The Security Bureau’s proposed amendments to the Fugitive Offenders Ordinance, which provide a means for returning fugitives to other jurisdictions on a case-by-case basis, are a necessary way of correcting a situation which has caused huge problems for criminal justice. As there is currently a vacuum, Hong Kong has become a safe haven for criminals from all parts of China, and beyond, some of whom have already been convicted of serious offenses, yet cannot be returned.
As Hong Kong only has extradition agreements in place with 20 countries, there is currently no mechanism for returning fugitives to the other 174 countries, and they also can evade justice by coming here.
There are estimated to be hundreds of fugitives now hiding out in Hong Kong, and the situation cries out for redress. If Hong Kong is to live up to its reputation as a safe city which is intolerant of crime, and helps other jurisdictions to hold criminals to account, the impasse must be broken. The Security Bureau’s proposals seek to achieve just that, although some people, with axes of their own to grind, claim otherwise.
The former governor, Chris Patten, is a prime example. Always eager to criticize Hong Kong, in order to get at China, he has argued that “societies which believe in the rule of law do not reach agreements like this with those who do not”. This, of course, is rank hypocrisy, as the United Kingdom, where he now lives, has extradition agreements with dictatorships, failed states and nations ravaged by civil war, yet he has not complained once.
The government must hold its nerve, do what is necessary, and not be deflected by pressures from people who either do not understand the situation, or who understand it but do not wish Hong Kong well
As a former European Union commissioner, moreover, who wishes the UK to remain part of the EU, and receives its pension, Patten is presumably also concerned about the relations between other EU states and China. However, even though France, Portugal, Romania and Spain have all signed extradition agreements with China, not a squeak of protest has been heard from him. As he must know, those states would not have signed pacts with China if they felt fugitives would not be treated appropriately on return. His indignation, therefore, is synthetic, and has only been triggered because Hong Kong wishes to follow in the footsteps of the forty countries which have already concluded fugitive surrender agreements with China.
Patten, moreover, notwithstanding his claim that, in the mainland’s legal system, there is “no real distinction between the courts, the security services and what the party wants to happen”, has been wholly silent when fugitives have been returned to China from the EU.
In 2016, for example, Chen Wenhua, who was wanted for embezzlement in Zhejiang, was returned by France to face trial. Again, in 2018, Yao Jingji, a public official accused of bribery, was sent back to China by Bulgaria. In February, Spain also returned two Taiwanese fraud suspects to Beijing, for alleged involvement in a telecoms scam.
In none of these cases, however, did Patten voice any concerns, quite simply because things are not as he describes. By selectively criticizing Hong Kong, for simply going down the path already trodden by the EU, he has starkly exposed his anti-China agenda. For Patten, sadly, Hong Kong has become just another stick with which to beat China.
As a self-appointed extradition expert, Patten should, moreover, know that the Security Bureau is only proposing that a mechanism be created which enables a fugitive to be returned to another jurisdiction in an appropriate case, and that this certainly does not mean that every request for surrender will be granted. Numerous safeguards are built in, and, for example, a fugitive will not be returned if the offence is political in nature, or if the suspect will face punishment for his political opinions, or if the fugitive might be charged with some other offense on return. Although, for example, the UK has an extradition agreement with Russia, in the last 17 years it rejected 63 of the 67 Russian requests for the return of fugitives.
Unfortunately, Patten has chosen not to explain any of these matters to his interlocutors. Quite clearly, this is because they do not dovetail with his extraordinary claim that the proposed changes are the “worst thing” to happen to Hong Kong since 1997. In fact, they are designed to strengthen the legal order, and to promote more effective law enforcement, not only in China but also internationally.
Although Patten says the Security Bureau’s proposals will break China’s “one country, two systems” promise, quite the reverse is true. Hong Kong has obvious responsibilities to other places, and it can have no future as a criminal sanctuary. Offenders from other jurisdictions must be put on notice that there is no place for them in Hong Kong, and the proposals do just that. As for Patten’s jibe that “the Chinese have yet to prove that we can trust them”, he has only to speak to the forty EU and other states which have signed extradition agreements with China. He will discover that they are satisfied with the way in which the Chinese legal system has treated fugitives on return, and also by the way that guarantees given in respect of them have been honored.
As someone who professes concern for Hong Kong, the honorable thing for Patten to have done would have been to allay people’s worries, by clearly explaining things. He could, for example, have described how well the EU’s own experiences of fugitive surrender with China have worked, and how suspects have been properly treated on return. He might, moreover, have explained how the proposed amendments contain internationally recognized safeguards, designed to prevent any abuses of the system. Instead, he has simply sought to stir things up, and it is a great pity that he should have done this at Hong Kong’s expense.
The government, therefore, must hold its nerve, do what is necessary, and not be deflected by pressures from people who either do not understand the situation, or who understand it but do not wish Hong Kong well.
The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.