On May 16, 2019, US Secretary of State Mike Pompeo announced his opposition to the Hong Kong government’s comprehensive proposals to amend its law to enable the surrender of fugitive offenders to the places from which they had fled. As Hong Kong only has surrender of fugitive offender agreements with 20 countries, the proposals would have allowed it, subject to judicial oversight, to surrender criminal suspects to the 177 jurisdictions with which it has no agreements.
Although the proposals would have prevented Hong Kong from becoming a safe haven for the world’s criminals, and envisaged a mechanism by which, in a suitable case, they could be brought to justice, Pompeo declared that they threatened the city’s “rule of law”. He red-carpeted anyone from Hong Kong who was willing to oppose the amendments and badmouth Hong Kong, and whitewashed the excesses of the protest movement which, by wreaking havoc in Hong Kong, forced the government to withdraw an initiative designed to make the world a safer place. The big winners, of course, have been those escaping justice by coming to Hong Kong, including, apart from international fugitives, the youth who allegedly murdered his girlfriend in Taipei, the two businessmen who were convicted of corruption-related money laundering offenses in Macao, and the 300-plus fugitives from other parts of China, accused of various crimes, including bribery, extortion and fraud.
As a result of the reckless opposition from Pompeo and his puppets around the world, and the urban warfare unleashed by local anti-China forces, Hong Kong cannot now discharge its international obligations to help other jurisdictions to hold their criminals to account. As always, Pompeo was driven by his hatred of China, and this blinded him to the wider interests of criminal justice. Although the Chinese mainland was only one of the 177 jurisdictions which stood to benefit from the proposed amendments, Pompeo blithely ignored the wider picture, and, together with his Civic Party proxies, falsely gave the world the impression that the changes were solely designed to enable people in Hong Kong to be sent to Beijing for trial. This strategy, of course, was principally designed to demonize China, but it was also intended, in defiance of international norms, to thwart Hong Kong’s efforts to be a responsible criminal justice partner to the rest of the world, thereby indirectly harming China’s own anti-crime credentials.
In consequence of what Pompeo and his puppets have now done, someone who, for example, traffics in dangerous drugs, commits rape, perverts the course of public justice, robs a bank, or murders a child, can now jump on a plane in Hong Kong and fly to Canberra, London, Ottawa, Washington or Wellington, and claim safe haven there, and vice versa
After all, the UN Model Treaty on Extradition urges all states “to strengthen further international cooperation in criminal justice”. Since 2006, the UN Convention against Transnational Organized Crime, which promotes efforts to combat global criminality, has applied to Hong Kong, and it requires states, subject to domestic law, to endeavor “to expedite extradition procedures and to simplify evidentiary requirements relating thereto in respect of any offence to which this article applies” (Article 16). The UN Convention against Corruption also applies to Hong Kong, and this seeks to strengthen measures against corruption, and calls for effective extradition mechanisms (Article 44). In consequence of recent events, however, Hong Kong cannot discharge any of these responsibilities, despite its government’s brave attempt to do so in 2019.
In recent years, moreover, the US itself has extradited several criminal suspects back to China, without problem, including the Bank of China embezzler Yu Zhendong, and Yang Jinjun, wanted on corruption charges. Its neighbor, Canada, also extradited the smuggler Lai Changxing for trial in Xiamen. France, Italy and Spain have likewise extradited criminal suspects, after China provided guarantees as to their treatment, which were all honored. Pompeo, however, was determined to prevent Hong Kong having a similar mechanism, even though it is a part of China.
Not content with his dirty work in helping to block the return of fugitive offenders to 177 jurisdictions, Pompeo has now damaged Hong Kong’s surrender arrangements yet further. By using the National Security Law as an excuse, he has cajoled America’s Five Eyes alliance partners into following its lead by suspending their own SFO agreements with Hong Kong. In July, Australia, Canada, New Zealand and the United Kingdom tamely fell into line. In seeking, on July 20, to justify their actions, UK Foreign Secretary Dominic Raab even referenced the provision in the National Security Law which allows the trial of what he called “certain cases in mainland China”. His remarks, however, served only to illustrate that he had wholly misunderstood the provision, and strongly suggested he had not even read it.
What Article 55 does is to enable national security offenses which arise in Hong Kong to be tried nationally in very limited circumstances. The situations where this might arise include those where Hong Kong cannot handle the case, as where, for example, public order has broken down, or where there is a major involvement of foreign forces, or where national security is imminently threatened, as where war has broken out or there is a state of emergency. Article 55, therefore, has nothing whatsoever to do with the broad mass of criminal offenses which are dealt with under Hong Kong’s SFO agreements, such as corruption, fraud, kidnapping, perjury and wounding.
However, in consequence of what Pompeo and his puppets have now done, someone who, for example, traffics in dangerous drugs, commits rape, perverts the course of public justice, robs a bank, or murders a child, can now jump on a plane in Hong Kong and fly to Canberra, London, Ottawa, Washington or Wellington, and claim safe haven there, and vice versa. There is now no legal mechanism in place to enable criminals of this sort to be returned to the place from whence they came to face their just deserts. This is a betrayal not only of the victims of crime, but also of international criminal justice. Such criminals, of course, are manifestly outside the reach of Article 55, as even the most cursory perusal reveals. The SFO agreement suspensions, therefore, have nothing whatsoever to do with the National Security Law, and everything to do with the Sinophobia that Pompeo has made his hallmark, and which he is now imposing on others for geopolitical reasons.
At a time when countries should be working more closely together to combat all types of crime, and holding criminals to account, America’s partners, instead of simply doing Pompeo’s bidding, should be exercising their own best judgment. Assuming, for whatever reason, that some of them do actually have some concerns about the National Security Law, they could allay them by simply reading their respective SFO agreements with Hong Kong. Whereas, for example, Article 6(1) of the Hong Kong-US SFO agreement stipulates that there will be no surrender by the requested party if “the offence of which that person is accused or was convicted is an offence of a political character”, this protection is mirrored in the Hong Kong-Australia SFO agreement (Article 6(1)(a)), the Hong Kong-Canada SFO agreement (Article 5(1)(a)), the Hong Kong-New Zealand SFO agreement (Article 6(1)(a)), and the Hong Kong-UK SFO agreement (Article 5(1)(a)). If, moreover, there are any grounds for believing that a suspect will be prosecuted or punished because of his or her political opinions, all five SFO agreements make clear that a surrender request will not be granted. In other words, if they take the view that there are political overtones to a case, a party is already entitled to decline a surrender request, but, quite clearly, the bulk of criminal cases do not fall into this category, and there can, therefore, be no legitimate basis for refusing surrender in those instances.
On July 21, when Pompeo visited London, Raab, not surprisingly, was forced onto the defensive, and had to deny that he was being “strong-armed” by his guest. This, however, did not prevent Pompeo, at their joint press conference, from patronizingly telling Raab, who was facing questions about Huawei, “I’ll take your questions”. Pompeo, of course, was delighted by the UK’s decision, following US pressure, to reverse its earlier commitment to giving Huawei a role in its 5G network, just as he was elated over the suspension of its SFO agreement with Hong Kong, and he duly patted Raab on the head, telling him “well done”. It was not an edifying spectacle, or one which augured well for Britain’s independent role in world affairs post-Brexit.
Over many years, the British people strove to end the UK’s status as a vassal state of the European Union, but they never once imagined that the alternative would be a future as Pompeo’s poodle. On July 14, British Prime Minister Boris Johnson, who, according to insiders, recognizes this, called himself a “Sinophile”, and his vision is said to be of a free-trading “Global Britain”. Having been forced into a humiliating capitulation over Huawei, he will hopefully have learned his lesson, and be prepared to stand up to the US in future. If he does that, he will not only have reasserted the UK’s leadership credentials, but will also have provided some real statesmanship which might even inspire his other Five Eyes partners to do what is right, which includes ensuring that criminal fugitives cannot evade justice.
The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.
HONG KONG NEWS