Again, although the same ordinance criminalizes an act that occurs elsewhere and which results in a death, that death must have occurred in Hong Kong. Although, in all these situations, the common law principle against extraterritoriality is modified, this is only to a carefully limited extent, and it is only permissible in order to catch criminal conduct which might otherwise not be prosecutable at all. Even then, however, the offense must either involve an act relating to it having occurred in Hong Kong, or else a consequence of it having occurred in Hong Kong. In other words, there is no unilateral assumption of jurisdiction over another place's crimes, and there must be a nexus between the criminality in question and Hong Kong, either before the offense occurs or after.
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The critics, however, want to abandon the territoriality principle altogether, in disregard not only of the common law, but also of the comity of nations. Their suggestions, while music to the ears of criminals everywhere, would undermine Hong Kong's duty to help others to combat crime and hold criminals to account. This apart, if, contrary to established norms, Hong Kong were to assume jurisdiction over offenses which occurred elsewhere, it could only apply to future offenses.
All offenders currently wanted in the mainland, Macao, Taiwan, and elsewhere, would, therefore, escape prosecution altogether, no matter how grave their crimes. This is because the Hong Kong Bill of Rights echoing the International Covenant on Civil and Political Rights provides that criminal offenses or penalties shall not have retrospective effect. Since, therefore, it is not currently an offense in Hong Kong to commit an offense in, for example, Taiwan, a law which criminalized this would only apply to future cases, and anyone who had allegedly committed a crime in Taiwan previously would not be prosecutable, and thus able to evade justice.
The territoriality principle is, moreover, also based partly on very practical considerations. An offense which occurs elsewhere is invariably investigated in the place it occurs, with the evidence being assembled there. Many places would justifiably resent infringements by others on their sovereignty, and be reluctant to impart their evidence to outsiders, particularly if they have built up what they regard as a strong case. It obviously makes sense for a case, wherever possible, to be tried where it arose, and this is generally recognized by law enforcers the world over.
Although some people have suggested that the Taiwan homicide case should be dealt with on its own, this ignores the wider picture. That case has provided a catalyst, but the problem is huge and requires to be addressed holistically.
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Previous efforts to establish what the Basic Law Article 95 calls "juridical relations" with other parts of China did not bear fruit, and the current proposals seek to break the impasse. Hong Kong must take this opportunity to shed itself once and for all of its unfortunate reputation as a sanctuary city for convicted criminals and wanted fugitives, thereby reclaiming its self-respect.
Let me turn now to the safeguards in the proposals, and to how these might be extended. Since some people have expressed fears that people might be at risk for political reasons, the proposals make clear that there will be no surrender for offenses of a political character, and no surrender where the purpose of the request is to punish the wanted person on account of his political opinions or his race, religion, or nationality. It must also be remembered that there is a world of difference between having a surrender mechanism in place, and actually surrendering someone.
Thus, for example, although the United Kingdom has an extradition agreement with Russia, between and the UK refused 63 out of 67 requests which Russia made for the surrender of fugitives. Even when the requesting party is a close ally, it by no means follows that the request will succeed, as the United States, for example, has found out. After the UK negotiated its new extradition treaty with the US in , it then refused 14 American extradition requests between and On the "fair trial" guarantee issue, it has to be remembered that different places have different legal systems, some more advanced, others less so, and there are limits to how far they can go in sitting in judgment on each other.
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The fact that all legal systems are not in the exact same stage of development, or develop their justice arrangements in different ways, does not necessarily mean that other legal systems cannot be trusted, or are inferior, or that they will not provide fugitives with due process upon their return. With the mainland, although the legal system has developed along different lines, real attempts have been made in recent years to improve things, often after seeing how things are done in other common law jurisdictions, including Hong Kong.
For example, in accordance with the Hong Kong paradigm, the mainland as a result of amendments to the Criminal Procedural Law in now prohibits the use of confessions which have been obtained by coercion, even if true previously, the courts were only concerned with whether the confessions were true, but this has now changed, partly through pressure from the Supreme People's Court and reformers from the academic world, and coerced confessions must now be excluded. Again, after studying the practice of Hong Kong's ICAC, the mainland now also requires the police to video-record the confession taking process in the more serious cases, so that judges can see subsequently how the admissions upon which prosecutors seek to rely came into existence.
Also, after studying the jury system, the mainland adopted the People's Assessors Law in , which enables lay assessors who are similar to Hong Kong jurors to try criminal cases, together with the professional judges, and even to outvote the judges on factual questions, although not on legal ones. Again, there has recently been a shift away from the civil law practice of simply reading out witness statements at court, and witnesses are now required to appear physically in court to testify, as happens in Hong Kong.
On the mainland, moreover, I understand that suspects cannot be convicted of a crime on the basis simply of a confession as they can in Hong Kong , and there must also be some corroborating evidence. Although, until about 20 years ago, judges had little legal training, this has all changed, and anyone who wants to be a judge or a prosecutor or a lawyer must now pass the difficult National Unified Legal Professional Qualification, together with the separate judges' test, and this has raised judicial standards enormously.
UNDERSTANDING CRIMINAL JUSTICE IN HONG KONG
So you can see, although some people have done their best to blacken the name of criminal justice on the mainland, and to give the impression that things there are unchanged since the "cultural revolution" , this is untrue, and there have actually been some quite significant improvements in the way criminal cases are conducted, and this deserves recognition.
Of course, some people argue that, in addition to the current Section 5 safeguards, extra protections are also desirable. This is certainly possible, most likely on an ad hoc basis. For example, Secretary for Security John Lee Ka-chiu has already indicated that additional requirements can be imposed in particular cases, such as the right to legal representation, and to visits by lawyers and family members, and on Thursday he opened the door to having a fair trial clause.
Some of Hong Kong's existing 20 SFO agreements already contain extra provisions designed to ensure a fair trial for example, the SFO agreement with Australia indicates that the requested party can decline to surrender a fugitive if surrender might place the requested party "in breach of its obligations under international treaties", and this is mirrored in the agreement with Germany; the significance of this is that, under the Basic Law's Article 39, the International Covenant on Civil and Political Rights applies to Hong Kong, and it contains fair trial guarantees, and also a right of appeal.
Other discretionary grounds for refusing surrender include: extensive delay since the offense was committed; valid humanitarian grounds to refuse surrender eg, age, health or personal circumstances , and the triviality of the offense all these appear in the Australian agreement. Although the current offense seriousness threshold under the FOO is one year, the Security Bureau, to allay concerns, has already said it will, with case-by-case surrenders, raise this to three years, and this apparently will now be raised to seven years.
Although not ideal, this is nonetheless legitimate, and it underlines the fact that these proposals are only a stopgap measure, intended to provide a solution until such time as comprehensive agreements on surrender and mutual legal assistance have been reached with other jurisdictions.
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The possibility, moreover, of allowing Hong Kong criminals convicted elsewhere to serve their sentences in Hong Kong is also open for consideration as a separate matter. I have seen it suggested that the current mechanism regarding the role of the chief executive in the fugitive surrender process might be changed, but I see no basis for this.
There is an established mechanism in the FOO, and which currently applies with the 20 countries with which Hong Kong has extradition agreements. It is also similar to the procedure used in other common law jurisdictions. Once a request for surrender is received, the chief executive will usually issue the authority to proceed, unless it appears that an order for surrender could not lawfully, or would not in fact, be made.
- Hiding Out (The Davenport Agency Book 1);
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- Understanding Criminal Justice In Hong Kong.
- Caldom -- A Dragons Love (Caldom - Series 1).
- The Open University of Hong Kong: Hong Kong Criminal Justice System;
- Peter and The Fairies.
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