Consular Relations (Additional Privileges and Immunities) (India) Order
(Enacting provision omitted—E.R. 1 of 2020)
[17 July 2009]
(Format changes—E.R. 1 of 2020)
(Omitted as spent—E.R. 1 of 2020)
In this Order—
*Convention (《條約》) means the Consular Convention between the People’s Republic of China and the Republic of India done at New Delhi on 13 December 1991; relevant provisions of the Convention (《條約》有關條文) means the provisions of paragraphs 1 and 2 of Article 28, Article 29, paragraphs 2, 3 and 4 of Article 31, paragraphs 2, 3 and 4 of Article 34, Articles 35, 36 and 38, Article 40 (except sub-paragraphs (a) and (b) of paragraph 1 and paragraph 3), Article 41, and Article 43 (except paragraph (a)), of the Convention as set out in the Schedule.| The People’s Republic of China and the Republic of India exchanged instruments of ratification in respect of the Consular Convention between the People’s Republic of China and the Republic of India on 30 September 1992 in Beijing. That Convention came into force on 30 October 1992 and became applicable to Hong Kong Special Administrative Region with effect from 28 July 2001. |
It is declared that the additional privileges and immunities accorded to a consular post of the Republic of India, or to persons connected with the consular post, or to both, under the relevant provisions of the Convention, as read with the provisions of Article 1 (except paragraphs (b), (i), (k), (m) and (n)), and Articles 42, 44 and 45, of the Convention as set out in the Schedule, have the force of law in Hong Kong.
For the purposes of the present Convention, the following expressions shall have the meanings hereunder assigned to them:
Consular premises and the residences of members of a consular post shall be inviolable. The authorities of the receiving State may not enter the consular premises and the residences of members of a consular post without the consent of the head of the consular post or the head of the diplomatic mission of the sending State in the receiving State, or of a person designated by one of them.
The means of transport of the consular post and of the consular officers shall be immune from search, arrest or execution.
The consular premises, their furnishings and the property and means of transport of the consular post shall be immune from any form of requisition.
The official correspondence of a consular post shall be inviolable. Official correspondence means all correspondence relating to the consular post and its functions. The consular bag shall neither be opened nor detained. All the packages which constitute the consular bag shall bear visible external marks of its character and may contain nothing other than official correspondence, official documents and articles intended exclusively for official use.
The consular courier shall only be a national of the sending State, and shall not be a permanent resident of the receiving State. He shall be provided with an official document indicating his status and the number of packages constituting the consular bag. In performing his functions, a consular courier shall be protected by the receiving State and enjoy personal inviolability and shall not be liable to any form of arrest or detention.
The sending State, its diplomatic mission and consular post may designate consular couriers ad hoc; in such cases the provisions of paragraph 3 of this Article shall also apply except that the privileges and immunities therein mentioned shall cease to apply when such courier has delivered to the consignee the consular bag in his charge.
A consular officer shall not be liable to arrest or detention.
Members of the administrative and technical staff and members of the service staff of a consular post shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent judicial authority of the receiving State.
Except in the case specified in paragraph 3 of this Article, members of the administrative and technical staff and of the service staff of a consular post shall not be committed to prison or be liable to any other form of restriction on his personal freedom save in execution of a judicial decision of final effect.
A consular officer shall enjoy total immunity from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from civil and administrative jurisdiction of the receiving State in respect of acts performed in the exercise of consular functions.
Members of the administrative and technical staff or of the service staff of a consular post shall also be immune from criminal, civil and administrative jurisdiction of the receiving State in respect of acts performed in the exercise of consular functions.
The provisions of paragraphs 1 and 2 of this Article shall not apply to the following civil proceedings:
arising out of a contract concluded by a member of the consular post in which he did not contract expressly or impliedly as an agent of the sending State;
by a third party for damage arising from an accident in the receiving State caused by a vehicle, vessel or aircraft;
concerning private immovable property in the receiving State, unless a member of the consular post is holding it in the capacity of representative of the sending State and for the purposes of the consular post;
relating to succession in which a member of the consular post is involved as executor, administrator, heir or legatee as a private person;
arising out of any professional or commercial activities in the receiving State by a member of the consular post outside his official functions.
The receiving State shall not take measures of execution against a consular officer except in cases referred to in paragraph 3 of this Article. In the event of taking such measures, the inviolability of the person and residence of the consular officer shall not be impaired.
A consular officer is under no obligation to give evidence as a witness. The receiving State shall not apply coercive measures or penalty to a consular officer if he should decline to give evidence.
A member of the administrative and technical staff or of the service staff of the consular post may be called upon to give evidence in the course of judicial or administrative proceedings of the receiving State. He shall not, except in the cases referred to in paragraph 3 of this Article, decline to give evidence. However, under no circumstances should coercive measures be applied to him.
A member of the administrative and technical staff or of the service staff of the consular post is under no obligation to give evidence concerning matters connected with the exercise of his functions or to produce any official correspondence or documents relating thereto. He is entitled to decline to give evidence as expert witness with regard to the law of the sending State.
The competent authorities of the receiving State requiring the evidence of a member of the administrative and technical staff or of the service staff of the consular post shall avoid interference with the performance of his functions. They may, when possible, take such evidence at his residence or at the consular premises or accept a statement from him in writing.
The receiving State shall exempt the following from all dues and taxes:
consular premises and residences of the members of a consular post acquired in the name of the sending State or its representative and transactions or instruments related thereto;
consular facilities and means of transport acquired exclusively for official purposes as well as their acquisition, possession or maintenance.
The provisions of paragraph 1 of this Article shall not apply in respect of:
charges levied for specific services;
dues and taxes collectable under the laws and regulations of the receiving State from a person who concludes a contract with the sending State or its representative.
The receiving State shall, in accordance with its laws and regulations, permit entry and exit of and grant exemption from all customs duties other than charges, for storage, cartage and similar services, on:
articles imported at the time of first installation for the personal use of a member of the administrative and technical staff of the consular post, including household articles intended for his establishment.
Articles referred to in sub-paragraphs . (c) of paragraph 1 of this Article shall not exceed the quantities necessary for direct use by the person concerned.
Family members of a consular officer and family members of a member of the administrative and technical staff of the consular post . shall enjoy respectively the privileges and immunities to which the consular officer and the member of the administrative and technical staff are respectively entitled under the provisions of this Convention. Family members of a member of the service staff of the consular post shall enjoy the privileges and immunities to which the member of the service staff is entitled under this Convention, except those who are nationals or permanent residents of the receiving State, or who carry on any private gainful occupation in the receiving State.
Members of the administrative and technical staff or of the service staff of the consular post who are nationals or permanent residents of the receiving State shall not enjoy the privileges and immunities provided for in this Convention, subject to the provisions of paragraph 3 of Article 36 of this Convention.
Family members of the persons mentioned in paragraph 1 of this Article shall not enjoy the privileges and immunities provided for in this Convention.
In the event of the death of a member of a consular post or a member of his family, the receiving State shall:
exempt the movable property of the deceased from estate duties and all duties concerned.
Every member of the consular post shall enjoy the privileges and immunities provided in this Convention from the moment he enters the territory of the receiving State on proceeding to take up his post or, if already in its territory, from the moment when he enters on his duties with the consular post.
Family members of a member of the consular post shall enjoy the privileges and immunities provided for in this Convention from the date from which he enjoys privileges and immunities, or from the date of their entry into the territory of the receiving State or from the date of their becoming such family members in the case of their entry or becoming such family members after the date from which he enjoys privileges and immunities.
When the functions of a member of the consular post have come to an end, his privileges and immunities and those of his family members shall cease at the moment when the person concerned leaves the receiving State or on the expiry of a reasonable period in which to do so. The privileges and immunities of the family members of a member of the consular post shall come to an end when they cease to be the said family members. However, if such persons intend to leave the receiving State within a reasonable period thereafter, their privileges and immunities shall subsist until the time of their departure.
In the event of the death of a member of the consular post, his family members shall continue to enjoy the privileges and immunities accorded to them until they leave the receiving State or until the expiry of a reasonable period in which to do so.
The sending State may waive any of the privileges and immunities enjoyed by the persons concerned under Articles 35 and 36 of this Convention. The waiver shall in all cases be explicit and shall be communicated to the receiving State in writing.
The initiation of proceedings by a person in a matter where he might enjoy immunity from jurisdiction under this Convention shall preclude him from invoking immunity from jurisdiction in respect of any counter-claim directly connected with the principal claim.
The waiver of immunity from jurisdiction for the purposes of civil or administrative proceedings shall not be deemed to imply the waiver of immunity from the execution of judicial decision. In respect of such execution, a separate waiver of immunity in writing shall be necessary.