Illustration: Craig Stephens
by Anthony Neoh
by Anthony Neoh

Setting up a central criminal court in China could allay Hong Kong fears over the extradition bill

  • The China International Commercial Court, set up last year to adjudicate international commercial disputes, offers a possible model to follow. Could a similar court, with its own panel of reputable advisers and lay jurors from outside the mainland, be set up to handle rendition cases from Hong Kong, Macau and Taiwan?
It is patently clear that the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill, while laudable in its objectives, has deeply divided the community in Hong Kong. I believe almost everything that needs to be said have been said by both sides, except perhaps the two issues which I shall address here.
The first is the issue of rendition of fugitive offenders to Taiwan, which is the raison d’être for the amendment bill. One has to take account of the fact that the law of the People’s Republic regards Taiwan as an inalienable part of China, although the State Council’s white paper on the “ One China Principle and the Taiwan Issue”, from February 2000, refers to the People’s Republic recognition for pragmatic handling of public business with Taiwan, based on the 1992 consensus.
The rendition of fugitive offenders from Hong Kong to Taiwan will have to follow this mechanism under Hong Kong’s Basic Law. The rendition power in relation to Taiwan is set out in Article 95 of the Basic Law, which states that Hong Kong “may, through consultations and in accordance with law, maintain juridical relations with judicial organs of other parts of the country, and they may render assistance to each other”. As the bill envisages rendition on a case-by-case basis, each rendition represents an agreement for juridical assistance.

Under our constitutional arrangements, Taiwan will have to request the rendition of a fugitive from Hong Kong or, for that matter, anywhere on the mainland or in Macau, through the cross-strait arrangements. If Taiwan is keen to request the rendition of a fugitive from Hong Kong, this would be an excellent time to renew acknowledgement of the 1992 consensus and the usefulness of the cross-strait arrangements.

The second issue is the deep disquiet of the community, particularly the legal community, over the rendition of fugitives from Hong Kong to the mainland, despite the many safeguards suggested by the Hong Kong government. This disquiet stems from the restricted role undertaken by the court in the process.

In every rendition, the Hong Kong government submits the request to a Hong Kong court for a committal decision. The test for committal is whether there is sufficient prima facie evidence shown in the paperwork. This decision is subject to judicial review by the High Court. This is a procedural review to see if the magistrate has omitted to consider any relevant fact in the record, whether there had been procedural improprieties during the hearing, and whether the paper evidence is so thin that no reasonable court would commit.

In the case of a Hong Kong permanent resident who has the right of abode in Hong Kong under Article 24 of the Basic Law, his rendition to another jurisdiction deprives him, at least partly, of this right (he could of course return after his imprisonment overseas, assuming he is found guilty). This deprivation engages a substantive constitutional review under the principles of rationality and proportionality.

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In the case of Hysan Development Company versus The Town Planning Board in 2015, the Court of Final Appeal stated that every public action or law, which abridges a fundamental right under the Basic Law, has to be reviewed by four criteria. These are: first, whether the action or law serves a legitimate aim; second, whether the action or law is rationally related to that aim; third, no more than necessary is being done to achieve that aim; and fourth, the court has to weigh the detrimental impact of that action or law against the societal gains sought to be achieved. 

I would anticipate that the High Court will be engaged in at least one judicial review of a future rendition of a Hong Kong permanent resident under the ad hoc arrangements envisaged by the current amendments. The public disquiet as to whether a fair trial could be ensured would, I am sure, find its way into the arguments before the court, though it is by no means clear whether this will be a determinative point in the final decision.

This brings me to a suggestion, which could perhaps go some way in allaying this public disquiet.

In my 40 years of working on the mainland, helping with its legal and financial developments, I have seen great strides in the improvement of the judiciary.

In the commercial adjudication sphere, China last year set up the International Commercial Courts as a centrally organised court for the adjudication of international disputes (including disputes from Hong Kong, Macau and Taiwan) involving disputes of 300 million yuan (US$38.2 million) or more. The court has appointed a committee of experts to help with its procedure and adjudication work. These experts include well-known and highly reputable international jurists, such as Sir William Blair, former head of the London Commercial Court, and Mr Justice Anselmo Reyes, formerly of the Hong Kong High Court.
The other development is the continuing development of the jury system on the mainland. Criminal trials of particular public interest now have lay jurors, who have to be Chinese citizens of at least 28 years and possess a certain level of education, which would enable the juror to follow the case. The juror has a vote in a three-person adjudication panel, which has to be chaired by a professional judge.

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The central government could combine these two developments into the designation of a central criminal court for trying all rendition cases from Hong Kong, Macau and Taiwan. The court could, like the International Commercial Courts, appoint a committee of experts. This committee would advise the court in matters of procedure to ensure they comply with internationally recognised norms in criminal trials. Senior lawyers and academics with experience in criminal law or human rights from Hong Kong, Macau and Taiwan could be appointed.

This court could also form a list of jurors of Chinese citizens from Hong Kong, Macau and Taiwan, in case of trials of surrendered fugitives from these jurisdictions, and ensure that at least one juror from the surrendering jurisdiction is chosen for the trial. This structure would add credibility to the safeguards already proposed by the Hong Kong government.

Anthony Neoh is a senior counsel and former chairman of the Securities and Futures Commission and chief adviser to the China Securities Regulatory Commission. He is also chairman of the Independent Police Complaints Council. This article reflects the author’s personal views and in no way represents the views of the organisations he is connected with