Behind Hongkongers’ Concern about the Fugitive Offenders Ordinance – Q&A

PTU News Reporter

The HKSAR government proposed amending the Fugitive Offenders Ordinance and the Mutual Legal Assistance in Criminal Matters Ordinance in February on the grounds of settling HongKonger CHAN Tong-kai’s murder in Taiwan. The amendment would allow reciprocal transfer of fugitives from Hong Kong to mainland China, Taiwan, and Macau on a case-by-case basis with the approval of the Chief Executive and the permission of the court. At the same time, it will eliminate Legislative Council’s gatekeeping function.

The proposal has incited criticism among the public, mainly due to the concern about the possibility of the Chinese government’s transferring fugitives from Hong Kong to mainland China for trial. More than 130,000 citizens took it to the streets to demand withdrawal of the bill. The government refused to listen to the public and continued to urge the Legislative Council (LegCo) to discuss and pass the amendment. To speed up the review process, pro-establishment legislators attempted to replace JAMES TO Kun-sun the host at the expense of violating Rules of Procedure of the Legislative Council, which resulted in two committees and chaos. This issue of the PTU News attempts to clarify controversies and problems around the bill.

Q1

The government stated the aim of amending the Ordinance is to settle the Taiwan murder case by transferring the suspect to Taiwan for trial as well as to fill the loophole in the long run. Why do democrats want to stop the bill from passing?

As the Hong Kong Bar Association points out, the existing Fugitive Offenders Ordinance’s exclusion of transferring fugitives to other parts in China is the LegCo’s informed decision based on its pre-handover concern about the fundamental differences between the judiciary systems of Hong Kong and that of China as well as mainland China’s history in protecting human rights. The Ordinance was not amended during the Provisional Legislative Council’s term and has served as a significant protection measure for Hong Kong people, preventing them from transfer to and trials in mainland China. It is in no way a loophole. Should the amendment bill be passed, Hong Kong people would lose this protection measure and risk being transferred to mainland China and trialed in unfair circumstances, which tremendously affects the basic rights of Hong Kong citizens.

Q2

If the government does not amend the Ordinance, the suspect of the Taiwan murder case will not be brought to justice. Isn’t that injustice if the suspect is released from trial?

It is of course of utmost importance that the murderer is brought to justice. However, the controversial bill does not serve this purpose. The Fugitive Offenders Ordinance will possibly transfer Taiwanese in Hong Kong or those who travel to mainland China via Hong Kong. Mainland Affairs Council in Taiwan has clearly stated that, as long as this threat posed to its citizens is not eliminated, they will not agree to the transfer of CHAN Tong-kai. In other words, even if the bill is passed, the Hong Kong government is unlikely to transfer Chan to Taiwan for trial before his due release.

At the same time, the Hong Kong Bar Association, democrat legislators, and law scholars have made numerous proposals in settling the Taiwan murder case. Among these proposals are amending Criminal Jurisdiction Ordinance, allowing the Hong Kong court to settle overseas cases where both suspects and victims are Hong Kong citizens, granting Hong Kong courts extraterritorial jurisdiction, and limiting the government’s proposal to only Taiwan, and adding sunset clauses, all of which were rejected by the government.

Q3

The government’s proposal suggests eliminating the Legislative Council’s existing power to review bills on the grounds that suspects might flee during the process. Is that not reasonable?

The Hong Kong Bar Association stated that existing Rules of Procedure of the LegCo is sufficient in ensuring relevant documents will not be disclosed. For example, Article 88 of the Rules of Procedure states that the President of the LegCo may at any time order members of the press and of the public to withdraw. In addition, the Rules of Procedure also allow the LegCo to set a period of time in which the public is denied access to relevant documents and records. If the government is still concerned about suspects fleeing, the authority enjoys the right to issue a provisional warrant of arrest during the LegCo’s review. Therefore, it is unnecessary to remove the LegCo as a gatekeeper.

Q4

Democrats have been claiming the government’s proposal lacks a gatekeeper and that eliminating the LegCo’s right to review, it only requires the Chief Executive’s approval. However, the government’s proposal includes the Hong Kong court as a gatekeeper. Should we not trust the court?

In fact, the court can only consider whether the prima facie evidence provided by the requesting party is valid based on provided documents. The court is a gatekeeper only in reviewing the requesting party’s documents, checking the crimes committed, evidence, if the documents are officially signed, and whether the Chief Executive has signed the certificate. Its power is extremely limited. As long as the requesting party provides adequate and valid documents, the court must approve the extradition request.

Q5

The government’s proposal limits the extradition scope to 37 items of offences and imprisonment of over three years, which do not include political offences that concern Hong Kong citizens. If Hong Kong citizens do not violate the law, why should they be worried about the amendment?

Human rights in mainland China has caused great concern in recent years. Some political prisoners are arrested for offences irrelevant to politics. For example, co-owner of Causeway Bay Bookstore Gui Minhai was arrested for driving under the influence of alcohol and absconding; acclaimed artist Ai Weiwei was arrested for tax invasion and was exiled to Germany later. As mainland China lacks a fair and transparent trial system and based on the history of arresting dissidents for different offences, Hong Kong citizens are right to worry about their threatened freedom should the bill be passed.

Q6

Secretary for Security claimed that China has signed extradition treaties with more than thirty countries, including democratic European countries such as France and Italy. In this case, why cannot the same be arranged between Hong Kong and mainland China?

France and Italy have signed extradition treaties with China, but the contents are extremely rigourous and cannot be compared with the Hong Kong government’s proposal. The Sino-French Extradition Treaty states that if the person claims nationality of the country he/she is to be extradited to,  the request should be turned down. The only valid nationality is the suspect’s nationality in the time the offence is committed. In other words, a French citizen who commits offence in China and returns to France afterwards cannot be requested by China to extradite because the suspect is a French citizen in the time of the offence. According to the treaty, China can only transfer criminal evidence to France, after which France may try the suspect according to their own law and begin criminal procedures for their nationals’ behavior abroad if necessary. The Sino-Italian Extradition Treaty has an even simpler mechanism. It states that both parties may refuse extraditing their nationals without providing any reasons, but the request party may nonetheless provide evidence and documents to begin criminal procedures according to national laws. Therefore, neither treaty will cause transferring nationals to another jurisdiction for trial, setting them apart from the Hong Kong government’s current bill, where Hong Kong citizens will be extradited to mainland China for trial.