Who says the youth in Hong Kong is powerless?
A young Hong Konger was (allegedly) murdered by her boyfriend in Taiwan early last year. The suspect, who has since returned to Hong Kong, is currently in prison for money laundering. Taiwanese officials have requested the Hong Kong government to extradite him a few times but received no response. Out of the blue, a family member of the victim appeared in a news conference hosted by a pro-government party, requesting for the extradition law to be amended so that the suspect can be sent to Taiwan for trial. (There is currently no official extradition agreement between Hong Kong and China or any of its claimed territory, including Taiwan.) Within hours, the government introduced an amendment which allows transfer of suspects to jurisdictions currently without extradition agreements on a case-by-case basis. The government claimed the amendment must be passed before the suspect is released, otherwise he would (literally) be getting away with murder. The government felt the matter is so urgent that it held a public consultation that lasted just 20 days.
The Hong Kong government claimed that the amendment would enable the transfer of the murder suspect to Taiwan. However, Taiwanese officials have stated repeatedly that they would not make a request for the suspect to be transferred if the amendment is passed, as they consider this a matter of sovereignty. Various individuals and lawyers' groups, including those usually siding with the government, have proposed ways to try the suspect for murder (in Hong Kong or Taiwan) without amending the extradition law, but the government quickly dismissed all of them as infeasible, claiming that its proposal is the only way to bring the suspect to justice. What makes the government so insistent? In what way are the alternatives, in the government's view, infeasible?
The proposal made the city's legal community and the public to wonder if the Hong Kong government is opening to door to sending anyone wanted by the Chinese government. (Yes, other jurisdictions may also make extradition requests, but it is likely most of the request would be made by China.) The business community expressed concerns that people doing business in the mainland would find themselves in danger (for being involved in disputes over land, labour practice or corruption). The government responded by removing business-related offences (such as bankruptcy, trademarks, taxes, environmental protection) from the list of offences which allows extradition. The problem is the people affected may be tried under completely unrelated charges — an operator of a bookstore selling books banned by China was captured in Thailand, transferred to China and tried for breaking traffic laws.
The government claimed that amendment would have to be retroactive (otherwise the suspect cannot be transferred). This means Chinese officials can request for extradition of those doing business in China over bribery or adultery charges (it is an open secret that many have bribed officials and hold mistresses in the mainland). The amendment, if passed, would put them in danger. So much so that one tycoon who was tried (without him present) and convicted in Macau is considering moving away from Hong Kong for fear of extradition, while filing a judicial review questioning the legality of the retroactive clause. The proposal's supporters claimed that people would have nothing to fear if they have done nothing wrong. The problem is that we have no idea what is considered "wrong" — Chinese police have held reporters from Hong Kong captive and searched their possessions over suspicion that the reporters possesses drugs.
At present, extradition requests from foreign jurisdiction have to undergo a three-part process — approval from the Chief Executive, then by the Legislature, and review of evidence by the judiciary. The proposal would bypass the Legislature. The government claimed hearings in the Legislature over extradition requests would alert criminals to leave. Have government officials forgotten that there are such things as closed-door meetings and non-disclosure agreements? Would the Chief Executive, appointed by the Chinese central government, dare rejecting extradition requests from Chinese officials? The judiciary would also have a limited role — it can only review if the evidence provided is sufficient for trial, but not whether the suspect to be transferred would receive a fair trial. The government has promised that the suspects' family would be allowed to meet the suspect after the transfer, how can one believe them when there have been multiple cases where family of suspects and lawyers representing them held in China is denied access for months, even year? Even if there are lawyers willing to defend transferred suspects after the extradition, they may be replaced by government-appointed ones or become defendant themselves. Worse, who can guarantee those transferred under this agreement would not appear on state television to confess their wrongdoings later on?
The government claimed that, without the amendment, Hong Kong would become a haven for fugitives. One would hard-pressed to imagine a haven of fugitives as a city where visitors' figures are about 10 times its population. Crime figures in Hong Kong are also decreasing. So unless the government thinks all "fugitives" hiding in Hong Kong become into law-abiding citizens while they are in the city, officials are in fact disparaging the city, something they often accuse the opposition of doing. The Chief Executive also claimed previous administrations were acting like ostriches for "not closing the loophole" The problem is she served as a cabinet minister under the administration of the last two Chief Executives. One must ask why she did not raise the issue before. Is the lack of an extradition agreement with China even a loophole as she claims or is it in fact a safeguard?
With such a wide-sweeping proposal, foreign countries, mainly those in the western world, naturally would express concern of the safety of their citizens living or working in the city — such people may reach 7 figures. Would consulate staff be denied access to those transferred to China (a common occurrence to those held there)? Countries currently with extradition agreements with Hong Kong may review their agreements, terminating them if necessary, if they conclude that suspects transferred to Hong Kong may be extradited to jurisdictions without extradition agreements. Worse, if a request for an individual's extradition, authorities have the power to freeze one's assets. If the amendment is passed, would such countries discourage their citizens or businesses from staying in the city or setting up office here? Given the recent involvement by the Chinese Liaison Office on the matter (holding a meeting coercing legislators to support the proposal, organizing petition campaigns), the amendment may lead them to reconsider whether Hong Kong should receive separate treatment (in terms of trade, entry visa, immigration) from mainland China — if you wish to integrate into China so eagerly, why should we treat you differently from the rest of China. This would put Hong Kong's status into risk. (The US is seriously considering amending or even repealing the US-Hong Kong Policy Act.)
Given that the proposed amendment to the extradition is riddled with holes, the Hong Kong (and apparently Chinese) government's insistence to "close the loophole" may lead to Hong Kong falling through a gaping hole from which it cannot climb out. (I hope I am wrong, but I am not feeling hopeful.)