Editor's note: The International Symposium on Cross-Border Criminal Justice under the Basic Law: International Experience and Legal Development in the Greater Bay Area, held on Friday at the Chinese University of Hong Kong, drew illustrious jurists. Grenville Cross, honorary visiting professor of law at CUHK and previously the director of public prosecutions of the Hong Kong Special Administrative Region, shares his thoughts at the forum on the surrender of fugitives.

Good Morning,

I am very grateful to have been invited to today's symposium, and to have the opportunity to share some thoughts with you on the surrender of fugitives.

Although the Security Bureau's proposed amendments to the Fugitive Offenders Ordinance will help to resolve a serious problem, they have encountered vocal opposition, both locally and abroad. The effect of the proposals will be to enable Hong Kong to return fugitives, on a case-by-case basis, to other parts of China, as well as to over 170 countries with which it currently has no extradition agreements. Because of the existing vacuum, many fugitives from other places have obtained safe haven in Hong Kong, with conservative estimates putting the figure in the hundreds, yet they cannot be returned to face justice.

Unfortunate consequences from opposition to the bill

This situation, of course, has had unfortunate consequences. It has undermined effective law enforcement throughout China and beyond, impaired Hong Kong's reputation as a safe city which is intolerant of crime, and shaken the confidence of law enforcers elsewhere in Hong Kong's ability to hold criminals to account and combat crime. Some of the fugitives here have allegedly committed very serious offenses, including a Hong Kong resident accused of murdering his girlfriend in Taiwan, and two Hong Kong businessmen convicted of bribery and money laundering in Macao, and sentenced to terms of imprisonment of five years and three months, yet they are all beyond the reach of the law, which, I suggest, is intolerable.

Some opponents of the proposals argue that, as legal systems elsewhere are different from Hong Kong's, the law should be changed to enable Hong Kong courts to exercise extraterritorial jurisdiction, notably in relation to murder and manslaughter offenses. The critics, moreover, have suggested that Hong Kong residents who are being sought for offenses on the Chinese mainland should, instead of being sent back for trial, be tried in the Hong Kong courts, for which they claim to have legal precedents.

However, although these suggestions might have some superficial appeal, they cannot withstand close scrutiny. They are impractical, and inconsistent with basic common law approaches to criminal jurisdiction.

Throughout the common law world, the territorial principle is generally applied. This means that, in almost all situations, the criminal act or part of it, such as the planning, must have occurred in Hong Kong before it can prosecute a suspect. In consequence, Hong Kong seeks to respect the jurisdiction of the place where the crime occurred, and which is entitled to investigate and try an offense arising on its own territory. This principle, explained the British jurist, Lord Diplock, in a landmark United Kingdom extradition judgment (Treacy v DPP [1971] AC 537, HL), is part of the "comity of nations", which recognizes that it "would be an unjustifiable interference with the sovereignty of other nations over the conduct of persons in their own territories if we were to punish people for conduct which did not take place in the United Kingdom and had no harmful consequences here". This principle applies generally in other common law jurisdictions, including Hong Kong, and deserves respect.

It is, however, certainly true that, in some very limited circumstances, Hong Kong can assume jurisdiction over cases which occurred in other places and try the suspects here. These circumstances require careful scrutiny, not least because they do not provide the critics with the support they claim. They can arise, for example, when it is necessary for Hong Kong to discharge its obligations under international conventions.

Although the Crimes Ordinance, for example, allows Hong Kong to prosecute people who commit sexual offenses against minors in other places, this is exceptional, and is only allowed because it is an integral part of global efforts to combat child sex tourism. It also enables Hong Kong to make a reality of its commitments to protect children under the UN Convention on the Rights of the Child. Again, although Hong Kong people can, under the United Nations Sanctions Ordinance, be prosecuted here for violating UN sanctions elsewhere, this is necessary as part of the duty to ensure that UN resolutions are enforced. International commitments apart, however, Hong Kong laws with extraterritorial reach are strictly applied.

Under the Criminal Jurisdiction Ordinance, for example, some dishonesty offenses, including theft, deception and fraud, can be tried locally, even if committed elsewhere. This, however, is only if "a relevant act" occurs in Hong Kong, meaning one of the acts, omissions or other events concerning the offense, "proof of which is required for conviction of the offense".

Again, although the Prevention of Bribery Ordinance creates an offense of offering an advantage to a public servant, whether in Hong Kong or elsewhere, conduct of that sort directly impacts on Hong Kong, because bribery adversely affects the proper discharge of the public servant's duties in Hong Kong.

Although the Offences Against the Person Ordinance makes it an offense to plan a murder, wherever the victim may be, the conspiracy must actually occur in Hong Kong, even if the killing occurs elsewhere. Again, although the same ordinance criminalizes an act that occurs elsewhere and which results in a death, that death must have occurred in Hong Kong.

Although, in all these situations, the common law principle against extraterritoriality is modified, this is only to a carefully limited extent, and it is only permissible in order to catch criminal conduct which might otherwise not be prosecutable at all. Even then, however, the offense must either involve an act relating to it having occurred in Hong Kong, or else a consequence of it having occurred in Hong Kong. In other words, there is no unilateral assumption of jurisdiction over another place's crimes, and there must be a nexus between the criminality in question and Hong Kong, either before the offense occurs or after.

The critics, however, want to abandon the territoriality principle altogether, in disregard not only of the common law, but also of the comity of nations. Their suggestions, while music to the ears of criminals everywhere, would undermine Hong Kong's duty to help others to combat crime and hold criminals to account.

This apart, if, contrary to established norms, Hong Kong were to assume jurisdiction over offenses which occurred elsewhere, it could only apply to future offenses. All offenders currently wanted in the mainland, Macao, Taiwan, and elsewhere, would, therefore, escape prosecution altogether, no matter how grave their crimes. This is because the Hong Kong Bill of Rights (echoing the International Covenant on Civil and Political Rights) provides that criminal offenses or penalties shall not have retrospective effect. Since, therefore, it is not currently an offense in Hong Kong to commit an offense in, for example, Taiwan, a law which criminalized this would only apply to future cases, and anyone who had allegedly committed a crime in Taiwan previously would not be prosecutable, and thus able to evade justice.

The territoriality principle is, moreover, also based partly on very practical considerations. An offense which occurs elsewhere is invariably investigated in the place it occurs, with the evidence being assembled there. Many places would justifiably resent infringements by others on their sovereignty, and be reluctant to impart their evidence to outsiders, particularly if they have built up what they regard as a strong case. It obviously makes sense for a case, wherever possible, to be tried where it arose, and this is generally recognized by law enforcers the world over.

Although some people have suggested that the Taiwan homicide case should be dealt with on its own, this ignores the wider picture. That case has provided a catalyst, but the problem is huge and requires to be addressed holistically. Previous efforts to establish what the Basic Law (Article 95) calls "juridical relations" with other parts of China did not bear fruit, and the current proposals seek to break the impasse. Hong Kong must take this opportunity to shed itself once and for all of its unfortunate reputation as a sanctuary city for convicted criminals and wanted fugitives, thereby reclaiming its self-respect.

Let me turn now to the safeguards in the proposals, and to how these might be extended. The existing safeguards in Section 5 of the Fugitive Offender Ordinance are internationally recognized, and already feature in Hong Kong's existing 20 SFO agreements. Since some people have expressed fears that people might be at risk for political reasons, the proposals make clear that there will be no surrender for offenses of a political character, and no surrender where the purpose of the request is to punish the wanted person on account of his political opinions (or his race, religion, or nationality). It must also be remembered that there is a world of difference between having a surrender mechanism in place, and actually surrendering someone. Thus, for example, although the United Kingdom has an extradition agreement with Russia, between 2002 and 2019 the UK refused 63 out of 67 requests which Russia made for the surrender of fugitives. Even when the requesting party is a close ally, it by no means follows that the request will succeed, as the United States, for example, has found out. After the UK negotiated its new extradition treaty with the US in 2003, it then refused 14 American extradition requests between 2004 and 2014.

Mainland taking a leaf from Hong Kong practices

On the "fair trial" guarantee issue, it has to be remembered that different places have different legal systems, some more advanced, others less so, and there are limits to how far they can go in sitting in judgment on each other. The fact that all legal systems are not in the exact same stage of development, or develop their justice arrangements in different ways, does not necessarily mean that other legal systems cannot be trusted, or are inferior, or that they will not provide fugitives with due process upon their return. With the mainland, although the legal system has developed along different lines, real attempts have been made in recent years to improve things, often after seeing how things are done in other common law jurisdictions, including Hong Kong. For example, in accordance with the Hong Kong paradigm, the mainland (as a result of amendments to the Criminal Procedural Law in 2012) now prohibits the use of confessions which have been obtained by coercion, even if true (previously, the courts were only concerned with whether the confessions were true, but this has now changed, partly through pressure from the Supreme People's Court and reformers from the academic world, and coerced confessions must now be excluded).

Again, after studying the practice of Hong Kong's ICAC, the mainland now also requires the police to video-record the confession taking process in the more serious cases, so that judges can see subsequently how the admissions upon which prosecutors seek to rely came into existence. Also, after studying the jury system, the mainland adopted the People's Assessors Law in 2018, which enables lay assessors (who are similar to Hong Kong jurors) to try criminal cases, together with the professional judges, and even to outvote the judges on factual questions, although not on legal ones. Again, there has recently been a shift away from the civil law practice of simply reading out witness statements at court, and witnesses are now required to appear physically in court to testify, as happens in Hong Kong.

Rising judicial standards on the mainland

On the mainland, moreover, I understand that suspects cannot be convicted of a crime on the basis simply of a confession (as they can in Hong Kong), and there must also be some corroborating evidence. Although, until about 20 years ago, judges had little legal training, this has all changed, and anyone who wants to be a judge (or a prosecutor or a lawyer) must now pass the difficult National Unified Legal Professional Qualification, together with the separate judges' test, and this has raised judicial standards enormously. So you can see, although some people have done their best to blacken the name of criminal justice on the mainland, and to give the impression that things there are unchanged since the "cultural revolution" (1966-76), this is untrue, and there have actually been some quite significant improvements in the way criminal cases are conducted, and this deserves recognition.

Of course, some people argue that, in addition to the current Section 5 safeguards, extra protections are also desirable. This is certainly possible, most likely on an ad hoc basis. For example, Secretary for Security John Lee Ka-chiu has already indicated that additional requirements can be imposed in particular cases, such as the right to legal representation, and to visits by lawyers and family members, and on Thursday he opened the door to having a fair trial clause. Some of Hong Kong's existing 20 SFO agreements already contain extra provisions designed to ensure a fair trial (for example, the SFO agreement with Australia indicates that the requested party can decline to surrender a fugitive if surrender might place the requested party "in breach of its obligations under international treaties", and this is mirrored in the agreement with Germany; the significance of this is that, under the Basic Law's Article 39, the International Covenant on Civil and Political Rights applies to Hong Kong, and it contains fair trial guarantees, and also a right of appeal). Other discretionary grounds for refusing surrender include: extensive delay since the offense was committed; valid humanitarian grounds to refuse surrender (eg, age, health or personal circumstances), and the triviality of the offense (all these appear in the Australian agreement).

Although the current offense seriousness threshold under the FOO is one year, the Security Bureau, to allay concerns, has already said it will, with case-by-case surrenders, raise this to three years, and this apparently will now be raised to seven years. Although not ideal, this is nonetheless legitimate, and it underlines the fact that these proposals are only a stopgap measure, intended to provide a solution until such time as comprehensive agreements on surrender and mutual legal assistance have been reached with other jurisdictions.

The possibility, moreover, of allowing Hong Kong criminals convicted elsewhere to serve their sentences in Hong Kong is also open for consideration as a separate matter. (Under the Transfer of Sentenced Persons Ordinance, Hong Kong has already signed 15 TSP agreements with other jurisdictions)

Role of the chief executive in fugitive surrender

I have seen it suggested that the current mechanism regarding the role of the chief executive in the fugitive surrender process might be changed, but I see no basis for this. There is an established mechanism in the FOO, and which currently applies with the 20 countries with which Hong Kong has extradition agreements. It is also similar to the procedure used in other common law jurisdictions. Once a request for surrender is received, the chief executive will usually issue the authority to proceed, unless it appears that an order for surrender could not lawfully, or would not in fact, be made. The chief executive is not required to decide if the evidence in support of the request is sufficient, but simply whether there is sufficient evidence to justify a magistrate deciding if there is a prima facie case. If the chief executive issues an authority to proceed, the courts have held that this can be challenged by way of judicial review, which is a significant safeguard.

Of course, once the authority to proceed is issued, this only triggers the process, and the courts then take the matter from there, and decide on the merits of the request for surrender. Even after the court has approved extradition, the case goes back to the CE to actually order surrender, and, once again, the courts have held that the CE's final decision to extradite can be challenged by a prisoner through a judicial review. It can thus be seen that, at every stage, the CE's decisions can be challenged in the courts, and that this therefore provides the suspect with crucial protections

From what I have said, you will see that I do not share the concerns which have been expressed over the extradition proposals. After all, 55 other places now have fugitive surrender agreements in place with the mainland, of which about 40 are now in force, and these appear to be working well. Quite clearly, the mainland, like every other place, knows full well that if it does not ensure that fugitives receive justice on return, it will itself suffer, as other jurisdictions will no longer trust it, and will stop returning fugitives. However, many countries have returned fugitives to the mainland in recent years, including EU member states, and, as agreed, they have been treated appropriately. I suggest, therefore, that many of the concerns that have been generated of late are illusory, sometimes raised for political reasons, and that it is in Hong Kong's best interests to promote effective criminal justice, both in China and beyond.

Thank you.

The Legislative Council will resume the second reading of the extradition law amendment bill at a full council meeting on June 12. Parker Zheng / China Daily

(HK Edition 06/01/2019 page5)