Extradition row: Don't try to 'kill two birds with one stone'

May 09, 2019 14:08
Secretary for Justice Teresa Cheng (center) and Secretary for Security John Lee (2nd left) defend the government's legislative proposal to amend the fugitives law during a press conference on Tuesday. Photo: HKEJ

On Tuesday, Secretary for Justice Teresa Cheng Yeuk-wah and Secretary for Security John Lee Ka-chiu held a press conference on the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019.

During the news conference, the justice chief dismissed all other alternative proposals recently put forward by legal experts and politicians as impractical, and insisted that the government’s proposed fugitives law change is the best option.

The alternative proposals include Civic Party legislator Alvin Yeung Ngok-kiu’s idea of introducing extra-territorial jurisdiction and pro-establishment lawmaker Michael Tien Puk-sun's suggestion of “trying Hongkongers in Hong Kong”.

Tien's proposal was supported by Professor Albert Chen Hung-yee, a member of the Basic Law Committee and professor at the Faculty of Law of the University of Hong Kong.

While Cheng believes the government option is the best on the table and other proposals were impractical, we feel compelled to point out that there is a need to clearly define two concepts.

The first is handling the suspected murder committed by Hong Kong citizen Chan Tong-kai in Taiwan, which is an urgent case, and second, plugging the legal loopholes in our city’s extradition laws, which, in our opinion, isn’t really that urgent.

As far as Chan's case is concerned, we believe nobody would argue against the need to bring him to justice as soon as possible.

But what is making things complicated is that the government is attempting to “kill two birds with one stone”: resolving Chan's case and plugging loopholes in our extradition laws simultaneously with a single legislative initiative.

As a result, the initially simple legal issue has suddenly become so tangled up because the government is trying to satisfy two wishes in one go.

With regard to the proposal of “trying Hongkongers locally”, Cheng argued that the proposal “will turn acts in other jurisdictions into crimes under the Hong Kong law, the related provisions can only be applicable to crimes committed after the [amendment] ordinance has come into force”.

As such, that suggestion cannot help deal with the murder case that took place in Taiwan last year.

It would, according to the justice minister, constitute a violation of the Hong Kong Bill of Rights Ordinance if retrospectivity was introduced into the legislation.

Practical problems including collecting evidence and tendering evidence in court will also arise, Cheng said.

Apparently, Cheng seems to be holding the purpose of “killing two birds with one stone” and has therefore overlooked the fundamental suggestions in Tien’s proposal.

According to Tien, the administration should adopt a “two-stage” approach in addressing the issue.

In stage one, the limitation in the existing relevant provisions in the Fugitive Offenders Ordinance that isn’t applicable to other parts of China should be removed, so as to resolve the Taiwan murder case in a one-off, case-based fashion.

Then in stage two, the administration can start working on establishing long-term surrender arrangements that include the introduction of “trying Hongkongers in Hong Kong” with other jurisdictions including the mainland.

In other words, what Tien has proposed is to “kill one bird with one stone”, i.e., handle Chan’s murder case first while leaving the other more controversial issues untouched for now, and that the absence of retrospectivity in the idea of “trying Hongkongers in Hong Kong” is basically irrelevant.

Tien later also reiterated that the Taiwan case can first be handled by amending the law and “trying Hongkongers locally” can then be dealt with law revision. Or the two legislative initiatives can be sent in two bills simultaneously to the Legislative Council for scrutiny.

In fact, it has remained our opinion right from the start that the government should get its priorities right over the issue, i.e., seeking viable legal grounds for extraditing Chan to Taiwan first to ensure that justice will be served before he is expected to be released from jail in October this year.

Then, as to amending our extradition laws in order to surrender fugitive offenders to other jurisdictions, including the mainland, the administration should launch an extensive consultation exercise over it before making any final decision.

The alternative option of “trying Hongkongers in Hong Kong” is certainly worth discussing.

And even if it has turned out to be infeasible after careful scrutiny, we believe there has got to be some other ways in which we can reach the biggest possible consensus in society on this issue through extensive public discussions.

The fact that both Cheng and Lee refused to budge an inch on their proposed legal amendments would inevitably create a negative impression among the public that the administration appears to be giving priority to plugging legal loopholes over addressing the murder case in Taiwan.

We believe that if the government is really sincere in trying to resolve the ongoing dispute, it must ditch its mentality of attempting to “kill two birds with one stone”, and acknowledge the fact that it is absolutely unrealistic to try to fulfill two wishes simultaneously through a single set of amendments to the Fugitive Offenders Ordinance.

This article appeared in the Hong Kong Economic Journal on May 8 

Translation by Alan Lee with additional reporting

[Chinese version 中文版]

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Hong Kong Economic Journal