The ‘world’ in the title really just refers to the Anglophone world. This is a series of articles written in response to the grossly biased and one-sided coverage of this year’s Hong Kong protests in Western English-language media based on legal, economic and socio-historical analysis, and my living experience of witnessing the escalation of the political crisis as a former university student in Hong Kong in 2014 — 2018. As a believer in liberal democratic values, I do not side with either Beijing or the protesters on this particular issue, but only facts, logical coherence, and open discussion.
The current unrest is about much more than the extradition bill. It is deeply rooted in Hong Kong’s unique history, political and economic structure, and cultural identity. This article mainly introduces the legal technicalities surrounding the proposed amendment itself, whereas upcoming articles will seek to address the broader issues facing Hong Kong and causes thereof.
- ‘The Extradition Bill was China’s effort to further erode Hong Kong’s freedoms.’
Many seem to assume that the Chinese government was behind the initial proposition of the bill despite the total lack of evidence suggesting such. On the contrary, at a recent closed-door meeting with a group of Hong Kong business elite, Carrie Lam admitted
This is not something instructed, coerced by the central government. This is out of a good intention, myself and some of my key colleagues to try to plug legal loopholes in Hong Kong’s system, very much prompted by our compassion for a single case, and this has proven to be very unwise given the circumstances.
according to a recording obtained by Reuters.
Hong Kong currently has extradition agreements signed with 20 jurisdictions around the world. In contrast, for example, the UK has pacts with 28 European jurisdictions under part 1 of the Extradition Act 2003 and 116 territories under part 2 of the Act, including UAE and a number of Latin American and African countries.
The proposal was ostensibly prompted by the murder of a pregnant Hong Kong woman by her Hong Kong boyfriend in Taipei, who fled back to Hong Kong after the alleged crime. Without an extradition arrangement between the two jurisdictions, the killer was unable to be extradited to Taiwan to stand trial. This is, without denial, a major ‘legal loophole’, and it is not hard to imagine how Hong Kong may have served a haven for fugitives from many other jurisdictions in the world, including mainland China, for the same reason.
As Grenville Cross QC, former Director of Public Prosecutions of Hong Kong, said, the bill was ‘an important initiative in terms of international criminal justice’ and ‘Hong Kong undoubtedly has an international obligation to help other jurisdictions to combat crime’.
The proposed amendment was not directed at mainland China or Taiwan either, but rather to allow for extradition on a case-by-case basis with any place in the world not already covered by mutual agreements.
2. The main purposes of the Bill are to:
(b) amend the Mutual Legal Assistance in Criminal Matters Ordinance
(Cap. 525) so that arrangements for mutual legal assistance made
between Hong Kong and any place outside Hong Kong (including any
other part of the People’s Republic of China (“PRC”)) may be given
Admittedly, Carrie Lam may well have had in mind the goal to add a political achievement to her tenure that would be well appreciated by Beijing. It nonetheless will remain a groundless presumption that Beijing instructed her to propose the amendment for the purpose of eroding Hong Kong’s legal independence until compelling evidence suggests so. To attribute the indeed ‘unwise’ proposal to Beijing’s prerogative not only is presumptuous but also constitute an apparent conspiracy theory to stir up the already growing anti-mainland sentiments in Hong Kong, especially among the youth, which directly led to the initial eruption of protests. Such speculatory accusations have been given the effect of facts in Western media’s coverage, which is hardly surprising given the assumption that China is the biggest enemy of liberal democracy in current Western political discourse.
2. ‘The Bill, if passed, would have allowed Beijing’s perceived dissidents to be sent to the mainland and subject to arbitrary sentencing.’
It suffices to make three points on this widely spread misconception.
a) The mainland criminal justice system may not be as gruesome as it sounds.
China certainly does not have a proud record in terms of the rule of law. Nonetheless, as Cross points out, over 50 countries, including nine EU countries ‘who have signed up to every human rights treaty’, have signed extradition treaties with the country. Among them are Spain, France, Austria, and Belgium, which are some of the freest countries in the world. Their willingness to enter extradition agreements with China is testimony to the progress that has been achieved in China’s legal system, as noted by Cross in an article written for South China Morning Post
Much comment on the mainland’s legal system has been deliberately erroneous, giving the impression that it is unchanged since the Cultural Revolution. However, since the 1980s, when former paramount leader Deng Xiaoping said “we must build a modern legal system for China”, reformers have greatly improved things, often after studying the Hong Kong paradigm.
Until about 20 years ago, mainland judges had little legal training; but all this has now changed. Anyone who wants to be a judge — or a prosecutor or lawyer — must now pass the difficult National Unified Legal Professional Qualification Examination. Many of the new breed of judges and legal officials have studied law abroad, and are familiar with Western notions of criminal justice. Since last year, professional judges, when trying criminal cases, sit with people’s assessors, who are similar to Hong Kong jurors and can provide independent scrutiny, with cases being decided by majority voting.
It is understandable that many in Hong Kong would fear the legal system operating in mainland China, given that a large proportion of the population fled lawless chaos that embroiled China during the Cultural Revolution to Hong Kong as refugees. Even the young people on the streets today may have heard horror stories from their parents and grandparents. That being said, there certainly is a lack of understanding of the significant differences between today’s China and China in the old era.
b) There are multiple safeguards in the proposed law to ensure criminal justice.
Firstly, only 46 categories of serious offences were included in the original amendment and nine types of mostly white-collar crimes, including some related to bankruptcy, tax, and securities and futures trading, were later struck out due to the business sector’s lobbying. (Hong Kong being the heaven for capitalism, what else would you expect?) The finalised list looked like this
Murder or manslaughter, including criminal negligence causing death; culpable homicide; assault with intent to commit murder.
Aiding, abetting, counseling or procuring suicide.
Maliciously wounding; maiming; inflicting grievous or actual bodily harm; assault occasioning actual bodily harm; threats to kill; intentional or reckless endangering of life whether by means of a weapon, a dangerous substance or otherwise; offences relating to unlawful wounding or injuring.
Offences of a sexual nature including rape; sexual assault; indecent assault; unlawful sexual acts on children; statutory sexual offences.
Gross indecency with a child, a mental defective or an unconscious person.
Kidnapping; abduction; false imprisonment; unlawful confinement; dealing or trafficking in slaves or other persons; taking a hostage.
Is it really unreasonable to ensure that fugitives of grave offences receive the punishment they deserve?
Secondly, for an offence to be extraditable, it must be punishable by at least seven years’ imprisonment, whereas, in the 20 fugitive surrender arrangements that Hong Kong currently maintains, the restriction is only one year. Additional conditions must also be met, namely
the offence in question is a crime in both Hong Kong and the requesting jurisdiction
the offence in question is not of a political character, and
the offence is not punishable by death
Right before the first reading of the bill in April, Secretary for Justice Teresa Cheng confirmed that political fugitives would not be transferred under the proposed law. This condition would have effectively guarded against political persecution that protesters allege to be Beijing’s motive behind the bill. How many of them, though, are even aware of the existence of this safeguard?
c) There are numerous further safeguards built into the extradition process, as summarised below
If the justice department determines that the conditions are met, then it goes before Hong Kong’s chief executive, who can decide whether to veto or proceed with the extradition request. At this point, the suspect can apply for judicial review, with a right to appeal in the city’s highest court. If the request proceeds, an arrest warrant is issued, after which the subject is immediately barred from leaving Hong Kong. Once the subject is arrested, the case moves to the courts, where a preliminary hearing is held. Once the court decides that there is no political motive behind the extradition request, and that there is sufficient prima facie evidence that there is a possible case, it can then make an order of committal. At this point, the suspect can appeal.
With the judicial process over, the request goes back to the chief executive, who can again decide to deny the extradition request on humanitarian grounds. Here, the subject can petition the chief executive to oppose extradition. Should the chief executive decide to proceed with the extradition, an extradition order is given. At this stage, the suspect can again appeal to the courts to stop the extradition. If the suspect decides not to appeal, or if the appeal is unsuccessful, the suspect is extradited. The process could take years, which is typical of extradition proceedings.
The Basic Law, Hong Kong’s de facto constitution, guarantees the separation of executive, legislative and judiciary powers, as is the case in most common law jurisdictions. Hong Kong’s judicial independence has remained in good shape since the 1997 handover, with Hong Kong ranked 16th worldwide by the WJP Rule of Law Index 2019, just trailing behind Australia and the UK and ahead of France and the US.
The Court of Final Appeal, having replaced the Judicial Committee of the Privy Council in London as the final appellate court of Hong Kong, boasts highly distinguished jurists from across the common law world. The majority of non-permanent judges are from other jurisdictions. Most of the ‘local’ judges also hold foreign passports. To think that such a judiciary would bend under Beijing’s political pressure, risking jeopardising their own professional reputations, is rather senseless. On the contrary, on numerous occasions, Hong Kong courts have ruled much to Beijing’s dismay. In one case involving an alleged assault against a so-called pro-democracy activist by several police officers during the 2014 protests, the court found the defendants guilty, causing an outcry on Chinese state media.
3. ‘Hong Kong protesters’ “five demands” are just and reasonable and therefore should be satisfied.’
Weeks into the protests, five demands were put forward by certain protesters
a) withdraw the bill
In July, Carrie Lam announced that ‘the bill is dead’, suspending the legislative process. This response did not satisfy protesters, who demanded a complete withdrawal of the bill. This was essentially a meaningless demand, as similar bills can be proposed in the future, even if the current one is withdrawn. With her tenure presumably ending in 2022, Carrie Lam will not and cannot promise that no similar bills will be put forward by her successors. Recently, Lam finally announced a formal withdrawal, which perhaps should come much sooner.
b) for Carrie Lam to step down
Article 52 of the Basic Law provides
The Chief Executive of the Hong Kong Special Administrative Region must resign under any of the following circumstances:
( 1 ) When he or she loses the ability to discharge his or her duties as a result of serious illness or other reasons;
( 2 ) When, after the Legislative Council is dissolved because he or she twice refuses to sign a bill passed by it, the new Legislative Council again passes by a two-thirds majority of all the members the original bill in dispute, but he or she still refuses to sign it; and
( 3 ) When, after the Legislative Council is dissolved because it refuses to pass a budget or any other important bill, the new Legislative Council still refuses to pass the original bill in dispute.
None of the circumstances listed above have materialised. Therefore, this demand lacks a legal basis. Moreover, a change of leadership at the moment is likely to add to the chaos that has embroiled Hong Kong. I fail to see how it would improve the situation.
From Carrie Lam’s perspective, having caused such a major political crisis, she may want to take up her responsibilities and fix the situation as much as she could. After all, there currently is no apparent candidate successor capable of solving the issues. Having had to renounce her UK citizenship to run in the elections, she perhaps indeed wishes to redeem herself and contribute to the future of Hong Kong, a city she repeatedly expressed deep love towards.
c) an independent Commission of Inquiry for police brutality
The Hong Kong Police have shown great restraint in the protests. Just imagine if protesters had hurled petrol bombs at police officers or aimed hundreds of high-powered laser pointers right into their eyes potentially causing permanent eyesight damage in London or Washington DC.
Both Hong Kong and foreign media have been using a microscope to scrutinise any police use of force and turned a blind eye towards certain groups of protesters’ violence against both the police, fellow citizens and mainland visitors. After all, only this angle would fit into the overarching narrative where evil police, as apparatus of a pro-Beijing SAR government, brutally crack down on innocent democracy fighters. On both Twitter and mainland social media, large numbers of videos showing the other side of the confrontations have emerged yet failed to be featured in mainstream media.
This, of course, is not to say that police brutality did not exist. It may well have, as would be the case in any such lengthy large-scale protests where the police are working under enormous pressure and constantly provoked.
The protests have been ongoing for months. Alleged instances of excessive use of police force would range across a large span of time and involve hundreds and thousands of people hardly identifiable not least because of the masks worn by protesters.
Henry Litton QC, a former Court of Final Appeal judge, says
Take the proposal ‘to examine the range of causes of series of large scale protests, serious conflict with the police etc., etc.’ for example. Plainly, those ‘causes’ spring from very many different sources of discontent, including the ever-widening gap between the rich and the poor, the exorbitant rents for substandard housing, the diminishing prospect of meaningful employment for the young, fear of repression, etc, etc.
Assume that a Commissioner, say, a senior judge (serving or retired) is appointed. That person would have to hear evidence from a huge range of people to begin to understand the background issues: and before he/she conducts any ‘sittings’, those assisting the enquiry would have to take witness statements from potential witnesses, from the Chief Executive to the black-shirted student; and of course the Police Commissioner down to the individual officers on the ground. The process would take years, and could never come out with an answer acceptable to everyone — whether in government or not.
The Commissioner would be asked, in effect, to assume the role of the government of the HKSAR, with none of the resources of that government.
Hong Kong currently already has the Independent Police Complaints Council (IPCC), a civilian body independent from the police, in place to investigate complaints against the police force.
d) amnesty for those who have been arrested
This demand arguably is the least reasonable of them all, as it is a ‘direct challenge to the rule of law’, as rightly pointed out by Cross. Those who have committed criminal offences, such as vandalising public property, assaults, and use of deadly weapons, rightfully need to be punished by law. This is the most basic meaning of the principle of the rule of law. As to those who were allegedly wrongfully arrested, Hong Kong’s world-class independent judicial system will give them due justice, if they indeed are innocent. The demand for their releases is a blatant attack on due process and judicial independence.
The protests have been self-claimed and indeed described by many media outlets as a ‘civil disobedience’ movement. Many, however, do not seem to understand the meaning and history of the term. The doctrine of civil resistance is largely a legacy of Gandhi from his movement against British colonialism. The major principle of non-violence clearly has been violated in the current Hong Kong protests. Another important rule proposed by Gandhi for satyagrahis to follow is ‘voluntarily submit to arrest’. Today’s violent protesters clearly do not understand the meaning of these noble-sounding terms that they have so enthusiastically adopted to justify themselves.
e) more democratic freedoms, i.e. universal suffrage and direct elections of all Legislative Council seats
Such a high level of democracy would be a nice thing to have indeed, but at this stage, it is simply wishful thinking given the political reality of China.
Henry Litton QC’s remarks shed light on this par excellence
There are few certainties in life. One of them is this: the common law system underpinning Hong Kong’s ‘core values’ is destined to expire in 27 years’ time… All the calls for freedom, democracy, etc. have no meaning if the common law crumbles. If the protesters truly value their professed aims, their focus should be on demonstrating to Beijing and to the rest of the world that the One Country Two Systems formula works, and to promote an atmosphere in which Beijing feels comfortable with the system — and when the time comes, to extend the Basic Law for another 50 years, 100 years. Then liberal democratic norms and values might have a chance to flourish…
It is beyond the power of the Hong Kong SAR government to devise the governing model for the future. Pressing the Hong Kong government to promote greater democracy is futile. Rightly or wrongly, that power lies in Beijing. Nowhere else. Hong Kong enjoys freedoms found nowhere else in China. To think that unlawful assemblies and demonstrations, and violence in the streets, would soften Beijing’s attitude towards Hong Kong is absurd. Common sense suggests it would have the opposite effect.
Acts committed by certain riotous protesters seemingly in challenge of China’s sovereignty over Hong Kong, such as the vandalisation of the Hong Kong emblem at the Legislative Council and the national emblem at the Liason Office of the Central Government, and the waving of the British colonial flag, only fed Beijing’s paranoia. As far as China is concerned, Two Systems is premised upon One Country, not the other way around. The repeated provocations against Beijing’s authority is leading Hong Kong towards a bleaker future in terms of freedom.