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Following is the speech (English translation) by the Secretary for Security, Mr Ambrose S K Lee, for the Resolution of Mutual Legal Assistance in Criminal Matters (Malaysia) Order today (October 31):
Madam President,
I move that the resolution to make the Mutual Legal Assistance in Criminal Matters (Malaysia) Order, as printed on the Agenda, be passed by this Council.
Hong Kong has been actively cooperating with other jurisdictions in combating serious crime, and is committed to concluding bilateral agreements with partners who intend to provide closer cooperation in mutual legal assistance in criminal matters. These bilateral agreements ensure reciprocal assistance between the contracting parties, and are conducive to enhancing international cooperation in the fight against transnational crime.
The Mutual Legal Assistance in Criminal Matters Ordinance provides the statutory framework for implementing agreements on mutual legal assistance signed between Hong Kong and other jurisdictions, enabling assistance to be provided to or obtained from foreign jurisdictions in the investigation and prosecution of criminal offences, which includes the taking of evidence, search and seizure, production of material, transfer of persons to give evidence and confiscation of the proceeds of crime.
Pursuant to the Mutual Legal Assistance in Criminal Matters Ordinance, the Chief Executive in Council has made the Mutual Legal Assistance in Criminal Matters (Malaysia) Order to implement the bilateral agreement on mutual legal assistance in criminal matters signed between Hong Kong and Malaysia. By applying the arrangements prescribed in the Mutual Legal Assistance in Criminal Matters Ordinance between Hong Kong and Malaysia, the Order allows Hong Kong to provide and obtain assistance in accordance with the procedures set out in the Ordinance and the provisions under the agreement. As the legislation and arrangements on mutual legal assistance in criminal matters vary from jurisdiction to jurisdiction, modifying certain provisions of the Mutual Legal Assistance in Criminal Matters Ordinance to reflect the practices of individual jurisdictions in implementing the orders on the bilateral agreements concerned is often required. Such modifications are necessary to enable Hong Kong to discharge its obligations under the bilateral agreements concerned. The modifications made for the bilateral agreement between Hong Kong and Malaysia are specified in Schedule 2 to the Order. These modifications do not affect that the Order is in substantial conformity with the provisions of the Mutual Legal Assistance in Criminal Matters Ordinance.
The Legislative Council set up a Subcommittee in June 2007 to scrutinise the Order. I would like to thank the Subcommittee Chairman, the Honourable James To, and other Members for their comments in respect of the Order.
In the course of the Subcommittee's deliberations, we had responded to concerns of the Subcommittee on a number of issues. I will summarise the main issues below.
The Subcommittee had asked about the omission of the provision on the safeguard against death penalty from the Mutual Legal Assistance in Criminal Matters (Malaysia) Order. We explained to the Subcommittee that the provision was omitted at the request of Malaysia. According to the legal system of Malaysia, the award of punishment at the end of the trial rests entirely with the judiciary. Therefore, Malaysia has difficulties in giving assurance to Hong Kong that the death penalty will not be imposed or carried out. After discussion, Hong Kong and Malaysia have agreed that the Requested Party may refuse to provide assistance for death penalty offences pursuant to the "essential public interests" provision under Article 4(1)(f) of the agreement. Hong Kong has made clear to Malaysia that Hong Kong will refuse to provide assistance if the request from Malaysia relates to an offence which carries the death penalty in Malaysia unless Malaysia gives sufficient assurance that the death penalty will not be imposed or carried out. Malaysia accepts Hong Kong's approach of dealing with the issue.
Article 8(3) of the agreement provides that in an investigation, prosecution or proceeding where the charge is altered, the information or evidence provided may continue to be used in the investigation, prosecution or proceeding so far as the offence, as charged, is an offence of which mutual legal assistance could be provided under the agreement. The Subcommittee requested the Administration to explain the operation of this Article. We had provided information to the Subcommittee, explaining that the Article originates from the Model Treaty on Mutual Assistance in Criminal Matters drawn up by the United Nations, and its operation had to be considered in conjunction with other relevant articles of the agreement. Indeed, Article 8(2) stipulates that the Requesting Party shall not disclose or use information or evidence furnished for purposes other than those stated in the request without the prior consent of the Central Authority of the Requested Party. In addition, Article 4(1)(h) provides that the Requested Party shall refuse assistance if the Requesting Party fails to undertake that the item requested will not be used for a matter other than the criminal matter in respect of which the request was made or that the Requested Party has not given consent to waive any such undertaking. Therefore, if Malaysia requests to use the information or evidence concerned in accordance with Article 8(3), it will need to seek Hong Kong's prior consent. In considering Malaysia's request, Hong Kong will ask for detailed information as required in Article 6 and ensure that the request is consistent with the safeguards set out in Article 4.
The Subcommittee was also concerned about whether a person who had consented to give evidence under Article 15 or 16 and already travelled to Malaysia but subsequently withdrew his consent would be prosecuted for contempt of court. In this respect, we had clarified that the person concerned was providing evidence on a voluntary basis. In accordance with Article 17(3) of the agreement, prosecution for contempt of court shall only be related to the testimony given by that person and does not extend to his act of withdrawing his consent. Article of 17(5) further provides that "[a] person who does not consent to provide assistance pursuant to Article 15 or 16 shall not by reason thereof be liable to any penalty or coercive measure by the courts of the Requesting Party or Requested Party."
Article 27(2) of the agreement provides that the agreement shall apply to requests presented after the date of its entry into force irrespective of whether the relevant acts or omissions constituting the offence occurred before or after that date. The Subcommittee had asked how the rule of double criminality would apply under different scenarios in relation to the time of commission of a certain offence and the time when the relevant act was criminalised in Hong Kong and Malaysia. As the Subcommittee had requested, we had provided information explaining that in accordance with Article 1(1) of the agreement, the Parties shall, in accordance with the provisions of the agreement and in conformity with their respective laws, render to one another mutual assistance that pertain to offences over which the Requesting Party has jurisdiction at the time the assistance is requested. Article 4(1)(g) specifies that the Requested Party shall refuse assistance if the acts or omissions alleged to constitute the offence would not, if they had taken place within the jurisdiction of the Requested Party, have constituted an offence against the law of the Requested Party. If a criminal act has been de-criminalised in Malaysia or Hong Kong after the agreement enters into force, it follows that Malaysia does not have jurisdiction over that act or that act does not constitute an offence in Hong Kong. Accordingly, Hong Kong will not accede to Malaysia's request with respect to such an act.
The making of the Mutual Legal Assistance in Criminal Matters (Malaysia) Order will enable the implementation of the bilateral agreement signed between Hong Kong and Malaysia on mutual legal assistance in criminal matters. This is important to the strengthening of Hong Kong's cooperation with foreign jurisdictions in mutual legal assistance in criminal matters.
May I now invite Members to approve the making of the Mutual Legal Assistance in Criminal Matters (Malaysia) Order.
Thank you, Madam President.
Ends/Wednesday, October 31, 2007
Issued at HKT 15:53
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