HK extradition law expert says collecting evidence overseas for use in local courts can be done, contrary to justice minister’s recent comments

15-May-2019 Intellasia | South China Morning Post | 6:00 AM Print This Post

A leading extradition law expert has rejected the Hong Kong justice minister’s dismissal of key counterproposals to a controversial extradition bill, saying there is no problem collecting evidence overseas and using it in local courts to try a murder suspect wanted in Taiwan.

Senior counsel and former senior prosecutor Michael Blanchflower’s remark came after Teresa Cheng Yeuk-wah, herself a leading civil lawyer before taking public office, last week shot down a proposal to extend the power of the courts to hear overseas murder cases or ones related to mainland China. Cheng said it was “impracticable” to deal with evidence from overseas and apply the law retroactively.

Blanchflower, however, said Hong Kong law enforcement officers had been obtaining evidence overseas for decades, and it had been admissible in local courts.

“So long as the evidence complies with rules of evidence of Hong Kong, it is admissible,” said the former senior assistant director of public prosecutions.

 (South China Morning Post)

(South China Morning Post)

“Evidence from overseas may be highly relevant, while evidence obtained in Hong Kong may be relevant but have little weight. It is not the location of evidence, but its relevance and weight that matters.”

Other criminal lawyers involved in similar cases echoed his observation, describing the taking of evidence abroad as feasible.

Christopher Morley, who specialised in white-collar crime and had been personally involved in cases taking evidence from overseas and the mainland, said that using evidence from elsewhere was certainly manageable.

“It is an obstacle, but it’s not an insurmountable obstacle,” Morley recalled from his personal experience.

In practice, Morley said, the examination of evidence could either be handled with an overseas judge presiding, or a Hong Kong judge could be brought to preside overseas.

“More recently, we could take evidence via video conferencing overseas,” Morley said. “The Court of Appeal recently took evidence from Australia, via video.”

Another criminal lawyer, who spoke on condition of anonymity, also said that in the context of a murder trial, the key to the case often lay in circumstantial evidence such as CCTV footage and could easily be transferred overseas.

The lawyer’s remarks underscored an increasingly difficult situation for the government, which has been pushing for an overhaul of fugitive laws to allow case-by-case extradition to any jurisdiction Hong Kong lacks a deal with, including the mainland.

Although officials have stressed the urgency of the bill to extradite murder suspect Chan Tong-kai to Taiwan by October, the island’s justice department warned on Monday that the case should be separated from the contentious bill.

The Hong Kong Bar Association and Law Society both supported extending the court’s powers to hear murder cases overseas, instead of amending the law.

Meanwhile, leading legal scholar Albert Chen Hung-yee and lawmaker Michael Tien Puk-sun backed the idea of trying Hongkongers locally after rendition requests had come from the mainland.

Neither of these plans received the blessing of the government. Cheng said last week that neither could be used to extradite the suspect to Taiwan, as the rule change could not be applied retroactively because of a restriction under the Bill of Rights, the legislation that protects citizens’ personal rights and liberty.

But Blanchflower said extending the court’s powers to hear overseas murder cases was not covered by this restriction, because that crime was always recognised in other places.

“Trying the person in Hong Kong would not be creating a new offence,” he said. “The jurisdiction for trying the person accused of murder committed overseas would be new, but the act or omission wherever it occurred, always constituted a criminal offence under Hong Kong and international law.”



Category: Hong Kong

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