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 A comparison between the 2019 (withdrawn) amendment to Hong Kong extradition law and the European Arrest Warrant
| Author | Irene Wieczorek,Yanhong Yin |
| 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2019 (withdrawn)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 After multiple protests, the proposal was withdrawn.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
Article reuse guidelines:
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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) <https://staging.hongkongfp.com/2019/05/10/taiwan-wont-ask-murder-suspect-hong-kong-pas
ses-politically-motivated-extradition-law/> accessed 15 April 2020.
2. Fugitive Offenders Ordinance ch 503. <https://www.elegislation.gov.hk/hk/cap503> 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) <https://www.info.gov.hk/gia/general/201905/30/P2019053000811.
Yin and Wieczorek 505
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