Abstract
This article provides an analysis of the bill proposed in 2019 to amend Hong Kong Fugitive Offenders Ordinance (FOO), Hong Kong domestic legislation on extradition. The FOO Amendment Bill introduced the possibility of, and detailed the conditions for, surrendering fugitives from Hong Kong to other regions of the People’s Republic of China (PRC), among which, controversially, mainland China. After multiple protests, the proposal was withdrawn. It nonetheless represents the first attempt of introducing a legal basis for extradition between Hong Kong and mainland China, and it is thus deserving of close scrutiny. The article describes the unique constitutional setting in which this amendment was proposed, Hong Kong and mainland China being two regions of the same sovereign country which have two radically different legal systems under the ‘One Country, Two Systems’ principle. It compares the proposed system for extradition between these two regions with the rules regulating extradition between Hong Kong and third states, and with international systems for surrender, including the European Arrest Warrant and the UN Model Extradition Treaty. It shows that the FOO Amendment Bill would have put in place a surrender system in some respects less advanced and subject to more obstacles than standard international extradition Treaties and than the system regulating extradition between Hong Kong and third countries. This is the case, for instance, for the rules on penalty thresholds and on double criminality. Conversely, in other respects, it would have been even more advanced (and with fewer obstacles) than the European Arrest Warrant, one of the most advanced systems of international surrender. This is notably the case for the rules regulating extradition of Hong Kong residents to other parts of the PRC. These latter were, however, among the more controversial aspects of the proposal. The article also discusses the challenges that reintroducing a similar proposal would face in the future, including in light of current political and legal developments – notably the Standing Committee of the National People’s Congress’s July 2020 adoption of the ‘Hong Kong National Security Law’. It suggests that one avenue to smoothen surrender proceedings between Hong Kong and mainland China would be taking a procedural rather than a substantive approach, namely by increasing the role of courts and decreasing the role of executive bodies in the extradition procedures.
Introduction
In early 2018, 19-year-old Hong Kong resident Chan Tong-kai killed his pregnant girlfriend Poon Hiu-wing in Taiwan. He then returned to Hong Kong. Chan admitted the murder to the Hong Kong police. However, when Taiwanese authorities requested his surrender, the police were unable to comply because there is no legal basis for surrender of fugitives between Hong Kong and Taiwan. 1 Hong Kong’s domestic law on extradition, the Fugitive Offenders Ordinance (FOO), 2 provides the legal basis for the Hong Kong government to conclude extradition agreements with third parties and set the general characteristics such extradition Treaties should include. The text of the ordinance specifies that it refers to arrangements between the Government of Hong Kong and the government of a place outside Hong Kong other than the Central People’s Government of the People’s Republic of China (‘PRC’) or the government of any other part of the PRC. 3 This excluded therefore the possibility to conclude any extradition agreement with, and therefore carry out extradition, not only to Taiwan in this specific case but also with mainland China or Macao. 4
Spurred by the legal difficulties that this case had shown, in February 2019, the Hong Kong government proposed the ‘Fugitive Offenders and Mutual Legal Assistance in Criminal Matters (Amendment) Bill’ (hereinafter ‘the FOO Amendment Bill’). 5 The text was meant to amend the existing Fugitive Offenders Ordinance introducing the possibility to conclude special surrender arrangements with other parts of the PRC. It also set all the legal requirements which such special surrender agreements would have had to respect, which, as the article shows, were in some cases different from the ones the FOO sets for agreements with third countries. The proposed text was updated in May 2019. 6 Yet after 4 months’ protests, the proposed amendment was ultimately withdrawn by the Hong Kong government on 23 October 2019. 7 Still, this text represents the first attempt to introduce a legal basis for a surrender mechanism between Hong Kong and other parts of the PRC. And it could serve as the blueprint for the drafting of any future legislative proposals for such a mechanism. It is thus interesting to look at the features of the special surrender arrangements this FOO Amendment Bill envisaged. Considering that the protests mainly concerned the possibility of extradition from Hong Kong to mainland China, the article will focus in particular on how the envisaged special arrangements provision would have applied to extradition between these two regions, and what legal (and political) challenges extradition between these two regions, under this proposal, could have raised.
Extradition procedures raise issues of sovereignty and protection of human rights. Complying with an extradition request entails that a State exercises coercive powers on its territory, limiting the requested person’s freedom, in order to allow a different State to enforce its criminal law. It also means taking the responsibility for surrendering an individual to a different jurisdiction, where their fundamental rights might be at risk. Reacting to those aspects and risks to different extents, states have adopted different approaches to extradition which require more or less formalities and more or less strict substantive and procedural requirements before an extradition request can be granted. These different approaches are reflected in both domestic legislation on extradition 8 and international extradition agreements concluded between States. Traditionally, extradition Treaties envisage a list of well-established grounds for refusal for extradition, such as ‘double criminality’ or ‘political offence’, which in practice allow States to maintain a significant degree of control on the extradition decision, thereby protecting their sovereignty. 9 However, States with particular historical and political ties, such as Brazil and Portugal, have concluded agreements between them which softened some of these grounds for refusal. 10 Moreover, there are examples of significantly more integrated frameworks such as the EU Framework Decision on the European Arrest Warrant (‘EAW FD’), which regulates extradition between the Member States of the European Union. 11 The EAW FD introduces a semi-automatic system of surrender, implementing the EU principle of mutual recognition 12 and leaving EU Member States very limited room to refuse surrender. The introduction of such an advanced system 13 was possible because the EU Member States are part of an integrated legal order which already entailed the limitation of their sovereignty. They are moreover all subject to similar fundamental rights obligations, stemming both from EU Law 14 and the European Convention on Human Rights. 15 This implies that in principle EU Member States can trust one another that fundamental rights are equally protected throughout Europe; in point of fact, jurisprudence states that the system is underpinned by the principle of mutual trust. 16
The legal relationship between Hong Kong and mainland China is a constitutionally unique one. It differs from the relationship between two sovereign states or between EU Member States but also differs from that between a state or province and the federal government in a federal system. On the one hand, both are technically two regions of the same sovereign State: the PRC. Extradition between these two regions does not raise ‘sovereignty issues’ in the international law sense, as it is a question of internal cooperation, as opposed to international cooperation (such as the EAW FD). On the other hand, under the ‘One Country, Two Systems’ principle, which will be more thoroughly explained below, the two regions have radically different legal, political and economic systems, and Hong Kong enjoys a high degree of autonomy. Those differences include the applicable fundamental rights standards, which create hurdles to extradition between the two regions.
Against this background, the aim of the article is to discuss the main characteristics of the FOO Amendment Bill and to assess the degree of cooperation it envisaged between Hong Kong and mainland China. It will use two sets of texts as benchmarks against which to confer that Amendment. The first is the EAW FD, which will serve as an example of a particularly advanced system of extradition which, while being between sovereign states, is premised on important limitations of sovereignty to ensure effective surrender. The second set consists of the text of the FOO itself, which includes standard extradition law clauses, and the UN Model Extradition Treaty. 17 These will serve as examples of standard extradition agreements which put a higher number of obstacles to extradition, including a number linked to the protection of fundamental rights, than the ones we find in the EAW FD, thereby privileging safeguards for sovereignty. The article will illustrate that the FOO Amendment Bill would introduce a system for extradition from Hong Kong to mainland China, which envisaged more hurdles, than then ones included in the parallel system, regulated by the FOO for extradition between Hong Kong and third states, being in some case even more restrictive than standard extradition Treaties.
The analysis is structured as follows. In the first section, this article clarifies further the background and the legal context in which the amendment was proposed, clarifying the status of the different administrative regions in the PRC and the ‘One Country, Two System’ principle. It also discusses the recent adoption of the ‘Hong Kong National Security Law’ and the challenges this has created for extradition between Hong Kong and third states and might create in the future for extradition between Hong Kong and mainland China (see ‘The background to the 2019 ‘Foo amendment bill’ proposal’ section [First Section]). The following two sections provide a critical analysis of the FOO Amendment Bill. The next one analyses in particular the grounds for refusal of surrender (see ‘Case-by-case approach and grounds for refusal’ section [Second Section]), and the third one discusses the procedural safeguards granted during surrender (see ‘Procedural safeguards’ section [Third Section]). A fourth section concludes the article.
The background to the 2019 ‘Foo amendment bill’ proposal
After an extended period under British rule, Hong Kong was returned to the PRC in 1997. This followed from an international treaty between the United Kingdom and the PRC, the ‘Joint Declaration on the Question of Hong Kong’. 18 Hong Kong has since then been a ‘Special Administrative Region (SAR)’ within the PRC, governed under the ‘Basic Law of Hong Kong’. 19 Similarly, Macao is an SAR governed under the ‘Basic Law of Macao’. 20 Conversely, Taiwan, whose status is contested, is not an SAR. The PRC’s official position is that Taiwan forms part of it: indeed, the Preamble of the PRC Constitution declares that Taiwan is ‘part of the sacred territory of the People’s Republic of China’. 21 The government of Taiwan rejects this, asserting full sovereignty over the island and claiming to be the legitimate successor to the previous state, the Republic of China. However, only 15 countries have recognised Taiwan as an independent state. 22 The portion of the PRC, which excludes Hong Kong, Macao and Taiwan, is traditionally referred to as ‘mainland China’.
After the PRC regained sovereignty over Hong Kong, the question arose of how to deal with the stark differences between the political and legal systems of Hong Kong and the Mainland. To address this issue, as mentioned, the ‘One Country, Two Systems’ principle was introduced. 23 Under this principle, Hong Kong maintains its capitalist system rather than being obliged to adopt the Chinese socialist system, and all laws in force in Hong Kong at the point of return remained in force, save where inconsistent with the ‘Hong Kong Basic Law’. 24 Moreover, Hong Kong is granted a high degree of autonomy in most policy areas, in particular it exercises independent executive, legislative and judicial power. 25 The PCR maintains control on foreign affairs relating to, and the defence of, the SAR, however, as per the ‘Hong Kong Basic Law’. ‘The Central People’s Government authorizes the Hong Kong Special Administrative Region to conduct relevant external affairs on its own in accordance with this Law’ (emphasis added). 26 An example of the exercise of these Hong Kong powers in external affairs is making appropriate arrangements with foreign states for reciprocal juridical assistance. 27
Turning to the topic of our analysis, namely judicial cooperation between Hong Kong and mainland China, the ‘Hong Kong Basic law’ stipulates in art 95 that the Special Administrative Regions may ‘[…] through consultations and in accordance with law, maintain juridical relations with the judicial organs of other parts of the country, and they may render assistance to each other’. There exist interesting examples of judicial cooperation mechanisms between Hong Kong and mainland China, such as a procedure to notify the other side when ‘Criminal Compulsory Measures’ are imposed on, or prosecution initiated against, a resident of that other side. 28
There is, however, no record of art 95 Hong Kong Basic Law being relied upon as a stand-alone legal basis for extradition between mainland China and Hong Kong, 29 and nor does any other legal basis for surrender between the two regions exist. Extradition to and from Hong Kong is regulated by domestic law, the FOO. 30 Part I, s 2 of the Ordinance limits its scope of application to ‘arrangements for the surrender of fugitive offenders’ applicable to the Government of Hong Kong and the government of a place outside Hong Kong other than the Central People’s Government or the government of any other part of the PRC. This provides the legal basis for Hong Kong to conclude agreements with third countries independently from the PRC, and Hong Kong has signed several such extradition treaties, including several countries which do not have an agreement with the PRC. 31 Cooperation between Hong Kong and third states has run quite smoothly in the past years, with a small number of exceptions. 32 Such smoothness, however, seems to have come to an end: in July 2020, an international coalition of lawmakers, the Interparliamentary-Alliance on China (IPAC), called for the suspension of extradition treaties with Hong Kong 33 leading to suspension by Canada, 34 Australia 35 and the United Kingdom. 36 This IPAC campaign was centred on the Chinese People’s Government’s adoption of the ‘Hong Kong National Security Law’. 37 Under the ‘Hong Kong Basic Law’, it is in fact Hong Kong which should adopt laws protecting the security of the PRC, including criminalising a number of political offences. 38 This legislation has, however, never been adopted by Hong Kong legislative Council, because it has long been considered too politically sensitive and possibly an infringement on individual freedoms and democracy. 39 The Chinese People’s Government adopted the National Security Law in July 2020, filling this legal vacuum. This law was, however, considered as severely restricting the rule of law 40 and threatening the ‘One Country Two Systems’ principle. 41 This was the basis of the call for suspending extraditions to Hong Kong, which because of this new regime in force, was seen as no longer capable of guaranteeing the rights of those extradited to its territory and therefore no longer an extradition trustworthy partner. This shows how even in those areas in which Hong Kong has the power to autonomously act externally, its external relations with third states are in practice influenced by the Central People’s Government decisions concerning its territory. As the article will also clarify, the question of the criminalisation political offences, crucial within the debate on the Hong Kong National Security Law, would have posed problems during the implementation of the proposed amendment to the FOO, had this entered into force.
Contrary to what happens to Hong Kong relations with third states, the FOO could not function as a legal basis for extradition between Hong Kong and the mainland: as noted above, pt 2 of the FOO explicitly excludes surrender to other parts of the PRC. And, as also noted above, no other legal mechanism for such surrender existed. Given this legal vacuum, surrenders, as have occurred to date, were based on ad hoc informal arrangements, and in most cases, it was the PRC authorities surrendering fugitives to Hong Kong rather than vice versa. 42 The ad hoc nature of these surrender arrangements has been criticised, and discussions on establishing a more institutionalised framework for surrender have been ongoing for a number of years. 43 However, there was also considerable resistance to such institutionalisation, especially on Hong Kong side. This resistance was based not least on the important differences between the two regions in terms of fundamental rights protection. For instance, while both regions are party to some international human rights instruments such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 44 other key instruments such as the International Convention on Civil and Political Rights (‘ICCPR’) are in force in Hong Kong 45 but not the PRC. 46 Quite apart from the formal legal position, concerns have been raised as to the actual enforcement of fundamental rights in mainland China, 47 which concerns have been given as a further potential obstacle to a long-lasting surrender agreement. 48 On the mainland side, concerns reportedly existed on introducing a surrender mechanism which would include political offence and non-surrender of nationals as grounds for refusal. 49
It was in this context that the high-profile murder mentioned in the introduction provided the trigger to finally table a proposal to amend the FOO by adding a s 3.A, dealing with ‘Special arrangements for surrender of fugitive offenders’ (as opposed to simply arrangements as in s 2, mentioned above). 50 These special arrangements are referred to in the proposed s 3.A(1) as applying ‘between Hong Kong and the place outside Hong Kong’. In this context, the mention to excluding other parts of the PRC was not included. The remaining part of the amendments would then list the specific conditions at which these special arrangements could take place. This section of the FOO, dealing with special arrangements, would have made a suitable domestic legal basis for arrangements between Hong Kong and mainland China for extradition, which was the key issue triggering the protests referred to in the Introduction.
The political context for the introduction of the FOO Amendment Bill bears some similarities with the ‘event-driven’ origin of other regional instrument for extradition, such as the EAW FD, a law proposed and rapidly approved by the EU in the aftermath of the 9/11 terrorist attacks. Beyond this, however, there are important differences between the two texts one should keep in mind. First, the two triggering events are of a completely different scale. Second, some have argued that the murder was simply a pretext for proposing the amendment to the FOO. 51 Third, the EAW FD is an EU law, a sui generis form of international law agreed by unanimity between all of the Member States’ governments and enacted as part of the broader EU constitutional objective of establishing an Area of Freedom, Security and Justice within the EU. 52 Conversely, the FOO Amendment Bill was a unilateral amendment to domestic legislation, therefore only the first step towards establishing an extradition arrangements between the two parties – admittedly objective for which the Chinese government had shown support and willingness 53 – and it was not formally linked to any broader constitutional objective enshrined in either the PRC Constitution or the Hong Kong Basic Law. It was rather designed to facilitate justice in this particular cross-border murder case and possibly other future cross-border criminal cases. 54 Finally, and most importantly, the EAW FD was grounded on the mutual trust between EU Member States that a similar level of fundamental rights applied throughout the EU. The discussions on establishing extradition proceedings between Hong Kong and mainland China were conversely characterised precisely by mistrust, as highlighted above. The following paragraph will show how such mistrust has also shaped the provisions of the FOO Amendment Bill, leading in some cases to stricter conditions for extradition from Hong Kong to mainland China than from Hong Kong to third states. It should be noted that trust in extradition partners is a legal, not only a political, issue. Indeed, with reference to the instant case, it has been argued that Hong Kong could violate its human rights obligations under the ICCPR if it authorised extradition to mainland China and the surrendered person’s human rights were then violated. 55
On this last point, it is worth stressing the capital importance and fragility of mutual trust. Even within the EU – which is highly legally and politically integrated, subject to relatively uniform fundamental rights obligations, and collectively has a track record of fundamental rights enforcement which is not comparable to that of mainland China – the assumption of mutual trust is being questioned, including due to prison conditions in a certain number of prisons in a number of Member States, such that the EAW system is now under pressure. 56 Here as well, it is argued that Member States could violate the ECHR by surrendering individuals to another Member State where their fundamental rights could be violated. 57
The text of the 2019 ‘Foo amendment bill’ proposal: the case-by-case approach and the grounds for refusal
Turning now to a more in depth the analysis of the system envisaged by the FOO Amendment Bill, a first feature one has to underline is that the proposed FOO amendment opened the door to establishing special surrender arrangements between Hong Kong and mainland China but on a case-by-case approach. No any obligation for either party to extradite in any given case was established.
The FOO includes a number of grounds Hong Kong authorities can rely on to refuse surrender to third states or to subject surrender to specific conditions, which have been included in surrender agreements Hong Kong has concluded with third states. These are standard grounds for refusal that one finds in extradition treaties or, in some cases, in the EAW FD, as is the case, for instance, for the double jeopardy principle. 58 Under the amendment, the grounds already listed in the FOO would equally have applied to surrender to mainland China. Other grounds for refusal such as the ‘limitation bar’ are not explicitly included in the FOO, but were included by Hong Kong in all extradition Treaties concluded with third parties. 59 One could imagine this would have been reproduced in the special arrangements between Hong Kong and mainland China.
Including a limitation bar ground for refusal in an arrangement between Hong Kong and mainland China would have not posed problems in practice, for extraditions from mainland China to Hong Kong, considering that Chinese limitation periods are there very long in general 60 and, in murder cases, the Supreme People’s Prosecutor’s Office can extend the period such that it is effectively unlimited. 61
A ground for refusal under the FOO which could, conversely, have posed particular problems when dealing with mainland China is the death penalty based one. Where an offence is punishable in the requesting state by capital punishment, Hong Kong would only surrender subject to reassurances that the death penalty would not be imposed. 62 The death penalty was abolished in Hong Kong in 1993 but remains available (and imposed in practice) in mainland China. While the EAW FD contains no equivalent clause (all Member States having abolished capital punishment and Death Penalty is prohibited under art 2(2) the Charter of Fundamental Rights and Protocol 13 to the European Convention on Human Rights), similar clauses exist in in international treaties between abolitionist and retentionist states, such as the extradition Treaty between the EU and the United States. 63
Other aspects of the FOO which would be politically problematic were Hong Kong to establish a special surrender arrangement with mainland China are (1) the political offence ground for refusal and (2) the absence of a ground for non-surrender of Hong Kong residents. Further, (3) two grounds for refusal (double criminality and penalty thresholds) were regulated in a different and stricter way under the proposed FOO amendment than in the FOO. These three aspects are now discussed in more detail.
Political offence
The political character of an offence is a typical ground for refusal in extradition law. This principle is regarded as the result of the 19th-century political revolutions in Europe 64 and has been widely recognised in modern extradition relations, 65 with the exception of the EAW FD which has innovatively eliminated it. Conversely, it still exists in the FOO, 66 and the proposed FOO amendment would have left it intact.
As mentioned already, the ‘Hong Kong Basic Law’ requires Hong Kong to protect the national security of the PRC, and it in particular obliges Hong Kong to enact domestic legislation criminalising a number of offences that can reasonably be characterised as ‘political offences’. 67 These include treason; secession; sedition; subversion of the Central Government of the PRC; theft of state secrets; political activities by foreign political organisations or bodies based in Hong Kong which interfere with internal affairs of the PRC and which interfere with the ‘One country, Two Systems’ principle; and the establishment by political organisations or bodies in Hong Kong of ties with foreign political organisations or bodies. 68
As also noted above, however, the Hong Kong Legislative Council has not adopted the required legislation in light of its sensitivity and fundamental rights concerns. In any case, these offences were not included in the list of 37 offences for which surrender is permissible. 69 Against this background, the political offence ground for refusal was not likely to be of great relevance for surrender between mainland China and Hong Kong. This should of course be distinguished from the situation of prosecution for offences which are not formally political, for instance corruption offences, but where the prosecution, and consequentially the request for extradition, is in fact made for the purpose of prosecuting or punishing the defendant on account of their political opinions. The FOO also includes an ad hoc ground for refusal 70 in such cases, which conversely would have been highly relevant.
The Central People’s Government has, however, now adopted the ‘Hong Kong National Security Law’ which provides definitions of and penalties for secession, subversion, terrorist activities and collusion with a foreign country or external elements to endanger national security. 71 According to this law, the Hong Kong SAR shall have jurisdiction over cases concerning the above four offences, 72 but in specific situations, the Central level can exercise jurisdiction such that the relevant cases are investigated, prosecuted and tried by mainland China judicial organs. 73 These changes mean that were the Hong Kong government to bring forward fresh proposals to amend the FOO to allow for special surrender arrangements to be concluded with mainland China, maintaining and applying the political offence ground for refusal could actually represent a challenge. The problematic scenario could be that of a mainland Chinese committing these offences while in mainland China and then fleeing to Hong Kong. Were mainland China to ask for the surrender of this person to Hong Kong authorities, refusing surrender on the political offences ground, would be politically controversial and potentially in breach of Hong Kong obligation to protect national security. And if, to uphold the obligation to protect national security, Hong Kong authorities were to decide to prosecute the requested person domestically, practical complications could arise if for instance evidence, including eyewitnesses, is in mainland China.
Admittedly, the relation between extradition and political offences is typically a sensitive topic. Even in the context of the EU, which is an example of a particularly integrated legal and political system where this ground for refusal has been eliminated, the question of the use of EAWs for prosecuting political offences has arisen. After the failure of the independence referendum in Catalonia in 2017, the former Catalan President, Carles Puigdemont went into self-exile first in Belgium and then in Germany. 74 The Spanish Supreme Court issued an EAW to ask for his surrender so he could be prosecuted for misuse of public funds and rebellion (this charge was later changed to sedition). 75 This was clearly a very sensitive case, which could create tension between Spain and Germany. Sedition was potentially a political offence, however, the ground of refusal on these bases has been eliminated in the EAW. The German judiciary nonetheless still refused the surrender on the technical ground that the offence of ‘rebellion’ did not exist as such under German law and was not among the offences for which double criminality had been eliminated. 76
This raises the question of whether Hong Kong Courts could rely on similar legal reasoning if, as posited above, the ‘political offences’ ground for refusal were not to be included in a future FOO amendment in respect of mainland China. In fact, however, the HK National Security Law makes this difficult. To rely on the German judiciary’s legal reasoning of refusing extradition for want of double criminality, it would first be necessary for Hong Kong law to provide its own definitions of these political offences, following which it could refuse extradition where the alleged conduct fell outside of those definitions. Now, in May 2020, the Hong Kong Secretary for Security declared that ‘the HK National Security Law neither replaces nor excludes the relevant provisions of Basic Law’. Given this, Hong Kong is not only free to provide its own definition of political offences, but it actually remains obliged to do so under art 23 of the Basic Law. 77 The Hong Kong Legislative Council could therefore enact such a law, defining the relevant crimes in a narrow sense, and thereby provide a technical solution that would allow the refusal of extradition on these grounds without overtly raising the question of political offences. However, this solution would be frustrated by art 62 of the Hong Kong Security Law, which provides that that Law prevails over any inconsistent domestic law of the Hong Kong SAR. Any narrower definition of these offences’ definition enacted under art 23 of the Basic Law would thus be overridden by the Hong Kong Security Law.
Surrender of Hong Kong residents
The fact that the requested person is a national of the requested state is another traditional ground for refusal in extradition law. 78 One justification for this is the idea that the fugitive ought not be withdrawn from their natural judges, those of their own state. This is linked to the understanding that the state owes its subjects the protection of its laws and to a lack of trust in the criminal justice system of a foreign state, especially with regard to the trial of a foreigner in a foreign language. 79 Certain countries have, however, softened this rule. 80 And this ground was also significantly attenuated in the EAW FD. EU Member States cannot refuse to surrender their nationals. Nonetheless, when the surrender is for prosecution and the requested person is a national or resident of the executing Members State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State to serve the custodial sentence or detention order; similarly, when requested for the execution of a custodial sentence or detention order, surrender can be refused if the person is a national or resident or is staying in the requested state, and the said state undertakes to execute the sentence or detention order in accordance with its domestic law. 81
The FOO includes the fact that the requested person is a PRC national as a ground for refusal, 82 and Hong Kong has routinely included this ground for refusal in extradition treaties with third states. 83 Given that at least a portion of Hong Kong residents are Chinese nationals, 84 the question, when dealing with surrender between Hong Kong and the mainland, is not primarily that of non-extradition of nationals. However, Hong Kong residents, both of Chinese and of foreign nationality, enjoy a special status; for instance, the Hong Kong authorities can issue them with an internationally valid Hong Kong passport. Between mainland China and Hong Kong, the question would thus more be that of non-surrender of Hong Kong residents. This special status was not recognised in the proposed FOO amendment, which in particular did not include the fact that the requested person was a Hong Kong resident to be a ground for refusal for extradition to other regions of the PRC. This was a logical choice considering that the background of the proposal was a crime committed by a Hong Kong resident whose surrender was sought by Taiwan for a murder trial. Because Hong Kong legislation did allow for extraterritorial jurisdiction in this case, the defendant could not have been prosecuted in Hong Kong for these facts committed abroad; the only solution was extradition, which therefore intuitively could not exclude Hong Kong residents. However, the lack of such a ground for refusal has been one of the key issues which sparked concern among Hong Kong residents 85 given widespread lack of confidence in the respect for fundamental rights by the criminal justice and prison system in mainland China. 86 Interestingly, even the Deputy Minister of Taiwan’s Mainland Affairs Council declared that Taiwan did not support the proposed FOO Amendment Bill, which would have allowed the surrender of Taiwanese citizens residing in Hong Kong to mainland China. 87 The Deputy Minister further declared that Taiwan would not have requested the extradition of the Hong Kong citizen convicted of the murder, had the Amendment been approved.
Should the political situation in the future allow a special surrender arrangement between the two regions to be considered afresh, then the EAW FD could potentially provide inspiration for a middle ground. Hong Kong could permit the surrender of its residents to mainland China for prosecution trial but require them to be transferred back to Hong Kong to serve any sentence. This would respect the legal system of the requesting region while also permitting the social reintegration of the requested person, who could serve their sentence closer to any family in Hong Kong; it would further ensure Hong Kong control over the respect of fundamental rights standards during the sentence. Admittedly, however, it would not address the, very serious, concerns Hong Kong protesters have expressed as to the respect of fundamental rights during the trial phase in mainland China.
The double criminality principle and penalty thresholds
The principle of double (or dual) criminality requires that the crime for which extradition is sought must be punishable in both the requested and requesting states, and it is again a deeply ingrained principle of extradition law. 88 The EAW FD is a partial exception to this rule, to the extent that the double criminality principle has been abolished for a list of 32 offences, provided that the relevant offence is punishable with a maximum period of at least 3 years in the requesting state. 89 However, for the offences not included in this list, the requested Member States are allowed to check whether the act would constitute a crime if it occurred in the requested State. 90
Similarly, to most general extradition treaties, the proposed FOO Amendment Bill would have included a strict double criminality check for extradition to mainland China. In fact, the check is even stricter than that required by the FOO for extradition to third countries.
In more detail, the FOO requires that the relevant offence is punishable under both the requesting and requested parties’ law by at least 12 months’ imprisonment. 91 Moreover, it added a further restriction: extraditable offences were only those included in a list of 46 offences. 92 The 12 months penalty threshold can also be found in the advanced EAW FD system, although this requirement only applies to the requesting state’s law. 93 Conversely, neither the UN Model Extradition Treaty nor the EAW FD includes an exhaustive list of extraditable offences. 94 This makes Hong Kong domestic law, which set the conditions for the international extradition Treaties Hong Kong can conclude, already particularly restrictive.
The FOO Amendment Bill went even further. It would provide that surrender between Hong Kong and other regions of the PRC may only be authorised if the relevant offences fall within a still narrower list of 37 offences. 95 Moreover, the FOO Amendment Bill initially limited the surrender to offences punishable with at least 3 years’ imprisonment in both Hong Kong and the requesting region, 96 a threshold that was raised to 7 years 97 following protests against the lowness of the earlier threshold. 98 This is a particularly high threshold, which is hardly found in extradition treaties.
The text of the 2019 ‘Foo amendment bill’ proposal: the procedural safeguards
Role for judicial authorities within the procedure
Under the FOO Amendment Bill, both administrative authorities and judicial authorities, namely courts, are involved in the procedure. In particular, the surrender procedure would be triggered by a certificate issued by the Chief Executive. After the certificate is issued, the ‘Court of committal’, one of the Magistrates’ court in Hong Kong, would hear the case. After the Court’s decision, the Chief Executive would take the final decision regarding surrender. 99 This means that the role of the court would be limited to a prima facie legality check. Once the Court authorise surrenders, the executive has then full discretion on whether to authorise surrender or not. 100 Most importantly, the Chief Executive would be the body scrutinising the protection of human rights in the requesting region and assessing whether this lives up to the standards of the ICCPR and Hong Kong Bill of Rights Ordinance. 101
Having the executive play an important decision-making role in extradition proceedings between sovereign states is not uncommon, 102 since extradition involves both legal and political considerations. Still, entrusting the Chief Executive with the task of verifying human rights protection has raised concerns. It is considered less likely to be independent from the authorities in mainland China than courts would be. 103
By comparison, the EAW has – despite regulating extradition between sovereign states – eliminated any role for the executive in the extradition procedure between EU Member States, introducing a purely judicial procedure 104 The executive role is limited to practical and administrative assistance. 105 The comparison is particularly striking if one considers that the European Court of Justice recently ruled that German prosecutors cannot issue EAWs because they are not independent from the executive, in particular the Ministry of Justice. 106 Moreover, under the EAW FD, any lower or higher court can issue a European Arrest Warrant. 107 In contrast, the FOO Amendment would exclude the involvement of lower ranking judicial authorities (courts and public prosecutors’ offices) in the other administrative regions. On 30 May 2019, the Bureau of Security in Hong Kong proposed one additional amendment to the FOO Amendment, stating that for the purposes of obtaining surrender from Hong Kong, the extradition requests from mainland China can only be issued by the Supreme People’s Court or the Supreme People’s Public Prosecutor’s Office. 108
Granting wider power to courts in Hong Kong in the context of surrender might help reducing public concerns regarding the protection of human rights in the surrender procedure. Since this is a special arrangement, a different approach from the FOO (which only involves administrative authorities) is arguably justifiable.
In addition to the limited role for courts in the procedure, it should also be noted that there is no impartial court which can act as an arbitrator in the case of a dispute between Hong Kong and the Mainland as to extradition. 109 While the two regions being part of the same sovereign country, this feature more closely resembles the relations between two sovereign countries. By contrast, under the EAW FD, the Court of Justice of the European Union is available as an additional judicial body overseeing the system. Drawing together the above strands, under the EAW mechanism, the requested person benefits from three levels of rights protection. The first level is at the national level, where the requested persons have the right to be heard by national courts before the surrender. 110 They can also appeal to a higher court where the executing Member State law provides for this. 111 A second level of protection will come from the EU level, mainly from the European Court of Justice by means of preliminary reference rulings. The third level comes from the Strasbourg Court enforcing the European Convention on Human Rights.
The first level of protection also exists in Hong Kong: The court of committal will hear the case, and after the decision, the requested person can appeal to the Court of Appeal court. 112 The requested person can also apply for habeas corpus. 113 However, no equivalent to the second or third level of protection exists. One could propose a higher judicial body with common jurisdiction over Hong Kong and the mainland given that they form ‘one country’. Yet, one could question whether establishing such institution would not be problematic from the ‘two systems’ principle perspective, according to which Hong Kong has a separate legal system from mainland China, whose courts need to remain independent. In other words, introducing a higher judicial body could threaten the judicial independence of Hong Kong, actually defying the original purpose of providing additional judicial protection to accused. The likelihood of threatening Hong Kong court’s independence would of course depend on the exact powers granted to such overarching judicial body and how judicial cooperation between the various courts is designed.
Assurances in the surrender procedure
The FOO Amendment did not introduce binding rules as to whether specific assurances can be required of the requesting regions before authorising surrender. The possibility to seek and receive assurances concerning, inter alia, respect for the presumption of innocence, open justice, visiting rights, the right against self-incrimination and the right to appeal would have been only regulated by policy documents or practice, which are, however, not legally binding. It would moreover remain in the discretion of the requesting part whether or not to grant the assurance. 114
Further, the body entrusted with requesting such assurances would have been the Chief Executive 115 which, as mentioned, might not be in a sufficiently strong and independent political position credibly to request these safeguards from the mainland China authorities. 116
Conclusion
This article has provided a brief analysis of the amendment to the FOO – Hong Kong domestic extradition law – the Hong Kong government proposed in 2019, so to allow surrender of fugitives to the rest of the PRC, and notably mainland China. It has described the unique constitutional setting in which this arrangement was proposed, namely Hong Kong and mainland China which are two regions of the same sovereign country, but where two different legal systems apply, in observance to the ‘One Country, Two Systems’ policy. The article has shown that the proposed special surrender arrangement envisaged a surrender system which for certain aspects is less advanced, and it presents more obstacles to surrender than standard international extradition Treaties, and of the system in force regulating extradition between Hong Kong and third countries. This is the case for the rules on penalty threshold and on double criminality. On other aspects, the special arrangement appears even more advanced that the European Arrest Warrant, one of the most advanced systems of international surrender. This is the case for what concerns the extradition of Hong Kong residents, which admittedly are for a large part citizens of PRC, but which enjoy a special status, entailing, among others, the possibility of being issued Hong Kong passports.
The protests that followed the proposal of the FOO Amendment Bill have led the Hong Kong authorities to withdraw the draft text. Moreover, the current tense situation which followed the adoption by the Standing Committee of the National People’s Congress of Hong Kong Security Law make a new discussion of special arrangement for surrender between Hong Kong and mainland China unlikely in the near future, and actually, also puts the effective implementation of Hong Kong extradition Treaties with third countries at risk. Yet, the problem of a legal gap on this issue remains, as criminal cases involving mainland China and Hong Kong are not infrequent, as the case of last September of 12 Hong Kong Citizens detained in mainland China accused of illegally crossing the border. 117
In any case, should the political situation evolve, and a new draft be proposed, the text here analysed might constitute a blueprint on the basis of which future text will be based. The issues, highlighted above, chiefly the question of distrust towards the criminal justice system in mainland China, nonetheless remain. In this context, one avenue to smoothen the surrender proceedings between Hong Kong and mainland China, this article has suggested, would be the procedural one, namely envisaging a broader role for courts in the procedure, which, at least in principle, should be independent from the executive power in Hong Kong and therefore from executive power in mainland China, as opposed to the wide role granted in the proposed amendment of the FOO the Chief Executive in Hong Kong which is ultimately accountable to the Central People’s Government.
Footnotes
Acknowledgements
The authors would like to thank Anne Weyembergh, Miguel Manero de Lemos, Jieying Liang and Niall Coghlan for their helpful comments on earlier drafts of this article. The mistakes remain only ours. Yin Yanhong would also like to thank Professor Simon Young, Professor Vagelis Papakonstantinou and Professor Eleftheria Neframi for overall guidance on her research.
Declaration of conflicting interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
