Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.
The Hong Kong protests have been going on for more than 150 days, and it doesn’t seem like we are close to an end.
Being born and raised in Hong Kong, it is a shock to see how far these protests have gone. Never have I ever in my 19 years growing up in this city have I seen such turbulence on the streets. Having watched this political turbulence unfold,
I want to try my best to share how all of this came about, more specifically, the complex legal background and issues of this historical political event.
Origins of the Bill
The Fugitive Offenders and Mutual Legal Assistance In Criminal Matters Legislation (Amendment) Bill 2019 (‘The Bill’) – What is this controversial Bill all about?
Well, this Bill seeks to amend two ordinances: The Fugitive Offenders Ordinance (FOO) and the Mutual Legal Assistance in Criminal Matters Ordinance (MLAO). The ordinance that is causing the most controversy is the FOO.
The FOO is essentially a piece of legislation that concerns the surrender of persons wanted in other jurisdictions in connection with criminal matters. [1] This all sounds pretty helpful – ensuring that fugitives are arrested for their crimes allows justice to prevail…right?
The ostensible reason for the Hong Kong government to push this Bill was because of the case of a murder in Taiwan by a Hong Kong male.[2] Mr. Chan confessed to murdering his girlfriend in Taiwan. However, because his crime was committed in Taiwan and he is currently in Hong Kong, he cannot be tried for his crime unless some extradition agreement arises between the two jurisdictions. Some form of extradition arrangement had to be made, or else this man would be able to roam the streets of Hong Kong and live his life as a normal citizen, though he is guilty of the crime of murder elsewhere – this is unfair and unjust. Thus, the Hong Kong government used this case to push the Bill, to which people of Hong Kong had strong reactions.
The original FOO deliberately excluded Macau, Taiwan, and the Mainland.[3] This is because section 2 of the FOO is defined as arrangements between the HKSARG and the governments of other places outside of HK ‘other than Central People’s Government or the government of any part of the PRC’.[4] This demonstrates how the original ordinance acknowledges the geographical and political ties between these special regions and the PRC. Thus, does any amendment to it mean that the Hong Kong government will view them as separate jurisdictions? Will allowing extraditions to these jurisdictions undermine One Country Two Systems?
However, if we don’t allow it, will we continue to let injustice brew in Hong Kong as it becomes a fugitive haven?
These questions are all matters that the Hong Kong government seems to have failed to address openly, as the Bill was introduced hastily with poorly done consultation from the citizens.[5] This led to concerns about the Bill eventually boiling over and eventually causing the most significant political unrest Hong Kong has seen since the 1997 handover.
Proposed Changes
With the introduction of this Bill, Hong Kong citizen's’ greatest concern was that for the first time, people in Hong Kong can be removed from Hong Kong to stand for trial in the Mainland, Macau or Taiwan.[6] Hong Kong prides itself on upholding the Rule of Law and having a well-developed justice system. Comparatively, Hong Kong's justice system is more comprehensive, as the Hong Kong Judiciary sits as an independent and impartial tribunal, distinctly separate from other strands of government.
As a response to such concerns, on 30 May 2019, the government proposed amendments to provide 'additional safeguards' such as limiting the scope of extraditable crimes and to ensure the protection of fugitives when being transferred to other jurisdictions.[7] Though, concerns about the bill remain amongst citizens despite the city's five major business groups welcoming the bill.
Regardless, some sort of mid-way point has to be made – we cannot let fugitives stay and avoid their criminal liabilities but we also cannot risk fugitives facing an unfair trial should they be extradited.
This is where Legislator Michael Tien Puk-sun and scholar Albert Chen Hung-yee proposed a change to the Bill comes in. Their proposed change was to try Hong Kong fugitives locally to ease worries about extradition.[8] This seems like a good mid-way point – fugitives would still be held liable for their crimes in a court of law while Hong Kong’s developed and well-regarded judicial system can ensure that a fair trial would occur.
However, government authorities rejected this change based on two arguments: Firstly, they claimed that the change would break Hong Kong’s tradition of Hong Kong courts only dealing with crimes committed in Hong Kong. Secondly, they argued based on retroactivity; even if the law was amended, it could only apply to offenses committed after the amendment took effect
But clearly, the first argument is flawed because wouldn’t allowing extradition be an even bigger disturbance in Hong Kong’s judicial tradition? The second argument is also just as confusing – wasn’t the whole introduction of the Bill a way to address the Taiwan murder case retroactively? So why should retroactivity be a concern now? Either way, any amendments to the extradition arrangements of Hong Kong would lead to a hiccup to our judicial system. H
However, it should be viewed as something necessary to overcome to ensure Hong Kong is no longer is a fugitive haven.
A loophole remains…
Until now, the loophole remains for fugitives to remain in Hong Kong and to avoid all criminal liability imposed by the PRC, Macau or Taiwan. All these locations have close geographical ties with Hong Kong, and with the loophole currently advertised more than ever, it will not be a surprise that individuals attempt to take advantage of it. This November, a Taiwanese man exactly did so by robbing watches worth HK $1 million at gunpoint then fleeing back to Taiwan. [9]
As we are nearing the 6th month of protests, the initial concern regarding the FOO has seemed to become irrelevant, as matters of violence continue to escalate. However, we cannot forget what all these protests were originally about: It was about the Bill, a bill that tried to uphold the Rule of Law by ensuring those who committed crimes are held liable. The Bill is now officially quashed, leaving matters even more unclear as protests continue to escalate in our city.
As I sit here in Durham, I deeply hope that all violence would come to an end as soon as possible, allowing the Hong Kong people and government to openly and constructively tackle the issue of this legal loophole immediately to avoid further injustice to unravel.
Nicole Chan (Asia)
SOURCES
[1] Hong Kong Bar Association, A Brief Guide To Issues Arising From The Fugitive Offenders And Mutual Legal Assistance In Criminal Matters Legislation (Amendment) Bill 2019 (“The Bill”) (6 June 2019)
[2] Tony Cheung, The gruesome Taiwan murder that lies behind Hong Kong leader Carrie Lam’s extradition push (South China Morning Post, 27 March 2019) <https://www.scmp.com/news/hong-kong/politics/article/3003381/gruesome-taiwan-murder-lies-behind-hong-kong-leader-carrie> accessed 21 November 2019
[3] Hong Kong Bar Association (n 1)
[4] Hong Kong Bar Association (n 1)
[5] Jeffie Lam, Why massive turnout at march against Hong Kong’s controversial extradition bill could mean game over for leader Carrie Lam despite concessions (South China Morning Post, 7 June 2019) < https://www.scmp.com/news/hong-kong/politics/article/3013487/why-massive-turnout-march-against-hong-kongs-controversial> accessed 21 November 2019
[6] Hong Kong Bar Association (n 1)
[7] Alvin Lum, Hong Kong extradition bill: security chief announces safeguards to win the support of major business groups and political allies (South China Morning Post, 30 May 2019) < https://www.scmp.com/news/hong-kong/politics/article/3012498/hong-kong-security-chief-john-lee-rolls-out-new-measures> accessed 21 November 2019
[8] Gary Cheung, Lawmaker, and legal scholar revise proposed changes to Hong Kong extradition bill in bid to ease fallout from controversial amendment (South China Morning Post, 21 June 2019) < https://www.scmp.com/news/hong-kong/politics/article/3015613/lawmaker-and-legal-scholar-revise-proposed-changes-hong> accessed 21 November 2019
[9] Clifford Lo, Taiwanese robbery suspect flees Hong Kong in echoes of Chan Tong-kai case that led to extradition bill, protest crisis (South China Morning Post, 5 November 2019) <https://www.scmp.com/news/hong-kong/law-and-crime/article/3036257/taiwanese-suspect-flees-hong-kong-echoes-murder-case> accessed 21 November 2019
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