Summary: Having refused US extradition request about Macau hacker Iat Hong, the Hong Kong government has, without public consultation, proposed a case-by-case system for fugitive transfer to China, Taiwan and Macau, which, localists and pan-democrats fear, will be used to hand over HK political dissidents in the name of commercial crimes to China. This move is in response to the case of Chan Tong-kai, a Hongkonger who allegedly killed his girl-friend during a trip to Taiwan last February. Chan was arrested in HK but it has been impossible to charge him in HK or extradite him to Taiwan, as HK has no extradition agreement with Taiwan. Secretary for Security John Lee seized upon this opportunity to include China in the proposed system, ostensibly to solve the extradition loophole. (According to the Sino-British Joint Declaration and HK Basic Law, HK enjoys a judiciary system independent from China.) Anyway, the extradition of any suspect like Chan Tong-kai to Taiwan will violate the reciprocity principle of extradition (Taiwan forbids extradition of their own citizens) and double death-penalty rule (HK has no death penalty whilst Taiwan has). HK law scholar Wong On-yin (2019) thinks that this seemingly complex legal issue can simply be solved by the Legislative Council amending the fugitive ordinance and authorizing the HK court to try Hongkongers who have committed an offense in another jurisdiction. The amendment of the Fugitive Offenders Ordinance should also severely impact Hongkongers implicated in commercial crimes in China and Macau. If Chan Tong-kai can be extradited to Taiwan, why shouldn’t HK business tycoon Joseph Lau Luen-hung, already given a 5-year prison sentence by the Macau Judiciary, be extradited to Macau, Wong (2019) questions?
The Security Bureau has proposed a case-by-case system on extradition of fugitives, but localists and pan-democrats are worried the proposal – which applies to mainland China, Taiwan and Macau – is a trick to be used by Communist China and the HK authorities to transfer political dissidents in the name of commercial crimes from HK to China.
Causeway Bay Bookstore Bosses Kidnapped to China
In 2015, bosses of the Causeway Bay Bookstore, which published political books considered taboo by Beijing, were kidnapped from HK and other countries to China. According to the Sino-British Joint Declaration and the HK Basic Law, HK has a common-law judiciary system independent from Communist China.
The government’s move was in response to the case of Poon Hiu-wing, a 20-year-old Hong Kong woman who was killed during a trip to Taiwan last February. Hong Kong authorities arrested Poon’s boyfriend Chan Tong-kai, but were unable to charge him with murder in local courts.
Carrie Lam Refused to Hand over Macau Hacker to USA
According to The US State Department’s latest “Hong Kong Policy Act Report,” released in 2018, the HKSAR Government handed over a US-wanted hacker-fugitive, Iat Hong, to Beijing instead of USA in 2017 at the behest of Beijing, though there is an extradition treaty between USA and HK while there is no such agreement between HK and China. Apparently, in such cases, the HK authorities comply with Beijing’s political orders rather than HK Law or International Law.
Impracticality of Extradition to Taiwan
The extradition of Chan Tong-kai to Taiwan goes against at least one of the legal bases of extradition — reciprocity — and one of the common bars to extradition — double death-penalty rule.
Bases of Extradition:
1. Extraditable offences
2. Double-Criminality Rule: The act of the suspect must be deemed criminal in both jurisdictions.
(If a Taiwanese man murders his girlfriend while they are touring HK, will Taiwan extradite the man to HK for trial? The answer is no. For The Republic of China (Taiwan) explicitly forbids this, and they regard Hong Kong as part of a communist country different from theirs.)
4. Specialty Rule
Common Bars to Extradition:
— Some countries, such as Austria, Brazil, the Czech Republic, France, Germany, Japan, Norway, the People’s Republic of China, the Republic of China (Taiwan), Russia, Saudi Arabia, Switzerland and Syria forbid extradition of their own citizens.
— Death penalty: Many jurisdictions, such as Australia, Canada, Hong Kong, Macao, New Zealand, South Africa, and most European nations except Belarus, will not allow extradition if the death penalty may be imposed on the suspect unless they are assured that the death sentence will not be passed or carried out. (As Hong Kong has abolished death penalty, while Taiwan still has death penalty, any suspect who has committed an offense punishable with death should not be transferred from HK to Taiwan or China.)
— Political offences: Many countries refuse to extradite suspects of political crimes.
—Ne bis in idem
A Simple Way to Solve the Extradition Issue
According to Wong On-yin, a HK law scholar, this seemingly complex legal issue can simply be solved by the Legislative Council amending the Fugitive Offenders Ordinance and authorizing the Hong Kong court to try Hongkongers who have committed an offense in another jurisdiction. When the court proceedings involve overseas law, experts may be called to render help. Conflict of Laws is rather experienced in this domain.
HK Businessmen should also be Affected
The amendment of the fugitive ordinance should also severely impact HK businessmen involved in commercial crimes in China and Macau. If Chan Tong-kai can be extradited to Taiwan, why should HK business tycoon Lau Luen-hung, already convicted and given a 5-year prison sentence by the Macau Judiciary, not be extradited to Macau, Wong On-yin (2019) questions? How can Carrie Lam, the HK Chief Executive, explain away the double standard.
Text: Chapman Chen, Local Press