Not done in the name of extradition
Despite Hong Kong and Macau’s close social and economic ties with mainland China, there have been no formal arrangements on the surrender of fugitive offenders between these jurisdictions. The Fugitive Offenders Ordinance of Hong Kong excluded itself from being applicable to transfers of fugitives with “any other part of the People’s Republic of China”. Similarly, “Law on Judicial Cooperation in Criminal Matters” of Macau made itself only applicable to “States or Territories outside the People’s Republic of China”.
Human rights concerns have made it difficult for China to conclude extradition treaties with foreign states. However, China is known to have persuaded foreign states to apply their immigration laws to repatriate criminal suspects to mainland China, in the absence of an official extradition agreement. Mainland China, Hong Kong and Macau have adopted a similar practice to circumvent the problem of a lack of legal arrangements. Many of the transfers were carried out in the name of “repatriation”. Between 2000 and 2015, the police authorities of mainland China “repatriated” 170 criminal suspects to Hong Kong. Often, news reporters are invited to cover the deportation of a permanent resident of Hong Kong (or Macau) who allegedly committed a crime in Hong Kong (or Macau) from mainland China to Hong Kong (or Macau).
However, extradition in the opposite direction (from Hong Kong or Macau to mainland China) is more complicated. Macau’s Court of Final Appeal (TUI) consistently held that in the absence of laws governing cooperation in criminal matters with mainland China, Macau authorities could not detain and transfer criminal suspects to mainland China. In TUI case 12/2007, the court granted habeas corpus to a Hong Kong woman who was taken into custody by the Macau police at a border checkpoint awaiting transfer to mainland China to face a criminal investigation. After the 12/2007 ruling, the Macau authorities sought ways to circumvent potential legal challenges. In TUI case 3/2008 — a second case of a similar nature as case 12/2007, the Macau police transferred the suspect to mainland China before the TUI could render a decision. In the judgement, TUI criticised the Macau police for acts “contrary to justice and undermining the rule of law”. Yet, the TUI terminated the proceedings because the objective of the proceedings — the release of the detained person — had become impossible.
Some transfers from Hong Kong and Macau to mainland China sparked controversies. In 2008, former Tiananmen student activist Zhou Yongjun who had spent years in exile in the US, on his arrival in Hong Kong, was transferred by Hong Kong to mainland China. The extrajudicial transfer of Zhou was heavily criticised by pro-democracy politicians in Hong Kong. On the other hand, in 2015, in Macau police’s repeated defiance of the TUI 3/2008 ruling, Macau handed former Chinese official Wu Quanshen who had been granted non-permanent residence status in Macau over to mainland China to face corruption charges. Macau official defended the transfer as “deportation”, instead of “surrender of fugitives”, following the revocation of Wu’s residence permit.
The exclusion of mainland China from the applicability of the extradition laws in Hong Kong and Macau is hailed as protection by pro-democracy activists and politicians. There are huge differences between the criminal systems of mainland China, Hong Kong and Macau. The death penalty is a lawful form of punishment in mainland China but is outlawed in Hong Kong and Macau. Life imprisonment is lawful in mainland China and Hong Kong but is outlawed in Macau. Also, in practice, the amount of evidence required for a criminal conviction is low in mainland China. There have been numerous reports that the mainland China authorities often abuse the criminal justice system to harass political dissidents and rights-defending activists.
International Covenant on Civil and Political Rights (ICCPR)
The UK government made the ICCPR applicable to Hong Kong in 1976, with several reservations. In 1984, China declared that the ICCPR would continue to apply in Hong Kong beyond 1997. Portugal had not ratified the ICCPR in Macau when it was concluding a Joint Declaration with China. However, by a later agreement, the Portuguese and the Chinese governments decided to ratify the ICCPR in Macau. Portugal extended the applicability of the ICCPR to Macau in 1993. Although China has not ratified the ICCPR in mainland China to this date, China deposited declarations to the UN about the continued application of the ICCPR in Hong Kong and Macau after their return to Chinese rule.
Articles 6 and 7 of the ICCPR impose obligations on party states not to extradite, expel or refoul individuals to another state where there may be a risk of the death penalty or the danger of torture or cruel, inhuman or degrading treatment.
During the second review by the Human Rights Committee (HRC) on the ratification of the ICCPR in Macau in 1999, which took place months prior to Macau’s change of sovereignty, members of the HRC raised a series of questions to Portugal concerning the transfer of criminal suspects to mainland China from Macau. Ms Evatt asked Portugal whether “people would be more likely to be removed from Macau to mainland China, where they might face the death penalty” after Macau’s return to China.
Portugal replied to the HRC that Portuguese courts had ruled in favour of refusals of extradition to China in view of possible death sentences. Both the HRC and Portugal noted that the refusals had angered the Chinese government as China claimed that “an extradition agreement was not strictly necessary for the removal of prisoners”. Moreover, Portugal said that it intended to conclude an agreement with China to make sure that the existing principles on extradition would subsist beyond 1999.
In 2013, the HRC reviewed Macau for the first time after the change to Chinese sovereignty. The HRC reiterated the death penalty risk issue. In reply to the HRC, Macau cited the rulings in TUI cases 12/2007 and 3/2008 to show that Macau had declined surrender of fugitives to mainland China after 1999. The HRC concluded that “reaching a firm agreement” with mainland China would be “a matter of priority” for Macau. Also, HRC emphasised that “[Macau] should ensure that the agreement is in line with its obligations under articles 6 and 7 of the [ICCPR]”.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
China ratified the CAT in 1988. The UK government ratified CAT in Hong Kong in 1992. Portugal made CAT applicable in Macau in a few months leading up to the transfer of Macau to China in 1999.
Article 2 of CAT requires state parties to prevent and to refrain from acts of torture. Article 3 of CAT requires state parties not to repatriate or “extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”.
In 2008, the Committee against Torture (CtAT) asked Hong Kong “any progress with respect to arrangements between [mainland China] and [Hong Kong] for the transfer of fugitive offenders […]”. In reply to CtAT, Hong Kong said the discussion was “ongoing” and “death penalty” would be “one of the usual safeguards found in [Hong Kong’s] agreements on surrender of fugitive offenders”. In CAT’s concluding observations, Hong Kong was asked to provide more information on the requirements for the death penalty safeguard and the number of relevant cases.
In 2014 and 2015, it was reported in the news that Macau was in negotiation with Hong Kong and mainland China on extradition agreements. Both Macau and Hong Kong governments refused to disclose the terms. The New Macau Association (NMA), a civil society organisation in Macau, reported the non-transparency of draft agreements and the Wu Quanshen case to the CtAT ahead of its review on China.
In 2015, the CtAT raised the question on the extradition agreements between Chinese territories under negotiation. Indeed, the manner in which the question on extradition was put by the CtAT in 2015 was not that different from those put by HRC and CtAT back in 2008 and 2013. However, at this meeting, the delegation made an objection to the extradition question by rejecting the application of international law to “internal affairs” under Chinese sovereignty.
In the CtAT’s concluding observations on Hong Kong and Macau, the CtAT took notice of China’s claim that “internal affairs could not be considered as extradition agreements that would fall under articles 3 or 8 of the [CAT]”. Notwithstanding the Chinese objection, the CtAT insisted that Hong Kong “is under an obligation to prevent transferred offenders or sentenced persons from being exposed to the risk of torture or ill-treatment … upon return to mainland China”. The same comment also appeared in the CtAT’s observations on Macau.
Making human rights treaties inapplicable
China was not utterly wrong to raise the “internal affair” objection to CtAT. Indeed, for the application of international law, devolved powers and member states of a federation fall under the umbrella of the sovereignty state. In general, foreign affairs are a reserved area of the Chinese government in which Hong Kong and Macau have no power. However, Hong Kong and Macau have some international personality. With the authorisation from China, Hong Kong and Macau have the power to conclude agreements with foreign countries or regions in certain areas, such as trade and cooperation in criminal matters. Hong Kong and Macau are members of certain international organisations alongside mainland China, such as the World Trade Organisation.
At least, there is evidence that the HRC interpreted that international law would apply to extraditions from Macau to mainland China after Macau’s revert to Chinese sovereignty. Also, the HRC was concerned whether the same protection accorded by the Portuguese government against extradition requests from China would continue to apply once Macau became under Chinese rule.
Perhaps, historical background made these former colonies special. When the ICCPR and CAT first became applicable in Hong Kong and Macau, the territories were not under Chinese administration. When the HRC reviewed Macau in 1996 and 1999, the HRC saw non-transfers of suspects to mainland China where the persons might face the death penalty as a safeguard which ought to continue beyond the return to Chinese rule, in the interest of articles 6 and 7 of the ICCPR.
Also, in the context of treaty bodies’ past reviews on Hong Kong and Macau, the “internal affairs” objection seemed out of place. At the 2008 CtAT review and the 2013 HRC review, China did not have a problem answering to questions about the “internal transfers” of fugitives from Hong Kong and Macau to mainland China. The 2015 CtAT review can be seen as a watershed moment that China became more judgmental of the scope of application of the international human rights instruments in Hong Kong and Macau.
The inconsistency in China’s views on the application of international human rights law to Hong Kong and Macau may seem trivial. Nonetheless, the attitude change suggests that China is adopting an even more defensive posture in its human rights records.
 Constitutional and Mainland Affairs Bureau, ‘About the Greater Bay Area’ (2018) <https://www.bayarea.gov.hk/en/about/overview.html>.
 Fugitive Offenders Ordinance (LHK c 503) s 1(1)(a).
 Lei n.o 6/2006 Lei da cooperação judiciária em matéria penal, art 1.
 Sabrina Choo, ‘Circumventing the China Extradition Conundrum: Relying on Deportation to Return Chinese Fugitives’ (2017) 50 NYUJ Intl L & Pol 1361, 1364.
 ibid 1364.
 Huanqiu, ‘社评：陆港互遣嫌犯170:0是正常正义吗’ (2016).
 Macau Post Daily, ‘Mainland Transfers Suspected Thief to Macau’ (8 June 2018) <http://www.macaupostdaily.com/article4693.html>; Clifford Lo, ‘Hong Kong Fugitive Wanted over HK$18 Million Thefts Sent Back to City after Arrest in Mainland China’ South China Morning Post (19 February 2019) <https://www.scmp.com/news/hong-kong/law-and-crime/article/2186723/hong-kong-fugitive-wanted-over-hk18-million-thefts-sent>.
 Edward Wong, ‘Lawyer Says Hong Kong Violated Chinese Dissident’s Rights’ The New York Times (25 January 2010) <https://www.nytimes.com/2010/01/26/world/asia/26beijing.html>.
 Central Commission for Discipline Inspection, ‘广东”红色通缉令”潜逃境外人员吴权深被缉拿归案’ (23 July 2015) <http://www.ccdi.gov.cn/special/ztzz/ztzzjxs_ztzz/201507/t20150723_59651.html>.
 All About Macau Media, ‘司警極速移交逃犯 黃少澤：只是執行檢院命令’ (22 February 2016) <https://aamacau.com/2016/02/22/司警極速移交逃犯-黃少澤：只是執行檢院命令>.
 Jason Ng, ‘Dangerous and Unnecessary: Why Hong Kong’s Extradition Proposal Is a Legislative Menace’ Hong Kong Free Press (3 March 2019) <https://www.hongkongfp.com/2019/03/03/dangerous-unnecessary-hong-kongs-extradition-proposal-legislative-menace/>.
 Criminal Law of the People’s Republic of China, art 33(5).
 Tim Cribb, ‘Demise of the Death Penalty’ South China Morning Post (23 May 2004) <https://www.scmp.com/article/449278/demise-death-penalty>.
 CÓDIGO PENAL, art 39(1).
 Criminal Law of the People’s Republic of China, art 33(4).
 Crimes Ordinance (LHK c 200) s 159C(3).
 CÓDIGO PENAL, art 39(1).
 Committee against Torture, ‘Concluding Observations on the Fifth Periodic Report of China’ (2016) CAT/C/CHN/CO/5 para 20.
 ibid 18.
 Blaine Sloan, ‘RATIFICATION BY THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND AND DECLARATION RECOGNIZING THE COMPETENCE OF THE HUMAN RIGHTS COMMITTEE UNDER ARTICLE 41 OF THE COVENANT ON POLITICAL RIGHTS’ (29 June 1976).
 ELABORATION BY THE GOVERNMENT OF THE PEOPLE’S REPUBLIC OF CHINA OF ITS BASIC POLICIES REGARDING HONG KONG pt 8.
 Portuguese Republic (n 2) para 16.
 ibid 17.
 United Nations, ‘4. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS’ <https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-4.en.pdf> accessed 29 March 2019.
 ‘C.N.1156.1999.TREATIES-11 (Depositary Notification) CHINA: COMMUNICATION RELATING TO MACAU’ (21 December 1999).
 Officially part of the fourth periodic review on Portugal
 Human Rights Committee, ‘SUMMARY RECORD OF THE 1576th MEETING’ (1999) CCPR/C/SR.1576 para 29.
 ibid 55.
 Human Rights Committee, ‘SUMMARY RECORD OF THE 1577th MEETING’ CCPR/C/SR.1577 para 3.
 Human Rights Committee, ‘SUMMARY RECORD OF THE 1576th MEETING’ (n 35) para 55.
 Human Rights Committee, ‘SUMMARY RECORD OF THE 1577th MEETING’ (n 37) para 17.
 Human Rights Committee, ‘List of Issues to Be Taken up in Connection with the Consideration of the Initial Report of Macao, China’ (2012) CCPR/C/CHN-MAC/Q/1 para 13.
 Macao, China, ‘Replies of Macao, China to the List of Issues’ (2013) CCPR/C/CHN-MAC/Q/1/Add.1 para 86.
 Human Rights Committee, ‘Concluding Observations on the Initial Report of Macao, China’ (2013) CCPR/C/CHN-MAC/CO/1 para 11.
 United Nations, ‘9. CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT’ <https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-9.en.pdf> accessed 29 March 2019, 1.
 ibid 33.
 ibid 32.
 Committee against Torture, ‘List of Issues to Be Considered during the Examination of the Fourth Periodic Report of Hong Kong’ (2008) CAT/C/HKG/Q/4 para 18.
 ‘Written Replies by the Hong Kong Special Administrative Region to the List of Issues’ (2008) CAT/C/HKG/Q/4/Add.1 paras 88–89.
 Committee against Torture, ‘Concluding Observations on HONG KONG SPECIAL ADMINSTRATIVE REGION’ (2009) CAT/C/HKG/CO/4 para 8.
 Information Services Department, ‘中港澳加強司法合作’ news.gov.hk (16 December 2014) <https://www.news.gov.hk/tc/record/html/2014/12/20141216_122550.shtml>; Government Information Bureau, 行政法務司司長陳海帆談司法互助協議進度 (2015) <https://www.youtube.com/watch?v=f7Wk8eCXwgs>.
 Catarina Pinto, ‘NEW MACAU URGES GOV’T TO “COME CLEAN” ON HONG KONG EXTRADITION TREATY’ Macau Daily Times (10 September 2015) <https://macaudailytimes.com.mo/new-macau-urges-govt-to-come-clean-on-hong-kong-extradition-treaty.html>.
 Scott CHIANG and Jason CHAO, ‘Submission of the New Macau Association to the Committee against Torture at Its 56th Session Concerning Macau, China’ (2015) pt 1.
 Committee against Torture, ‘List of Issues in Relation to the Fifth Periodic Report of Hong Kong, China’ (2015) CAT/C/CHN-HKG/Q/5 para 11; Committee against Torture, ‘List of Issues in Relation to the Fifth Periodic Report of Macao, China’ (2015) CAT/C/CHN-MAC/Q/5 para 9.
 Committee against Torture, ‘Concluding Observations on the Fifth Periodic Report of China with Respect to Hong Kong, China’ (2016) CAT/C/CHN-HKG/CO/5 para 22.
 ibid 23.
 Committee against Torture, ‘Concluding Observations on the Fifth Periodic Report of Macao, China’ (2016) CAT/C/CHN-MAC/CO/5 paras 22–23.
 Walter Rudolf, ‘Federal States’  Oxford Public International Law paras 12, 17.
 The Basic Law of the Hong Kong Special Administrative Region, art 13; The Basic Law of the Macao Special Administrative Region, art 13.
 The Basic Law of the Hong Kong Special Administrative Region art 95; The Basic Law of the Macao Special Administrative Region art 93.
 The Basic Law of the Hong Kong Special Administrative Region art 116; The Basic Law of the Macao Special Administrative Region art 112.