We are a group of Hong Kong students studying in Taiwan and Hong Kong alumni of Taiwan Universities. We have deep concerns about the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019, which was proposed purportedly to facilitate an extradition request in respect of a Hong Kong suspect in a homicide case in Taiwan. The suspect, Chan Tong-kai, fled to Hong Kong after the murder in February 2018. He was arrested by the Hong Kong Police in March 2018. Taiwan Shilin District Prosecutors Office officially requested Hong Kong to extradite Chan in December 2018. However, extradition arrangements between Hong Kong and Taiwan have not been possible because Hong Kong, following the official policy of the People’s Republic of China, regards Taiwan as part of ‘China’ and, quite justifiably, Hong Kong law does not currently permit extradition to China. Meanwhile, the courts in Hong Kong could only charge Chan with murder because he did not commit the crime in Hong Kong. He was instead charged with money laundering and was sentenced to twenty-nine months of imprisonment. Using the case as an excuse, the Hong Kong government proposed the aforementioned bill to enable the extradition to jurisdictions with which Hong Kong has no formal extradition arrangement, including Mainland China, Macau, and Taiwan.
The bill has at once aroused the concerns of Hong Kongers from all sectors, including the business sector. The amendment will significantly relax the constraints on extradition. It will allow the Hong Kong government to extradite suspects to countries that are not signatories to the International Covenant on Civil and Political Rights, for 37 different kinds of criminal charges, without the approval of the Legislative Council, so long as prima facie evidence is provided, and the Chief Executive agrees. If the PRC government is to request extradition in such cases as that of Mr. Lam Wing-kee, the victim of the Causeway Bay Books disappearances, is the Hong Kong government really prepared to deny the request?
The nub of the issue lies in the vast differences between the legal systems of mainland China and Hong Kong, in particular in terms of protection of human rights. Suspects will be deprived of their right to a fair trial and their other human rights will henceforth be at stake when they are extradited to China. This is the very reason why the Hong Kong colonial government had excluded China from the application of Hong Kong’s extradition laws before the city’s sovereignty was transferred to China in 1997. This is not a loophole to be closed but a conscious attempt to separate the legal system between Hong Kong and mainland China.
We also doubt that the amendment, if passed, will facilitate extradition between Hong Kong and Taiwan. In truth, it will damage the independent status of Taiwan. The Hong Kong government recently proposed a further amendment which stipulates that extradition requests could only be made from the country’s top legal authority. Given that the PRC government regarded Taiwan as part of China according to the “One-China policy”, if the amendment is passed and the Ministry of Justice of Taiwan duly requests extradition, will the Hong Kong government comply?
In fact, Taiwan’s prosecuting authority has asked the Hong Kong government for legal assistance in relation to the murder case three times, and no response has ever been received. The Mainland Affairs Council of Taiwan has indicated that they will not sign any extradition deal with Hong Kong if it is based on the “One-China policy” rather than equality, dignity, and reciprocity. The Taiwan government has also expressed concerns that the amendment will compromise the safety of Taiwanese when they visit Hong Kong, and it will consider issuing a travel alert for Hong Kong if the law is passed.
The amendment has also aroused the concerns of many countries and now become a diplomatic issue. In an unprecedented move, the European Union lodged a démarche to oppose the amendment. Some US lawmakers even propose to re-examine the “United States-Hong Kong Policy Act”, which at present recognises Hong Kong as a separate customs territory from mainland China. Other countries including Canada, Japan or Australia have also registered their opposition and suggested that they may cancel the Visa-free access for HKSAR passport holders. As such, the amendment will strike a severe blow to the international prestige, human rights protection, and the economy of Hong Kong.
For these reasons, we urge that the Hong Kong government refrain from proceeding with the amendment in haste, adhere to the rule of law and listen to the voice of people, especially the views of the legal profession, with the interests of all in society at the forefront of its mind.