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Agreement Between the Government of Canada and the Government of Hong Kong for the Surrender of Fugitive Offenders

E101336 - CTS 1997 No. 9

The Government of Canada, and the Government of Hong Kong having been duly authorised to conclude this Agreement by the sovereign government which is responsible for its foreign affairs (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:
    1. murder or manslaughter, including criminal negligence causing death;
    2. aiding, abetting, counselling or procuring suicide;
    3. maliciously wounding; aggravated assault; inflicting grievous bodily harm; assault occasioning bodily harm;
    4. offences against the laws relating to sexual assault, including rape and indecent assault;
    5. gross indecency with a child;
    6. kidnapping; abduction; false imprisonment; unlawful confinement; dealing in slaves or other persons; taking a hostage;
    7. offences against the law relating to dangerous drugs, including narcotics and psychoactive/psychotropic substances;
    8. theft; robbery; burglary, including breaking and entering; blackmail; extortion; handling or receiving stolen property;
    9. offences against the laws relating to fraud, including conspiracy to defraud; false accounting; obtaining property or pecuniary advantage by false pretences;
    10. offences against bankruptcy law;
    11. false statements by company directors and other officers;
    12. offences against the laws relating to counterfeiting;
    13. offences against the laws relating to forgery or uttering a forged or false document;
    14. offences against the laws relating to corruption, including bribery, secret commissions and breach of trust;
    15. perjury and subornation of perjury; attempting to pervert the course of justice;
    16. arson; criminal damage or mischief, including mischief in relation to computer data;
    17. offences against the laws relating to firearms, ammunition or explosives;
    18. offences against the laws relating to protection of public health and the environment;
    19. piracy;
    20. unlawful seizure, hijacking or other offences relating to the unlawful control of aircraft;
    21. offences relating to unlawful escape from custody;
    22. smuggling, including offences against the laws applying to the import and export of historical and archaeological items;
    23. facilitating, for gain, the illegal immigration of persons;
    24. offences for which fugitive offenders may be surrendered under international conventions binding on the Parties; offences created as a result of decisions of international organizations which are binding on the Parties;
    25. offences involving fraud relating to fiscal matters, taxes or duties;
    26. offences related to possession or laundering of proceeds obtained from the commission of any offence for which surrender may be granted under this Agreement;
    27. 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:
    1. that the offence of which that person is accused or was convicted is an offence of a political character;
    2. 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
    3. 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:
    1. by reason of the trivial nature of the offence of which the person is accused or was convicted; or
    2. 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
    3. because the accusation against the person is not made in good faith in the interests of justice; or
    4. 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:
    1. 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;
    2. a statement and particulars of the offence for which surrender is requested;
    3. 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:
    1. 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
    2. 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:
    1. signed or certified by a judge, magistrate or an official of the requesting Party; and
    2. 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:
    1. shall hand over to the requesting Party all articles, including sums of money,
      1. which may serve as proof of the offence; or
      2. 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.
    2. 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:
    1. the offence in respect of which surrender is granted;
    2. 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;
    3. 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:
    1. the requested Party consents; or
    2. 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.


FOR THE GOVERNMENT OF CANADA
John Higginbotham

FOR THE GOVERNMENT OF HONG KONG
Alistair Asprey


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