I had hoped to get away from the topic of surrendering fugitives but it continues to command attention as well as generating a concern that is not going away.
As the Secretary of Security has continued call for support for the proposal to change the law so as to permit surrender to anywhere within China, meaning to the other special administrative region, Macao, and Taiwan, more problems emerge; some of them apparently intractable. It puts me in mind of watching a man picking at a loose thread in a woollen pullover and watching horrified as the garment unravels.
First, to go was the confident assertion that amendments to the law would deal with problem of not being able to surrender a permanent resident who was wanted by the police in Taiwan in connection with a homicide case involving another Hong Kong permanent resident.
The authorities in Taiwan appear to have said that there would be no guarantee of a surrender agreement if the agreement in any way impeached Taiwan’s understanding of the One China policy.
So the price of doing business with Taiwan over this case would be to conclude an agreement that might prove acceptable to that place if suitably drafted to meet these concerns but might contain terms that would be unacceptable the HKSARG which must have a different view of the One China policy. If there is no give and take in this area then there will be no agreement and no surrender.
Second was the dawning realization that an agreement with the Mainland was, in legal terms, virtually a foreign country and, adapting the opening words from L.P. Hartley’s novel ‘The go-Between’,’…they do things differently there.’
Concerns were raised that an agreement to surrender should not include surrender for economic or white collar crimes, like fraud and theft but should be only for ‘heinous’ crimes, like murder, serious assault and rape.
It was said that the legal system in the Mainland was very murky when it came to offences that we would call fraud or theft and ‘innocent’ Hong Kong businessmen could become embroiled in criminal prosecutions without any fault on their part.
This concern goes to the very heart of the issue of whether Hong Kong should contemplate having even ‘one off’ surrender agreements.
Extradition treaties between countries have to accommodate different legal systems, but only up to a point. As there is no obligation in international law to surrender fugitives, no country should feel obliged to give up one of its nationals for conduct abroad, particularly when that conduct is lawful at home.
So as to give effect to the right not to surrender, the principle of ‘double criminality’ is incorporated in extradition arrangements meaning that people will not be surrendered to another place if the same or a similar offence does not exist in that place.
For example, having sexual relations between consenting adult males-may not be an offence in country X but that conduct is penalised in country Y. If countries X and Y conclude a surrender agreement, a person in country X will never be surrendered to country Y. Country Y will have to accept this the price for having an agreement with country X.
This is why surrender agreements are always concerned with actual conduct, not the names of offences.
Country Y may call the conduct between adult male homosexuals a ‘crime against nature’ or an ‘unspeakable criminal abomination’ but country X want to get through this flowery language and want to know what were the acts constituting this foreign crime. When it is clear that the ‘crime against nature’ or ‘unspeakable criminal abomination’ simply means adult males having sex with each other, Country X will reject the request.
If a Hong Kong businessman goes into the mainland and his conduct there would amount to theft or fraud if carried on in the HKSAR, then there would be no objection to surrendering him there if there was an agreement with the Mainland that covered conduct amounting to theft or fraud.
If the Mainland made a request for surrender alleging conduct that was an offence there a Hong Kong court could look at that conduct and say that, although it was an offence in the Mainland, it was no offence here. This is the protection our law would offer against surrender for an offence that is not known here.
If you accept that this a real protection, then you should not worry about an agreement with the Mainland that covers economic crimes because only conduct amounting to a known criminal offence could be the basis of surrender.
It strikes me that the concern of Hong Kong businessmen is, instead, of them being embroiled in criminal litigation where the high standards that apply in Hong Kong courts do not apply. They probably have in mind well-documented cases of politically or financially motivated prosecutions and judges whose loyalty may be owed to the CCP first, and not the abstract principle of Justice.
If that is the real concern, then that is a good reason not to have an agreement at all if you simply have no confidence in the Mainland criminal justice system. Criminal damage offences and offences against the person and some homicides are not necessarily ‘heinous’ crimes. Some white collar crimes certainly deserve the description.
The word ‘heinous’ comes from a French word relating to ‘hate’ and is sometimes used to describe detestable or really bad crimes. Fraudsters like Bernie Madoff, who pulled off the largest swindle Wall Street history, some US$ 50 billion, and ruined thousands of lives, committed a ‘heinous’ crime without touching a hair of his victims’ heads.
I am pleased that the focus is now shifting towards what the Mainland criminal justice system is really like when deciding whether we would entrust it with the fate of a close relative or friend who may be the subject of a surrender request. I hope the administration shelves the proposal for change in the near future.
That said, I am not blind to the problems posed by criminals who have broken Mainland laws being able to live in the HKSAR without there being the chance of removing them. The result of integration in the Greater Bay area will be more cross-border economic activity and that will inevitably lead more crime. A solution needs to be found to the problem therefore. It will not go away.
About the author
Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.