Illustration: Craig Stephens
Ronny Tong
Ronny Tong

An extradition agreement with mainland China would serve the rule of law, not Beijing’s political interests

  • Hong Kong has clear-cut agreements on extradition with many countries. To say that one with Beijing would make Hong Kong subservient is an insult to our esteemed courts and judges

In a recent novel co-authored by none other than former US president Bill Clinton, the main character – also a US president – despairs, saying: “[Modern politics] breeds more frustration, polarisation, paralysis, bad decisions, and missed opportunities … with no incentive to actually accomplish something; more politicians just go with the flow, fanning the flames of anger and resentment, when they should be acting as the fire brigade.” This observation is sad yet true; Hong Kong is the epitome of this madness.

Just look at the recent debate on the government’s proposal to amend the Fugitive Offenders Ordinance. With this amendment, the government proposes to give the chief executive power to order that certain criminal suspects be transferred to other jurisdictions, subject to confirmation of the courts on a case-by-case basis. From a rule-of-law point of view, you would think no one, let alone lawyers, would object to this amendment.
Sadly, some prominent senior lawyers and legislators reportedly said the government was using the proposed amendment to send people back to the mainland for political offences and our judges would easily succumb to Beijing’s political demands. One would hope such accusations would be based on simple legal ignorance rather than deliberate political posturing.

First and foremost, extradition arrangements the world over are needed not for the convenience of the requesting country but because the rule of law dictates that no one is above the law and there should not be havens for criminals in any modern society. The law therefore provides that, in the interest of justice, there are certain circumstances when those who have committed a serious crime in one country and escaped to another may be sent back to where the crime occurred. This is a matter of core values and has nothing to do with politics.

The law of Hong Kong is no exception in this respect. The ordinance makes it plain from the outset under section 2  that it can only apply to the specified 46 offences listed, none of which have anything to do with political, public order or public security offences. Not only that, the ordinance can only apply to acts which, if committed in Hong Kong, would carry punishment of more than 12 months’ imprisonment.

Specifically, section 5 further provides that a person shall not be surrendered in relation to an offence of a political nature or on account of his race, religion, nationality or political opinions, no matter how the offence is characterised in the request.

Whether an offence is of a political nature is for the local court to judge and no extradition order would be made if the court is of the view that the suspect’s trial or punishment might be prejudiced by reason of his race, religion, nationality or political opinion.

Hong Kong police take a 26-year-old, suspected of stealing HK$600,000 in watches from a Tsim Sha Tsui store, into custody on December 19 after he was handed over by Guangdong provincial police in Shenzhen. Photo: Hong Kong Police

There are other safeguards under the ordinance, including that no prisoner surrendered would be re-extradited to a third place or country, or be re-tried for an offence for which the prisoner had already been tried, or be subject to torture or the threat of it, and so on. Such provisions ensure a fair trial for anyone surrendered, to the extent the government can so ensure.

You will note that these provisions have always been part of our law and, since the proposed change involves merely amending the existing ordinance to give more power to the chief executive, subject to the scrutiny of the court under the existing regime, there is no reason whatsoever for anyone to doubt the motive or effect of the proposed amendment.

As to the adequacy of the mainland legal system, those critics who are lawyers should know that, under the well-established principle of the “comity of nations”, the common law court rarely second-guesses any foreign court, but gives the latter the fullest respect and trust. The truth is that we have entered into numerous extradition treaties with many nations whose courts are, in some views, less than ideal.

That is why in every case, we normally would reserve for ourselves a certain amount of discretion to ensure justice is done in extreme cases; for example, under section 13 of the ordinance, the chief executive may refuse to surrender a prisoner simply on the grounds that he or she is a national of the People’s Republic of China. Such a reservation is common in all extradition treaties and not an invention of either Hong Kong or Beijing. All this is never in the context of political consideration but, rather, in the interest of justice.

Hong Kong Chief Executive Carrie Lam walks into the Legislative Council on February 20 as pan-democracy lawmakers protest against the city’s case-by-case extradition arrangements between Hong Kong, the mainland, Taiwan and Macau. Photo: K. Y. Cheng

These are the basic facts and principles based on our law, and the safeguards adumbrated above are not unique to Hong Kong. These safeguards are almost universally adopted by most democratic countries and have proved effective both here and abroad.

Some politicians with legal backgrounds suggested that the current amendment proposal was designed to allow Beijing to put pressure on the Hong Kong government and our judges to succumb to the political whims of the mainland. That is nothing short of preposterous. To suggest the government may ignore the law is one thing; but to insinuate our judges will ignore the law and serve Beijing’s political interests is quite another.

Do not forget that our Court of Final Appeal is held in the highest esteem around the world

Do not forget that our Court of Final Appeal is held in the highest esteem around the world and includes some of the most esteemed and prominent chief justices and senior judges in the common law world. Such unfounded accusations are all the more despicable when one considers that the accusers are prominent lawyers and politicians who know the facts.

Putting everything else aside, the mere fact that we have extradition arrangements with many countries all over the world but none with our own country is itself a most unacceptable flaw in our legal system. This omission has been staring in our face since the handover. That was why, in 1999, as then chairman of the Hong Kong Bar Association, I called on the government to work out an acceptable extradition arrangement with Beijing as soon as possible.

Almost 20 years later we are still, regrettably, nowhere near a full agreement, but a little too late is still better than nothing at all. Let us hope, for once, that our politicians can put the rule of law and justice ahead of their political agendas and support the amendment.

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