The International Law Division comprises the Treaties & Law Unit and the Mutual Legal Assistance Unit. It has three important roles: it provides legal advice on public international law to the government; it negotiates international agreements, or provides legal advisers for such negotiations; and it handles requests for legal co-operation between the HKSAR and other jurisdictions.
The subjects on which the Treaties & Law Unit gives advice include international trade law, privileges and immunities, civil aviation and maritime matters, international labour conventions, human rights, environment and health, visa abolition and outer space. The unit also advises on the drafting and interpretation of co-operative agreements and arrangements which range from customs and police co-operation to cultural and education co-operation. The Mutual Legal Assistance Unit also performs an advisory role in relation to aspects of international criminal law and international legal co-operation in criminal matters. In addition, the division advises on the enactment of legislation to implement international agreements in the HKSAR. The subject matter includes United Nations Security Council Resolutions, maritime matters, conservation, surrender of fugitive offenders and mutual legal assistance in criminal matters.
Counsel in the division negotiate agreements on behalf of the HKSAR with foreign countries on the surrender of fugitive offenders, mutual legal assistance in criminal matters and the transfer of sentenced persons. The HKSAR has signed over 60 agreements on these three areas.
Apart from conducting negotiations, counsel in the division also provide legal support in bilateral negotiations as part of the HKSAR delegation. The subject matter of negotiations includes air services, avoidance of double taxation, customs co-operation, free trade agreements, agreements on investment promotion and protection and visa abolition. The number of these bilateral agreements to which the HKSAR is a party has been over 180.
These agreements provide for the rendering of assistance in relation to the investigation and prosecution of crimes, and proceedings related to criminal matters. The types of assistance include taking of evidence, executing requests for search and seizure, producing documents, restraining and confiscating proceeds of crime, transferring persons to give assistance and effecting service of legal process.
The parties to an agreement for the surrender of fugitive offenders undertake to surrender to each other, subject to conditions, persons who are accused of serious offences, or who have absconded after conviction. The conduct constituting the crime must amount to an offence according to the laws of both parties. These agreements help to prevent the HKSAR from becoming a haven for criminals from abroad and facilitate the return to the HKSAR of criminals who have fled overseas.
These agreements enable foreign nationals serving a sentence of imprisonment in the HKSAR to return to their home country so as to serve out the remainder of their sentence in an environment which is free from cultural and language barriers and where they will be able to receive family support. Similarly, people from the HKSAR who are serving sentences of imprisonment imposed in foreign jurisdictions may return to the HKSAR to serve the balance of their sentences in a familiar environment and thereby enhance their prospects of rehabilitation.
Air services agreements provide the framework for scheduled air services to operate between the HKSAR and its bilateral partners. They are negotiated on the basis of a balanced exchange of air traffic rights. Negotiations have also taken place to provide for overflight agreements with appropriate countries. The HKSAR has signed over 70 air services agreements with other jurisdictions.
These agreements and arrangements provide for the avoidance of double taxation of persons carrying on cross-border economic activities. The agreements and arrangements may relate to specific income (such as income from international air and maritime traffic), or may provide for comprehensive double taxation avoidance. The HKSAR has signed around 40 comprehensive double taxation agreements and agreements in respect of shipping and air services income, and has reached substantial agreement with a number of jurisdictions on comprehensive agreements.
An investment promotion and protection agreement creates favourable conditions for greater investment by investors of one contracting party in the area of the other. Such an agreement includes provision for the investments of each party to be accorded fair and equitable treatment with no discrimination, and for compensation to be paid for losses caused by war or other armed conflict, revolution, national emergency or riot; and for deprivation of investments. Currently, the HKSAR has signed around 20 investment promotion and protection agreements with other jurisdictions.
These agreements and arrangements provide for mutual dispensation of visa requirements and facilitate travel between the HKSAR and other jurisdictions. These arrangements are especially important for businessmen and tourists. The number of agreements or arrangements which enable holders of HKSAR passports to enjoy visa-on-arrival or visa-free access to other jurisdictions is over 160.
Counsel in the division participate in international meetings and diplomatic conferences held by international organisations. Counsel may form part of the “Hong Kong, China” delegation, as in the case of the World Trade Organization of which the HKSAR is a member. They may also be members of the Chinese delegation, as in the case of the Hague Conference on Private International Law or the International Civil Aviation Organization, where membership is limited to states.
Very often these meetings and conferences discuss the drafting and conclusion of multilateral agreements or matters arising from their implementation. Currently, over 260 multilateral treaties apply to the HKSAR.
The Mutual Legal Assistance Unit discharges the responsibilities of the Central Authority of the HKSAR for the purposes of mutual legal co-operation in criminal matters. The unit co-ordinates and processes requests to and from the HKSAR for the surrender of fugitive offenders and for mutual legal assistance; and advises the government on applications for the transfer of sentenced persons to and from the HKSAR. The unit also handles letters of requests from overseas courts or tribunals pursuant to the Evidence Ordinance (Cap. 8). On the authorization of the Secretary for Justice, the unit acts as the Central Authority of the HKSAR under the Hague Convention on the Civil Aspects of International Child Abduction and processes return and access applications to and from Convention countries in accordance with the Child Abduction and Custody Ordinance (Cap. 512). Details regarding the Convention and the related operation regime in the HKSAR are available from this link .
For information of obtaining assistance from HKSAR in criminal cases, please refer to Guidelines for Making Applications under the Mutual Legal Assistance in Criminal Matters Ordinance (Chapter 525, Laws of Hong Kong) and Guide to Asset Recovery in the Hong Kong Special Administrative Region.
The Mutual Legal Assistance Unit provides legal support to the Financial Secretary and Secretary for Security in relation to the HKSAR’s participation in the FATF as a full member, under the name “Hong Kong, China”. Counsel attend international meetings of the FATF, participate in expert working groups and act as expert legal assessors in mutual evaluations of fellow members’ implementation of measures to combat money laundering and terrorist financing.
Counsel in the division contribute to maintaining the HKSAR’s international profile by regularly speaking and participating in regional and international seminars organised by other governments and international organisations such as the Hague Conference on Private International Law. Counsel also frequently conduct briefings for local and overseas law enforcement agencies on mutual legal assistance matters and deliver papers in the field of international co-operation in criminal matters such as asset recovery and other forms of mutual legal assistance.