There are sufficient safeguards to prevent misuse of fugitive law
Updated: 2019-05-21 07:30
Ho Lok-sang explains why public concerns over the proposed amendment bill are unnecessary
Last week I had the occasion to listen to detailed explanation by Secretary for Security John Lee Ka-chiu on the proposed amendment bill for the fugitive law. Now I am completely convinced that there is really nothing to worry about. As a matter of fact, the proposed amendment will ensure that law-abiding citizens in Hong Kong will be better protected.
Let us look at each of the common concerns that the Hong Kong public may have over the proposed amendment bill.
First, the one that is much trumped up by the "pan-democrats" is that the amendment will be used to bring political prisoners to the mainland. I was told that someone like Hong Kong-based publisher Gui Minhai, one of the Causeway Bay booksellers who disappeared and caused a stir both locally and in the international press, would not be extradited. John Lee says that given his background, under the amended fugitive law, the court will surely not extradite him to the mainland even if he has been charged with drunk driving and killing someone in the accident. Hong Kong's court decisions are based on open hearings, and if there is a chance that a criminal charge is politically driven, the extradition process will be terminated for good. The suspect can make his case in the courts and the extradition hearing will be open to the public.
Related to this is the fear that a suspect could be extradited for one crime but, once on the mainland, might be charged with another crime. John Lee says that this will not be allowed. The amendment bill explicitly requires that someone extradited on account of one crime cannot be charged for committing another crime.
The amendment bill explicitly states that no one will be extradited if there is a chance that a charge might be motivated by reasons connected to ethnicity, religion, or political views. The suspect and his/her lawyers can always make the case if there is suspicion of such motivations. If he can convince the court that he is being charged for other reasons he will not be extradited.
Second, there is the concern that wrongdoings in the past necessitated by circumstances such as coercion or extortion by corrupt officials might lead to a person being extradited to the mainland. Lee says that the SAR will not allow this to happen. Besides, he noted that the continental law system on the mainland provides time limits for possible prosecution for most crimes. In particular, for a crime that might elicit a sentence of, say, three years in jail, no prosecution is possible three years after the alleged crime has occurred. Thus, there is already a built-in limit to the time period over which a charge may be laid and extradition proceedings may be launched.
Third, there is the worry that some businesspeople might inadvertently breach mainland laws and thus subject to extradition. Quite apart from the fact that there is a time limit to possible prosecution on the mainland for most crimes, as explained above, nine out of the original 46 have now been removed from the list, particularly those concerning taxes, securities and futures trading, intellectual property, company offenses and the unlawful use of computers. It must be noted that it is a requirement of the fugitive law that extradition will be disallowed unless the alleged crimes on the mainland are also crimes in the SAR.
Fourth, there is the worry that the court might misread the evidence presented and make a wrong ruling. Against this fear, we do have avenues for appeal, and the appellant can go all the way to the Court of Final Appeal. There are two panels of non-permanent judges; one consists of former Hong Kong judges and the other are all from other common law jurisdictions. There are currently 12 overseas judges on the CFA panel. They are all eminent judges with an impeccable background, and their biographies are all available for review on the CFA website. Their appointments have all been endorsed by the LegCo. Hong Kong ranks among the top in the Rule of Law Index published by the World Justice Project. There should be no worry that extraditions that might deviate from the original intent of the extradition law would be allowed.
Finally, there is the worry that the mainland's legal system is not as highly regarded as that in the SAR. While this must be held to be the case, this should not be a reason not to allow someone who commits a crime to face the law of the land where the crime is committed. Today the Chinese mainland maintains extradition treaties with 40 nations, including France, Portugal, Spain, and South Korea.
Paradoxically, the rights of criminals will be better protected if the extradition law is passed. This is because a person who is extradited will be given explicit guarantee that the terms of the extradition are adhered to. I am now convinced there is a lot of misunderstanding among the public, and that the SAR government needs to explain more effectively to the public.
(HK Edition 05/21/2019 page8)