U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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39–118

" ! SENATE 105TH CONGRESS

1st Session

TREATY DOC.

1997

105–7

AGREEMENT WITH HONG KONG ON THE TRANSFER OF

SENTENCED PERSONS

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

THE AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED

STATES OF AMERICA AND THE GOVERNMENT OF HONG KONG

FOR THE TRANSFER OF SENTENCED PERSONS, SIGNED AT

HONG KONG ON APRIL 15, 1997

MAY 6, 1997.—Agreement was read the first time and, together with the

accompanying papers, referred to the Committee on Foreign Relations

and ordered to be printed for the use of the Senate

(III)

LETTER OF TRANSMITTAL

THE WHITE HOUSE, May 5, 1997.

To the Senate of the United States:

With a view to receiving the advice and consent of the Senate to

ratification, I transmit herewith the Agreement Between the Government of the United States and the Government of Hong Kong

for the Transfer of Sentenced Persons signed at Hong Kong on

April 15, 1997. I transmit also, for the information of the Senate,

the report of the Department of State with respect to this Agreement.

At present, transfers of sentenced persons between the United

States and Hong Kong (in either direction) are conducted pursuant

to the 1983 multilateral Council of Europe Convention on the

Transfer of Sentenced Persons, which is in force for both the United States and the United Kingdom, and which the latter has extended to Hong Kong. Effective July 1, 1997, however, when Hong

Kong reverts to the sovereignty of the People’s Republic of China,

the Council of Europe Convention will no longer provide a basis for

such transfers.

The agreement signed on April 15, 1997, will provide a basis for

such transfers to continue after Hong Kong’s reversion. The agreement is modeled after both the Council of Europe Convention and

other bilateral prisoner transfer treaties to which the United States

is a party. It would establish essentially the same procedures as

are now followed with respect to transfers of prisoners between the

United States and Hong Kong, and would continue the requirement

that all transfers be consented to by the sentencing state, the sentenced person, and the receiving state. When the sentenced person

has been sentenced under the laws of a State of the United States,

the consent of the authorities of that State will also be required.

I recommend that the Senate of the Untied States promptly give

its advice and consent to the ratification of this Agreement.

WILLIAM J. CLINTON.

(V)

LETTER OF SUBMITTAL

DEPARTMENT OF STATE, Washington, April 21, 1997.

The PRESIDENT,

The White House.

THE PRESIDENT: I have the honor to submit to you the Agreement between the Government of the United States of America and

the Government of Hong Kong for the Transfer of Sentenced Persons (‘‘the Agreement’’), which was signed at Hong Kong on April

15, 1997. I recommend that the Agreement be transmitted to the

Senate for its advice and consent to ratification.

The purpose of the Agreement is to facilitate, after Hong Kong

reverts to the sovereignty of the People’s Republic of China on July

1, 1997, the transfer of persons sentenced in the United States and

in Hong Kong to their home territory to serve their sentences. The

Agreement achieves this purpose by establishing procedures that

can be initiated by sentenced persons who prefer to serve their sentences in their home territory. The means employed to achieve this

purpose are similar in all important respects to those embodied in

existing bilateral prisoner transfer treaties in force between the

United States and eight other countries, and in the multilateral

Council of Europe Convention on the Transfer of Sentenced Persons.

The United States and Hong Kong have been exchanging prisoners under the terms of the Council of Europe Convention, to

which the United States and the United Kingdom are parties and

which has been extended by the latter to Hong Kong and other specific territories under U.K. sovereignty. The People’s Republic of

China is not a party to the Council of Europe Convention and has

not agreed that the Convention should continue to apply to Hong

Kong after reversion to Chinese sovereignty on July 1, 1997. Nonetheless, the Chinese government, acting through the Sino-U.K.

Joint Liaison Group, authorized the Hong Kong government to negotiate a bilateral agreement on transfer of sentenced persons with

the United States to apply after reversion. The attached agreement

represents the results of these authorized negotiations.

Article 1 contains definitions of the terms used in the Agreement.

The general principles of the Agreement are stated in Article 2,

in which the parties undertake to apply the Agreement in their respective territories and to transfer sentenced persons to the other

party to serve the sentence imposed by the transferring party. For

these purposes, Hong Kong constitutes Hong Kong Island,

Kowloon, and the New Territories.
VI

Article 3 provides that each party designate a ‘‘central authority’’

to implement the Agreement; both parties designate their respective Attorneys General.

Article 4 sets out the conditions for transfer, which are: that the

act or omission for which the sentence has been imposed constitutes a crime under the laws of the receiving Party; that the sentenced person is a permanent resident of Hong Kong (where Hong

Kong is the receiving Party); that the sentenced person is a citizen

or national of the United States (where the United States is the receiving party); that at least one year of the sentence remains to be

served at the time the request for transfer is received (in exceptional cases, the parties may agree to a transfer even if less time

has been served); that the judgment is final and no further proceedings relating to the offenses are pending within the jurisdiction

of the transferring party; and that both Parties and the person to

be transferred agree to the transfer. When the United States is the

transferring party, and the sentenced person has been sentenced by

a state court of the United States, the consent of state authorities

is also required in addition to the consent of federal authorities.

Article 5 requires that the person to be transferred has consented

voluntarily and with knowledge of the consequences thereof, and

that an official designated by the receiving party has verified that

the consent was voluntary.

Article 6 provides that enforcement of the sentence by the transferring Party will be suspended once the sentenced person is taken

charge of by the receiving Party and that the sentence shall not be

enforced if the receiving Party considers enforcement of the sentence to have been completed.

Article 7 obliges a Party to inform any sentenced person to whom

the Agreement may apply of the substance of the Agreement. Provision is also made for keeping the sentenced person informed of

the processing of a transfer request.

Article 7 also provides modalities for processing requests and replies and specifies supporting documents that may be required in

connection with transfer requests. It permits a request for transfer

of a sentenced person from one Party to the other to be made by

the transferring (sentencing) Party, the receiving Party, or the sentenced person.

Article 8 addresses the continued enforcement of the sentence

after transfer, providing that such enforcement shall be governed

by the laws of the receiving Party and may be adapted in certain

circumstances.

Article 9 provides, however, that the transferring Party shall retain exclusive jurisdiction for purposes of reviewing the conviction.

Article 10 requires either Party to cooperate in facilitating the

transit of a sentenced person being transferred to another Party

from a third jurisdiction.

Article 11 addresses the language to be used in making requests

and the allocation of expenses. Written communications between

the Parties must be in an official language of the Party to which

they are addressed. It is understood that, for these purposes, English will be considered the official language of the United States.
VII

Article 12 provides for the settlement of disputes through diplomatic channels if the Central Authorities are unable to reach

agreement.

Article 13 permits application of the Agreement to persons sentenced before or after the Agreement’s entry into force.

Article 14 provides that the agreement will enter into force thirty

days after the Parties have notified each other in writing that their

respective requirements for entry into force of the Agreement have

been completed. Either party may terminate the Agreement upon

three months written notice to the other Party.

It is my belief that this Agreement affords substantial benefits

to the United States. The Agreement is fully consistent with the

provisions of Public Law 95–144, 18 U.S.C. §§ 4110–4115, enacted

by the Congress to implement treaties relating to the transfer of

offenders to or from foreign countries. Consistent with the Hong

Kong Policy Act of 1992, we would consider Hong Kong to be a

country for purposes of Public Law 95–144. Thus no new legislation

will be required.

The Department of Justice joins in recommending that this

Agreement be transmitted to the Senate at the earliest possible opportunity for its advice and consent to ratification, subject to the

understanding previously described.

Respectfully submitted,

MADELEINE ALBRIGHT.
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