International Law Division


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.


Advice

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. Subject matters include anti-terrorism, United Nations Security Council Resolutions, marine pollution, surrender of fugitive offenders and mutual legal assistance in criminal matters.


Negotiations

Bilateral agreements


The Secretary for Justice, Wong Yan Lung, SC, and the Minister of Justice of Finland, Tuija Brax, sign the Agreement on Mutual Legal Assistance in Criminal Matters (October 2007).
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 concluded nearly 50 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, regional trade agreements, agreements on investment promotion and protection and visa abolition. The total number of bilateral agreements to which the HKSAR is party now extends to well over 150.




Mutual legal assistance in criminal matters

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 evidence, executing requests for search and seizure, producing documents and confiscating the proceeds of crime.


Surrender of fugitive offenders


The Law Officer (International Law), Amelia Luk (second from left), and the division's counsel negotiate an agreement on the surrender of fugitive offenders with the Ukrainian delegation (July 2006).
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 be criminal 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.





Transfer of sentenced persons

These agreements enable foreign nationals serving a sentence of imprisonment in the HKSAR to return to their home country to serve out the remainder of their sentence. Similarly, people from the HKSAR who are serving sentences of imprisonment imposed in foreign jurisdictions may apply to return to the HKSAR to serve the balance of their sentences here.


Air services


The Deputy Principal Government Counsel (Treaties & Law), Peter Wong (first from left, last row), and Shirley Wong, Senior Government Counsel (fourth from left, last row), attend the negotiations with Luxembourg on air services (May 2007).
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 concluded over 60 air services agreements with other jurisdictions.








Avoidance of double taxation

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 entered into both comprehensive double taxation agreements and agreements in respect of shipping and air services income, and has commenced negotiations with a number of countries for the conclusion of comprehensive agreements.


Investment promotion and protection

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 treatment with no discrimination, and for compensation to be paid for losses caused by revolution, national emergency or riot.


Visa abolition

These agreements and arrangements provide for mutual dispensation of visa requirements and facilitate travel between the HKSAR and the other jurisdiction. These arrangements are especially important for businessmen and tourists. There are over 130 agreements and arrangements which enable holders of HKSAR passports to enjoy visa-on-arrival or visa-free access to other jurisdictions.


Multilateral agreements

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 WTO of which the HKSAR is a member. They may also be members of the PRC delegation, as in the case of the Hague Conference on Private International Law, 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 200 multilateral treaties apply to the HKSAR.


Requests for assistance

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 jurisdictions pursuant to the Evidence Ordinance (Cap 8).




Other work

Financial Action Task Force Against Money Laundering (FATF)

The Mutual Legal Assistance Unit provides legal support to the Commissioner for Narcotics 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 as necessary and have acted as expert legal assessors in mutual evaluations of fellow members' implementation of anti-money laundering and counter-terrorist financing standards.


International seminars

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. 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.




Significant developments and events in 2006 and 2007

WHO Framework Convention on Tobacco Control (FCTC)

The FCTC negotiated under the auspices of the UN World Health Organization is the first major health treaty designed to combat the health problems associated with tobacco through a comprehensive set of measures to reduce the use and addiction to tobacco. Following consultations with the HKSAR Government, the Central People's Government extended the FCTC to the HKSAR with effect from 9 January 2006.

Counsel in the division provided legal support to the HKSAR Government on statutory improvements to implement the FCTC, including significant expansion of the statutory "no smoking" areas, tightening control on tobacco advertising and promotion, and making tobacco health warnings more prominent.


FATF Mutual Evaluation of Hong Kong, China

During November 2007, a team of experts from the FATF visited Hong Kong to assess the HKSAR's compliance with international standards against money laundering and terrorist financing. Counsel in the division were closely involved in the legal aspects of preparation for the mutual evaluation and met the experts during their visit to Hong Kong. Work on the mutual evaluation continues and the final report on Hong Kong, China is expected to be published by the FATF in mid-2008.


APEC's Anti-Corruption and Transparency Task Force

A member of the division provided legal support to the Independent Commission Against Corruption in the Commission's participation at the 5th Meeting of the Anti-Corruption and Transparency Task Force held in Cairns in June 2007, at which a High Level Statement on Fighting Corruption through Improved International Legal Cooperation was prepared and subsequently endorsed at the APEC Leaders' Meeting held in Sydney in September 2007.




Live TV link evidence

Following recent amendments to the HKSAR's mutual legal assistance legislation, the division entertained its first request to take live TV link evidence in the Technology Court, in relation to a murder trial in the United Kingdom. The link was successfully completed over a period of two days and the evidence provided by the witness in the HKSAR was significant in securing the conviction of the accused by the jury in the United Kingdom.


Hague Conference on Private International Law


James Ding, Senior Government Counsel, signs the Final Act of the 21st Session of the Hague Conference on Private International Law in The Hague (November 2007).
The HKSAR currently applies eight Conventions on private international law which were negotiated under the Hague Conference. Over the years, the department has established an excellent working relationship with the Hague Conference through active participation in its meetings.

The year 2007 has seen the successful conclusion of the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance which is intended to facilitate the reciprocal recognition and enforcement of maintenance decisions worldwide.

The division issued a consultation paper in July 2007 to seek the views of interested parties (including members of the legal profession and the business community) in respect of the Hague Convention on Choice of Court Agreements before a decision would be taken by the Government to seek the application of the Convention to the HKSAR in accordance with Article 153 of the Basic Law.

In June 2007, a member of the division attended the Asia-Pacific Regional Meeting on the Work of the Hague Conference on Private International Law hosted by the Australian Government and presented a paper on the implementation of the Hague Conventions in the HKSAR.




Supplements III and IV to the Closer Economic Partnership Arrangement with the Mainland (CEPA)

Members of the division continued to advise the Government on the legal aspects of CEPA and its four Supplements. With effect from 1 January 2006, all products of Hong Kong origin (except prohibited articles) enjoy tariff-free access when imported into the Mainland upon application by local manufacturers and upon the CEPA rules of origin being agreed and met. With the conclusion of Supplement IV, the total number of services areas covered by CEPA has expanded to 38.

In addition to serving as members of the HKSAR team in the CEPA consultations with Mainland authorities, counsel in the division also advised the Trade and Industry Department on the implementation of CEPA and its supplements, in conjunction with other divisions of the department.


UN Conventions on penal matters

Both the UN Convention against Corruption and the UN Convention against Transnational Organized Crime were applied to the HKSAR by the Central People's Government in 2006. Counsel in the division were actively involved in advising the Government on the necessary implementation measures, particularly for surrender of fugitive offenders, mutual legal assistance, asset recovery and other aspects of domestic criminal law.


Delegates at the Asia-Pacific Regional Meeting on the Work of the Hague Conference on Private International Law, Sydney (June 2007).



Tender documents for the Tamar Development Project
Tamar Development Project

The division provided close legal support to the Government and the Special Selection Board set up for the purposes of the Tamar Development Project so as to ensure that the relevant tendering process was in full compliance with the requirements of the WTO Agreement on Government Procurement.








Rebecca Luk, Clerical Officer,
Mutual Legal Assistance Unit, International Law Division
Rebecca Luk joined the government as a Clerical Assistant in the then Registrar General's Department in March 1974. She was promoted to the rank of Clerical Officer in 1997 and worked in the Civil Engineering Department and the Registration and Electoral Office before joining the Department of Justice in July 1998. Rebecca has worked since then as a Clerical Officer in the Mutual Legal Assistance Unit of the International Law Division. Among her other duties, she contributed to the successful implementation of the Work Management System in the unit.

Rebecca is an active committee member of the DoJ Staff Club and introduced tai chi and belly dance classes for club members. Rebecca has won numerous sports and dance competitions over the years. In 2006, she skippered her team to the Ladies' Triple League championship run by the HK Lawn Bowls Association.

"Life in the MLA Unit is challenging. I handle all incoming mail from law enforcement agencies and overseas jurisdictions," says Rebecca. "Taking part in Staff Club activities helps me to relax and recharge and to get a proper work life balance."