A Commentary on the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 (“the Bill”)
The above Bill, which was gazetted on 29th March 2019, has become highly controversial in Hong Kong. The controversy concerns mainly whether, and if so, what extradition or rendition arrangement should be introduced as between Hong Kong and mainland China.
The existing law in the Fugitive Offenders Ordinance (“FOO”) does not permit rendition as between Hong Kong and mainland China or between Hong Kong and Taiwan (or Macau), either by agreement in the form of an extradition (rendition) agreement (treaty) similar to those which Hong Kong has entered into with other countries, or in an ad hoc manner on a case-by-case basis in the absence of such rendition agreement. Despite negotiations between the HKSAR government and the mainland authorities for many years, no rendition agreement as between the two jurisdictions has been concluded. It is noteworthy that there is also no rendition agreement between the Macau SAR and mainland China.
In order to deal with the recent case (the Chan Tong-kai 陳同佳case) concerning a suspected murder committed in 2018 by a Hong Kong resident in Taiwan, and also in order to improve the existing law so as to facilitate ad hoc extradition on a case by case basis in the absence of extradition treaties, the government has proposed the Bill. The Bill, if enacted, will enable rendition/extradition on a case by case basis as between Hong Kong and Taiwan, between Hong Kong and mainland China, between Hong Kong and Macau, and between Hong Kong and any other country. (The term “extradition” is generally used to describe transfer of suspects and convicted persons as between states, while the term “rendition” (also known as “surrender”) is used to describe such transfer between different regions of the same state. For purpose of convenience, the word “extradition” will be used below to refer to both extradition and rendition.)
As the Bill proposes to introduce in Hong Kong a new system of ad hoc extradition in the absence of extradition treaties, this paper will first study such systems in several common law jurisdictions, and then turn to examine the proposed system in the Bill.
In the contemporary world, extradition as between states is widely practised on the basis of extradition treaties entered into between states. Extradition in the absence of treaties (i.e. extradition on a case-by-case basis, alternatively known as ad hoc extradition or extradition by specific or special agreement) is relatively exceptional. Whether such ad hoc extradition may be practised by a state depends on the law of the state concerned. There is much variation among the laws of different states on this matter.
The U.S.A.
For example, in the US, ad hoc extradition in the absence of extradition treaties is only permissible in very limited circumstances: “There is only a very narrow avenue within U.S. law for formally extraditing an individual to the requesting state absent a treaty. In 1996, the U.S. Congress amended federal law to provide for extradition from the United States, even in the absence of a treaty, of foreign nationals who have committed crimes of violence against U.S. nationals outside the United States.”[1](The author added: “Beyond this narrow window for formal extradition absent a treaty, though, in some circumstances, U.S. immigration laws permit the removal of individuals sought by other countries when extradition by treaty is not available.”)
In the United Kingdom and Canada, ad hoc extradition is permitted by law in a wider range of circumstances. Since the HKSAR government has referred to the relevant laws of these jurisdictions as reference points for the purpose of the government's present proposal of “special surrender arrangements” (as distinguished from “arrangements of a general nature”, i.e. extradition treaties) in the Bill, the relevant UK and Canadian law will be examined more closely in this paper.
Canada
In Canada, the law on extradition originally distinguished between “extradition” as between Canada and countries that did not belong to the British Commonwealth, and “rendition” as between Canada and other countries in the Commonwealth. The former was governed by the Extradition Act (R.S.C. 1985, c. E-23) originally enacted in 1877, and the latter by the Fugitive Offenders Act originally enacted in 1882 (which provided for rendition among Commonwealth countries in the absence of treaties).[2] Extradition as between Canada and non-Commonwealth countries in the absence of extradition treaties was governed by Part II (sections 35 to 40) of the Extradition Act (before the introduction of the new Extradition Act 1999).[3] Under this law, extradition as between Canada and a non-Commonwealth country in the absence of an extradition treaty was only possible if and when the Canadian Governor-General made a “proclamation” applying Part II of the Act to the country concerned. The law provided expressly that such application was limited to crimes committed after the proclamation was made. In other words, with regard to any non-Commonwealth country with which Canada did not have any extradition treaty, no extradition between Canada and that country was possible before a proclamation (by the Governor-General applying Part II of the Act to the country concerned) was made; after the proclamation was made, extradition would only be conducted by Canada with regard to offences committed after the proclamation was made. Such operation of this scheme of extradition in the absence of extradition treaties has been described as a non-retroactive operation.[4] The statutory provision concerned was section 36 of the Act: “[Part II] applies to any crime mentioned in Schedule III that is committed after the coming into force of this Part with respect to any foreign state to which this Part has, by proclamation pursuant to subsection 35(1), been declared to apply.”[5]
The proclamations scheme under Part II of the Extradition Act had only been used 3 times – “with respect to the Federal Republic of Germany, Brazil, and India. Canada has subsequently entered into [extradition] treaties with both the Federal Republic of Germany and India, and, accordingly, proclamations have been issued declaring that Part II ceases to have effect with respect to these States.”[6]
In 1999, the Canadian law extradition was reformed by the introduction of a new Extradition Act. A new provision was made for extradition in the absence of treaties. Section 10 of the Act “provides that the Minister of Foreign Affairs may, with the agreement of the Minister of Justice, enter into a specific agreement with a state or entity for the purpose of effecting extradition in a particular case. A certificate is issued by or under the authority of the Minister of Foreign Affairs. The agreement is attached to the certificate. This certificate is conclusive evidence of the agreement … If there is any inconsistency between the agreement and the Act, the Act prevails.”[7] Unlike the scheme of proclamations under the previous law, there is no bar to the retroactive operation of the new system under section 10 of the Act. The relevant statutory provision is section 6 of the 1999 Act: “Subject to a relevant extradition agreement, extradition may be granted under this Act whether the conduct or conviction in respect of which the extradition is requested occurred before or after this Act or the relevant extradition agreement or specific agreement came into force.”
Despite the introduction in Canada in 1999 of this new system of extradition by “ad hoc extradition agreement applying to one particular case”,[8] it has been pointed out (in a book published in 2017) that “There does not appear to be any cases where extradition was based on [such a] specific agreement.”[9]
The United Kingdom
We now turn to the British law on ad hoc extradition in the absence of treaties. The law was originally contained in section 15 of the Extradition Act 1989, which has now become section 194 of the Extradition Act 2003. The system has been summarised as follows: “A novel feature of the Extradition Act, 1989 is that it empowers the United Kingdom government to enter into what may be termed ad hoc extradition arrangements with other States. Often arrangements of this nature are intended to deal with situations of urgency, where there may be no formal extradition treaty or where whatever arrangements as exist are regarded as inadequate for the particular purpose. … Section 15 of the 1989 Act authorises the conclusion of ‘special extradition arrangements’ with another State ‘in respect of a person’. In other words, while there may be no general extradition treaty with that State or such treaty as exists may not cover the relevant circumstances, the UK Government may agree to extradite a person in accordance with a specially made agreement. The existence of any such arrangement is proved conclusively by a certificate from the Secretary of State. There is no indication in section 15 of the 1989 Act what those arrangements should contain. … No ad hoc extradition arrangement has been made prior to 1 January 1995 [the time of completion of writing of this book].”[10]
The background and rationale behind the enactment of section 15 has been explained as follows:[11]
“The purpose of ‘special extradition arrangements’, as explained in the Home Office Working Party Report, is to widen the options on granting or obtaining the surrender of fugitive criminals; to save time and expense in arranging for extradition with a country ‘with which the likely amount of extradition traffic does not justify the effort of negotiating a treaty’ and to ‘reduce our inhibitions of making an extradition application to a country with which we had no treaty’.
“The intention is to provide, for the purpose of an individual case, a short and simple form of extradition arrangement, which is subject to the safeguards of Part III of the Extradition Act 1989 but not to a treaty.”
It is particularly noteworthy that the same authors (in their book published in 2000) point out as follows:
“The utility of this procedure has yet to be demonstrated in practice. General extradition arrangements in the form of bilateral or multilateral treaties already cover all those countries with which the United Kingdom has most ‘extradition traffic’. It is the understanding of the courts that such countries are deemed to be worthy of trust, and likely to honour their obligations, or the treaties would not have been made. What of other countries with whom the United Kingdom has no treaty arrangements? Which of them provides what Article 14 of the International Covenant on Civil and Political Rights calls ‘a fair and public hearing by a competent independent and impartial tribunal established by law’? If a State seeks the extradition of a fugitive on the basis of a special arrangement, how will the Secretary of State decide whether it is to be trusted to carry out its obligations?
“These are questions which may involve enquiries and research when a request is received from a country with which there are no existing extradition arrangements. … The greater problem lies in the fact that even if all the statutory safeguards are included in the special arrangement, the standards of justice administered in the requesting country and its prison conditions may make it undesirable to grant a special arrangement in the first place.
“For this reason the Home Office Working Party recommended a cautious approach to ad hoc extradition:
We think it right, therefore, that if there were to be a power to extradite without a treaty, the legislation should require that the Secretary of State be satisfied, before issuing an Order to proceed and before surrendering a fugitive, that the standards of justice and penal administration in the requesting State were such that it would be in the interests of justice to surrender the fugitive.
“Such considerations might involve the continuous monitoring of regimes in all countries outside the present nexus of formal extradition arrangements, since decisions are likely to be taken at a moment's notice. Such monitoring is already the normal practice of UK diplomatic missions abroad.”[12]
The above quotations show that although in theory, the arrangement of ad hoc extradition by special extradition arrangements under section 15 of the Extradition Act 1989 opens the door to extradition requests from all countries in the world with which the UK does not have any extradition treaty, in practice, the UK government will be very cautious in invoking the power granted to it by section 15 to engage in ad hoc extradition on a case by case basis, particularly where there is doubt as to whether the situations in terms of rule of law, judicial independence and protection of human rights in the requesting jurisdiction are satisfactory enough to warrant extradition -- which, in the case of extradition under extradition treaties, are based on the UK government’s (and the people’s) trust and confidence in the legal and judicial systems of the jurisdiction requesting the extradition. In practice, it seems that the power to extradite by special extradition arrangements under section 15, and its successor which is section 194 of the Extradition Act 2003, is only used in rare and exceptional circumstances, such as cases of extradition of suspected perpetrators of genocide to Rwanda for trial.[13] In a leading treatise on the law of extradition in the UK published in 2013, only one case arising from special extradition arrangements has been cited.[14] This is the case of Brown v Governor of HMP Belmarsh [2007] EWHC 498 (Admin), in which the government of Rwanda, which did not have any extradition treaty with the UK, sought the extradition of several persons “in connection with their alleged involvement in genocide and murder in that State”.[15]
The proposal in the Bill
We now turn to the HKSAR Government’s proposal in the Bill, which proposes to introduce a system of ad hoc extradition by “special surrender arrangements”, which are similar to the “special extradition arrangements” under section 194 of the British Extradition Act 2003, and the “specific agreement” under section 10 of the Canadian Extradition Act 1999.
As a starting point, it should be noted that there is under the existing Fugitive Offenders Ordinance (FOO) no provision similar to those on ad hoc extradition arrangements on a case by case basis in the British and Canadian laws mentioned here. In explaining its proposal in the papers for the Legislative Council, the government has correctly pointed out that the existing arrangements in section 3 of the FOO does not facilitate the introduction and implementation of ad hoc extradition of the kind that is permitted under the current UK or Canadian law. The existing system of extradition under the FOO caters for extradition conducted in accordance with extradition treaties. After an extradition treaty has been entered into between the HKSAR and a foreign state, subsidiary legislation in the form of an “order” to implement the treaty will be introduced by the Chief Executive in Council; the “order” is subject to the “negative vetting” procedure of the Legislative Council. The scheme embodied by the extradition treaty and the “order” will only become operational after the period for negative vetting by the Legislative Council expires.
The Bill now proposes to introduce new “special surrender arrangements” that will exist side by side with the extradition “arrangements of a general nature” provided for in extradition treaties and in the existing FOO. The Chief Executive will be empowered by the proposed section 3A of the FOO to enter into “special surrender arrangements in respect of a person”. Once the “special surrender arrangements” have been concluded with another jurisdiction and the relevant “certificate” stating that the arrangements exist has been issued by the Chief Executive, extradition can proceed in the same manner as where an extradition treaty has been entered into and the negative vetting by LegCo has been completed. There is in the case of “special surrender arrangements” no need for LegCo to be involved at any stage once the present Bill is passed into law by LegCo.
Under the existing FOO, extradition does not apply as between Hong Kong and other parts of China (including Macau, mainland China and Taiwan). The Bill proposes to remove this exception to the operation of the FOO, so that it would be possible to have either extradition by way of extradition treaty or ad hoc extradition on a case by case basis (under the “special surrender arrangements” proposed in the Bill) as between Hong Kong and any of the other three jurisdictions within China.
Under the existing FOO, any case of extradition in Hong Kong should be conducted in accordance with (a) the conditions and restrictions set out in the FOO (hereafter called the “FOO Conditions”) as well as (b) the conditions and restrictions provided for in the extradition treaty concerned (hereafter called the “Treaty Conditions”), which almost invariably add to the FOO Conditions. If the Bill is passed into law, then there will be an additional mode of extradition (i.e. ad hoc extradition) which is subject to certain modified conditions and restrictions introduced by the Bill (hereafter called “Modified Conditions”) as well as any additional conditions or restrictions set out in the “special surrender arrangements” concerned. The Bill however does not indicate whether or what additional conditions and restrictions may be set out in “special surrender arrangements” to be concluded on an ad hoc or case by case basis with any particular jurisdiction with which Hong Kong does not have an extradition treaty.[16]
There are two principal differences between the FOO Conditions and the Modified Conditions. First, under the FOO Conditions there is a total of 46 categories of extraditable offences, while the Modified Conditions provide only for 37 of these 46 categories of offences. Secondly, whereas the FOO Conditions provide that an extraditable offence is one punishable with imprisonment for more than 12 months, under the Modified Conditions extraditable offences are limited to those punishable with imprisonment for more than 3 years.
Both the FOO Conditions and Modified Conditions include the “general restrictions on surrender” in section 5 of the existing FOO, such as those relating to political offences and prosecution on account of the accused’s race, religion, nationality or political opinions. These general restrictions are in practice reproduced in the Treaty Conditions when the HKSAR enters into an extradition treaty with another state.[17]
Another FOO Condition which is in practice often reproduced in Hong Kong’s extradition treaties is that in section 13(4) of the FOO: “The Chief Executive may decide to make no order for surrender in the case of a person who is a national of the People’s Republic of China.”
A significant number of states (including not only Continental European countries but also Singapore which is a common law jurisdiction) with which Hong Kong has entered into extradition treaties have, in the extradition treaties concerned, reserved the right not to extradite their own nationals to Hong Kong. The following are examples.
Article 3 of Hong Kong's extradition treaty with Germany: “(1) The Government of the Hong Kong SAR reserves the right to refuse the surrender of nationals of the People's Republic of China and the Government of the Federal Republic of Germany reserves the right to refuse the surrender of its nationals. (2) Where the Requested Party exercises this right, it shall, if asked to do so by the Requesting Party, take all possible measures in accordance with its own law to prosecute the person. The Requesting Party shall be informed of the result of its request.”
Article 3 of Hong Kong's extradition treaty with Singapore: “(1) The Government of the Hong Kong SAR reserves the right to refuse the surrender of nationals of the People's Republic of China. The Government of the Republic of Singapore reserves the right to refuse the surrender of its nationals. (2) Where the requested Party exercises this right, the requesting Party may request that the case be submitted to the competent authorities of the requested Party in order that proceedings for prosecution of the person may be considered. (3) The nationality of the person whose surrender is sought shall be determined at the time of the commission of the offence for which surrender is requested.”
As far as the number of extraditable offences are concerned, the Modified Conditions appear to be more restrictive (on extradition) than the FOO Conditions. But this does not necessarily mean that ad hoc extradition is applicable to fewer offences than extradition in accordance with a particular extradition treaty. This is because the Treaty Conditions in a particular extradition treaty may limit the number of extraditable offences to a greater extent than that provided for in the Modified Conditions. For examples, the numbers of extraditable offences provided for in extradition treaties between Hong Kong and the following countries are actually less than the number of extraditable offences under the Modified Conditions.[18] The countries concerned and the numbers of extraditable offences are listed as follows. Singapore (30); Netherlands (30); Canada (27); Finland (20).[19]
As mentioned above, Treaty Conditions usually add additional conditions and restrictions to the FOO Conditions which are therefore only the minimum conditions and restrictions. The following are examples of Treaty Conditions that go beyond the FOO Conditions.
Article 6 (“discretionary refusal of surrender”) of Hong Kong’s extradition treaty with Singapore:
“(1) The surrender of any person sought under the terms of this Agreement may be refused if it appears to the appropriate authority of the requested Party that: (a) by reason of the trivial nature of the offence of which he is accused or was convicted; or (b) by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large as the case may be; or (c) because the accusation against him is not made in good faith in the interests of justice; or (d) because such surrender would be likely to enter exceptionally serious consequences related to age or health, it would, having regard to all the circumstances, be unjust or oppressive to return him. (2) … ”
Article 7 (“discretionary refusal to surrender”) of Hong Kong extradition treaty with Germany.
“… (2) The surrender of a fugitive offender may also be refused if the Requested Party considers that: (1) in the circumstances of the case, the surrender of the fugitive offender would be incompatible with humanitarian considerations in view of age, health or other personal circumstances; or (2) the surrender would prejudice essential interests of the Requested Party; or (3) the surrender of the fugitive offender may place that Party in breach of its obligations under international treaties. …”
Article 7 of Hong Kong's extradition treaty with the Netherlands.
“The surrender of a fugitive offender may also be refused if the requested Party considers that: (a) the offence is, having regard to all the circumstances, not sufficiently serious to warrant the surrender; or (b) there has been excessive delay, for reasons which cannot be imputed to the fugitive offender, in bringing charges against him, in bringing his case to trial or in making him serve his sentence or the remainder thereof; or (c) the surrender of the fugitive offender may place that Party in breach of its obligations under international treaties; or (d) in the circumstances of the case, the surrender of the fugitive offender would be incompatible with humanitarian considerations in view of age, health or other personal circumstances.”
There is no indication or requirement in the Bill that in deciding whether to enter into “special surrender arrangements” for ad hoc extradition, the Chief Executive is bound to take into account the kind of factors that commonly appear in Treaty Conditions (that add to the FOO Conditions which are only minimum conditions and restrictions) such as those reproduced above, or whether the court should take into account such factors in deciding on the extradition case.
Conclusion
A preliminary conclusion may be stated as follows.
The Fugitive Offenders Ordinance (FOO) only provides for minimum conditions (“the “FOO Conditions” as defined above) for extradition. Extradition treaties usually provide additional safeguards and restrictions on extradition (i.e. the “Treaty Conditions” as defined above). Under the existing law, proceedings in any case of extradition must comply with both the FOO Conditions and the Treaty Conditions.
The Bill introduces a new form of extradition (i.e. ad hoc extradition on a case by case basis pursuant to “special surrender arrangements” entered into between the HKSAR and any state with which Hong Kong does not have an extradition treaty, or between the HKSAR and mainland China, Macau and Taiwan) that is subject to a slightly modified version of the FOO Conditions (i.e. the “Modified Conditions” as defined above). Given the absence of Treaty Conditions, this new system of extradition is in some respects subject to less conditions and restrictions than extradition in accordance with extradition treaties (which is the original form of extradition provided for in the FOO).
It is of course possible that in practice, the Chief Executive will adopt an extremely cautious approach in deciding whether to enter into “special surrender arrangements” for ad hoc extradition, and that the power of ad hoc extradition will only be used in rare and exceptional circumstances as in the cases of Britain and Canada discussed above. On the other hand, it must be recognised that by creating a new system of ad hoc extradition which can be initiated in any case (so long as the minimum “Modified Conditions” (as defined above) are satisfied) in the sole discretion of the Chief Executive, the Bill proposes to add enormously to the extradition power of the Chief Executive (though without reducing the power of judicial control), which represents a fundamental change in the existing law, not to mention the removal of the original exception to the application of the FOO as between Hong Kong and other parts of China.
This paper has demonstrated that extradition in the absence of treaties (i.e. ad hoc extradition) is available in the United States only under very narrowly defined circumstances, and although such extradition is legally permissible in a broader range of circumstances in Britain and Canada, it is in rarely used in practice and only in exceptional circumstances of very serious crimes. This is because with regard to countries whose legal systems have gained the trust of the state concerned, it is likely that the state would already have concluded extradition treaties with such countries. Ad hoc extradition, if available under the law of a particular state, raises the question of whether the legal system of the requesting state is such that the requested state has sufficient trust and confidence in it for the purpose of granting extradition to it. It is primarily the responsibility of the government (i.e. the executive branch of government) of the “requested state” to conduct relevant inquiries in this regard.
If and when ad hoc extradition as proposed in the Bill is introduced as between mainland China and Hong Kong, the concern of many people in Hong Kong is that since the Chief Executive can hardly refuse any extradition request from the Central Authorities that formally complies with the “Modified Conditions” (as defined above) in the law as amended by the Bill, the practice of this arrangement will not be limited to rare and exceptional circumstances but may become a regular extradition arrangement as between Hong Kong and mainland China without additional safeguards that are usually introduced by treaties when they are negotiated.
Furthermore, Hong Kong courts will be placed in a difficult and invidious position in adjudicating upon whether the legal and judicial systems in mainland China are sufficiently compliant with relevant human rights standards that need to be satisfied before extradition may be granted, particularly since the PRC is not yet a party to the International Covenant of Civil and Political Rights (which according to Hong Kong case law would be relevant to extradition cases) which is applicable to the HKSAR under Article 39 of the Basic Law.[20]
It may thus be questionable whether the model of ad hoc extradition in countries like Britain and Canada is appropriate as far as extradition (or rendition) as between mainland China and Hong Kong is concerned. Ideally, such rendition should be regulated by an agreement between the two sides similar an extradition treaty, as Article 95 of the Basic Law contemplates judicial cooperation agreements between Hong Kong and the mainland, and some such agreements have already been entered into in civil and commercial matters.
If, despite the above considerations, the HKSAR Government and the Legislative Council decide to proceed with the Bill, it is advisable for them to consider further modifying the “Modified Conditions” so as to impose additional restrictions and safeguards on ad hoc extradition. For example, the list of extraditable offences for the purpose of ad hoc extradition may be limited to the most heinous crimes.[21] This would be consistent with the practice in foreign jurisdictions whose law permit ad hoc extradition in the absence of extradition treaties but which resort to ad hoc extradition only in rare and exceptional circumstances such as those involving the most heinous crimes.
Secondly, consideration may be given to a non-retroactive arrangement of extradition in the absence of extradition treaties similar to that under Part II of the former Canadian Extradition Act (R.S.C. 1985, c. E-23), so that the new arrangement of ad hoc extradition in the absence of extradition treaties will only be applicable to crimes committed after the law on ad hoc extradition has been introduced in Hong Kong.
Thirdly, consideration may also be given to whether Hong Kong residents should be excluded from ad hoc extradition, just as section13(6) of the existing Fugitive Offenders Ordinance and most extradition treaties which Hong Kong has entered into reserve the right of the Hong Kong authorities not to extradite Chinese nationals. This provision was originally designed as a restriction to extradition between Hong Kong and foreign states. It does not make sense as far as extradition or rendition between Hong Kong and mainland China is concerned. A modified version of this principle as adapted to rendition as between Hong Kong and mainland may be that Hong Kong will not extradite Hong Kong residents to the mainland, but will prosecute them instead in Hong Kong, just as it is commonly provided in extradition treaties that where Hong Kong exercises its right not to extradite a Chinese national, the requesting state may request that Hong Kong initiate proceedings to prosecute the person concerned in Hong Kong. This is the proposal recently put forward by Mr Michael Tien, a Legislative Councillor in Hong Kong, and it deserves further study and serious consideration.
Mr Tien also proposed a two-stage reform of the existing law on extradition: in the first stage, the existing law will be reformed so as to enable the Chan Tong-kai case to be dealt with expeditiously by way of extradition to Taiwan; the second stage would involve the introduction of a scheme of “special surrender arrangements” that is a modified version of the scheme now proposed in the Bill. This two-stage approach deserves to be supported, as discussed in greater detail in the Appendix to this paper.
Cheng Chan Lan Yue Professor in Constitutional Law
Faculty of Law, The University of Hong Kong
3 May 2019
APPENDIX: The Chan Tong-kai Case
There is considerable support among Legislative Council members and members of the public for a speedy amendment of the existing law to facilitate the extradition of Chan Tong-kai to Taiwan for trial for suspected murder. As proposed by Mr Michael Tien, the first stage of a two-stage reform of the existing law of extradition can enable such extradition in the Chan case to be achieved. Technically, there is nothing in the existing law to prevent the Hong Kong SAR government from entering into a “special surrender arrangement” (i.e. an ad hoc arrangement applicable only to a particular individual requested by another jurisdiction to be extradited) for extradition. Such a special surrender arrangement may be embodied in an “order” made by the Chief Executive in Council under sections 3 of the FOO, and can become effective after the period for “negative vetting” by LegCo expires. The only legal impediment to the entry into such a special surrender arrangement to deal with the Chan case lies in the definition of “arrangements for the surrender of fugitive offenders” in section 2(1) of the FOO, which excludes the operation of such arrangements with regard to “any other part of the People's Republic of China” (which includes Taiwan). The first stage of the proposed reform of the existing law would therefore involve the deletion of this exclusion from the FOO. Once the deletion becomes effective, the government can, by making an “order” under section 3 of the FOO (which is subject to “negative vetting” by the Legislative Council), arrange for Chan’s extradition to Taiwan.
Notes
[1] Matthew Bloom, “A comparative analysis of the United State’s response to extradition requests from China” (2008) 30 Yale Journal of International Law 177 at p. 200. See also Bruce Zagaris, International White Collar Crime (Cambridge University Press, 2nd ed. 2015), pp. 431-433.
[2] See David Goetz, “Bill C-40: A New Extradition Act”, Library of Parliament, http://publications.gc.ca/Collection-R/LoPBdP/LS/361/c40-e.htm
[3] See A.W. La Forest, Extradition to and from Canada (3rd ed 1991), p. 39.
[4] See generally E.F. Krevel, T. Beveridge and J.W. Hayward, A Practical Guide to Canadian Extradition (Carswell, 2002), pp. 42-43, 52-56.
[5] Ibid., p. 42.
[6] A.W. La Forest, Extradition to and from Canada (3rd ed 1991), p. 39.
[7] Seth Weinstein and Nancy L. Dennison, Prosecuting and Defending Extradition Cases: A Practitioner’s Handbook (Toronto: Emond Montgomery, 2017), p. 53.
[8] Krevel et al. (see n 4 above), p. 53.
[9] Weinstein and Dennison (see n 7 above), p. 53.
[10] Michael Forde, The Law of Extradition in the United Kingdom (Round Hall Press, 1995), p. 26.
[11] I. Stanbrook and C. Stanbrook, Extradition: Law and Practice (Oxford University Press, 2nd ed. 2000), p. 232.
[12] Ibid., pp. 232-3.
[13] “Extraditing genocide suspects from Europe to Rwanda: Issues and challenges”, report of a conference organized by REDRESS and African Rights at the Belgian Parliament, 1 July 2008, https://redress.org/wp-content/uploads/2018/01/Sep-08-Extraditing-Genocide-Suspects-from-Europe-to-Rwanda.pdf . This report points out that section 194 of the Extradition Act 2003 “was applied in the case of four Rwandan genocide suspects who were found living in the UK in 2006 and arrangements were entered into with Rwanda, allowing for the arrests of the suspects on the basis of extradition requests issued by Rwanda” (p. 11 of the report). For further details of these cases, see pp. 18-20 of the report.
[14] Clive Nicholls et al., The Law of Extradition and Mutual Assistance (Oxford University Press, 3rd ed. 2013), p. 40.
[15] This case is also the only case on special extradition arrangements cited in A Review of the United Kingdom’s Extradition Arrangements (presented to the Home Secretary on 30 Sept 2011), http://www.homeoffice.gov.uk/ , p. 455, note 238.
[16] The Bill does provide (in the proposed section 3A of the FOO) that “special surrender arrangements” may include provisions that “in addition to the procedures [in the FOO], further limit the circumstances in which the person may be surrendered”.
[17] For the texts of the 19 extradition treaties which the HKSAR has entered into, see http://www.doj.gov.hk/eng/laws/table4ti.html
[18] Here I refer only to extraditable offences specifically listed in the extradition treaties concerned. It should be noted that such treaties may include a residual or “catch-all” provision, such as that in article 2(1)(a)(xxx) of Hong Kong’s extradition treaty with Singapore: “any other offences for which surrender may be granted in accordance with the laws of both Parties”.
[19] See note 17 above.
[20] See, e.g., Ubamaka v Secretary for Security (2012) 15 HKCFAR 743.
[21] This means that the list of extraditable offences should only include a relatively small number of most serious offences, and the minimum number of years of imprisonment for the purpose of an extraditable offence should be significantly increased beyond the proposal in the Bill of three years’ imprisonment.
* I am grateful to my colleague Prof. Simon Young for his referring me to relevant literature for the purpose of my research for this paper, and for his comments on an earlier draft of this paper. I am also grateful to Prof. Young, Mr Kevin Lau (劉進圖) and the Honourable Mr Michael Tien, Legislative Councillor, for sharing with me their views on the subject of this paper.
