Carrie Lam must seek real progress on fugitive-rendition agreement with mainland China
Grenville Cross says the lack of a treaty on judicial cooperation 20 years after the handover must make Beijing question Hong Kong’s resolve to combat crime, which does not bode well for post-2047 arrangements
As the Basic Law recognises, mutual legal assistance in criminal matters between different jurisdictions is integral to successful anti-crime strategies.
However, while Article 95 provides that Hong Kong may “maintain juridical relations with the judicial organs of other parts of the country, and they may render assistance to each other”, nothing substantive has been achieved since 1997, despite early hopes.
In 2001, then security minister Regina Ip Lau Suk-yee said it was “one of the priorities” of her bureau to conclude legal cooperation agreements with the mainland in the “next two or three years”. But that urgency has now evaporated, with ministers even backsliding, and this has impacted on efforts to combat cross-border crime.
Of course, the vast differences in China’s various legal systems mean agreements are not easy to achieve. Also, distrust of the mainland among some local lawmakers, who must approve any deal, certainly does not help. However, after two decades, these issues should have been overcome, most obviously with Macau, which, like Hong Kong, has no death penalty.
It is shocking that, in the absence of a rendition agreement, criminals convicted of serious offences in Macau can escape justice by coming to Hong Kong.
The Security Bureau intended to complete negotiations with Beijing on the rendition of fugitives by 2000, but, 17 years on, no agreement has been signed; Hong Kong still has to rely on mainland goodwill to secure the return of its fugitives. Since 1997, the mainland has transferred 170 criminal suspects to Hong Kong. However, Hong Kong cannot reciprocate.
Effectively combating crime throughout China depends largely on legal assistance agreements between its constituent parts. These encompass the taking of evidence, executing requests for search and seizure, producing documents, restraining and confiscating the proceeds of crime, and transferring people to provide assistance. Here Hong Kong has yet to prove its bona fides, which does little to promote confidence in “one country, two systems”.
So local law enforcement agencies still have to rely on long-standing informal administrative arrangements to seek evidence collection, witness attendance at trials and the return of fugitives.
These are no substitutes for the proper legal mechanisms contemplated by Article 95. Informal arrangements are also just a one-way street, and really only assist Hong Kong. There are, for example, strict limits to how much law enforcers can do to help their mainland counterparts to pursue corruption cases, which must stick in the craw of many north of the border. Real doubts over Hong Kong’s resolve to combat crime must be developing in Beijing, which may not bode well for arrangements post-2047, when the Basic Law’s “unchanged for 50 years” clause expires.
However, Secretary for Justice Rimsky Yuen Kwok-keung told a legal conference in Xian ( 西安 ) last month that securing judicial assistance would still “take some time”, as “we cannot create a framework that may not be suitable to use in the future for the sake of speeding things up”. As with the Article 23 national security legislation, legal cooperation agreements are, it seems, too hot to handle, and must therefore be kicked down the road for the next administration to sort out.
If cross-border judicial arrangements are still elusive after 20 years, perhaps they are unachievable. However, before that conclusion is finally reached, incoming chief executive Carrie Lam Cheng Yuet-ngor must be prepared to move mountains in her quest for a deal. The rule of law throughout China requires no less.
Grenville Cross SC is a criminal justice analyst