The government insists that its proposal to amend existing extradition laws is the best option to handle a Taiwan murder case involving a Hong Kong suspect, thereby ruling out the possibility of making changes to the bill based on suggestions from politicians and legal experts.
At a press conference on Tuesday afternoon, Secretary for Justice Teresa Cheng Yeuk-wah dismissed other options in resolving the issue, saying none of them is better than the government proposal.
The Security Bureau has tabled a bill in the Legislative Council to revise the Fugitive Offenders Ordinance and the Mutual Legal Assistance in Criminal Matters Ordinance to plug legal loopholes.
The proposed revision would enable a one-off, case-based approach to be applied to jurisdictions without extradition arrangements with Hong Kong, including the mainland and Taiwan.
The initiative to amend the ordinances came after a Hong Kong man, Chan Tong-kai, admitted to killing his girlfriend, also a Hongkonger, in Taiwan last year.
A Hong Kong court has convicted him of money laundering and sentenced him to a prison term of 29 months. He is expected to be freed as soon as this October.
Albert Chen Hung-yee, a member of the Basic Law Committee and a professor at the University of Hong Kong’s faculty of law, and pro-establishment lawmaker Michael Tien Puk-sun have suggested allowing local courts to try Hong Kong suspects for serious crimes committed abroad.
Other suggestions include revising the Criminal Jurisdiction Ordinance or the Offences against the Person Ordinance.
Cheng told media on Tuesday that these suggestions were impractical because Hong Kong, belonging to a common law jurisdiction, follows the territoriality principle, by which local courts will exercise jurisdiction only when all or some parts of a case take place in Hong Kong.
She also said if local courts have extra-territorial jurisdiction, some issues, such as collecting and giving evidence, will arise, the Hong Kong Economic Journal reported.
When considering whether a relevant legislation should be amended to include extra-territorial acts, one has to consider retrospectivity, the justice chief said.
“If you are creating an offense effectively stating that the court has jurisdiction to deal with a particular act which is actually committed outside of Hong Kong, in the criminal courts in Hong Kong, you will actually be creating a situation whereby the criminal law jurisdiction is now extended to an offense that did not exist at the time of the legislation,” Cheng said.
She said the legislation could not help deal with the Taiwan murder case because it had no retrospectivity, adding that criminal offenses or penalties have no retrospective effect under Article 12 of the Hong Kong Bill of Rights Ordinance.
Cheng also said the proposal of “trying Hongkongers in Hong Kong” could also involve the 46 types of crimes included in the proposed fugitive laws revision.
Adopting all these suggestions may bring a fundamental change to Hong Kong’s territoriality principle and criminal legal system, and as such, the suggestions cannot be adopted carelessly, she said.
Johannes Chan Man-mun, also a law professor at HKU, has urged the government to hand criminals over to countries that have signed the International Covenant on Civil and Political Rights.
Cheng, however, dismissed Chan’s proposal, saying that doing so is not consistent with the government’s long-term surrender arrangements since some countries, such as Singapore and Malaysia, have signed the arrangements with Hong Kong but not the covenant.
Asked how she would appraise the mainland’s judicial system, the justice chief declined to give her answer.
Asked if the government would be prepared to reject any extradition request from the mainland, Cheng reiterated that there will be a system in place to ensure that the rights of wanted people are protected, RTHK reported.
Meanwhile, Secretary for Security John Lee Ka-chiu told the press conference that he has been aware of some media reports saying that those who make political criticism through writing articles or books or in interviews may end up being extradited. Lee said such a claim is incorrect.
Lee called people who have a legal background and issue such warnings as irresponsible. He did not mention their names.
He stressed that one of the important principles in the revision of fugitive laws is double criminality. This means that if someone’s action in Hong Kong is not against local laws, that person will never be extradited.
Asked why the government could not first deal solely with the Taiwan murder, given the fierce resistance to the proposed amendments from many sectors of society, the government said current proposals were the best it could come up with.
Lee said the government can no longer bury its head in the sand and ignore the legal loopholes as it had done so for the past 22 years.
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