No basis to omit white-collar crimes, says Bar Association

There is no basis for omitting white collar crimes from the proposed amendment to the fugitive laws, and such exclusions would not in any event have any bearing on fundamental problems arising from a different criminal justice system in the mainland, the Bar Association argued yesterday.

Phoenix Un

Wednesday, April 03, 2019

There is no basis for omitting white collar crimes from the proposed amendment to the fugitive laws, and such exclusions would not in any event have any bearing on fundamental problems arising from a different criminal justice system in the mainland, the Bar Association argued yesterday.

This was the second statement from the Bar Association on the proposed Fugitive Offenders and Mutual Legal Assistance in Criminal Matters (Amendment) Bill 2019.

The first one came on March 4.

It was also just before the first and second readings of the amendment in the Legislative Council, which are today.

The SAR administration regained support from the business sector on the amendment move by exempting nine commerce-related crimes from the one that would enable extradition, but the Bar Association condemned it as lacking any principled basis.

"If the exclusions are motivated by concerns over the proposed changes to the extradition regime enabling rendition of persons to the rest of the People's Republic of China, these concerns should apply to all offenses and not just some," the statement said.

The Bar Association also believes the protection that appears to be going into place with the exemptions is "illusory" because business people can always be extradited with alternative offenses, adding: "An allegation of infringing intellectual property protection laws (exempted) can also give rise to allegations of obtaining pecuniary advantage by deception (not exempted)."

The administration has claimed repeatedly that it was a "loophole" to have no long-term extradition arrangement to the rest of the PRC, but the Bar Association slammed that as a misleading assertion because it had been a deliberate decision not to include the rest of PRC into areas allowing fugitive transfers "particularly in light of the fundamentally different criminal justice system operating in the mainland and concerns over the mainland's track records on the protection of fundamental rights."

It added that should the administration consider that circumstances in the rest of the PRC have changed on fugitive returns then "the proper course is to start negotiations for long-term general arrangements."

The association also said the white-collar exemptions would make it impossible for other jurisdictions that do not have a long-term arrangement with Hong Kong to request the surrender of anyone involved in the nine crimes.

The chief executive would become the sole decision-maker under the proposed case-based arrangement in concluding a deal with another jurisdiction without allowing the Legislative Council to be supervisor, it said. The courts had a limited role in rejecting extradition, and that did not compensate for the removal of legislative scrutiny.

"The government has so far failed to address the Taiwan government's position that it 'would not sign any extradition deal with Hong Kong that would have implications for the one-China principle under which both Beijing and Taipei claim to be the legitimate government of China',' the statement said.

Taiwan's Mainland Affairs Council has vowed to issue an outbound travel alert for Hong Kong if the fugitive law amendment is approved.

phoenix.un@singtaonewscorp.com