The Legal Crisis Behind the Hong Kong Protests

On February 8, 2018, a nineteen-year-old Hong Kong Chinese man, Chan Tong-kai, took his girlfriend, Poon Hui-wing (who was twenty years old) to Taipei for a Valentine’s holiday. Whilst there, in their hotel room, Hui-wing told Tong-kai that her pregnancy was courtesy of another man. Then, in a characteristic contemporary use of her electronic device, she showed him a video of herself having sex with another man. It is not clear from reports whether this man was the father of the child or someone else. This sort of impromptu provocation would have been much more difficult to organise twenty years ago.

Tong-kai’s reaction was to smash Hui-wing’s head against a wall, grab her from behind and strangle her. After shoving her to the ground he succeeded after ten minutes in causing her to expire. He then placed her body in a bag, took the local MTR five stops out of town and threw the bag onto some waste ground near the station. He stole her HSBC credit card, a Casio digital camera, her iPhone 6 and $20,000 each of Hong Kong and Taiwan currency. He then returned to Hong Kong, where he used the credit card at Eastern Court shopping centre.

This essay appears in September’s Quadrant.
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On March 13, 2018, Hui-wing’s body was discovered. On the same day the Hong Kong police visited her flat in Hong Kong and found Tong-kai’s entrance and departure permit for Taipei. He was arrested that day and has been in custody ever since. The Taiwanese authorities, and Hui-wing’s family, asked the Chief Executive of Hong Kong’s Special Administrative Region (SAR), Carrie Lam, to extradite Tong-kai to Taiwan to be tried for murder.

Hong Kong has extradition treaties with forty-three countries but not with Taiwan. When it comes to China and Taiwan (and indeed Macau, the licensed joker of mainland Chinese communism) the Hong Kong government has found itself on the horns of a dragon, for, being a common-law system regime with an independent judiciary and a guaranteed right to uphold that system under its Basic Law, it has not been able to recognise Chinese mainland courts as independent and reliable dispensers of fair and equal justice to those appearing before them. On the other hand, now being a special administrative region within China, Hong Kong’s official policy is not to recognise Taiwan as an independent nation-state with whom one can have extradition treaties.

Carrie Lam has attempted to meet the demands of Taiwan and Hui-wing’s family by introducing into the Legislative Council an amendment to the Fugitive Offenders Ordinance. The current position under that law is that if an extradition request is received by Hong Kong but not from one of the forty-three countries with which it has a treaty, the SAR administration has to ask itself if the request has come from the Central People’s government or a government of any other part of the People’s Republic of China (which is taken to include Taiwan). If the answer is yes, there is no extradition. If the answer is no and the crime alleged is one on a list with a possible sentence of more than one year, the extradition process can be put in place by the Legislative Council agreeing to it and passing specific legislation. This has never happened in the last twenty-one years.

Lam’s amendment has the effect of removing the need to ask the first question at all, and, if the crime is one on a new list of thirty-seven crimes carrying a possible sentence of seven years or more (whether in Hong Kong or the place of offence), the amendments will reserve to herself as Chief Executive a discretion to determine if the allegations and request are politically motivated or mala fides, but otherwise to certify the extradition request to go before a magistrate to issue an arrest warrant. This process places the request in the usual queue of requests from treaty countries. While a magistrate must still be persuaded there is a prima facie case for the offence, the amended procedure in effect treats mainland China as a treaty country, the supposed safeguards of discretionary review by the Chief Executive (which Lam has trumpeted) in fact already being part of the extradition procedure with treaty countries.

One might suppose it would be reasonably clear, if a request for extradition was received from the PRC, that what was being alleged was in fact an offence under the local law. But, as Tommy Cheung, a Hong Kong student leader, told local BTV’s Straight Talk program recently, it is not above the Chinese to invent or make new laws specifically targeted at catching suspected dissidents in Hong Kong while they are on the mainland, or for discovering past criminal activity while they were on the mainland, such is the opacity and disingenuousness of the mainland legal system and legislative process.

Why would anyone doubt such concerns about a regime that already perpetrates “black” extraditions by kidnapping Chinese citizens? The most famous such case was that of Lam Wing-kei and four other employees of the Causeway Bay Bookstore who were kidnapped in 2015 from different countries (Thailand, mainland China and Hong Kong itself) and held in custody in China until released in 2016 on “bail” to collect their customer information for the PRC about people in Hong Kong who had bought literature critical of the PRC leadership. Even more fragile is the potential position of mainland Chinese who have successfully emigrated to Hong Kong because of opposition to the mainland regime. Emigration will no longer protect them from their previous life on the mainland.

The current controversy about the Fugitive Offenders Ordinance led to the bookseller Lam Wing-kei leaving for Taiwan in April this year because he did not believe the Hong Kong government would protect him. On the day he left a source close to the representative office of Beijing in Hong Kong, the Hong Kong Liaison Office, told the Epoch Times that the mainland regime had ordered Carrie Lam to institute the amendment bill for broad political purposes, including threatening mainland Chinese who have sought refuge in Hong Kong and to frighten pro-democracy activist groups into moderating their demands.

The regime and its mouthpieces, such as the China Daily, are presenting the crisis as part of the greater trade struggle with the USA. Lam denies being instructed by the PRC government, though such instruction is legitimised by Article 48 of the Basic Law under which she is required to follow the directives of the PRC on “relevant matters”.

The first significant protest occurred on June 6, when 2500-odd members of the legal profession marched from the Court of Final Appeal building in Central to Admiralty where they stood still and stared silently at government headquarters for three minutes, without bowing their heads. On two Sundays in June one million and two million people respectively (out of a population of seven million) marched through Hong Kong Central to protest against the amendment bill. The mass of people, many sporting the distinctive yellow umbrellas of the Pro-Democracy Movement, and carrying personal electric fans, braved the thirty-two-degree heat and 80 per cent humidity to march tightly-packed down through the CBD of Hong Kong island from Victoria Park to the government offices in Tamar. On the first Sunday, the protest was peaceful, but after the permission to protest expired at midnight, police sought to physically remove groups of over-excited student protesters who refused to disperse from outside the parliament building. This led to some predictable television footage, since given prominence in the visual media, but its apparent violence belies the determinedly peaceful nature of the Hong Kong people. The protest on the second Sunday escalated to some extent, the police using tear gas and plastic bullets to move the crowds away from the government area. 

These two mass protests successfully forced Carrie Lam to withdraw the amendment bill from the Legislative Council, and later to suspend its progress. This has not satisfied the younger protesters. They have proved to have Robespierrean mettle in sticking to the precision of their demand that the bill disappear altogether, there be a public inquiry and that Lam resign. This determination led them to carry the protest into the Legislative Council chamber itself.

The younger protesters are the most worried, as they have the most to lose. The issue raised by the ordinance, the erosion of personal protections under the law, is fundamental to their future, because in 2047 the fifty-year arrangement for the distinct administration of the SAR is due to expire, and these people will then be in mid-life with careers and families structured on the basis of a free society under the rule of law. Even the students at Hui-wing’s alma mater, St Stephen’s College, and Lam’s alma mater, St Francis’ Canossian College, have issued statements calling on Lam to withdraw the amendment bill.

On April 12 Tong-kai pleaded guilty to various charges associated with his theft of property and money from Hui-wing. He was sentenced a week later to twenty-nine months imprisonment. He was reported to have admitted to the murder, but Hong Kong courts have no jurisdiction to try him for the Taiwan offence. At the time legal advisers to Lam started expressing concern that if the amended Fugitive Offenders Ordinance was not passed into law quickly, Tong-kai could be released as early as October (after credit for time already served) and escape from Hong Kong to avoid extradition to Taiwan. Since the second Sunday protest this concern has ceased to be aired.

Some journalists have suggested the simple solution is to enter into an extradition arrangement with Taiwan, but this would require Lam and her ministers to acknowledge Taiwan as an independent country, a subject on which they refuse to answer questions. Instead they made changes to the amendment bill to require that any extradition requests must come from the “central authority” in the requesting jurisdiction. But this proposal has upset even the PRC government, which does not believe there is a central authority in Taiwan capable of making a request because it is a province of China. In a moment of perversity, its main Hong Kong adviser, Mr Lau Sui-kai, warned there would be “a lot of troublesome political problems” if Hong Kong treated Taiwan as part of the PRC in this manner. Then Taiwan also objected to the proposal because it also perceived that it would be treated as if it were a part of China. Taiwan has now said that it will not ask for the extradition of Tong-kai.

Lam, who was appointed Chief Executive in 2017 by the Chinese Premier Li Keqiang after winning Hong Kong’s peculiarly undemocratic electoral process by an election committee of several hundred persons, has become increasingly unpopular. In 2017 her administration presided over the disqualification of Legislative Council members for the manner in which they had taken their oaths of office by making reference to the “Hong Kong nation” and disavowing mainland China. Ambiguity on the issue of exactly what the Basic Law required of these oaths was permitted to be determined by the National People’s Congress in China, an interpretation which effectively dictated the outcome of the court proceedings in Hong Kong which engulfed the offending members, resulting in their removal from office. Lam defended the decisions of the returning officer banning proposed replacements from standing because they had openly supported “self-determination” for Hong Kong, despite the fact that Article 45 of the Basic Law states that universal suffrage is an ultimate aim of the Law. She survived a no-confidence motion in the Legislative Council in May 2019 after she had repeatedly asserted that the exclusion of extradition to China in the 1997 handover arrangements was not deliberate, and that anyone who said so was engaging in “trash talk”.

These events have been cited by protesters as giving rise to an intense disillusionment, because for many years the Hong Kong people have assumed that in 2047 the current system would be extended and reformed, consistent with the benign democratic aspirations of the Basic Law and the importance of Hong Kong as a financial centre that benefits the Chinese regime. The persistence of the current protests must be understood against this background assumption and the protesters’ profound sense of betrayal by their government. The resultant sense of panic, the imperative to draw a line, is the reason why the protests did not stop when Carrie Lam declared the Fugitive Offenders Ordinance bill “dead” on July 9.

Is the suspicion of the PRC legal system, reflected in the question that must be asked whenever the SAR receives an extradition request from a non-treaty country, justified? On June 11, the very eve of the Legislative Council’s attempted further deliberation of the bill after the first Sunday protest, the New Zealand Court of Appeal rejected an application for extradition of a Korean citizen, Mr Kim, whom the Chinese authorities accused of killing a twenty-year-old woman in Shanghai in 2009. A question that had to be considered properly in the administrative process of the local minister was whether the PRC’s assurances of a fair trial and non-imposition of a death penalty could be disregarded in the light of what was known about the operation of the legal system in the country seeking extradition.

In considering that issue the New Zealand Court of Appeal assessed evidence about the PRC’s criminal legal system. That evidence established that there remained widespread use of torture in China in order to obtain confessions to crimes, especially where the accused were political dissidents or were charged with corruption or murder. Reforms between 2010 and 2012, which outlawed this practice and assured courts that the exclusion of confessions obtained by torture from evidence was a “political possibility”, had, it appeared, reduced the prevalence of torture in rural areas and for run-of-the-mill offences. The evidence was that torture was carried out by the police and public security officers usually early in the custody process but also in longer-term detention centres. Though the reforms and governmental assurances given to the minister had made available an argument that a Korean citizen who was charged with a murder in Shanghai would be unlikely to be subjected to torture (that argument ultimately failed), the same could not be said for political dissidents such as those likely to be extradited to China under Carrie Lam’s amended ordinance.

The evidence in Kim’s case also established that public security officers specialised in the charging of enemies of the state, such as human rights advocates, defence lawyers, political dissidents, members of religious and ethnic minorities, with vague and broadly-defined offences such as “picking quarrels and provoking troubles”, as a form of intimidation, something unheard of in Hong Kong. In the PRC it is the obligation of the police, prosecutorial authorities and the courts to “co-operate” with the government in making sure campaigns against crimes are successful. Evidence was accepted that the methods of torture used include beatings, electric shock, submersion in water or sewage, deprivation of sleep, food and water, prolonged solitary confinement and the enforced holding of stress positions, things that do not happen in Hong Kong.

The Court of Appeal concluded that there were inadequate systems in place in the PRC to prevent torture. They found that the minister and her advisers had given inadequate weight to a disturbing fact: that the evidence bore out that torture regularly occurred even now when by the law of the PRC it should not.

An argument put forward which gained traction with the minister had been that, based on the evidence of some commentators on China, the PRC had an incentive to comply with the expectations of Western governments that the assurances it gave as to treatment of prisoners would be observed because otherwise its standing in the global community would be damaged. The apparent priority and weight given to this argument by the minister and her advisers is an outstanding example of how notions of cultural relativism and the superior importance of international financial considerations (both political considerations) are permitted to interfere with the proper consideration by officers of the Crown with the fundamentals of human existence.

The Court of Appeal also found that the minister could not reasonably have concluded that Mr Kim would receive a fair trial given the existence of political supervision of the criminal justice system. The court concluded:

This political influence prioritises social policy objectives over individual procedural protections. The lack of independence of the judiciary is systemic. It is also structural in the sense that it is how the system is designed to operate, rather than being the consequence of poorly controlled human behaviour which undermines the way in which the system was intended to operate.

In Hong Kong the protests continue. The trashing of the Legislative Council has not caused a division within the protest movement, which Carrie Lam had hoped it might. She and her pro-Beijing supporters in Hong Kong have been quick to point to the breach of the “rule of law” by the students, even as they persist in seeking to enable a regime with no effective rule of law to encroach on Hong Kong’s freedoms. Even as overseas observers began to withdraw sympathy for the protesters, the footage of organised thugs in white T-shirts brazenly attacking protesters and innocent citizens on the MTR with wooden staves broke down the membrane between the protests as a contained piece of political theatre and public safety. Hitherto, unlike the gilets jaunes disruptions in France, no shops had been smashed and looted, no cars set on fire, no one permanently maimed. The recent protest strikes have also impinged on the workaday lives of many, shutting down the normally ebullient city.

Some students interviewed on local television are happy to say they are prepared to die for their cause, a form of commitment to a political cause that would be unusual in Australia. Even if the Hong Kong government does terminate the amendment bill in a final way that mollifies the fear of extradition, the underlying grievance will not be assuaged and Hong Kong may become a city in permanent unrest. The Hong Kong people are suffering in a super-sized way from the current frustration of many democracies—growing mistrust and disbelief in their own governments.

Matthew White SC is a barrister working in Sydney and Hong Kong