Two Hong Kong tycoons facing charges of bribery and money laundering in Macau after a preliminary hearing are entitled to the presumption of innocence, as they would be if the proceedings had been in Hong Kong. This principle calls for voluntary restraint in commenting on matters related to the charges, even though it is in another jurisdiction. That, however, does not prevent discussion of a gap in Hong Kong's arrangements for transferring suspects to another jurisdiction.
So far, in this instance, this is academic. Macau's Court of First Instance has yet to fix a date for a trial of charges against Chinese Estates Holdings chairman Joseph Lau Luen-hung and BMA Investment chairman Steven Lo Kit-sing in connection with a bid for five plots of land for development. If there is a trial, there is no reason to suppose either would not appear. There is, however, no formal agreement between the two regions under which Macau can seek to have people appear. Nor does Hong Kong have one with the mainland. Hong Kong has, however, signed extradition pacts with a number of countries.
Informal arrangements exist whereby mainland authorities have been returning Hong Kong fugitives on the run there. There is no formal rendition agreement, despite talks that have dragged on for years. This has been convenient for our officials because it gives them flexibility on the sensitive issue of whether to send suspects back to stand trial under a different system of justice. But it also means mainland fugitives can be tempted to flee to or through Hong Kong.
Mainland authorities have been able to reach extradition deals with many countries in recent years by agreeing not to impose capital punishment. This has been instrumental in securing the extradition of suspects. The same undertaking could be written into an agreement with Hong Kong, along with other safeguards. The lack of a rendition agreement with Macau could also make Hong Kong tempting for fugitives.
While Macau does not impose the death penalty, it does have rendition arrangements with the mainland, which could be relevant in the event of rendition to Macau of a suspect also wanted there. Without a formal rendition process, the decision on where a suspect should be tried can become arbitrary and possibly political, because the mainland criminal code gives its courts jurisdiction over Chinese nationals wherever they are alleged to have committed a crime.
If suspects are to be returned to the mainland or Macau, safeguards must be put in place to ensure they receive a fair trial. That would be better than continuing to operate in a legally grey area. All three sides would be better served by formal rendition agreements.Topics: Pearl River Delta Law Macau Special Administrative Regions of the People's Republic of China Criminal Law Law Pearl River Delta Criminal Law