Dispute Over The Amendment Of The Surrender Of Fugitive Offenders Ordinance

Dispute Over The Amendment Of The Surrender Of Fugitive Offenders Ordinance Presented By: LIN Feng, Professor Of Law, City University Of Hong Kong Date: 2020 Background - There is no agreement on surrender of fugitive offenders between Hong Kong and Taiwan. A Hong Kong girl was murdered by her boyfriend in Taiwan last year. Then the boyfriend escaped back to Hong Kong. He could not be surrendered (extradited) to Taiwan for trial. He is serving his term in prison in Hong Kong and is likely to be released by October 2019. That's why the Chief Executive Carrie Lam wanted to get the amendment to the Ordinance passed as soon as possible so that the suspect could be surrendered to Taiwan for trial. Proposal Of The HK Government - To amend the relevant local legislation to make possible surrender of a fugitive offender on a case-by-case basis. - Specifically speaking, the amendment will state that surrender on a case- by-case basis will be applicable between HK and those jurisdictions with which HK has not reached an agreement on long-term extradition/surrender of fugitives, and such extradition/surrender of fugitives will only be applicable to crimes within a sentence of more than 3 years (also limited to 37 specified crimes. - To lift the geographical restriction under the Mutual Legal Assistance in Criminal Matters Ordinance so that transfers of fugitives will not only be possible for Taiwan, but also for Mainland China and Macau, which are not covered in the existing laws. - Various mechanisms for the protection of human rights have been proposed. Arguments Against the Amendment - The special surrender only needs the certificate of the Chief Executive to start the extradition/surrender process and there is no need to go through any supplementary legislative process. - The proposed amendment will bypass the supervision of the Legislative Council and it will be possible for extradite HK resident or foreigners passing through HK to Mainland China. - Under the proposed amendment, the Legislative Council will no longer be able to monitor such case-by-case extradition - General public in HK and the international society have great reservation over the human rights protection record in Mainland China - Fundamental concerns with rendition of Hong Kong fugitives to Mainland China Arguments in Support - The amendments will fill in gaps in existing legislation so that HK will no longer be the paradise for fugitives - Similar legislation exists in England, Canada and some other jurisdictions - HK Government has stated clearly that no extradition will be allowed for political offenders and/or on religious reasons - Both the HK Government and the courts can ensure that the legislation will be properly implemented Main Developments - HK Bar Association issued two statements against the amendment; - Law Society's view is mixed; - Taiwan was against it; - 28 April demonstration: 23,000/130,000 participants; - Various foreign governments expressed their concerns; - Central Government expressed its support for the amendment; - 30 May 2019: Secretary for Security John Lee rolled out six new measures to limit the scope of extraditable crimes and raise the bar to those punishable by the sentence of three years to seven years or above. - 9 June demonstration: 1.03 million/240,000 participants; - 12 June: protestors blocked the Legislative Council; - 15 June: Chief Executive announced suspension of the amendment; - 16 June: 2 million/338,000 participants; - 9 July: the Chief Executive announced that the amendment bill was dead. - Demonstration has become routine practice in different districts in HK. Main Concerns Raised during the Negotiation between HK and Mainland China - How will the principle of double criminality be applied in an arrangement with the mainland? - How will the principle of non-extradition in death penalty cases be applied? - Non-extradition for political offences is an established general principle. How will "political offence" be defined in surrender arrangements between Hong Kong and the Mainland? - The right against double jeopardy is guaranteed by Article 11 of the Hong Kong Bill of Rights. Article 10 of the PRC Criminal Law provides that a person who was tried and convicted in a foreign court can be tried and sentenced again in Mainland courts for the same offence. How should the principle of double jeopardy, a fundamental principle under the common law, be implemented? - How would questions over concurrent jurisdiction be resolved? Core Issues - Lack of Confidence in Judicial System in Mainland China - Concern exists that the main objective of the HK Government is to make it possible to surrender fugitives to mainland China Problems of the HK Government before Calling off the Amendment - Lack of governance skills: unwilling to compromise: to include human rights protection in the amendment; - Consultation period too short: 2 months for an issue which has not be resolved for more than 20 years; - Lack of enough explanation: causeway bay book seller went to Taiwan, saying that he was afraid of the amendment; some financial analysts saying that they were afraid of the amendment because an Australian financial analyst was sentenced to jail in mainland when he visited mainland China for views he expressed in Australia. Problems After Calling Off The Amendment - Unwillingness to withdraw the bill; - 100% giving in to political pressure from the demonstration; - No long-term plan for consultation/discussion, etc. Conclusion - The essential problem is lack of mutual trust between HK people and Mainland China, and the HK Government should make an effort to establish more mutual trust. Instead it has worsened the mutual relationship; - Interim measure should be adopted and also give a promise to start negotiation of longterm agreement with mainland China - Mainland China has agreed (without detailed study) to most of the conditions which it has refused to agree this time. Had the HK Government done it properly, the case-bycase arrangement will work to the benefit of Hong Kong and also the future long-term agreement. - With Hindsight, mainland China can also do better by removing the concerns of HK people and contribute to the establishment of mutual trust