Hong Kong should trust its own judiciary on all extradition requests – whether or not they come from mainland China

The UK experience underlines how concerns about another territory’s rule-of-law record do not stop an extradition agreement from being reached
Effective extradition, which serves the interests of justice, must also be based on mutual trust

Ronny Tong

Published: 9:00am, 3 Apr 2019

Why you can trust SCMP

It is a sad truth in Hong Kong that whatever initiative is proposed by the government, especially if it involves the Chinese government in some way, you can be sure it will be turned into a highly charged, irrational political debate in which conspiracy theories abound. The most recent proposal to amend the Fugitive Offenders Ordinance is no exception.

What is somewhat unusual is that, this time, the commercial sector has also waded into the mud bath. Certain prominent chambers of commerce and some opinion leaders in the community said they were “seriously concerned” that if the proposed amendment were to pass, Hong Kong would be able to extradite those accused or convicted of serious crimes to the mainland. This cannot be allowed to happen, they say, because the Chinese judicial system is very different from Hong Kong’s, and China’s rule-of-law record is so poor that a fair trial could not be guaranteed.

These critics, some of whom are seasoned lawyers, obviously have not read the existing law carefully, or at all, or fully understood the current extradition regime in Hong Kong.

The fact is that the existing Fugitive Offenders Ordinance was modelled after the UK equivalent and the UN model on extradition, and contains numerous human-rights and fair-trial safeguards, to be strictly applied by our judges, who are known to be of the highest standard.

However, the more troubling part is that the logic of those opposing the amendment is difficult to follow, to say the least. By definition, an extradition process is the transfer of a criminal from a home country to another country with a different judicial system. If one can only extradite a criminal to a country which has a superior record of rule of law, then many countries would not be able to employ any extradition process at all.

That frankly makes no sense. The truth is, provided there are sufficient safeguards, extradition processes are a necessary tool in modern society to combat social injustice and serious crimes.

Thousands take to streets against Hong Kong’s extradition proposal

In this respect, it is instructive to look at the UK experience. Its Extradition Act 2003 was enacted after many amendments and, since it came into force, has been the subject of much criticism, often in the same vein as the Hong Kong critics’.

In particular, many attacked the relaxation of the requirement of prima facie evidence in support of extradition requests under the 2003 act and claimed that such a move would lead to unfair trials and wrongful extraditions. As a result, in 2010, the UK government ordered a comprehensive review of the entire system by a panel of distinguished judges and lawyers and a detailed report was produced in 2011.

Right at the beginning, the 2011 report identified the rationale and foundation of the extradition process in this way: “Extradition is based on the principle that it is in the interest of all civilised communities that offenders should not be allowed to escape justice by crossing national borders and that states should facilitate the punishment of criminal conduct. It is a form of international cooperation in criminal matters, based on comity (rather than any overarching obligation under international law), intended to promote justice ... It is in the public interest that extradition should work promptly and efficiently, particularly among neighbouring states.”

Having an agreement does not mean the home country or territory has to accede to every request for extradition

It went on to say later: “States have increasingly recognised that effective extradition should operate on the basis of mutual trust and confidence (not suspicion and disrespect).” The report also pointed out that under Article 1 of the UN Model Treaty on Extradition, nations have an obligation to extradite and this obligation does not include any prima facie case requirement.

That being the case, you would ask, how does the UK approach the question of extradition? Does it refuse to contemplate extraditing criminals to countries with a poor rule-of-law record? The answer is no, it does not. First, the UK has extradition agreements with close to 100 countries and territories, not counting EU countries that are subject to a slightly different regime. Of these non-EU countries, many have a poorer record in human rights and rule of law than China.

A protester against a proposed amendment to Hong Kong’s extradition law holds up a British flag, during a rally on March 31. The UK has extradition agreements with close to 100 countries and territories, not counting EU countries. Of these non-EU countries, many have a poorer record in human rights and rule of law than China. Photo: AP

For example, just to name a few, the UK has agreements with Cuba, Iraq, Israel and Libya, none of which was ranked in the Rule of Law Index by the US think tank, World Justice Project. The UK also has agreements with Moldova (ranked 83 in the index), Russia (88), Guatemala (96), Mexico (99), Bangladesh (112) and Zimbabwe (116) – all of which come after 82nd-ranked China in the index.

Furthermore, the 2003 act also contains provisions whereby the UK could consider commencing extradition processes with countries which do not have any extradition agreements with the UK on a case-by-case basis. Indeed, that is the kind of provision the current proposed amendment in Hong Kong is based on.

Hong Kong waters down extradition proposal but at what cost?

Having such a provision or an agreement does not mean the home country or territory has to accede to every request for extradition. For example, according to the 2011 report, between 2004 and 2011, whereas the UK had surrendered a total of four offenders to Hong Kong, Russia had made a total of 25 requests but none was successful. That is exactly why we need the various legal safeguards in the current ordinance.

The whole point of having these safeguards is to ensure we do not have to second-guess the integrity of the judicial system of the requesting party. In a way, that is irrelevant. We rely on our own judicial system to satisfy ourselves that the request is not a political request disguised as a criminal case, or that a fair trial could be had. As the 2011 UK report was at pains to point out, “extradition should operate on the basis of mutual trust and confidence”.

What is sauce for the goose must be sauce for the gander. If the UK is content to serve the interest of justice and not view other jurisdictions’ judicial systems with suspicion and disrespect, why should we?

Ronny K. W. Tong, QC, SC, JP is a past chairman of the Hong Kong Bar Association, a current member of the Hong Kong’s Executive Council, and convenor of Path of Democracy

Post