Should Hong Kong amend its extradition law?

February 18, 2019 12:26
Among the arguments being trotted out by opponents of a Hong Kong government plan to amend its extradition law is that Beijing will misuse the arrangement to victimize political dissidents. Photo: Bloomberg

The parents of Poon Hiu-wing, who had been a student at the Hong Kong Institute of Vocational Education, want the boyfriend they believe killed their daughter in Taiwan to stand trial there.

In other cases, the families of three people killed in Hong Kong want the suspects sent here from the mainland to be tried. Currently, all the four accused are living freely and do not fear arrest.

These four families have a strong case for natural justice. That is why the Security Bureau last week proposed amending the Mutual Legal Assistance in Criminal Matters Ordinance and the Fugitive Offenders Ordinance (FOO) to allow extraditions to Taiwan, Macau and mainland China.

As of now, Hong Kong has agreements on mutual legal assistance in criminal matters with 32 jurisdictions and on the surrender of fugitive offenders with 20 jurisdictions.

In explaining the amendment, Secretary for Security John Lee Ka-chiu said he was seeking justice for the four families. “I could have turned a blind eye to this on the Taiwan case. But we knew our conscience would not allow us to do that.”

Under the two ordinances, to be applicable for extradition, the crime must constitute an offence in both jurisdictions. The handing over of criminals is limited to 46 crimes in the FOO, including murder, assaults, sex offences and tax evasion.

"Requests in relation to offence of a political character shall be refused. Requests involving persons being prejudiced or prosecuted/punished on account of his race, religion, nationality or political opinions shall be refused. For an offence punishable with death, the requesting party shall assure that such punishment will not be carried out. Otherwise the request shall be refused,” the text says.

“Permitting a major criminal to stay in Hong Kong not only marks a violation of justice but also poses risk to public safety here,” the Security Bureau said.

Under the proposal, the chief executive will issue a certificate to request an arrest warrant. The fugitive is allowed to oppose the order in a Hong Kong court. Suspects would be transferred on a case-by-case basis.

Opponents of the amendment have two main objections.

One is that, whatever the offence, the legal system in the mainland is flawed, subject to government interference and not comparable to that of Hong Kong or the 20 jurisdictions with which it has an agreement.

A report by the World Justice Project in 2017/18 ranked China’s justice system 75th out of 113 countries, while Hong Kong was 16th. In respect of fundamental rights, it ranked China 108th, below Zimbabwe, Ethiopia and Iran.

Dennis Kwok, a lawmaker from the Civic Party, said: "Are we really confident handing over an accused person to be tried on the mainland? The law there stipulates that cases have to be heard within six months, but many defendants have been held incommunicado for three, five or seven years.” In some cases, defendants cannot choose their own lawyer and have no access to their family members.

The second objection is that Beijing might use the agreement to extradite Hong Kong people it does not like – like those who campaign for better labor rights, help religious believers or sell unauthorized books in the mainland. These are crimes there but not in Hong Kong and should fall outside the scope of the agreement.

What Beijing could do is charge people with crimes that are recognized in both places, such as tax evasion or sex offences. This would make them vulnerable to extradition.

Bookseller Lam Wing-kee, held in the mainland for eight months in 2015 and 2016, said Beijing obviously wants to go after Hong Kong dissidents. “If this amendment really passes, I am going to leave. Even without Article 23, this law will force me to go and I will have no choice.”

Barrister Margaret Ng said that, in cases related to national security, people in Hong Kong could fall foul of Chinese law without even stepping foot in the mainland.

“If Xi Jinping asks Carrie Lam to extradite Lam Wing-kee, does she have the ability to not do it?” said Ng, who had been a member of the LegCo from 1995 to 2012.

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A Hong Kong-based writer, teacher and speaker.