What model for extradition between Hong Kong and mainland China? A comparison between the 2019 (withdrawn) amendment to Hong Kong extradition law and the European Arrest Warrant
| DOI | 10.1177/2032284420972190 |
| Published date | 01 December 2020 |
| Date | 01 December 2020 |
| Subject Matter | Articles |
Article
What model for
extradition between Hong
Kong and mainland China?
A comparison between the
2019 (withdrawn)
amendment to Hong Kong
extradition law and the
European Arrest Warrant
Yanhong Yin
Vrije Universiteit Brussel, Belgium
Irene Wieczorek
Durham Law School, University of Durham, UK
Abstract
This article provides an analysis of the bill proposed in 2019 to amend Hong Kong Fugitive
Offenders Ordinance (FOO), Hong Kong domestic legislation on extradition. The FOO
Amendment Bill introduced the possibility of, and detailed the conditions for, surrendering fugi-
tives from Hong Kong to other regions of the People’s Republic of China (PRC), among which,
controversially, mainland China. After multiple protests, the proposal was withdrawn. It none-
theless represents the first attempt of introducing a legal basis for extradition between Hong Kong
and mainland China, and it is thus deserving of close scrutiny. The article describes the unique
constitutional setting in which this amendment was proposed, Hong Kong and mainland China
being two regions of the same sovereign country which have two radically different legal systems
under the ‘One Country, Two Systems’ principle. It compares the proposed system for extradition
between these two regions with the rules regulating extradition between Hong Kong and third
states, and with international systems for surrender, including the European Arrest Warrant and
the UN Model Extradition Treaty. It shows that the FOO Amendment Bill would have put in place
a surrender system in some respects less advanced and subject to more obstacles than standard
Corresponding author:
Irene Wieczorek, Durham Law School, University of Durham, Durham, UK.
E-mail: irene.wieczorek@vub.be
New Journal of European Criminal Law
2020, Vol. 11(4) 504–523
ªThe Author(s) 2020
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DOI: 10.1177/2032284420972190
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international extradition Treaties and than the system regulating extradition between Hong Kong
and third countries. This is the case, for instance, for the rules on penalty thresholds and on double
criminality. Conversely, in other respects, it would have been even more advanced (and with fewer
obstacles) than the European Arrest Warrant, one of the most advanced systems of international
surrender. This is notably the case for the rules regulating extradition of Hong Kong residents to
other parts of the PRC. These latter were, however, among the more controversial aspects of the
proposal. The article also discusses the challenges that reintroducing a similar proposal would face
in the future, including in light of current political and legal developments – notably the Standing
Committee of the National People’s Congress’s July 2020 adoption of the ‘Hong Kong National
Security Law’. It suggests that one avenue to smoothen surrender proceedings between Hong
Kong and mainland China would be taking a procedural rather than a substantive approach, namely
by increasing the role of courts and decreasing the role of executive bodies in the extradition
procedures.
Keywords
Hong Kong, mainland China, extradition, European Arrest Warrant, political offence
Introduction
In early 2018, 19-year-old Hong Kong resident Chan Tong-kai killed his pregnant girlfriend Poon
Hiu-wing in Taiwan. He then returned to Hong Kong. Chan admitted the murder to the Hong Kong
police. However, when Taiwanese authorities requested his surrender, the police were unable to
comply because there is no legal basis for surrender of fugitives between Hong Kong and Taiwan.
1
Hong Kong’s domestic law on extradition, the Fugitive Offenders Ordinance (FOO),
2
provides the
legal basis for the Hong Kong government to conclude extradition agreements with third parties
and set the general characteristics such extradition Treaties should include. The text of the ordi-
nance specifies that it refers to arrangements between the Government of Hong Kong and the
government of a place outside Hong Kong other than the Central People’s Government of the
People’s Republic of China (‘PRC’) or the government of any other part of the PRC.
3
This
excluded therefore the possibility to conclude any extradition agreement with, and therefore carry
out extradition, not only to Taiwan in this specific case but also with mainland China or Macao.
4
Spurred by the legal difficulties that this case had shown, in February 2019, the Hong Kong
government proposed the ‘Fugitive Offenders and Mutual Legal Assistance in Criminal Matters
(Amendment) Bill’ (hereinafter ‘the FOO Amendment Bill’).
5
The text was meant to amend the
existing Fugitive Offenders Ordinance introducing the possibility to conclude special surrender
1. ‘Taiwan won’t ask for murder suspect if Hong Kong passes ‘politically motivated’ extradition law’ Hong Kong Free
Press (10 May 2019)
ses-politically-motivated-extradition-law/> accessed 15 April 2020.
2. Fugitive Offenders Ordinance ch 503. accessed 24 February 2020,
(hereafter FOO).
3. See pt I, s 2(1)a of FOO (n 2).
4. On the administrative divisions of the PRC and the position of Taiwan, see briefly the next section, and more broadly, J
Liang, Party Autonomy in Contractual Choice of Law in China (CUP, Cambridge 2018), 219–29.
5. Government of Hong Kong, ‘Statement Given by Secretary of HK Security Bureau on the Amendment of Hong Kong
Fugitive Offender Ordinance’ (30 May 2019)
Yin and Wieczorek 505
arrangements with other parts of the PRC. It also set all the legal requirements which such special
surrender agreements would have had to respect, which, as the article shows, were in some cases
different from the ones the FOO sets for agreements with third countries. The proposed text was
updated in May 2019.
6
Yet after 4 months’ protests, the proposed amendment was ultimately
withdrawn by the Hong Kong government on 23 October 2019.
7
Still, this text represents the first
attempt to introduce a legal basis for a surrender mechanism between Hong Kong and other parts of
the PRC. And it could serve as the blueprint for the drafting of any future legislative proposals for
such a mechanism. It is thus interesting to look at the features of the special surrender arrangements
this FOO Amendment Bill envisaged. Considering that the protests mainly concerned the possi-
bility of extradition from Hong Kong to mainland China, the article will focus in particular on how
the envisaged special arrangements provision would have applied to extradition between these two
regions, and what legal (and political) challenges extradition between these two regions, under this
proposal, could have raised.
Extradition procedures rais e issues of sovereignty and prote ction of human rights. Complyin g
with an extradition request entails that a State exercises coercive powers on its territory, limiting
the requested person’s freedom, in order to allow a different State to enforce its criminal law. It
also means taking the responsibility for surrendering an individual to a different jurisdiction,
where their fundamental rights might be at risk. Reacting to those aspects and risks to different
extents, states have adopted different approaches to extradition which require more or less
formalities and more or less strict substantive and procedural requirements before an extradition
request can be granted. These different approaches are reflected in both domestic legislation on
extradition
8
and international extradition agreements concluded between States. Traditionally,
extradition Treaties envisage a list of well-established grounds for refusal for extradition, such as
‘double criminality’ or ‘political offence’, which in practice allow States to maintain a signif-
icant degree of control on the extradition decision, thereby protecting their sovereignty.
9
How-
ever, States with particular historical and political ties, such as Brazil and Portugal, have
concluded agreements between them which softened some of these grounds for refusal.
10
More-
over, there are examples of significantly more integrated frameworks such as the EU Framework
Decision on the European Arrest Warrant (‘EAW FD’), which regulates extradition between the
htm> accessed 24 February 2020 (hereafter Statement by Secretary of HK Security Bureau). The text of the amendment
is available at accessed 15 July 2020.
6. ‘Hong Kong extradition bill: security chief announces safeguards to win support of major business groups and political
allies’ South China Morning Post (30 May 2019)
hong-kong-security-chief-john-lee-rolls-out-new-measures> accessed 10 October 2020.
7. ‘Hong Kong leaders Carrie Lam announces withdrawal of extradition bill that sparked months of protests’ Sky News
(5 September 2019)
story/a0e93fa74c87894e9f4e6359dc279cd1> accessed 20 October 2019.
8. For instance, Japanese law allows extradition without a Treaty so long as reciprocity is in place (Act of Extradition, Act
No. 68 of 21 July 1953), whereas Belgian law requires both a Treaty and assurances of reciprocity (Belgian Loi sur les
extraditions du 15 mars 1874 (modifi´ee par la loi du 31 juillet 1985)).
9. See extensively, MJ Costa, Extradition Law – Reviewing Grounds for Refusal From the Classic Paradigm to Mutual
Recognition and Beyond (Brill, Netherlands 2019).
10. See more extensively on how historical or political ties have led to eliminating or softening traditional grounds for
refusal MJ Costa, ‘Policies of International Friendship in Judicial Cooperation in Criminal Matters: The Non-
Extradition of Brazilian and Portuguese Nationals to Third States – A Comparison with EU Law’ (2019) 5(2) Rev
Bras Direito Process Penal 737.
506 New Journal of European Criminal Law 11(4)
Member States of the European Union.
11
The EAW FD introduces a semi-automatic system of
surrender, implementing the EU principle of mutual recognition
12
and leaving EU Member
States very limited room to refuse surrender. The introduction of such an advanc ed system
13
was possible because the EU Member States are part of an integrated legal order which already
entailed the limitation of their sovereignty. They are moreover all subject to similar funda mental
rights obligations, stemming both from EU Law
14
and the European Convention on Human
Rights.
15
This implies that in principle EU Member States can trust one another that fundamental
rights are equally protected throughout Europe; in point of fact, jurisprudence states that the
system is underpinned by the principle of mutual trust.
16
The legal relationship between Hong Kong and mainland China is a constitutionally unique one.
It differs from the relationship between two sovereign states or between EU Member States but
also differs from that between a state or province and the federal government in a federal system.
On the one hand, both are technically two regions of the same sovereign State: the PRC. Extra-
dition between these two regions does not raise ‘sovereignty issues’ in the international law sense,
as it is a question of internal cooperation, as opposed to international cooperation (such as the
EAW FD). On the other hand, under the ‘One Country, Two Systems’ principle, which will be
more thoroughly explained below, the two regions have radically different legal, political and
economic systems, and Hong Kong enjoys a high degree of autonomy. Those differences include
the applicable fundamental rights standards, which create hurdles to extradition between the two
regions.
Against this background, the aim of the article is to discuss the main characteristics of the FOO
Amendment Bill and to assess the degree of cooperation it envisaged between Hong Kong and
mainland China. It will use two sets of texts as benchmarks against which to confer that Amend-
ment. The first is the EAW FD, which will serve as an example of a particularly advanced system
of extradition which, while being between sovereign states, is premised on important limitations of
sovereignty to ensure effective surrender. The second set consists of the text of the FOO itself,
which includes standard extradition law clauses, and the UN Model Extradition Treaty.
17
These
will serve as examples of standard extradition agreements which put a higher number of obstacles
to extradition, including a number linked to the protection of fundamental rights, than the ones we
find in the EAW FD, thereby privileging safeguards for sovereignty. The article will illustrate that
11. Council Framework Decision of 13 June 2002 on the European Arrest Warrant and surrender procedures between
Member States [2002] OJ L 190/1 (hereinafter EAW FD).
12. In essence, in the criminal law field, the mutual recognition principle requires Member States to give full recognition to
judicial decisions taken in other jurisdictions across the EU. See the ‘Programme of measures to implement the
principle of mutual recognition of decisions in criminal matters’ [2001] OJ C12/10 and C Janssens, The Principle of
Mutual Recognition in EU Law (Oxford University Press, Oxford 2013), especially chs 5 to 8.
13. For a comprehensive analysis, see R Bleckxtoon and W van Ballegooiij (eds), Handbook on the European Arrest
Warrant (TMC Asser Press, The Hague 2005). See also J Spencer, ‘The European Arrest Warrant’ (2005) 6 Cambridge
Yearb Eur Leg Stud 201.
14. Charter of Fundamental Rights of the European Union, [2012] OJ C 326/391.
15. Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights,
as amended) (ECHR), of 5 November 1956, ETS 005.
16. Court of Justice, Opinion 2/13 of 18 December 2014, para 191. See however, the discussion later in the paper on the
recent challenges the principle of mutual trust is facing.
17. The text of the UN Model Extradition Treaty is available at
extradition.pdf> accessed 22 July 2020.
Yin and Wieczorek 507
the FOO Amendment Bill would introduce a system for extradition from Hong Kong to mainland
China, which envisaged more hurdles, than then ones included in the parallel system, regulated by
the FOO for extradition between Hong Kong and third states, being in some case even more
restrictive than standard extradition Treaties.
The analysis is structured as follows. In the first section, this article clarifies further the
background and the legal context in which the amendment was proposed, clarifying the status
of the different administrative regions in the PRC and the ‘One Country, Two System’ principle. It
also discusses the recent adoption of the ‘Hong Kong National Security Law’ and the challenges
this has created for extradition between Hong Kong and third states and might create in the future
for extradition between Hong Kong and mainland China (see ‘The background to the 2019 ‘Foo
amendment bill’ proposal’ section [First Section]). The following two sections provide a critical
analysis of the FOO Amendment Bill. The next one analyses in particular the grounds for refusal of
surrender (see ‘Case-by-case approach and grounds for refusal’ section [Second Section]), and the
third one discusses the procedural safe guards granted during surrender (see ‘Procedural safe-
guards’ section [Third Section]). A fourth section concludes the article.
The background to the 2019 ‘Foo amendment bill’ proposal
After an extended period under British rule, Hong Kong was returned to the PRC in 1997. This
followed from an international treaty between the United Kingdom and the PRC, the ‘Joint
Declaration on the Question of Hong Kong’.
18
Hong Kong has since then been a ‘Special Admin-
istrative Region (SAR)’ within the PRC, governed under the ‘Basic Law of Hong Kong’.
19
Similarly, Macao is an SAR governed under the ‘Basic Law of Macao’.
20
Conversely, Taiwan,
whose status is contested, is not an SAR. The PRC’s official position is that Taiwan forms part of
it: indeed, the Preamble of the PRC Constitution declares that Taiwan is ‘part of the sacred territory
of the People’s Republic of China’.
21
The government of Taiwan rejects this, asserting full
sovereignty over the island and claiming to be the legitimate successor to the previous state, the
Republic of China. However, only 15 countries have recognised Taiwan as an independent state.
22
The portion of the PRC, which excludes Hong Kong, Macao and Taiwan, is traditionally referred
to as ‘mainland China’.
After the PRC regained sovereignty over Hong Kong, the question arose of how to deal with the
stark differences between the political and legal systems of Hong Kong and the Mainland. To
address this issue, as mentioned, the ‘One Country, Two Systems’ principle was introduced.
23
18. Joint Declaration of the Government of United Kingdom of Great Britain and Northern Ireland and the Government of
the People’s Republic of China on the Question of Hong Kong (UK-China) (signed 19 December 1984, entry into force
27 May 1985) UNTS23391.
19. ‘The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China’,
basiclaw.gov.hk/en/basiclawtext/images/basiclaw_full_text_en.pdf> accessed 18 April 2020 (hereafter ‘Hong Kong
Basic Law’). This text is a form of constitution for Hong Kong setting the founding norms for its administration.
20. ‘Basic Law of the Macao Special Administrative Region of the People’s Republic of China’
web/20010320024207/http://www.imprensa.macau.gov.mo/bo/i/1999/leibasica/index_uk.asp> accessed 22 July 2020.
21. Constitution of People’s Republic of China.
6104dd3a2793875d19b5b29.shtml> accessed 22 July 2020.
22. Guatemala, Haiti, Honduras, Paraguay, Nicaragua, El Salvador, Swaziland, Solomon Islands, Belize, Saint Lucia,
Kiribati, Saint Vincent and The Grenadines, Marshall Islands, Saint Kitts and Nevis and Palau.
23. See the preamble and ch 1 of the ‘Hong Kong Basic Law’ (n 19).
508 New Journal of European Criminal Law 11(4)
Under this principle, Hong Kong maintains its capitalist system rather than being obliged to adopt
the Chinese socialist system, and all laws in force in Hong Kong at the point of return remained in
force, save where inconsistent with the ‘Hong Kong Basic Law’.
24
Moreover, Hong Kong is
granted a high degree of autonomy in most policy areas, in particular it exercises independent
executive, legislative and judicial power.
25
The PCR maintains control on foreign affairs relating
to, and the defence of, the SAR, however, as per the ‘Hong Kong Basic Law’. ‘The Central
People’s Government authorizes the Hong Kong Special Administrative Region to conduct rele-
vant external affairs on its own in accordance with this Law’ (emphasis added).
26
An example of
the exercise of these Hong Kong powers in external affairs is making appropriate arrangements
with foreign states for reciprocal juridical assistance.
27
Turning to the topic of our analysis, namely judicial cooperation between Hong Kong and
mainland China, the ‘Hong Kong Basic law’ stipulates in art 95 that the Special Administrative
Regions may ‘[ ...] through consultations and in accordance with law, maintain juridical relations
with the judicial organs of other parts of the country, and they may render assistance to each other’.
There exist interesting examples of judicial cooperation mechanisms between Hong Kong and
mainland China, such as a procedure to notify the other side when ‘Criminal Compulsory Mea-
sures’ are imposed on, or prosecution initiated against, a resident of that other side.
28
There is, however, no record of art 95 Hong Kong Basic Law being relied upon as a stand-alone
legal basis for extradition between mainland China and Hong Kong,
29
and nor does any other legal
basis for surrender between the two regions exist. Extradition to and from Hong Kong is regulated
by domestic law, the FOO.
30
Part I, s 2 of the Ordinance limits its scope of application to
‘arrangements for the surrender of fugitive offenders’ applicable to the Government of Hong Kong
and the government of a place outside Hong Kong other than the Central People’s Government or
the government of any other part of the PRC. This provides the legal basis for Hong Kong to
conclude agreements with third countries independently from the PRC, and Hong Kong has signed
several such extradition treaties, including several countries which do not have an agreement with
the PRC.
31
Cooperation between Hong Kong and third states has run quite smoothly in the past
24. See art 8 ‘Hong Kong Basic Law’ (n 19). Most significantly, based on art 18(2) of the ‘Hong Kong Basic Law’, national
laws (ie those drafted and adopted by the National People’s Congress or its Standing Committee in mainland China)
simply do not apply to Hong Kong except those few explicitly listed in Annex III to the ‘Hong Kong Basic Law’.
25. See art 2 ‘Hong Kong Basic Law’ (n 19).
26. See arts 13 and 14 of the ‘Hong Kong Basic Law’ (n 19).
27. See art 96 of the ‘Hong Kong Basic Law’ and the subsequent discussion in this article on extradition treaties concluded
by Hong Kong.
28. See ‘Arrangements on the Reciprocal Notification Mechanism Between the Mainland and the Hong Kong Special
Administrative Region Relating to Situations Including the Imposition of Criminal Compulsory Measures or the
Institution of Criminal Prosecution’ Hong Kong Government Press release (14 December 2017).
gov.hk/gia/general/201712/14/P2017121400516.htm?fontSize¼2> accessed 23 July 2020.
29. M de Lemos and T Lancy Robalo, ‘Judicial Cooperation in Criminal Matters in the Special Administrative Regions of
Hong Kong and Macau. Through the Lens of ‘‘OneCountry, Two Systems’’ and the Surrender of Fugitives to Mainland
China’ (2019) 5(2) Rev Bras Direito Process Penal 737, 749. For more effective cooperation outside criminal justice
field, see, however, Liang (n 4).
30. Fugitive Offenders Ordinance ch 503 (n 2).
31. For a list of List of Surrender of Fugitive Offenders Agreements in Hong Kong, see
table4ti.html> accessed 22 July 2020. Among these, Australia, Germany, Britain, the United States, India, Singapore
and Malaysia do not have an agreement with China.
Yin and Wieczorek 509
years, with a small number of exceptions.
32
Such smoothness, however, seems to have come to an
end: in July 2020, an international coalition of lawmakers, the Interparliamentary-Alliance on
China (IPAC), called for the su spension of extradition treaties with Hong Kong
33
leading to
suspension by Canada,
34
Australia
35
and the United Kingdom.
36
This IPAC campaign was centred
on the Chinese People’s Government’s adoption of the ‘Hong Kong National Security Law’.
37
Under the ‘Hong Kong Basic Law’, it is in fact Hong Kong which should adopt laws protecting the
security of the PRC, including criminalising a number of political offences.
38
This legislation has,
however, never been adopted by Hong Kong legislative Council, because it has long been con-
sidered too politically sensitive and possibly an infringement on individual freedoms and democ-
racy.
39
The Chinese People’s Government adopted the National Security Law in July 2020, filling
this legal vacuum. This law was, however, considered as severely restricting the rule of law
40
and
threatening the ‘One Country Two Systems’ principle.
41
This was the basis of the call for suspend-
ing extraditions to Hong Kong, which because of this new regime in force, was seen as no longer
capable of guaranteeing the rights of those extradited to its territory and therefore no longer an
extradition trustworthy partner. This shows how even in those areas in which Hong Kong has the
power to autonomously act externally, its external relations with third states are in practice
influenced by the Central People’s Government decisions concerning its territory. As the article
will also clarify, the question of the criminalisation political offences, crucial within the debate on
the Hong Kong National Security Law, would have posed problems during the implementation of
the proposed amendment to the FOO, had this entered into force.
Contrary to what happens to Hong Kong relations with third states, the FOO could not function
as a legal basis for extradition between Hong Kong and the mainland: as noted above, pt 2 of the
FOO explicitly excludes surrender to other parts of the PRC. And, as also noted above, no other
legal mechanism for such surrender existed. Given this legal vacuum, surrenders, as have occurred
to date, were based on ad hoc informal arrangements, and in most cases, it was the PRC authorities
32. See, for instance, the observations on the Snowden case in, de Lemos and Lancy Robalo (n 29) 751 and the literature
there mentioned.
33. Interparliamentary-Alliance on China (IPAC), No Extradition to Hong Kong, statement available at
global/campaigns/no-extradition> accessed 16 July 2020.
34. ‘Canada suspends extradition treaty with Hong Kong over new security law’ The Canadian Press (3 July 2020).
accessed 16 July 2020.
35. ‘National security law: Australia suspends extradition treaty with Hong Kong’ BBC News (9 July 2020)
bbc.co.uk/news/world-australia-53344013> accessed 20 July 2020.
36. ‘UK to change extradition deal with Hong Kong – PM’ BBC News (20 July 2020)
politics-53463405> accessed 20 July 2020.
37. The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Adminis-
trative Region, G.N. (E.) 72 of 2020. An English version of the text can be found at
pdf/20202448e/egn2020244872.pdf> accessed 22 July 2020. Technically, the Law on Safeguarding National Security
in the Hong Kong Special Administrative Region was adopted by the Standing Committee of the National People’s
Congress and gazetted for promulgation by the HK Government.
38. See art 23 ‘Hong Kong Basic Law’ (n 19).
39. S Young, ‘Guide to Basic Law Article 23: Hong Kong’s Unresolved National Security Issue’ (HKU legal Scholarship
Blog, March 2015) accessed 18
February 2020.
40. See the IPAC statement (n 33).
41. See Trudeau’s statement (n 34).
510 New Journal of European Criminal Law 11(4)
surrendering fugitives to Hong Kong rather than vice versa.
42
The ad hoc nature of these surrender
arrangements has been criticised, and discussions on establishing a more institutionalised frame-
work for surrender have been ongoing for a number of years.
43
However, there was also consid-
erable resistance to such institutionalisation, especially on Hong Kong side. This resistance was
based not least on the important differences between the two regions in terms of fundamental rights
protection. For instance, while both regions are party to some international human rights instru-
ments such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment,
44
other key instruments such as the International Convention on Civil and Political
Rights (‘ICCPR’) are in force in Hong Kong
45
but not the PRC.
46
Quite apart from the formal legal
position, concerns have been raised as to the actual enforcement of fundamental rights in mainland
China,
47
which concerns have been given as a further potential obstacle to a long-lasting surrender
agreement.
48
On the mainland side, concerns reportedly existed on introducing a surrender
mechanism which would include political offence and non-surrender of nationals as grounds for
refusal.
49
42. de Lemos and Lancy Robalo (n 29) 749 et ff. See, for a recent case: Mainland Chinese police to Hong Kong criminals:
you can run, but you can’t hide here – as they hand back three suspects in HK$23 million jewellery robbery, South
China Morning Post (4 August 2018)
2158290/mainland-police-tell-hong-kongs-criminals-you> The article mentions at least cases only in 2018 of these
informal surrenders.
43. See on the critics, the position of Professor Song Xiaozhuang, of Shenzhen University’s Centre for Basic Laws of Hong
Kong and Macau reported in South China Morning Post (n 42). The Hong Kong Legislative Committee minutes
illustrate how the surrender between mainland China and Hong Kong were often discussed in the Committee in the past
20 years. For instance, the issue was discussed in 2008, 2016 and several other years, see:
LegCoWeb/Search.aspx?&searchtype¼simple&keyword¼surrenderþoffendersþHKþmainlandþChina> accessed
17 April 2020. In 2001, the HK Legislative Council Secretary also did one comprehensive Research on the question
surrender between mainland China and Hong Kong. See MC Pak-Kwan and MS Lam, ‘Research Study on the
Agreement Between Hong Kong and the Mainland Concerning Surrender of Fugitive Offenders’ (2001) Research and
Library Service Division and Legal Service Division Legislative Council Secretariat
01/english/library/erp05.pdf> accessed 17 April 2020.
44. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (adopted 10 December 1984, entry into
force 26 June 1987) UNTS1465(UNCAT).
45. See the International Convention on Civil and Political Rights (adopted 16 December 1966, entered into force 23
March 1976) 999 UNTS171(ICCPR), also see Department of Justice of Hong Kong government, ‘List of Treaties in
Force and Application to the Hong Kong Special Administrative Region’(7 May 2019)
laws/interlaw.html> accessed 26 February 2020. The Hong Kong Bill of Rights Ordinance was enacted in 1991 to give
effect to the relevant provisions of the International Convention on Civil and Political Rights. Regarding this, see ch
383 Hong Kong Bill of Rights Ordinance ch 383. ¼N>
accessed 26 February 2020.
46. China signed the Convention on 5 October 1998, but the National Congress has still not ratified it. See list of ratifi-
cations at
47. Regarding this, see Human Rights Watch Reports, ‘World Report 2020’
accessed 18 April 2020, ‘China: Rampant Violence and Intimidation Against Petitioners’ (8 December 2005)
www.hrw.org/news/2005/12/08/china-rampant-violence-and-intimidation-against-petitioners> accessed 18 April
2020, as well as the Amnesty International, ‘China Human Rights’
accessed 26 February 2020.
48. See the 2009 statement by NG Margaret, member of the Hong Kong Legislative Council Reported in Manero de Lemos
and Lancy Robalo (n 29) 757.
49. South China Morning Post (n 42). On political offence and surrender of nationals, see the ‘Case-by-case approach and
grounds for refusal’ section.
Yin and Wieczorek 511
It was in this context that the high-profile murder mentioned in the introduction provided the
trigger to finally table a proposal to amend the FOO by adding a s 3.A, dealing with ‘Special
arrangements for surrender of fugitive offenders’ (as opposed to simply arrangements as in s 2,
mentioned above).
50
These special arrangements are referred to in the proposed s 3.A(1) as
applying ‘between Hong Kong and the place outside Hong Kong’. In this context, the mention
to excluding other parts of the PRC was not included. The remaining part of the amendments
would then list the specific conditions at which these special arrangements could take place. This
section of the FOO, dealing with special arrangements, would have made a suitable domestic legal
basis for arrangements between Hong Kong and mainland China for extradition, which was the key
issue triggering the protests referred to in the Introduction.
The political context for the introduct ion of the FOO Amendment Bill bear s some similarities
with the ‘event-driven’ origin of other regional instrument for extradition, such as the EAW FD,
a law proposed and rapidly approved by the EU in the aftermath of the 9/11 terrorist attacks.
Beyond this, however, there are important differences between the two texts one should keep in
mind. First, the two triggering events are of a completely different scale. Second, some have
argued that the murder was simply a pretext for proposing the amendment to the FOO.
51
Third,
the EAW FD is an EU law, a sui generis form of international law agreed by unanimity between
all of the Member States’ governments and enacted as part of the broader EU constitutional
objective of establishing an Area of Freedom, Security and Justice within the EU.
52
Conversely,
the FOO Amendment Bill was a unilateral amendment to domestic legislation, therefore only the
first step towards establishing an extradition arrangements between the two parties – admittedly
objective for which the Chinese government had shown support and willingness
53
–anditwas
not formally linked to any broader constitutional objective enshrined in either the PRC Consti-
tution or the Hong Kong Basic Law. It was rather designed to facilitate justice in this particular
cross-border murder case and possibly other future cross-border criminal cases.
54
Finally, and
50. Emphasis added.
51. On the EAW and 9/11, see J Wouters and F Naert, ‘Of Arrest Warrant, Terrorist Offences and Extradition Deals. An
Appraisal of the EU’s Main Criminal Law Measures Against Terrorism after ‘‘11September’’’ (2004), Working Paper
No. 56, Leuven Institute for International Law
WP56e.pdf> accessed 20 October 2019. Conversely, on criticism being moved to the murder in Taiwan being simply a
pretext for the proposal of the FOO Amendment, see Hong Kong Free Press (n 1).
52. See art 29(1) TEU [consolidated in Amsterdam] stipulates that ‘[ ...] Union’s objective shall be to provide citizens
with a high level of safety within an area of freedom, security and justice by developing common action among the
Member States in the fields of police and judicial cooperation in criminal matters and by preventing and combating
racism and xenophobia. That objective shall be achieved by preventing and combating crime [ ...] through closer
cooperation between [...] judicial and other competent authorities of the Member States)’. See also para 5 in the
preamble to the Framework Decision on the European Arrest Warrant, which stipulates ‘The objective set for the Union
to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing
it by a system of surrender between judicial authorities’.
53. A Wallace, AFP, ‘Beijing Backs Hong Kong Over Amendments to Extradition Laws – China Pledges ‘‘Firm
Support’’ for Hong Kong leaders Carrie Lam After Mass Rally Against Planned Changes to Rendition Laws’ AL
Jazeera (10 June 2019) 9/06/beijing-backs-hong-kong-amendments-extradi
tion-laws-19061 0084831337.html> accessed 24 February 2 020.
54. Hong Kong leader Carrie Lam had argued the extradition bill must be passed before Chan, the culprit – who was jailed
for a different crime than the murder – is freed and to plug existing loopholes, although it was mentioned, there are also
critics that this was only a pretext to proposed the FOO Amendment. See Hong Kong Free Press News (n 1).
512 New Journal of European Criminal Law 11(4)
most importantly, the EAW FD was grounded on the mutual trust between EU Member States
that a similar level of fundamental rights applied throughout the EU. The discussions on
establishing extradition proceedings between Hong Kong and mainland China were conver-
sely characterised precisely by mistrust, as highlighted above. The following paragraph will
show how such mistrust has also shaped the provisions of the FOO Amendment Bill, leading
in some cases to stricter conditions for extradition from Hong Kong to mainland China than
from Hong Kong to third states. It should be noted that trust in extradition partners is a legal,
not only a political, issue. Indeed, with reference to the instant case, it has been argued that
Hong Kong could violate its human rights obligations under the ICCPR if it authorised
extradition to mainland China and the surrendered person’s human rights were then
violated.
55
On this last point, it is worth stressing the capital importance and fragility of mutual trust. Even
within the EU – which is highly legally and politically integrated, subject to relatively uniform
fundamental rights obligations, and collectively has a track record of fundamental rights enforce-
ment which is not comparable to that of mainland China – the assumption of mutual trust is being
questioned, including due to prison conditions in a certain number of prisons in a number of
Member States, such that the EAW system is now under pressure.
56
Here as well, it is argued
that Member States could violate the ECHR by surrendering individuals to another Member State
where their fundamental rights could be violated.
57
The text of the 2019 ‘Foo amendment bill’ proposal: the case-by-case
approach and the grounds for refusal
Turning now to a more in depth the analysis of the system envisaged by the FOO Amendment Bill,
a first feature one has to underline is that the proposed FOO amendment opened the door to
establishing special surrender arrangements between Hong Kong and mainland China but on a
case-by-case approach. No any obligatio n for either party to extradite in any given case was
established.
The FOO includes a number of grounds Hong Kong authorities can rely on to refuse surrender
to third states or to subject surrender to specific conditions, which have been included in surrender
agreements Hong Kong has concluded with third states. These are standard grounds for refusal that
one finds in extradition treaties or, in some cases, in the EAW FD, as is the case, for instance, for
the double jeopardy principle.
58
Under the amendment, the grounds already listed in the FOO
would equally have applied to surrender to mainland China. Other grounds for refusal such as the
55. K Bovend’Eerdt, ‘Look before you leap: the 2019 extradition bill amendments in light of Hong Kong’s international
human rights obligations’, EJIL: Talk! Available at: < https://www.ejiltalk.org/look-before-you-leap-the-2019-extra
dition-bill-amendments-in-light-of-hong-kongs-international-human-rights-obligations/ > accessed 26 July 2020.
56. See FMW Billing, ‘Limiting Mutual Trust on Fundamental Rights Grounds Under the European Arrest Warrant and
Lessons Learned From Transfers Under Dublin III’ (2020) 11(2) NJECL 184, and A Martufi and D Gigengack,
‘Exploring Mutual Trust Through the Lens of an Executing Judicial Authority. The Practice of the Court of Amsterdam
in EAW Proceedings’ (2020) 11(3) NJECL [forthcoming].
57. I Wieczorek, ‘The Impact of the Radu Case on National Jurisdictions’ in V Mitsilegas, A di Martino and L Mancano
(eds), The Court of Justice and European Criminal Law. Leading Cases in Contextual Analysis (Hart Publishing,
Oxford 2020).
58. See pt 1, s 5(1)e of FOO (n 2), see by comparison art 3(2) EAW FD (n 11), and art 3(d) UN Model Treaty for
Extradition (n 17).
Yin and Wieczorek 513
‘limitation bar’ are not explicitly included in the FOO, but were included by Hong Kong in all
extradition Treaties concluded with third parties.
59
One could imagine this would hav e been
reproduced in the special arrangements between Hong Kong and mainland China.
Including a limitation bar ground for refusal in an arrangement between Hong Kong and
mainland China would have not posed problems in practice, for extraditions from mainland China
to Hong Kong, considering that Chinese limitation periods are there very long in general
60
and, in
murder cases, the Supreme People’s Prosecutor’s Office can extend the period such that it is
effectively unlimited.
61
A ground for refusal under the FOO which could, conversely, have posed particular problems
when dealing with mainland China is the death penalty based one. Where an offence is punishable
in the requesting state by capital punishment, Hong Kong would only surrender subject to reassur-
ances that the death penalty would not be imposed.
62
The death penalty was abolished in Hong
Kong in 1993 but remains available (and imposed in practice) in mainland China. While the EAW
FD contains no equivalent clause (all Member States having abolished capital punishment and
Death Penalty is prohibited under art 2(2) the Charter of Fundamental Rights and Protocol 13 to the
European Convention on Human Rights), similar clauses exist in in international treaties between
abolitionist and retentionist states, such as the extradition Treaty between the EU and the United
States.
63
Other aspects of the FOO which would be politically problematic were Hong Kong to establish
a special surrender arrangement with mainland China are (1) the political offence ground for
refusal and (2) the absence of a ground for non-surrender of Hong Kong residents. Further, (3)
two grounds for refusal (double criminality and penalty thresholds) were regulated in a different
and stricter way under the proposed FOO amendment than in the FOO. These three aspects are now
discussed in more detail.
59. This is a classic ground for refusal one finds, for instance, in art 3(e) UN Model Treaty on Extradition (n 17) but also in
see art 4(4) of the EAW FD (n 11). See by way of example arts 6(2) and 8(2)(c) of the agreement with Canada (n 30),
arts 5(2) and 8(2) of the agreement with the UK (n 30), arts 7(b) and 9(2)(c) of the agreement with Sri Lanka (n 30) and
arts 7 and 9(2)(c) of the agreement with Portugal (n 31), to name but a few. And, with specific respect to the FOO
amendment, the Hong Kong government has insisted that it will authorise surrender, only if the statute of limitation for
the offence for which surrender has been asked has not expired under the law of the requesting region, and it has put
special emphasis on the need to receive assurances in this respect. See Statement by Secretary of HK Security Bureau
(n 5). See also para 18 of, ‘Hong Kong Bar Association Complementary Opinion to the Fugitive Offenders and Mutual
Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019’ (6 June 2019)
default/files/%E9%A6%99%E6%B8%AF%E5%A4%A7%E5%BE%8B%E5%B8%AB%E5%85%AC%E6%9C%83
%E9%87%9D%E5%B0%8D%E3%80%8A2019%20%E5%B9%B4%E9%80%83%E7%8A%AF%E5%8F%8A%
E5%88%91%E4%BA%8B%E4%BA%8B%E5%AE%9C%E7%9B%B8%E4%BA%92%E6%B3%95%E5%BE%
8B%E5%8D%94%E5%8A%A9%E6%B3%95%E4%BE%8B%28%E4%BF%AE%E8%A8%82%29%E6%A2%9D
%E4%BE%8B%E8%8D%89%E6%A1%88%E3%80%8B%E7%9A%84%E8%A3%9C%E5%85%85%E6%84%
8F%E8%A6%8B%E6%9B%B8_0.pdf> accessed 20 October 2019 (hereafter HK Bar Association Opinion).
60. In general, the prosecution period can be 5 years, 10 years, 15 years and 20 years depending on the maximum
imprisonment time of the offence. Regarding this, see art 87 of Chinese Criminal Code,
wxzl/2000-12/17/content_4680.htm> accessed 25 February 2020.
61. Ibid.
62. See pt 2, s 13(5)b, of FOO (n 2). Also see the agreements Hong Kong has signed with other countries, which include
similar provisions, accessed 12 April 2020.
63. Art 13, Agreement on extradition between the European Union and the United States of America [2003] OJ L 181/27.
The UN Model Extradition Treaty includes this ground among the optional ones (art 4(d)) (n 17).
514 New Journal of European Criminal Law 11(4)
Political offence
The political character of an offence is a typical ground for refusal in extradition law. This
principle is regarded as the result of the 19th-century political revolutions in Europe
64
and has
been widely recognised in modern extradition relations,
65
with the exception of the EAW FD
which has innovatively eliminated it. Conversely, it still exists in the FOO,
66
and the proposed
FOO amendment would have left it intact.
As mentioned already, the ‘Hong Kong Basic Law’ requires Hong Kong to protect the national
security of the PRC, and it in particular obliges Hong Kong to enact domestic legislation crim-
inalising a number of offences that can reasonably be characterised as ‘political offences’.
67
These
include treason; secession; sedition; subversion of the Central Government of the PRC; theft of
state secrets; political activities by foreign political organisations or bodies based in Hong Kong
which interfere with internal affairs of the PRC and which interfere with the ‘One country, Two
Systems’ principle; and the establishment by political organisations or bodies in Hong Kong of ties
with foreign political organisations or bodies.
68
As also noted above, however, the Hong Kong Legislative Council has not adopted the required
legislation in light of its sensitivity and fundamental rights concerns. In any case, these offences
were not included in the list of 37 offences for which surrender is permissible.
69
Against this
background, the political offence ground for refusal was not likely to be of great relevance for
surrender between mainland China and Hong Kong. This should of course be distinguished from
the situation of prosecution for offences which are not formally political, for instance corruption
offences, but where the prosecution, and consequentially the request for extradition, is in fact made
for the purpose of prosecuting or punishing the defendant on account of their political opinions.
The FOO also includes an ad hoc ground for refusal
70
in such cases, which conversely would have
been highly relevant.
The Central People’s Government has, however, now adopted the ‘Hong Kong National
Security Law’ which provides definitions of and penalties for secession, subversion, terrorist
activities and collusion with a foreign country or external elements to endanger national secu-
rity.
71
According to this law, the Hong Kong SAR shall have jurisdiction over cases concerning
the above four offences,
72
but in specific situations, the Central level can exercise jurisdiction
such that the relevant cases are investigated, prosecuted and tried by mainland China judicial
64. See CL Cantrell, ‘The Political Offences Exemption in International Extradition: A Comparison of the United States,
Great Britain and the Republic of Ireland’ (1977) 60(3) Marquette L Rev 777.
65. This principle can be found in art 3 of UN model extradition Treaty (n 17), art 3 of 1957 Council of Europe extradition
Convention 1957 accessed 22 July 2020, also in multilateral or bilateral extradition
treaties, like the art 4 of United Kingdom–United States extradition treaty 2003
tdoc23/CDOC-108tdoc23.pdf> accessed 22 July 2020, and in the domestic extradition law, for instance, art 8 of
Chinese Domestic Law on Extradition,
accessed 18 April 2020.
66. See pt 1, s 4, para (5) of the FOO (n 2).
67. See art 23 of ‘Hong Kong Basic Law’ (n 19).
68. The list of offences is included in art 23 of the Basic Law (n 20), on this see Young, ‘Guide to Basic Law Article 23’
(n 39).
69. See the next paragraph on this point.
70. Art 5(1)c FOO (n 2).
71. See ch III of Hong Kong National Security Law (n 37).
72. See art 40 of Hong Kong National Security Law (n 37).
Yin and Wieczorek 515
organs.
73
These changes mean that were the Hong Kong government to bring forward fresh
proposals to amend the FOO to allow for special surrender arrangements to be concluded with
mainland China, maintaining and applying the political offence ground for refusal could actually
represent a challenge. The problematic scenario could be that of a mainland Chinese committing
these offences while in mainland China and then fleeingtoHongKong.WeremainlandChinato
ask for the surrender of this person to Hong Kong authorities, refusing surrender on the political
offences ground, would be politically controversial and potentially in breach of Hong Kong
obligation to protect national security. And if, to uphold the obligation to protect national
security, Hong Kong authorities were to decide to prosecute the requested person domestically,
practical complications could arise if for instance evidence, including eyewitnesses, is in main-
land China.
Admittedly, the relation between extradition and political offences is typically a sensitive topic.
Even in the context of the EU, which is an example of a particularly integrated legal and political
system where this ground for refusal has been eliminated, the question of the use of EAWs for
prosecuting political offences has arisen. After the failure of the independence referendum in
Catalonia in 2017, the former Catalan President, Carles Puigdemont went into self-exile first in
Belgium and then in Germany.
74
The Spanish Supreme Court issued an EAW to ask for his
surrender so he could be prosecuted for misuse of public funds and rebellion (this charge was
later changed to sedition).
75
This was clearly a very sensitive case, which could create tension
between Spain and Germany. Sedition was potentially a political offence, however, the ground of
refusal on these bases has been eliminated in the EAW. The German judiciary nonetheless still
refused the surrender on the technical ground that the offence of ‘rebellion’ did not exist as such
under German law and was not among the offences for which double criminality had been
eliminated.
76
This raises the question of whether Hong Kong Courts could rely on similar legal reasoning if,
as posited above, the ‘political offences’ ground for refusal were not to be included in a future FOO
amendment in respect of mainland China. In fact, however, the HK National Security Law makes
this difficult. To rely on the German judiciary’s legal reasoning of refusing extradition for want of
double criminality, it would first be necessary for Hong Kong law to provide its own definitions of
these political offences, following which it could refuse extradition where the alleged conduct fell
73. See arts 55, 56 of Hong Kong National Security Law (n 37).
74. ‘Case 15-Carles Puigdemont, President of Catalonia in Exile’ Wereport (January 2019),
puigdemont-president-of-catalonia-in-exile/> accessed 20 July 2020. accessed 22 July 2020; C Abellan Matamoros, ‘Finnish Police
accessed 20 October 2019.
01/CASE-15-Carles-Puigdemont.pdf> accessed 15 April 2020.
75. Catalonia independence protests, ‘Catalonia crisis: Spain issues warrant for Puigdemont’ BBC (3 November 2017)
Receive Arrest Warrant for Puigdemont, But They Don’t Know Where He Is’ Euronews (24 March 2018)
www.euronews.com/2018/03/24/finnish-police-receive-arrest-warrant-for-puigdemont-but-whereabout-unknown>
accessed 20 July 2020; D Torres and J Randerson, ‘Spain’s Supreme Court Issues New Carles Puigdemont Arrest
Warrant’ POLITICO (14 October 2019)
puigdemont-arrest-warrant/> accessed 15 April 2020.
76. See Press Department of the Oberlandesgericht for the State of Schleswig-Holstein, ‘Matter Carles Puigdemont: The
Extradition for the Accusation of Embezzlement of Public Funds Is Admissible; An Extradition for the Accusation of
Rebellion Is Inadmissible. Carles Puigdemont Remains Free’ (12 July 2018)
Justiz/OLG/Presse/PI/201806Puigdemontenglisch.html> accessed 18 April 2020. On the case, see Y Yin, ‘The
application of European Arrest Warrant on the Case of Puigdemont’ (2020) 2 Natl Judges Coll J 118.
516 New Journal of European Criminal Law 11(4)
outside of those definitions. Now, in May 2020, the Hong Kong Secretary for Security declared
that ‘the HK National Security Law neither replaces nor excludes the relevant provisions of Basic
Law’. Given this, Hong Kong is not only free to provide its own definition of political offences, but
it actually remains obliged to do so under art 23 of the Basic Law.
77
The Hong Kong Legislative
Council could therefore enact such a law, defining the relevant crimes in a narrow sense, and
thereby provide a technical solution that would allow the refusal of extradition on these grounds
without overtly raising the question of political offences. However, this solution would be fru-
strated by art 62 of the Hong Kong Security Law, which provides that that Law prevails over any
inconsistent domestic law of the Hong Kong SAR. Any narrower definition of these offences’
definition enacted under art 23 of the Basic Law would thus be overridden by the Hong Kong
Security Law.
Surrender of Hong Kong residents
The fact that the requested person is a national of the requested state is another traditional ground
for refusal in extradition law.
78
One justification for this is the idea that the fugitive ought not be
withdrawn from their natural judges, those of their own state. This is linked to the understanding
that the state owes its subjects the protection of its laws and to a lack of trust in the criminal justice
system of a foreign state, especially with regard to the trial of a foreigner in a foreign language.
79
Certain countries have, however, softened this rule.
80
And this ground was also significantly
attenuated in the EAW FD. EU Member States cannot refuse to surrender their nationals. None-
theless, when the surrender is for prosecution and the requested person is a national or resident of
the executing Members State, surrender may be subject to the condition that the person, after being
heard, is returned to the executing Member State to serve the custodial sentence or detention order;
similarly, when requested for the execution of a custodial sentence or detention order, surrender
can be refused if the person is a national or resident or is staying in the requested state, and the said
state undertakes to execute the sentence or detention order in accordance with its domestic law.
81
The FOO includes the fact that the requested person is a PRC national as a ground for refusal,
82
and Hong Kong has routinely included this ground for refusal in extradition treaties with third
states.
83
Given that at least a portion of Hong Kong residents are Chinese nationals,
84
the question,
when dealing with surrender between Hong Kong and the mainland, is not primarily that of non-
77. See Government of Hong Kong (Gov HK), ‘LCQ6: Legislation on Article 23 of Basic Law’ Press Release
www.info.gov.hk/gia/general/202005/27/P2020052700520.htm> accessed 23 July 2020.
78. See art 4(a) of the UN Model Treaty (n 17), which lists this ground as an optional ground for refusal. See Z Deen-
Racsm´any, ‘Modernizing the Nationality Exception: Is the Non-Extradition of Residents a Better Rule?’(2006) 75
Nord J Intl L 29.
79. See SA Williams, ‘Nationality, Double Jeopardy, Prescription and the Death Sentence as Bases for Refusing Extra-
dition’ (1991) 62 Intl Rev Penal L 260.
80. An example is the extradition Treaty between United States and Japan, art 6, Japan International Extradition Treaty
with the United States, signed 3 March 1978, 31 UST 892; TIAS 9625; 1203 UNTS 225. See also concerning the
relation between Brazil and Portugal (n 10).
81. See art 5(3) EAW FD (n 11).
82. See art 13(4) FOO (n 2).
83. See by way of example, art 3 of the Agreement with Australia (n 31), art 3 of the Agreement with Finland (n 31) and art
3 of the Agreement with South Africa (n 31).
84. See art 24 of ‘Hong Kong Basic Law’ (n 19), on who qualifies as a Hong Kong permanent or non-permanent resident.
Yin and Wieczorek 517
extradition of nationals. However, Hong Kong residents, both of Chinese and of foreign
nationality, enjoy a special status; for instance, the Hong Kong authorities can issue them
with an internationally valid Hong Kong passport. Between mainland China and Hong Kong,
the question would thus more be that of non-surrender of Hong Kong residents.Thisspecial
status was not recognised in the proposed FOO amendment, which in particular did not
include the fact that the requested person was a Hong Kong resident to be a ground for
refusal for extradition to other regions of the PRC. This was a logical choice considering that
the background of the proposal was a crime committed by a Hong Kong resident whose
surrender was sought by Taiwan for a murder trial. Because Hong Kong legislation did allow
for extraterritorial jurisdiction in this case, the defendant could not have been prosecuted in
Hong Kong for these facts committed abroad; the only solution was extradition, which
therefore intuitively could not exclude Hong Kong residents. However, the lack of such a
ground for refusal has been one of the key issues which sparked concern among Hong Kong
residents
85
given widespread lack of confidence in the respect for fundamental rights by the
criminal justice and prison system in mainland China.
86
Interestingly, even the Deputy Min-
ister of Taiwan’s Mainland Affairs Council declared that Taiwan did not support the proposed
FOO Amendment Bill, which would have allowed the surrender of Taiwanese citizens resid-
inginHongKongtomainlandChina.
87
The Deputy Minister further declared that Taiwan
would not have requested the extradition of the Hong Kong citizen convicted of the murder,
had the Amendment been approved.
Should the political situation in the future allow a special surrender arrangement between the
two regions to be considered afresh, then the EAW FD could potentially provide inspiration for a
middle ground. Hong Kong could permit the surrender of its residents to mainland China for
prosecution trial but require them to be transferred back to Hong Kong to serve any sentence.
This would respect the legal system of the requesting region while also permitting the social
reintegration of the requested person, who could serve their sentence closer to any family in Hong
Kong; it would further ensure Hong Kong control over the respect of fundamental rights standards
during the sentence. Admittedly, however, it would not address the, very serious, concerns Hong
Kong protesters have expressed as to the respect of fundamental rights during the trial phase in
mainland China.
The double criminality principle and penalty thresholds
The principle of double (or dual) criminality requires that the crime for which extradition is sought
must be punishable in both the requested and requesting states, and it is again a deeply ingrained
principle of extradition law.
88
The EAW FD is a partial exception to this rule, to the extent that the
double criminality principle has been abolished for a list of 32 offences, provided that the relevant
offence is punishable with a maximum period of at least 3 years in the requesting state.
89
However,
85. Hong Kong anti-government protests, ‘Hong Kong protesters demonstrate against extradition bill’ BBC (9 June 2019)
86. J Chan, ‘Ten Days That Shocked the World: The Rendition Proposal in Hong Kong’ (2019) 49(2) Hong Kong L J 431.
87. Hong Kong Free Press (n 1).
88. See G Griffith and Claire Harris, ‘Recent Developments in the Law of Extradition’ (2005) 6 Melb J Intl L 33.
89. See art 2 of EAW FD (n 11).
518 New Journal of European Criminal Law 11(4)
for the offences not included in this list, the requested Member States are allowed to check whether
the act would constitute a crime if it occurred in the requested State.
90
Similarly, to most general extradition treaties, the proposed FOO Amendment Bill would
have included a strict double criminality checkforextraditiontomainlandChina.In
fact, the check is even stricter than that required by the FOO for extradition to third
countries.
In more detail, the FOO requires that the relevant offence is punishable under both the request-
ing and requested parties’ law by at least 12 months’ imprisonment.
91
Moreover, it added a further
restriction: extraditable offences were only those included in a list of 46 offences.
92
The 12 months
penalty threshold can also be found in the advanced EAW FD system, although this requirement
only applies to the requesting state’s law.
93
Conversely, neither the UN Model Extradition Treaty
nor the EAW FD includes an exhaustive list of extraditable offences.
94
This makes Hong Kong
domestic law, which set the conditions for the international extradition Treaties Hong Kong can
conclude, already particularly restrictive.
The FOO Amendment Bill went even further. It would provide that surrender between Hong
Kong and other regions of the PRC may only be authorised if the relevant offences fall within a still
narrower list of 37 offences.
95
Moreover, the FOO Amendment Bill initially limited the surrender
to offences punishable with at least 3 years’ imprisonment in both Hong Kong and the requesting
region,
96
a threshold that was raised to 7 years
97
following protests against the lowness of the
earlier threshold.
98
This is a particularly high threshold, which is hardly found in extradition
treaties.
90. See Case C-289/15, Krajsky sud v presove [2017] ECR I-4. Also see Case C-463/15, Openbaar Ministerie v A [2015]
ECR I-634.
91. See pt 1, s 2(a) of the FOO (n 2).
92. The 46 categories of crime include violent crimes, such as sexual crimes, drug crimes, economic crimes, crimes against
public order and public safety. Regarding this, see the sch 1 to the FOO (n 2).
93. See art 2(1) EAW FD (n 11). Note that the UN Extradition Model Treaty does not set any particular threshold, it just
includes a provision for identifying the penalty threshold the parties to the Treaty deem appropriate, art 2(1) UN Model
Extradition Treaty (n 17). See Case C-463/15, Openbaar Ministerie v A [2015] ECR I-63.
94. See art 2 UN Model Extradition Treaty (n 17).
95. The nine categories of crime excluded from the surrender scope are offences against bankruptcy law or insolvency
law, offences against the law relating to companies including offences committed by officers, directors and pro-
moters, offences relating to securities and futures trading, offences against the law on protection of intellectual
property, copyrights, patents or trademarks, offences against the law relating to environmental pollution or pro-
tection of public health, offences against the lawrelating to the control of exportation or importation of goods of any
type, or the international transfer of funds, offences involving the unlawful use of computers, offences relating to
fiscal matters, taxes or duties, and offences against the law on false or misleading trade descriptions. Regarding this,
See M Hui, ‘These are all the crimes Hong Kong is considering extraditing people for under a new law’ QUARTZ (7
June 2019) d-in-hong-kongs-proposed-extradition-law/> accessed
25 February 2020.
96. See art 10 pt 3 of the first draft of the Amendment of Fugitive Offenders Ordinance and the Ordinance on Judicial
Cooperation in Criminal Matters accessed 26
February 2020.
97. See Hong Kong Bar Association (n 59).
98. See Government of Hong Kong (GovHK) ‘LCQ2: Human Rights Safeguards Under Fugitive Offenders and Mutual
Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019’ (5 June 2019) Press Release
info.gov.hk/gia/general/201906/05/P2019060500760.htm> accessed 20 October 2019.
Yin and Wieczorek 519
The text of the 2019 ‘Foo amendment bill’ proposal: the procedural
safeguards
Role for judicial authorities within the procedure
Under the FOO Amendment Bill, both administrative authorities and judicial authorities, namely
courts, are involved in the procedure. In particular, the surrender procedure would be triggered by a
certificate issued by the Chief Executive. After the certificate is issued, the ‘Court of committal’,
one of the Magistrates’ court in Hong Kong, would hear the case. After the Court’s decision, the
Chief Executive would take the final decision regarding surrender.
99
This means that the role of
the court would be limited to a prima facie legality check. Once the Court authorise surrenders, the
executive has then full discretion on whether to authorise surrender or not.
100
Most importantly, the
Chief Executive would be the body scrutinising the protection of human rights in the requesting
region and assessing whether this lives up to the standards of the ICCPR and Hong Kong Bill of
Rights Ordinance.
101
Having the executive play an important decision-making role in extradition proceedings
between sovereign states is not uncommon,
102
since extradition involves both legal and political
considerations. Still, entrusting the Chief Executive with the task of verifying human rights
protection has raised concerns. It is considered less likely to be independent from the authorities
in mainland China than courts would be.
103
By comparison, the EAW has – despite regulating extradition between sovereign states –
eliminated any role for the executive in the extradition procedure between EU Member States,
introducing a purely judicial procedure
104
The executive role is limited to practical and adminis-
trative assistance.
105
The comparison is particularly striking if one considers that the European
Court of Justice recently ruled that German prosecutors cannot issue EAWs because they are not
independent from the executive, in particular the Ministry of Justice.
106
Moreover, under the EAW
FD, any lower or higher court can issue a European Arrest Warrant.
107
In contrast, the FOO
99. See pt 2, cl 4 of FOO Amendment (n 2), also see pt 2, s 13 of the FOO (n 2).
100. See ss 10,11,12 and 13 of FOO (n 2); also see cl 4 of FOO Amendment and para 2 of Explanatory Memorandum to
FOO Amendment (n 6).
101. See, ‘Joint observations on the human rights implications of the Fugitive Offenders and Mutual Legal Assistance in
Criminal Matters Legislation (Amendment) Bill 2019’ 7observers (14 June 2019)
uk/wp-content/uploads/2019/06/FINAL-Joint-observations-on-the- human-rights-implications-of-the-Fugitive-Offen
ders-and-Mutual-Legal-Assistance-in-Criminal-Matters-Legislation-3.pdf> accessed 20 October 2019. Also see
AHY Chen, ‘A Perfect Storm: Hong Kong-China Rendition of Fugitive Offenders’ (2019) 149(2) Hong Kong L J 421.
102. See by way of comparison the Japanese Act of Extradition, Act No. 68 of 21 July 1953, which envisages a role both
for the Ministry of Foreign Affairs (art 2) and for the Ministry of Justice (art 14(1)); the UK Extradition Act (2003)
which entrusts the Home Secretary as a key decision-maker (arts 92 and 93); or the Belgian Belgian Loi sur les
extraditions du 15 mars 1874 (modifi´ee par la loi du 31 juillet 1985) which entrusts the procedure to the ‘Government’
in Belgium (art 3)
103. S Pepper, ‘The Trust Deficit: Why Hongkongers Simply Don’t Believe Gov’t Reassurances Over Its China Extra-
dition Law’ Hong Kong Free Press (4 April 2019)
gkongers-simply-dont-believe-govt-reassurances-china-extradition-law/> accessed 20 October 2019.
104. Under the EAW mechanism, both the issuing authority and the executing authority are judicial authorities. See para 5
of the preamble and art 6 of the EAW FD (n 11).
105. See points 8 and 9 in the preamble of the EAW FD (n 11).
106. See Cases C-508/18 and C-82/19, OG and PI [2019] ECR I-337.
107. See art 6 of the EAW FD (n 11).
520 New Journal of European Criminal Law 11(4)
Amendment would exclude the involveme nt of lower ranking judicial authorities (courts and
public prosecutors’ offices) in the other administrative regions. On 30 May 2019, the Bureau of
Security in Hong Kong proposed one additional amendment to the FOO Amendment, stating that
for the purposes of obtaining surrender from Hong Kong, the extradition requests from mainland
China can only be issued by the Supreme People’s Court or the Supreme People’s Public Prose-
cutor’s Office.
108
Granting wider power to courts in Hong Kong in the context of surrender might help reducing
public concerns regarding the protection of human rights in the surrender procedure. Since this is a
special arrangement, a different appr oach from the FOO (which only involves administrative
authorities) is arguably justifiable.
In addition to the limited role for courts in the procedure, it should also be noted that there is no
impartial court which can act as an arbitrator in the case of a dispute between Hong Kong and the
Mainland as to extradition.
109
While the two regions being part of the same sovereign country, this
feature more closely resembles the relations between two sovereign countries. By contrast, under
the EAW FD, the Court of Justice of the European Union is available as an additional judicial body
overseeing the system. Drawing together the above strands, under the EAW mechanism, the
requested person benefits from three levels of rights protection. The first level is at the national
level, where the requested persons have the right to be heard by national courts before the
surrender.
110
They can also appeal to a higher court where the executing Member State law
provides for this.
111
A second level of protection will come from the EU level, mainly from the
European Court of Justice by means of preliminary reference rulings. The third level comes from
the Strasbourg Court enforcing the European Convention on Human Rights.
The first level of protection also exists in Hong Kong: The court of committal will hear the case,
and after the decision, the requeste d person can appeal to the Court of Appeal court.
112
The
requested person can also apply for habeas corpus.
113
However, no equivalent to the second or
third level of protection exists. One could propose a higher judicial body with common jurisdiction
over Hong Kong and the mainland given that they form ‘one country’. Yet, one could question
whether establishing such institution would not be problematic from the ‘two systems’ principle
perspective, according to which Hong Kong has a separate legal system from mainland China,
whose courts need to remain independent. In other words, introducing a higher judicial body could
threaten the judicial independence of Hong Kong, actually defying the original purpose of pro-
viding additional judicial protection to accused. The likelihood of threatening Hong Kong court’s
independence would of course depend on the exact powers granted to such overarching judicial
body and how judicial cooperation between the various courts is designed.
108. See Human Rights safeguards in Hong Kong Bill of Rights (n 45).
109. More in detail, ‘there is no formal dispute settlement mechanism which exists independently of the ordinary operation
of the PRC Constitution, and [ ...] under the PRC Constitution, no national court is granted the independent power of
applying and enforcing the Constitution or supervising the implementation of the HK and Macao Basic Laws, or
resolving the legal conflicts between the SARs’ autonomy and certain elements of the PRC legal system. Conse-
quently, in contrast to other compound legal systems, the PRC has no supreme judicial organ to coordinate and to
resolve conflict of laws issues among the independent courts of the SARs and the people’s courts in the Mainland’.
Liang (n 4) 228.
110. See art 14 of EAW FD (n 11).
112. See pt 2, s 11 of FOO (n 2).
113. See pt 2, arts 12, 13 of FOO (n 2).
Yin and Wieczorek 521
Assurances in the surrender procedure
The FOO Amendment did not introduce binding rules as to whether specific assurances can be
required of the requesting regions before authorising surrender. The possibility to seek and receive
assurances concerning, inter alia, respect for the presumption of innocence, open justice, visiting
rights, the right against self-incrimination and the right to appeal would have been only regulated
by policy documents or practice, which are, however, not legally binding. It would moreover
remain in the discretion of the requesting part whether or not to grant the assurance.
114
Further, the body entrusted with requesting such assurances would have been the Chief Exec-
utive
115
which, as mentioned, might not be in a suffic iently strong and independent political
position credibly to request these safeguards from the mainland China authorities.
116
Conclusion
This article has provided a brief analysis of the amendment to the FOO – Hong Kong domestic
extradition law – the Hong Kong government proposed in 2019, so to allow surrender of fugitives
to the rest of the PRC, and notably mainland China. It has described the unique constitutional
setting in which this arrangement was proposed, namely Hong Kong and mainland China which
are two regions of the same sovereign country, but where two different legal systems apply, in
observance to the ‘One Country, Two Systems’ policy. The article has shown that the proposed
special surrender arrangemen t envisaged a surrender system which for certain aspec ts is less
advanced, and it presents more obstacles to surrender than standard international extradition
Treaties, and of the system in force regulating extradition between Hong Kong and third countries.
This is the case for the rules on penalty threshold and on double criminality. On other aspects, the
special arrangement appears even more advanced that the European Arrest Warrant, one of the
most advanced systems of international surrender. This is the case for what concerns the extradi-
tion of Hong Kong residents, which admittedly are for a large part citizens of PRC, but which enjoy
a special status, entailing, among others, the possibility of being issued Hong Kong passports.
The protests that followed the proposal of the FOO Amendment Bill have led the Hong Kong
authorities to withdraw the draft text. Moreover, the current tense situation which followed the
adoption by the Standing Committee of the National People’s Congress of Hong Kong Security
Law make a new discussion of special arrangement for surrender between Hong Kong and main-
land China unlikely in the near future, and actually, also puts the effective implementation of Hong
Kong extradition Treaties with third countries at risk. Yet, the problem of a legal gap on this issue
remains, as criminal cases involving mainland China and Hong Kong are not infrequent, as the
case of last September of 12 Hong Kong Citizens detained in mainland China accused of illegally
crossing the border.
117
In any case, should the political situation evolve, and a new draft be proposed, the text here
analysed might constitute a blueprint on the basis of which future text will be based. The issues,
114. See para 11 of HK Bar Association Opinion (n 59).
115. See para 2 of HK Bar Association Opinion (n 59).
116. See para 12 of HK Bar Association Opinion (n 59).
117. ‘12 Hong Kong fugitives caught at sea while fleeing to Taiwan officially accused by mainland Chinese authorities of
illegal border crossing, organising act’ South China Morning Post (30 September 2020).
news/hong-kong/politics/article/3103636/families-12-detained-hong-kong-fugitives-demand-access> accessed 10
October 2020.
522 New Journal of European Criminal Law 11(4)
highlighted above, chiefly the question of distrust towards the criminal justice system in mainland
China, nonetheless remain. In this context, one avenue to smoothen the surrender proceedings
between Hong Kong and mainland China, this article has suggested, would be the procedural one,
namely envisaging a broader role for courts in the procedure, which, at least in principle, should be
independent from the executive power in Hong Kong and therefore from executive power in
mainland China, as opposed to the wide role granted in the proposed amendment of the FOO the
Chief Executive in Hong Kong which is ultimately accountable to the Central People’s
Government.
Acknowledgements
The authors would like to thank Anne Weyembergh, Miguel Manero de Lemos, Jieying Liang and Niall
Coghlan for their helpful comments on earlier drafts of this article. The mistakes remain only ours. Yin
Yanhong would also like to thank Professor Simon Young, Professor Vagelis Papakonstantinou and Professor
Eleftheria Neframi for overall guidance on her research.
Declaration of conflicting interests
The author(s) declared no potential co nflicts of interest with respect to the research, authorship, and/or
publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.
ORCID iD
Irene Wieczorek https://orcid.org/0000-0003-4455-6580
Yin and Wieczorek 523
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