30-year-old American Edward Snowden, a contract employee at the National Security Agency, is the whistleblower behind significant revelations that surfaced in June 2013 about the US government's top secret, extensive domestic surveillance programmes. Snowden flew to Hong Kong from Hawaii in May 2013, and supplied confidential US government documents to media outlets including the Guardian.
Edward Snowden 'in safe place' in Hong Kong, but time running out
Edward Snowden has not been detained or put under police protection and is "in a safe place" in Hong Kong, but experts say time is running out for Snowden if he intends to leave Hong Kong and seek asylum elsewhere
The South China Morning Post can reveal that contrary to some reports, US whistleblower Edward Snowden has not been detained or put under police protection and is “in a safe place” in Hong Kong.
But experts say time is running out for Snowden if he intends to leave Hong Kong and seek asylum elsewhere.
His fate may depend on when the Hong Kong police seek a provisional warrant for his arrest from a local court in light of charges in the United States, a legal procedure the Post understands was still being worked Saturday night.
Snowden had indicated that he wanted to seek asylum in Iceland, although he has also pledged to put his future in the hands of the Hong Kong people and courts.
When a local warrant is issued, police will hand his details to the Immigration Department and Snowden will be unable to leave the city.
Police commissioner Andy Tsang Wai-hung would only say Saturday that a provisional warrant issued by a US court would not apply to Hong Kong.
Professor Simon Young Ngai-man, of the University of Hong Kong’s law faculty, said: “I suspect, though I do not know for sure, that a provisional arrest warrant has already been issued by a HK magistrate as early as June 14, the date of the [US] charges.”
Civic Party lawmaker Ronny Tong Ka-wah, a senior counsel, said a local court could grant a provisional warrant quickly.
Law Society vice-president Stephen Hung Yuen-shun said a court would be able to issue a warrant without hearing from Snowden’s lawyers.
A report in The Washington Post said US authorities had asked Hong Kong to issue a provisional warrant to detain Snowden.
Under the Fugitive Offenders Ordinance, Hong Kong authorities must inform Beijing of the receipt of any extradition request. Beijing may intervene if the case seriously affects the nation’s defence and foreign affairs. The central government can instruct Chief Executive Leung Chun-ying on whether or not Snowden should be arrested.
“If Beijing did not give any instruction … and Snowden were arrested, he can apply for bail, or a habeas corpus … to ... challenge the legitimacy of his arrest,” Tong said.
If he is arrested, committal proceedings will take place before a magistrate, who will decide whether there are sufficient grounds to send Snowden back to the US. Snowden can also argue that the prosecution was political in nature – he would be released were the magistrate to rule in his favour on that point.
“[Snowden] can argue that his offence is of a political character – based on his conscience, political views or values,” said former security minister Regina Ip Lau Suk-yee.
Young said relevant arguments Snowden could raise would include questioning the motive for the prosecution, the likelihood of his receiving a fair trial back home and his likely treatment in the US.
The court will also rule on whether the offences Snowden is accused of would be crimes in Hong Kong. Young believes that not all of the three offences – theft of government property, unauthorised communication of national defence information and wilful communication of classified communications intelligence to an unauthorised person – have an equivalent in Hong Kong law.
“While the requested offence of theft of governmental property will not present difficulties, the other two information-related offences will likely attract litigation and dispute in the courts,” Young said. But, he said, the chief executive could consent to allow offences not mentioned in the extradition treaty with the US to be included.
Both Snowden and the local government have the power to appeal against the magistrate’s ruling and take the case all the way to the Court of Final Appeal.
Even if Snowden fails and the chief executive order his transfer, Snowden can seek a judicial review of the decision, which can also be subject to various appeals, Young says.
Tong says the theft charge alone may be enough to secure Snowden’s extradition, unless the former CIA technician can prove he stole for political reasons.
Comments on the charges against Edward Snowden
"The laws that are enforced in Hong Kong are Hong Kong laws, not foreign laws."
Police Commissioner Andy Tsang Wai-hung on whether Snowden will be prohibited from leaving the city if a provisional arrest warrant were issued in the US.
"[Snowden] can also argue that his offence is of a political character - based on his conscience, political view or values - and does not fit the requirement for extradition."
Regina Ip Lau Suk-yee, lawmaker, former security chief
"[The local] ordinance … only prohibits leaking national secrets of Commonwealth countries; is [espionage] still a criminal offence in the city? This will be up to the court to judge."
Ronny Tong Ka-wah, lawmaker, ex-chair of Bar Association
"I've always thought this was a treasonous act. I hope Hong Kong's government will take him into custody and extradite him to the US."
US Senator Bill Nelson, a member of the Senate Armed Services Committee, welcoming the charges.