Washington's failure to answer questions about cybersnooping in Hong Kong was part of the reason the city was unable to hold Edward Snowden, the justice minister said last night as he hit back at claims that local authorities stalled on arresting the American whistle-blower.
Rimsky Yuen Kwok-keung said the lack of a response to the former National Security Agency contractor's claim of US hacking in the city and a failure by American authorities to clarify aspects of their request for an arrest left Hong Kong with no lawful grounds to detain Snowden.
Without the information, there was "no legal basis to ask the court to issue a warrant for the provisional arrest", Yuen said. "Without the warrant of arrest, the Hong Kong government had no legal basis to restrict or to stop Mr Snowden from leaving."
Despite Snowden's departure, Yuen said Hong Kong still required a "comprehensive and satisfactory" reply from the US on the cybersnooping accusation.
"Our stance is very clear, we had no deliberate intention whatsoever to free Mr Snowden or to delay the US request for arrest," Yuen said. "All the way, we were strictly following Hong Kong law and our treaty with the US, as well as relying on the rule of law. All the way we had communicated with the US. But up to this moment, the US still has yet to reply to us with the information we requested last Friday."
Yuen said information on cyberhacking would have been material in deciding whether to deport Snowden as it may reveal whether the offences he was accused of were "political" in nature. Hong Kong's treaty with the US does not allow extradition when an offence is "political".
Yuen said certain other requirements of the extradition treaty and the city's Fugitive Offenders Ordinance were not met.
Yuen confirmed the government had received the request by the US for the provisional arrest of Snowden, but not for his surrender, on the afternoon of Saturday, June 15. The document sent to the local authorities listed the offences as unauthorised communication of national defence information, wilful communication of classified communications intelligence information to an unauthorised person and theft of government property.
The Department of Justice had studied the charges to consider whether they met legal requirements.
On Thursday, Yuen spoke to US Attorney General Eric Holder, telling him the city would strictly comply with its own law and the 1996 treaty with the US. Yuen also described the case as complicated, and said his department would need time to manage it.
The next day, Yuen said, Hong Kong asked the US whether the offences it identified were listed in the treaty and asked Washington what evidence it intended to rely on to charge Snowden. He warned a lack of vital information would have legal consequences.
Confusion about Snowden's middle name also caused concern, Yuen said. Hong Kong immigration had the name "Joseph", US documents referred to "James", while a court document mentioned only "J". "We believe his name needed to be clarified or it would create legal problems," he said. The US also failed to provide his passport number. "In our view, passport numbers are key information to identify a person."
Earlier, White House spokesman Jay Carney hit out at Hong Kong's failure to hold Snowden.
"With regards to … the Chinese government, we are just not buying that this was a technical decision by a Hong Kong immigration official," he said.
Additional reporting by Agence France-Presse
Justice Minister Rimsky Yuen Kwok-keung's account of his negotiations with Washington. All times are Hong Kong time.
June 15, afternoon: Hong Kong receives a US request for the provisional arrest of Edward Snowden
June 17: Department of Justice e-mails US authorities stating that Hong Kong is preparing a list of inquiries to seek clarification about the request for Snowden's arrest
Wednesday: US Attorney General Eric Holder attempts to contact Secretary for Justice Yuen
Thursday morning: Yuen speaks to Holder
Friday morning: Through the Security Bureau, the government writes to the US government requesting clarification about Snowden's allegations of US snooping on computers in Hong Kong
Friday afternoon: Department of Justice contacts US Justice Department to seek additional information on its request for a provisional arrest
Sunday: Snowden leaves town