‘Australians should be thinking about their risk profile.’ What are Hong Kong’s new extradition laws about?

In the same week that 180,000 people attended a vigil in Hong Kong to remember victims of China’s Tiananmen Square massacre, controversy has reached boiling point in the city over moves to fast-track changes to Hong Kong’s extradition laws.

The changes would mean that people accused of a crime could be surrendered by Hong Kong to authorities, including those in mainland China which is currently excluded from extradition agreements with the former British colony.

The extradition law amendments sparked mass protests and a brawl in Hong Kong’s parliament earlier this month, leaving one politician in hospital.Credit:AP

The new moves are being pushed through at a dizzying pace, before the Hong Kong legislature’s July summer recess. Animated debate between angry pro-democracy legislators and their pro-Beijing counterparts continued this week, having already erupted into physical argy-bargy last month. Thousands of people marched in protest in April and more are expected to take to the streets on June 9, with protests also planned in Australia.

Hong Kong lawyers and even its high-flying business community, usually careful to avoid controversy, have expressed alarm on Thursday, hundreds of them marched in the streets in protest. Meanwhile, the European Union, United States, Britain and Canada have all voiced concerns. Australia has said it hopes the new laws will maintain confidence in the operation of “one country, two systems”.

There are 100,000 Australians living in Hong Kong, including those whose work regularly takes them across the border into mainland China. As well as a thriving expat community, Australians have holidayed in, and transited through, Hong Kong for decades.

Should they be worried about the proposed amendments? And why are some Hong Kongers so outraged?

What started all of this?

In February, Hong Kong’s secretary for security, John Lee Ka-chiu, released a briefing note to Legislative Council members floating proposed amendments to extradition laws. Since Britain had handed back its colony to China in 1997, there had been “a number of serious crime cases in which the culprits have absconded to other jurisdictions to elude justice”, it said.

While no details of those cases were given, there was one in particular that was pointed to, and which has been invoked repeatedly as a reason for urgent action.

A poster in Hong Kong protesting against a proposed law to enable China to seek extradition to the mainland. Credit:Felicity Lewis

A 20-year-old Hong Kong man who admitted to killing his girlfriend in Taiwan’s capital, Taipei, in 2018, is currently in jail in Hong Kong for theft and money laundering – he used his dead girlfriend’s ATM card to pay his debts in Hong Kong. But he can be charged over her killing only in the jurisdiction where the alleged act took place: Taiwan.

The Hong Kong government claims there needs to be a formal extradition agreement with China to facilitate the man’s return to Taiwan, although it is technically possible to request extraditions on an ad hoc basis. For its part, Taiwan, which is self-governing but considered a renegade province by China, has not come out in support of the extradition laws.

The man could be released from jail as early as October.

Meanwhile, some 300 other “rather important fugitives” from China are hiding out in Hong Kong and could be targeted with the laws, according to former Chinese vice-minister of public security Chen Zhimin, the South China Morning Post has reported. But he did not elaborate on who they were.

What would the new laws change?

The Hong Kong government says the amendments are merely designed to plug “loopholes” and only serious criminals have anything to fear. But a growing number of Hong Kongers, lawyers, business people and overseas governments regard the amendments as a threat to human rights and a breach of the agreement between Britain and Hong Kong in 1997 that Hong Kong would be allowed to continue its economic, political and judicial systems for 50 years even though it had become a special administrative region of China – “one country, two systems”.

University students clean the “Pillar of Shame” statue, a memorial for those killed in the 1989 Tiananmen crackdown, at the University of Hong Kong.Credit:AP

Hong Kong has reciprocal extradition agreements with 20 countries, including Australia, but its Fugitive Offenders Ordinance does not allow requests between Hong Kong and other parts of the People’s Republic of China. The laws would enable countries, including China, to request the surrender of a fugitive. An accompanying law would also allow an accused’s assets in Hong Kong to be frozen.

There would be 37 crimes for which people could be extradited including murder, money laundering, corruption and fraud. Nine white-collar crimes, including intellectual property infringements, were dropped after lobbying from the business community.

Hong Kong’s 70-member Legislative Council, half of whom are directly democratically elected, would also be bypassed as a first stage of scrutinising extradition requests.

Hong Kong chief executive Carrie Lam.Credit:AP

The process would involve Hong Kong’s chief executive requesting the provisional arrest of the fugitive and signing off on their extradition once it was approved by the courts. The accused person could appeal their extradition in the courts.

The current chief executive is Carrie Lam, who was sworn into office by Chinese President Xi Jinping in 2017.

Who would the laws apply to?

Anyone, potentially, including Hong Kong citizens and travellers passing through Hong Kong deemed to have committed a crime referred to in the extradition agreement.

Should Australians be worried?

Australians in Hong Kong have no reason for deep anxiety over the laws, says Australian Richard Cullen, a visiting professor at the faculty of law at Hong Kong University.

He says China would bear the onus of proof to show that an extradition request was not political in nature; and it would be unlikely to attempt a “bait and switch” ­– seeking extradition on one charge then charging the same person with something else in China – because of the damage to its credibility.

But international human rights law expert Simon Henderson says there is real cause for concern.

“Any Australian should be thinking about their risk profile in the region,” he says. “We won’t know the full impact until the law is on the books but it’s the fact you have the law on the books that is problematic in and of itself.

“We don’t know whether any Australians are on a list or are being watched by mainland China because of activities they’ve conducted.

The UK’s foreign secretary is willing to speak up, the US secretary of state is willing to speak up, yet Australia comparatively seems silent.

“You’re in Hong Kong, you’re doing something related to China … We have large law firms, financial services firms – it doesn’t matter if you belong to a big corporate, you could be affected. Look at the Stern Hu case. There were substantial issues with the trial, including lack of clarity on the crimes he committed and the secrecy involved, leading to his imprisonment for several years."

Stern Hu was a Rio Tinto executive who was released from jail in China in 2018 after serving nine years for accepting bribes and stealing trade secrets.

In January, Australian-Chinese writer Yang Hengjun was detained at Shanghai airport and is still being held on allegations he endangered China's national security.

Detained in China: Canadian nationals Michael Kovrig (left) and Michael Spavor.Credit:AP

Meanwhile, two Canadian citizens – former diplomat Michael Kovrig and consultant Michael Spavor – have been held in China since December. Their detention came shortly after the chief financial officer of Chinese telco giant Huawei, Meng Wanzhou, was detained in Canada, accused of breaching US sanctions in Iran in her business dealings.

There are wide concerns that requests for extraditions from China on particular crimes could mask political motives.

“Who knows how the [China-Australia] relationship might deteriorate, and whether China will retaliate in seeking the extradition of Australians from Hong Kong,” says Henderson.

“In the past,” says veteran journalist Ching Cheong, “whenever journalists or businessmen arrive back to Hong Kong from the mainland, they immediately get a sense of relief. With this bill in place, their sense of security will not be that certain.”

Veteran journalist Ching Cheong, who spent more than three years in jail in China on espionage charges from 2005, which he says were sparked by an article he wrote that angered Chinese authorities. Credit:Felicity Lewis

Ching spent three years in jail in China from 2005 on espionage charges after writing an article that angered Chinese authorities.

While the Hong Kong government has said the new laws simply close a loophole that has existed since the 1997 handover, Ching takes a different view. “The 1997 measure was not a loophole but a deliberate move to shield Hong Kong from China’s notorious malpractice in the legal sector,” he says.

A poster advertising a rally on June 9, 2019, against Hong Kong’s proposed law to enable people to be extradited to the Chinese mainland. Credit:Felicity Lewis

While extradition laws require that the requesting country provide assurances of a fair trial, Henderson cites as causes for concern China’s indiscriminate, indefinite detention measures; lack of a fair trial, concerns regarding torture, and issues with accessing independent legal representation.

What has Australia said?

In response to media questions, a spokesperson for the Department of Foreign Affairs and Trade has said, “Australia has a substantial stake in Hong Kong's success, home to our biggest community and largest commercial presence in Asia.

“We are taking a close interest in the proposed amendments to the Fugitive Offenders Ordinance in Hong Kong. The Australian Consul-General in Hong Kong has raised this issue at senior levels [of government, and the Executive and Legislative Councils].

“Given the intense public and international community interest, we hope any amendments are pursued in keeping with due process and consultation, and resolved in a way that maintains confidence in the operation of 'one country, two systems'.”

But Australia's Minister for Foreign Affairs has yet to make a formal public statement on this issue, says Henderson. “The UK’s foreign secretary is willing to speak up, the US secretary of state is willing to speak up, yet Australia comparatively seems silent.”

A plan by the Turnbull government in 2017 would have seen the quiet ratification of an extradition treaty between China and Australia, but it collapsed after opposition from members of the Coalition backbench, Labor and the cross-benchers. They were worried about the human rights problems in China's legal system.

The fact that the Australian government made a serious attempt to pass its own extradition treaty with China might make it more difficult for it to speak strongly on behalf of Hong Kong's dissidents now.

Other countries do not seem so constrained. In a joint statement on May 30, Britain and Canada expressed concern about “the potential effect of these proposals on the large number of UK and Canadian citizens in Hong Kong, on business confidence and on Hong Kong’s international reputation.”

The European Union Office in Macau and Hong Kong has registered its protest and the United States Congressional-Executive Committee on China requested that the bill be withdrawn, Hong Kong Free Press has reported.

Henderson is also disappointed by the Hong Kong's Australian Chamber of Commerce, which he said “should be speaking up for the rights of Australians in Hong Kong and the Greater Bay Area. Their response contrasts with the US and various Hong Kong chambers of commerce who have expressed concerns privately and publicly.”

(The Greater Bay Area is a development initiative that includes the casino hub of Macau.) Hong Kong's Australian Chamber of Commerce was contacted for comment.

What is ‘one country, two systems’ and how did Hong Kong get here?

When it lost the first Opium War, China ceded Hong Kong to Britain. When Britain handed back its “dependent territory” to China after 156 years, it agreed with China that Hong Kong’s economic, political and judicial systems would remain in place for 50 years as “one country, two systems”.

Hong Kong is now midway through this transition period and, as its contribution to China’s GDP has dropped from 30 per cent in 1997 to just 2 per cent, it is grappling with increasingly alarming threats to its way of life.

These have ranged from the recent jailing of leaders of the pro-democracy Umbrella Movement to the refusal of a work visa for a British journalist who hosted a talk by a pro-independence activist. Germany recently granted political asylum to two young pro-independence activists convicted of rioting in Hong Kong in 2016.

The extradition amendments are considered a blurring of the “one country, two systems” agreement, which still has 28 years to run.

Hong Kong pro-democracy legislator Claudia Mo.Credit:Felicity Lewis

What’s next?

Opponents of the laws in the Legislative Council do not have the majority of seats but have sought to delay the passage of the new laws, which were still being hotly debated by Council members this week.

Pro-democracy politician Claudia Mo is not optimistic about stopping the changes. She says any concessions are “decorative gestures” that do not address “the matter of trust” in China’s rule of law.

“If they want to get you, they can always package some crime against you,” she says of the Chinese authorities.

Thousands of protesters are expected to take to the streets of Hong Kong on June 9 to voice their opposition to the laws.

Felicity Lewis travelled to Hong Kong with the assistance of the Judith Neilson Institute for Journalism and Ideas.

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