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LC: Speech by S for S in moving the Resolution of Mutual Legal Assistance in Criminal Matters (Japan) Order
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     Following is the speech (English translation) by the Secretary for Security, Mr Ambrose S K Lee, in moving the Resolution on Mutual Legal Assistance in Criminal Matters (Japan) Order today (March 11):

President,

     I move that the motion, as printed on the Agenda, on the resolution to make the Mutual Legal Assistance in Criminal Matters (Japan) Order be passed by this Council.

     In moving the motion on the resolution to make the Mutual Legal Assistance in Criminal Matters (Indonesia) Order just now, I explained the purpose and importance of concluding bilateral agreements on mutual legal assistance in criminal matters between Hong Kong and other jurisdictions, as well as the procedural arrangements for implementing such bilateral agreements through the making of orders on mutual legal assistance in criminal matters.   

     Pursuant to the Mutual Legal Assistance in Criminal Matters Ordinance, the Chief Executive in Council has made the Mutual Legal Assistance in Criminal Matters (Japan) Order to implement the bilateral agreement on mutual legal assistance in criminal matters signed between Hong Kong and Japan.  As specified in Schedule 2 of the Order, certain provisions of the Mutual Legal Assistance in Criminal Matters Ordinance are modified to a limited extent to reflect the practices of Japan.  Such modifications do not affect the substantial conformity of the Order with the provisions of the Mutual Legal Assistance in Criminal Matters Ordinance.

     During its scrutiny of the Mutual Legal Assistance in Criminal Matters (Japan) Order, the Subcommittee set up by the Legislative Council noted the Agreement between Hong Kong and Japan does not contain a provision that the Requested Party may refuse assistance in respect of offences punishable by death penalty.  The Administration explained to the Subcommittee that in accordance with Article 3(1)(2) of the Agreement, the Requested Party may refuse assistance in respect of offences punishable by death penalty on the ground that its essential interests would be impaired.  Indeed, the bilateral agreement on mutual legal assistance signed between Hong Kong and Indonesia adopts the same approach.

     Furthermore, the Subcommittee noted that the Agreement between Hong Kong and Japan does not provide that a person who consents to give evidence is immune from liability to any civil lawsuit.  According to our understanding, such immunity is not available under the law of Japan.  Sections 17(1)(iv) and (v), 19 and 23(2)(b) of the Mutual Legal Assistance in Criminal Matters Ordinance contain safeguards to protect the legal rights of a witness transferred to or from Hong Kong.  In practice, the legal position of the witness is governed by the domestic law of the Requesting Party.  Moreover, the transfer may take place only with the agreement of the person to be transferred.  The bilateral agreements on mutual legal assistance signed between Hong Kong and other jurisdictions such as the UK, Denmark and Germany also do not provide that a person who consents to give evidence is immune from liability to any civil lawsuit.

     I now invite Members to approve the making of the Mutual Legal Assistance in Criminal Matters (Japan) Order.

     Thank you, President.

Ends/Wednesday, March 11, 2009
Issued at HKT 16:29

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