Grenville Cross praises the Security Bureau’s fugitive offender transfer plan that could stop HK being a safe haven for criminal suspects from other parts of China.

Although the Basic Law’s 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”, it has made no progress since reunification in establishing legal cooperation mechanisms with the rest of China. There are, therefore, no formal arrangements in place for the transfer of criminal suspects from one place to another, and fugitive offenders have managed to evade justice.  By contrast, Article 96 enables Hong Kong to “make appropriate arrangements with foreign states for reciprocal juridical assistance”, and this has resulted in 20 surrender of fugitive offender agreements, as well as 32 mutual legal assistance agreements in criminal matters, many of which have already been deployed in the combat of crime.

In 1998, the then secretary for security Regina Ip Lau Suk-yee announced that negotiations were due to start with Beijing on a rendition agreement with the Chinese mainland, and there were hopes of an early breakthrough, but nothing resulted. In 2007, Ip’s successor, Ambrose Lee Siu-kwong, said “we all hope negotiations will be resumed as soon as possible”, but again the process stalled. In 2014, then secretary for justice Rimsky Yuen Kwok-keung declared that negotiations with Macao over a fugitive offender transfer deal were at a “mature stage”, but they also came to nothing, apparently because of disagreement over the issue of retrospectivity.

Although there are significant differences between China’s various legal systems, with Hong Kong alone following the common law, the vacuum must be filled. An intolerable situation has resulted, from which only the criminals have benefited. In 2014, for example, two Hong Kong businessmen were each sentenced in Macao to five years three months’ imprisonment, for corruption and money laundering offenses, but they were able, in the absence of a rendition arrangement, to enjoy safe haven in Hong Kong. In 2018, moreover, after a Hong Kong woman was killed in Taiwan, her alleged murderer returned to Hong Kong, but could not be sent back to Taipei for trial.

The proposal by the Security Bureau to amend the Fugitive Offenders Ordinance — thereby enabling the transfer of fugitives on a case-by-case basis to places with which Hong Kong has no surrender arrangements, including the other parts of China — is clearly an important first step

Since 1997, Hong Kong has been able to rely on pre-existing administrative arrangements to secure the return of fugitive offenders from the mainland. These, however, are wholly dependent on mainland goodwill, which, while laudable, is no substitute for a formal mechanism. Although the mainland has returned approximately 200 criminal suspects to Hong Kong since reunification, Hong Kong cannot reciprocate, which must be a huge frustration for mainland law enforcers. After all, judicial cooperation is a two-way street, and if foreign countries are able to return fugitive offenders to the Chinese mainland, there can be no valid reason for Hong Kong not doing likewise.

In 2005, for example, Yu Zhendong, a Bank of China official accused of embezzlement in Guangdong province, was extradited to China from the United States. Again, in 2011, Lai Changxing, once China’s most wanted man, and accused of operating a smuggling operation in Xiamen which evaded 27.4 billion yuan ($4.1 billion) in import duty, was returned from Canada, after the Chinese government gave an assurance that, if convicted, he would not be executed. In 2018, in the first such case involving the European Union, Yao Jinqi, a county-level official from Zhejiang province, suspected of taking bribes, was arrested in Bulgaria, on the basis of an Interpol red notice, and, after a court hearing in Sofia, returned to China for trial.   

It is clearly unacceptable that, although Hong Kong has fugitive surrender procedures in place with, for example, Australia, India and the US, it has no rendition arrangements with the other parts of China. This situation not only undermines Hong Kong’s reputation as a place which is intolerant of crime, but it gives the rest of China the impression that it cannot be trusted to hold criminals to account and uphold the rule of law. This impasse must obviously be broken, and the proposal by the Security Bureau to amend the Fugitive Offenders Ordinance — thereby enabling the transfer of fugitives on a case-by-case basis to places with which Hong Kong has no surrender arrangements, including the other parts of China — is clearly an important first step.

The process will, however, be supervised by the courts, which will only ever approve a fugitive’s surrender if internationally recognized safeguards are satisfied. In particular, a surrender will not be approved if the alleged offense is political in nature, if the suspect will face the death penalty if convicted, or else cruel, inhuman or degrading treatment, if the purpose is to punish the suspect for his race, religion, nationality or ethnic origin, if the relevant law is not the same - or similar — in both places, if there is no guarantee that the suspect will not face additional charges upon his surrender, or if his surrender will result in the suspect being tried again for an offense upon which there has already an adjudication.

Rendition, moreover, will only be possible in respect of 46 specified offenses, all punishable with more than 12 months’ imprisonment in the place seeking the fugitive’s return. In addition, it will be the conduct of the wanted person that will determine whether the offense for which he is wanted is a rendition offense, and not the legal description of the offense.

The Security Bureau’s proposal must now be considered by the Legislative Council, where it will hopefully receive a fair wind. It is long overdue, and will help to resolve a situation which cries out for redress. Provided the necessary safeguards for suspects are observed, effective law enforcement must now be ensured throughout the whole of China. The situation in which criminal suspects can simply evade justice by moving to another part of the country would not be tolerated anywhere else, and it must not be countenanced here. The Security Bureau is to be commended for finally acting to bring this anomaly to an end.

The author is a Senior Counsel, a criminal justice analyst and former director of public prosecutions; he conducted the first extradition between Hong Kong and Macao in 1981-82.