Speech by Prosecutor General Ip Son Sang at China-ASEAN Prosecutors-General Conference

Part 1 – An Overview on the Law on Mutual Legal Assistance in Criminal Matters of Macao

I. Legislative background

With global modernization and development, in particular, the rapid development of Internet and information technology, the mobility of people and property between regions has become more frequent. Consequently, criminal activities that violate legal interests, including organized crimes and terrorist crimes have also become internationalized. Taking into consideration the impact of the principle of territorialism on criminal jurisdiction under state sovereignty, to better prevent and combat cross-country and cross-border criminal activities, as well as to maintain social stability, there is an objective need to strengthen international mutual legal assistance in criminal matters.

As our position as a world center of tourism and leisure, the mobility of population in Macao Special Administrative Region (hereinafter “the MSAR”) is very frequent. In 2013 and 2014, more than 30 million visitors crossed our borders. In view of this, while enjoying rapid economic development, we are also faced with issues such as prevention and combat of cross-border crimes.

Article 94 of the Basic Law of the Macao Special Administrative Region (hereinafter “the Basic Law”) stipulates that “with the assistance or authorization of the Central People's Government, the Macao Special Administrative Region may make appropriate arrangements with foreign states for reciprocal judicial assistance”, as a result, the Law on Mutual Legal Assistance in Criminal Matters (hereinafter “the Law”) was enacted on 18th of July 2006 and came into force on 1st of November 2006.

Article 1 of the Law regulates that with the assistance and authorization of the Central People’s Government, the MSAR may conduct legal cooperation in criminal matters with States or Territories outside the People’s Republic of China, the scope includes:

1. Surrender of fugitive offender;

2. Transfer of proceedings in criminal matters;

3. Enforcement of criminal sentences;

4. Transfer of sentenced persons;

5. Surveillance of sentenced persons and persons on parole;

6. Other forms of legal assistance in criminal matters.

II. Basic Principles of the Law on Mutual Legal Assistance in Criminal Matters

(1) The principle of a sovereign state (Article 2 of the Law)

According to the principle of “One Country, Two Systems”, as stipulated in the Basic Law, as a special administrative region of the People’s Republic of China, when implementing the Law to conduct mutual legal assistance with other States or Territories, the MSAR shall ensure the protection of national defense, external relations, sovereignty, security and public order of the People’s Republic of China, as well as other interests of security, public order and other interests of the MSAR, as enshrined in its legal system.

(2) The principle of primacy of international conventions (Article 4 of the Law)

Legal assistance in criminal matters shall be carried out in accordance with provisions of the international conventions applicable in Macao and, where such provisions are non-existent or insufficient, the provisions of the Law; the provisions of the criminal procedural law shall have subsidiary application.

(3) The principle of reciprocity (Article 5 of the Law)

Legal assistance in criminal matters shall be provided in the Law based on the principle of reciprocity. Where circumstances so require, the Chief Executive shall demand an undertaking to the effect that reciprocity shall apply, such an undertaking may be granted to other States or Territories. Yet, a legal assistance request shall be executed where: it seems to be advisable taking into account the nature of the fact or the need to combat certain serious forms of criminality; it may contribute to the improvement of the situation of the accused or sentenced person or to his/her social rehabilitation; it may serve to clarify the facts related to the accusation of a MSAR resident, even in the absence of reciprocity.

(4) The principle of dual punishment (Article 6 of the Law)

The offence that constitutes the object of the legal assistance request shall be punishable with a criminal reaction under the legislation of both the requested party and the requesting party. Yet, the non-punishment of the relevant facts in the MSAR does not preclude the execution of the legal assistance if its purpose is proved to be the exclusion of an unlawful act or fault of a person against whom criminal proceedings were filed.

III. The refusal of providing legal assistance

(1) Legal assistance shall be refused when the proceedings do not comply or abide by the requirements laid down in the international conventions applicable to the MSAR (Article 7, Paragraph 1, Clause 1 of the Law);

(2) When there are well-founded reasons to believe that legal assistance is sought for the purpose of persecuting or punishing a person by virtue of that person’s nationality, origin, race, sex, language, religion, political or ideological beliefs, education level, economic status, social condition or belonging to a given social group, or that the procedural situation of the person might be impaired based on any of these factors indicated, legal assistance shall be refused (Article 7, Paragraph 1, Clauses 2 and 3 of the Law);

(3) The legal assistance sought might lead to a trial by a court of exceptional jurisdiction or when it concerns the enforcement of a sentence passed by such a court (Article 7, Paragraph 1, Clause 4 of the Law);

(4) The legal assistance sought may lead to cruelty, namely, any of the relevant fact is punishable with a penalty that may cause irreversible injury to the person’s integrity, any of the offences is punishable with a penalty or security measure involving lifelong or indefinite deprivation of liberty, or any of the relevant fact is punishable with a death penalty sentence. Yet, such provisions shall not preclude cooperation if: the requesting party offers an undertaking that the penalties or security measures mentioned shall not be imposed or enforced; or the requesting State accepts the conversion of the said penalties or security measures by a MSAR court in accordance with the MSAR law applicable to the crime for which the person was convicted of (Article 7, Paragraph 1, Clauses 5, 6 & 7, and Paragraph 2 of the Law);

(5) Whenever reciprocity is not assured, legal assistance shall be refused, except when granted legal exemption for reciprocity (Article 7, Paragraph 4 and Article 5, Paragraph 3 of the Law);

(6) Legal assistance shall be refused for any political or military offence (Article 8 of the Law);

(7) Extinction of criminal proceedings, namely, when criminal proceedings concerning the same facts in question have been filed in any jurisdictional area, and the proceedings have ended with a res judicata sentence of acquittal or with a decision to file the case, or the conviction sentence was carried out or cannot be carried out in accordance with the law of the sentencing party, or the extinction of criminal proceedings due to any other reason. Yet, such provisions shall have no effect if legal assistance is sought for purposes of judicial review of a sentence by the requesting party and the grounds for such a review are identical to MSAR law, or for the purpose of re-opening the proceedings, in accordance with the law (Article 9 of the Law);

(8) Legal assistance may be refused if the minor importance of the offence does not justify it (Article 11 of the Law);

(9) If the facts that substantiate the request are object of ongoing criminal proceeding, or if the facts are or may also be the object of criminal proceedings for which the MSAR judiciary authority has jurisdiction; or in view of the circumstances of the case, the acceptance of the request may entail serious consequences for the person concerned due to age, health or other reasons of personal nature, legal assistance may be refused (Article 19 of the Law);

(10) Non bis in idem – when legal assistance request is granted, which involves the transfer of competence over criminal proceedings in favor of a judiciary of a State or Territory, criminal proceedings cannot be filed or continued in the MSAR for the same facts that substantiated the request, neither shall the enforcement sentence, which has been transferred to the judiciary of another State or Territory, be enforced in the MSAR (Article 20 of the Law).

IV. General rules of the legal assistance procedure

(1) Language to be used

The legal assistance request and any documents that accompany the request shall be made in the official language of the requesting party, accompanied by a translation in the official language of the requested party; meanwhile, the decisions concerning the admissibility or the refusal of a legal assistance request shall be notified in the official language of the requested party, accompanied by a translation in the official language of the requesting party, unless the requesting or requested party exempts the need for such translation (Article 21 of the Law).

(2) The Public Prosecutions Office is the entity to receive and transmit any legal assistance request. Any legal assistance request received by the MSAR Public Prosecutions Office shall be submitted to the Chief Executive by the Prosecutor General, accompanied with his/her opinion, in view of making a decision on its admissibility. Meanwhile, any legal assistance request made by the MSAR authorities shall be submitted to the Chief Executive, by the Prosecutor General, in view of making a decision on its admissibility. In case of admissibility of the request by the Chief Executive, the request shall be transmitted through diplomatic channels (Articles 22 and 23 of the Law).

(3) Content of the request

In accordance with the stipulations of Article 24 of the Law on Mutual Legal Assistance on Criminal Matters, the legal assistance request shall indicate the following:

1. The requesting authority as well as the requested authorities, even if the indication of the latter may be in general terms;

2. The object and grounds for the request;

3. The legal qualification of the facts on the grounds of which the request is sought for the purposes of criminal proceedings;

4. The identification of the suspect, accused or sentenced person, of the victim and of the witness or expert whose testimony is sought;

5. A description of the facts, including time and place, proportional to the importance of the cooperation sought;

6. The text of the legal provisions applicable in the requesting party;

7. Any other relevant documents related to the fact.

Validation of the documents mentioned above shall not be required, but additional information may be required.

(4) Content of the request

The decision of the Chief Executive that declares the inadmissibility of the legal assistance request shall be substantiated and is not subject to appeal. The said decision shall be notified to the competent authority via the Prosecutor General (Articles 19 and 25 of the Law).

(5) Expenses for legal assistance – as a general rule, the execution of a legal assistance request shall be free of charge. However, the requesting party shall bear certain expenses prescribed by law, unless otherwise agreed by the requesting party and requested party (Article 27 of the Law).

(6) Urgent provisional measures – in case of urgency, judiciary authorities of the requesting party may communicate with the MSAR judiciary, either directly or through the International Criminal Police Organization (INTERPOL), to request the adoption of a provisional measure or the practice of an act that cannot be postponed; the request shall state the grounds for the urgency and all contents of any normal request shall be submitted. The request shall be transmitted by post, by fax, by telematics, or any other means that leave a written record and permitted by MSAR laws. If the MSAR judiciary deems the urgent request admissible, in accordance with the law, they shall execute it and transmit the facts to the Chief Executive (Article 30 of the Law).

V. Legal stipulations on the surrender of fugitive offender

(1) Conditions for the surrender of fugitive offender (Article 32 of the Law)

1. The legal assistance requested is for the purpose of criminal proceedings for crimes that are punishable under both the MSAR law and the law of the requesting party by a maximum penalty of prison term of no less than one year; or for the purpose of executing a penalty or security measure involving deprivation of liberty where the duration of the sentence remains to be served is not less than 6 months. The surrender of fugitive offender may also be granted if the criminal proceedings to be instituted involves several facts, in which one or several facts is/are punishable by a maximum penalty of a prison term of no less than one year.

2. The court of the requesting party shall have jurisdiction over the crime involved.

(2) Conditions for the refusal of surrender of a fugitive offender by the MSAR (Article 33 of the Law)

Apart from the general terms for the refusal of surrender of a fugitive offender stipulated by law, shall the following circumstances arise in the procedure, the request for surrender of a fugitive offender shall also be refused, in which the MSAR shall ask the requesting party to provide all information deemed necessary to institute criminal proceedings:

1. The crime was committed in the MSAR;

2. The person requested is a Chinese national non-resident of the MSAR;

3. The person requested is a MSAR resident, unless the request is formulated by the State of the person’s nationality or whenever the obligation to surrender a fugitive offender derives from a self-executing norm from international convention applicable to the MSAR.

(3) Other matters related to the surrender of fugitive offenders

1. In cases where the offence was committed in another jurisdiction other than the requesting party, the surrender of fugitive offender may only be granted if under identical circumstances the MSAR would have had jurisdiction under the MSAR law, or if the requesting party can prove that the other jurisdiction does not request the perpetrator of the offence (Article 34 of the Law).

2. With regard to the surrender of fugitive offenders, in principle, the requesting party shall not re-surrender a fugitive offender to another jurisdiction, yet, this provision shall have no effect when (Article 35 of the Law):

(i) Authorization for re-surrender of a fugitive offender is requested and granted under the same terms as those established for a surrender request, after the person concerned having been previously heard;

(ii) The person sought, having been given the possibility to leave the territory of the requesting party, did not avail him/herself of that possibility within a period of 45 days or, having departed, voluntarily returned.

The statement of the person sought is to be made at the Court of Second Instance.

3. Postponement of surrender and temporary surrender (Articles 36 and 37 of the Law):

If the MSAR judiciary requests for the institution of criminal proceedings or execution of a sentence involving deprivation of liberty against the person sought regarding a criminal offence other than the one stated in the request, the surrender of the person sought may be postponed until the proceedings terminate or the sentence is served. However, the person sought may be temporarily surrendered for the purpose of procedural acts, which the requesting party demonstrates that the surrender cannot be postponed without causing serious prejudice, inter alia, to attend the hearing of a trial; such surrender may not carry any prejudice to the ongoing proceedings in the MSAR and the requesting must undertake the unconditional return of the person concerned once such procedural acts are terminated.

In addition, the surrender of a person may also be postponed if it is established that the person concerned suffers from an illness that puts his/her life in danger.

4. Concurrent requests for surrender (Article 38 of the Law)

When there are two or more requests for the surrender of the same person, related to the same facts, the request of the State or Territory where the offence was committed or where the main facts have occurred shall have preference.

Where the requests concern different facts, the seriousness of the offence according to MSAR law, the date of the request, the nationality or the usual place of residence of the person sought, as well as any other concrete circumstances such as the existence of an agreement or the possibilities of re-surrender between different requesting parties, shall be taken into account and preference shall be given accordingly in the decision.

The above provisions shall apply, mutatis mutandis, for the purposes of continuing an anticipatory detention.

5. Provisional detention (Article 39 of the Law)

In case of emergency, the provisional detention of the person sought may be requested as a preliminary act of a formal surrender of a request for fugitive offender. Any decision on such provisional detention, or its continuation, shall be taken in conformity with MSAR law.

Provisional detention request shall indicate the existence of either a detention warrant or a sentence whereby such person was convicted, a summary of the facts giving rise to the offence in question and legal provisions that are applicable.

The requests may be transmitted by post or other means of telecommunications permitted by MSAR law.

Provisional detention shall be terminated if the surrender of fugitive offender request is not received by the MSAR authorities within 18 days of the date of the detention, it may, however, be postponed for up to 40 days if the reasons invoked by the requesting party are deemed justifiable.

Provisional detention may be replaced by any other coercive measures stipulated by criminal procedural legislation.

6. Self-execution of detention by the MSAR police (Article 40 of the Law)

The MSAR criminal police authorities may detain any person who, according to official sources, in particular, the International Criminal Police Organization (INTERPOL), is wanted in another State or Territory for purposes of filing criminal proceedings or the purpose of serving a sentence, for any notorious fact that justifies the surrender of a fugitive offender.

7. Surrender consented by the detained person (Article 41 of the Law)

Any person detained by the MSAR authorities, for the purpose of surrender, after having been informed of his/her right to this judicial procedure, may state that he/she consents to be surrendered to the requesting party and that he/she renounces to the procedure of surrender of a fugitive offender. The statement shall be signed by the person sought and by his/her legal counsel or, in his/her absence, by an appointed legal counsel.

Subsequently, the judge shall assess whether the requirements for granting surrender are met, shall hear the person sought in order to assess whether the statement was made of that person’s free will, and if appropriate, shall confirm the statement and issue an order for the surrender of the person concerned.

Any statement confirmed by the judge shall be irrevocable, and the judicial act to confirm the statement shall bear the legal value of a final decision in the procedure for surrender of a fugitive offender.

8. Non-custodial coercive measures (Article 42 of the Law)

While there is an ongoing procedure and until a final decision is made, custodial measure may be substituted by other coercive measures stipulated by criminal procedural legislation.

9. Escape of the surrendered person (Article 44 of the Law)

If a surrendered person who escapes after being surrendered to the requesting party before the end of the criminal proceedings or before having served the sentence, returns or is found in the MSAR shall be arrested and surrendered to the same party upon a detention warrant from the competent authority, except if there is a violation of the conditions under which the surrender was granted.

10. Transit (Article 45 of the Law)

The transit of a person, who is surrendered from a jurisdiction outside the MSAR to another, may be granted, if the concerned offence is an offence for the purposes of surrender in accordance to the MSAR law. However, if the person concerned is a MSAR resident, transit shall only be granted when conditions as would be required for the surrender of fugitive offender are satisfied.

Authorization for transit is granted upon request of the interested party. If transit takes place by air transport and an emergency landing occurs, the request shall be executed by the air captain.

Whilst in transit, the person concerned shall be kept under detention in the MSAR.

The Chief Executive shall assess the formal aspects of the request and make a decision, without undue delay; such decision shall be transmitted immediately to the requesting party through the same channels in which the request was made.

VI. Administrative and judicial procedures of surrender of fugitive offender

The surrender of fugitive offender procedure shall comprise of one administrative stage and one judicial stage.

Any requesting party on a surrender request to the MSAR may participate in the judicial stage of the surrender procedure, through a representative appointed to that effect, which must be submitted to the Chief Executive, with an opinion of the Public Prosecutions Office, in view of its admissibility (Articles 48 and 49 of the Law).

According to Article 74 of the Law, surrender of fugitive offender procedures shall be regarded as urgent and shall not stop during the periods of judicial recess.

(1) Requirements for the request for surrender of a fugitive offender (Articles 46 and 24 of the Law)

1. Other than the elements mentioned in Article 24, the request for the surrender of fugitive offender must include the following:

(i) Evidence to the effect that, under the concrete circumstances of the case, the person sought is subject to the criminal jurisdiction of the requesting party;

(ii) Evidence, in case the office was committed in a jurisdiction other than the requesting party, that the former does not request the person for the same offence;

(iii) A formal undertaking to the effect that the person sought shall neither be surrendered to another jurisdiction outside the requesting party, nor be detained for purposes of criminal proceedings or to serve a sentence or any other purposes, related to any facts committed prior to, or concomitantly with, the facts that substantiate the request.

2. The following must be appended to the surrender of fugitive offender request:

(i) The detention warrant of the person sought, issued by the competent authority;

(ii) A certificate or authenticated copy of the decision ordering the issue of the detention warrant, in the case of surrender of fugitive offender for purposes of criminal proceedings;

(iii) A certificate or authenticated copy of the conviction, in case of surrender of fugitive offender for the purpose of serving a sentence, as well as a statement specifying the duration of the sentence left to be carried out, if that duration does not correspond to the duration stated in the sentence;

(iv) A copy of the relevant laws related to the conditions under which the person becomes immune from prosecution or punishable by the reason of lapse of the limitation period;

(v) If applicable, a statement by the competent authority concerning any facts that, according to the law of the requesting party, suspends or interrupts the limitation period prescribed;

(vi) A copy of the relevant laws related to the possibility to appeal, or to the possibility of a new trial in case of a conviction sentence rendered in absentia.

3. Supplementary information – If the request for surrender of fugitive offender is either incomplete or not accompanied by all necessary information, such information shall be supplemented within an established deadline, otherwise, the case may be filed and the person concerned may be released immediately. However, other coercive measures may be applied to the person to be surrendered, meanwhile the procedure may be reopened and the person concerned may once again be detained when such information is made available (Article 47 of the Law).

(2) Administrative procedure (Articles 48 and 50 of the Law)

Upon receiving the request for surrender of fugitive offender, the Public Prosecutions Office shall assess the formal aspects of the request and issue an opinion, within a maximum period of 20 days to the Chief Executive for consideration.

Subsequently, the Chief Executive shall assess the request for surrender of fugitive offender for the purpose of deciding, inter alia, taking into account the applicable undertakings, on the basis of political reasons or on discretionary grounds, whether the request is admissible or non-admissible. If the request is declared inadmissible, the procedure shall be filed, without further formalities.

During the administrative procedure, the Public Prosecutions Office shall take necessary measures in order to ensure the surveillance of the person sought.

(3) Judicial procedure

1. Following the administrative procedure, the request for the surrender of fugitive offender that is declared admissible shall be forwarded to the representative of the Public Prosecutions Office at the Court of Second Instance, in order for the Public Prosecutions Office to take the steps to carry out the request within the following 48 hours (Article 51 of the Law).

2. Preliminary ruling (Article 52 of the Law)

If the judge of the Court of Second Instance deems that the procedure should be filed immediately, the request shall be decided by the Collegial Bench in the next meeting.

If the judge of the Court of Second Instance decides that the case should proceed, the detention warrant of the person concerned shall be sent to the Public Prosecutions Office for execution.

Whenever additional information is deemed necessary, the competent authorities shall be instructed only to keep the person requested under surveillance, however, when it is deemed necessary and there are obvious indications for believing that the surrender of fugitive offender request will proceed, the immediate detention of the person concerned may take place.

3. Postponement of deadline and hearing (Articles 53 and 54 of the Law)

The detention of the person requested shall cease and be replaced by another coercive measure if the final decision of the Court of Second Instance does not occur within 65 days of the detention date. If a non-custodial coercive measure is not admissible, the period mentioned above shall be extended for a maximum of 25 days.

If an appeal is made against the decision of the Court of Second Instance ordering the surrender of the fugitive offender, the custodial measure shall continue up 80 days from the date of appeal.

4. Production of evidence and final decision (Articles 57 and 58 of the Law)

Following court hearing over the evidence produced, the Court of Second Instance shall make a final decision on the request for surrender of fugitive offender.

5. Appeal of the judicial procedure

Within the judicial procedure for the surrender of a fugitive offender, both the Public Prosecutions Office and the person requested are entitled to file an appeal to the Court of Final Appeal within 10 days of the decision, which shall suspend any legal effect on the execution of the surrender (Articles 59 and 60 of the Law).

6. Surrender of the person after completion of the judicial procedure (Articles 62 and 63)

After the decision by a Collegial Bench ordering the transfer of a fugitive person has been finalized, the Public Prosecutions Office shall notify the administrative authority to agree on a date of surrender no later than 20 days after the date in which the decision was made final.

Within the procedure for the surrender of fugitive offender, the person sought, with pending criminal procedures in the MSAR, may first be transferred and subsequently returned to the MSAR for temporary surrender (refer to Article 38 of the Law).

If anyone fails to appear to receive the person requested on the date agreed, he/she shall be set free 20 days after that date. However, if reasons of force majeure, inter alia, if the person concerned suffers from an illness that puts his/her life in danger, this deadline shall be deferred on a case to case basis.

If the surrender did not take place within the deadline, MSAR authorities may refuse to accept any new request for the surrender of that same fugitive offender.

Once the person is surrendered, both the court and the Public Prosecutions Office shall be informed accordingly.

VII. Special procedural rules for the surrender of fugitive offenders

(i) Provisional detention in cases of urgency (Articles 64 and 39 of the Law)

Article 39 of the Law stipulates that in case of urgency, the provisional detention of the person sought may be requested as a preliminary of a formal surrender of a request for fugitive offender; after the examination of the authenticity, the regularity and the admissibility of the request, the judge rapporteur of the Court of Second Instance shall deliver the detention warrant to the Public Prosecutions Office for the execution of the provisional detention.

Subsequently, the Court of Second Instance shall hear the detained person within 48 hours of the detention, and make a decision to validate the detention and to allow for its continuation.

The provisional detention of a person shall be transmitted to the Chief Executive immediately. Yet, if a surrender of fugitive offender request is not received within 18 days of the date of the detention or within 40 days postponed based on justifiable reason invoked by the requesting party, the provisional detention shall terminate and an order for the release of the person shall be issued.

Subsequently, administrative and judicial procedures of the surrender of fugitive offender shall commence immediately (Paragraph 4 of Article 65 of the Law).

(ii) Self-executing indirect request for detention carried out by the MSAR police (Articles 66 and 40 of the Law)

Regarding the self-executing indirect request for detention carried out by the MSAR police in accordance with Article 40 of the Law, once finalized by the Court of Second Instance, the Public Prosecutions Office shall notify the State or Territory concerned through the most expeditious channels, in order for the latter to inform urgently whether it will submit a request for the surrender of fugitive offender.

The person detained shall be released after 18 days from the detention date, unless a reply is received with the information mentioned above or if, after 40 days from the detention date, a positive reply is received by not followed by a surrender request.

The appropriate regulations of provisional detention are also applicable to indirect request for detention.

(iii) Non-custodial coercive measures and power (Article 67 of the Law)

The Court of Second Instance shall be competent to decide upon any non-custodial coercive measures, whenever such measures are admissible under the provisions of Article 39 (provisional detention) and Article 66 (indirect request for detention).

VIII. Re-surrender of a person following an escape

(1) Detention of the surrendered person following an escape (Articles 68 and 69 of the Law)

If the person sought escapes after being surrendered by the MSAR, the Public Prosecutions shall deliver to the Court of Second Instance the detention warrant issued by the original requesting party, which shall be heard by a judge of the Court of within the original procedure for surrender, to make a decision on the execution of said warrant.

An appeal made to the Court of Final Appeal against the final decision shall have suspensive effect.

Subsequently, the Public Prosecutions Office shall ensure the re-surrender of the person in accordance with procedures for surrender.

IX. Request for surrender of fugitive offender submitted by the MSAR

(1) Powers and procedure (Article 71 of the Law)

The Public Prosecutions Office shall be empowered to submit the file for the request for surrender of fugitive offender to the Chief Executive for decision.

If the decision of the Chief Executive deems to be favorable, the request, accompanied with the necessary elements, shall be transmitted to the State or Territory where the fugitive offender may be found, through diplomatic channels (Article 23 of the Law).

Meanwhile, the Chief Executive may request the requested party to allow a representative appointed for that purpose to participate in the surrender procedure.

(2) International circulation of the provisional detention request (Article 72 of the Law)

The Prosecutor General shall forward the judicial warrant for the provisional detention issued by the court for the purpose of surrender of the fugitive offender to the Macao Sub-Bureau of the China National Central Bureau of the International Criminal Police Organization (INTERPOL), and inform the court accordingly.

(3) Notification on the surrender of a fugitive offender

Once the surrender of the fugitive offender is granted, the Chief Executive shall notify that fact to the MSAR judiciary that requested it.

Part 2 – Asset Recovery

According to the Law on Mutual Legal Assistance in Criminal Matters of Macao, asset recovery exists in different stages and procedures.

1. According to general provisions on the procedures for mutual legal assistance in criminal matters, Article 29 of the Law has the following stipulations on the handing over of objects and values:

i. At the request of a State or Territory, objects or values derived from the commission of an offence, exclusively or as a complement of another request, unless they are not subject of being declared lost in favor of the requesting party or the MSAR, may be handed over to their rightful owners, whenever they are not essential for evidentiary purposes related to an offence over which the Macao authorities have jurisdiction.

ii. Handing over of objects and values may be postponed or handed over with the condition that they are returned.

iii. The rights of bona fide third parties shall be safeguarded, as well as those of the MSAR, inter alia, as regards taxes, donations, award, income, duties, fines, compensations or any other relevant remuneration legally due.

iv. If there is an objection, the handing over of objects and values shall be entrusted only after a favorable res judicata decision by the competent authority.

v. Objects subject of being declared lost in favor of a State or Territory or in favor of the MSAR may be shared among parties, by agreement, on a case-by-case basis, between the MSAR and a State or Territory.

2. Regarding the procedure of request for surrender of fugitive offender made to the MSAR, Article 43 of the Law has specific provisions on the handing over of seized property.

3. Regarding the procedure for mutual legal assistance in the transfer of powers of the enforcement of criminal sentences, the Law has relevant stipulations on the confiscation of proceeds, objects or instrumentalities of the crime (Article 91, Paragraph 1,Clause 3) and related provisional measures (Article 102, Paragraphs 4 and 5, Article 104, Article 105, Paragraph 2).

4. Regarding other measures within mutual legal assistance in criminal matters, Article 142 of the Law has set out specifications on the handling of proceeds, objects and instrumentalities of an offence:

i. At the request of the requesting party, MSAR authorities may undertake actions in order to trace any proceeds, located in the MSAR, from an allegedly committed crime; the results thereof shall be communicated to the requesting authority.

ii. Within the request, the authorities of the requesting party must inform the grounds to MSAR authorities as to the extent it deems that such proceeds might be located in the MSAR.

iii. In case the proceeds of a crime are located in the MSAR, the MSAR authorities shall undertake the necessary measures to enforce the court decision of the requesting party whereby a confiscation order of the proceeds of crime is imposed; the provisions provided in Part IV shall apply mutatis mutandis.

iv. When the requesting party authorities communicates its intention to execute the decision mentioned above, MSAR authorities may take the measures permitted under MSAR law, to prevent any transfer or disposal of values which are or may be affected by that decision.

v. The above mentioned provisions shall apply to objects and instrumentalities of a crime.

Part 3 – Current situation of
mutual legal assistance in criminal matters in the MSAR

In summary, the Law on Mutual Legal Assistance in Criminal Matters of Macao is important to the drive of mutual legal assistance between MSAR and other States or Territories outside the People’s Republic of China. It has also widened and deepened the work mutual legal assistance in the MSAR, enabling a majority of incoming legal assistance requests to be accepted and executed, hence providing better legal grounds and feasibility for the MSAR to requests for mutual legal assistance in criminal matters from other States or Territories.

However, the Law on Mutual Legal Assistance in Criminal Matters of Macao is merely a domestic legislation. Due to the lack of sufficient bilateral or multilateral agreements on mutual legal assistance in criminal matters, as well as relevant international conventions applicable to the MSAR, we continue to face certain difficulties in terms of having our requests accepted and executed by requested parties. As a result, with the assistance and authorization from the Central People’s Government, the MSAR shall continue its effort to make arrangements with other States and Territories on mutual legal assistance in criminal matters.

It is worth mentioning that mutual legal assistance between MSAR and other regions of the People’s Republic of China is still carried out in compliance to the stipulations of the Criminal Proceedings Code of Macao. In addition, the MSAR may, through consultations and in accordance with the law, maintain judicial relations with the judicial organs of other parts of the country, and they may render assistance to each other.

The MSAR is currently undergoing negotiation with Mainland China and the Hong Kong SAR, respectively, on agreements for mutual legal assistance in criminal matters. Despite differences in legal backgrounds and judicial systems, the negotiation process is going well. Meanwhile, to conform with formulation of mutual legal assistance agreements, the MSAR has initiated the drafting of legislation on “Regional Mutual Legal Assistance on Criminal Matters”, and we hope the draft can be presented to the Legislative Assembly for deliberation in the near future.

Currently, the MSAR is developing towards a world tourism and leisure center, and gradually becoming a globalized city. With increasing tourists, non-resident workers and foreign investors, the number and types of cross border criminal activities is also on the rise.

In fact, the combat on cross border criminal activities not only related to the interests of the MSAR, but also to the interests of other jurisdictions where the offence is involved, as well as to the common interests of the international community. Strengthening mutual legal assistance in criminal matters with other States and Territories has significant importance, especially with regard to the surrender of fugitive offenders and asset recovery.

We believe that on the foundation of the principles of “One Country, Two Systems”, and with the assistance and support from the motherland, the MSAR will provide mutual legal assistance in criminal matters to other States and Territories according to legal requirements. We also anticipate that under the principle of reciprocity, the MSAR of the People’s Republic of China will contribute our utmost to the combat against international cross border criminal activities.

Attachment – Case studies on the surrender of fugitives and asset recovery

Since the Law on Mutual Legal Assistance in Criminal Matters of Macao came into effect, the MSAR has made one request for the surrender of fugitive offender. However, the relevant sentence could not be delivered due to the lapse of statute of limitations; as a result, Macao had to notify the requested party to terminate the request.

On the other hand, Macao has received two requests for the surrender of fugitive offenders; there have been one case where assistance could not be provided and the other where the fugitive offender was successfully surrendered. Let us take this opportunity to share with you our experiences:

CASE STUDY 1

In 2009, an Asian country requested the judiciary of MSAR to detain and surrender a fugitive offender who was overstaying in Macao, who has committed robbery and homicide in that country.

The MSAR accepted the request for legal assistance and carried out relevant legal procedures.

According to the Law on Mutual Legal Assistance in Criminal Matters, the Court of Second Instance has the authority to hear the request for surrender of fugitive offender. When the Court of Second Instance assessed the requirements of surrendering a fugitive after hearing the testimonies of all stakeholders, it discovered that the law of the requesting party provides that homicide is subject to death penalty sentence. However, the provisions of the Law did not allow for the surrender of a fugitive offender if the offence is punishable by death penalty or life imprisonment, as a result, the Court of Second Instance demanded an undertaking from the requesting party to not sentence the fugitive to death penalty nor life imprisonment or to not execute such sentence.

However, the requesting party was not able to provide this undertaking and therefore, the request for surrender of fugitive offender was rejected.

CASE STUDY 2

In 2012, a member of the European Union requested the judiciary of MSAR to detain and surrender a fugitive who was suspected of committing homicide.

The MSAR accepted the request for legal assistance and carried out relevant legal procedures.

The fugitive was detained by MSAR authority and was informed that the Law granted him/her the right to choose whether to institute judicial procedures for the surrender of fugitive offender, or renounce the procedure and agree to be surrendered to the requesting party.

Subsequently, the fugitive stated his consent to be surrendered to the requesting party, and a statement was signed by him/her and his/her legal counsel as confirmation.

Nonetheless, the Court of Second Instance of MSAR had to assess the admissibility of the request for the surrender of fugitive offender, in particular, whether the requesting party had made an undertaking to not apply or execute death penalty or life imprisonment to the offender, as well as to hear the person sought in order to assess whether the statement was made under the his/her free will.

Once it was confirmed that the statement was made under the fugitive’s own free will, the Court of Second Instance issued an order for the surrender of the person concerned to the requesting party.

CASE STUDY 3 – Request for asset recovery

In terms of asset recovery, the MSAR has so far received one request for mutual legal assistance in criminal matters from a foreign jurisdiction. The request is currently in process.

In addition, the MSAR has carried out overseas asset recovery of the criminal proceeds of Ao Man Long’s corruption case.

In December 2006, Ao Man Long, the former Secretary for Transport and Public Works was detained and arrested by the MSAR judicial authorities for bribery, money laundering, amongst other crimes. The criminal proceeds involved totalled over MOP800 million (over USD100 million), scattered in the MSAR, the HKSAR and the UK.

The criminal proceeds of Ao Man Long in the MSAR were immediately seized by the local law enforcement authorities, and his criminal proceeds in Hong Kong were investigated and seized by the HKSAR law enforcement authorities under the local law.

Prior to the case, the MSAR had no experience in requesting a foreign jurisdiction to seize, recover and return criminal proceeds.

Pursuant to the relevant regulations of the UN Convention against Corruption and the Law on Mutual Legal Assistance in Criminal Matters of Macao, in December 2007, the MSAR sent a request to the UK by way of diplomatic channels through the Office of the Commissioner of the Ministry of Foreign Affairs of the People’s Republic of China in the MSAR, requesting UK authorities to seize (freeze) criminal proceeds that Ao Man Long himself and his family members held in the UK. Subsequently, the UK Court made a restraining order in February 2008, under which, the criminal proceeds itemized in the request sent by the MSAR were all frozen.

On 30th of January 2008, the Court of Final Appeal of the MSAR delivered a guilty verdict at the first stage of trial against Ao Man Long, the former Secretary for Transport and Public Works. He was found guilty of 57 counts of bribery, abuse of power, false declaration of assets, possessing assets of unclear source, money laundering and other crimes. He was sentenced to 27 years of imprisonment and fined MOP240,000 (approximately USD30,000). The Court declared to confiscate over MOP800 million (approximately US$100 million) in cash and assets to the ownership of the MSAR.

At later stages, the Court of Final Appeal delivered two other verdicts against Ao Man Long for more counts of bribery and money laundering, and the sentence was increased to 29 years of imprisonment.

Subsequently, the MSAR proceeded to recovering overseas assets of Ao Man Long’s corruption case.

Though the MSAR and the HKSAR are both special administrative regions of the People’s Republic of China, under the principle of “One Country, Two Systems”, Macao and Hong Kong each has its own legal system and judicial system, independent of each other. The arrangement of judicial assistance between the two regions was still at the stage of negotiation, and a formal agreement had yet to be reached. Therefore, recovering the corruption proceeds of Ao Man Long through mutual legal assistance met with impediments with slim chance of success. The MSAR took a compromising approach by retaining a lawyer in Hong Kong to go through civil proceedings against Ao Man Long’s proceeds of crime in the HKSAR.

Finally, the MSAR won the civil case and successfully recovered Ao Man Long’s criminal proceeds in the HKSAR with a total amount of MOP440 million (over USD55 million).

In terms of recovering criminal proceeds in the UK, considering that the UK has previously accepted the request made by the MSAR in accordance with the UN Convention against Corruption and the Law on Mutual Legal Assistance in Criminal Matters to freeze Ao Man Long’s criminal proceeds in UK, the MSAR decided that the frozen proceeds should be recovered and returned to Macao.

In May 2010, the MAR sent another mutual legal assistance request through diplomatic channels to the UK, requesting that the UK recover and return the criminal proceeds in the UK under Ao Man Long and his family members.

The MSAR and UK attached great importance to the request and each side formed a special case team to work on this asset recovery case.

In the subsequent years, the two teams maintained close and frequent contact. Effective communication was built on mutual trust and helped to solve many questions encountered in the asset recovery process. Such questions included clarifying the protection of Ao Man Long’s entitled rights during the trial in the MSAR, as well as the protection of third party legal interests.

Finally, after years of tremendous efforts, the MSAR successfully recovered the criminal proceeds of Ao Man Long that had been hidden in the UK for so many years with a total amount of MOP340 million (approximately USD42.5 million).

On 3rd of November 2015, the MSAR held a simple but solemn ceremony, celebrating the recovery and return of Ao Man Long’s criminal proceeds from the UK to Macao. This successful case of recovering overseas proceeds of crime has marked an epoch in the local history of judicial assistance in criminal matters. The economic loss incurred by Ao Man Long’s corruption to the MSAR was partially compensated and the dignity of the judicial authorities of the Macao SAR was to a great extent safeguarded.