In amending a controversial extradition law, the Hong Kong government removed nine types of commercial crimes for which extradition would be allowed, but warnings are already going up that any protections from these changes may be illusory.
This is what could get you nabbed
The Hong Kong Bar Association (HKBA) put forward two examples to warn that those engaged in business activities that they may still fall afoul of the law.
“For instance, circumstances giving rise to an allegation of a securities trading offence, an exempted offence, can often also give rise to allegations of fraud, which is not an exempted offence,” the HKBA said.
In another example, an allegation of infringing intellectual property protection laws, which may be exempted, can also give rise to allegations of obtaining a pecuniary advantage by deception, which is not exempted.
“These alternative offences can still render a person liable to be surrendered to the rest of the PRC under the proposed special arrangement,” the Bar Association warned.
Facing strong opposition from the business sector on its proposed extradition law, the Hong Kong government said last month it would scrap nine types of commercial crimes from the law. There are concerns, particularly among the business sector, that the law could be used for political purposes.
The legal areas that will no longer fall under the purview of the new extradition law include the unlawful use of computers; environmental pollution or the protection of public health; intellectual property, copyright, patents or trademarks; exportation or importation of controlled goods; international funds transfers; bankruptcy, companies, securities and futures trading; fiscal matters, taxes or duties; and false or misleading trade descriptions.
The concerns are in large part linked to the significant differences in the legal systems in place in Hong Kong and mainland China. The American Chamber of Commerce in Hong Kong commented that the mainland Chinese criminal process has deep flaws, citing “a lack of an independent judiciary, arbitrary detention, lack of fair public trial, lack of access to legal representation and poor prison conditions.”
Just passing through
The Progressive Lawyers Group, an advocacy group formed by local lawyers, warned that anyone visiting Hong Kong or just passing through the city could be extradited to China on any allegations covered by the Fugitive Offences Ordinance.
But Mr Ronny Tong Ka-wah, member of the Executive Council and former legislator, tells Harbour Times that he does not see any impact at all on those who may be involved in a commercial dispute with someone in China.
The double criminality rule included in the proposed law requires that any alleged crimes for which extradition applies must happen in Hong Kong, be serious and fall within the schedule of 37 types of criminal activities included in the legislation, Mr. Tong explained.
However, Mr Eric Cheung, a law professor from the University of Hong Kong, told Harbour Times that there is a certain amount of risk.
“They (businesspeople) are surely at risk of being extradited for offences relating to bribery and false instruments. Whether and how much the risk will be actualised will depend on whether and how frequently China seeks extraditions under the new law,” he said.
“However, many such businessmen may well take precautionary steps to move assets outside Hong Kong once the law is amended so that they can easily leave Hong Kong if and when the risk materialises.”
Mr James Tien, honorary chairman of the business-friendly Liberal Party, expressed concerns about the retrospective effect of the law, calling the government to revoke the amendment.
Last month, China’s former Deputy Minister of Public Security Mr Chen Zhimin said that more than 300 fugitives from China have fled to Hong Kong. With a retrospective effect, the amended law could make the extradition of these fugitives possible.
The controversy over the amendments to the extradition law have been going on for over a month. The amendment has drawn criticism from the business and legal sectors.
The proposal to amend the extradition law arose after the murder in Taiwan late last year of a pregnant 20-year-old woman. Mr Chan Tong-kai allegedly strangled his girlfriend in Taiwan and fled to Hong Kong, where he was arrested on charges of money laundering, because he had taken his girlfriend ATM card and tried to use it in Hong Kong. Despite his arrest there was no mechanism for him to be extradited to Taiwan to face murder charges.
The Hong Kong government says the case exposed a “loophole” in the city’s legislation on extraditions.