Plugging a legal loophole to ensure fugitives face justice
Should somebody get away with murder? Or rape? I believe everyone would agree that people who commit such serious crime should face justice.
That is the question many people in Hong Kong have been asking since a homicide case involving a Hong Kong resident suspected of murdering another Hong Kong resident in Taiwan and then returning to Hong Kong.
Not surprisingly, the Taiwan side has already asked Hong Kong to surrender the alleged killer so this person can face justice. But, Hong Kong does not have any agreement with Taiwan that would allow us to provide such legal assistance or to surrender the suspect.
This case has highlighted a serious legal loophole that can allow offenders of serious crimes to escape justice.
This is why the Security Bureau ("SB") submitted a proposal to the Legislative Council ("LegCo") on 15 February 2019 to amend the Fugitive Offenders Ordinance ("FOO") and Mutual Legal Assistance in Criminal Matters Ordinance.
SB's proposal would allow Hong Kong to handle requests for assistance and surrender of offenders (SFO) on a case-by-case basis with any place with which Hong Kong has not signed a long-term agreement. The proposal will apply the same standard to any place under the principle of mutual respect.
Such case-based surrenders are transitional and special arrangements to plug the present loophole. Long-term agreements remain our principal arrangement for the surrender of fugitive offenders.
At present, existing laws do not allow them to be applied to other parts of China outside of Hong Kong. Thus, we should remove this restriction to enable Hong Kong to handle requests on a case-by-case basis with any place in the world.
The Government's proposal makes reference to the laws and practices adopted by other jurisdictions such as the United Kingdom ("UK") and Canada. The proposal would allow the Chief Executive ("CE") to issue a certificate to trigger the legal procedures for a suspect to be sent to court for a hearing and decision. Such a certificate is issued by the Secretary of State in the UK or the Foreign Minister in Canada.
Our proposed case-by-case arrangement will retain and apply all human rights safeguards under the present FOO which has operated smoothly and without incident for over 21 years. These safeguards draw on the model template of the United Nations and international practices and include the following:
i) the act, if committed in Hong Kong, must also constitute a criminal offence in Hong Kong;
ii) the offence must be among the 46 serious offences descriptions specified in the FOO;
iii) no surrender shall be made if death penalty imposed on the person concerned will be carried out;
iv) no surrender shall be made for any political offences (irrespective of how the offences are described in the request);
v) no surrender shall be made if the request, though purporting to be made on account of any offences, is in fact made on account of political opinions, race, religion or nationality;
vi) no surrender shall be made if the person concerned might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his political opinions, race, religion or nationality.
The executive authorities and the court will stringently perform their gate-keeping roles respectively. First, the executive authorities will immediately refuse a request if it is considered the requesting party fails to fulfill the safeguards or requirements prescribed in the ordinance. Second, when the executive authorities consider the request should be accepted, the suspect will then be sent to court for a hearing in open court. If the court finds that any human rights safeguards under the ordinance have been violated or the evidence available is insufficient to justify the issuance of an order of committal, it will release the suspect at once and the executive authorities cannot make the surrender.
Practically, when receiving a request Hong Kong will, if all legal provisions and human rights safeguards are complied with, ask the requesting party to sign a surrender arrangement for that case under which various undertakings and requirements will be made. These include: prosecution will be made only on the charges mentioned in the arrangement and no more, and sufficient evidence will be provided to the court for its consideration on whether the issuance of an order of committal is justified; the person concerned will not be transferred to a third place; death penalty will not be imposed or carried out; and any extra requirements made by Hong Kong in addition to those set out in the FOO, such as the right to legal representation as prescribed by the law, visits by lawyers and family members according to the law, etc. The Chief Executive may then consider issuing a certificate to trigger the procedures and send the case to the court for hearing.
During the hearing, the suspect has the right to challenge the surrender on any grounds including political persecution, that the alleged offences are camouflaged by the requesting party, etc.. He may also apply for habeas corpus. He has his right to appeal all the way to the Court of Final Appeal. Our courts have abundant experience handling surrender cases over the past 21 years. They have always been fair and just. We trust their professionalism.
The proposed amendments aim at not only handling the Taiwan homicide case but also plugging the legal loophole, so that offenders of serious crimes can no longer escape the long arm of the law, which is now possible because of a lack of long-term agreements. With the amendments, Hong Kong will be able to co-operate with any place in the world, based on the same standard and principle of mutual respect, to ensure that offenders of serious crimes are brought to justice.
The whole process will be pragmatic and consider only the merits of that particular case. This will help ensure that Hong Kong will not become a haven for fugitive offenders (murderers, rapists etc.) who can live among us and, by extension, pose a threat to personal and public safety.
Some people in Hong Kong have fomenting negative sentiment about our proposals for political reasons which, if successful, will mean we cannot surrender the accused person to face justice in Taiwan. I am saddened and disappointed by these political motives, which only serve to undermine the rule of law and the quest for justice.
For the sake of justice, we must act now and quickly so that the Taiwan homicide case can be handled according to the law and we can plug this legal loophole. SB is now collecting views to refine the amendment provisions, after which we will submit the bill to LegCo for scrutiny as soon as possible.
John LEE Ka-chiu
Secretary for Security
28 February 2019