A tale of two murder extraditions
Mass protests in Hong Kong have forced the government to suspend a planned law change that would have given Chief Executive Carrie Lam the power to extradite people at the request of foreign governments, including China.
A similar law already exists in New Zealand but in a recent case the Court of Appeal ordered the Minister of Justice Andrew Little to reconsider an extradition to China.
In 2018, a couple from Hong Kong spent their Valentine’s Day visiting Taiwan.
But 20-year-old Poon Hiu-wing, who was pregnant at the time, never returned to Hong Kong. Her body was discovered stuffed in a suitcase near a Taiwan subway station.
Poon’s boyfriend, Chan Tong-kai, 19, returned to Hong Kong alone and is a prime suspect Poon's murder.
Chan has been convicted in Hong Kong for unlawfully using Poon’s ATM card to withdraw money from her account, and is currently serving a jail sentence in Hong Kong.
Taiwan issued a warrant for his arrest later in 2018 but there is no formal extradition treaty between Hong Kong and Taiwan. As long as Chan does not set foot in Taiwan again, he can’t be tried for the murder of Poon.
So in February 2019, the Hong Kong government proposed to amend the extradition law in Hong Kong to give the head of the Hong Kong government, the Chief Executive, the authority to approve the extradition of people living in Hong Kong to anywhere in the world, on a case-by-case basis, but with qualifications.
Under the Extradition Act 1999, New Zealand also allows extradition of New Zealand residents on a case-by-case basis to countries where New Zealand has not signed any formal extradition treaty, again with qualifications. The Minister of Justice has the final say on whether or not to approve a particular case of extradition.
This power is under scrutiny in a recent New Zealand extradition case.
China authorities have alleged South Korean national and permanent New Zealand resident Kyung Yup Kim, killed Pei Yun Chen in Shanghai in 2009.
Kim returned to New Zealand, which has no extradition treaty with China. In 2011, Chinese authorities sought to extradite Kim from New Zealand and the Crown sought to allow the extradition under Extradition Act. Awaiting extradition, Kim was remanded in custody for five years, before being released on bail in 2016.
The court cannot forbid an extradition, since the Extradition Act invests the discretionary power of extradition to the Minister of Justice. The same act, however, forbids the Minister to allow extradition to countries where the alleged criminal may be tortured.
In 2015, then justice minister Amy Adams received diplomatic assurances from China that Kim would be protected against torture and Adams approved Kim’s extradition. Kim’s lawyers sought a judicial review and appeal, arguing that the diplomatic assurances were insufficient.
Earlier this month, the Court of Appeal affirmed that the diplomatic assurances against torture were indeed insufficient, and ordered the Justice Minister, now Andrew Little, to reconsider the extradition. The Court of Appeal further ordered the Little to address concerns that human rights and the rule of law are either not well understood or well established in China.
The same issues lie at the heart of the two massive protests in Hong Kong. The protests weren’t against the extradition of murder suspect Chan to Taiwan but rather against the proposed amendment which would allow the extradition of accused people to China.
Those against the extradition amendment in Hong Kong fall into two groups. The first are people sceptical of the Chinese government who share the concerns laid out by the Court of Appeal.
They value their civil rights and freedom, protected by the rule of law inherited from Hong Kong’s days as a British colony, before being handed over to China in 1997.
Nominally, Hong Kong is a Special Administrative Region of China, with its own autonomous rules (many inherited from the British) except on foreign affairs and defence.
Its people look north and see the Chinese government arbitrarily or selectively apply justice, from convicting a lawyer doing his job, to denying citizens their civil rights through wholesale surveillance.
Protestors suspect the Chinese government will apply for the extradition of political dissidents with made-up charges and this will have chilling effect on their civil rights.
Many of them, young enough to have no memory of British rule, want not just their civil rights protected under rule of law. They want political rights which were denied by the British, and are still currently denied. In 2014, the so-called Umbrella Movement demanded one particular political right: universal suffrage to elect Hong Kong's chief executive.
For these young people, the fight for civil and political rights is their climate change moment: tired of inaction from older generations, they took to the streets and forced them to listen.
Many of these young activists are joined by Hong Kong's business community which largely watched from the sidelines in 2014. They prospered during the British and Chinese rule without full political rights by doing business in China. Many of them fear that they will be extradited not on political but on corruption or economic crime charges.
Given the endemic corruption issues which exist in China, it is reasonable to assume there are plenty of business people who have bribed officials there. Indeed to commit a bribery, there must be two parties: the one offering bribe, and the one taking bribe, and both parties are committing a crime. Under the rule of Xi Jinping, China has seemingly embarked on an anti-corruption drive and one of its most recent convictions is against Meng Hongwei, former chief of Interpol. Therefore it seems the fear of the business community in Hong Kong is well founded.
There are plenty of additional political subtexts on the question of extradition to China, in both Hong Kong and New Zealand (alleged deception of the Hong Kong government using the Taiwan murder as trojan horse; diplomatic pressure to please China, New Zealand’s largest export market, etc.)
Yet, there are serious doubts on the integrity of the justice system in China, on whether alleged criminals can expect justice and due process. On the other hand, crimes are being committed in China and some of those allegedly responsible have fled China, to Hong Kong or New Zealand, and there needs to be extradition to China to serve justice.
In my view, the protesters in Hong Kong and the Court of Appeal in New Zealand both provided a similar answer: unless the trust in the Chinese justice system improves, on balance we have to say no to extradition to China.
But that doesn’t mean we should stop the conversation. It is up to the Chinese government to provide better reassurances to people of Hong Kong, the New Zealand Government, and its people, that justice can and will be served in China.
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