Although Hong Kong has signed agreements for the surrender of fugitive offenders with 20 countries, it still has no formal rendition arrangements with the Chinese mainland, Macao or Taiwan. While the Basic Law (Article 95) provides that Hong Kong may “maintain juridical relations with the judicial organs of other parts of the country, and they may render assistance to each other”, nothing substantive has been achieved since the reunification in 1997. This, of course, has been detrimental to effective law enforcement throughout the country.
In the absence of any rendition arrangements covering fugitive offenders, Hong Kong has had to rely on administrative mechanisms, whereby the mainland returns to Hong Kong criminal fugitives who are apprehended there. In 2019, it was reported that the mainland had, since 2006, returned 248 fugitives under this arrangement, which helped Hong Kong enormously. However, Hong Kong is unable to reciprocate, as it requires a formal arrangement underpinned by legislation.
But even if there was a rendition arrangement in place, the mainland authorities would not return a criminal suspect to Hong Kong if he or she was accused of having committed an offense there. This is because, where an offense is committed against the laws which prevail on both sides of the border, each side exercises concurrent jurisdiction, with the place which seizes the suspect enjoying priority. If, for example, the offense is planned on the mainland, but perpetrated in Hong Kong, the mainland authorities, if they caught the suspect, can try him for violating its own law, and then send him back to Hong Kong once its processing of the case has finally concluded.
In 1999, for example, when a Hong Kong resident, Cheung Tsz-keung, known as “Big Spender”, was alleged to have committed kidnappings as well as explosives offenses in Hong Kong, the mainland assumed jurisdiction after he was caught there. It did so on the basis that preparatory acts had occurred in Guangdong, including the planning of the crimes and the purchase of arms and ammunition for use in Hong Kong.
If, however, a Hong Kong resident commits an act on the mainland which is contrary to China’s criminal laws, he or she will be prosecuted there in the normal way, as will any foreigner. But, with Hong Kong, different considerations apply to offenses occurring there. This is because the PRC Criminal Law (Article 6 (1)) states it “shall be applicable to anyone who commits a crime within the territory and territorial waters and space of the People’s Republic of China, except as otherwise specifically provided by law”. So, while anybody who commits an offense in China is prosecutable there, irrespective of where they come from, the exception covers the Basic Law’s Article 19, which gives the courts of Hong Kong “jurisdiction over all cases in the region”. This means that, if someone commits an offense in Hong Kong which is contrary to Hong Kong law, the case should be tried there, and not elsewhere in China, subject, of course, to concurrent jurisdiction.
On Aug 23, the China Coast Guard intercepted a speedboat in Shenzhen waters with 12 criminal suspects on board, en route to Taiwan, where they were apparently hoping to obtain political asylum. At least one of them had previously been arrested in Hong Kong for suspected collusion with foreign powers, contrary to the National Security Law for Hong Kong, while others were facing trial for various protest-related crimes, including arson, making and possessing explosives, and conspiracy to wound with intent. They were, therefore, trying to escape justice.
Illegal entry into China is a crime, punishable with up to one year’s imprisonment, although this can be increased to three years if there is a terrorist dimension. The authorities will now be investigating the extent of the criminality of each suspect, which will undoubtedly include such things as their motives, their finance, and the extent of their liaison with outside forces. This, however, may not be all, as the foreign ministry’s spokeswoman, Hua Chunying, on Sept 13, described the fugitives as “elements attempting to separate Hong Kong from China”. This suggests that other offenses are under consideration, and there are two possible explanations for this.
In the first place, the PRC Criminal Law (Article 6) provides that even if a crime occurs elsewhere, China can assert its own jurisdiction over the case if a consequence of the crime takes place in its territory or on its waters. If, therefore, criminal offenses have occurred in Hong Kong, whether involving national security, public order or general crime, and which might also include conspiring with hostile forces in Taiwan to facilitate unlawful escapes, the subsequent illegal entry into Shenzhen waters, as an attempt to evade culpability, might be said to be a consequence of those offenses, meaning the offenses thereby become justiciable on the mainland.
The PRC National Security Law 2015 (Article 15 (2)), moreover, makes “lawfully punishable conduct that betrays the country”, which again could cover some of the suspects.
A second possibility, only conjecture at this stage, is that the Shenzhen investigators are also examining the conduct of the fugitives prior to June 30, when the National Security Law for Hong Kong was enacted. Whereas, under the Basic Law (Article 19), the courts in Hong Kong exercise jurisdiction over cases arising under the National Security Law for Hong Kong, this does not extend to secessionist activity committed prior to June 30, as the law is not retrospective. Before June 30, there was a legal void, and secessionist activity was not prosecutable locally. The PRC National Security Law 2015 did not apply in Hong Kong, given that it is not one of the national laws listed in the Basic Law’s Annex III (Article 18), and prosecutions under it were therefore barred.
This, however, may not provide immunity for someone who violates a national law in Hong Kong and then goes to the mainland. Although not yet tested, it is certainly arguable that somebody in that situation is prosecutable for having breached a national law while in Hong Kong. After all, the PRC Criminal Law (Article 7) provides extraterritorial jurisdiction over crimes committed by Chinese nationals outside its territory. This, in the absence of a criminal law which enables the Hong Kong courts to try a particular crime, appears to leave open the possibility of the mainland handling the case itself if a suspect who breaks a national law in Hong Kong is later arrested within its jurisdiction. This may explain why the fugitives have been described as secessionists, and suggests that some very serious charges may now be in the offing.
After this episode, lessons must be learned. The courts will have to impose far more realistic bail conditions on accused persons, while the police will need to step up their maritime patrols and strengthen intelligence gathering. Those considering flight must, moreover, understand that they face real dangers, and may end up being charged with extra offences in different places. Although anti-China forces elsewhere have sought to make political capital out of the arrests, the big losers here are those who thought there was an easy way out of the situation they had themselves created. Justice, as they have found out the hard way, does not like being cheated.
The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.
HONG KONG NEWS