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Thursday, May 16, 2019, 09:51
Amending extradition law is the only option worthy of attention
By Fong Tseng-tsz
Thursday, May 16, 2019, 09:51 By Fong Tseng-tsz

Hong Kong residents rally outside the Legislative Council in support of amending the city's extradition law. (ROY LIU / CHINA DAILY)

Secretary for Justice Teresa Cheng Yeuk-wah and Secretary for Security John Li Ka-chiu held a press conference last week to explain details of the proposed amendments to the Fugitive Offenders Ordinance. The revision of the extradition law aims to plug legal loopholes so justice can always be served. The amendment should be carried out in accordance with the traditions and principles of Hong Kong’s legal system; it has to address the urgent need of bringing fugitives to justice.The “extraterritorial jurisdiction” and “trying Hong Kong residents in Hong Kong” suggestions floated by some scholars are not designed to fix the existing loopholes. In fact, the lack of feasibility of these two alternatives means they are not able to handle the Taiwan murder case, nor can they plug the legal loopholes.

Hong Kong has never practiced “extraterritorial jurisdiction” (the jurisdiction of courts extends beyond local boundary). Instead, it has stuck to the “territorial principle” when handling criminal cases (courts can only exercise jurisdiction if relevant offences take place within the territory). At present, introducing “extraterritorial jurisdiction” involves a fundamental change to Hong Kong’s judicial system — particularly its criminal justice system. This is a huge project which is impossible to complete in a short period of time. The SAR government’s proposed amendments to the extradition law aim to fill a legal vacuum created by the absence of rendition agreements between Hong Kong and the Chinese mainland, Macao and Taiwan. They are also intended to resolve issues involving rendition of a murder suspect to Taiwan. The solution to these issues lies in revision of the extradition law, rather than hastily and fundamentally changing Hong Kong’s criminal justice system and its long-standing “territorial principle”. 

The “extraterritorial jurisdiction” and “trying Hong Kong residents in Hong Kong” suggestions floated by some scholars are not designed to fix the existing loopholes. In fact, the lack of feasibility of these two alternatives means they are not able to handle the Taiwan murder case, nor can they plug the legal loopholes

As noted by Cheng, the idea of “trying Hong Kong residents in Hong Kong” is also not feasible, due to three major issues: Firstly, it lacks retroactivity, which means it cannot be applied to the murder case which occurred in Taiwan last year; secondly, the proposal entails more massive amendments to the existing laws — all 46 criminal offenses covered by the Fugitive Offenders Ordinance need to be redefined to suit the situation of “trying Hong Kong residents in Hong Kong” — which will essentially be a fundamental overhaul of the HKSAR’s judicial system; thirdly, the proposal will engender practical problems such as how to collect evidence. All these explain that “extraterritorial jurisdiction” and “trying Hong Kong residents in Hong Kong” are not feasible options. 

More importantly, “trying Hong Kong residents in Hong Kong” is incompatible with “one country, two systems”. The former makes reference to the extradition treaty signed by China and France in 2007, which provides that “extradition shall not be granted if the person sought is a national of the requested party. Nationality shall be determined at the time of the commission of the offense for which extradition is requested.” Such an arrangement is, however, primarily an agreement between two countries; it is,therefore, not compatible with the essence of “one country, two systems”. Hence “trying Hong Kong residents in Hong Kong” is incongruous with the SAR’s political ethics and impractical under its legal system.

Comments from the public about the proposed revision of the extradition law were more impressive than those of the opposition camp — who simply oppose things for the sake of opposing. Nonetheless, any sensible and constructive suggestions should satisfy three prerequisites: The first one is the ability to solve the current issues and plug legal loopholes over extradition; the second one is the compliance with the legal traditions and principles of Hong Kong, with an emphasis on simply amending the fugitive law, rather than creating another set of conventions which will only lead to more controversy and hinder the development of a consensus and fixing of legal loopholes; the third precondition is ending the bias against the mainland’s rule of law and judicial system.

The fact that many countries have signed extradition agreements with the Chinese mainland indicates that differences in judicial systems will not hinder the extradition of criminals. Besides, the proposed amendments have included a battery of safeguard measures to protect the rights of the suspects. Some individuals have relentlessly stigmatized the mainland’s rule of law and judicial system. Suggestions from people who are prejudiced against the mainland are impractical and not worth any attention.

In view of the urgency of revising the fugitive law, we should pragmatically direct our attention to discussion of the amendment itself. The opposition camp is keen to divert our attention and create more controversy around the amendments to strike down the government’s proposal. Does the pro-establishment camp necessarily have to entertain their misdirected actions?

The author is a senior current affairs commentator. This is an excerpt translation of his Chinese article published earlier on Ta Kung Pao.


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