2019 Hong Kong extradition bill

Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019
Legislative Council of Hong Kong
Long title A Bill to amend the Fugitive Offenders Ordinance so that the Ordinance applies to special surrender arrangements once they are made between Hong Kong and any other place in relation to particular circumstances not covered by surrender arrangements of a general nature; to provide that in relation to special surrender arrangements, the scope of the offences covered for a surrender from Hong Kong is limited to 37 items of offences, on the basis of their existing descriptions in the Ordinance only, that currently apply in relation to surrender arrangements of a general nature; and to provide that documents authenticated in accordance with surrender arrangements that are prescribed arrangements are deemed as duly authenticated; to amend the Mutual Legal Assistance in Criminal Matters Ordinance so that the Ordinance applies to requests for assistance between Hong Kong and any other place; and to provide that a request for assistance in a criminal matter covered by bilateral arrangements for mutual legal assistance made between Hong Kong and any other place that are prescribed arrangements may only be made pursuant to the arrangements.
Considered by	Legislative Council of Hong Kong
Legislative history
Introduced by	Secretary for Security John Lee
Introduced	29 March 2019
First reading	3 April 2019
Related legislation
Fugitive Offenders Ordinance Mutual Legal Assistance in Criminal Matters Ordinance
Status: Pending

The Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 (Chinese: 2019年逃犯及刑事事宜相互法律協助法例 ( 修訂 ) 條例草案) is a proposed bill regarding extradition to amend the Fugitive Offenders Ordinance (Cap. 503) in relation to special surrender arrangements and the Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525) so that arrangements for mutual legal assistance made between Hong Kong and any place outside Hong Kong. The bill was proposed by the Hong Kong government in February 2019 to request for surrender of a Hong Kong suspect in a homicide case in Taiwan. The government proposed to establish a mechanism for transfers of fugitives not only for Taiwan, but also for Mainland China and Macau that are not covered in the existing laws.

The introduction of the bill caused the legal profession, journalist organisations and business groups, and foreign governments to fear the erosion of Hong Kong's legal framework and its business climate. They were concerned about heightened risk that individuals, including foreign nationals passing through the city, could be sent for trial to mainland China, where courts are under the political control. The Taiwan authorities also stated it would not enter into any extradition agreement with Hong Kong on grounds that Taiwanese citizens would be at greater risk of being extradited to Mainland China under the proposed bill. The government's rush to implement the legislation to extradite also gave rise to a precedent to short-circuit procedural safeguards in the Legislative Council.

Background

In early 2018, a 19-year-old Hong Kong resident Chan Tong-kai allegedly killed his pregnant girlfriend Poon Hiu-wing in Taiwan, and returned to Hong Kong. Chan admitted to Hong Kong police that he killed Poon but the police were unable to charge him for murder or extradite him to Taiwan because no agreement is in place. Up until May 2019, the two ordinances in Hong Kong, the Fugitive Offenders Ordinance and Mutual Legal Assistance in Criminal Matters Ordinance, were not applicable to the requests for surrender of fugitive offenders and mutual legal assistance between Hong Kong and Taiwan. Therefore the Hong Kong government does not have any legislation enabling it to extradit the suspect to Taiwan. In February 2019, the government proposed changes to fugitive laws, establishing a mechanism for case-by-case transfers of fugitives by the Hong Kong Chief Executive to any jurisdiction with which the city lacks a formal extradition treaty.

Provisions

The key provisions of the bill are as follows:
In the Fugitive Offenders Ordinance (FOO) (Cap. 503):

1. To differentiate case-based surrender arrangements (to be defined as "special surrender arrangements" in the proposal) from general long-term surrender arrangements;
2. To stipulate that special surrender arrangements will be applicable to Hong Kong and any place outside Hong Kong, and they will only be considered if there are no applicable long-term surrender arrangements;
3. To specify that special surrender arrangements will cover 37 of the 46 items of offences based on their existing description in Schedule 1 of the FOO, and the offences are punishable with imprisonment for more than three years and triable on indictment in Hong Kong. A total of nine items of offences will not be dealt with under the special surrender arrangements;
4. To specify that the procedures in the FOO will apply in relation to special surrender arrangements (except that an alternative mechanism for activating the surrender procedures by a certificate issued by the Chief Executive is provided), which may be subject to further limitations on the circumstances in which the person may be surrendered as specified in the arrangements;
5. To provide that a certificate issued by or under the authority of the Chief Executive is conclusive evidence of there being special surrender arrangements, such that the certificate will serve as a basis to activate the surrender procedures. Such activation does not mean that the fugitive will definitely be surrendered as the request must go through all statutory procedures, including the issuance of an authority to proceed by the Chief Executive, the committal hearing by the court and the eventual making of the surrender order by the Chief Executive. Other procedural safeguards, such as application for habeas corpus, application for discharge in case of delay, and judicial review of the Chief Executive's decision, as provided under the FOO will remain unchanged;

And in the Mutual Legal Assistance in Criminal Matters Ordinance (MLAO) (Cap. 525):

1. To lift the geographical restriction on the scope of application of the Ordinance; and
2. To provide that case-based co-operation premised on the undertaking of reciprocity will be superseded by the long-term MLA arrangements once the latter have been made and become effective.

Concerns and opposition

Opposition expressed fears about the legislation that the city would open itself up to the long arm of mainland Chinese law and that people from Hongkong could fall victim to a different legal system. It therefore urged the government to establish an extradition arrangement with Taiwan only. The business community also raised concerns over the mainland's court system. The American Chamber of Commerce (AmCham) criticised that mainland's "criminal process is plagued by deep flaws, including lack of an independent judiciary, arbitrary detention, lack of fair public trial, lack of access to legal representation and poor prison conditions". The Liberal Party and the Business and Professionals Alliance for Hong Kong, the two pro-business parties, suggested 15 economic crimes being exempted from the 46 offences covered by the extradition proposal. The government responded to business chambers' concerns by exempting nine of the economic crimes originally targeted. Only offences punishable by at least three years in prison would trigger the transfer of a fugitive, up from the previously stated one year.

The Hong Kong Bar Association released a statement expressed its reservation over the bill, saying that the restriction against any surrender arrangements with mainland China was not a "loophole", but in light of the fundamentally different criminal justice system operating in the Mainland and concerns over the Mainland's track record on the protection of fundamental rights. The association also raised concern over the accountability of the Chief Executive becoming the only arbitrer of whether a special arrangement is to be concluded with a requesting jurisdiction without negative vetting by the Legislative Council or expanding the role of the courts in vetting extradition requests.

Thousands of protesters marched on the street against the proposed extradition law on 28 April 2019.

Three human rights groups, the Amnesty International, Hong Kong Human Rights Monitor, and Human Rights Watch opposed the bill, warning the extradition proposal could be used as a tool to intimidate critics of the Hong Kong or Chinese governments, peaceful activists, human rights defenders and could further expose those extradited to risks of torture or ill-treatment. In a joint statement issued alongside other journalists unions and independent media outlets, the Hong Kong Journalists Association said the amendment "[would] not only threaten the safety of journalists but also have a chilling effect on the freedom of expression in Hong Kong."

Although Taiwan authorities attempted to negotiate directly with the Hong Kong government to work out a special arrangement, the Hong Kong government did not respond. Taipei also stated it would not enter into any extradition agreement with Hong Kong that defined Taiwan as part of the People’s Republic of China. It opposed the proposed bill on grounds that Taiwanese citizens would be at greater risk of being extradited to Mainland China. "Without the removal of threats to the personal safety of [Taiwan] nationals going to or living in Hong Kong caused by being extradited to mainland China, we will not agree to the case-by-case transfer proposed by the Hong Kong authorities," said Chiu Chui-cheng, deputy minister of Taiwan’s Mainland Affairs Council. He also described the Taipei murder case as an "excuse" and questioned whether Hong Kong government’s legislation was "politically motivated". He added that Taiwanese people feared ending up like Lee Ming-che, a democracy activist who disappeared on a trip to the Chinese mainland and was later jailed for "subverting state power".

On 1 April, Hong Kong billionaire tycoon Joseph Lau, former chair of the Chinese Estates Holdings who was convicted of bribery and money laundering in a land deal in Macau in 2014, applied for a judicial review over the bill in court. Lau’s lawyers asked the court to make a declaration that the surrender of Lau to Macau would contravene the Hong Kong Bill of Rights. Lau made an abrupt U-turn and dropped a legal challenge on 29 May, saying that he "loves his country and Hong Kong" and that he now supported the legislation.

On 27 April, bookseller Lam Wing-kee who claimed he was kidnapped by Chinese agents in 2015 left Hong Kong for Taiwan, fearing proposed extradition law would mean he could be sent to mainland China. On 28 April, an estimated 130,000 protesters joined the march against proposed extradition law. The turnout was the largest since an estimated 510,000 joined the annual July 1 protest in 2014. A day after the protest, Chief Executive Carrie Lam was adamant that the bill would be enacted and said the Legislative Councillors had to pass new extradition laws before their summer break, even though the man at the heart of a case used to justify the urgency of new legislation was jailed for 29 months shortly before.

Lam also said the mainland was never intentionally excluded from the extradition laws ahead of the handover of Hong Kong in 1997. "It was not what was said, that there were fears over the mainland’s legal system after the handover, or that China had agreed to it. This is all trash talk," Lam said. But her claim was refuted by last colonial governor of Hong Kong Chris Patten and then Chief Secretary Anson Chan. "Both Hong Kong and China knew very well that there had to be a firewall between our different legal systems," said Patten. Patten also warned that the extradition law would be the "worst thing" to happen in Hong Kong since the 1997 handover, saying that it would remove the firewall between Hong Kong and mainland China.

Legislative Council row

Members of two rival camps pushed and shoved each other in the Bills Committee meeting on 11 May 2019.

The pro-democracy camp which stringently opposed the law, deployed filibustering tactics by stalling the first two meetings of the Bills Committee, even preventing the election of a committee chairman. In response, the House Committee with pro-Beijing majority removed Democratic Party's James To, the most senior member, from his position of presiding member, and replaced him with Abraham Shek of the Business and Professionals Alliance for Hong Kong (BPA), the third most senior member, by bypassing the second most senior member Leung Yiu-chung, a pro-democrat. To claimed that the move was illegitimate, adding that the secretariat had abused its power in issuing the circular without having any formal discussion. The pro-democrats insisted to go ahead with a 6 May meeting as planned which was rescheduled by Shek with only 20 members present. To and Civic Party's Dennis Kwok were elected chair and vice chair of the committee.

Attempts to hold meetings on 11 May descended into unprecedented chaos as the rival factions pushed and shoved each other along the packed hallway for the control of holding meeting in the same room. A number of legislators fell to the ground including Gary Fan who fell from a table before he was sent to hospital. In the next meeting on 14 May, the meeting with two rival presiding chairmen descended into chaos again. Subsequently, pro-Beijing presiding chairman Abraham Shek said he could not hold a meeting and had asked the House Committee for guidance. On 20 May, Secretary for Security John Lee announced that the government would resume the second reading of the bill in a full Legislative Council meeting on 12 June, bypassing the usual Bills Committee. After a five-hour meeting on 24 May, the House Committee of the Legislative Council dominated by the pro-Beijing camp, passed a motion in support of the government's move to resume the second reading of the bill at a full council meeting on 12 June.

International escalation

The Beijing authorities weighed in when Director of the Hong Kong and Macau Affairs Office Zhang Xiaoming met a delegation led by Executive Councillor Ronny Tong in Beijing on 15 May in which Zhang showed support of the extradition law. At the same time, a delegation led by former pro-democrat legislator Martin Lee met with U.S. Secretary of State Mike Pompeo who later released statement that he "expressed concern" that the bill could threaten the city’s rule of law. On 17 May, Director of the Liaison Office Wang Zhimin met more than 250 Beijing loyalists in Hong Kong in a two-hour closed-door meeting. Vice Premier Han Zheng and chairman of the Chinese People’s Political Consultative Conference Wang Yang also spoke in favour of the extradition bill – becoming the highest-ranking Chinese state officials to give their public endorsement. Chief Executive Carrie Lam defended Beijing's involvement, saying that mainland officials offered their views only after the bill controversy was "escalated" by foreign powers, which seized an opportunity to attack the mainland’s legal system and human rights record. It was escalated to the level of "One Country, Two Systems’ and the constitutionality concerning the Basic Law.

On 24 May, the SAR government held a special meeting hosted by Chief Secretary Matthew Cheung involving 100 officials including principal officials, permanent secretaries and their deputies bring them up to speed on the justification for the extradition law. Meanwhile, 11 European Union representatives met with Carrie Lam to carry out a démarche formally protesting against the bill. Also on 24 May, eight commissioners from the U.S. Congressional-Executive Commission on China (CECC), Marco Rubio, Tom Cotton, Steve Daines from the U.S. Senate, as well as James McGovern, Ben McAdams, Christopher Smith, Thomas Suozzi and Brian Mast from the U.S. House of Representatives wrote to Chief Executive Carrie Lam asking that the bill be "withdrawn from consideration", stating that "the proposed legislation would irreparably damage Hong Kong's cherished autonomy and protections for human rights by allowing the Chinese government to request extradition of business persons, journalists, rights advocates, and political activists residing in Hong Kong." The commissioners added that the bill could "negatively impact the unique relationship between the U.S. and Hong Kong" – referring to the longstanding U.S. policy of giving the city preferential treatment over mainland China based on the United States-Hong Kong Policy Act.

See also

• 2019 in Hong Kong
• 6th Legislative Council of Hong Kong
• Extradition Act 2003
• Human rights in China
• Victor Mallet visa controversy

External links

• Legislative Council Brief - Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019