The main legislation governing the arrangements for surrender of fugitive offenders between Hong Kong and foreign countries is the Fugitive Offenders Ordinance, Cap 503 (“FOO”). The law of and procedure for mutual legal assistance in criminal matters is contained in the Mutual Legal Assistance in Criminal Matters Ordinance, Cap 525.
Cooperation in surrendering fugitives between Hong Kong and other places is mostly based on long-term bilateral arrangements, which Hong Kong has with 20 jurisdictions. One-off case-based surrender to a jurisdiction with whom Hong Kong does not have an extradition treaty requires the making of subsidiary legislation after scrutiny by the law makers in the Legislative Council (“Legco”). This may be impractical in view of time and confidentiality. Fugitives are thus able to make use of this legal loophole to evade foreign laws and seek refuge in Hong Kong.
The Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 (the “Bill”), was gazetted on 29 March 2019, with a view to remove the loophole and enable Hong Kong to more effectively handle serious criminal cases by the ad hoc case-based or “one-off” surrender agreements, called “special surrender arrangements” in the Bill. The Bill is not drafted only for surrender arrangement of fugitives to mainland China.
Extension of places to which extradition is allowed
A key proposal under the Bill is to expressly allow for special surrender arrangements to apply from Hong Kong to any place with which Hong Kong has not entered into any long-term arrangement for the surrender of fugitives. In other words, the Bill extends one-off arrangements to places including the mainland China, Macau and Taiwan.
What offences can be extradited and what offences are excluded
The amendments mainly target fugitives who have committed serious crimes stipulated under the FOO, none of these offences relate to the freedom of press or speech. The proposed special surrender arrangements will apply only to 37 stipulated offences and punishable with imprisonment of 7 years or more. 9 offences in Schedule 1 of the FOO are excluded from case-based surrender arrangements and they are :-
(1) Offences against bankruptcy law or insolvency law;
(2) Offences against the law relating to companies including offences committed by officers, directors and promoters;
(3) Offences relating to securities and futures trading;
(4) Offences against the law relating to protection of intellectual property, copyrights, patents or trademarks;
(5) Offences against the law relating to environmental pollution or protection of public health;
(6) Offences against the law relating to the control of exportation or importation of goods of any type, or the international transfer of funds;
(7) Offences involving the unlawful use of computers;
(8) Offences relating to fiscal matters, taxes or duties; and
(9) Offences against the law relating to false or misleading trade descriptions.
How an extradition order is made
Under the current legislative regime, for a surrender arrangement to be effective, the Chief Executive (“CE”) has to make and gazette an order in relation to such arrangement, which will then be laid before the Legco for negative vetting within 28 days. Then, the CE may issue an authority to proceed, and a warrant of arrest may be issued by a magistrate for committal. The case would then be heard by the Court of Committal. If insufficient evidence for surrender under the FOO is found, the fugitive will be discharged and the CE cannot intervene. Alternatively, if the Court makes a committal order, the CE can still take into account grounds other than those under the FOO, such as humanitarian grounds, before deciding whether to make an order for surrender under section 13 of the FOO.
The new section 3A of the FOO in the Bill provides that the above procedures in the FOO will still apply in relation to special surrender arrangements, except that a special surrender arrangement may be activated by a certificate issued by the CE and the certificate will be conclusive evidence of there being such an arrangement. This executive certification dispenses with the negative vetting procedure of Legco, albeit the request must nevertheless go through all the other procedures including the issuance of an authority to proceed by the CE, the committal hearing by the Court and the eventual making of the surrender order.
Can the extradition order be overturned ?
As with every executive decision, under the rule of law in Hong Kong, the person who is made subject to any executive order including a surrender order has the right to apply for judicial review on the grounds that the decision was unreasonable or made by a procedural error or a failure to take into account relevant matters. Furthermore, under section 12 of the FOO, if an order of committal is made, the person subject to the order may make an application for habeas corpus and will not be surrendered until the application has been disposed of. These procedural safeguards remain unchanged by the Bill.
In relation to habeas corpus, pursuant to the Rules of the High Court and High Court Ordinance, an application may be made ex parte to the Court of First Instance supported by an affidavit setting out the nature of the restraint and showing that the applicant is being detained without authority or the purported authority is outside the powers of the person authorising the detention.
Following huge public protests in Hong Kong over the Bill, it was announced that work on the Bill is now been suspended and there is no timetable to relaunch the suspended Bill. Accordingly, the current extradition regime still applies and it will be wrong to think that Hong Kong is a safe harbour for international fugitives especially those in relation to money laundering and white collar crimes. If you require any further information on the Bill or have any legal question relating to Hong Kong, please do not hesitate to contact us.