The criticisms of the administration in the letter of Gladys Li SC, ('Alarmed by top officials' lame excuse', South China Morning Post, October 28), must not be allowed to pass unremarked. To the casual reader they may appear cogent. The commitment of the administration to the citizens of the SAR, and to their rights and freedoms, is total. To suggest otherwise in the context of the Cheung Tze-keung trial is less than wise. While the price of liberty is constant vigilance, to provoke alarm unnecessarily tends not only to diminish the status of the SAR, but also to threaten the reputation of the system of criminal justice. The facts can be simply stated. As things stand, the police do not have the evidence necessary to place Cheung and his co-accused on trial for the kidnappings allegedly perpetrated in Hong Kong. As such, even assuming, as Ms Li appears to, that by the waving of a magic wand the translation of the case from the mainland to the SAR could somehow be effected, the accused upon return would not face criminal proceedings on these charges. No evidence, no case, no trial. Contrary to the impression given, Cheung is on trial not just for offences related to the alleged kidnappings, but for offences involving the smuggling of firearms and explosives. These offences allegedly occurred on the mainland, where Cheung and his co-accused were arrested. As such, the mainland judiciary has jurisdiction over the case under the Chinese Criminal Code. That is a fact. Section 6 of the Code provides both that the law is applicable to all who commit crimes on the mainland, unless otherwise specified, and that the occurrence of either an act or a consequence of a crime on the mainland is deemed to constitute the commission of a crime on the mainland. In other words, to plan an offence on the mainland which is to occur elsewhere is treated as a criminal act which is justiciable on the mainland. Ms Li is right to mention that the Chinese Criminal Code does not apply to the SAR. It is for that very reason that the mainland judiciary is exercising jurisdiction over the case on the basis that certain of the alleged crimes were committed on the mainland itself. As the code does not apply to the SAR, the mainland judiciary does not assert jurisdiction over Hong Kong residents suspected to have committed crimes in Hong Kong alone. The SAR judiciary exercises jurisdiction in such cases, as Article 19 of the Basic Law demonstrates. It is a matter of regret that there has been no formal rendition agreement between Hong Kong and the mainland over the transfer of fugitives or criminal cases. Hard work has been, and is being done in this area. Since any agreement will involve the right of the mainland to ask for suspects in Hong Kong to be sent there for trial, its terms must be cast in stone. There can be no room for fudge. Without such an agreement, the mainland authorities, nonetheless, have assisted Hong Kong through administrative arrangements to secure the return of suspected criminals who are Hong Kong residents. However, in all of these cases there was this crucial difference: there existed a proper basis in terms of evidence for returning the suspects to the jurisdiction, and it is this factor which is lacking in the case of Cheung Tze-keung, despite the best endeavours of the Hong Kong Police. The administrative arrangement with the mainland, although no substitute for a proper rendition agreement, has assisted law enforcement in Hong Kong. Under that arrangement the mainland allows local residents to be returned to Hong Kong if they are suspected to be involved in crimes solely in Hong Kong, or, if they are also involved in crimes under mainland law, after any criminal proceedings there are complete. Quite clearly, given the nature of the charges he is facing on the mainland, the stage his trial has reached, and the dearth of hard evidence in Hong Kong, this arrangement cannot be invoked in relation to Cheung. Ms Li refers to the 'one country, two systems' concept. Central to that formula is mutual understanding. While the mainland authorities do not interfere with the judicial system of the SAR, so also must the SAR respect the legal processes of the mainland. I. GRENVILLE CROSS SC Director of Public Prosecutions
