Hong Kong's Extradition Controversy: Adjudicating Jurisdiction Under "One Country, Two Systems"
ARTICLE by Hubert Ning
VOLUME VIII ISSUE I
In the bright skyscraper lights, among the city sounds and urban hustle, exists the beating heart of democracy in East Asia—Hong Kong. Maintained under the “one country, two systems” principle, Hong Kong has conserved governing autonomy by separating its political and economic systems from those of mainland China since 1997.1 Under Article 31 of the Constitution of the People’s Republic of China, Hong Kong is one of China’s two special administrative regions (SARs).2 Despite categorization as provincial-level administrative districts under China’s realm, these regions possess the highest degree of autonomy possible and are granted liberties such as the right to vote and the freedom of speech, unlike their counterparts.3 However, unlike other Chinese provinces, Hong Kong remains free from direct Communist Party control. With its executive, legislative, and judicial powers devolved from China’s national government, Hong Kong serves as a safe haven for democracy. This democratic model houses seven million individuals who breathe life into the freedoms and civil liberties which separate Hong Kong from mainland China and democracy from subjugation.
The introduction of Hong Kong’s extradition bill threatened this democratic model. It laid out new provisions and amendments to current Hong Kong extradition laws and treaties, which would have allowed mainland China to extradite individuals whenever they saw fit. International and domestic backlash filled the streets, courts, forums, and social media. Questions of the bill’s legality created virulent discourse among legal scholars and bureaucratic officials arguments its ethical implications. A factor of intense discourse
stemmed from the increased the risk of torture and ill-treatment for extradited individuals.
Hong Kong serves as a model of a fair and equitable legal system; the principle of equality before the law reverberates through every courtroom’s halls and resonates in the hearts of every lawyer and judge. Regardless of crime, the cost of delivering justice should not be equated with perpetrating injustice. Criticism of Hong Kong’s extradition bill speaks to protect the values, core principles, and ideals that have separated Hong Kong from mainland China for over 100 years. Even though the extradition bill did not pass, it is important to recognize how the bill would have threatened Hong Kong’s democratic liberties and to look into the implications the bill would have had on extradition law.4
Legal scholars describe China’s criminal process as “plagued by deep flaws, including the lack of an independent judiciary, arbitrary detention, lack of fair public trial, lack of access to legal representation and poor prison conditions.”5 Additionally, as codified in mainland China’s legal system, courts do not enforce precedents in their judicial interpretations.6 The system allows for vast interpretation with no accountability from previous decisions, allowing judges to maneuver legal interpretation on a case-by-case basis to benefit government motives. Meanwhile, residents under Hong Kong’s legal system, a hallmark of autonomy, enjoy rights not found in mainland China. Article 35 of the Basic Law guarantees access to courts, a right to confidential legal advice, universal choice of lawyers, legal aid, and an independent judiciary with the power of final adjudication to Hong
Kong residents.7 As a result, Hong Kong arguably has the oldest equitable contemporary justice system in Asia, serving as the premier model for impartiality in the Pacific East.
The complicated relationship between Hong Kong and China extends beyond legal and administrative systems and into politics, laws, trade, economies, and people. With different cultures, viewpoints, and verbal dialect, Hong Kong residents do not consider themselves Chinese. The century-long separation between the two created greater cultural gaps that cannot easily be bridged. Naturally, any attempt to merge the two entities, whether bureaucratically or culturally, will be met with friction.
II. The Extradition Bill
In February 2018, Hong Kong resident Chan Tong-Kai allegedly murdered his pregnant girlfriend, Poon Hiu-wing, in Taiwan. However, upon Chan’s return to Hong Kong, the police could not charge him with murder or extradite him to Taiwan.8 Under normal circumstances, the Hong Kong government would have referred to the Fugitive Offenders Ordinance (FOO) and the Mutual Legal Assistance in Criminal Matters Ordinance (MLAO). The two Hong Kong ordinances, however, were not codified to open requests for surrendering fugitives to Taiwan. Beside these two ordinances, Hong Kong has no mutual legal assistance nor any formal extradition treaty between itself and other extraterritorial regions, including mainland China.9
Without the ability to legally charge Chan for the murder, the Hong Kong government only punished Chan for money laundering, as he had used Poon’s debit card to pay off credit bills and loans after her
death.10 One year after the murder, Hong Kong proposed amendments to the FOO and MLAO. It wished to establish a legal apparatus known as special case arrangements: the ability to transfer fugitives to any jurisdiction on a case-by-case basis, regardless of whether or not there is a pre-existing formal extradition treaty. To accomplish this goal, Hong Kong proposed seven key provisions, which summed to applying special case arrangements to Hong Kong fugitives and expanding its coverage to 37 of the 46 existing offenses described under FOO.11
These provisions came to be known as the “Hong Kong Extradition Bill.” Beijing’s involvement with the proposed bill has raised concerns, both domestically and abroad, from legal professions, journalists, business groups, and foreign governments. Opponents feared the erosion of Hong Kong’s autonomous legal system and safeguards, arguing that Hong Kong would open itself to control of mainland Chinese law and put its residents at risk of authoritative scrutiny. Opponents also urged Hong Kong to establish an extradition arrangement with only Taiwan and cease the arrangement after surrendering Chan.12
III. Principles of Extradition Law
Extradition is the process by which states, upon requests from another, return accused individuals for trials of punishable crimes committed outside jurisdictional bounds of the requesting state. Principles of criminal law restrict penal law to states’ territorial boundaries; however, in an effort to reduce crime, states form treaties
to deliver fugitives and accused criminals to justice. In general, extradition is regulated internationally through diplomatic treaties and domestically through internal extradition acts. Extradition acts, by international standard, specify extraditable crimes, explicate extradition procedures, clarify safeguards and liberties, and provide the relationship between the acts and pre-existing diplomatic extradition treaties. Many countries only grant extradition to countries with pre-existing relations or agreements on the transferring of fugitives. In China, extradition only exists between 58 different nations it has had good relations with.13 The United States, Britain, and Argentina extradite nationals only if the governing diplomatic treaty authorizes such action.14 Many states ignore obligations to surrender their citizens to another country. For example, until 1997, Slovenia and Colombia did not allow the extradition of their own nationals, regardless of pre-existing extradition treaties.
Double criminality, the principle of specificity, and the right to asylum are other elements embedded within most extradition acts and treaties. Double criminality stipulates that the purported crime for which extradition is sought for must be a criminal offense in both countries of the shared treaty. The principle of specificity claims that the demanding state can prosecute the extradited fugitive only for the criminal offenses for which extradition was granted. The principle of specificity is closely tied to the right to asylum, which protects individuals from ulterior political motives from state governments. If demanding states were to try fugitives for an offense which suits the purpose of the government, extradition could be used as a political weapon to fulfill the needs of the state rather than to equate justice.15
IV. Hong Kong’s Extradition Bill in Relation to International Norms
The unique relationship between China and Hong Kong differentiated the Hong Kong Extradition Bill from most intrastate extradition treaties. As one of China’s SARs, Hong Kong possesses both near governmental and legal autonomy, thereby granting itself a completely different administrative and legal system. Being more akin to a separate state, Hong Kong and its bill compare more suitably with international extradition standards.
The bill included 37 types of crimes extraditable to mainland China, including vague crimes such as “unlawful use of computers,” “environmental pollution,” and “fiscal matters.”16 The ambiguity of these categories allowed for broad interpretations at the Chinese government’s convenience, including the unlawful prosecution of a citizen.17 The bill’s ambiguity also jeopardized the principle of specificity. Vague crimes listed under the bill lacked specificity and failed to provide accountable provisions for the exact codified penal crime that was committed. With the chance of individuals being tried for crimes not originally extradited for, Hong Kong’s bill failed international extradition law standards and risked being manipulated into a political weapon. Before the bill was introduced, some political fugitives of the Chinese mainland government treated Hong Kong as an asylum, both as a safe haven and a check on China’s political overreach.18
Since the 1989 Tiananmen Square pro-democracy protest, China has consistently jailed its political opponents.19 Those with
contradicting political ideologies, such as Liu Xiaobo, Qin Yongmin, and a slew of other lawyers, journalists, and bloggers are still targeted by China today.20 With this extradition bill, mainland China’s government could have produced a retrospective view of criminality, endangering its political opponents and everyone else within its jurisdiction, which would have extended to Hong Kong.21 Ultimately, due to the threat of retrospectivity, individuals who escaped to Hong Kong would have lived in fear of extradition as Hong Kong lost its asylum status.
V. The Threat Against Hong Kong’s Autonomy
While unable to directly jeopardize Hong Kong’s right to vote, the extradition bill threatened Hong Kong residents’ freedom of speech and protections against unlawful persecution. The bill would have allowed China’s government to extradite individuals deemed political threats, hushing any voice that seems damaging to the state’s reputation. Major political activists such as Yang Maodong, Liu Xiaobo, and Anastasia Lin were all arrested and sentenced by the Chinesegovernment for promoting speaking out against government policies and practices.22 The danger of speaking against the mainland government and the threat of extradition quiets the voices wishing to take a stand. The bill nullified the liberties guaranteed in Article 27 of Hong Kong’s Basic Law, which allows for the freedom of expression, speech, belief, and thought. Ultimately, the bill almost entirely shifted Hong Kong’s democractic climate from where it stands today.
VI. Recent Criticisms and Confrontations
Within Hong Kong’s government, the proposed extradition bill raised concerns among pro-business parties. The Business and Professionals Alliance for Hong Kong (BPA) and the Liberal Party fought to exempt themselves from 15 of the 46 criminal offenses under the extradition proposal.23 A strategic location, productive workforce, stable economic environment, and lucrative tax-regimes give Hong Kong a world-class infrastructure attractive to corporations across the globe.24 The bill jeopardized Hong Kong’s status as a safe haven for multinational corporations. From a domestic standpoint, the extradition bill produced fear that it would destroy freedoms businesses in Hong Kong have grown to expect. From an international standpoint, the extradition bill would have impeded foreign investment due to the fear that preexisting structures, such as the current tax regime, would fall apart.25 Many businesses sign contracts with China under a common contractual provision that resolves disputes under Hong Kong’s preexisting laws, not mainland China’s. The vast skewness of power from officials of the mainland legal system deters individuals and companies from wanting to do business within Chinese regulations. The Hong Kong Bar Association raised concerns from legal and ethical standpoints, arguing that the preexisting lack of application for extraditing fugitives to mainland China was intentional. It existed because of the fundamental differences in each justice system and the lack of protection for fundamental rights in mainland China.26Seemingly, the guarantee of civil liberties and rights under Hong Kong’s Basic Law—the hallmark expectations separating mainland China’s legal system from Hong Kong’s—were being eroded
and thrown into a collision course with no avail from the city’s government.27
As an extension of the Hong Kong Bar Association, the Law Society of Hong Kong also released a review on the extradition bill that questioned both the lack of additional requirements on proof-of- evidence for extradition and the non-admissibility of additional evidence against extradition. Removing the chance to admit evidence against extradition and facilitating the extradition process, the bill highlighted the lack of protection and resources individuals have to prove their innocence. Without an equitable methodology with the presumption of innocence at the forefront, the extradition bill undermined the safety and protections individuals should be guaranteed by governments. These notes justify that Hong Kong should hold a comprehensive review of the current legal assistance and fugitive extradition systems instead of rushing to propose the retracted legislation. Without these steps, lines that once clearly distinguished Hong Kong’s legal system from China’s will soon blur.
Hong Kong’s government devolved into an unprecedented bipartisan split after the extradition bill’s introduction, and it reflected in the international sphere. While mainland government officials publicly endorsed the bill, both local and international governments and opposition groups openly declare their opposition.28 Ranging from U.S. senators and house representatives to European Union representatives, international powers continue to express that the extradition bill would have irreparably damaged Hong Kong’s autonomy and protection of human rights.29 British Foreign Secretary Jeremy Hunt and Canadian Minister of Foreign Affairs Chrystia
Freeland voiced their concerns about the potential effects of the bill on the United Kingdom and Canadian citizens residing in Hong Kong.30
Because of this backlash, Hong Kong’s Secretary of Security John Lee proposed new measures to amend the bill, including safeguards in line with common human right protections, such as the presumption of innocence, open trials, legal representation, the right to appeal, and freedom from coerced confessions.31 The new bill also appropriated post surrender means and arrangements and raised the threshold for applicable offenses from three to seven or more years.
On paper, these concessions met many of the opposition’s demands; however, legal scholars and pro-democrats argued that Lee’s proposal still failed to guarantee fair treatment and complete human rights protection for extradited fugitives.32 Lee refused to embed additional safeguards against torture, ill-treatment, detention in poor conditions for indefinite periods, and other human rights violations, claiming he confidently believes Chinese authorities will guarantee fair treatment as promised—regardless of whether protection clauses existed in the bill.33 Hong Kong lawyers also expressed their reservations about the impartiality of mainland China’s justice system, the prevalence of torture, and Hong Kong citizens’ limited access to lawyers. What began as a legal loophole in Hong Kong’s extradition policies expanded into a battle of life and death regarding civil liberties and human rights.
VII. The Viability of Other Legal Solutions
When the bill was initially introduced, opponents urged Hong Kong to establish a temporary extradition arrangement with Taiwan and cease the arrangement after Chan’s surrender.34 Extending this relationship and forming an extradition treaty exclusively with Taiwan would have ensured justice and prevented situations like Chan’s in the future. Though the difficulty of ensuring such change is an entirely different subject, highlighting these legal matters will help establish the necessary foundations for a more viable solution than the now-retracted bill.
Extradition exists to promote justice and reduce criminal activity. A new extradition agreement should not ruin the foundations of democracy; it should instill new roots and growth into a government such as Hong Kong’s. The extradition bill deceptively used standard international provisions, such as double criminality and the principle of specificity, to hide the political weapon that it could have become. The ambiguity of the crimes listed under the provision led to a vast range of interpretation with no real legal provisions by which to hold individuals accountable. That, along with the lack of enforceability of judicial precedent in mainland China’s legal system, results in a case-by-case prosecution to however the Chinese government sees fit.
Possible solutions to the bill involve truly enforcing principles of double criminality and specificity by ensuring legal provisions precisely define when to extradite fugitives. Being able to point to specific codified laws as evidence of extradition would raise a new extradition bill closer to international norms for extradition laws. Another solution includes establishing enforceability for legal precedent in mainland China’s legal system. As previously mentioned, without legal precedent, trials and prosecutions become a case-by-case phenomenon reliant upon the government’s self-interested discretion.
Some form of enforceability could establish an equitable justice system that promotes impartiality and due process. Extradition would then be used less as a political weapon and instead as a mechanism for perpetuating equality before the law.
VIII. Two Countries; Two Systems
The extradition bill would have shattered protections and liberties granted by Hong Kong’s Basic Law and ultimately changed Hong Kong’s legal system. Since March 2019, protests by Hong Kong residents have escalated to historical numbers. Millions have both peacefully expressed their reservations and clashed with Hong Kong police.35 Protestors issued five demands: total withdrawal of the extradition bill; a commission inquiry into alleged police brutality; retraction of the classification of protestors as rioters; amnesty for arrested protestors; and universal suffrage and direct elections for the legislative council and chief executive.36 After months of internal strife, external conflict, foreign intervention, domestic rallies, and partisan politics, the legislative council moved to withdraw the bill on Oct. 23, 2019. Yet, the bill’s death is not the end.
In an effort to protect their own legal system, freedom of expression, voice, and democracy, the people of Hong Kong have taken to the streets, courts, and legislature to fight. On the surface, the extradition bill started a battle of mutual legal assistance and extradition treaties, but at its core, it is a battle to retain freedom of speech, press, demonstration, movement, conscience, and so many more basic human rights and liberties. Though the Hong Kong government formally withdrew the bill, the people of Hong Kong—and the people of the world—cannot forget the encroachment Hong Kong faced and nearly fell victim to.
1 The Central People’s Government of the People’s Republic of China, 中华人民共 和国行政区划 [Administrative Divisions of the People’s Republic of China],
GOV.ᴄɴ (June 15, 2005), http://www.gov.cn/test/2005-06/15/content_18253.htm.
3 Hᴏɴɢ Kᴏɴɢ Bᴀsɪᴄ Lᴀᴡ, ch. 3, art. 31.
4 Jessie Pang & Twinnie Siu, Hong Kong Extradition Bill Officially Killed, but More Unrest Likely, Rᴇᴜᴛᴇʀs, Oct. 23, 2019, available at https://www.reuters.com/article/ us-hongkong-protests/hong-kong-extradition-bill-officially-killed-but-more-unrest- likely-idUSKBN1X20OF.
5 Jeffie Lam, Extradition agreement with mainland China would damage Hong Kong's 'safe reputation' for business, AmCham says, Sᴏᴜᴛʜ Cʜɪɴᴀ Mᴏʀɴɪɴɢ Pᴏsᴛ, March 6, 2019, available at https://www.scmp.com/news/hong-kong/politics/article/ 2188915/extradition-agreement-mainland-china-would-damage-hong-kongs.
6 Library of Congress, Legal Research Guide: China, Lɪʙʀᴀʀʏ ᴏꜰ Cᴏɴɢʀᴇss (May 3, 2012), https://www.loc.gov/law/help/legal-research-guide/china.php.
7 Hong Kong Basic Law, ch.3, art. 35.
8 Agence France-Presse, Taiwan Won't Ask for Murder Suspect If Hong Kong Passes
'Politically Motivated' Extradition Law, Hᴏɴɢ Kᴏɴɢ Fʀᴇᴇ Pʀᴇss (May 10, 2019),
10 Jasmine Siu, ‘Body folded in suitcase’: gruesome details emerge of Hong Kong man’s killing of pregnant girlfriend in Taiwan, Sᴏᴜᴛʜ Cʜɪɴᴀ Mᴏʀɴɪɴɢ Pᴏsᴛ, April 13, 2019, available at https://www.scmp.com/news/hong-kong/law-and-
11 Press Release, The Government of the Hong Kong Special Administrative Region, Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 to be submitted to LegCo (March 26, 2019), available a thttps://www.info.gov.hk/gia/general/201903/26/P2019032600708.htm.
12 Christy Leung, Extradition bill not made to measure for mainland China and won't be abandoned, Hong Kong leader Carrie Lam says, Sᴏᴜᴛʜ Cʜɪɴᴀ Mᴏʀɴɪɴɢ Pᴏsᴛ, April 1, 2019, available at https://www.scmp.com/news/hong-kong/politics/article/
13 The Central People’s Government of the People’s Republic of China, 条约与协定 汇总 [Summary of Treaties and Agreements], GOV.ᴄɴ (n. d.), http://www.gd.jcy.gov
14 The Editors of Encyclopaedia Britannica, Extradition, Eɴᴄʏᴄʟᴏᴘᴀᴇᴅɪᴀ Bʀɪᴛᴀɴɴɪᴄᴀ (n. d.), https://www.britannica.com/topic/extradition.
15 Leung, supra note 12
16 Elise Mak, HK Effort to Ease Extradition Law Concerns Fall Short; Many Rendition Routes to China Remain, Hᴀʀʙᴏᴜʀ Tɪᴍᴇs (April 23, 2019), https:// harbourtimes.com/2019/04/23/hk-effort-to-ease-extradition-law-Concerns-fall- short-many-rendition-routes-to-china-remain/.
17 Kris Cheng, Hong Kong Scraps 9 Types of Commercial Crimes from China Extradition Plan amid Pressure from Business Sector, Hᴏɴɢ Kᴏɴɢ Fʀᴇᴇ Pʀᴇss (March 26, 2019), https://www.hongkongfp.com/2019/03/26/hong-kong-scraps-9- types-commercial-crimes-china-extradition-plan-amid-pressure-business-sector/. 18 Id.
19 Arch Puddington, China: The Global Leader in Political Prisoners, Fʀᴇᴇᴅᴏᴍ Hᴏᴜsᴇ (July 26, 2018), https://freedomhouse.org/blog/china-global-leader-political- prisoners.
22 Te-Ping Chen, China Sentences Free-Speech Activist to Six Years in Prison, Wᴀʟʟ Sᴛ. J., Nov. 27, 2015, available at https://www.wsj.com/articles/china-sentences- free-speech-activist-to-six-years-in-prison-1448617679.
23 Kimmy Chung, Jeffie Lam, & Alvin Lum, Ex-Hong Kong chief secretary Henry Tang and Exco member Jeffrey Lam join business sector in criticising extradition deal with mainland China, Sᴏᴜᴛʜ Cʜɪɴᴀ Mᴏʀɴɪɴɢ Pᴏsᴛ, March 7, 2019, available at https://www.scmp.com/news/hong-kong/law-and-crime/article/2189080/security- minister-wont-back-down-extradition-agreement.
24 Hawksford, Why Run Your Business in, or from, Hong Kong?, GᴜɪᴅᴇMᴇHᴏɴɢKᴏɴɢ (n. d.), https://www.guidemehongkong.com/why-hong-kong. 25 Don Pittis, Why China Might Be Willing to Sacrifice Hong Kong's Economy: Don Pittis, CBC Nᴇᴡs (Oct. 1, 2014), https://www.cbc.ca/news/business/why-china- might-be-willing-to-sacrifice-hong-kong-s-economy-don-pittis-1.2784555.
26 CitizenNews Reader, Observations of the Hong Kong Bar Association on the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019, CɪᴛɪᴢᴇɴNᴇᴡs (April 4, 2019), https://www.hkcnews.com/ article/19529/bar_association-fugitives_bill-19529/observations-of-the-hong-kong- bar-association-on-the-fugitive-offenders-and-mutual-legal-assistance-in-criminal- matters-legislation-amendment-bill-2019.
28 James Pomfret, EU lodges formal diplomatic note against contentious Hong Kong extradition bill, Rᴇᴜᴛᴇʀs, May 24, 2019, available at https://www.reuters.com/ article/us-hongkong-extradition-eu/eu-lodges-formal-diplomatic-note-against- contentious-hong-kong-extradition-bill-idUSKCN1SU0OS.
29 Holmes Chan, More int'l criticism of Hong Kong's controversial extradition bill, as legislature caves to gov't demands, Hᴏɴɢ Kᴏɴɢ Fʀᴇᴇ Pʀᴇss (May 25, 2019), https://
30 Press Release, Jeremy Hunt & Chrystia Freeland, Proposed extradition law changes in Hong Kong: UK and Canada joint statement (May 30, 2019), available at https://www.gov.uk/government/news/uk-and-canada-joint-statement-on-hong-kong. 31 The Government of the Hong Kong Special Administrative Region, LCQ2: Human rights safeguards under Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019, GᴏᴠHK (June 5, 2019), https://www.info.gov.hk/gia/general/201906/05/P2019060500760.htm.
32 Alvin Lum et al., Hong Kong extradition bill: security chief announces safeguards to win support of major business groups and political allies, Sᴏᴜᴛʜ Cʜɪɴᴀ Mᴏʀɴɪɴɢ Pᴏsᴛ, May 30, 2019, available at https://www.scmp.com/news/hong-kong/politics/ article/3012498/hong-kong-security-chief-john-lee-rolls-out-new-measures.
33 Jeffie Lam, Hong Kong extradition bill: security chief John Lee says he expects Beijing to keep its promises on human rights safeguards, Sᴏᴜᴛʜ Cʜɪɴᴀ Mᴏʀɴɪɴɢ Pᴏsᴛ, June 2, 2019, available at https://www.scmp.com/news/hong-kong/politics/ article/3012778/hong-kong-extradition-bill-security-chief-john-lee-says-he.
34 Christy Leung, Extradition bill not made to measure for mainland China and won't be abandoned, Hong Kong leader Carrie Lam says, Sᴏᴜᴛʜ Cʜɪɴᴀ Mᴏʀɴɪɴɢ Pᴏsᴛ, April 1, 2019, available at https://www.scmp.com/news/hong-kong/politics/article/ 3004067/extradition-bill-not-made-measure-mainland-china-and-wont.
35 Annie Li et al., Almost 2 Million Protesters Hit Hong Kong Streets, Bʟᴏᴏᴍʙᴇʀɢ, June 16, 2019, https://www.bloomberg.com/news/articles/2019-06-16/protests-swell -as-hong-kong-rejects-leader-s-compromise.
36 Wong Tsui-kai, Hong Kong Protests: What Are the 'Five Demands'? What Do Protesters Want?, Sᴏᴜᴛʜ Cʜɪɴᴀ Mᴏʀɴɪɴɢ Pᴏsᴛ, Aug. 20, 2019, available at https:// yp.scmp.com/hongkongprotests5demands.