International Law Division

   
 
Counsel in the 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 division's Law Officer, Amelia Luk (third left), explains the division's work to a group of journalists from the USA
 

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.

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Negotiations

Bilateral agreements

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 55 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 total number of bilateral agreements to which the HKSAR is a party now extends to 200.

 

 
 
Counsel from the division negotiating with their Russian counterparts

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 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.

 

Surrender of fugitive offenders

   
 
Our negotiating team on transfer of sentenced persons attending negotiations in Teheran, Iran
 

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.

 

Transfer of sentenced persons

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

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 66 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 concluded 28 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.

 

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 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 concluded 17 investment promotion and protection agreements with other jurisdictions.

 

Visa abolition

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 has reached 143.

 

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 World Trade Organization 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 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 240 multilateral treaties apply to the HKSAR.

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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 courts or tribunals pursuant to the Evidence Ordinance (Cap 8). The unit also acts as the Central Authority of the HKSAR under the Hague Convention on the Civil Aspects of International Child Abduction and the Child Abduction and Custody Ordinance (Cap 512) to process return and access applications to and from Convention countries.

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Other work

Financial Action Task Force Against Money Laundering (FATF)

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.

 

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 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.

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Significant developments and events in 2010 and 2011

Hague Conference on Private International Law

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.

 
Counsel attending the Fourth Asia Pacific Conference of the Hague Conference in Manila
 
   
   

The Hague Conference is currently considering the establishment of a regional office in the HKSAR and counsel in the division are liaising and working with their counterparts in relevant jurisdictions in relation to this. Counsel in the division actively participated in the Fourth Asia Pacific Conference of the Hague Conference held in Manila from 26 to 28 October 2011. The Asia Pacific Conference considered the proposed establishment as an excellent measure to strengthen the presence of the Hague Conference in the region and encouraged the early establishment of the regional office as soon as practicable in 2012.

 

Free Trade Agreements (FTAs)

Counsel in the division serve as members of the HKSAR team in the consultations with Mainland authorities on the Mainland and Hong Kong Closer Economic Partnership Arrangement (CEPA), and also advise the Trade and Industry Department on the implementation of CEPA and its supplements in conjunction with other divisions of the department.

Counsel in the division also actively participate in the government’s programme of negotiating FTAs with the HKSAR’s overseas trading partners. The closer economic partnership agreement between the HKSAR and New Zealand was the first of these.

Another FTA with the member states of the European Free Trade Association (EFTA), namely, Iceland, Liechtenstein, Norway and Switzerland was signed on 21 June 2011 together with three bilateral agreements on agriculture with Iceland, Norway and Switzerland respectively. In addition, the HKSAR and the member states of EFTA also signed an agreement on labour.

Counsel in the division continue to provide full legal support in bringing the above agreements into force and in other upcoming negotiations on FTAs.

 

Air Services Negotiation Conference 2011

Counsel in the division participated in the Fourth Air Services Negotiation Conference held under the auspices of the International Civil Aviation Organization. The conference took place in Mumbai, India from 17 to 22 October 2011 and was hosted by the Indian Ministry of Civil Aviation. This conference was primarily organised for aviation negotiators of different jurisdictions to conduct air services negotiations or consultations in a central meeting place. Counsel in the division provided legal support in the bilateral consultations between the HKSAR and a number of countries which participated in this conference.

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  Amelia Luk
Law Officer, International Law Division
   
   

Amelia joined the then Legal Department as an articled clerk (called legal trainee nowadays) in 1979 after graduating from the University of Hong Kong. She was appointed as Assistant Crown Counsel in March 1981 after qualifying as a solicitor in Hong Kong and was “promoted” to Crown Counsel after just 11 days. (In fact the rank of “Assistant Crown Counsel” was abolished on 1 April 1981.) Amelia worked in the Civil Division from 1981 to 1996, with a short stint in the Law Reform Commission from 1982 to 1984. She was transferred to the International Law Division in 1996 and has been heading that division since 2008.

“Counsel in the International Law Division are not just jet-setters, as has been suggested by some!” Amelia says. “They do serious and important work for the Hong Kong Government, such as representing the HKSAR in bilateral negotiations, participating as members of the Chinese or HKSAR delegation in international conferences, and so on. The division’s work is an important facet of the conduct of the HKSAR’s external affairs under the Basic Law and the principle of ‘one country two systems’”, adds Amelia. She enjoys the work in the division as it brings her into contact with counterparts in many different jurisdictions. The work also brings new challenges all the time. Mutual respect and understanding is the key to working with lawyers in countries with a different legal system.

Amelia is now the longest serving counsel in the whole department. “I had to wait for the departure of the former DPP, Mr Grenville Cross, before I could make this claim,” Amelia says.

For recreation, Amelia enjoys reading and stamp collecting. In the latter respect she proudly holds a complete collection of predominantly unused Australian stamps for the period 1913 to 1997. She assists her husband in running the stamp stall at the Michaelmas Fair at St. John’s Cathedral every year. She also works as unpaid track cleaner for her husband’s model railway layout at home which is believed to be the biggest O-gauge layout in Hong Kong.

 
   

 

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