The government’s well-intentioned plan to amend our arrangements for extradition to other legal jurisdictions has run into trouble. In so doing it has raised a number of serious questions about governance, and willingness within the administration of chief executive Carrie Lam Cheng Yuet-ngoh to “speak truth to power”.
As is widely known, the impetus for changing arrangements sprang from a case in Taiwan last year when a Hong Kong resident allegedly murdered his girlfriend while they were holidaying there. The boyfriend subsequently returned to the SAR where he was arrested for other relatively minor offences committed in Hong Kong. Taiwan authorities sought his return to the island to face murder charges there. The deceased’s mother petitioned Lam to secure justice for her daughter by ensuring he was brought to account for her death. There were at the time no general provisions for return of criminal suspects to Taiwan, specifically there is no long-term cooperation agreement.
Riding on the back of the Taiwan case, the government has proposed amendments to the Fugitive Offenders Ordinance and the Mutual Assistance in Legal Matters Ordinance (respectively chapters 503 and 525 of the laws of Hong Kong). These would apply to all legal jurisdictions which do not at present have a full-scale cooperation agreement. When the proposal was first mooted, it included all 46 categories of offence listed in the legislation.
There then followed a period of public consultation in the period 12 February to 4 March i.e. three weeks. For such a major piece of legislation, this seems remarkably short.
There were a number of ways in which the suspect’s return could be achieved. The simplest might have been a one-off arrangement for the particular case (Existing Hong Kong law does provide for case-based surrender). Indeed, such a plan has now been proposed by the pan democrats as an alternative to the government scheme. They have quoted as a precedent, albeit under different legislation, the case of a daughter being allowed to donate part of her liver to save her mother’s life despite being below the statutory minimum age for organ donors. Suitable legislation was drafted to allow the donation to be made, though in the event it was not needed as another donor was found.
Apart from the brevity of the consultation exercise, other aspects of the draft legislation that are proving controversial are its scope – specifically, inclusion of Macau and mainland China in addition to Taiwan --, the range of offences, and whether or not such legislation has or should have retrospective effect.
On the question of scope, it is impossible to shrug off the impression that the government is taking advantage of a very sad individual case involving one territory to make sweeping changes to an important piece of legislation. Every Hong Kong parent will empathise with the girl’s family, but it is not honourable to try to harness that sympathy to rush through a wide-ranging set of amendments. Secretary for Security John Lee Ka-chiu, as a former policeman, can perhaps be excused for seeing this as a simple tidying up exercise. But what about his more politically attuned colleagues? Did Secretary for Home Affairs Lau Kong-wah, whose job is to have his finger on the pulse of local public opinion, speak up to warn that in the present climate anything touching on the mainland was bound to be controversial? Did Secretary for Justice Teresa Cheng Yeuk-wah warn that this was a major piece of legislation with significant ramifications and should not be rushed? Were Lau and Cheng consulted at an early enough stage to influence the decision, or were they simply briefed later when Lam and Lee had already set the course?
To pour fuel on troubled flames, a mainland spokesman announced at one point that there were already 300 fugitives from mainland justice hiding in Hong Kong and the government here knew who they were (the allegation was subsequently denied). Given the known sensitivities, would it have been better, for greater China, to have stuck to a much more restricted range of offences, say murder, rape and kidnapping? If those worked smoothly, the range could later be extended.
And what about the business sector, which complained loudly and vociferously when the first set of proposals was floated, to the extent that changes had to be made. When the final package reached Exco on 26 March, the number of crimes to be covered had been cut from 46 to 37, and the minimum sentence threshold increased from one to three years. But surely Secretary for Commerce and Economic Development Edward Yau Tang-wah is sensitive enough to have anticipated such a reaction. Was he consulted in good time?
By chance I recently attended a seminar organised by a major international chamber of commerce in Hong Kong which looked at serious cases of corporate failure such as Volkswagen and Wells Fargo Bank. The first had incorporated special software to cover up the fact that its vehicles could not meet environmental emission standards. The staff of the second had opened thousands of accounts in the name of unwitting customers in order to meet aggressive business targets. In both cases the conclusion had been drawn that the top leadership had not created a culture of speaking truth to power. Had they done so, those at more junior levels encouraged by their direct supervisors to break or skirt the law would surely have raised objection. Many believe those in senior positions did actually know, but even if they did not they were still culpable for failing to create the right culture.
It is incumbent on Lam to ensure that this weakness does not take root in the top echelons of the SAR government. With respect to the ministers listed earlier, did they speak? Were they listened to? The management gurus next study subject is Boeing. Take it from me, it will not end well.