Opponents to Hong Kong’s extradition bill are blind to progress in China’s legal system

The legal amendments will enable an arrangement for fugitive transfer with the mainland not unlike those it already has in place with other countries
Critics fail to see the improvements over the years to China’s judicial processes

Grenville Cross

Published: 9:00am, 9 May 2019

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The Security Bureau’s proposed amendments to the Fugitive Offenders Ordinance, which will enable fugitives in Hong Kong to be returned on a case-by-case basis to other jurisdictions for trial, are a sensible means of resolving a long-standing problem. Because of the current vacuum, Hong Kong has become a magnet for fugitives from throughout China and beyond. Not only have convicted criminals from Macau found refuge here, but so have people accused of grave crimes in Taiwan, as well as 300 fugitives from mainland China.

Moreover, as Hong Kong has extradition agreements with only 20 countries, fugitives from over 170 countries can also evade justice by coming here. Although the exact numbers are unknown, the Security Bureau’s proposals will put foreign offenders on notice that they come here at their peril.

The current situation is obviously detrimental to effective law enforcement throughout China, and sends out the message that Hong Kong cannot be trusted to help its neighbours combat crime. If it forfeits the confidence of others, this could adversely affect its own ability to uphold criminal justice.

Whereas, for example, mainland China has returned an estimated 200 criminal suspects since 1997, this cooperation, in the absence of reciprocity, could well dry up, and Hong Kong would only have itself to blame.

Hysteria apart, much of the criticism of the proposals has been fuelled by double standards and woeful ignorance of how other systems work.

The former governor, Chris Patten, for example, has condemned the proposals, saying that “societies which believe in the rule of law do not reach agreements like this with those who do not”. However, those who live in glass houses should not throw stones. The UK has, without demur from Patten, signed extradition agreements with places like Cuba, Haiti, Iraq, Libya, and Zimbabwe, hardly renowned bastions of the rule of law.

The European Union, moreover, while expressing concerns, has conveniently disregarded the activities of its own member states. Whereas France, Portugal and Spain have all signed extradition agreements with China, another member, Bulgaria, last year became the first EU state to send a corruption suspect, Yao Jinqi, back to China for trial. Quite clearly, if its member states trust China to handle fugitives appropriately on return, it ill-behoves the EU to criticise Hong Kong for also seeking to resolve things in a similar way.

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Some people have also indulged in deliberate obfuscation. There is a world of difference between having a mechanism in place to enable a fugitive to be surrendered in an appropriate case, and actually returning someone. Because of the internationally endorsed safeguards contained in the Security Bureau’s proposals, particularly regarding political offences, many requests will actually be refused. Thus, for example, although the UK has an extradition agreement with the Russian Federation, between 2002 and 2019, it rejected 63 of the 67 requests made by Russia for the return of fugitives.

Much comment on the mainland’s legal system has been deliberately erroneous, giving the impression that it is unchanged since the Cultural Revolution. However, since the 1980s, when former paramount leader Deng Xiaoping said “we must build a modern legal system for China”, reformers have greatly improved things, often after studying the Hong Kong paradigm.

Until about 20 years ago, mainland judges had little legal training; but all this has now changed. Anyone who wants to be a judge – or a prosecutor or lawyer – must now pass the difficult National Unified Legal Professional Qualification Examination. Many of the new breed of judges and legal officials have studied law abroad, and are familiar with Western notions of criminal justice. Since last year, professional judges, when trying criminal cases, sit with people’s assessors, who are similar to Hong Kong jurors and can provide independent scrutiny, with cases being decided by majority voting.

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Furthermore, most criminal trials are, thanks to the late People’s Supreme Court president Xiao Yang, now held in public, and legal aid is available to the accused. Whereas it was previously the practice for witness statements to be simply read out at trial, recent reforms now provide for witnesses to appear physically in court, if necessary through subpoena.

The most significant improvement, however, has concerned coerced testimony. For many years, judges were solely concerned with whether a confession was true, not with how it was obtained. However, in 2012, the National People’s Congress overhauled the Criminal Procedure Law, and coerced confessions must now be excluded by judges, even if true.

This mirrors Hong Kong’s own approach, as does the new requirement that the police should video-record the confession taking process, a practice originally pioneered by Hong Kong’s Independent Commission Against Corruption.

The mainland’s legal system, like many others, is far from perfect. Nonetheless, real progress has been made, particularly in the handling of generalised crime cases. Some people deliberately exaggerate problems to serve their own ends, and they must not be allowed to prevail. After all, 40 countries around the world have now signed extradition treaties with China, and they would not have done so if they felt that returned fugitives would not be treated properly.

The Security Bureau must, therefore, persevere, and not be deflected by critics and faint hearts. Criminal justice demands no less. If Hong Kong aspires to be “Asia’s world city”, it cannot settle for being China’s criminal sanctuary.

Grenville Cross SC is a criminal justice analyst

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