A summary to Amendment to Fugitive Offenders Ordinance
Hi all I am new to reddit. Recently amendment to Fugitive Offenders Ordinance has been a hot topic in Hong Kong. Living in Hong Kong and worrying the future of Hong Kong, I think one of my possible actions is to let more people to understand the whole story. Therefore I have written the following essay to briefly explain the events. I hope this can help more people to understand and facilitate others to explain the whole story to even more people including foreigners.
However, as my English sucks and I doubt if my words are correct, please make appropriate amendments whenever necessary. Furthermore, I will be grateful if anyone could help typesetting and make it easy to read. Feel free to spread and use it if it helps.
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A critical Issue in Hong Kong - Briefing on Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019
Written on 4/6/2019 and by a local citizen in Hong Kong
1. Introduction
Hong Kong has long been a global hub recognized worldwide in the modern history. One of the crucial roots of the status is the competent and sounded judicial system. In accordance to Sino-British Joint Declaration, the judicial system of Hong Kong have been being kept different from China since 1997 for fifty years. Moreover, Hong Kong shall enjoy executive, legislative and judicial power sourcing from Hong Kong Basic Law.[1] Thanks to these documents, the rule of law performance of Hong Kong ranked 16 out of 126 places as compared to China’s rank of 82.[2]
In 2017, a murder case took place in Taiwan followed by the return of the murderer to Hong Kong. In response, the Hong Kong Government has announced the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill (“the Bill”) to alter the existing Fugitive Offenders Ordinance (Cap 503) and Mutual Legal Assistance in Criminal Matters Ordinance (Cap 525) (“the Ordinances”). The Bill was created for tackling the incapability of transferring criminals from Hong Kong to Taiwan, but such aim seemed to be ruined and the Government seemed to have its hidden agenda as the story goes on.
The Bill would be a rule-changing play to Hong Kong which worths attentions. In short, China will be empowered to transfer of offenders potentially violating China’s Law in special arrangement basis, subject to some criteria, the approval of Chief Executive and the judgment of Hong Kong Court. Such power did not exist in the current system. Most importantly, the Bill will affect any people and capital in Hong Kong including but not limited to local Hong Kong citizens and impose unnecessary threat to them. In the following paragraphs, I am going to explain the details of the Bill, in particular why the above safety net is not “safe” enough for Hong Kong followed by the consequences of approval of the Bill. Lastly, I will end with some personal opinion and the actions to be taken.
2. Series of Events
In 2018, a man killed his girlfriend in Taiwan and returned to Hong Kong. Under the legal system, Hong Kong was not permitted to surrender offenders to Taiwan which is defined as part of China. Worstill, it is not possible for the Court in Hong Kong to convict the man as the case took place outside Hong Kong. Thereby, the Government announced the Bill in the name of Justice. The story had been sounded before the twisting point happened - Taiwan Government has rejected the Bill doubting that the Bill would seriously threat the safety of Taiwanese in Hong Kong, specifically as potential offenders are to be sent to China.[3] Taiwan Government instead welcomed discussion with Hong Kong Government for dealing with the case.
Having heard of above, Hong Kong Government surprisingly and disappointingly insisted on the Bill and consequently caused fierce discussion and opposition in the society. Many saw the shadow of hidden agenda and worried about the real intentions of the Bill especially when China Government has voiced out its strong support to the Bill. Objections were recorded from members of local citizens, concerned groups, legislative council member and professional groups. In May 2019, a more powerful objection came in - Hong Kong Watch, an England Organization, published a joint letter signed by 15 members of Congress from 6 countries and stated their doubts and objections to the Bill. They worried the Bill would harm the rule of law in Hong Kong considering the different law system in China.[4]
The Bill was consequently passed to Legislative Council. Under the current system, the Bill should have passed through and discussed by the newly established Bill Committee. Some legislative council members started parliamentary tactics to stop the Bill by means of filibuster. Despite the strong reservation received, the Government has skipped and re-submitted the Bill directly to Legislative Council. The Bill is now going for Legislative Council second discussion in mid June 2019.
3. Power, Coverage and Consequence of the Bill and the amended Ordinance
As the Bill is subject to further amendments of the Government, the exact power and coverage of the amended Ordinances are still unknown. However, some main conclusions are drawn from the existing information and the words of Government Officers.
3.1 General Process of Surrendering Offenders and Power under the Bill
The general processes of surrender of offenders is initialled by other Countries which excludes China before the Bill. After the bill, China will be able to initial the surrender if one is suspected to be related to the offense(s) specified on the offense list. Upon receiving the request, the offender shall be arrested and brought to the Court following the issuance of approval letter by Chief Executive of Hong Kong. With the decision of Court and final order by Chief Executive, the offender is surrendered to China. Political Offender should be excluded from the Surrender.
Echoing, many details of the Bill are under further alteration by the Government.[6] For instance, the Government has suggested to link the retrospective period of the Bill to the respective maximum sentence and to add protection of human rights. Meanwhile, the Government has suggested that only offenders subject to 7 or more years of maximum sentence shall be surrendered (which is 3 years at the first suggestion).[7] The Government has also suggested to exclude intimidate, porn and obscene crimes from the offense list mentioned previously. As you may notice, it’s fair enough to say some amendments are nonsense for such “justice” bill. Many people perceived these alterations as ways to exclude certain “honorable” group from the Ordinance like legislative members or businessman. Another interesting addition suggested by the Government was that the surrender of offenders should only be initialled by the highest legal authority of the country. Back to the beginning of the story, the Bill was supposed to deal with the Taiwan murder case. Ironically, it may now become impossible for Taiwan to initial such surrender process as China is the highest legal authority under the definition of Hong Kong Government. So, again, it’s natural and necessary to doubt the real intention of the Bill.
The next question is whether the above process is sufficient to protect the potential offenders to be surrendered. Concluding from above, the major safety nets for the ordinance is the agreement to be signed between Hong Kong and the country, the decisive power of the Chief Executive and the judicial power of the Court. Supposingly, agreement is a good tool to protect the potential offender. Unfortunately, whether China respects agreement may subject to a long argument, especially if you step back and count the realized promise made in WTO by China - another hot topic in the world. Monitoring is another puzzle to be solved. For Chief Executive and Courts, their degree of freedom under China’s pressure is unfortunately questionable with increasing control of China to Hong Kong. Considering Chief Executive is reporting to China Government and being elected by a small group of 1200 people, the independence and stance of Chief Executive is not secured. For courts, their judgment is bound by the China’s interpretation power to Hong Kong law. In other words, a big question mark remains to the measures to prevent China’s abusion of power in Hong Kong.
3.2 Coverage of the Bill
Moving on, one should understand the stakeholders of the issue - who are to be affected under the Bill. Needless to say, the Bill and Ordinance will bind people in Hong Kong where Hong Kong Law is in effect. This includes Hong Kong citizens and, to add on, the tourists, companies and literally all items in Hong Kong. Analysis pointed out that the amended Ordinance are probably going to bind Hongkongers, Chinese and foreigners who are suspects under China’s Law and located in Hong Kong specifically if the crimes took/are taking place in Hong Kong and China.[8] To the extreme, it means foreigners may be sent to China once they step in to Hong Kong due to some acts in Hong Kong or China previously, or in the worst case, due to some acts outside Hong Kong and China. Their relevant capitals will also be freezed.[9]
Numerically, there are about 7,000,000 residents in Hong Kong which includes about 650,000 foreigners.[10] Meanwhile, there were about 24,000,000 of tourists arrived Hong Kong from Jan 2019 - Apr 2019.[11] These people will all be subjected to potential threat of surrendering to China once the Bill is approved. Financially, the foreign direct investment assets position in Hong Kong reached $16,000,000 Million as at the end of 2018.[12] The coverage of the Bill is considered wide - especially if you are possibly one of them.
The root of the Bill is that China’s law will be imposed to Hong Kong under the Bill and Ordinance resulting in the possibility of sending people and capital to China from Hong Kong through legal means. Then down to the root is whether people trust China’s law and its judicial system. This may lead to another series of discussion and personal judgment, but most likely the general perception is China Judicial system is less favoured. World Report 2019 raised doubt towards human right and freedom in China, for instance, a human right lawyer was sentenced for 13 years by charging him with “inciting subversion of state power” and “obstructing public duties”. [13] Nevertheless, the lawyer was suspected suffering from inappropriate procedures and treatments. Another recent case is the Causeway Bay Book Shop Disappearance, involving the disappearance of 5 people related to a book store which sold forbidden books in China (but not Hong Kong) and being arrested in China. You may wish to search for this famous case for more details, but to highlight here, one of them was disappeared in Hong Kong and was found in China Government without any departure record. This is an evidence showing that China disrespect to different law system and its violent tactics to deal with “crimes”. In the commercial world, New Balance has lost a trademark invasion case to New Burlun, a Chinese sport shoes manufacturer. The disrespect to intellectual property right is another long accusation to China. To be honest, I don’t think many will be confident in the Judicial system in China, and so do enforcing such untrustworthy system in Hong Kong. To recap, there are no effective safety nets to prevent abuse of power of China. The consequence of the Bill is then strict forward - people and capital in Hong Kong are subject to increasing threat from China.
4. Possible Reasons of introducing the Bill
You should always keep your friends close and your enemies closer. It is always a good idea to know the reasons for the action. However, I shall emphasize that the following deductions are not supported by concrete evidence and more likely by logical deduction.
One famous saying is that China is planning to use Hong Kong as a key card to trade war between America and China. According to statistics, the inward foreign direct investment from America to Hong Kong reached $325.9B whereas reached $11,317.4B from worldwide (excl. China) in 2017.[12] By imposing the Bill, these capital may become easier to be controlled by China. To add on, foreigners including American staying or even passing through Hong Kong will be under potential prosecution of China, as long as China can initial a surrender request to arrest those people and freeze their capital for potential violation of China Law. Surely, it is impossible for China to fully control these people and capital in one step. Yet, the fact that China is able to “inspect” these capital and people in Hong Kong may represent some hidden meanings to other countries particularly when there are no effective mechanism to oppose.
Another possible reason is on the political side that China is planning to further control the freedom in Hong Kong. Hong Kong has been famous for its freedom of speech whereas such freedom has been restricted in China. With the amended Ordinance, white threat is created in Hong Kong to minimize opposing view to China. In fact, China has created a new law to forbid people from spreading rumors with maximum sentence of 7 years shortly after Hong Kong Government suggested to extend the minimum sentence period of the offense to be on the list. I reckon no one can promise that the image and atmosphere of Hong Kong can remain unchanged if the Bill is approved.
The real intention of China is not determined, but the strong hope of China towards the passing of the Bill is undeniable. We shall all keep an eye on the issue.
5. Actions to be taken
After all, what shall we do at the moment? For foreigners, I guess it’s difficult to take part in the events directly in Hong Kong but you can raise and discuss your concerns in your place. Irrespective of whether you are supporting or opposing to the Bill, it is always essential to let more people understand the Bill and what is going to happen in Hong Kong. Therefore, I sincerely hope more people can spread and know what is going on in Hong Kong and put their eyes on Hong Kong. Furthermore, there will be a procession in Hong Kong on 9th June to oppose to the Bill, please be the observator of the procession at that time. Of course, if you are opposing to the Bill and wish to do more, that will be a even better news to us.
6. Conclusion
The existing Ordinances has excluded China in the list of fugitive offender surrender country. Hong Kong Government described it as a loophole, but it is arguable whether such arrangement was made deliberately so as to safeguard Hong Kong from the different law system. To reiterate, the Bill will be a rule-changing action to Hong Kong and it affects more than Hong Kong citizens. No fallback mechanism is available in case China abusively request inspection of potential offenders. It is essential for more people to understand what’s going on and make up their mind. Last, please keep track of this sad but meaningfully revolution in Hong Kong.
7. Reference
*Most of the sources are in Traditional Chinese
[1] Basic Law, https://www.basiclaw.gov.hk/en/basiclawtext/chapter_1.html
[2] WSP Rule of Law Rank https://worldjusticeproject.org/our-work/research-and-data/wjp-rule-law-index-2019
[3] Taiwan Response to the Bill https://thestandnews.com/politics/%E9%80%83%E7%8A%AF%E6%A2%9D%E4%BE%8B-%E5%8F%B0%E7%81%A3%E9%99%B8%E5%A7%94%E6%9C%83%E5%86%8D%E5%BC%B7%E8%AA%BF%E5%8F%8D%E5%B0%8D%E4%BF%AE%E4%BE%8B-%E4%BF%AE%E4%BE%8B%E9%80%9A%E9%81%8E%E9%83%BD%E4%B8%8D%E6%9C%83%E5%90%8C%E6%84%8F%E7%A7%BB%E4%BA%A4/
[4] 6 Countries Objection to the Bill https://www.hk01.com/%E5%8D%B3%E6%99%82%E5%9C%8B%E9%9A%9B/334757/%E9%80%83%E7%8A%AF%E6%A2%9D%E4%BE%8B-%E8%8B%B1%E5%9C%8B%E7%B5%84%E7%B9%94%E9%9B%866%E5%9C%8B15%E8%AD%B0%E5%93%A1%E8%81%AF%E7%BD%B2-%E8%A6%81%E6%B1%82%E6%92%A4%E5%9B%9E%E4%BF%AE%E8%A8%82%E9%80%83%E7%8A%AF%E6%A2%9D%E4%BE%8B
[5] Process of Offenders Surrender before and after the Bill
[6] Proposed Amendments to be Bill https://www.hk01.com/%E6%94%BF%E6%83%85/335025/%E9%80%83%E7%8A%AF%E6%A2%9D%E4%BE%8B-%E6%94%BF%E5%BA%9C%E6%8F%903%E4%BF%AE%E8%A8%82-%E5%88%91%E6%81%90-%E8%A1%B0%E5%8D%81%E4%B8%80-%E4%B8%8D%E5%BC%95%E6%B8%A1-%E5%8A%A0%E4%BA%BA%E6%AC%8A%E4%BF%9D%E9%9A%9C
[7] A New Ordinance in China https://theinitium.com/article/20151028-dailynews-criminal-law/
[8] 4 Situation to be surrendered to China http://www.takungpao.com.hk/news/232109/2019/0527/294593.html
[9] Capital to be freezed under the Ordinance https://tw.news.yahoo.com/%E9%80%83%E7%8A%AF%E6%A2%9D%E4%BE%8B-%E6%B8%AF%E5%BA%9C%E5%8F%AF%E6%B2%92%E6%94%B6%E5%AB%8C%E7%96%91%E7%8A%AF%E5%9C%A8%E6%B8%AF%E8%B3%87%E7%94%A2-%E6%81%90%E7%88%86%E9%A6%99%E6%B8%AF%E8%B3%87%E9%87%91-%E9%80%83%E4%BA%A1%E6%BD%AE-050400301.html.
[10] Population Data in 2016 Census Report https://www.bycensus2016.gov.hk/tc/Snapshot-10.html
[11] Tourism Statistics for Hong Kong https://partnernet.hktb.com/en/research_statistics/latest_statistics/index.html
[12] FDI data for Hong Kong https://www.censtatd.gov.hk/hkstat/sub/sp260.jsp?subjectID=260&tableID=047&ID=0&productType=8
https://www.censtatd.gov.hk/hkstat/sub/sp260.jsp?productCode=B1040003
[13] Human Right Watches World Report 2019 https://www.hrw.org/world-report/2019
Posted Jun 4, 2019, 3:05 PM UTC