One handover agreement that's still to be resolved

PUBLISHED : Monday, 30 November, 2009, 12:00am
UPDATED : Monday, 30 November, 2009, 12:00am

The trial in Sichuan of Zhou Yongjun, a student leader during the Tiananmen protests who was sent to Shenzhen by Hong Kong immigration authorities, focused attention on the absence of a rendition agreement between Hong Kong and the mainland, more than 12 years after the handover.

The case is still shrouded in mystery. Zhou arrived last year by ferry from Macau carrying a Malaysian passport in the name Wang Xingxiang - the same as that used by a person trying to withdraw funds from a Hang Seng Bank account. After he was sent to the mainland, he was charged with fraud and the trial began on November 19.

The government says Hong Kong residents are never sent to the mainland. Zhou, however, was believed to be a mainlander and he did not tell police he had a US green card.

Calls for a rendition agreement arose a decade ago when Hong Kong was shaken by two major crimes: the kidnapping of Victor Li Tzar-kuoi, son of Li Ka-shing, and the murders of five women in the Telford Gardens housing estate. The perpetrators of both crimes were captured and tried on the mainland as China's Criminal Code gives mainland courts jurisdiction over crimes committed by Chinese nationals overseas.

Formal negotiations began in 1999 but an accord remains elusive. Actually, under an informal arrangement, stemming from the British colonial period, China has been sending back fugitives wanted in Hong Kong. From 1990 until this month, 321 have been returned.

Thus, Hong Kong stands to gain little from a formal rendition agreement. It takes the position that it cannot return any fugitive offenders to the mainland 'in the absence of a formal arrangement which is supported by legislation'.

The situation was such that, when he was premier, Zhu Rongji was quoted as saying that he could chase criminals to the ends of the earth but could not grab them in Hong Kong. Mainland leaders fear corrupt officials could use Hong Kong as a springboard to other countries with which China has no extradition agreement.

For example, Lai Changxing , who was involved in one of the largest corruption cases in modern Chinese history, escaped to Canada from Hong Kong in 1999 and, despite extremely heavy pressure from Beijing, has managed to escape extradition. China has promised he would not be executed but Canadian courts do not accept this guarantee.

One obvious concern in Hong Kong was that individuals should not be sent back to the mainland for political offences. But these are usually excluded from such agreements.

The Hong Kong government wants to 'balance the need to prevent criminals from escaping justice and the need to safeguard the rights of individuals'. This latter desire appears to be blocking an agreement.

A big problem is the mainland's application of the death penalty for a wide range of crimes. Hong Kong wants assurances that it would not be imposed on anyone sent back for trial. Mainland officials apparently responded by citing Article 4 of the Criminal Law, which says the law is equally applied to anyone who commits a crime and no one should have the privilege of transcending the law.

The two sides have evidently reached a deadlock. However, when legislators stirred by the Zhou case pressed the government, they were told that Hong Kong officials 'will continue our discussions with the mainland'.

The current situation is not sustainable. Taiwan and the mainland have agreed to jointly combat crime. And people wanted in Hong Kong have found refuge in Taiwan.

At some point, there will have to be arrangements for the transfer of suspects from one jurisdiction to another. But Hong Kong is right to insist that safeguards must be in place to protect the rights of those who are being sent to face justice.

Frank Ching is a Hong Kong-based writer and commentator.