A veteran lawmaker has said that the Chief Executive’s rejection of a US request to surrender a fugitive – reportedly at Beijing’s request – may harm confidence in Hong Kong’s governing “One Country, Two Systems” principle.

A report by the US State Department said Hong Kong’s chief executive turned down a US request to surrender a fugitive “at the behest” of the central government last October. It added that Hong Kong released the detainee into Beijing’s custody on the basis that the central government was pursuing a separate criminal action. The report said it was the first time the city has refused a US extradition request since the Handover in 1997.

Democratic Party lawmaker James To told HKFP that there should be a three-step process when the government decides whether to hand over a fugitive. Firstly, the chief executive has the right to decide whether to accept the request. If it is accepted, Hong Kong will arrest the suspect on behalf of the foreign government filing the request.

James To. File Photo: inmediahk.net.

The court will then decide whether the extradition request is approved in the second step. If it is approved, the third step will be a final decision by the chief executive.

To, who is the deputy chair of the legislature’s panel on security, said it was his understanding that Lam rejected the US request in the first step as the case did not go to court.

“If there was a court hearing that approved the extradition, and the chief executive rejected it afterwards, the report would have said so,” he said. “This is a very rare and serious case.”

He said the government should explain the incident, otherwise the public may question whether mainland pressure was involved.

“This will harm the Hong Kong public’s and the international community’s confidence in ‘One Country, Two Systems,’ and will destroy Hong Kong’s credibility in international criminal systems,” To said.

Regina Ip. File Photo: Wikimedia Commons.

New People’s Party lawmaker Regina Ip said Hong Kong can choose to not surrender a Chinese national under some circumstances. Hong Kong can choose not to extradite if China believes that the requested surrender was related to defence, foreign affairs or essential public interest or policy, according to the agreement between Hong Kong and the US.

Ip, who formerly served as secretary for security, said another possibility was that China believes it has jurisdiction over the fugitive’s crime and has started or completed a legal process. In that case, Hong Kong can also choose not to surrender the fugitive, she said.

Macau resident ‘released’

According to a US court document for former Hong Kong home secretary Patrick Ho’s case in New York, the US prosecution said a hacker named Iat Hong – a Macau resident – was arrested in Hong Kong in December 2016. Hong, along with two others, allegedly hacked into two prominent New York-based law firms, gaining almost US$3 million (HK$23.5 million) in illegal profits.

Photo: i-Cable screenshot.

US prosecutors said they pursued a “lengthy, cumbersome” extradition application, which was denied last October, matching the date mentioned by the US report.

Unnamed sources cited by i-Cable news confirmed that Hong’s case was the one mentioned in the report. The sources said Hong does not have Hong Kong residency, and there were no orders from Beijing to hand him over.

The sources added that he was released in Hong Kong – instead of being sent to the mainland – and that Hong’s current whereabouts are unknown.

Legal basis

In response to enquiries, a government spokesman told HKFP: “Since the return to the Motherland, the HKSAR Government has processed all requests for surrender of fugitive offenders (SFO) in strict accordance with the law of the HKSAR and the SFO agreements that it entered into with foreign countries.”

Carrie Lam. Photo: LegCo.

“Over the last 5 years, the HKSAR surrendered 10 fugitive offenders to foreign countries in accordance with the laws of the HKSAR and the relevant SFO agreements. The HKSAR has never surrendered any fugitive offender to other jurisdictions in the absence of legal basis.”

The spokesman declined to disclose details of individual cases, but said the SFO agreement between Hong Kong and the US provides for circumstances where the Hong Kong government may not necessarily process a request according to the other party’s demand, and where surrender may not be granted by the HKSAR Government.

Hua Chunying, spokesperson for the Chinese Foreign Ministry, said on Wednesday that Hong Kong affairs were China’s internal matters and foreign countries had no right to intervene. She expressed strong discontent and opposition of the US report.

Kris Cheng

Kris Cheng is a Hong Kong journalist with an interest in local politics. His work has been featured in Washington Post, Public Radio International, Hong Kong Economic Times and others. He has a BSSc in Sociology from the Chinese University of Hong Kong. Kris is HKFP's Editorial Director.