China acted in accordance with the law in Hong Kong bookseller Lam Wing-kee’s case
Dong Likun says Chinese law gives authorities the right to investigate, detain and interrogate Lam over book smuggling, and critics who protest against his treatment are ignoring the rule of law they claim to be upholding
Did Lam break the law while on the mainland? Did mainland authorities have the right to detain and investigate him? Was his detention some kind of cross-border law enforcement violating the “one country, two systems” principle? And did it challenge the interests of Hong Kong people in general? Only by clarifying the laws and facts in the case can the truth be found. The answers to all these questions lie in the laws themselves.
First, whether a person has broken the law or committed a crime depends on the law of the country where the act was committed. According to the details provided at the press conference by Lam, he had smuggled books to the mainland, books which were published in Hong Kong but were illegal on the mainland, and which harmed the public interest. He did this by himself or by re-routing the books to mainland residents via his girlfriend. His acts violated mainland laws and harmed the harmony of Chinese society.
Such acts were carried out on the mainland. Thus, authorities there launched criminal investigations into his illegal acts according to Chinese law. This is the right of every sovereign country. Why was it wrong for mainland authorities to exercise their powers according to local law? If a mainland resident commits an unlawful act in Hong Kong, legal action can also be taken against him or her according to Hong Kong laws. In most places in the world, when an individual has broken the law, he or she is subject to the laws of the country where the act was committed. Whether Lam’s acts on the mainland were illegal should be determined by mainland law. Hong Kong has no authority to decide such matters based on Hong Kong law.
The bottom line? Hong Kong bookseller Lam Wing-kee’s case has nothing to do with ‘one country, two systems’
Second, the mainland judiciary has indisputable jurisdiction over Lam’s case. In accordance with the Criminal Procedure Law and the Criminal Law, a criminal case should be heard by a court located in the place of the criminal act, meaning the location where the act took place and suffered the consequences of the act. Both Lam’s trafficking of illegal publications into the mainland and his delivery of such publications to other people while on the mainland undermined the stability of mainland society. The place of the criminal act and the place of the act’s consequences were both the mainland. Therefore, the mainland judiciary has indisputable jurisdiction over Lam’s criminal acts.
Third, it is internationally accepted that the law court in a place where the criminal act happened should have jurisdiction over the case. The principle of territorial jurisdiction is traditionally upheld in common law. Britain courts, for one, exercise territorial jurisdiction.
The same holds true for Hong Kong courts. Section 5 of the city’s Criminal Jurisdiction Ordinance states that “there is an obtaining of property in Hong Kong if the property is either dispatched from or received in Hong Kong; and there is a communication in Hong Kong of any information, instruction, request, demand or other matter if it is sent by any means from Hong Kong to elsewhere, or from elsewhere to Hong Kong”.
Thus, it can be seen that, even according to Hong Kong laws, it should be the mainland judiciary that exercises criminal jurisdiction in accordance with mainland laws over Lam’s criminal acts of delivering illegal publications to the mainland, which was damaging the social order and the national security of China.
Fourth, judicial investigations into Lam by mainland authorities have been in compliance with Chinese legal provisions, which were fair, reasonable and according to the law. According to the Criminal Procedure Law of China, criminal jurisdiction on the mainland is divided into two main categories: functional jurisdiction and trial jurisdiction.
Functional jurisdiction refers to the respective handling of a criminal case according to law by the public security authorities, procuratorial organs and courts, which, based on their functions, would handle the investigation, prosecution, trial and execution of the case. Based on what Lam said at the press conference, his case is still under investigation.
According to Article 18 of the Criminal Procedure Law, criminal investigations should be conducted by public security authorities. Cases involving national security may also be dealt with by the national security authorities. Based on the details given by Lam, the case is being dealt with by either the public security or national security officers, in full compliance with Chinese criminal procedure. Lam has not been subject to any act of inhumanity; he has been treated very well. Since he is a criminal suspect, it is right and proper that he has been subjected to investigation, detention and interrogation.
As for the complaint that his family members had not been notified of his detention and that he was not allowed to hire lawyers, this was not because of his status as a Hong Kong resident. Rather, it could be because officers were complying with certain regulations in the legal procedures, or because the mainland and Hong Kong have yet to establish comprehensive arrangements for judiciary cooperation on criminal cases.
This is why Hong Kong lawyers cannot practise on the mainland and there have been no substantive laws or regulations governing the mutual notification of cases between the mainland and Hong Kong. This is a defect in arrangements between the two jurisdictions. However, should this serve as the reason for certain Hong Kong people to smear the mainland’s systems?
It’s worth noting that the mainland has long been eager to set up a comprehensive system on cross-border cooperation in criminal cases, whereby fugitives could be handed from one jurisdiction to the other, the limits of both jurisdictions are clearly spelled out, and both sides could mutually recognise each other’s criminal judgments and execute them.
However, so far no such agreements have been reached due to opposition from certain political forces in Hong Kong. As a result, people who have committed crimes on the mainland and those who have committed crimes in Hong Kong that harmed the country and mainland organisations are able to go into hiding in Hong Kong, and thus evade mainland sanctions. Lam’s case remains pending and he is still on bail. But he has already vowed not to return to the mainland, making it difficult to proceed with subsequent legal procedures.
Fifth, it is regrettable that some Hong Kong people are abandoning a traditional value – the rule of law. Mainland authorities have been conducting criminal investigations into the illegal acts Lam had committed on the mainland, while exercising the proper right of jurisdiction, according to Chinese laws and with sufficient evidence. Some people in Hong Kong know the law well but have deliberately been manipulating, twisting and covering up facts so as to speak ill of the mainland, damage the “one country, two systems” principle, and advocate independence for Hong Kong. They are seeking to reap personal gains in politics. The current chaos in Hong Kong is a result of these people claiming to uphold democracy and the rule of law, while destroying the same through their actions. It is important that people recognise this.
The law is the only measure of the rights and wrongs of Lam’s case.
Dong Likun is a professor at Shenzhen University Law School. This article is translated from Chinese