Law enforcement agencies all over the world agree that crime, especially where corruption and fraud are concerned, has no borders. There are often extraterritorial implications, which require international cooperation for effective enforcement. Hence the United Nations Convention Against Corruption, which has a binding effect on all the signatory nations, devoted 19 out of the total of 71 articles to international cooperation. In particular Article 44 laid down obligations on extradition requests for corrupt offenders, Article 45 on the transfer of sentenced persons and Article 46 on mutual legal assistance.
Both China and US are signatories to the UNCAC, which is also applicable to Hong Kong Special Administrative Region. To discharge its obligations, the Independent Commission Against Corruption set up an international assistance section to provide mutual legal assistance to foreign jurisdictions on matters such as bank enquiries, taking witness statements, executing searches, seizures and freezing, tracing and recovering the proceeds of crime. The section has provided invaluable assistance to many foreign countries. When I retired from the ICAC in 2002, I received numerous letters of appreciation from the local representatives of the FBI, Royal Canadian Mounted Police, Australian Federal Police and many other foreign law enforcement bodies for the ICAC’s effective assistance during my tenure as head of operations department.
Thus, it is difficult for me to understand the rationale behind both the intention and the actions of the United Kingdom, Canada, Australia and New Zealand in unilaterally suspending their rendition agreements with Hong Kong on the pretext of Hong Kong’s implementation of the National Security Law even though everyone of them has their own security laws. The US has also signaled its intent to do so but has yet to formally follow through. None of those countries can pinpoint what is really wrong with the National Security Law, which only plugs the loopholes of Hong Kong’s legal framework on national security. It is manifestly designed to ensure social order, which will in turn improve the business environment and contribute to Hong Kong’s long-term prosperity and stability and the success of the “one country, two systems” formula.
What these Five Eyes nations are doing is a violation of various important international norms and proof of their hypocrisy and double standards, as some of their own national security laws are even more draconian than Hong Kong’s. Such a unilateral suspension of extradition agreement is also a grave violation of international law
What these Five Eyes nations are doing is a violation of various important international norms and proof of their hypocrisy and double standards, as some of their own national security laws are even more draconian than Hong Kong’s. Such a unilateral suspension of extradition agreement is also a grave violation of international law, including the UNCAC, United Nations Conventions against Transnational Organized Crime as well as basic norms governing international relations. It is immoral as it has the effect of telling the whole world that they are prepared to be a haven for all criminal fugitives from Hong Kong. It could also cost any of them the ability to bring fugitives to their home countries to face justice.
These nations claimed that they need to protect those people who might have violated the National Security Law from political persecution once they are extradited to Hong Kong. This runs counter to an important principle of international extradition, which is that political offences are not extraditable. Their suspension is clearly politically motivated in the context of the current China-US conflict widely touted as part of the new “Cold War”. But they apparently failed to think through the likely consequences, in particular the damage to their own countries in terms of law enforcement and impact on their security.
Just imagine the FBI investigating a major corruption case and since Hong Kong is an international financial center, there are likely to be illegal money transactions that have gone through Hong Kong or been hidden here. Their investigation would now be hampered as they could no longer benefit from the usual ICAC mutual legal assistance.
Even worse, the corrupt target could have sought refuge in Hong Kong and with the suspension of the extradition agreement, the target would be untouchable! He, or she, could well be openly enjoying life in Hong Kong with any ill-gotten wealth. Such a scenario is entirely possible, and indeed most likely in the not too distant future. Fugitives in the Five Eyes English-speaking nations should know that Hong Kong would make for a great safe haven where English is widely spoken and the city boasts all the modern conveniences and luxuries that money can buy.
Indeed, the United States has sought more extraditions from Hong Kong than the other way around. We have made 47 extraditions to the US between 2003 and 2012, according to the latest data available from the US Marshals Service. Hong Kong has an excellent track record on cooperation with US in rendition and we ranked 18th among 137 countries and regions that extradited or deported people to the United States. Washington has officially acknowledged Hong Kong’s contributions to American law enforcement in the past in their report to the US Congress, describing the law enforcement cooperation between the two jurisdictions as “a central pillar of US-Hong Kong relations”.
Many of these US fugitive cases were of great public concern. The head of a prostitution syndicate operating in northwest Indiana was extradited from Hong Kong in Dec 2013 and later sentenced to 30 years’ imprisonment. In another case, Hong Kong police assisted the FBI in the arrest and successful extradition of a fugitive called Joe Chen, who was wanted on a murder charge in San Francisco in February 2002. Would the US be content to let these fugitives hiding in Hong Kong escape scot-free, had there been no extradition agreement?
The rendition agreement is actually there to protect their own nationals. One useful aspect is to enable the US nationals convicted in Hong Kong to apply to serve their sentences in the US. Now with the suspension, they will be stuck in Hong Kong prisons.
Once the extradition agreement is suspended, Hong Kong will undoubtedly attract more fugitives from the US. There is a big pool of potential fugitives. In the past decade, corruption in the US has worsened and there have been 19,634 public corruption convictions. In 2018, 695 public officials and federal employees were convicted of public corruption. Just imagine the public outcry if these corrupt officials had sought refuge in Hong Kong.
The US is notorious for producing major fraudsters in the past. In 2001, there was the Enron bankruptcy scandal. The fraud involved the chief executive officer of this Houston-based commodities, energy and service corporation, which resulted in its shareholders losing to the tune of US$74 billion, with thousands of employees and investors losing their entire retirement fund. The irony of the case was the Fortune Magazine had earlier named Enron as “America’s most innovative company” for six years in a row prior to the scandal.
A second case involved Lehman Brothers, whose bankrupctcy filing was the biggest in US history during the subprime mortgage crisis in 2008. Its company executives hid over US$50 billion in loans disguised as sales. The cruel joke is that Lehman Brothers was once named the “Most admired securities firm” by Fortune magazine.
A third case involved highly respected financier Bernard Madoff, who was found to have tricked investors out of US$64.8 billion in 2008 by operating the largest Ponzi scheme in history.
The same is true in the UK, Canada, Australia and New Zealand which all have had their fair share of corruption and fraud scandals and an accompanying gallery of crooks and scoundrels. It would not take long for any of those figures to find an escape route to Hong Kong to evade justice. It would be interesting if this were to happen in the coming months during the US presidential election campaign. Undoubtedly it would cause a major public scandal and the Trump Administration might have to sheepishly beg Hong Kong to reinstate the rendition agreement.
The author is an adjunct professor of HKU Space and a council member of the Chinese Association of Hong Kong and Macao Studies. He is the former head of operations of the ICAC.
The views do not necessarily reflect those of China Daily.
