Thousands of people amassed around Hong Kong’s government complex on Wednesday (June 12), scaling barriers and blocking a main road in scenes reminiscent of the city’s 2014 pro-democracy protests as lawmakers prepared to debate a controversial overhaul of the city’s extradition law that would make it possible to send suspects to mainland China for trial.
Today’s gathering, and pledges by businesses to strike, come just days after an estimated one million people flooded the streets of Hong Kong on Sunday (June 9) in a massive demonstration against a proposal many here have called an “evil law,” even as the government has said it’s urgently needed to prevent Hong Kong from being a “haven for fugitives.” Despite Sunday’s unprecedented turnout, the government of the semi-autonomous Chinese city has vowed to press ahead and enact the bill, with its second reading set to take place today. (Update, June 16: On Saturday (June 15) Hong Kong’s chief executive announced she was indefinitely suspending the bill, but protesters want it to be completely withdrawn.)
Critics say the new law will undermine the integrity of the city’s legal system, and usher in the end of Hong Kong’s (paywall) unique legal status.
A former British colony, Hong Kong returned to Chinese sovereignty in 1997 under a model called “One Country, Two Systems,” which accorded Hong Kong its own legal and economic systems and a more robust protection of civil liberties than anywhere in mainland China. Chris Patten, the last colonial-era governor of Hong Kong, has warned that the extradition law would be the “worst thing” to happen to the city (paywall) since the 1997 handover. Many quarters of the international community, including the European Union and the UK, have spoken against the law. The US has warned that the extradition law, if passed, could jeopardize the long-established special status that Washington affords Hong Kong.
How does the law change Hong Kong’s present system of dealing with suspects wanted by other jurisdictions? And why is the Hong Kong government insisting this is necessary? Here are answers to key questions regarding the extradition law, as Hong Kong lawmakers prepare to debate the law tomorrow (June 12) while opponents are gearing up for more protests.
What is the proposed extradition law?
First announced in February and formally introduced in April, the proposed extradition law seeks to update existing laws that govern extradition processes and legal assistance between Hong Kong and other jurisdictions. Specifically, it amends the Fugitive Offenders Ordinance, and the Mutual Legal Assistance in Criminal Matters Ordinance.
Hong Kong currently has mutual extradition agreements signed with 20 jurisdictions—including with ones that mainland China doesn’t have such arrangements with—and provides legal assistance to 32 others.
The current fugitive ordinance, passed just ahead of the 1997 handover of Hong Kong to Chinese sovereignty, explicitly states it does not apply for extradition and legal assistance to “the Central People’s Government or the government of any other part of the People’s Republic of China.” (About a century ago, British Hong Kong did extradite suspects to imperial China, but China stopped making requests due to pride.)
Under the ordinance, Hong Kong does consult with the central government on requests it receives from other countries.
The Hong Kong government now wants to amend the law to allow for extradition on a case-by-case basis with countries not already covered by mutual agreements—and this would include mainland China, doing away with the geographical restrictions on the PRC in the current rules.
The prospect of transferring suspects to China has been the fiercest point of contention thus far, with many critics saying the change would allow for “legalized kidnapping,” a reference to the 2015 abduction of Hong Kong booksellers by Chinese agents.
What prompted the government to overhaul the current law?
The most immediate cause was a gruesome case involving a teenage Hong Konger, Chan Tong-kai, who murdered his pregnant girlfriend during a trip to Taiwan in 2018 and dumped her body in in a suitcase before fleeing back to Hong Kong. Chan has since admitted to the killing in a Hong Kong court, but because Hong Kong has no pre-existing extradition agreement with Taiwan, he cannot be sent to face trial for murder there. And since Hong Kong courts have no jurisdiction over crimes committed in Taiwan, Chan can’t be tried for murder here either. He has pleaded guilty to money-laundering in relation to using his girlfriend’s ATM card on his return and was sentenced to 29 months in prison.
The Hong Kong government has described this case as an example of a major loophole. The proposed amendments to the extradition law, according to the government, will plug this loophole and ensure that Hong Kong does not become a haven for fugitives. Critics, including the American Chamber of Commerce, point out that Hong Kong presently enjoys a reputation for being a relatively low-crime jurisdiction.
Taiwan, however, has rendered the immediate cause moot after declaring that it would not ask for Chan to be extradited if Hong Kong passes the extradition legislation, and says it doesn’t want to see its requests for legal assistance mired in politicized process. It has also rejected entering into any extradition arrangements with Hong Kong under any ordinance that implies Taiwan is part of China—which the proposed bill may be interpreted as doing.
The Hong Kong government itself seems to have inadvertently rendered the proposed law’s raison d’etre moot, too. In response to intense pushback from the business community and local pro-China politicians, it introduced changes to the law meant to serve as safeguards, including the stipulation that extradition requests must come from central authorities in a jurisdiction.
This of course raises a thorny question: which central authority would represent Taiwan, a country over which China has long claimed sovereignty?
Which offences would be liable for extradition?
Under existing law, there are 46 categories of crime that can be included in fugitive surrender agreements between Hong Kong and other states—many of which resemble offenses in a 19th century ordinance that governed extradition to imperial China in the colonial era.
In the proposed ordinance, there are 37 categories of extraditable crimes, each of which includes multiple offences. They include murder; aiding and abetting suicide; bodily assault (including threats to kill); sexual assault; kidnapping; corruption; money laundering; piracy, and “offences relating to the unlawful termination of pregnancy.”
Nine types of crimes, mostly commercial ones related to bankruptcy, tax, and securities and futures trading, were removed from the original list of 46 extraditable offences after vigorous lobbying from the city’s business sector who argued that the inclusion of these would drive global businesses away from Hong Kong. The offence committed must also be punishable by at least seven years in prison to be extraditable; this was increased from the previously proposed three years following pushback from business groups.
What is the extradition process under the proposed law?
Upon receiving a request for extradition, Hong Kong’s Department of Justice first determines whether several conditions are met, including: the crime is one of the 37 listed categories and punishable by seven years or more in prison; the offence in question is a crime in both Hong Kong and the requesting jurisdiction; the offence in question is not of a political character, and the offence is not punishable by death.
If the justice department determines that the conditions are met, then it goes before Hong Kong’s chief executive, who can decide whether to veto or proceed with the extradition request. At this point, the suspect can apply for judicial review, with a right to appeal in the city’s highest court. If the request proceeds, an arrest warrant is issued, after which the subject is immediately barred from leaving Hong Kong. Once the subject is arrested, the case moves to the courts, where a preliminary hearing is held. Once the court decides that there is no political motive behind the extradition request, and that there is sufficient prima facie evidence that there is a possible case, it can then make an order of committal. At this point, the suspect can appeal.
With the judicial process over, the request goes back to the chief executive, who can again decide to deny the extradition request on humanitarian grounds. Here, the subject can petition the chief executive to oppose extradition. Should the chief executive decide to proceed with the extradition, an extradition order is given. At this stage, the suspect can again appeal to the courts to stop the extradition. If the suspect decides not to appeal, or if the appeal is unsuccessful, the suspect is extradited. The process could take years, which is typical of extradition proceedings.
Who are some of the key opponents of the bill?
A host of civil society organizations, business and legal groups, and international bodies have raised serious concerns about the extradition law.
These include the Hong Kong Bar Association, the Hong Kong Law Society, some of Hong Kong’s judges, a broad range of school groups, the Hong Kong Journalist’s Association, the Hong Kong General Chamber of Commerce, the Catholic Diocese of Hong Kong, the American Chamber of Commerce in Hong Kong, the US-China Economic and Security Review Commission, the European Union Office to Hong Kong and Macau, and the governments of the UK and Canada.
On June 6, thousands of lawyers dressed in black staged a rare protest, marching in silence to the government headquarters to oppose the bill. Many say they’ve asked the government to slow down the process and have in-depth consultations but instead, the government has just moved more quickly on the bill.
What are the main criticisms of the proposed law?
At the heart of fears about the law is the threat it poses to Hong Kong’s judicial and legal independence from China.
Beijing’s grip over Hong Kong has tightened in recent years—local residents see evidence of this in the outlawing of a pro-independence political party, the de facto expulsion of a Financial Times journalist, the imprisonment of key leaders from the 2014 pro-democracy Umbrella Movement, and in efforts to enact a proposed law that criminalizes disrespecting the national anthem. Critics of the extradition law say that it will further erode Hong Kong’s freedoms.
There is also a deep distrust of China’s poor human rights record and its opaque legal system, with no guarantee of a fair trial; arbitrary detentions; forced confessions; political prosecutions, and the use of torture and other cruel treatment. For years, China has operated a “global kidnapping campaign” to forcibly bring both Chinese citizens and foreign nationals back to China to face justice. Victims of these abductions include Gui Minhai, a Hong Kong-based bookseller who was snatched from Thailand and later emerged in detention in China.
Lawyers in Hong Kong have pointed out that the proposed law has insufficient built-in safeguards for fair trials and rights protection. For example, while the ordinance says that suspects shouldn’t be extradited for offenses of a political nature, the onus is placed on the suspect to prove that an extradition request is politically motivated, said Billy Li, a barrister and convenor of the Progressive Lawyers Group, a local association that promotes democracy and the rule of law.
And while Hong Kong’s well-respected courts are involved in the process, the courts are not empowered to examine whether the suspect would receive basic human rights protection upon removal, according to the Hong Kong Bar Association (pdf, p. 6). Instead, the courts have narrow review powers and can only look at whether there is sufficient prima facie evidence to convict the suspect.
“The court cannot protect the defendant and the defendant cannot protect themselves,” said Li, the barrister. ”So who can protect the defendant?”
Critics also worry that the chief executive, who makes the final decision on any extradition request, will be swayed by Beijing’s influence, given that the position is effectively Beijing-appointed.
What does the government say about these criticisms?
The government says that it has sought to address some of these criticisms, even as it has ignored demands to scrap, or at least delay, the bill. In addition to the removal of some commercial crimes and raising the minimum threshold of extraditable crimes to those punishable by seven years in jail, chief executive Carrie Lam announced yesterday (June 10) that additional safeguards—such as a time limit to request an extradition after an offence, and that requests must come from the highest authorities—would be legally binding.
In response to concerns raised about the possible chilling impact on the freedom of speech, Hong Kong has said the law is only meant to deal with the gravest of crimes and “will not impinge on freedom of speech, of the press and of publication.”
What does the extradition law mean for foreigners based in or traveling to Hong Kong?
Under Chinese criminal law, Beijing claims jurisdiction in cases of anyone who commits a crime in the People’s Republic of China (PRC), which includes acts where the “consequence of a crime takes place within PRC territory.” China also says it can claim jurisdiction in cases where foreigners outside the country “commit crimes against the PRC state or its citizens,” provided the crimes are ones that incur sentences of at least three years, and are also offences in the place where they were committed.
China wouldn’t be the only country to seek the extradition of suspects for crimes committed outside of its geographic borders, of course. Both Britain and the US have corruption laws that cover acts committed overseas. Another example would be Meng Wanzhou, the CFO of Chinese tech giant Huawei who was arrested in Canada at the request of the US last December on suspicion of violating US trade sanctions on Iran. The US formally requested her extradition in January and a Canadian court will begin extradition hearings next year. A former Hong Kong lawmaker has noted that the proposed amendments to extradition law “can be regarded as a mirrored counterpart of the legal rights utilized by the US government in Meng’s case.”
Lawyers say that if the extradition law is passed, China could use it to retaliate against foreign nationals, such as Americans who work in or travel to Hong Kong. In addition, Hong Kong’s status as a base for journalists, as well as for human rights groups such as Amnesty International and Human Rights Watch, could suffer.
These groups’ ability “to operate safely, and to ensure the security of staffers working on more sensitive projects, would be called into question by this law,” wrote Thomas Kellogg, executive director of the Center for Asian Law at Georgetown University Law Center. “If locally based staff came into possession of information that Beijing deemed sensitive, for example, might not the Chinese government seek to have them repatriated to the mainland and prosecuted for revealing state secrets?”
This means business personnel, scholars, human rights activists, journalists, and the like may prefer to avoid Hong Kong should the extradition law be passed.
The government has vowed to push ahead with the extradition bill. It’s scheduled for a second and third hearing on June 12 in the legislature, and could face a final vote before the Legislative Council breaks for the summer in mid-July. A second wave of protests is planned for tonight (June 11) and tomorrow (June 12).
Article originally appeared in Quartz on 11 June 2019.