Protests on 28 July 2019. Protesters in all black don face masks and umbrellas in order to protect themselves against tear gas and their identities from facial recognition technology. © Emily Austin-Howell 28 July 2019

Background

In February 2018, pregnant Poon Hiu-wing, 20, left Hong Kong with her boyfriend, Chan Tong-kai, 19, for a Valentine’s Day trip to Taiwan. She never returned. What began as a local news story, with the sensational circumstances of her murder by Mr Chan circulating in tabloids and the local press, manifested into a proposed extradition bill that would provoke Hong Kong’s greatest crisis in decades, now entering the 12th week of protest.

It was nearly a year after Mr Chan’s arrest that Chief Executive of Hong Kong Carrie Lam cited the case to propose legislation that would allow local authorities to detain and extradite people who are wanted in Taiwan and other territories that Hong Kong does not have extradition agreements with – including mainland China. From inception, critics feared that the bill would place Hong Kongers and visitors under mainland Chinese jurisdiction, undermining the autonomy of the region under the ‘one country, two systems’ model and citizens’ rights. Distrust of the bill’s origins surround Lam, both as an un-elected career servant who was installed by Beijing in 2017, and her political opportunism in the repeated invocation of the murder case, given that many believed Hong Kong could find a way to ensure Mr Chan faces trial without opening the door to extraditions to the mainland. For years China and Taiwan have sent criminal suspects to one another, for example, even though they do not formally recognise each other. Taiwanese officials actually stated as early as May that they would not seek Mr Chan’s extradition under the proposed legislation. It was only following a peaceful demonstration with over a million people on June 9 and clashes on June 12 in which riot police deployed the use of tear gas and rubber bullets on protesters that Lam finally acknowledged that Taiwan’s position meant there was no rush to pass the new law. She ‘suspended’ the extradition bill, resisting demands to withdraw it completely from the legislative agenda or step down. 

Fears that the legislation may serve as a ‘Trojan horse’ through which Beijing could target political dissidents in Hong Kong are not unfounded. The high profile 2015 case concerning the disappearance of five staff members of Causeway Bay Books, a Hong Kong bookseller specialising in works (critical) of mainland politics and gossip, brought into focus issues surrounding the city’s freedoms and autonomy. A politically tone-deaf columnist Mary Ma provided reassurance in saying that there was no need to worry about China abusing the proposed procedure because if it wished to try a Hong Konger, it could just kidnap them! This was in reference to the case of Chinese billionaire businessman Xiao Jianhua who has not been heard from since he was abducted from a Hong Kong hotel in 2017.

The law as stands

As Mr Chan left Taiwan before his crimes were discovered, he only faces charges on some technical offences which can be seen as having taken place in Hong Kong including fraudulently using Ms Poon’s card. He cannot be tried in Hong Kong for murder, or indeed for any other crime he may be suspected of committing in Taiwan, because the Hong Kong courts have no jurisdiction outside the territory. Ordinarily, a criminal would be extradited to the place where the alleged crime was committed but, despite requests from the authorities there, he has not been sent to Taiwan because there is no formal extradition agreement between the two places. Whilst Hong Kong has such agreements with 20 countries, including Australia, the US and UK, Hong Kong’s two main laws governing the transfer of fugitives and providing help in criminal cases – the Fugitive Offenders Ordinance and the Mutual Legal Assistance in Criminal Matters Ordinance – have expressly excluded China, Macau and Taiwan. Why these exceptions were made is not clear, but both ordinances were amended extensively in 1999 so it should not be put down to an overlooked Colonial relic from the 1997 handover. 

The proposal and it’s opposition

Hong Kong has a decisively separate legal and judicial system broadly based on the British common law model, whereas the PRC has a civil law system with socialist roots. In recent years, Hong Kong and the mainland have moved closer in recognising civil and commercial verdicts by each other’s courts. The two sides signed a reciprocal arrangement on enforcing judgements in civil cases in 2017, and a spokesman of the Supreme People’s Court said there was also a need “resolve the void in criminal legal assistance between Hong Kong and the mainland”. Lam’s proposal to amend the ordinances so that arrangements for mutual legal assistance and reciprocal transfer of fugitives can be made on a case-by-case basis seems to be a natural step towards this. When a foreign country makes an extradition request, the Chief Executive must decide whether to issue a certificate to request a provisional arrest which will be used to apply for an arrest warrant in court. A decision will then be reached by the court. Among other things, the city’s leader must consider if the accused person’s alleged action would be considered a crime in Hong Kong as well, and be satisfied that the case was not political in nature.

However, as the Chief Executive is directly appointed by the Central People’s Government, there is concern that there will be pressure placed on that official to send people to China for trial for things which are legal in Hong Kong but not the mainland, such as in the case of the booksellers.

Guarantees by officials that human rights would be preserved because the extradition request would have to be accepted by a court and the proposed deportee would have the right to appeal have also been challenged. The application to the Chief Executive and the detainment of the deportee are done ‘ex parte’, in the absence of and without representation of or notification to the other party, meaning the defendant is not heard until later. In the meantime, they remain in custody, and stay that way during the appeals, if any. If the last appeal were to succeed after what could be potentially years, the right to personal freedom has been majorly infringed. Furthermore, whilst the Hong Kong judiciary has had a longstanding reputation for fairness, there is unease at the degree to which the judges experience the pressure of their role as ‘team players’ within the mainland’s administrative machinery and their ability to apply the law freely, fairly and without interference. Judicial independence in Hong Kong, rather than an on-off switch, can be described as existing to varying degrees.

Ultimately, many in Hong Kong lack confidence in the mainland judicial system controlled by the Chinese Communist Party. On a case I witnessed, in which an Australian court decided to enforce a Chinese Court judgement, the defendant actually appealed on the basis that the ‘corrupt’ nature of the court of the PRC meant they were denied natural justice. While Hong Kong has a bill of rights, called the Hong Kong Basic Law, China’s constitution can and has been changed at the ruling party’s whim. There is no separation of powers, and no independent judiciary. As extradition agreements rely on trust of the requesting country’s legal system, the aforementioned and capital punishment in the mainland is a great source of contention. Ordinarily, signatories have been prepared to give Hong Kong the assurance in their respective agreements that they would not impose the death penalty if a fugitive was extradited. However, there is doubt as to whether China would agree to or abide by the same undertaking.

Solution

Hong Kong are ignoring the obvious solution which is to have an extradition agreement specifically with Taiwan alone. The difficulty is that if a bi-lateral extradition treaty were to be agreed with only Taiwan, it would first mean the Hong Kong government acknowledging that Taiwan’s courts are fairer and more trustworthy to criminal defendants than those of China.

The present situation in Hong Kong

In view of public fear and suspicion of Beijing’s encroachment, and the authority’s response to protesters, the debate has transformed into a broader fight over the erosion of civil liberties and Hong Kong’s future. The anti-extradition bill protests have evolved into a larger movement calling for:

  • The bill to be officially withdrawn
  • The government to withdraw the use of the word “riot” in relation to protests
  • The unconditional release of arrested protesters and charges against them dropped
  • An independent inquiry into police behaviour
  • The implementation of genuine universal suffrage universal suffrage.

It is difficult to predict what will be next for Hong Kong, and even more so to imagine 2047. Without guarantees of what characterises Hong Kong’s rule of law: freedom of speech, judicial independence, due process, political neutrality of civil servants and police, and public consultations on major government policies, turmoil can be expected to grow and the violence to intensify, with no end in sight.

A poster given out at Hong Kong International Airport on 10 August 2019 surmising the protesters’ 5 key demands. © Emily Austin-Howell 10 August 2019

 

By Emily Austin-Howell

Emily Austin-Howell is a first-year Liberal Arts student at the University of Leeds, United Kingdom with an interest in international environmental law and policy.

Follow Emily Austin-Howell on LinkedIn.

 

Bibliography 

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