Extradition agreements: A bigger picture

April 03, 2019 13:02
Hong Kong’s extradition arrangements with mainland China are just one part of a much larger picture, writes Bernard Chan. Photo: Bloomberg

The Hong Kong government has attracted a mixture of criticism and praise following its decision to reduce the scope of its proposed amendments to the law on fugitive offenders.

Following strong opposition from sections of the business community – including international business organizations – the administration cut the number of applicable offences from 46 to 37. And the offences were tightened from those liable to one year in prison to three.

The nine offences taken out relate to commercial crimes. They cover areas like bankruptcy and insolvency, companies law applying to directors and other corporate officers, securities trading, copyright, imports and exports, taxes, and trade descriptions.

These tend to be called "white-collar crimes". The remaining offences are classic – including violent – crimes against life and property, including murder, rape, arson and so on.

The criticism is that removing the white-collar offences is inconsistent. If the revised extradition arrangements put commercial criminals at risk of injustice, surely other offenders should also be exempt?

The praise came (not surprisingly) from members of the business community who had raised the concerns in the first place. They felt that the government’s decision was pragmatic.

It might be helpful to clarify the basic aims of the proposed amendment. One specific aim is to enable action in the well-publicized case of a murder in Taiwan. More broadly, the intention is to address loopholes in our existing arrangements for cooperating with other jurisdictions in terms of legal assistance.

There are perhaps two key things to remember.

First, the proposed arrangements are not simply about the mainland and Taiwan. They would cover dozens of places with which we do not have long-term extradition arrangements (so instead we use individual “case based” arrangements).

Second, the proposal is essentially for a better interim system. In the long run, Hong Kong should be aiming to have long-term extradition arrangements with many more jurisdictions.

Officials drew on “case based” surrender arrangements used by other jurisdictions, including the UK and Canada, in drawing up the proposed amendment.

The safeguards are well-established. For example, in order for an offender to be transferred, he or she must be accused of an offence that exists under Hong Kong law as well as the other jurisdiction. Hong Kong will not transfer someone who could be prosecuted for reasons of political opinions, race, nationality or religion. Nor will Hong Kong transfer someone who could be subject to the death penalty.

And there must be a committal hearing in open court in Hong Kong to examine the evidence, and other legal safeguards.

Another point we should all remember is that this subject is not simply about sending accused offenders to other jurisdictions. There have been cases where wanted suspects have run away from Hong Kong. These arrangements are reciprocal, so we will be able to get offenders back from other places to face justice here.

The criticism that the government is being inconsistent by taking out the "white-collar" offences is understandable. Officials would have preferred to keep all those offences within the proposal.

But it is a question of whether the amendment can get through the legislative council. As it is, some members of the business community are still not happy with the more restrictive package.

As I say, the proposed amendment is basically about short-term improvements. Looking further ahead, the aim is to have full formal long-term extradition arrangements with far more places.

We currently have such agreements with around 20 jurisdictions – these include common law countries Australia, Canada, New Zealand, the UK and the US, and continental law countries like Germany, Finland, the Netherlands and France. Surrenders between common law and continental law systems take place with no problem.

The specific issue of extradition arrangements with the mainland gets a lot of attention, but it is just one part of a much larger picture. However, it is worth noting that more and more places are signing extradition treaties with China. Currently, there are 55, including Spain Italy, France and Portugal.

Ultimately, more comprehensive extradition formalities should help all of us. Such arrangements should help all parties achieve more peaceful and law-abiding societies. And they can bring about justice for victims and their families whether they are in Hong Kong or overseas.

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Executive Council member and former legislator; Hong Kong delegate to the National People’s Congress