Q&A: Edward Snowden and Hong Kong's asylum laws
There has been feverish speculation in recent days over the legal framework surrounding surveillance whistleblower Edward Snowden and his presence in Hong Kong. Here, Professor Simon N.M. Young, director of the University of Hong Kong's Centre for Comparative and Public Law, looks at Snowden’s current and possible future circumstances.
What will happen when Edward Snowden’s current visa expires?
If Mr Snowden remains in Hong Kong after the expiry of his limit of stay, he may be prosecuted for the offence of breach of condition of stay, contrary to s. 41 of the Immigration Ordinance (Cap. 115). However it is only after his limit of stay has expired or a surrender request has been made that he can make an asylum claim in Hong Kong (see CH v Director of Immigration; Immigration Ordinance, s. 37W(2)). Asylum claims in Hong Kong are more accurately described as non-refoulement or non-return claims. Since Hong Kong is not bound by the 1951 Refugees Convention, the full package of asylum rights under that Convention do not apply at this time. It is government policy that while an asylum claim is pending, the claimant is not to be returned to the place of risk or prosecuted for the breach of condition of stay offence.
There are three kinds of non-return protections available in Hong Kong: (1) torture non-refoulement, based on Articles 1 and 3 of the Convention Against Torture; (2) cruel, inhuman or degrading treatment or punishment (CIDTP) non-refoulement, based on Article 7 of the International Covenant on Civil and Political Rights; and (3) persecution non- refoulement, based on Articles 1 and 33 of the Refugees Convention.
What will happen if Snowden makes a non-return claim (asylum claim)?
The procedures for processing torture claims are clear and well-defined in new legislation, which came into force on 3 December 2012 (see Immigration (Amendment) Ordinance 2012). This process involves initial screening and decision-making by an immigration officer and a possible merits review by an independent appeal board. Judicial review of the appeal board’s decision in the Court of First Instance, followed by appeal to the Court of Appeal and further appeal to the Court of Final Appeal are possible with leave granted by the respective courts.
However the procedures in relation to CIDTP and persecution non-refoulement claims are less clear. We are still awaiting news from the Hong Kong government on how it intends to implement two important decisions from Hong Kong’s highest court decided within the past six months (see Ubamaka v Secretary for Security and C v Director of Immigration). In C v Director of Immigration, the Court of Final Appeal held that the Hong Kong government was required independently to determine whether a refugee claim was well-founded in accordance with a process that met high standards of fairness. The previous system of relying solely upon a refugee status determination by the United Nations High Commissioner for Refugees was found to be insufficient and unlawful. Most likely the government will implement the decisions by administrative modifications of the existing torture non-refoulement system until it can be put on a statutory footing. But in the absence of any system, asylum claimants cannot be returned to their place of origin as their claim would still be considered pending.
What will happen if the United States makes an extradition request to Hong Kong in respect of Snowden?
First it should be noted that the relevant terminology is ‘surrender’ and not ‘extradition’ because surrender agreements are made directly with the Hong Kong Special Administrative Region (rather than with China), while ‘extradition’ is a term more appropriately reserved for arrangements between sovereign states. Under Hong Kong’s constitutional arrangements, the central authorities (i.e. mainland China) can authorize Hong Kong to sign agreements with sovereign states for co-operation in criminal matters.
The relevant law is the Fugitives Offenders Ordinance (Cap. 503) (“FOO”) and the Fugitive Offenders (United States of America) Order (Cap. 503F), which contains the full text of the 1996 bilateral treaty between Hong Kong and the United States (“treaty”). While the treaty was signed in 1996, it did not come into force until 1998. The general rule of interpretation is that where the text of the treaty and FOO conflict, the treaty text takes precedence.
Surrender requests travel through diplomatic channels to Hong Kong’s Chief Executive who must decide whether or not to issue an authority to proceed (s. 6). The Chief Executive can decide not to issue such authority if it appears to him that an order for surrender could not lawfully be made or would not in fact be made. Once an authority to proceed has been issued, a magistrate may issue a warrant for the arrest of the person (s. 7(a)). In exceptional circumstances, a provisional arrest warrant can be issued without the authority to proceed (s. 7(b)). Persons arrested must be brought as soon as practicable before a magistrate for committal proceedings (s.10). Bail is difficult to obtain because the presumption is against bail, which is only to be granted if there are special circumstances (s. 10(5)).
Committal proceedings before a magistrate essentially assess whether or not there is sufficient evidence to warrant the person’s committal for trial (s. 10(6)). If the magistrate is not so satisfied or finds that the surrender is prohibited then the person arrested will be discharged. Decisions to commit or discharge the person can be challenged in the Court of First Instance, including an application for habeas corpus. Further appeals to the Court of Appeal and
Court of Final Appeal may be possible with leave granted by the respective courts.
After the person has been committed, the Chief Executive may order the surrender of the person unless the surrender is prohibited under the FOO or the Chief Executive decides to make no order (s. 13). The Chief Executive may also decide to make no order for surrender in the case of a person who is a national of the People’s Republic of China (s. 13(4)). Where the offence is punishable by death, the order for surrender may only be made if an assurance that the death penalty will not be applied has been given (s. 13(5)).
When might surrender under the FOO be prohibited?
Section 5 of the FOO provides for general restrictions on surrender. A person shall not be surrendered if it appears that the offence is of a political character (irrespective of how that offence is described), the request for surrender (though purporting to be made on account of a relevant offence) is in fact made for the purpose of prosecuting or punishing him on account of his political opinions, or he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his political opinions. See also Article 6 of the treaty.
Another relevant rule is that of double criminality. The offence must be both specified in the treaty and must be an offence punishable by imprisonment for more than one year in both jurisdictions. “Offences involving the unlawful use of computers” is included in the list of offences in the treaty. See Article 2 of the treaty.
What if an asylum claim is made before or after the extradition process begins? How will the two processes be conducted?
For torture non-return claims, it is clear that the Chief Executive’s order for surrender cannot be made before the torture claim has been finally determined (s. 13(2A)). If the torture claim is accepted, any surrender order, which may have been made, is rescinded and the surrender process ends (s. 13(2B)). This means the person cannot be removed or deported to the place of torture risk. The person can still be removed to another place since the decision does not grant residency or an entitlement to work in Hong Kong.
As the systems for CIDTP and persecution non-return protection have yet to be announced, it is less clear how these claims will impact on surrender proceedings. One assumes however that they will have the same effect as torture non-return claims, in which case a person cannot be surrendered while his asylum claim is still pending. If the CIDTP or persecution claim succeeds then that will end the surrender proceedings, in the same way as substantiated torture claims.
How likely is the central authorities (mainland China) to be involved in either the surrender or asylum processes? Under the FOO, the Chief Executive must notify the Central People’s Government (“CPG”) of surrender proceedings in Hong Kong (s. 24). The CPG has the power to issue instructions to the Chief Executive to take or not to take an action in relation those proceedings but only on the ground that “if the instruction were not complied with the interests of the People’s Republic of China in matters of defence or foreign affairs would be significantly affected” (s. 24(3)).
However CPG instructions cannot require the Chief Executive to act inconsistently with his responsibilities under the FOO. For example, the Chief Executive could not be instructed to surrender a person whose return would be prohibited under the terms of the ordinance. Also the CPG instructions cannot interfere with judicial decisions because the Basic Law protects the independence of the judiciary (Article 19).
As for asylum proceedings, the law does not confer any power on the CPG to influence or interfere with such proceedings. These are matters within Hong Kong’s high degree of autonomy.
Professor Simon N.M. Young is Director of the Centre for Comparative and Public Law; Barrister-at-law, Parkside Chambers