The Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 () was a proposed bill regarding extradition to amend the Fugitive Offenders Ordinance () in relation to special surrender arrangements and the Mutual Legal Assistance in Criminal Matters Ordinance () so that arrangements for mutual legal assistance can be made between Hong Kong and any place outside Hong Kong. The bill was proposed by the Hong Kong government in February 2019 to establish a mechanism for transfers of fugitives not only for Taiwan, but also for Mainland China and Macau, which are currently excluded in the existing laws.
The introduction of the bill caused widespread criticism domestically and abroad from the legal profession, journalist organisations, business groups, and foreign governments fearing the erosion of Hong Kong's legal system and its built-in safeguards, as well as damage to Hong Kong's business climate. Largely, this fear is attributed to China's newfound ability through this bill to arrest voices of political dissent in Hong Kong. There have been enormous city-wide protests against the bill in Hong Kong and other cities abroad. On 9 June, protesters estimated to number from hundreds of thousands to more than a million marched in the streets and called for Chief Executive Carrie Lam to step down. On 15 June, Lam announced she would 'suspend' the proposed bill. Ongoing protests called for a complete withdrawal of the bill and subsequently the implementation of universal suffrage, which is promised in the Basic Law. On 4 September, after 13 weeks of protests, Lam officially promised to withdraw the bill upon the resumption of the legislative session from its summer recess. On 23 October, Secretary for Security John Lee announced the government's formal withdrawal of the bill.
Background
In early 2018, 19-year-old Hong Kong resident Chan Tong-kai murdered his pregnant girlfriend Poon Hiu-wing in Taiwan, then returned to Hong Kong. Chan admitted to Hong Kong police that he killed Poon, but the police were unable to charge him for murder or extradite him to Taiwan because no agreement is in place. The two ordinances in Hong Kong, the Fugitive Offenders Ordinance and Mutual Legal Assistance in Criminal Matters Ordinance, were not applicable to the requests for surrender of fugitive offenders and mutual legal assistance between Hong Kong and Taiwan. The pro-Beijing flagship party Democratic Alliance for the Betterment and Progress of Hong Kong (DAB) chairwoman Starry Lee and legislator Holden Chow pushed for a change to the extradition law in 2019 using the murder case as rationale. In February 2019, the government proposed changes to fugitive laws, establishing a mechanism for case-by-case transfers of fugitives by the Hong Kong Chief Executive to any jurisdiction with which the city lacks a formal extradition treaty, which it claimed would close the "legal loophole". Chen Zhimin, Zhang Xiaoming, and Han Zheng of the PRC publicly supported the change and stated that 300 fugitives were living in Hong Kong. Beijing's involvement in the proposed bill caused great concerns in Hong Kong.
Provisions The key provisions of the bill, as originally tabled, are as follows: In the Fugitive Offenders Ordinance (FOO) (): To differentiate case-based surrender arrangements (to be defined as "special surrender arrangements" in the proposal) from general long-term surrender arrangements; To stipulate that special surrender arrangements will be applicable to Hong Kong and any place outside Hong Kong, and they will only be considered if there are no applicable long-term surrender arrangements; To specify that special surrender arrangements will cover 37 of the 46 items of offences based on their existing description in Schedule 1 of the FOO, and the offences are punishable with imprisonment for more than three years (later adjusted to seven years) and triable on indictment in Hong Kong. A total of nine items of offences will not be dealt with under the special surrender arrangements; To specify that the procedures in the FOO will apply in relation to special surrender arrangements (except that an alternative mechanism for activating the surrender procedures by a certificate issued by the Chief Executive is provided), which may be subject to further limitations on the circumstances in which the person may be surrendered as specified in the arrangements; To provide that a certificate issued by or under the authority of the Chief Executive is conclusive evidence of there being special surrender arrangements, such that the certificate will serve as a basis to activate the surrender procedures. Such activation does not mean that the fugitive will definitely be surrendered as the request must go through all statutory procedures, including the issuance of an authority to proceed by the Chief Executive, the committal hearing by the court and the eventual making of the surrender order by the Chief Executive. Other procedural safeguards, such as application for habeas corpus, application for discharge in case of delay, and judicial review of the Chief Executive's decision, as provided under the FOO will remain unchanged;
And in the Mutual Legal Assistance in Criminal Matters Ordinance (MLAO) (): To lift the geographical restriction on the scope of application of the Ordinance; and To provide that case-based co-operation premised on the undertaking of reciprocity will be superseded by the long-term MLA arrangements once the latter have been made and become effective.
Concerns Opposition expressed fears that the city would open itself up to the long arm of mainland Chinese law, putting people from Hong Kong at risk of falling victim to a different legal system. It therefore urged the government to establish an extradition arrangement with Taiwan only, and to sunset the arrangement immediately after the surrender of Chan Tong-kai.
Business community The business community also raised concerns over the mainland's court system. The Liberal Party and the Business and Professionals Alliance for Hong Kong (BPA), the two pro-business parties, suggested 15 economic crimes being exempted from the 46 offences covered by the extradition proposal. The American Chamber of Commerce in Hong Kong (AmCham) pointed out that the mainland's "criminal process is plagued by deep flaws, including lack of an independent judiciary, arbitrary detention, lack of fair public trial, lack of access to legal representation and poor prison conditions". The government responded to business chambers' concerns by exempting nine of the economic crimes originally targeted. Only offences punishable by at least three years in prison would trigger the transfer of a fugitive, up from the previously stated one year. Nonetheless, these amendments failed to assuage the business community's concerns. According to the CBC, "[What the] rich business people fear is that the extradition law would destroy the freedoms people and businesses in the territory have grown to expect". Due to the vast power that politicians and officials exert over the mainland legal system, "businesses that want contracts in China to be respected typically include a provision that allows for any disputes to be resolved under Hong Kong law", thereby making Hong Kong a safe and stable haven for multinational corporations. The proposed extradition law would jeopardise Hong Kong's status, with some companies already considering relocation to Singapore. However, the pro-business parties in the Legislative Council later agreed to support the government bill. The situation was similar to the 2017 Chief Executive Election, in which the business sectors were requested to support Carrie Lam under the pressure from the Beijing's Authority.
On 1 April, Hong Kong billionaire tycoon Joseph Lau, former chair of the Chinese Estates Holdings who was convicted of bribery and money laundering in a land deal in Macau in 2014, applied for a judicial review over the bill in court. Lau's lawyers asked the court to make a declaration that the surrender of Lau to Macau would contravene the Hong Kong Bill of Rights. Lau made an abrupt U-turn and dropped his legal challenge on 29 May, saying that he "loves his country and Hong Kong" and that he now supported the legislation.
Legal sector The Hong Kong Bar Association released a statement expressing its reservations over the bill, saying that the restriction against any surrender arrangements with mainland China was not a "loophole", but existed in light of the fundamentally different criminal justice system operating in the Mainland, and concerns over the Mainland's track record on the protection of fundamental rights. The association also questioned the accountability of the Chief Executive as the only arbiter of whether a special arrangement was to be concluded with a requesting jurisdiction without the scrutiny of the Legislative Council or without expanding the role of the courts in vetting extradition requests. Twelve current and former chairs of the Bar Association warned that the government's "oft-repeated assertion that the judges will be gatekeepers is misleading", as "the proposed new legislation does not give the Court power to review such matters and the Court would be in no such position to do so."
Three senior judges and twelve leading commercial and criminal lawyers called the bill "one of the starkest challenges to Hong Kong's legal system" in a Reuters report. They feared it would "put [the courts] on a collision course with Beijing", as the limited scope of extradition hearings would leave them little room to manoeuvre. They were concerned that if they tried to stop high-profile suspects from being sent across the border, they would be exposed to criticism and political pressure from Beijing. The judges and lawyers said that under Hong Kong's British-based common law system, extraditions are based on the presumption of a fair trial and humane punishment in the receiving country—a presumption they say China's Communist Party-controlled legal system has not earned.
On 5 June 2019, the Law Society of Hong Kong released an 11-page review of the proposed Cap. 503 (FOO) amendments. It questioned the lack of additional requirements on proof-of-evidence in favour of extradition and the non-admissibility of additional evidence against extradition. It argued that the HK government should not rush to propose the current legislation, and that a comprehensive review of the current extradition system and research on the cross-jurisdiction transfer of fugitives should be done prior to the proposal of such laws. The Law Society recommended a proposal to specifically cover the current Taiwan murder case to be made if the government wanted to transfer the suspect soon. In addition, some members of the Law Society question the necessity of such an amendment in the absence of any major problems with extradition to mainland China or Taiwan since Hong Kong's return to China in 1997.
On another perspective, Grenville Cross, Vice-chairman (Senate) of the International Association of Prosecutors, and previous Director of Public Prosecutions in Hong Kong, has opined that although it is important to respect the rights of suspects, the debate has downplayed the issue of responsibilities of Hong Kong to other jurisdictions in the global combat of crime.
Human rights groups