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More explanation to dispel concerns  Rational discussion in Legco urged
We top Global Index of Economic Openness  Vote of international confidence in Hong Kong

26 May 2019

Since I highlighted the key points of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 (the Bill) in my blog two weeks ago, the Government team has stepped up efforts in explaining the Bill to the public, especially its objective of combating fugitives and the content of its provisions. It was also emphasised that:

  • “No Surrender under Eight Conditions”: (1) No surrender if the “double criminality” principle is not complied with; (2) no surrender for offences of a political character; (3) no surrender for prosecutions on account of race, religion, nationality or political opinions; (4) no surrender for any conviction made in the person’s absence; (5) no “double jeopardy”; (6) no surrender if charges go beyond the surrender order; (7) no re-surrender to a third party; and (8) no surrender if the offence attracts the death penalty.
  • “Nine Categories of Offences Excluded”: The case-based surrender arrangements cannot be applied to nine categories of offences relating to (1) bankruptcy law or insolvency law; (2) company law; (3) securities and futures trading; (4) intellectual property; (5) environmental pollution; (6) exportation or importation of goods, or international transfer of funds; (7) unlawful use of computers; (8) taxes or duties; and (9) false trade descriptions.
  • The offence involved must be punishable with imprisonment for more than 3 years and triable on indictment in Hong Kong.
  • Full human rights and procedural safeguards are in place, including: (1) legal representation; (2) legal aid; (3) application for habeas corpus (with a right of appeal to the Court of Final Appeal (CFA)); (4) application for torture claim (with a right of appeal to the CFA); (5) application for discharge; (6) application for appeal (with a right of appeal to the CFA); and (7) application for judicial review (with a right of appeal to the CFA).
  • The Government can request additional guarantees (e.g. legal representation, family visits and health care) from the requesting party based on the needs of individual case-based surrender arrangements.
  • The executive authority and the court will strictly perform their respective gate-keeping roles in handling all surrender requests.

The proposed legislative amendments will not, by any means, affect the arrangements under the long-term agreements in force.

We are endeavouring to clear public misconceptions, enhance understanding, dispel concerns and allay unnecessary fears of the Bill.

Last week, I met representatives from foreign chambers of commerce to brief them on the Bill. Having learned the truths about the Bill through in-depth and open exchanges of views, some of them clearly expressed their acceptance and support for the decision to amend the existing legislation, which they believed to be a manifestation of the rule of law. The Government of the Hong Kong Special Administrative Region (HKSAR) will continue to hold discussions with groups from different sectors and make an all-out effort to dispel concerns.

On the other hand, much to our regret, although several weeks have passed since the House Committee (HC) of the Legislative Council (LegCo) decided to form a Bills Committee on 12 April, no chairman has been elected yet. Such a situation is unreasonable and unprecedented. The Government has actively co-operated with the Bills Committee for its operation. Our officials are prepared to attend every meeting of the Bills Committee, hoping to exchange views and interact with its members at meetings. However, at the past meetings of the Committee, there were unprecedented commotions and even heated arguments and confrontations, as a result of which some members were injured (A chronology of events is at the Annex.)

Since the Bills Committee cannot function properly and the LegCo is facing an unprecedentedly difficult situation, after careful consideration, the Government made the tough decision of resuming the second reading of the Bill at a full council meeting on 12 June 2019. There is no question of bypassing the Bills Committee. The Government was left with no alternative.

In fact, the Government has all along hoped that the Bills Committee could fulfil its constitutional duty of scrutinising the Bill proposed by the executive authority. However, the Committee has come to a deadlock and the Government has not had a chance to explain the Bill to its members. Hence we had to resort to resuming the second reading of the Bill to break the deadlock. I hope that LegCo members can discuss the Bill in a rational and pragmatic manner.

As I have pointed out earlier, the rule of law is the core value of Hong Kong and the cornerstone of our long-term prosperity and stability. Since Hong Kong’s return to the motherland, the principle of “one country, two systems” has been successfully implemented and the rule of law and judicial independence are fully guaranteed by the Basic Law. Hong Kong ranks first in Asia and eighth globally in terms of judicial independence. The rule of law can ensure social order and promote economic and social development.

The power of final adjudication of Hong Kong is vested in the CFA, which may invite judges from other common law jurisdictions to sit on it. The presence of these judges manifests the high degree of judicial independence of Hong Kong. The Right Honourable the Lord Jonathan Sumption, who was a Justice of the Supreme Court of the United Kingdom from 2012 to 2018, has just been appointed by the Chief Executive as a non-permanent judge of the CFA from another common law jurisdiction. With the appointment of Lord Sumption, the panel of non-permanent judges from other common law jurisdictions now consists of 15 eminent judges from the United Kingdom, Australia and Canada.

It is important to note that according to the Global Index of Economic Openness 2019 published last week by the Legatum Institute, which is a think tank in the United Kingdom, Hong Kong tops the ranking as the world’s freest economy, while Singapore and the Netherlands come second and third and the United Kingdom and the United States come seventh and ninth respectively. The Index assesses and ranks 157 economies worldwide according to their economic openness.

Obviously, both the international judicial community and international investors have full confidence in Hong Kong’s judicial and economic systems. The success of Hong Kong over the years is attributable to its steadfast commitment to the principle of a free market economy and to safeguarding judicial independence and the rule of law. To keep Hong Kong’s competitive edge, we must make continuous efforts to maintain prosperity and stability, public safety and the rule of law in our city.

 

Annex: Chronology of events

  • 15 February: The Government consulted the LegCo Panel on Security;
  • 3 April: The Government introduced the Bill into the LegCo for first reading and second reading. The Bill was referred to the HC;
  • 12 April: The HC allocated the Bill to a Bills Committee for its scrutiny;
  • 17 and 30 April: The first two meetings of the Bills Committee were held with the Hon James TO as the presiding member, but no chairman was elected after a total of four hours of meeting;
  • 4 May: At the special HC meeting, which spanned four hours, the HC agreed to provide the following guidelines to the Bills Committee: “That until the chairman of the Bills Committee is elected, the Hon Abraham SHEK, member of the Bills Committee, shall determine the date, time and place of the meeting(s) of the Bills Committee; and shall be responsible for presiding at the election of the chairman of the Bills Committee during the meeting(s) in accordance with the election procedure stipulated in paragraphs 4 to 12 in Appendix IV of the House Rules.”;
  • 6 May: The Government was informed by the LegCo Secretariat that the Bills Committee meeting originally scheduled for the day would be postponed to 9 a.m. to 1 p.m. on 11 May. On the same day (6 May), the Hon James TO convened and presided at a so-called “Bills Committee” meeting, at which he was elected as the chairman of the Committee.
  • 11 May: The Hon Abraham SHEK was going to convene a meeting on the day according to the guidelines of the HC when the Hon James TO convened another meeting at the same venue 30 minutes earlier than the meeting time appointed by Mr SHEK. When Mr SHEK tried to preside over the meeting, there were serious commotion and confrontations during which a number of LegCo members were injured. Mr SHEK was unable to preside at the election of the chairman of the Bills Committee.
  • 11 May: The Government received notification from the LegCo Secretariat that the next Bills Committee meeting would be held on 14 May 2019 from 8:30 a.m. to 10:15 a.m. On 14 May 2019, the Hon James TO convened another meeting at the same venue 15 minutes earlier. At about 8:30 a.m. when the Hon Abraham SHEK sought to conduct his meeting, there were again commotion and confrontations. Again, no chairman was elected at the meeting;
  • 14 May: The Hon Abraham SHEK wrote to the Chairman of the HC to report on the latest developments and seek the HC’s advice on the way forward;
  • 16 May: Eight LegCo members, four from each side of opposing views, met to address the impasse; however, there were still serious differences of opinion;
  • 17 May: The HC met to discuss the Hon Abraham SHEK’s request for advice. During the two hours of the meeting, very divergent and opposite opinions were expressed and no decision was made on the way forward. The HC Chairman invited members to provide written submissions on the suggested way forward by 5:00 p.m. on 21 May 2019.
  • 24 May: The HC discussed the way forward for the scrutiny of the Bill.