Date
22 September 2019
Protesters dress as Chinese police during a demonstration in Hong Kong on April 28 against the government’s proposed changes to the extradition law. Photo: Reuters
Protesters dress as Chinese police during a demonstration in Hong Kong on April 28 against the government’s proposed changes to the extradition law. Photo: Reuters

Pearls before swine

“Do not give what is holy to the dogs; nor cast your pearls before swine, lest they trample them under their feet, and turn and tear you in pieces.” (Matthew 7:6)

Arguably the most distinguished alumna of a leading Roman Catholic school in Hong Kong since 1869 and a practicing Catholic, Chief Executive Carrie Lam ought to be familiar with this Sermon on the Mount.

It remains to be seen whether she would initiate the ripping and rending of the countless opponents to her administrationʼs controversial extradition bill which, when ‒ not if ‒ passed, would enable the transfer of fugitives from the city to jurisdictions such as Mainland China.

What has already been torn to pieces is, to give its official designation, the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019.

The governmentʼs unseemly haste to push through the bill in the Legislative Council has fueled an unprecedented level of public discussion, opposition and resistance, from virtually the entire social spectrum of the Special Administrative Region (SAR) and beyond.

Lawyers, scholars, pro-establishment figures, notably businessmen, foreign dignitaries and, for the first time in living memory, even some senior judges (albeit anonymously to an international news outlet), have offered genuine, thoughtful and measured counter arguments and opinions, and options to alleviate the public’s fear.

A growing number of petitions, in their hundreds with thousands of signatories from within and outside Hong Kong, has appeared online, many from the alumni, teachers, pupils and students of schools and universities in the territory, urging the Chief Executive to pause and think.

One such plea emanates from none other than Carrie Lamʼs own alma mater, St Francis Canossian College, hoping that she would abide by their motto “Veritas in Charitate” (Live by the Truth in Love) and join her fellow Hongkongers to protect human rights, freedom and the rule of law.

What, then, accounts for the stultifying deafness of the leading officials to the pearls of wisdom so widely scattered in front of them?

With all the shilly-shallying going on, surely it is time to withdraw the bill and conduct a genuine public consultation in lieu of the pretense of 20 days.

Under the Basic Law of Hong Kong, the passage of legislation within the SAR is the preserve of the Hong Kong legislature. Putting it bluntly, Hong Kong laws are exclusively the preserve of Hong Kong.

There is provision for the Basic Law to be “interpreted” by the Standing Committee of the National People’s Congress but the drafting and passage of laws is reserved to Hong Kong.

Regrettably, a great deal of hot air has been generated by people who, by virtue of their paper qualifications, one would have expected to know better. Misinformation needs to be corrected.

Extradition begins with a request from the government of one jurisdiction to that of another. Written evidence of a prima facie offence within the requesting jurisdiction is all that is required.

In plain English, prima facie means “accepted as correct until proved otherwise”. Let us be clear, this is not proof of an offence having been committed, only paper evidence supporting an allegation.

The subject of the request then has to appear before a magistrate in the requested jurisdiction. The evidence is not tested as to its credibility, it rests simply in the paper allegation.

If there is such a prime facie case, the magistrate makes an order for the subject to be extradited. This order then goes to the government of the requested jurisdiction who must make the final decision whether or not to comply with the request.

The Secretary for Justice was the mistress of misinformation when she claimed, “It is absolutely not the case that a single person or organization can complete the whole process.” The process is completed by the Chief Executive.

The definitive decision does not rest with the judiciary but the Chief Executive. It is ultimately more a political than a legal act.

The extent to which the courts of law play any role in the process is constrained by the requirement being no more than establishing a prima facie case.

Just how scanty the proof needs to be was illustrated by one case in which I represented someone where 90 percent of the proof was hearsay. Nonetheless, the magistrate made the order to extradite.

Anyone who claims that opponents to the bill do not trust the courts of Hong Kong is twisting the facts. Extradition is predominantly a political act cloaked in a spuriously thin legal legitimacy by requiring the presentation of an untested prima facie case.

The fact that the Chief Executiveʼs nose is growing longer than Pinocchioʼs is equally regrettable. Her administration, notably herself and her Secretary for Justice, insisted that the bill was a means of assisting the family of the girl killed in Taiwan to get the suspect extradited there for trial. But as we all know, Taiwan refuses to participate in such an arrangement. That pretext has now been quietly shelved.

Hong Kong is a common law jurisdiction in which anyone accused of a crime is presumed innocent until proven guilty. Due legal process has to be carried out in the full view of the public. People do not just “disappear” nor are they held incommunicado only emerging months or years later to confess.

Hong Kong lawyers instructed to defend someone accused of a crime are not liable to be arrested and prosecuted for the very fact of representing someone alleged to have committed an offence.

The Hong Kong Judiciary does not owe allegiance to the Chinese Communist Party but to the ethics and rules of the common law as practiced in liberal democratic jurisdictions, which we recognize as the rule of law.

It should not be forgotten that these laws evolved for the protection of the individual from the autocratic practices of mediaeval monarchs.

With all this in mind, one asks, not merely rhetorically, “Why would the Hong Kong government rush to condemn anyone to trial somewhere that does not recognize any of these standards?”

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RC

Queen's Counsel