Top HK officials defend controversial extradition bill, saying alternative proposals will ‘fundamentally change’ legal system

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

Hong Kong’s security and justice ministers shot down counterproposals to the government’s controversial extradition bill on Tuesday, saying they were “impracticable” and could not help with transferring a suspect wanted for murder in Taiwan.

Just hours before they spoke Chief Executive Carrie Lam Cheng Yuet-ngor ruled out making changes to the bill, which has stalled in the Legislative Council since being tabled over a month ago amid filibustering by pan-democrats and opposition from the business sector and human rights groups.

If passed, the bill will allow the city to conduct the case-by-case transfer of suspects to places it lacks extradition deals with, including Taiwan and mainland China. Officials said the bill had to be passed soon to send a suspect wanted for murder to Taiwan.

Legal experts and lawmakers have raised counterproposals to address concerns, such as that Hongkongers could be extradited to the mainland for political reasons. The suggestions included empowering local courts with extraterritorial judicial powers to hear cases committed by residents outside the city instead of sending them to the mainland.

But Secretary for Justice Teresa Cheng Yeuk-wah said the alternative proposals would change the tradition that local courts dealt only with crimes committed in Hong Kong.

“This would bring a fundamental change to Hong Kong’s criminal legal system and the principle of territorial jurisdiction, so this suggestion cannot be adopted carelessly,” Cheng said.

Referring to the idea of “trying Hongkongers locally”, put forward by legal expert and Basic Law Committee member Albert Chen Hung-yee and two lawmakers, the pro-government Michael Tien Puk-sun and Alvin Yeung of the opposition camp, Cheng said the suggestion would also involve difficulties in gathering evidence from overseas.

The justice minister said even if courts were given extraterritorial jurisdiction, the legal changes would not be retroactive, as it would be against the Bill of Rights.

She said the lack of retroactivity meant the extradition bill could not apply to the Taiwan case, which happened last year.

Security minister John Lee Ka-chiu stressed the urgency of passing the bill, saying serious crimes affecting Hongkongers could happen overseas “at any time”.

Lee referred to the case involving Hongkonger Chan Tong-kai, 20, who is wanted in Taiwan for his girlfriend’s murder. Chan was jailed last week for 29 months on related money-laundering charges but could be released as early as October, meaning he could flee Hong Kong and escape extradition.

The two ministers sidestepped the question of why officials did not try to address the Taiwan case first, before seeking long-term changes to the city’s extradition laws.

“I have said repeatedly that at the present moment there is no legal basis to offer assistance [to Taiwan] that has been requested… That is exactly the reason I have made this proposal,” Lee said.

The pair dodged the question of whether Hong Kong could turn down an extradition request from Beijing, with Cheng saying only that there were procedural safeguards, as the proposed process involved the courts’ scrutiny and the chief executive to make a final decision.

An extradition decision could also be subject to a judicial review, Cheng said.

But lawmakers and proponents of the alternatives were quick to criticise the government’s reasoning.

Tien said he was “surprised”, “confused” and “disappointed” by the ministers’ rejection.

“I totally agree with the secretary for justice on her point on retroactivity,” Tien said.

“That’s why I suggested the government retract its current proposal and table two separate bills, with one to handle Chan’s case and the other to establish a system for Hong Kong courts to try Hongkongers who committed crimes outside the city.”

University of Hong Kong law professor Johannes Chan Man-mun said extraterritorial offences had always been part of the Hong Kong and common law system local courts can try cases involving theft, forgery, sexual abuse against minors and bribery overseas. “The government seems to have exaggerated the problem,” he said.

On retroactivity, Chan said the new law could be narrowly construed, for example, by applying it only to murder cases that happened a year before the enactment date.

Felix Chung Kwok-pan, leader of the pro-business Liberal Party, said Cheng did not offer enough explanations before shooting down the counterproposals.

“I am 100 per cent disappointed,” Chung said. “Only a few days ago the chief executive said they would listen to views from various sectors, and now they’ve rejected them all.”

Pan-democrats slammed officials for not putting on the record whether Hong Kong would refuse extradition requests from Beijing, or to spell out such power in the law.

Yeung said extending the court’s power to outside Hong Kong did not involve questions about retroactivity, or creating new offences, because murder was always considered a crime.


Since the government’s extradition proposal was published in March, legal experts and politicians have put forward alternatives they claim would be less controversial and able to address public concerns.

The government has so far directly addressed two of these proposals, the “tried in Hong Kong” proposal and one that extends the jurisdiction of Hong Kong courts beyond the city’s borders.

Tried in Hong Kong

Proposed by: Basic Law Committee member Albert Chen Hung-yee, Civic Party leader Alvin Yeung and pro-establishment camp lawmaker Michael Tien Puk-sun.

Proposal: Hong Kong residents could be excluded from being extradited to mainland China for crimes committed across the border, and tried locally instead.

Rejected: Secretary for Justice Teresa Cheng Yeuk-wah said the plan would bring “fundamental change” to the city’s common law system, which operated on the principle of territorial jurisdiction.

Extending Hong Kong courts’ jurisdiction

Proposed by: Bar Association and pan-democrats.

Proposal: Hong Kong courts could hear overseas murder cases involving Hong Kong suspects and/or victims, by extending their jurisdiction.

Rejected: Cheng said such an amendment could not handle the Taiwan murder case last year.

Non-retroactive clause

Proposed by: Albert Chen, backed by pro-government lawmaker Michael Tien and the Liberal Party.

Proposal: The extradition bill should have no retroactive effect over acts committed before the new law was passed. It would mean the suspect involved in the Taiwan murder case last year could not be extradited.

Fair trial clause

Proposed by: Philip Dykes, human rights lawyer

Proposal: Extradition would only be granted if it could be demonstrated a suspect could get a fair trial in the requesting jurisdiction.

Revised fair trial clause

Proposed by: Johannes Chan Man-mun, law professor of the University of Hong Kong

Proposal: An extradition request would automatically be refused if the place was not a signatory to the International Covenant on Civil and Political Rights and if it could not provide a sufficient guarantee in the criminal justice system.

Rejected: Cheng said Singapore and Malaysia, neither of which are party to the ICCPR, did sign formal extradition treaties with Hong Kong.

Deal with Taiwan case first

Proposed by: Pan-democrats

Proposal: To insert a sunset clause to a separate bill that would allow extradition to Taiwan for a limited period of time. The bill would lapse after that.


Category: Hong Kong

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