By Justin Bong-Kwan
The controversial extradition bill is now ‘dead’, but Chief Executive Carrie Lam’s main justification for introducing the Bill remains unresolved.
In February 2018, Hongkonger Chan Tong-kai, 19, allegedly murdered his girlfriend Poon Hiu-wing, 20, during a romantic getaway to Taiwan. Chan returned to Hong Kong alone. Poon’s body was found in the outskirts of Taipei a month later.
As Hong Kong lacks an extradition agreement with Taiwan, Taiwanese authorities have been unable to secure the extradition of Chan to answer for his alleged crime. Had the bill been passed, it would have implemented legislative amendments allowing Hong Kong to extradite suspects to jurisdictions with which the city lacks an extradition agreement, including mainland China.
With anxiety brewing over whether the proposed amendments would open the doors to arbitrary extraditions, the bill’s introduction has caused a considerable public backlash. In its submission to the Legislative Council on June 6th, the Law Society of Hong Kong suggested that the government should put forward proposals specifically targeted at resolving Chan’s case.
More specifically, the Law Society proposed that Hong Kong courts could be granted extra-territorial jurisdiction to try Hong Kong persons accused of committing serious crimes in other jurisdictions. Could this be the solution to the woes of Poon’s family without triggering another constitutional crisis?
While the suggestion of extra-territoriality itself is not impractical, the legislative framework regulating the exercise of extra-territorial jurisdiction by the courts must be carefully thought out and formulated, particularly in the areas of evidence gathering and investigation.
While Hong Kong has been embroiled in the extradition row with Chan’s case at an impasse, another melee 23 years in the making has been causing a stir in France and Ireland. On May 31st, Briton Ian Bailey, 62, was tried and convicted in absentia by a Paris court for the 1996 murder of French filmmaker Sophie Toscan du Plantier in West Cork, Ireland.
The Bailey saga reveals potential hazards that extra-territorial jurisdiction could bring in the absence of comprehensive procedures in support of such jurisdiction.
Under French law, the murder of a French citizen committed in any jurisdiction can be prosecuted in a French court, and French authorities were thus entitled to pursue the prosecution of Bailey in France.
However, the differences between the criminal justice systems of France and Ireland and the seeming absence of appropriate bridging of such differences raise the possibility of a miscarriage of justice. While investigations are conducted by the police in Ireland, investigations in France are supervised directly by public prosecutors.
After assessing the investigation materials compiled by the Irish investigators, the Irish Director of Public Prosecutions took the view that there was insufficient credible evidence to justify a prosecution of Bailey. The same investigation materials were presented unfiltered to an examining French magistrate.
As a result, French legal principles were applied to a quintessentially Irish criminal investigation, and the French magistrate came to a conflicting finding that there was sufficient evidence to warrant prosecution.
Arguably, the French trial court was presented with evidence that was collected without proper oversight, as well as evidence which would have been inadmissible in an Irish court. As Bailey was neither present nor legally represented, the degree to which the evidence and allegations were tested is questionable. A conviction secured under these circumstances can hardly be considered a satisfactory display of justice.
Although granting courts extra-territorial jurisdiction over crimes committed abroad is nothing new, experience from other jurisdictions points to the importance of a scrupulously designed procedural framework to ensure that the fair dispensation of justice is not compromised.
This is especially the case in relation to jurisdictions that have different legal traditions and adopt a disparate approach to matters of criminal justice. Any perceived benefits of broadening the jurisdiction of Hong Kong courts would be diminished if the arrangements to deal with these problems are inadequate.
And that, in turn, would mean that justice would remain out of reach.
Justin Bong-Kwan is a practising barrister and freelance writer based in Hong Kong.
