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[Senate Treaty Document 105-6]
[From the U.S. Government Publishing Office]



105th Congress                                              Treaty Doc.

                                 SENATE
 1st Session                                                      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


                         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.


                          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 others 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 Requesting 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 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 pursuant 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 scheduled 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.
    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.