The Security Bureau has proposed a case-by-case system on fugitive transfers, but democrats fear the proposal – which applies to mainland China, Taiwan and Macau – will hurt Hong Kong’s judicial protections under One Country, Two Systems.
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.
Taiwan authorities have asked for Chan to be extradited, but the Hong Kong government said they had no such arrangements in place with Taipei. Hong Kong has mutual extradition agreements with 20 countries, including the United States, the United Kingdom and Australia.
In a new document sent to the legislature by the Security Bureau, the government proposed amending the Fugitive Offenders Ordinance (FOO) and the Mutual Legal Assistance in Criminal Matters Ordinance (MLAO) to enable a “one-off case-based approach” for handling extradition requests.
Since the current law also does not cover mainland China and Macau, the proposed change will affect those two jurisdictions along with Taiwan.
“The two existing ordinances are not applicable to [extradition and mutual legal aid requests] between Hong Kong and other parts of the People’s Republic of China, and therefore the requests arising from the Taiwan homicide case cannot be handled, highlighting the inadequacy and shortcomings of the current regime,” the Bureau wrote.
Hong Kong already has a system for handling one-off extradition requests, but the law states that such cases must be scrutinised by the Legislative Council. In its document, the Security Bureau described the procedure as “operationally impracticable” because the legislature’s dealings are public, so fugitives will be alerted to the extradition request and flee.
To avoid this, the Bureau proposed that the chief executive should have the authority to issue a certificate after receiving an extradition request. Local authorities will then bring the certificate to the courts, which will decide behind closed doors whether to grant a provisional arrest warrant.
“On timeliness and confidentiality, this will better suit the actual operational needs,” the Bureau wrote, adding that human rights safeguards will remain in place.
An amendment bill is expected to be put to the Legislative Council within this legislative year, the Bureau said.
Lawmaker Claudia Mo said on Wednesday that the pro-democracy camp disagreed with the proposal, calling it a Trojan horse that may undermine the barrier between the legal systems in Hong Kong and the mainland.
“It’s obvious that Hong Kong people lack confidence in the mainland Chinese judicial system, and we’re worried that Hongkongers and perhaps dissidents living in Hong Kong could face framed charges,” Mo said.
Mo also opposed the move to enhance the chief executive’s authority: “This is more than unsettling because one person can could just decide… and bypass the legislature, and that could easily lead to abuse of power.”
Her concerns were echoed by lawmaker James To, the deputy chair of the legislature’s security panel. “The decision by Chief Executive Carrie Lam would be conducted secretly. She would make all the decisions herself, which will make society dangerous and unprotected,” he said.
To also referred to the case of the missing booksellers, when five men were allegedly abducted and brought to the mainland in 2015. The booksellers would be less protected under the proposed system, he said.
To added that Hong Kong historically refrained from signing mutual extradition agreements with some jurisdictions in the world, because their human rights record and judicial systems were not up to standard.
Civic Party lawmaker Dennis Kwok said on Wednesday that the proper way to deal with Poon’s case was to arrive at a long-term extradition agreement with Taiwan specifically.
“If the Hong Kong government wishes to have an extradition arrangement or treaty, they need to have a formal dialogue with the Taiwanese government and recognise [Taiwan] as an independent jurisdiction that has independent judicial power,” Kwok said.
Taiwan has been ruled by the Republic of China government since 1945 after Japan was defeated in the Second World War. Beijing claims the island is one of its provinces and does not recognise it as an independent country.
The pro-Beijing camp came out in support of the new proposal, saying that it will fix the existing loophole.
“Over the past year, we and the victim’s family have asked the Hong Kong government to find a way to transfer the suspect under the framework of One Country, Two Systems,” said Starry Lee, chairperson of the DAB party. “This is the only way that justice can be done.”
The victim’s mother, who appeared alongside Lee at a Tuesday press conference, also spoke in favour of the proposal.
New People’s Party leader Regina Ip said that she was not worried the new policy would hurt human rights protections afforded to criminal suspects. Under the proposed system, individuals affected by the extradition request would still be able to make their case in Hong Kong courts, she said.