**Commentary on Kyung Yip Kim v Ministry of Justice of New Zealand and another [2019] NZCA 209 and insights on the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 20191
As a special administrative region of the People’s Republic of China (“PRC“), the relationship between Hong Kong and the PRC in terms of legal systems can be reflected in the “one-country, two systems” arrangement: the PRC legal system is a civil law system, while the Hong Kong legal system is a common law system. The recent proposal by the Hong Kong Government regarding the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 (“the Bill“) has generated extensive controversy over the Bill both in terms of principle and practice.2 The issue of extradition to the PRC for a criminal trial is further elaborated by the recent New Zealand Court of Appeal judgement in Kyung Yip Kim v Ministry of Justice of New Zealand and another [2019]. This case note analyses the New Zealand judgement in light of concerns over extradition to the PRC under the Bill, and argues that there exist legitimate and serious concerns over extradition under the Bill. It will also engage in depth with the observations and recommendations made by the Hong Kong Bar Association (“HKBA“) and the Law Society of Hong Kong (“LSHK“), and discuss two possible legal solutions to the dilemma underlying and generated by the Bill in its current form. In order to offer a sharp and defined focus on the relevant legal issues and principles, the political issues and controversies surrounding the Bill will not be discussed.
Facts and Appellate History
Mr Kim, a citizen of the Republic of Korea, is a permanent resident of New Zealand. In the present case, Chinese authorities state that in 2009, Mr Kim killed a 20-year-old woman in Shanghai; the police is said to have both forensic and circumstantial evidence linking Mr Kim to the homicide. On 25 May 2011, New Zealand received a request from the PRC seeking the extradition of Mr Kim on one count of intentional homicide; that request included an assurance that if convicted, Mr Kim would not be sentenced to death. In the ensuing years since the initial arrest in 2011, Kim has resisted surrender on, inter alia, the grounds that he will be at significant risk in the PRC for torture, extra-judicial killing or the imposition of the death penalty. He claims to have a defence to the homicide charge, but that he will not receive a fair trial if extradited because of systemic and fundamental flaws in the Chinese criminal justice system. He also argues that if convicted, he will be expected to serve a disproportionately severe sentence.
A judicial review action brought by Mr Kim against the Ministry of Justice’s decision to surrender him to PRC authorities in 2015 (“the First MoJ Decision“) was successful before Mallon J,3 and the Minister was redirected to reconsider the extradition request. In particular, it was noted that the fact of Shanghai being the place of the trial should not be given much weight in determining whether to surrender Mr Kim, in light of the limited information upon which that was based.4 Upon reconsidering the case, the Minister decided to agree to the extradition request (“the Second MoJ Decision“). Kim brought a judicial review action against the Second Decision but failed before Mallon J (“the JR Judgement“).5
The present case note concerns the JR Judgement regarding the Second Decision. In particular, it focuses on the third and seventh grounds of appeal, which concern, respectively, the acceptance of assurances in relation to the adequacy of protection for Kim in the PRC and considerations over possible risk of departure from fair trial standards. It is because the two grounds of appeal shed light directly on the issues faced by the Bill in principle and practice. In unpacking judgement, it will also briefly discuss the fourth to sixth grounds of appeal.
The Judgement
A summary on material issues related to concerns over extradition to China from the New Zealand perspective
This section broadly thematises the JR Judgement into two issues: (i) assurance from PRC authorities in relation to torture as adequate to protect Mr Kim on return to the PRC, and (ii) possible risk of departure from fair trial standards justifying refusal of surrender. This allows the case note to shed light directly on the issues and controversies generated by the Bill (to be elaborated in the subsequent sections).
Whether the Minister erred in accepting assurances in relation to torture as adequate to protect Mr Kim on return to the PRC
This mainly concerns the third ground of appeal. To begin with, the Court noted that the risk of torture is a material consideration in reflecting on the adequacy of diplomatic assurances regarding Kim’s trial in China;6 the risk of torture is a significant issue, given that “those who torture, do so outside the law…they take steps to ensure that what they do is not recorded or detected.”7 The Minister did not receive fresh evidence in the period between the First MoJ Decision and the Second MoJ Decision to provide any firmer foundation for the Minister’s conclusion that the location of the trial reduced the risk of torture.8 The Minister has also failed to address adequately the extent as to which the PRC criminal justice system is reliant upon confession in prosecution and conviction.9 The fact that confession is made under formal recording and interrogation is not necessarily reliable and/or legitimate as evidence for trial, since it “does not address the risk of torture occurring when the cameras are not turned on…interrogations in the PRC are selectively recorded, and that notwithstanding rules in connection with recording interrogations, torture does take place outside video surveillance.”10 The evidence reflects that the rule in the PRC criminal justice system that statements obtained by torture will not be admitted in evidence “is not being consistently or successfully implemented.”11 In concluding that the Minister erred in accepting assurances in relation to torture as adequate to protect Mr Kim on return to PRC, the Court held that the Minister has failed to address adequately how the assurances could protect Mr Kim from torture when: “(a) torture is already against the law, yet persists; (b) the practice of torture in the PRC is concealed and its use can be difficult to detect in particular cases; (c) videotapping of interrogations is selective and torture often occurs outside the recorded session; (d) evidence obtained by torture is regularly admitted in court; and (e) there are substantial disincentives for anyone, especially the detained person, reporting the practice of torture.”12
It should be noted, however, that if practices under the criminal justice system are conducted based on existing legal rules and/or principles, the Minister will be entitled to give them greater weight in determining whether to extradite Mr Kim. Under the fourth ground of appeal, the Court stated that given an imposition of the death penalty will be “monitored through trial and sentence,” the Minister was entitled to take it into account in determining the validity of the assurances offered by PRC authorities.13 Furthermore, the different types of potential threats Mr Kim alleges himself to face needs to be considered and assessed separately. Death by organ-harvesting, as pleaded by Mr Kim under the fifth ground of appeal, is to be assessed separately from the risk of torture.14
Whether the Minister erred in considering that there was no risk of departure from fair trial standards justifying refusal of surrender
This mainly concerns the seventh ground of appeal. It would be useful, however, to first note the legal standard adopted by the Court in determining whether Mr Kim’s right to a fair trial would be upheld: “…whether there is a real risk of a departure from the standard such as to deprive the defendant of a key benefit of the right in question.”15 “Real risk” refers to a risk that is real and not merely fanciful, so that it may be established by something less than a fifty-one percent probability.
The Court’s consideration over the risk of departure from fair trial standards justifying refusal or surrender is subdivided into four issue: (i) the nature and operation of the PRC criminal justice system, (ii) a right to a hearing before an independent and public tribunal, (iii) a right to legal representation, and (iv) a right not to be compelled to testify or confess guilt. In relation to issue (i), the court noted that the PRC criminal justice system is “essentially inquisitorial but has incorporated an increasing number of adversarial components”;16 the Supreme People’s Procuracy17 (“SPP“) is responsible to the National People’s Congress (“NPC“) and its Standing Committee (“NPCSC“), which is a legislative body. The SPP is “the state organ for legal supervision, charged with investigating crimes committed by state functionaries…, public prosecutions and supervising the application and enforcement of the law by other legal institutions…”18 Selection of judges in the PRC criminal justice system is based on both merits and political integrity,19 and the political influence in the system “prioritises social policy objectives over individual procedural protections. The lack of independence of the judiciary is systemic…”20
As introduced above, the JR Judgement also identified three rights for the purpose of articulating and assessing the risk of departure from fair trial standards. Firstly, in relation to a right to a hearing before an independent and public tribunal, the Court noted that the system operates in a way which “enables a decision to be made by a body other than the body that heard the case. The procedural rights do not alter the fundamental structure of the system…those procedural rights are largely discretionary and…pale in comparison with the objective of maintaining stability through punishing crime.”21Given the PRC criminal justice system is inherently subject to political control, the assurances provided “cannot reasonably be seen as providing reassurance that Mr Kim’s case will be dealt with in some different way,” and that it was not reasonably open to the Minister to “conclude, on the information before her, that the risk that Mr Kim would not be tried before an independent tribunal was addressed by these assurances.”22 Secondly, in relation to a right to legal representation, after noting that the procedural deficiencies were not adequately addressed in practice,23 the Court stated that right for the defence to apply for disclosure of evidence held by the prosecution helpful to their case is “difficult to exercise when the defence does not know what evidence the prosecution holds and when the grant of the application for disclosure is discretionary.”24 The position of the PRC defence bar also arguably strengthens the criticism that there is a lack of a right to a fair trial under the PRC criminal justice system, since it is not clear whether the defence bar operates in an environment which can secure defendants with the benefit of legal representation.25 It is the norm in the PRC that “witnesses do not appear, and so will not be available for cross-examinations”;26 it is crucial to consider “how the procedural right to examine witnesses operates in practice, and whether there is in substance a right for the accused to examine witnesses.”27 Thirdly, in relation to a right not to be compelled to testify or confess guilt, the Court notes that legal niceties in terms of lack of legal consequences flowing from refusal to answer in interrogation are “very likely to be lost sight of within the human dynamic of an interrogation, especially when they interrogation may extend on and off over a period of months.”28 In the present case, the Minister should “require an assurance that Mr Kim has the opportunity to have a legal representative during interrogation.”29
Analysis of the judgement and a summary of issues on the proposed Bill
The JR Judgement reflects a number of important issues to consider in terms of extraditing an individual to another country to face a criminal trial. First and foremost, it is important to ensure that fundamental human rights enjoyed by the extraditees as recognised in international law30 would be safeguard once he/she is extradited, or that any legally permissible interference with such rights by the recipient State’s authorities can be justified under the relevant domestic and international legal frameworks. The pertinent issue in the present context, however, is that the PRC has not ratified the ICCPR and implements the provision which it has signed in domestic law. It would therefore be difficult for extraditees in the PRC to claim fundamental human rights protections in relation to rights against, inter alia, torture and extra-legal interrogations under the ICCPR.
The risk of torture in the extradition context is problematic as it implies that once the individual is extradited, the extraditing State would lose all practical means of guaranteeing on its own initiative that the individual would not be subjected to torture of any sorts in the recipient State. The extra-legal practice of using torture to obtain evidence further exacerbates the problem, as it would be very difficult if not virtually impossible for the extraditing State to monitor the treatment of the extraditee in the recipient State. Any distinction between (i) any prohibitions against torture as stated in statutory texts and (ii) the actual practice and extent of use of torture as a means of obtaining evidence generates considerable doubts as to any assurances, regardless of its cogency in terms of use of language. In the PRC context, given that a criminal trial “relies extensively on documents, rendering a trial virtually a trial by affidavits,”31 the use of torture in obtaining confessions which are subsequently documented and presented in the actual trial poses grave concerns to the integrity of the pre-trial process of obtaining statements from the accused as a whole.
Before moving on to analyse the contents and effects of the Bill in light of the JR Judgement, the nature of denial of justice resulting from improper and human rights-violating procedures should be briefly noted. Under the sixth ground of appeal on the question of the correct legal standard in determining whether Kim’s right to a fair trial will be upheld, the Court stated that the material concept is “flagrant denial of justice” with jurisprudential roots in the European Convention on Human Rights (“ECHR“). In Othman v United Kingdom,32 the European Court of Human Rights noted that a flagrant denial of justice requires “a breach of the principles of fair trial guaranteed by Article 6 which is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article.”33 While the JR Judgement did not adopt in full the concept as elucidated by the Othman, its suggestion that there needs to be “a real risk of a departure from the standard such as to deprive the defendant of a key benefit of the right in question”34 shows that it is crucial to ensure that any relevant right which an accused may enjoy under international law in the extraditing and/or recipient State can be preserved and manifested.
The JR Judgement suggests that in the context of extradition cases, human rights guarantees and actual practices in the recipient State’s criminal justice system are the most important considerations in ensuring the integrity of any extradition regimes. From the perspective and standpoint of the extraditing State, it would thus be crucial any extradition agreements and decisions to, so far is possible, to ensure that the extraditee will be entitled to similar if not the same degrees of human rights and procedural protections as he/she can enjoy in the extraditing State if he/she is to face a criminal trial therein. It is to these twin issues, together with the particular contexts and concerns relevant to extradition to PRC, that this case note now turns to.
The nature of the agreements to be made under the Bill
The Fugitive Offenders Ordinance (Cap. 503) (“FOO“) currently allows Hong Kong to conclude one-off surrender arrangements for the surrender of fugitive offenders with any place with which it does not already have a reciprocal agreement, to the exclusion of “any other part of the PRC” including Macau, Taiwan, and the Mainland.35 The proposed amendment to the FOO would remove these geographical limitations and permit one-off “special surrender arrangements” to be made between Hong Kong and “any other part of the PRC”, the effect of which is that people living in Hong Kong could be removed to stand trial or serve a criminal sentence in Macau, Taiwan, and the Mainland. A further proposed amendment to the Mutual Legal Assistance in Criminal Matters Ordinance (Cap. 525) would enable Hong Kong authorities to provide assistance in criminal matters to the PRC.
The Hong Kong Government’s justification for the introduction and urgent passing of the Bill was to ensure that Mr Chan Tong-kai, a murder suspect who allegedly killed his pregnant girlfriend Miss Poon Hiu-wing while on holiday in Taiwan in February 2018, could be surrendered to stand trial in Taiwan, despite Hong Kong not having concluded an extradition treaty with Taiwan. The Bill would supposedly plug the “loopholes” in the FOO, with respect to the existing geographical limitations.36
The role of the Chief Executive under the Bill and practical concerns
The Chief Executive (“CE“) plays a predominant role under the Bill, since (s)he decides whether or not to surrender a fugitive offender at three key junctures of the surrender process. First, upon receiving a request for surrender, the CE may issue an authority to proceed, which permits a magistrate to issue a warrant of arrest and bring the fugitive before the court of committal.37 Second, the CE may issue a certificate to initiate a special surrender arrangement.38 Then, assuming the fugitive is committed pursuant to an order of committal and is not discharged, the final decision to make an order for surrender lies solely with the CE, subject to the fugitive bringing a judicial review challenge.39 The CE may refuse surrender based on the general statutory restrictions on surrender40, for instance where the offence is of a political character, or raise other discretionary grounds that are not included in the FOO, such as the fugitive’s mental or physical health.
The Bill raises immediate practical concerns. It is because unlike the twenty agreements for the reciprocal surrender of fugitives to which the FOO applies which were presumably based on sovereign states negotiating agreements on equal terms, there is an asymmetrical relationship between Hong Kong and the PRC. Under the Hong Kong Basic Law, the CE is politically appointed by the Central People’s Government41 and is dually accountable to it and Hong Kong.42 In concluding the proposed one-off agreements with the PRC, it is likely that the CE will not refuse a request for surrender from the Mainland requesting authority, that is the Supreme People’s Procuratorate. This means that the CE is unlikely to exercise his/her discretion in the surrender process, and thus, requiring the CE to issue a certificate is not an adequate safeguard against surrender to the Mainland. If the proposed one-off agreement creates a conflicting interest between the mainland and Hong Kong, it would be up to the CE’s discretion to determine which jurisdiction’s interest(s) should prevail.
The role of courts under the Bill
Conversely, Hong Kong courts play a fairly limited role in reviewing and rejecting a request for surrender: it must only consider whether the evidence produced before it would prima facie constitute a scheduled offence under the FOO, and must not examine the substantive law of the requesting jurisdiction.43 In the proceedings for committal,44 the magistrate cannot inquire into whether the fugitive is in fact guilty of the offence. Rather, the magistrate must issue an order of committal, subject to the fugitive’s right of appeal by way of writ of habeas corpus,45 as long as all due formalities are observed by the requesting jurisdiction and the aforementioned general statutory restrictions on surrender do not apply. Pursuant to the non-inquiry principle, the magistrate also cannot consider the quality of justice that the fugitive may face in the requesting jurisdiction and whether the fugitive’s surrender would be compatible with the Hong Kong Bill of Rights Ordinance (“HKBORO“).
Flags to highlight
The Bill raises several red flags, regarding (i) the lack of justification for its necessity, (ii) the problematic nature of the proposed one-off special surrender agreements and (iii) the ensuing human rights concerns particularly in the context of surrender to the PRC in light of Kim v Ministry of Justice.
First, the need for the Bill has not been satisfactorily addressed by the Hong Kong Government. The rationale underlying the Bill is unclear, since Hong Kong has not faced any major problems with the surrender of fugitives in the last twenty years, despite not having any such arrangements with Macau, Taiwan, and the Mainland. The Hong Kong Government’s reliance on the Taiwan murder case is not at all persuasive, given that not only has Taiwan since indicated that they would not extradite Mr Chan under the one-off arrangements in the proposed Bill, but Taiwan’s Presidential Office subsequently released a statement that “[t]he Hong Kong Government’s use of a [criminal] case involving Taiwan as a pretext to legislate a bill that may violate human rights is irresponsible and lacks a sense of morality”.46 Furthermore, as the HKBA argued in its rebuttal against the Government’s claim of the need to close the “loophole” generated by the lack of extradition agreement between Hong Kong and China, the lack of such arrangement was deliberate. The Government could not put forward any satisfactory change of circumstances in the PRC to explain the necessity of the Bill in the present moment. In light of these developments, even assuming that there is a need for the Bill, there is no convincing reason why the amendment has to be urgent and cannot instead be part of a proper consultation process. There are other alternatives that could effectively remedy the “loophole” problem presented by the Hong Kong Government regarding the Taiwan murder case: for example, s 153P of the Crimes Ordinance (Cap. 200) could be amended to include murder and manslaughter, so that Hong Kong could have extra-territorial jurisdiction over these crimes.
Second, the nature of one-off special surrender arrangements raises issues which the Hong Kong Government may need to examine more closely. Countries usually prefer to conclude a formal reciprocal agreement which secures their interests on a long-term and predictable basis, rather than an ad-hoc one-off arrangement. This is because a one-off arrangement tends to arise with little or no notice, targets only one or a few persons, and lacks the protections of a reciprocal agreement. One-off arrangements are therefore the exception to the rule, and so are only made where there are legitimate reasons why a reciprocal agreement is not in place. Moreover, as evidenced in the analysis of the JR Judgment above, international extradition principles prohibit surrender if an individual will not be accorded with minimum standards of treatment in the requesting jurisdiction. This is important because once a fugitive is surrendered, it is difficult if not impossible to have redress if (s)he is treated in an unacceptable way, especially if (s)he is threatened by the irreversible harm of torture or death in the PRC, as in the case of Mr. Kim. As such, countries will not enter into reciprocal agreements with another if this could result in a breach of human rights, including the right to a fair trial and humane, decent conditions of detention in prison and the protection against torture.47
Last but not least, considering these extradition principles regarding one-off arrangements alongside the JR Judgment above, it is at best doubtful whether people living in Hong Kong surrendered under the proposed one-off arrangements would be guaranteed a minimum standard of treatment where the PRC is the requesting jurisdiction. From the third and seventh grounds of appeal in the JR Judgment, the Court notably acknowledged that human rights abuses and torture are rampant in the PRC, and the PRC criminal justice system is both politically-motivated and compromised and lacks procedural guarantees, and so cannot guarantee the fugitive’s access to justice and a fair trial. This is especially worrying in the present climate, seeing that the Hong Kong public have repeatedly voiced their concerns on the potential for the proposed Bill to be turned into an entrenched mechanism for political persecution and to suppress freedom of speech, in light of the aforementioned fact that the PRC has signed but not ratified the ICCPR, as well as the distinction between the supposed human rights guarantees in the Constitution of the People’s Republic of China48 and procedural protections in the Criminal Procedure Law of the People’s Republic of China 2012, and the actual practices of the PRC as described in the JR Judgment.
Necessary but not necessarily adequate legal solutions
Before delving into the proposed grounds of amendments and review, it should be highlighted that a full adoption of the proposals do not necessarily address the key issue (as identified in the JR Judgement under the third and seventh grounds of appeal) of discrepancy between statutory provisions guaranteeing rights related to a fair trial and the actual practice of neglecting and/or abusing the provisions to the detriment of the accused. That being said, instead of merely insisting on withdrawing the Bill, it would be useful and indeed necessary to consider possible amendments to the Bill should the Government decide to continue pushing the Bill through the Legislative Council.
Law Society of Hong Kong’s proposed reviews49
Although a comprehensive review of Hong Kong’s extradition laws might be required which will undoubtedly take time and require extensive consultation with various stakeholders and the wider community, the LSHK recommends that additional safeguards be added to the proposed one-off special surrender arrangements, if necessary to address urgent requests to surrender fugitives.
With regards to the court’s role, the LSHK submits that Hong Kong courts should have more power to oversee extradition requests. The FOO s 23 currently states that any document in support of extradition can be admitted without further proof,50 and prevents evidence which contradicts the allegations raised by the requesting jurisdiction from being adduced51 except to identify the person being brought before the court.52 The LSHK recommends that the FOO s 23 should be amended to be in line with Part III of the Magistrates Ordinance (Cap. 227), so that the defence can adduce evidence which tests the credibility of prosecution evidence. Not only would this assist the magistrate in deciding whether a prima facie case has been made out for the scheduled offence, but this would also, more importantly, ensure that the defence has the full right to be heard.
Certain rights must be guaranteed to surrendered fugitives, so as to ensure the minimum standard of treatment is safeguarded. The LSHK proposes that the accused Hong Kong person should have the right to dispute and resist the extradition request. In addition, the requesting state should give an undertaking that, if the fugitive is surrendered, (s)he should have rights to proper legal representation and visitation. It should also be made clear that, in the case of the PRC, requests for surrender should not be made on spurious grounds, and certificates issued by the CE to initiate a special surrender arrangement can only be issued pursuant to a formal request made by the Supreme People’s Procuratorate.
Finally, the LSHK submits that the Hong Kong Government should make extradition agreements under the Bill more transparent to the general public. One method to increase transparency would be to require the CE to clearly list out the criteria (s)he has considered in issuing the certificate, including but not limited to the offence not being of a political nature or being a civil dispute. The Hong Kong Government must also increase its efforts to enter into formal reciprocal agreements with jurisdictions presently without such agreements.
An argument from the UK Human Rights Act 1998
In order to ensure that a decision to extradite an individual and the decision’s execution would not be prejudicial against the rights to fair trial and against torture under the ICCPR, it is submitted that insights can be drawn from the Human Rights Act 1998 (“HRA 1998“). Under section 6(1) HRA 1998, it would be unlawful for a public authority to “act in a way which is incompatible with a Convention right”; courts are also categorised as “public authorities” under the HRA.53 By requiring a public authority to act compatibly with an individual’s ECHR right, the Act aims to reduce instances of questionable executive and judicial behaviour.54 It also opens another avenue for appellate courts to review a court’s first-instance decision, by considering whether the court’s decision is compatible with its duty to act compatibly with a Convention right. In terms of the Bill’s context, it is submitted that an amendment to the Bill can consider requiring courts to act compatibly with the rights that individuals are entitled to in the extradition context under the HKBORO.
Having proposed the possibility of drawing insights from the HRA section 6 context, the approach of appellate courts to reviewing first-instance decisions under the HRA should also be briefly discussed.55 Two UK Supreme Court cases are of particular significance here. Firstly, in In re B (A Child), Lord Clarke noted that in the context of a care order under the Children Act 1989, the correct approach is to “treat the exercise as an appellate exercise and not as a fresh determination of necessity or proportionality,” and that an appellate court should not intervene “absent an error of principle.”56 In the Bill’s context, this means that while the magistrate’s decision and judgement to extradite the suspect can be challenged on grounds of alleged incompatibility with the ICCPR, it will enjoy presumptive validity and an error of principle is necessary in order to rebut such presumption. In contrast, Lady Hale’s dissenting judgement requiring the appellate court to conduct a proportionality analysis of the first-instance judgement afresh57 is based on an appellate court’s inherent duty to act compatibly with the ECHR as a public authority under s.6(1) HRA 1998.58 Secondly, in R (on the application of AR) v CC of Greater Manchester Police and another, Lord Carnwath noted that the rejection of the minority view in In re B (A Child) “reflected the general policy consideration that the purpose of the appeal is to enable the reasoning of the lower court to be reviewed and errors corrected, not to provide an opportunity for the parties to reargue the same case.”59 It is necessary for the first-instance decision to be wrong “because of an identifiable flaw in the judge’s reasoning, such as a gap in logic, a lack of consistency, or a failure to take account of some material factor, which undermines the cogency of the conclusion.”60 The UK approach to reviewing lower courts’ first-instance decisions, considering it in the context of the Bill, would suggest that while the magistrate’s decision to extradite would enjoy presumptive validity upon appeal, an identifiable flaw in terms of legal reasoning, consideration of relevant factors and application of legal principles and facts may nevertheless give rise to a successful appeal.
Conclusion
Extradition laws and regimes require not only prudent consideration of the applicable and supporting legal principles underpinning the system, but also giving considerable weight to the actual practices of the recipient State. Kim v Ministry of Justice is a compelling illustration as to the necessity of guaranteeing comprehensive protection of fundamental human rights inherently enjoyed by a suspect in a criminal case. It has also shed light on the controversies over the Bill proposed by the Hong Kong Government, showing that there exists a significant number of legal and practical loopholes in terms of guaranteeing adequate human rights protection and ensuring that actual practices within the PRC criminal justice system are in conformity with the statutory prohibitions against torture. It has also summarised and analysed the observations made by the HKBA and LSHK, and highlighted two principal and pertinent grounds of amendment should the Bill be proposed again in the future.61 While a comprehensive analysis of the JR Judgement and the issues underpinning and generated by the Bill cannot be examined in the limited space of this article, it is clear that any amendments to the Bill must not only seek to limit its applicability, but tackle more fundamental issues over human rights guarantees both in principle and practice.
[1] Many thanks to the anonymous reviewers for their comments and insights, all errors remain on our own. On top of the usual disclaimer, the authors would also like to emphasise that the observations and propositions in this piece should not be construed as reflecting their stances on the necessity, validity and practicality of the Bill.
[2] As of 16 June 2019, the Government has decided to suspend the second reading of the Bill with no timetable for restarting the process: https://www.info.gov.hk/gia/general/201906/16/P2019061600803.htm accessed on 16 June 2019.
[3] [2016] NZHC 1490.
[4] ibid, [84].
[5] [2017] NZHC 2109.
[6] [2019] NZCA 209, [126].
[7] ibid, [132].
[8] ibid, [124].
[9] ibid, [123]. This is an issue rendered further problematic in light of the court’s analysis of rights to a fair trial and legal representation in PRC under the seventh ground of appeal. This is different from another method of assessment common in judicial review cases, known as “proportionality.” The issue of proportionality review is further elaborated in “An argument from UK Human Rights Act 1998” below.
[10] ibid, [134].
[11] ibid, [137].
[12] ibid, [138].
[13] ibid, [154].
[14] ibid, [164]-[165].
[15] ibid, [179].
[16] ibid, [188].
[17] Or “procuratorate,” both meaning the office of a procurator or prosecutor.
[18] (n 6), [190].
[19] ibid, [191].
[20] ibid, [217].
[21] ibid, [219].
[22] ibid, [221].
[23] ibid, [237].
[24] ibid, [238].
[25] ibid, [239].
[26] ibid, [241].
[27] ibid, [242].
[28] ibid, [255].
[29] ibid.
[30] In the present case, this concerns the International Covenant on Civil and Political Rights (“ICCPR”).
[31] (n 6) [241], quoting from Professor Fu Hualing (University of Hong Kong)’s expert opinion.
[32] ECtHR 17 January 2012, app. no. 8139/09. Endorsed by Harkins v United Kingdom ECtHR (GC) 11 January 2017, app. no. 71537/14.
[33] ibid, [260].
[34] (n 15).
[35] Fugitive Offenders Ordinance (Cap. 503), s 2.
[36] Former British Foreign Secretary, Sir Malcom Rifkind stated that the geographical limitation was a deliberate choice to “[erect] a necessary firewall to ensure that Hong Kong’s judicial independence remains intact”: https://www.scmp.com/comment/opinion/article/3012853/there-no-loophole-hong-kongs-current-extradition-law-rather-it accessed on 17 June 2019.
[37] (n 35), s 6(2).
[38] The Bill, s 3A.
[39] (n 35), s 13.
[40] ibid, s 5.
[41] Article 45, Hong Kong Basic Law.
[42] ibid, Article 43.
[43] Robert Henry Cosby v Chief Executive of the HKSAR HCAL 118/1999, [25]. The standard of review is Wednesbury unreasonableness (at [16]).
[44] (n 35), s 10.
[45] ibid, s 12.
[46] http://focustaiwan.tw/news/acs/201906150015.aspx accessed on 17 June 2019.
[47] For example, Australia refused to ratify an extradition treaty with the PRC due to human rights concerns: https://www.scmp.com/news/asia/australasia/article/2082674/australia-shelves-china-extradition-treaty-after-opponents accessed on 17 June 2019.
[48] Constitution of the People’s Republic of China, Chapter II The Fundamental Rights and Duties of Citizens: http://www.npc.gov.cn/englishnpc/Constitution/2007-11/15/content_1372964.htm accessed on 18 June 2019.
[49] https://fr.scribd.com/document/412450921/Law-Society-of-Hong-Kong-submission-over-extradition-bill#download&from_embed accessed on 17 June 2019.
[50] (n 35), s 23(1).
[51] ibid, s 23(4).
[52] ibid, s 23(5).
[53] Respectively, section 6(1) and 6(3)(a) HRA 1998.
[54] Legislative behaviour is not included as “public authority…does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament” (section 6(3) HRA 1998).
[55] The issue of proportionality assessments at appellate courts gives rise to complex legal issues which cannot be realistically and practically dealt with in the present case note. Interested readers may consider consulting the following academic materials: J Rivers, “The Presumption of Proportionality” (2014) 77 (3) Modern Law Review 409-433; C Chan, “Proportionality and Invariable Baseline Intensity of Review” (2013) 33(1) Legal Studies 1-21; C Chan, “Deference, Expertise and Information: Gathering Powers” (2013) 33(4) Legal Studies 598-620.
[56] [2013] UKSC 33, [136].
[57] ibid, [204]-[205].
[58] Whether the majority or minority approach in In re B (A Child) should be the preferable approach under the amended Bill is a question beyond the scope of the present case note.
[59] [2018] UKSC 47, [57].
[60] ibid, [64].
[61] On the HKSAR Government’s decision to suspend the second reading of the Bill, see (n 2) above.
Thomas Yeon
LLB (Durham) ’18, LLM (LSE) ’19, PCLL (HKU)’20 and Public Law Notes Editor of the LSE Law Review Summer Board 2019
Claudia Tam
LLB (HKU) ’19, LLM (LSE) 20′ and Seminars Officer of the LSE Law Review 2019-20