U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

1

39–118

" ! SENATE 105TH CONGRESS

1st Session

TREATY DOC.

1997

105–6

AGREEMENT WITH HONG KONG ON MUTUAL LEGAL

ASSISTANCE IN CRIMINAL MATTERS, WITH ANNEX

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

ON MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS, WITH

ANNEX, SIGNED IN 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 of America and the Government of

Hong Kong on Mutual Legal Assistance in Criminal Matters, with

Annex, signed in Hong Kong on April 15, 1997 (hereinafter referred

to as ‘‘the Agreement’’). I transmit also, for the information of the

Senate, a related exchange of letters, with attached forms, signed

the same date, and the report of the Department of State with respect to the Agreement.

The Agreement is one of a series of modern mutual legal assistance treaties that the United States is negotiating in order to

counter criminal activities more effectively. The Agreement should

be an effective tool in our continued cooperation with Hong Kong

after its reversion to the sovereignty of the People’s Republic of

China on July 1, 1997, to assist in the prosecution of a wide variety

of modern criminals, including members of drug cartels, ‘‘white-collar’’ criminals, and terrorists. The Agreement is self-executing.

The Agreement provides for a broad range of cooperation in

criminal matters. Mutual assistance available under the Agreement includes: (1) taking evidence, testimony, or statements of persons; (2) providing information, documents, records, and items; (3)

locating or identifying persons or items; (4) serving documents; (5)

transferring persons in custody and others to provide assistance;

(6) executing requests for search and seizure; (7) confiscating and

forfeiting the proceeds and instrumentalities of crime and otherwise assisting in relation thereto; (8) delivering property, including

lending exhibits or other items; and (9) any other form of assistance not prohibited by the law of the Requested Party.

I recommend that the Senate give early and favorable consideration to the Agreement and give its advice and consent to ratification so that the Agreement can enter into force no later than July

1, 1997, when Hong Kong reverts to the sovereignty of the People’s

Republic of China.

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 on Mutual Legal Assistance in

Criminal Matters with Annex (‘‘the Agreement’’), 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. Accompanying the Agreement is a related exchange of letters, with

attached forms, signed on April 15, 1997. I recommend that these

letters be transmitted for the information of the Senate.

The Agreement covers mutual legal assistance in criminal matters. In recent years, similar bilateral treaties have entered into

force with a number of other countries. This Agreement contains

many provisions similar to other treaties in this area.

Upon entry into force, this Agreement will enhance our ability to

investigate, prosecute, and variety of offenses, including violent

crimes, drug trafficking, money laundering, alien smuggling and

tax fraud and other white-collar crimes. For narcotics-related

crime, it will supersede an Agreement between the Government of

the United States of America and the Government of Hong Kong

Concerning the Confiscation and Forfeiture of the Proceeds and Instrumentalities of Drug Trafficking done at Hong Kong November

23, 1990, which expires on June 30, 1997.

Although entitled an ‘‘agreement’’ to reflect Hong Kong’s unique

juridical status, for purposes of United States law, the instrument

will be considered to be a treaty and, thus, is hereby submitted to

you for transmittal to the Senate for advice and consent to ratification. In that regard, I note that Hong Kong is entering into this

Agreement with the authorization of ‘‘the sovereign government

which is responsible for its foreign affairs.’’ At present, that is the

United Kingdom. However, the People’s Republic of China, through

the Sino-British Joint Liaison Group, has also approved this Agreement, as well as the related exchange of letters and forms, and authorized its continuation in force after July 1, 1997. The Agreement

is designed to be self-executing and will not require implementing

legislation.

Article 1 contains a non-exhaustive list of the major types of assistance to be provided under the Agreement, including taking evidence, testimony or statements of persons; providing information,

documents, records and items; locating or identifying persons or

items; serving documents; transferring persons in custody and oth-
VI

ers to provide assistance; executing requests for search and seizure;

confiscating and forfeiting the proceeds and instrumentalities of

crime and otherwise assisting in relation thereto; delivering property, including lending exhibits or other items; and any other form

of assistance not prohibited by the law of the Requested Party. The

scope of the Agreement includes not only criminal offenses, but also

proceedings related to criminal matters, which may be civil or administrative in nature except as to certain revenue matters enumerated in paragraph (3). The article makes clear that the Agreement is designed to be utilized only by governmental authorities

who seek evidence for use in criminal investigations and prosecutions and proceedings related to criminal proceedings. The Agreement is not intended to create any right in a private person to

seek, suppress or exclude evidence.

Article 2 provides for the establishment of Central Authorities

and specifies that, for the United States, the Central Authority is

the Attorney General or a person duly authorized by the Attorney

General. For Hong Kong, the Central Authority is the Attorney

General of Hong Kong or a person duly authorized by the Attorney

General. The Central Authorities shall communicate directly between each other for purposes of the Agreement.

Article 3 sets forth circumstances under which the Requested

Party shall or may deny assistance under the Agreement. A request shall be denied if it impairs the sovereignty, security, or public order of the United States or the sovereign government responsible for the foreign affairs relating to Hong Kong, which, after revision on July 1, 1997, will be the People’s Republic of China; or

if the Central Authority is of the opinion that granting the request

would impair the Requested Party’s essential interests or that the

request for assistance relates to a political offense or that there are

substantial grounds for believing the request was made for the purpose of prosecuting, punishing, or otherwise proceeding against a

person on account of the person’s race, religion, nationality, or political opinions.

Article 3(1)(d) provides that the Central Authority shall refuse

assistance if it is of the opinion that the acts or omissions alleged

to constitute the criminal offense would not have constituted a

criminal offense if they had taken place within the jurisdiction of

the Requested Party, or, irrespective of that analysis, would not

constitute in the Requesting Party any of the offenses described in

the Annex to the Agreement. Thus, for offenses described in the

Annex, assistance must be provided without regard to whether the

offense would constitute an offense under the laws of the Requested Party.

Finally, the Central Authority is permitted to deny assistance if

the request relates to an offense under military law that would not

be an offense under ordinary criminal law, the request relates to

the prosecution of a person for a criminal offense for which the person has been convicted or acquitted in the Requested Party, or the

request is not made in conformity with the Agreement.

Before denying assistance under Article 3, the Central Authority

of the Requested Party is required to consult with its counterpart

in the Requesting Party to consider whether assistance can be

given subject to such conditions as it deems necessary. If the Re-
VII

questing Party accepts assistance subject to conditions, it shall

comply with the conditions. If the Central Authority of the Requested Party refuses assistance, it shall inform the Central Authority of the Requesting Party of the reasons for the refusal.

Article 4 prescribes the form and content of written requests

under the Agreement, specifying in detail the information required

in each request. The article permits oral requests in urgent cases

but requires written confirmation promptly thereafter. The article

specifies further information to be provided to the extent necessary

and possible to assist in locating individuals and effecting particular types of assistance. All requests and supporting documents are

to be provided in an official language of the Requested Party.

Article 5 requires the Central Authority of the Requested Party

to execute promptly a request, or to arrange for its execution

through its competent authorities. The competent authorities of the

Requested Party are to use their best efforts to execute a request.

The courts of the Requested Party shall have the authority to issue

subpoenas, search warrants, or other orders necessary to execute

the request.

Requests are to be executed as empowered by this Agreement or

by applicable law; the method of execution specified in the request

is to be followed except to the extent that it is not incompatible

with the law of the Requested Party. If the Central Authority of

the Requested Party determines that execution of the request

would interfere with an ongoing criminal investigation or proceeding, it may postpone execution or, after consultations with the Requesting Party, impose conditions on such execution. If the Requesting Party accepts assistance subject to such conditions, it

shall comply with them.

Article 5 further requires the Requested Party, if so requested,

to use its best efforts to keep confidential a request and its contents, and to inform the Requesting Party if the request cannot be

executed without breaching confidentiality so that the Requesting

Party can then determine whether the request should nevertheless

be executed.

Article 6 apportions between the two Parties the costs incurred

in executing a request. Generally, the Requested Party pays all ordinary costs relating to the execution of the request, except for the

fees of experts and of counsel retained at the request of the Requesting Party, travel expenses and allowances for the travel of

persons traveling at the request of the Requesting Party (e.g., pursuant to Articles 11 or 12), and the costs of transcription, translation and interpretation. If it is apparent that expenses of an extraordinary nature will be required to fulfill the request, the Parties are to consult to determine the conditions under which the execution of the request may continue.

Article 7 provides that the Central Authority of the Requested

Party may require that any information or evidence obtained under

the Agreement be kept confidential or be used only subject to specified conditions, including that it not be used for investigations, proceedings, or prosecutions other than those described in the request

without the prior consent of the Requested Party. If the Requested

Party requests that information or evidence furnished be kept confidential or be used in accordance with conditions specified by its
VIII

Central Authority, the Requesting Party is required to comply with

the conditions specified. This does not, however, preclude the use

or disclosure in a criminal proceeding of information or evidence to

the extent required for the United States under its Constitution or

for Hong Kong under its law. If information is made public in the

Requesting Party in accordance with the Agreement, no further

limitations on use apply.

Article 8 obligates the Requested Party, upon request, to endeavor to obtain a statement of a person for the purpose of an investigation, prosecution, or proceeding related to a criminal matter, with

the consent of the person.

Article 9 provides that the Requested Party shall compel, if necessary, the taking of testimony or production of documents or other

evidence in its territory on behalf of the Requesting Party and

shall, upon request, inform the Requesting Party in advance of the

date and place of the taking of testimony.

Article 9 also requires the Requested Party to permit the presence of any persons specified in the request (such as the accused,

counsel for the accused, or other interested persons) and, to the extent permitted by its law, to permit such persons to question the

person whose testimony is being taken. In the event that a person

whose testimony or evidence is being taken asserts a claim of immunity, incapacity, or privilege under the laws of the Requested

Party, it is to be resolved pursuant to the Requested Party’s laws.

If such claim is made under the laws of the Requesting Party, the

testimony or evidence shall be taken and the claim made known to

the Requesting Party for resolution by its authorities.

Finally, Article 9(6) provides that the Requesting Party may ask

that evidence that is produced pursuant to this article or is the object of testimony under this article be certified in accordance with

procedures specified in the request and that, if so certified, such

evidence shall be admissible in evidence in the Requesting Party

as proof of the truth of the matters set forth therein. Letters signed

and exchanged between the Parties at the time of the signing of

the Agreement on April 15, 1997, and included herewith for the information of the Senate, set forth the understanding of the Parties

that those letters and forms attached thereto serve to establish the

procedures for application of this article and of Articles 10(3) and

16(3) of the Agreement. Where the Government of the United

States requests that copies of business records be certified under

Article 9(6) of the Agreement, it will request the use of Form A,

entitled Certificate of Authenticity of Business Records, attached to

the letter. Where the Government of Hong Kong requests certification under this article, it will request the use, subject to Article

5(3) of the Agreement, of forms forwarded with the request.

Article 10 requires that the Requested Party provide the Requesting Party with copies of publicly available records in the possession of government departments or agencies. The Requested

Party may also, in its discretion, provide copies of documents,

records or information in the possession of a governmental department or agency in that Party but not publicly available, to the

same extent and under the same conditions as it would to its own

law enforcement or judicial authorities. Article 10(3) provides that

the Requesting Party may ask that official records produced pursu-
IX

ant to this article be certified in accordance with procedures specified in the request and that documents so certified shall be admissible in evidence in the Requesting Party as proof of the truth of

the matters set forth therein Where the Government of the United

States requests that copies of Hong Kong documents be certified

under this article, it will request the use of Form B entitled Certificate of Authenticity of Foreign Public Documents, included in the

April 15, 1997 exchange of letters. Where the Government of Hong

Kong requests certification under this article, it will request the

use, subject to Article 5(3) of the Agreement, of forms forwarded

with the request.

Article 11 provides for the voluntary transfer to one Party of a

person in custody in the other Party for purposes of assistance

under the Agreement, provided that the person in question and the

Central Authorities of both Parties agree. This could occur either

in transfers from the Requested Party for assistance such as testimony in a trial or from the Requesting Party to, for example, attend the taking of evidence in the Requested Party. The article establishes the express authority and the obligation of the receiving

Party to maintain the person transferred in custody unless otherwise authorized by the sending Party. It further obligates the receiving Party as soon as circumstances permit or as otherwise

agreed by both Central Authorities, without the need for extradition proceedings, and provides that the person transferred shall

receive credit for time served in the custody of the receiving Party.

Article 12 requires the Central Authority of the Requested Party,

upon request, to invite a person not in custody to travel to the Requesting Party to provide assistance and promptly to inform the

Requesting Party of the person’s response.

Article 13 provides that, unless otherwise specified in the request, a person transferred pursuant to Article 11 or 12 shall not

be subject to service of process, or be prosecuted, punished or subjected to any restriction of personal liberty. This ‘‘safe conduct’’ is

limited to acts or omissions that preceded the person’s departure

from the sending Party. For transferred persons not held in custody in the sending Party, any safe conduct provided under this article shall cease 15 days after the person has been notified that his

presence is no longer required in the receiving Party or whenever

the person voluntarily returns to the receiving Party after leaving

it. Further, Article 13 provides that a person providing evidence

pursuant to Article 11 or 12 cannot be subject to prosecution based

on his testimony except for perjury and shall not be required to

provide assistance other than that to which the request relates.

Furthermore, refusal to consent to provide assistance under Article

11 or 12 cannot be used as a basis for liability to any penalty or

coercive measure by the courts of either Party.

Article 14 requires the Requested Party to endeavor to ascertain

the location or identity of any person or item specified in a request.

Article 15 requires the Requested Party to use its best efforts to

effect service of any documents transmitted to it pursuant to this

Agreement for the purpose of service. The article further requires

that any request for the service of a document pertaining to a response or appearance in the Requesting Party be transmitted by

the Requesting Party within a reasonable time before the sched-
X

uled response or appearance. The Requested Party is required to

return proof of service. Article 15 also provides that a person shall

not be liable to any penalty or coercive measure for failure to comply with any process served on him under this article unless the

person is a national or permanent resident of the United States

and the United States is the Requesting Party.

Article 16 obligates the Requested Party to carry out requests for

search, seizure and delivery of any item to the Requesting Party

if the request includes the information justifying such action under

the law of the Requested Party. If requested by the Requested

Party, the article further provides for the certification by every official of the Requested Party who has had custody of a seized item

of its identity, the continuity of custody, and the integrity of its

condition. Any such certificates shall be admissible in evidence in

the Requesting Party as proof of the truth of the matters set forth

therein. Where the Government of the United States requests such

certification, it will request the use of Form C entitled Certificate

with Respect to Seized Items, included in the April 15, 1997 exchange of letters. Where the Government of Hong Kong requests

certification under this article, it will request the use, subject to

Article 5(3) of the Agreement, of forms forwarded with the request.

In addition, Article 16 provides that the Requesting Party shall observe any conditions placed on the transfer of the seized items by

the Requested Party, e.g., to protect third-party interests in the

property.

Article 17 obliges the Central Authority of the Requested Party

to return to the Central Authority of the Requesting Party as soon

as possible any documents, records, or articles of evidence furnished under the Agreement, if the Requested Party so requires.

Article 18 obligates the Requested Party, upon request, to endeavor to ascertain and notify the Requesting Party whether any

proceeds or instrumentalities of a crime against the law of the Requesting Party are located in its jurisdiction and to take measures

permitted by its law to prevent any dealing in, transfer or disposal

of these suspected proceeds or instrumentalities of crime pending

a final determination by a court of the Requesting Party. The request must include the Requesting Party’s basis for believing that

such items may be located in the Requested Party’s jurisdiction.

Article 18 also obligates the Parties, upon request, by whatever

means are appropriate, to assist one another in providing assistance in securing the confiscation or forfeiture of proceeds or instrumentalities of crime. The article further permits the Parties to

agree to share forfeited assets, or the proceeds of their sale, to the

extent permitted by applicable laws and upon such terms as may

be agreed.

Article 19 requires documents, records, or items transmitted to

the Requesting Party to be certified or authenticated only if the Requesting Party so requests. Such certification or authentication is

to be performed by consular or diplomatic officers only if required

by the law of the Requesting Party.

Article 20 states that the Parties may also provide assistance to

each other pursuant to other agreements or to applicable laws, arrangements or practices.
XI

Article 21 provides that the Central Authorities of the Parties

shall consult as appropriate to promote the most effective use of

this Agreement and may agree on practical measures necessary to

facilitate implementation of the Agreement.

Article 22 provides that any disputes arising out of the interpretation, application, or implementation of this Agreement that cannot be resolved by the Central Authorities are to be resolved

through diplomatic channels.

Article 23 provides that the Agreement shall enter into force

thirty days after the date on which the Parties notify each other

in writing that their requirements for the entry into force of the

Agreement have been complied with. The Agreement shall apply to

requests whether or not the relevant acts or omissions occurred

prior to this Agreement’s entry into force. In addition, Article 23

allows either Party to terminate the Agreement by giving written

notice to the other Party, termination to be effective three months

after the date of the receipt of such notice. Requests for assistance

that have been received prior to receipt of such notification are to

be processed in accordance with the terms of the Agreement as if

the Agreement were still in force.

A Technical Analysis explaining in detail the provisions of the

Agreement is being prepared by the United States negotiating delegation, consisting of representatives from the Departments of Justice and State, and will be transmitted separately to the Senate

Committee on Foreign Relations.

The Department of Justice joins the Department of State in recommending approval of this Agreement by the Senate as soon as

possible.

Respectfully submitted,

MADELEINE ALBRIGHT.
(1)
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38