Back to the Future-the Chinese Extradition Ordinance
The debate about changes to the Fugitive Offenders Ordinance to allow one off agreements with the HKSAR to permit the surrender fugitives to the rest of China, Macao and Taiwan included, rumbles on.
Opponents of the bill that would introduce the changes argue that one off extradition agreements would open the way to residents being surrendered to an alien legal system which is seriously deficient when it comes to assuring fair trial rights and decent treatment if a prison sentence was imposed on the returnee.
For its part, the Government says that there is nothing to fear if you had the misfortune to be rendered to the Mainland under an authority from the Chief Executive to stand trial there for a criminal offence.
That is because the justice system there has improved considerably in the past years and some countries have extradition arrangements with China so what is good enough for the people in Kyrgyzstan and Kazakhstan, two countries that have such arrangements, should be good enough for the residents of Hong Kong.
Although it is not critical to the issue of whether or not the proposed amendments should be passed, the Government persists in describing as a ‘loophole’ the fact that the existing legislation does not cover surrender of fugitives to the rest of China.
As I will seek to show, extradition arrangements with China had been a feature of the legal landscape before 1997 and it is inconceivable that these were overlooked when it came to making plans for the handover.
Because the Fugitive Offenders Ordinance was enacted by the colonial government in April 1997 to replace surrender arrangements under UK laws that could not survive the handover, the Government’s suggestion seems to be that the drafters of the ordinance did a poor job in not addressing the obvious problem of fugitive surrender arrangements with the rest of the Mainland, Macao and Taiwan.
This is not fair to the legal technicians working for the colonial government. They were not dozing when the new ordinance was being drafted and they did not ‘forget’ to include the rest of China when drafting it.
In fact, the legislative template for the Fugitive Offenders Ordinance provides for the possibility of the HKSAR making extradition arrangements with any place in the world. However, a limitation on that power arises in the definition of “arrangements for the surrender of fugitives” that applies throughout the ordinance. This definition excludes expressly the rest of China. This is the definition:
“In this Ordinance, unless the context otherwise requires—
arrangements for the surrender of fugitive offenders
(移交逃犯安排) means arrangements—
(a)which are applicable to—
(i) the Government and the government of a place outside Hong Kong (other than the Central People’s Government or the government of any other part of the People’s Republic of China); or
(ii) Hong Kong and a place outside Hong Kong (other than any other part of the People’s Republic of China); and
(b)or the purposes of the surrender of a person or persons wanted for prosecution, or for the imposition or enforcement of a sentence, in respect of an offence against the law of Hong Kong or that place;”
If this express limitation on the potential application of the ordinance was felt to be a mistake causing there to be a ‘loophole’ in the scheme for surrender of fugitives, then the first post-handover administration would surely have done something about it shortly after 1 July 1997. As you know, however, no attempt was made to plug the so-called ‘loophole’ until just a few months ago.
The suggestion that seems to flow from the assertion that omitting to cover extradition to China before 1997 was a mistake on the part of the British colonial government is also unfair. It may come as a surprise to know that, until the handover, the Laws of Hong Kong included a tailor made ordinance for extradition to China that was not adopted or adapted as one of the laws for the HKSAR when 1997 came around.
The ghostly outline of this law remains on the online database of the Laws of Hong Kong that is maintained by the Department of Justice. If you type in the site’s search engine “Cap.235” it refers you to the entry “Cap.235, Chinese Extradition Ordinance (Not adopted as the Laws of the HKSAR)” and a reference to a decision of the Standing Committee of the National People’s Congress (SCNPC) under Article 160 Basic Law which was made on 23 February 1997. This article allowed the SCNPC to reject Hong Kong laws enacted before 1997 if they were ‘in contravention of this law’.
You might well be asking how to reconcile the SCNPC’s repudiation of a pre-1997 law that provided for extradition to China can be squared with the assertion that the legislative scheme that the HKSAR inherited in that year contained a ‘loophole’ as regards extradition to there.
To answer this it is necessary to go back to 1858 and the Treaty of Tientsin.
` This treaty was one of the dozen or so ‘unequal treaties’ in the nineteenth century said to have been unfairly imposed on China by grasping and immoral European powers. The European power in this case was Great Britain. The treaty was asymmetrical in that the Chinese Government undertook many obligations that intruded on China’s sovereignty, such as access to rivers and ports for trade and free movement of Christian missionaries , and required the British Government to do little in return.
There was one clause in the treaty however that imposed obligations on the British Government. It related to Hong Kong. It said:
If criminals, subjects of China, shall take refuge in Hongkong, or on board the British Ships there, they shall upon due requisition by the Chinese authorities, be searched for, and on proof of their guilt be delivered up.
The British Government saw to it that the colonial government in Hong Kong implemented this treaty obligation by enacting an extradition law which was called the “Chinese Extradition Ordinance”. Although by no means as legally sophisticated as the current Fugitive Offenders Ordinance, it gave Chinese subjects the right to contest a request for extradition before a magistrate where he could argue that offence for which he was wanted was a political offence and so he should not be surrendered or the conduct said to be a crime in China was not an offence under Hong Kong law.
It seems that requests were made under this law and Chinese subjects were surrendered to Imperial authorities. However, requests seem to have dropped off in the first part of the twentieth century and the last extradition under this law occurred in 1935.
The reason why the ordinance fell into disuse seems to be associated with the growth of nationalist sentiments and a reluctance to invoke indirectly the provisions of an ‘unequal’ treaty which ought not be recognized by Chinese authorities.
The Chinese Extradition Ordinance therefore slumbered for decades more but surfaced again in the 1990’s.
A couple that had fled to Hong Kong after the Tiananmen incident were the subject of a request for return by Mainland authorities. The couple had entered Hong Kong illegally and were liable to be removed by the Director of Immigration using conventional immigration powers.
Counsel for the couple argued that the Mainland request should be treated as if it was a request made under the Chinese Extradition Ordinance. If that was the case, the couple would have the benefit of the procedural safeguards that the ordinance offered. That was much better than fighting an immigration decision which could not be brought before a court and where procedural safeguards were, as they still are, very rudimentary.
The Court of Appeal was alive to political realities though. The judges knew that the Mainland authorities would not rely on a colonial law that had sprung from an unequal treaty. They therefore rejected the argument that the Chinese Extradition Ordinance was in play. They said “The view of the legal status of Hong Kong taken by the Government of the People's Republic of China readily explains why no use is currently made of the extradition procedure.”
The point is that as late as 1990, just seven short years before the handover and at a time when the Sino-British Joint Liaison Group would have been fretting over subjects like mutual legal assistance and extradition, the possibility of a new extradition agreement with the Mainland was the proverbial elephant in the room. Both the British and the Chinese sides saw the problem. They decided that the new Fugitive Offenders Ordinance, which was designed to bridge the colonial legal regime and the new regime under the Basic Law, would not tackle the problem. There was decidedly no negligence and inadvertence on the part of the drafters leading to a ‘loophole’ but the opposite which was the decision to make the new law not apply to the rest of China.
About the authorPhilip 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.
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