The proposed fugitive transfer system is good but not enough
When I conducted anti-corruption talks on the Chinese mainland, one frequent question from the floor is why Hong Kong SAR could allow the city to be used as the haven for corrupt mainland offenders. It was also portrayed in a popular mainland drama series that these corrupt officials openly form a club to enjoy luxury living in a five-star hotel in Hong Kong, oblivious to the arrest warrants for them on the mainland!
Honestly, I had problem answering this question as I too am baffled that 21 years after the handover, both sides still cannot come up with a reasonable rendition agreement. But the fact is that mainland authorities have succeeded in signing extradition treaties with many countries, and even for those that do not yet have the treaty, many would entertain case-by-case extradition requests from the mainland. Take the case of the well-publicized 100 most wanted people Red Notice list published by the mainland authorities on corrupt fugitives, over 55 have been extradited back to the mainland thus far, and some of them are from Western countries like the United States, Canada, Australia and EU countries. If this can be done amongst so many Western countries, how come it cannot be applied within China itself!
The United Nations Convention Against Corruption, a very powerful international convention, states in Article 44 that all state parties should assist each other in the extradition of corrupt fugitives. Upon request for extradition, the state parties concerned may use the convention as a legal basis to grant extradition even if there is no extradition treaty between the two countries. Hong Kong is party to the convention but apparently we have failed to honor our obligations under the convention.
Hence the proposed case-by-case fugitive transfer system, though belated, is a step in the right direction. As totally expected, the opposition parties immediately formed a united front to use scaremongering tactics to attack the proposal. They said Hong Kong citizens would be lined up to be sent back to the mainland for political offenses! But the way they spoke gave the impression that they were totally ignorant of the Fugitive Offenders Ordinance. This is most shameful as some of them are seasoned lawyers. Perhaps they should do their homework first before they barked.
If they had, they should know that all extradition would only cover the most serious criminal offenses, and no political offenses are extraditable. Furthermore, even if it is not a political offense, the courts would dismiss the extradition request if they felt it was made for the purpose of prosecuting or punishing the person on account of their race, religion, nationality or political opinions.
They said the mainland judicial system cannot be trusted. But even Western countries The author is an adjunct professor of HKU SPACE and council member of the Chinese Association of Hong Kong and Macao Studies. He is also former deputy commissioner of ICAC and an international anti-corruption consultant. have no problem sending corrupt fugitives back to the Chinese mainland. Again the local law provides that the courts could refuse to grant the request should they suspect that once surrendered, the fugitives would be prejudiced at their trial or punished, detained or restricted in their personal liberty on the grounds of race, religion, nationality or political opinions.
Hence there are ample safeguards built into the proposed system to rebut the criticism of the opposition parties. Furthermore, the current proposed system requires the personal endorsement of the chief executive before the extradition proceeding can commence. Perhaps this can further be improved by requiring the concurrence of the Executive Council chaired by the CE rather than his or her personal approval alone.
Also if the extradition request comes from any jurisdictions that have death penalty on their statute books, there should be an undertaking that the fugitive cannot be sentenced to death upon extradition.
In the meantime, active consideration should be given to speed up the signing of a mutual legal assistance agreement with the mainland authorities, to cover not only extradition, but also the important areas of mutual legal assistance, tracing and recovery of criminal and corrupt proceeds. The agreement can also include transfer of prisoners, which would enable Hong Kong offenders convicted on the Chinese mainland to serve their sentence in the SAR. That should go some way toward relieving the concerns of those who oppose government efforts to rectify this loophole in dealing with fugitives across different jurisdictions.