.
Authorization for transit shall not be required when air transport is to be
used and no landing is scheduled in the jurisdiction of the Party of transit.
If an unscheduled landing occurs in the jurisdiction of that Party, it may
require the other Party to furnish a request for transit as provided in
paragraph 1 of this Article. The Party of transit shall, within the limits
permitted by its law, detain the person to be transported until the
transportation is continued, provided that the request is received within
ninety-six (96) hours of the unscheduled landing.

ARTICLE 19

Consultations

1. The Parties shall, at the request of either Party, promptly hold
consultations concerning the interpretation, application or implementation of
this Agreement. 2. The competent authorities of the Parties may consult each
other directly in connection with the processing of individual cases.

ARTICLE 20

Entry Into Force and Termination

1. This Agreement shall enter into force thirty (30) 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. This Agreement shall apply to requests made after its entry into
force regardless of the date of commission of the offence or offences. 3.
Either of the Parties may terminate this Agreement at any time by giving
notice in writing to the other. In that event, this Agreement shall cease to
have effect six (6) months after the receipt of the notice.

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

Done in duplicate at Hong Kong this twenty-sixth day of June 2006 in the
Chinese, English and Korean languages, all texts being equally authentic.

ANNEX

Descriptions of Offences referred to in Article 2

(1) The unlawful taking of human life; assault with intent to commit murder.

(2) Aiding, abetting, counselling or procuring suicide.

(3) Maliciously wounding; maiming; inflicting grievous or actual bodily harm;
assault occasioning actual bodily harm; threats to kill; intentional or
reckless endangering of life whether by means of a weapon, a dangerous
substance or otherwise; offences relating to unlawful wounding or injuring.

(4) Offences of a sexual nature including rape; sexual assault; indecent
assault; unlawful sexual acts on children; statutory sexual offences.

(5) Gross indecency with a child, a mental defective or an unconscious person.

(6) Kidnapping; abduction; unlawful imprisonment or detention; dealing or
trafficking in slaves or other persons; taking a hostage.

(7) Criminal intimidation.

(8) Offences against the law relating to dangerous drugs including narcotics
and psychotropic substances and precursors and essential chemicals used in the
illegal manufacture of narcotic drugs and psychotropic substances and offences
related to the proceeds of drug trafficking.

(9) Obtaining property or pecuniary advantage by deception; theft; robbery;
burglary (including breaking and entering) or similar offences; embezzlement;
blackmail; extortion; handling or receiving stolen property; false accounting;
any other offence in respect of property or fiscal matters involving fraud;
any offence against the law relating to unlawful deprivation of property.

(10) Offences against bankruptcy law or insolvency law.

(11) Offences against the law relating to companies including offences
committed by officers, directors and promoters.

(12) Offences relating to securities and futures trading.

(13) Any offence relating to counterfeiting; any offence against the law
relating to forgery or uttering what is forged.

(14) Offences against the laws relating to protection of intellectual
property, including copyright, patents, trademarks, designs or trade secrets.

(15) An offence against the law relating to bribery, corruption, secret
commissions and breach of trust.

(16) Perjury and subornation of perjury.

(17) Offences relating to the perversion or obstruction of the course of
justice.

(18) Arson; criminal damage or mischief including mischief in relation to
computer data.

(19) An offence against the law relating to firearms.

(20) An offence against the law relating to explosives.

(21) An offence against laws relating to environmental pollution or protection
of public health.

(22) Mutiny or any mutinous act committed on board a vessel at sea.

(23) Piracy involving ships or aircraft.

(24) Unlawful use, seizure or exercise of control of an aircraft, vessel or
other means of transportation.

(25) Genocide or direct and public incitement to commit genocide.

(26) Facilitating or permitting the escape of a person from custody.

(27) An offence against the laws relating to the control of exportation or
importation of goods of any type, or the international transfer of funds.

(28) Smuggling; offences against the laws relating to import and export of
prohibited items, including historical and archaeological items.

(29) Immigration offences including fraudulent acquisition or use of a
passport or visa.

(30) Arranging or facilitating for financial gain, the illegal entry of
persons into the jurisdiction of the Requesting Party.

(31) An offence relating to gambling or lotteries.

(32) Offences relating to the unlawful termination of pregnancy.

(33) Stealing, abandoning, exposing or unlawfully detaining a child; any other
offences involving the exploitation of children.

(34) Offences against the laws relating to prostitution and premises kept for
the purposes of prostitution.

(35) Offences involving the unlawful use of computers.

(36) 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.

(37) Offences relating to unlawful escape from custody or flight to avoid
prosecution; mutiny in prison.

(38) Offences relating to women and girls.

(39) Offences against the law relating to false or misleading descriptions of
goods.

(40) 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.

(41) 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.

(42) 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.

(43) Conspiracy to commit fraud or to defraud.

(44) Conspiracy to commit, or any type of association to commit, any offence
for which surrender may be granted under this Agreement.

(45) Aiding, abetting, counselling or procuring the commission of, inciting,
being an accessory before or after the fact to, or attempting to commit any
offence for which surrender may be granted under this Agreement.

(46) 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 not permitted by the laws
of the Requested Party. ________________________ Note: # The Agreement for the
Surrender of Fugitive Offenders between the Government of the Hong Kong
Special Administrative Region of the People’s Republic of China and the
Government of the Republic of Korea was done in the Chinese, English and
Korean languages, each text being equally authentic. The Korean text of the
Agreement is available for inspection at the Security Bureau of the Government
of the HKSAR.