ucanews.com reporter, Hong Kong
Updated: March 06, 2019 04:13 AM GMT
Sang Pu (center) attends a talk hosted by the Justice and Peace Commission of Hong Kong Catholic Diocese in February 2018 that discussed about the influence of the Communist Party of China in Hong Kong society. (ucanews.com photo)
The Hong Kong Security Bureau recently proposed an amendment to the extradition ordinance that would allow the government to send fugitives to China and Taiwan to be tried on a case-by-case basis.
If it is passed, any fugitive from the law who sets foot in Hong Kong could be tried and imprisoned in the mainland if a request is made and Hong Kong consents.
Local lawyers say the proposal is more severe than the unimplemented Article 23 of the Basic Law, which was to legislate against subversion and secession. Human rights campaigners said Article 23 was aimed at being used to curtail protest movements.
The move to change the extradition law was triggered by a controversial murder case that occurred in Taiwan in February 2018.
Chan Tong-kai, who was 19 at the time, was suspected of killing his pregnant girlfriend, Poon Hiu-wing, while they were on vacation to celebrate Valentine's Day, after which he fled back to his native Hong Kong.
Poon's decomposed body was found in some bushes near a railway station on the outskirts of Taipei the following month.
Chan later allegedly confessed to Hong Kong police, who had collared him for illegally using Poon's ATM card in the special territory, that he had strangled her and stuffed her body in a suitcase.
Taiwan asked the Hong Kong authorities to extradite him but claim they received no reply, which prompted it to issue an arrest warrant for Chan last December.
However, as Hong Kong does not recognize Taiwan's judicial system, and there is no formal extradition agreement between them, critics say Chan may be able to exploit legal loopholes so he is never charged with murder.
This led the bureau to propose amending two pieces of legislation — the Fugitive Offenders Ordinance and the Mutual Legal Assistance in Criminal Matters Ordinance — by removing articles that exclude the transfer of fugitives "to other parts of China outside Hong Kong" including the mainland, Taiwan and Macau.
This means suspects could be extradited on a case-by-case base with the consent of Hong Kong's chief executive and the local court handling the case.
Hong Kong officials say the amendment aims to get rid of troublesome legal loopholes but Sang Pu, a Hong Kong lawyer, believes it is a step too far.
Sang said the Security Bureau's proposal could be interpreted as Hong Kong kowtowing to Beijing, as China would be able to unilaterally apply for extradition and Hong Kong would be compelled to surrender the suspect.
"It would mean that anyone in Hong Kong could be handed over to the mainland for trial at any time. This is the same as the mainland enforcing its law across the China-Hong Kong border," said the Catholic lawyer.
He said the two ordinances were applied to Hong Kong after it signed extradition arrangements with Beijing, but the proposed change would extend their reach to other territories that have not signed similar bilateral compacts.
Hong Kong authorities responded by saying the decision to extradite would ultimately be made at the discretion of the local court.
Sang suggested the issue was not so clear cut as most countries around the world would not consider extraditing a suspect unless they were guaranteed to stand a fair trial, and the country deemed to at least meet the minimum standard of judicial independence.
"China has no minimum standard in terms of a fair criminal justice system," he said.
Taking the cases of human rights lawyer Wang Quanzhang and late activist Liu Xiaobo as examples, Sang noted that China did not grant them the right to retain lawyers.
It also forbade their family members from visiting them while they were detained and denied them the right to fair questioning, "as all Chinese courts fall under the authoritarian regime," he said.
In defending the proposed legal change, Hong Kong authorities promised that no one accused of a political crime would be extradited, and said the provision would mostly target crimes like tax avoidance and tax evasion.
Sang noted how Beijing-born performance artist Ai Weiwei was prosecuted by the authorities on tax evasion charges, however critics have suggested this was just a ruse to punish him for speaking out against the central government.
The lawyer also referenced a speech by Chinese President Xi Jinping that was delivered behind closed doors last August at the first meeting of the new Commission for Law-based Governance of the Chinese Communist Party's Central Committee.
In the speech, which was only made public this February, Xi stressed that China must not follow the path of judicial independence embraced by the Western world but develop according to its own needs.
Philip Dykes, chairman of Hong Kong Bar Association, agreed with Sang that granting Beijing more legal power beyond its boundaries would be a controversial move.
"China does not recognize judicial independence from beginning to end. Is there any reason to ask Hong Kong to request a single extradition?" Sang asked.