The Long Arm of China's Law
By Martin C.M. Lee
HONG KONG -- Last month the notorious Hong Kong gangster Cheung Tze-keung was executed in Guangzhou, mainland China, after being convicted for a long list of crimes including the kidnappings and ransoming -- in Hong Kong -- of two Hong Kong tycoons. The trial and execution of Cheung -- known here as the "Big Spender" for his spectacular bets at Macau gaming tables -- and another pending mainland prosecution, have ignited a controversy that has far-reaching implications for the future of the rule of law in Hong Kong.
Before Hong Kong's July 1997 return to rule by the People's Republic of China, China made comprehensive commitments in an international agreement known as the Joint Declaration. China promised Hong Kong autonomy in all but defense and foreign affairs. According to the Joint Declaration, Hong Kong's laws and legal system remain in place. Its courts are independent and are supposed to exercise the power of final adjudication. Mainland courts have no jurisdiction in Hong Kong.
Cheung's trial for the kidnappings of two tycoons in Hong Kong ran counter to these guarantees, as well as to Hong Kong's traditions of the rule of law and openness of judicial proceedings. The trial itself was conducted in typical PRC style, closed to the public and press and even to Cheung's Hong Kong lawyer. Not even all the charges were public, although a leaked document disclosed that one Hong Kong defendant was tried solely for acts that had no connection at all to the mainland. Other important information remains unavailable, including the source -- thought by many to be the PRC military -- of Cheung's enormous arsenal of weapons and explosives.
At least Cheung's trial involved some major crimes that took place on the mainland. Li Yuhai, a mainland resident, soon will stand trial in the mainland for fatally poisoning five women during a confidence trick in the Telford Gardens apartment complex in Hong Kong. His case has even less connection to the mainland than the Big Spender case. Nevertheless, the Hong Kong secretary of justice stated erroneously that the Chinese criminal code conferred jurisdiction on mainland courts -- despite the fact that, according to the Joint Declaration and Hong Kong's own Basic Law, China's criminal law does not apply to Hong Kong.
Indeed, the Hong Kong government's role in these cases has caused almost as much concern as the mainland trial. Throughout the proceedings, Hong Kong authorities deferred to the mainland, failing to seek Cheung's return to face charges and failing to send anyone to assist him or challenge defects in the trial.
There is also great concern about the government's pursuit of an agreement on the return of fugitives between Hong Kong and the mainland. Recently, according to a spokesman, Hong Kong government officials held private discussions on such an agreement with PRC officials. To date, however, the government has neither briefed nor invited views from the legal community or the Legislative Council.
The Chinese government treats criticism of the regime as subversion and dissemination of even public information as theft of state secrets. The justice system is characterized by arbitrary arrest and detention, secret trials without legal representation and harsh imprisonment. No agreement, no matter how well drafted, can substitute for systemic improvements in the rule of law in the mainland and the decriminalization of political activity. China's execution of a prisoner extradited from Thailand, reportedly despite an express guarantee not to do so, casts additional doubt on the efficacy of a rendition agreement.
The mainland prosecutions of crimes committed in Hong Kong have sent a shudder through Hong Kong. We remember the case of James Peng, a naturalized Australian citizen born on the mainland. In 1993 Peng resisted the takeover of his company by a relative of a senior Chinese leader. After winning some initial rulings in Chinese courts, Peng was arrested by Chinese agents in the nearby Portuguese colony of Macau, tried and sentenced to 16 years in jail. Understandably, people fear that acts here, such as criticizing Chinese leaders or joining a demonstration or an organization, might subject them to criminal prosecution on the mainland.
At best, the trials of the Big Spender and the Telford Gardens defendant demonstrate the failure of the Hong Kong government to vigorously assert its jurisdiction and protect its prerogatives from mainland encroachment. At worst, these cases reflect a deliberate test by Beijing to see whether it can gradually extend control over any cases it likes in Hong Kong.
The writer is chairman of Hong Kong's Democratic Party and a member of the Legislative Council there.