(CONSULTATION ENDS BY 4 MARCH 2019)
特區政府只需要: (1) 根據現有法律尋求立法會的批准，或 (2) 修改《逃犯條例》和《刑事事宜相互法律協助條例》，允許香港和台灣之間引渡逃犯（甚至直接刪去兩項條例不適用於台灣的限制），便能將該兇殺案的犯案者歸案。這樣公義便能得到彰顯，而無需全盤更改現行法例，及引起上述第5和第6段的問題。
: 2011年，大陸藝術家艾未未因未經指明的「經濟犯罪」而被中國當局逮捕和拘留。單在上個月發生一宗涉及大陸明星干犯經濟犯罪，令中國法律制度的穩健程度再次受到質疑。見 https://www.afr.com/…/chinas-legal-system-under-scrutiny-af…
: 電郵至views@sb.gov.hk、或傳真至2524 3762，或郵寄至添美道2號政府總部東翼10樓保安局A組 https://www.sb.gov.hk/chi/special/views.htm
1. On 12 February 2019, the Security Bureau of the Hong Kong SAR government submitted a proposal (the “Proposal”) to the Legislative Council’s (the “Legco”) Panel on Security to amend the Fugitive Offenders Ordinance (Cap. 503) (“FOO”) and the Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525) (“MLAO”).
If adopted, the amendments will allow the SAR government to surrender suspects in criminal cases between Hong Kong and jurisdictions with which the SAR has not entered into a formal bilateral extradition agreement (“non-contracting jurisdictions”), including mainland China, Taiwan and Macau.
2. Under the Proposal, the surrender of fugitives to non-contracting jurisdictions will no longer require Legco scrutiny and may be approved by the Chief Executive on an one-off “case-based” approach.
3. In other words, the Chief Executive may issue a certificate for the purpose of applying for a provisional warrant, which will authorize the arrest of any person in Hong Kong and, if the extradition request is approved at a court hearing, the said person will be surrendered to the requesting jurisdiction to stand criminal trial or serve an outstanding sentence.
According to the Security Bureau, the Proposal is made in response to a homicide case in February 2018 (the “Homicide Case”) in which Taiwanese authorities were unable to prosecute a Hong Kong man accused of murdering his girlfriend in Taipei and then fleeing to Hong Kong.
4. The PLG is deeply troubled by the Proposal, as it poses a risk to the liberty of anyone in Hong Kong and is unnecessary for the purposes of bringing to justice the perpetrator of the Homicide Case, for the SAR government has more direct means to do so (see paragraph 7 below).
5. If adopted, the Proposal will enable the SAR government to arrest and surrender anyone physically present in Hong Kong—both residents and travelers visiting or passing through the territory—to non-contracting jurisdictions, including, most disconcertingly, mainland China where in practice most extradition requests will likely originate and which the Chief Executive will be pressured into approving.
6. The Proposal may put at risk not only political activists and outspoken critics of the Chinese government who reside in Hong Kong, but also any overseas visitors, from business-people and artists to scholars and dissidents, who set foot in Hong Kong.
These individuals will be exposed to the threat of being handed to the authorities in mainland China, a jurisdiction with a tattered human rights record and an opaque judiciary system, for tax evasion, economic crimes, or other vague or dubious charge .
Only recently, a number of outspoken dissidents and human rights lawyers have been arrested and imprisoned on the mainland, ostensibly on national security grounds. What’s more, the threat of extradition itself will have a chilling effect on civil society in Hong Kong and further stifle the free expression of political thoughts and criticisms in the territory.
7. The PLG would like to debunk a number of common misconceptions surrounding the Proposal:
● The proposal is necessary to bring justice to the victim and her family in the Homicide Case
To bring to justice the perpetrator of the Homicide Case, the SAR government needs only to: (1) seek Legco approval under the existing law; or (2) amend the FOO and MLAO narrowly to allow extradition between Hong Kong and Taiwan (or by simply removing the restriction in the FOO and MLAO that the two statutes do not apply to Taiwan). The aim can be achieved without having sweeping changes made to existing legislation and engendering concerns outlined in paragraphs 5 and 6.
● Under the Proposal, subjects of extradition requests can rely on Hong Kong courts as a gatekeeper
It is true that all extradition requests must go through an extradition hearing. However, the court will grant such approval once it is satisfied that there is sufficient prima facie evidence to result in an indictment. This burden of proof is significantly lower than the standard required for a criminal conviction (proof beyond a reasonable doubt). That means an extradition request may easily get past this “last and the only line of defense” in Hong Kong, as long the Chinese authorities can present factual evidence of a crime which is superficially plausible to the Hong Kong court, which lacks the resources and jurisdiction to sufficiently scrutinise such evidence.
Furthermore, the existing safeguards in the FOO and the MLAO against political prosecution may not adequately protect individuals from extradition requests on the grounds of economic or other seemingly non-political crimes under the implementation of the Proposal.
● The Proposal is necessary to plug longstanding loopholes in cross-border law enforcement
As argued above, the Homicide Case can be addressed with minimal revisions to existing legislation that has been in place since the Handover. It is important to point out that fugitive extradition to mainland China was a topic specifically discussed during the Sino-British negotiation in the 1980s, and that both the FOO and the MLAO had been carefully drafted to preclude extradition to the People’s Republic of China to safeguard against human rights violation. Departing from such a settled position will unnecessarily raise concerns for not only Hong Kong residents but also put into question the status of Hong Kong as an international city relatively safe from mainland intervention.
8. The PLG earnestly asks the Security Bureau to withdraw the Proposal and narrow the scope of legislative amendment to allow for extradition to Taiwan (or by simply removing the restriction in the FOO and MLAO that the two ordinances do not apply to Taiwan), so that the victim and her family in the Homicide Case will see justice done.
This will allow our carefully constructed extradition framework and the territory’s image among the international community to be kept intact, and well-placed concerns over the personal liberty of Hong Kong residents to be allayed.
Furthermore, the PLG calls on members of civil society to speak up about their concerns over the Proposal and submit written responses to the SAR government within the 20-day consultation period expiring on 4 March .
Progressive Lawyers Group
20 February 2019 (PDF Version: https://goo.gl/W17XyU)
: In 2011, mainland artist Ai Weiwei was arrested and detained by Chinese authorities for unspecified “economic crimes.” As recently as last month, a court case involving economic crimes allegedly committed by a mainland celebrity has again called into question the robustness of China’s legal system. See https://www.afr.com/…/chinas-legal-system-under-scrutiny-af…
: By email to email@example.com, or fax to 2524 3762, or by mail to Security Bureau (A Division), 10/F, East Wing, Central Government Offices, 2 Tim Mei Avenue, Tamar, Hong Kong https://www.sb.gov.hk/chi/special/views.htm