火牛棋牌首页

621x74 (2).gif

China Daily

HongKong> Opinion> Content
Saturday, October 26, 2019, 00:37
Taiwan murder: Now let justice take its course
By Grenville Cross
Saturday, October 26, 2019, 00:37 By Grenville Cross

It was ironical that, on the very day when the secretary for security, John Lee Ka-chiu, formally withdrew the government’s fugitive offender bill in the Legislative Council, the criminal suspect, whose alleged murder of his girlfriend in Taiwan triggered the bill in the first place, was released from Pik Uk Correctional Institution, having completed, with remission, a sentence of 29 months’ imprisonment for money laundering.

Although Chan Tong-kai has announced that, out of remorse, he now intends to give himself up to the authorities in Taipei, this has yet to happen. He may, of course, have second thoughts, and, now that the fugitive offender bill has been withdrawn, there is no mechanism in place by which he can be returned to Taiwan for trial. This, of course, is a direct consequence of the hysteria which was whipped up by anti-China elements in Hong Kong and elsewhere over a much-needed proposal to create a mechanism whereby, in a suitable case, criminal fugitives could be returned for trial to the 177 jurisdictions with which Hong Kong currently has no extradition agreements.

Apart from Chan, criminals convicted of corruption and bribery in Macao have fled to Hong Kong, and cannot be returned to serve their sentences, while over 300 fugitive offenders from the Chinese mainland are also hiding out here. Although the exact number of fugitives from around the world who are currently lying low in Hong Kong is not known, we can be certain that significant numbers have come here to evade justice by taking advantage of the legal vacuum which now exists.

Although, after initial prevarication, Taiwan has now said that Chan can go to Taipei, where he will be arrested, it has also requested the evidence to support the murder charge. This presumably consists of the records of what Chan said to the police when they interviewed him, and what was said subsequently on his behalf in the Court of First Instance

To be known as a sanctuary for the world’s criminals is, of course, a dreadful reputation for a place which once prided itself on its law and order situation, as well as being a safe city. However, Lee can at least take comfort from having done his level best to protect Hong Kong, and to enable it to honor its criminal justice obligations to other jurisdictions around the world.

Although there were initially some suggestions from Taipei that Hong Kong should itself try Chan, wiser counsels appear now to have prevailed, which is just as well. Because of the territoriality principle, Hong Kong cannot, in the absence of specific legislation, assume jurisdiction over an alleged murder which arose in Taiwan, or anywhere else. 

Although the Offences Against the Person Ordinance (Cap 212) makes it an offense within Hong Kong for anyone to “conspire, confederate and agree to murder a person, whatever his nationality or citizenship and wherever he may be”, this requires that, at the very least, some act preliminary to the murder should have occurred in Hong Kong, albeit that the evil deed actually occurs elsewhere. When the Department of Justice originally examined the evidence against Chan, it could find nothing which enabled Hong Kong to assert jurisdiction over the murder case, although it was able to lay money laundering charges in respect of related offenses which arose after Chan’s return to Hong Kong, when he made improper use of the victim’s credit cards.

Even though Taipei does not appear to have proposed this, a University of Hong Kong academic has nonetheless suggested that it would be fairer to Chan, who may face the death penalty if convicted in Taiwan, to be tried locally by means of a change in the law. This argument, however, disregards the basic legal precept against the retroactivity of laws, something which is proscribed by the Hong Kong Bill of Rights Ordinance (Cap 383). If, therefore, it was not a crime in Hong Kong to kill someone in Taiwan when that killing took place, any change in the law to create such an offense only applies to future cases, not to previous ones.

Although, after initial prevarication, Taiwan has now said that Chan can go to Taipei, where he will be arrested, it has also requested the evidence to support the murder charge. This presumably consists of the records of what Chan said to the police when they interviewed him, and what was said subsequently on his behalf in the Court of First Instance. This is exactly the sort of material that would be supplied if Hong Kong and Taiwan had a mutual legal assistance agreement in place.

However, although the judicial authorities of the Chinese mainland and Taiwan reached an agreement on mutual judicial assistance on April 26, 2009, covering various crimes, including murder, and facilitating the exchange of crime-related information and evidence, there is no such agreement between Hong Kong and Taiwan. Unless, therefore, informal, administrative methods of assistance are to be deployed, one possible course, if Taiwan requires extra evidence, might be for it to consider issuing a letter of request to Hong Kong, seeking the evidence it needs. 

After all, Hong Kong courts, even in the absence of mutual legal assistance agreements with either jurisdiction, have previously issued letters of request to, for example, courts in Macao and Guangzhou, and these were acted upon. Although the Department of Justice is best placed to indicate the way forward, it may well be that there is no legal impediment to Taiwan doing likewise in respect of evidence it needs from Hong Kong. 

A letter of request may be issued by the court of another jurisdiction, for evidence to be obtained in Hong Kong for the purpose of criminal proceedings in that jurisdiction. Under the Evidence Ordinance (Cap 8), Hong Kong’s Court of First Instance is empowered to assist in obtaining evidence for criminal proceedings in another jurisdiction, provided that the proceedings have been instituted or their institution is likely if the evidence is obtained. Chan is subject to an arrest warrant issued in Taipei, so his case clearly comes within that provision. Once it receives a letter of request, the court in Hong Kong can make an order for the examination of witnesses, either orally or in writing, or for the production of documents.

On the mechanics, once a letter of request is issued by a competent court in another jurisdiction, it is then sent to the chief secretary for administration. The actual application to the Court of First Instance is then made on the requesting jurisdiction’s behalf by counsel from the Department of Justice’s International Law Division. Although this procedure may take a little while to complete, there should be no particular difficulty in obtaining what is needed, as the evidence required for Chan’s prosecution appears to be basically documentary in nature.

This procedure, may, however, be unnecessary, if, as Chan has intimated, he intends to acknowledge his guilt when arraigned in Taipei.  

Although the secretary for security has understandable concerns over law enforcers from Taiwan coming to Hong Kong to escort Chan to Taipei, and thereby exercising their jurisdiction here, it should be a simple matter for local officials to facilitate his return, in conjunction with the Anglican priest, Peter Koon Ho-ming, who is advising him.

Of course, as there is, in light of recent developments, no fugitive offender surrender mechanism in place with Taiwan, Hong Kong cannot insist on the legal protections for Chan which would otherwise have been possible. However, Chan acknowledged on his release from prison that he had done “wrong”, and was willing to “surrender myself to Taiwan for sentencing”, and has presumably thought through the consequences. That being so, and provided he does not change his mind, it is now time to let justice take its course.   

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of Hong Kong.


Share this story

CHINA DAILY
HONG KONG NEWS
OPEN
Please click in the upper right corner to open it in your browser !
火牛棋牌首页

709彩票APP官网

欧冠押注首页

九五棋牌下载

KPL押注平台

亚博电竞首页网址

371棋牌游戏中心

KY棋牌app

送彩金棋牌首页

欧冠竞猜平台大厅

棋牌牛牛

七星棋牌

lol博彩app

516棋牌游戏中心官方

万豪棋牌大厅

开元棋牌首页