It seemed like old times:  last Sunday’s afternoon protest march, organized on short notice by the Civil Human Rights Front in its role as coordinator for every major protest since 2003. Only this time the rally was for an obscure cause that had lain dormant since 1997.  Yet like many such low-key events, turnout was greater than expected:  between 5,000 and 12,000, depending on the estimates of police and organizers, respectively.   

The crowd also looked to be a fair mix of pro-democracy partisans.  Whether intended or not, mostly old-times headed out first.  They seemed to be people who had been patiently turning out on Sunday afternoons for years.  The younger generation was mostly following along behind.  All the main pro-democracy political parties were represented, as well as some new student groups, and lawyers, plus the defiant blue and white flags of young Hong Kong independence advocates, confident enough this time not to hide behind furled banners. 

Provocation for the protest was a Hong Kong government plan, announced in February, to amend the city’s extradition laws.    On the face of it, updating these ordinances should be a matter-of-fact exercise.    Hong Kong already has extradition agreements with 20 countries to allow the surrender of suspect criminal offenders.   The proposed changes would facilitate such transfers to all other jurisdictions, on a case-by-case basis. (1) 

In fact, the prospect has all the ingredients …  in scaled down form …  of the fearsome national political security legislation mandated by Article 23 of Hong Kong’s post-colonial Basic Law constitution.  Hong Kong has managed to keep this legislation at bay since 2003.  Among those ingredients is the “progressive” role being played by Hong Kong’s otherwise carefully conservative business community, which never joins pro-democracy protest rallies.  Last Sunday was no exception. 

THE PRETEXT 

This episode actually began in Taiwan with the murder early last year of a young woman, Poon Hiu-wing.  She was pregnant and had been holidaying in Taiwan with her boyfriend, Chan Tong-kai.  In due course, investigators there concluded that the assailant was most likely Chan.  Both were Hong Kongers and he had returned home to Hong Kong.  But for reasons deriving from the political sensitivities of its unusual one-country, two-systems status, Hong Kong has no extradition arrangements with Taiwan, or with Macau, or with the Chinese mainland for that matter.   

The omission was deliberate, and it has been thought best to let sleeping dogs lie throughout all the years since Hong Kong retuned to Chinese rule in 1997.    The lack of such arrangements has produced some awkward situations, but the need for correctives has only been discussed and not acted upon …  until now.    

Not for nothing has Beijing’s highest-ranking representative here just enjoined Hong Kong’s top civil servants to emulate their leader in her dedication to duty and courageous pursuit of tasks no matter how difficult (Mar. 30:  South China Morning Post, Ming Pao).   

Loath to let so convenient an opportunity pass, Chief Executive Carrie Lam’s administration hastened not just to tailor a solution for delivery of the suspect to Taiwan.  They have drafted instead a plan capable of extraditing everyone everywhere. 

THE PROPOSAL 

The government’s plan was announced on February 12, apparently without any advance warning to any of the concerned stakeholders (SCMP, Mar. 29).  Secretary for Security John Lee Ka-chiu explained that the relevant ordinances must be amended in order to allow the surrender of suspects to any jurisdiction, including Taiwan, Macau, and the Chinese mainland, with which Hong Kong does not yet have separate extradition agreements.  Officials are aiming to win Legislative Council approval before the coming summer recess, which begins in July. 

Asked a few days later why not simply exclude the mainland from the proposed amendments since that was the source of greatest concern, Secretary Lee seemed not to understand the question.  He replied only that since there are bound to be other such cases in the future, it’s best to craft a solution that can cover all at one go. (2)  

Some care had nevertheless been taken in drafting the proposal, which aimed, initially, to permit the surrender of fugitive suspects accused of committing 46 crimes.  Extradition requests are to be overseen by Hong Kong’s courts, with the Chief Executive signing off on each transfer decision.  Safeguards will be written into the legislation as amended to protect suspects from prosecution or persecution based on race, religion, nationality, or political opinion.  The alleged offence must also be regarded as a crime in Hong Kong and not punishable by the death penalty, which has been abolished here.   

Extradition will also not be allowed for offenses set to be introduced once Hong Kong fulfils its Basic Law mandate to pass Article 23 national security legislation.  This will prohibit treason, secession, sedition, subversion of state power, colluding with foreign forces, and so on.  Also not included is the favorite catchall mainland crime or any equivalent of “picking quarrels and provoking disorder,” used to silence activists who attract the attention of law enforcement authorities across the border. 

THE HUE AND CRY: From All Sides 

 Officials chose not to allow a formal public consultation exercise.  But they had anticipated immediate pushback from pro-democracy activists and were ready with all the conventional reassurances.  The amended law would not be used to surrender Hong Kong activists to the tender mercies of mainland law enforcement, and all the safeguards written into the law were well advertised.  But it didn’t take long to produce multiple scenarios, based on recent real-life experience, whereby just such political dangers might lie in store. 

Civil Libertarians 

The 2015-16 Causeway Bay Books case was foremost in critical minds.  It swept up five associates of the bookstore, which had broken mainland law by publishing in Hong Kong but selling across the border, books that had been banned for publication and sale there.  No such restrictions exist, yet, in Hong Kong.  Two of the five men were subjected to what might be called “extra-legal” extradition.  The other three were apprehended while traveling in China itself.  

But in Hong Kong, Lee Po had simply vanished, last seen going to his warehouse office in late December 2015 (Jan. 7, 2016 post).   He later reappeared with little to say except that he had been escorted across the border by irregular means, held incommunicado, interrogated, and given to understand that the Hong Kong book business must be rolled up.  Gui Min-hai was living in Thailand and similarly disappeared there without a trace, also in late 2015, only to resurface months later in China.  Gui remains in custody ostensibly due to violating the terms of his sentence from a previous unrelated conviction.   

One of the five, Lam Wing-kee, was apprehended while traveling in China.  He ultimately eluded his handlers during a return trip to Hong Kong.  This was arranged after he agreed to retrieve information they wanted from the office computers.  He returned instead with a story to tell and told it to the whole world. (3)    

Lam was among the organizers of Sunday’s rally and stood with them helping to carry the lead banner at the head of the march.  He was also quoted as saying that if the legislation is passed, he will leave Hong Kong rather than wait his turn to be extradited. 

In another case, Chinese billionaire Xiao Jianhua was reportedly last seen, in early 2017, being spirited away from Hong Kong’s luxury Four Seasons Hotel.    He had apparently hoped to make it his hideout and remain there unnoticed by mainland law enforcement personnel despite their determination to investigate cases of alleged corruption wherever they might be found. 

Similarly, Gu Zhuoheng recently recounted his experience about being saved on May 26, 2015, by Hong Kong security staff in the lobby of the airport Regal Hotel where he was being accosted by gun-toting Mainland agents.  They were apparently bent on another extra-legal extradition. Gu is wanted by mainland authorities on corruption charges, but he is also a fierce critic of mainland political leaders.  Additionally, he is Chairman of Sing Pao Media that publishes the pro-Beijing Chinese-language Sing Pao Daily here. (4)  

Mainland Law Enforcement 

Beijing authorities would naturally like to tidy up this situation, so their agents need not travel about incognito in search of their prey.   During the National People’s Congress meetings in Beijing last month, a former ranking security official, Chen Zhimin,  stressed the importance of amending Hong Kong’s laws. 

In an interview with Radio Television Hong Kong (RTHK), he asserted that there are 300 fugitives who have allegedly committed serious offenses and are now hiding out in Hong Kong.  We know who they are and where they are, he said.  We have their names (Mar. 14:  SCMP, Standard, Ming Pao) 

All of this Hong Kong officials had anticipated and prepared for…  although Security Secretary Lee said, when asked, that he had no knowledge of any such Wanted List.  But what officials here reportedly had not anticipated was the pushback they received from Hong Kong’s usually compliant business sector … suggesting that Hong Kong officials knew little about the mainland’s system of justice and did not care enough to ask before drafting their proposal.

The Business Community 

Its representatives said such a law would undermine business confidence here because of the ubiquitous cross-border links and interests, which are in turn the life’s blood of Hong Kong in its role as Asia’s “World City.” 

These interests, it is said, typically entail much uncertainty because even with the most upright of intentions, it’s easy to fall afoul of mainland rules, regulations, unfamiliar tax codes, and the like.   As a result, the Hong Kong government’s plan could undermine public confidence and do real damage to Hong Kong’s much-valued international reputation as a   reliable centre for banking, financial services, and trade. 

Legislative Council representatives from the Liberal Party and the Business and Professionals Alliance spoke out about such fears. They suggested that all “white-collar crimes” be exempt from the government’s extradition plan.  The American Chamber of Commerce issued a strong statement warning of the danger to Hong Kong’s international reputation as a safe place to do business.   

Taiwan issued a statement saying it might declare a travel alert to warn its citizens if the new rules placed them at risk.  Taiwan would also not be a party to the extradition procedures for the accused murderer if they compromised its sovereignty by assuming Taiwan is part of China (Ming Pao, Mar. 25).   They know a potential political trap when they see one. 

In 2003, It had been James Tien Pei-chun, now honorary chairman of the Liberal Party, who administered the coup d’grace when the government tried to pass Article 23 national security legislation.  This he did by withdrawing his party’s support for the bill after the big July First protest march, thereby depriving the government of the Legislative Council majority needed to pass the bill.  

His contribution this time was an RTHK interview warning the government that its latest initiative would cause Hong Kong to lose out on foreign investment and could harm Hong Kong’s ability to play its much-hyped lead role in Beijing’s ambitious new Greater Bay Area development project (Standard, Mar. 8; SCMP, Mar. 29).  Tien’s words made a useful addition to the fliers handed out at Sunday’s march. 

At first dismissing the nay-sayers, Hong Kong officials went on to try and placate the business community critics by removing nine white-collar crimes from the list of 46.   Announced on March 26, the nine that would not be recognized as valid reasons for extradition include:  offenses against bankruptcy and companies laws; offenses relating to securities and futures trading; offenses against laws concerning the protection of intellectual property, and of the environment; offenses relating to fiscal and tax matters, and the unlawful use of computers.   The offenses for which suspects can be surrendered must carry prison sentences of more than three years instead of just one year as originally proposed. (5) 

This eased some fears but not those of the one fugitive who probably has more immediate cause for alarm than anyone else.  And true to the flamboyant style of Hong Kong’s tycoons, he chose a dramatic means of lodging his protest.  Not for him the tedium of press conferences, petitions, and Sunday afternoon marches.   

He is Joseph Lau Luen-hung, who was tried in absentia by a Macau court in 2014, found guilty of bribery and money laundering, and given a five-year prison sentence.  He, too, says he will leave Hong Kong if the proposed amendments become law.  Having been formally tabled on April 3 in the Legislative Council, these are now known as the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters (Amendment) Bill 2019. 

Lau had claimed ill-health as his reason for not returning to Macau to face justice in 2014.  Now he wants a Hong Kong court to declare that in the likely event the proposed amendments are passed into law, he would be in imminent danger of being sent to Macau, which would deny him his rights as a Hong Kong citizen.   

Lau’s judicial review application argues that his right to a fair trial was compromised by the Macau proceedings.  His application also puts the retrospectivity factor to novel new use by arguing that Hong Kong’s fugitive rendition amendments should not have retrospective effect because it would be unfair to allow extradition for crimes committed before the new rules became law. 

Since the changes in Hong Kong’s laws are intended in the first instance to allow one suspect’s extradition to Taiwan for a crime allegedly committed over one year ago, Lau’s application assumes that Hong Kong’s updated ordinances will have retrospective effect as a matter of course.  But this demonstrates flagrant disregard for common law principles that are the very bedrock on which Hong Kong’s legal system is based.   

 Hence Lau’s right to a fair disposition of his case is now in jeopardy and he is applying to the court for relief from his predicament (April 2:  Ming Pao, SingTao, Standard).  Good luck with the retrospectivity argument.  It has proved a trap for many ex-Legislative Councillors who have tried in vain to escape from its clutches in recent years (Mar. 4, 2019 post).

THE TRUST DEFICIT 

 Officials are now confronting the cost of their past routines:  promising one thing but delivering another.  The list is long and well documented in the public’s memory of the past two decades:   promises about autonomy, universal suffrage elections, free speech, press freedom, and so on.   

There is one good reason why Chief Executive Carrie Lam’s Administration decided not to hold a formal public consultation before suddenly announcing the fugitive rendition proposals in February.  She must remember the experience of 2013-14 when, as Chief Secretary, she was responsible for the consultation exercise on electoral reform.  The public responded for months, in good faith, only to have even the most moderate of proposals overridden by order of Beijing with its August 31, 2014 ultimatum on electoral reform … precipitating the 79-day Umbrella-Occupy Movement’s street blockades.

Now her officials are out and about advertising all the safeguards they have written into the amendments and pleading anew for the public’s trust,  as if 2014 never happened..  But the sceptics  are not so forgetful or forgiving, and with good reason.  They see yet another blurring of the lines drawn initially, before 1997, in yet another promise to keep Hong Kong safe under the “one-country, two-systems” formula.   

 The most basic reason for the hue and cry this time, of course, is China’s legal system itself:  the well-documented dangers it contains, and the fundamental differences between the two mainland and Hong Kong legal regimes.   

The mainland system lacks an independent judiciary, that is, independent of Communist Party rule.  Arbitrary detention is common, as in the booksellers’ case.  Adequate legal representation is lacking and lawyers themselves can be in jeopardy.  But above all is the absence of open and fair trials, with the adversarial presentation of evidence  pro and con defendants, by defence attorneys and prosecutors.  Trials are essentially a presentation of the state’s case against the accused, based on evidence that has been collected by all means possible, with sentencing to follow.  And most definitely, the presumption of innocence until proven otherwise does not apply.

Yet Security Secretary Lee appears oblivious to these dangers, which must have been why he seemed not to understand that question at the February 15 press conference   …  like Chief Executive Carrie Lam with her much-repeated rebuttal that talking about independence has nothing to do with free speech.   

It must be a strain to keep repeating such lines.  But only Lee’s habitually furrowed brow betrays cognitive dissonance …  meaning he at least realizes that something important is missing between what hes saying and what his listeners perceive to be true. 

On one occasion he even tried to assure sceptics that the mainland system itself contains the necessary safeguards.  Rendition requests are to be issued at the highest ministerial level, he has said, and they will have passed through many departments, so there will definitely be checks and balances.   He also said there would be transparency because the local Chinese and overseas media would report on such trials (Mar. 31:  SCMP, Ming Pao, Wen Wei Po).   

Hong Kong’s judges are among the world’s finest and will be the gate-keepers overseeing fugitive transfers, with the Chief Executive herself signing the orders.  But Lee doesn’t explain the implications of Legislative Council oversight having been removed from the process.  

He also doesn’t acknowledge that the judges will not actually be reviewing the details of each case but only overseeing the formalities and rendition procedures to determinate that all is in proper order.  Hong Kong courts will have no way of investigating the substance of the charges themselves and therefore no say as to whether justice is being served.  

Nor does he acknowledge the possibility of extraditing fugitives for one offense but trying them on other charges once the individuals arrive back in Chinese custody.  Hong Kong would have no way of preventing the addition of other offenses to the charge sheets. 

And as for the Chief Executive, she has acquired the unfortunate reputation of being someone who does whatever she is told, so her authorization is seen essentially as a pro forma exercise.   

In the Legislative Council, the ranks of pro-democracy lawmakers have been depleted by the oath-taking saga disqualifications and three more are at risk of losing their seats due to trials currently underway. Their fate should be known before Carrie Lam’s summer recess deadline.  

Those who remain are trying to use whatever delaying tactics remain after the rules change a year ago.  But for now, business sector representatives seem satisfied to know that the crimes their constituents are most likely to commit will not be extraditable offenses.  So, unless the representatives of this sector have a sudden change of heart, as in 2003, the government’s proposed amendments seem set to pass. (6)

        

(1)   The two ordinances to be amended are the Fugitive Offenders Ordinance and the Mutual Legal Assistance in Criminal Matters Ordinance: 

https://www.elegislation.gov.hk/hk/cap503!en.pdf?FILENAME=Consolidated%20version%20for%20the%20Whole%20Chapter.pdf&DOC_TYPE=Q&PUBLISHED=true 

 https://www.elegislation.gov.hk/printhtml?RI=1 

  (2) HK Government Press Release, Feb. 15, 2019:   https://www.info.gov.hk/gia/general/201902/15/P2019021500628.htm 

 (3)  The fullest account is his written statement presented at a hearing in Washington, D.C., dated May 3, 2017.  Full text: 

https://www.cecc.gov/events/hearings/will-the-hong-kong-model-survive-an-assessment-20-years-after-the-handover      

 (4) Radio Free Asia, Mar. 1, 2019:   

https://www.rfa.org/english/news/china/kidnap-03012019112417.html 

 (5)  HK Government Press Release, Mar. 26, 2019: 

https://www.news.gov.hk/eng/2019/03/20190326/20190326_134406_382.html 

(6)  For the HK Bar Association’s critical April 2 assessment, see:  https://www.hkba.org/sites/default/files/HKBA%20Observations%20on%20FOMLACM%20Bill%202019%20%28Final%29.pdf

 

Posted by Suzanne Pepper on April 4, 2019 

hkfocus2017@gmail.com 

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