Fugitive surrender: Rights and responsibilities
2019 年 6 月 14 日
Editor’s note: At a Tuesday forum titled “Extradition law and human rights: Does the Hong Kong government’s bill provide sufficient safeguard for our rights?”, Grenville Cross, honorary professor of law at the University of Hong Kong and the city’s former director of public prosecutions, shares his insights into the proposed amendments to Hong Kong’s extradition law.
Grenville Cross, honorary professor of law at the University of Hong Kong and previously the director of public prosecutions of the Hong Kong Special Administrative Region, addresses the Tuesday forum on extradition law and human rights. (ROY LIU / CHINA DAILY)
I am most grateful to have been invited to today’s conference, and to have the opportunity to discuss the surrender of fugitives, in the context of rights and responsibilities.
The Security Bureau’s proposed amendments to the Fugitive Offenders Ordinance are designed to promote effective criminal justice, and to redress an intolerable situation. They will enable Hong Kong to return fugitives, on a case-by-case basis, to other parts of China, as well as to over 170 countries with which it currently has no extradition agreements. Such case-based approaches are used in other jurisdictions, and are of obvious utility where long-term surrender arrangements are not yet in place. Given the existing vacuum, many fugitives from other places have obtained sanctuary in Hong Kong, some from elsewhere in China, others from around the globe.
We know that over 300 fugitives from other parts of China are currently enjoying safe haven in Hong Kong, including at least one alleged murderer, as well as businessmen already convicted of corruption and money laundering. However, because of the weakness of our laws, they are able to avoid their just deserts, and cannot be returned to face justice. Apart from China, no other country, not the United Kingdom, not the Russian Federation, and certainly not the United States, tolerates a situation in which a suspect can simply evade justice by moving from one part of the country to another, and it is incumbent upon Hong Kong to break the impasse. Although we cannot know for sure how many fugitives from around the world are also evading justice by coming here, the Security Bureau’s proposals will, hopefully, have given them a rude awakening, and put them on notice that their time is up.
In the debate over the Security Bureau’s proposals, the whole focus has been on the rights of suspects, and what Hong Kong should do to protect their interests. Although their interests are obviously important, there is, I believe, another side to the equation, which is often downplayed. “No man is an island”, said John Donne, and Hong Kong has wide responsibilities to other places, as well as to the victims of crime, and these cannot forever be shirked, on one pretext or another. Those who think Hong Kong can simply evade its responsibilities, by isolating itself and refusing to help other jurisdictions to pursue criminal suspects, are doing it no favors at all, not least because it will result in a breakdown of trust.
Hong Kong, therefore, is not only letting itself down, but also its criminal justice partners around the world, and the time has come for it to shed its image as China’s criminal sanctuary. I firmly believe that, 22 years after reunification, the situation in which someone can, for example, rob a bank in Beijing, commit a rape in Shanghai, or traffic drugs in Nanjing, and then claim safe haven in Hong Kong, cries out for redress. Although some people have described this state of affairs as a “firewall”, it is, in reality, a criminal’s charter, which undermines effective law enforcement throughout the country, and beyond. The Secretary for Security, John Lee Ka-chiu, clearly recognizes this, and his bureau’s proposals offer a sensible means by which Hong Kong’s responsibilities to others can finally be honored.
There is, however, a great difference between creating a mechanism which enables a person to be extradited, and actually extraditing someone, and hopefully, people appreciate this. The United Kingdom, for example, has extradition agreements with dictatorships, failed states, and states riven by civil war, but, in reality, it would never extradite someone to one of those places, and I have no doubt that it would be the same here. Even with countries not in those categories, extradition is by no means a given. Whereas, for example, the UK has an extradition treaty with the Russian Federation, it rejected 63 of the 67 requests for extradition made by Russia over the past 17 years. Likewise, the creation of a mechanism for returning fugitives to other parts of China certainly does not mean that this will happen whenever a request is made, as there are numerous hurdles to be overcome.
The Fugitive Offenders Ordinance (Section 5) contains internationally recognized safeguards for suspects, and these are replicated in Hong Kong’s 20 existing fugitive surrender agreements. Because fears have been expressed that people might be at risk for political reasons, the proposals emphasize that there will be no surrender for offenses of a political character, and no surrender where the purpose of the request is to punish the wanted person on account of his political opinions (or his race, religion, or nationality). Of course, there is no political dimension to most offenses, and, other things being equal, there should be no particular difficulties when cases of, say, burglary, kidnap or rape are considered for surrender, or when they are ultimately tried. No surrender, however, will be made if the suspect might be prejudiced at his trial or punished, detained or restricted in his personal liberty because of his political opinions, race, religion or nationality. A fugitive will also not be returned if he will face the death penalty, if the crime is not an offense in both places, if extra charges might be brought, or if the double jeopardy principle will be breached. This is a formidable battery of protections, and the government, to allay concerns, has explained that they can be supplemented.
Another fascinating development concerns people’s assessors, who are not dissimilar to Hong Kong’s own jurors. Although they were originally introduced in the 1950s, to give the public a voice in the judicial process, the People’s Assessors Law, enacted in 2018, gives them equal rights with judges in trials, unless the law specifically provides otherwise. The idea is “to achieve judicial democracy”, and, although they normally sit on three-person collegiate benches, they are also eligible, in graver cases, to participate in seven-person panels, usually comprising three judges and four assessors. Although assessors cannot vote on legal questions, they can still discuss them, but they vote jointly with the judges on factual issues, which are decided by the “principle of majority rule”. As an aside, when one asks critics of the Security Bureau’s proposals if they are any way reassured by the increased role for people’s assessors in criminal trials, their faces invariably glaze over, and it is a pity that ignorance of how the mainland’s criminal justice system is actually developing informs so much of the debate.
There has, moreover, been a significant improvement in judicial standards in recent times. Although, until about 20 years ago, judges had little legal training, this has now changed, and anyone who aspires to be a judge (or a prosecutor or a lawyer) must pass the difficult National Unified Legal Professional Qualification, together with the separate judge’s test, and this has raised judicial standards enormously. Many of this new breed of judges, prosecutors and lawyers have also studied law elsewhere, often in the UK, Germany or the US, but also in Hong Kong, and they are familiar with Western notions of criminal justice, and this has undoubtedly impacted upon their work.
Some people have suggested that, once a fugitive is returned to the mainland, any guarantees given may be disregarded. I take the view, however, that the mainland courts, aware of the interest in the case, will actually go the extra mile and do all they can to ensure that the fugitive is appropriately treated on return, and the precedents support this view. After all, the mainland, like other jurisdictions, understands full well that if fugitives do not receive justice, as promised, it will forfeit the trust of others, and its future requests will be imperiled.
Moreover, 55 places have now signed extradition agreements with China, of which about 40 are now in force. They include nine EU member states, among whom Bulgaria (in the case of Yao Jinqi, wanted for corruption), France (in the case of Chen Wenhua, wanted for embezzlement), Italy (in the case of the fugitive named Zhang, wanted for theft) and Spain (in the case of the 218 Taiwan telecom fraud suspects, 94 of whom were returned to Beijing just last week, following two years of judicial proceedings) have recently returned fugitives to China without problem, which makes the EU’s professed concerns over the Security Bureau’s proposals all the more extraordinary. Even in the absence of such agreements, the US (in the cases of Yu Zhendong, wanted for fraud, and Yang Yinjun, wanted for bribery, and the fugitive named Zhu, intercepted on an Interpol Red Notice alert for violation of personal rights) and Canada (in the case of Lai Changxing, wanted for smuggling) have also recently returned fugitives, albeit subject to assurances as to future treatment. In all these instances, China has honored the guarantees requested of it, and fair-minded observers would be entitled to conclude that it will also do likewise in respect of any fugitives returned from Hong Kong.
In conclusion, the Basic Law’s “50 years unchanged” provision for Hong Kong’s capitalist system and way of life (Art 5) reaches its conclusion in 2047, and nobody knows for sure what will happen after that. There will undoubtedly be some people in Beijing who will take the view that “one country, two systems” has run its course, and should not be continued. I imagine, however, that everyone here hopes that our current arrangements will survive beyond 2047, but the chances of this happening will be far greater if Hong Kong shows itself to be a responsible part of the nation, willing to shoulder its responsibilities in the combat of crime.