RTHK "Letter to Hong Kong"
by Martin Lee
Broadcast on RTHK Radio 3 on 1 November 1999
There is no crime more worrying to rich people than kidnapping and recently there was a trial in Guangzhou involving the kidnapping of two property tycoons in Hong Kong. It was reported widely in the local press that one family had to pay one billion Hong Kong dollars to get a son released and another family had to pay six hundred million dollars to get a brother released. That is public knowledge, except for the Hong Kong Government.
Because the police received no report whatsoever from either of these two families, when the alleged culprits were apprehended in mainland China these offenders were tried in Guangzhou. We understand that there were altogether thirty-six defendants, eighteen of them being Hong Kong citizens. The trial took nine days, but very little else was known because Hong Kong journalists and reporters were not allowed inside the courtroom. We know that these thirty-six defendants were tried for smuggling of firearms, kidnapping, and some robberies. But nobody knows exactly which defendant faces which counts.
The question that everybody is asking in Hong Kong is why are they not tried in Hong Kong? We understand that the smuggling of firearms took place in mainland China, as well as the robberies. The most sensational crimes of all, the kidnapping counts, relate, of course, to kidnappings here in Hong Kong where the money was paid. When pressed for an answer by the press, senior government officials only gave lame excuses for not taking action. The reason was simple. They said nobody ever made a report to the police. Of course, in the normal case where no report is made to the police, the police would not even know about the crime and therefore could not do anything about it. But in Hong Kong, everybody now knows of these two kidnapping cases involving these property tycoons.
Surely the police should at least be expected to invite these tycoons and their family members to help them. Of course, the police should not ask them to go into the police station. If they don't want to go to the police station the police should go to their houses and interview them, making sure that they were not inconvenienced in any way. Surely with so much money involved, some banking people would have been involved. One can easily think of a number of witnesses who should be interviewed by the police. Of course, if these witnesses choose to be totally uncooperative, then the police can still do nothing and there is still would be no case which could come to a court in Hong Kong. But then the public at least could expect to be told that the property tycoons, for example, and other people were totally uncooperative and the public could judge for themselves.
In the context of One Country, Two Systems, what should be done when a criminal commits an offense in one territory and then runs away to another territory within the same country? This issue was seriously discussed by the Drafting Committee of the Basic Law when I was a member sometime back in 1987.
I remember there were five people who formed a special legal subgroup to discuss this very important issue. On the mainland China side there were two professors of law, Wang Tie-Ya and Wu Jian-Fan, and from the Hong Kong side there were the late Dorothy Liu, Ms. Maria Tam, and myself. We spent two full days in Shenzhen and finally reached consensus. I remember this very clearly because I happened to be the person who broke the good news to the Hong Kong reporters. Our consensus was this: If a person does something in a territory, say Territory A, the question of whether that act constitutes an offense or not is to be exclusively decided by the law of Territory A. If that law says it is not an offense then that person cannot be charged. If the law says it does constitute a criminal offense then that person should be tried by a court of that territory with that law. If at the end of the trial he is acquitted or if he is sentenced to imprisonment and has served it, then he may not be dealt with again by a court of another territory for the same act or offense. And if a person having committed a crime in Territory A then runs away to Territory B within the same country, then he must be brought back to Territory A to be tried. There is nothing unusual about this consensus because it accords with international norms in dealing with extradition matters. There are some important matters that I have left out, the minor details which were very important but we do not have time to discuss them here.
The sad thing is that this consensus was never reduced to writing in the Basic Law because the Chinese officials later on adopted what was a very worrying attitude, saying that all these cases should be dealt with on a case-by-case basis. This means that in some cases Hong Kong would be able to try offenders who committed crimes in Hong Kong and who ran away to mainland China, but in other cases these people would not be sent back to Hong Kong for trial. The Cheung Tze-keung case is exactly such a case. But this is not an isolated case. We know already that there is another murder trial soon to start in Guangzhou involving a fung shu master who allegedly killed three women and two girls in Hong Kong. We know that the trial will take place in Guangzhou. Of course, there will be many more cases in the future.
Hong Kong and mainland China have two totally different legal systems. In Hong Kong we operate under the common law where guilt has to be established by the prosecution beyond a reasonable doubt and the defendant is presumed innocent. But in mainland China, a trial is inquisitorial in nature. In other words, when the judge and assessors come into court they know the defendant is already guilty. Otherwise they would not start the trial. Another big difference is that in mainland China they have and carry out the death penalty while in Hong Kong we don't have the death penalty. Yet another big difference is that all trials in Hong Kong are public and anybody can walk into it, but in China most of them are held in secrecy, as the present case involving Mr. Cheung Tze-keung.
I therefore think that it is high time that the Hong Kong administration take up the matter with their counterparts in mainland China and sit down and write down an arrangement to regulate how to deal with offenders of this nature. I therefore call upon Ms. Elsie Leung, the Secretary for Justice, to immediately start serious and urgent negotiations with the Beijing authorities in order to work out an acceptable arrangement dealing with the rendition of offenders who commit an offense in one territory and who have left for another territory.
The most sensitive issue here, I apprehend, is how we will deal with capital punishment. But there are international norms that govern the situation where the requesting country does have capital punishment but the other country where the offender is staying does not have a death penalty. What normally happens is that the requesting government must give a solemn undertaking to the court that is asked to extradite the offender that, upon conviction, the death penalty will not be carried out. There are other normal rules. For example, the government that requests the return of the offender must also undertake not to try him for any offense other than the one for which he was extradited. All these issues, I suggest, can be sorted out given good will on both sides.
I am sure the Chinese government appreciates the concern of all Hong Kong people over such an important point. I hope the public and the press will give every support to Ms. Leung so that she can accomplish this very difficult task. But until there is an acceptable arrangement governing the rendition of offenders between Hong Kong and mainland China, the One Country, Two Systems cannot be administered.