I am very grateful to the invitation to participate in today's meeting to have the opportunity to discuss the problem of transferring fugitives from the perspective of rights and responsibilities.

The Security Bureau of the Hong Kong Special Administrative Region Government proposes to amend the regulations on fugitives, aiming to promote effective criminal justice and correct the current situation that cannot be tolerated.This will enable Hong Kong to transfer fugitives to other parts of China and more than 170 countries that have not signed any extradition agreement with Hong Kong.This case -based approach is also used in other judicial jurisdictions, and it is significantly effective in the long -term transfer of fugitive arrangements.In view of the current legal vacuum, many fugitives from other places have been sheltered in Hong Kong, and some come from other parts of China and some come from all over the world.

We know that more than 300 fugitives from other parts of China are currently sheltering in Hong Kong, including at least one murderer suspect, and businessmen who have been found to be corrupted and money laundering.However, due to our weakness, they were able to escape the crime of deserves and failed to face judicial interrogation.No country can tolerate suspects to escape from one place of the country to another place to escape judicial sanctions. In China, the United Kingdom and Russia are the same, let alone the United States, Hong Kong has the responsibility to break the deadlock.Although we cannot determine how many fugitives from all over the world have also come here to evade legal sanctions, the Proposal of the Security Bureau's proposal is expected to make them suddenly realize and realize that their time is.

In the debate of the Security Bureau's repairs, the entire focus focuses on the rights of the suspects, and what measures Hong Kong should take to protect their interests.Although their interests are obviously important, I think there are another factors that must be considered, and it is often ignored.John Middot; John Donne said that no one is an island, and Hong Kong is widely responsible for other places and victims of crimes. These responsibilities cannot be shirk forever or that excuses.Those who think that Hong Kong can escape the responsibility through self -isolation and refusing to help other jurisdictions to hunt down criminal suspects, not to do a good thing at all, let alone doing so will cause trust to collapse.

Responsibility to other jurisdictions

If Hong Kong does not fulfill its responsibility to others, we cannot expect other jurisdictions to continue to assist us.For example, it is estimated that since 2006, the mainland has transferred 248 suspects to Hong Kong for judicial interrogation, which is very helpful for our law enforcement, but Hong Kong has not handed over any fugitives.Obviously, without mutual benefit, this help is likely to stop, and we can only blame ourselves.Hong Kong has a clear responsibility for other jurisdictions. If these responsibilities are ignored, there will be consequences.These responsibilities are obvious and have been reiterated again and again.

For example, the United Nations Model Treaty on Extradition urges all countries to further strengthen international cooperation in criminal judicial aspects.Since 2006, the United Nations, which aims to promote the crackdown on global criminal activities, has applied to Hong Kong. It requires countries to work hard to speed up the extradition procedures and simplify any crime applied to these regulations with any crime in this regulations.Related evidence requirements (Article 16).Similarly, the United Nations Anti -Corruption Convention applied to Hong Kong since 2006 aims to strengthen anti -corruption measures and call for an effective extradition mechanism (Article 14).

In addition, Hong Kong is a member of the International Prosecutor's Association (IAP) and the International Anti -Corruption Agency Federation (IAACA).IAP promoted international cooperation against fugitives, and IAACA promoted anti -corruption work, including arrest suspects.However, a large number of wanted fugitives, even the convicted criminals fled here, is a ironic to our international obligations.The information it emits is that although Hong Kong speaks of a crime, it is not trustworthy. No matter how serious the fugitive crime is, it is willing to provide them with asylum.

In addition, since 1960, the Hong Kong Police Department has been a member of the International Criminal Police Organization (Interpol) and has recently become a branch of the China National Central Bureau.One of the most effective tools for the Interpol is Red Notice, which is a request issued to law enforcement officers in various places, asking them to find and temporarily arrest the wanted fugitives, waiting for extradition or transfer.By arresting fugitives, it helps to ensure that fugitives have nowhere to escape in the world.For example, after the International Interpol Organization issued a red wanted order last year, Zhejiang Province's corruption suspect Yao Jinqi was arrested in the European Union and he was repatriated to China for trial.However, in Hong Kong, the red wanted order system has no effect at all, because if many fugitives are found to hide here, they will neither be extradited nor transfers, which destroys one of the key goals of the Interpol.As a deterrent force of global crime.

It's time to get rid of the negative image

Therefore, Hong Kong not only failed itself, but also disappointed its criminal judicial partners around the world. It is time to let it get rid of the image of a criminal as a Chinese criminal.I firmly believe that after 22 years of return, someone can rob a bank in Beijing, a rape case under Shanghai, or trafficking drugs in Nanjing, and then the situation of sheltering in Hong Kong needs to be corrected.Although some people describe this situation as a firewall, in fact, this is a criminal franchise that destroys effective law enforcement in the country and even other regions.Li Jiachao, director of the Security Bureau, clearly recognized this. The repair suggestion of the Security Bureau provided a wise method that allowed Hong Kong to finally fulfill the responsibility for other jurisdictions.

However, the establishment of a mechanism that can extradite a person is very different from the actual extradition of someone. I hope that people can understand this.For example, the UK signed an extradition agreement with the dictatorship, the failure of the failure, and the civil war, but in fact, it will never extradite someone to that kind of place, and I firmly believe that this is the same.Even if it is not such a country, extradition is not inevitable.For example, Britain signed an extradition treaty with Russia, but in the past 17 years, it rejected 63 of the 67 extradition requests made by Russia.Similarly, the establishment of a mechanism to repatriate fugitives to other parts of China does not mean that as long as requests are made, it will be transferred, because there are many obstacles to overcome.

Article 5 (Article 5) contains internationally recognized suspects' guarantee measures, and Hong Kong's current 20 exports to fugitives also have these measures.Because some people are worried that people may face the risk of extradition due to political reasons, the proposal of the repair emphasizes that the suspect who will not be transferred to the crime of political nature, if it is a political perspective (or race, religion or nationality) based on the wanted person's political viewThe extradition request to give punishment will not be transferred by the wanted criminals.Of course, most crimes do not have political considerations, and under the same conditions, cases such as theft, kidnapping or rape, such as being transfers or fugitives are finally interrogated, should not face any difficulties.However, if the suspect may be discriminated against during the interrogation, or is punished, detention or restricting his personal freedom due to his political views, race, religion or nationality, it will not be handed over.If the fugitive will face the death penalty, if the crimes are not illegal in the two places, if additional accusations may be proposed or the principle of the second instance is violated, the fugitive will not be repatriated.This is a group of strong protection measures. In order to reduce people's concerns, the government has stated that these measures can be supplemented.

Different legal system

In terms of fair interrogation, it should be remembered that there are different legal systems in different places, some are more advanced, and some are less advanced. One judicial area is not always beneficial to judge and other judicial jurisdictions.Of course, different systems develop in different speeds and different ways, but they cannot think that other systems are not credible, or they will not use their judicial procedures to determine guilty or innocent.Although some people are always anxious to slander the legal system of the mainland, as far as improving criminal procedures and justice, the legal system in the mainland is increasingly consistent with our law, which cannot be ignored forever.

Deng Xiaoping, the highest leader of the predecessor, vowed in the 1980s. We must establish a modern legal system for China.Over the past, progressive scholars and jurists have accepted his remarks, and often strive to improve the criminal judicial system when facing strong resistance.I am honored to see many of these reformers and discuss the progress of their progress with them, although they have not hesitated to admit that the legal system still needs to be improved.Unfortunately, most critics actually know very little about the recent improvement of criminal judicialness in mainland China. What's worse, many people are not interested at all, probably because these improvements have affected their preconceived opinions on China's legal system.

However, in March of this year, Zhou Qiang, the director of the Supreme People's Court, said in a 2018 work report that the judicial institutions made two principles in the criminal case last year, that is, no punishment under doubt, and not allowed illegal obtained to obtain illegally obtained.evidence.Of course, this is consistent with the West's attitude towards criminal justice, but this is definitely not a coincidence, because the mainland has studied other legal systems, including our own legal system to make its legal arrangement modernization.Recently, there have been major reforms in the judicialness of the mainland, and maybe the most significant thing is that it is not willing to plead guilty.In the past, the court only paid attention to whether the confession was true, and regardless of the situation of the process of pleading guilty. Under the urging of the reformers, this situation has now changed.In 2012, the National People's Congress made a comprehensive reform of the Criminal Procedure Law. The court must now rule out forced confession, even if the confession is true.In addition, it is interesting that in Hong Kong, the court can only convict the defendant according to the confession. In the mainland, in addition to confession, the court will also find solid evidence to provide additional guarantees for the defendant.As for the standard of proof, mainland judges were asked in time that they must be guilty to convict, which is not far from our own reasonable suspect.

In addition, the authorities now encourage law enforcement officers in the Mainland to record the permitting process in more serious cases, so that judges can see how the confession is obtained during the interrogation.Of course, the original adoption of this approach was the Hong Kong Integrity Office, and then the Hong Kong Police Office also followed, and it has now expanded to the mainland and Macau.In today's common interrogation, the latest changes are that the frequency of witnesses in court testing far exceeds the past, so their testimony can be tested and less dependent on evidence statement.Since the effectiveness of Chinese legal aid regulations in 2003, the Chinese government, like the Hong Kong government, must provide legal aid, and the defendant and victims of crimes lack of funds can use this assistance.

Judicial Democracy

Another interesting development involves people's jurors, and they are not different from Hong Kong jurors.Although the system was initially introduced in the 1950s to allow the public to have the right to speak in the judicial procedure, the People's Jury Law issued in 2018 gave them the right to equal equality with the judge in the trial, unless the law clearly stipulated.This approach is to achieve judicial democracy. Although they are usually sitting in a collegiate panel composed of three people, in more serious cases, they are also eligible to participate in the seven -person collegiate packets that usually consist of three judges and four jurors.Although the jurors cannot vote on legal issues, they can still discuss these issues, and they can vote on the facts of the minority to obey the majority of principles with the judges.By the way, when the critics of the Security Bureau's proposal were asked by the increase in the role of people's jurors in criminal interrogation, and whether they would be guaranteed, their expressions became dull.The ignorance of the actual progress of the mainland's criminal judicial system has triggered so much controversy.

In addition, the judicial level of mainland China has also greatly improved in recent years.Although about 20 years ago, judges have rarely received legal training, this situation has changed. Anyone who wants to be a judge (or prosecutor or lawyer) must pass the difficult national unified legal professional qualification examination.And another judge exam, which greatly improved the judicial level.Among these new judges, prosecutors, and lawyers, many people have also studied laws elsewhere in other places, usually in the United Kingdom, Germany or the United States, as well as in Hong Kong. They are familiar with the concept of criminal judicial concepts in the West, which undoubtedly produces their work.Influence.

Additional guarantee measures

However, after listening to people's concerns, the government agrees wisely that in addition to the mandatory guarantee measures stipulated in the fugitive regulations, additional guarantee measures can also be increased, because the bill allows the government to further restrict the transfer of fugitives.Therefore, the extradition request can be required to transfer the assignment to provide guarantees in accordance with the protection of general human rights, including inconvenient possession, public interrogation, legal representatives, the right to question witness, non -dependence on the testimony of coercion, and appeal rights.In fact, many existing existing fugitives in Hong Kong, including the transfer agreement with Indonesia, Sri Lanka, and the Philippines, have all included that the extradition party is required to be in violation of the obligations of international treaties, and they can refuse to transfer the fugitive protection measures.Essence

Of course, the importance of this is that according to the Basic Law (Article 39), the international convention of citizenship and political rights is applied to Hong Kong, including the guarantee of fair interrogation and the right to appeal.For example, the agreement with Australia has other reasons for refusal to transfer fugitives, including long -term delay after the crime, and humanitarian reasons related to age, health, or personal conditions, and trivial crimes.In addition, in order to reduce people's concerns, through special transfer arrangements, the severity threshold of the crimes that can be transferred will be increased from one year to seven years. Although this is not ideal, it is welcomed by the industrial and commercial community.

As for the role of the Chief Executive, Hong Kong has the same established mechanism as other regions of ordinary law judicial jurisdictions.Once the transfer request is received, the Chief Executive will decide whether to provide additional guarantees based on the case of the case.If these requirements are rejected, the case will end.If the request is met, it usually sends a permit to continue. Of course, unless the transfer order is illegal, or such a decision cannot be actually made.The Chief Executive does not need to decide whether the evidence that the request is sufficient is sufficient, but only to determine whether there is sufficient evidence to prove that the surface evidence of the judge determines the case is conclusive.If the Chief Executive issued a license to continue, this may be challenged by judicial review, which is another guarantee measure.

Once this procedure is started, the judicial censorship begins.If a detention order is issued, prisoners can make challenges by seeking a personal protection order and the right to appeal in the Final Appeal.After the court issued a detention order, the case will be returned to the Chief Executive. The Chief Executive can approve the transfer or refuse to transfer it based on humanitarian reasons.Similarly, the decision approved by the Chief Executive can challenge the judicial review.Therefore, at each stage, the action of the Chief Executive can be reviewed in justice, which is one of the advantages of this system.

Although some people are worried that the central government may instruct the Chief Executive to surrender the suspect, this idea is strange, the most important thing is because they cannot bypass the established legal procedures in this way.It was the court rather than the Chief Executive's decision to issue a detention order. If the suspect was released, the Chief Executive could not order transfer.In any case, I don't believe that the central government will send illegal instructions to the Chief Executive, and the situation should be the opposite.Due to the sensitivity of the case, I believe it will make every effort to ensure that the correct procedure is observed and avoid doing anything that may cause the Chief Executive into a disadvantage.

Give extra effort

Some people suggest that once the fugitive is repatriated, any guarantee may be ignored.However, I think that the mainland courts know that people's interest in cases will actually work harder to ensure that the fugitives can be treated appropriately after the repatriation of the fugitives. There is already a precedent to support this view.After all, the mainland, like other jurisdictions, fully understands that if the fugitive did not get a fair interrogation according to the commitment, it will lose the trust of others and may endanger its future extradition request.

In addition, 55 places have signed an extradition agreement with China, of which about 40 have taken effect.Including nine EU member states, including Bulgaria (Yao Jinqi, who was wanted by corruption), France (Chen Wenhua, who was wanted by corruption), Italy (the wanted Zhang Fatant due to the stolen) and Spain (218 Taiwan telecommunications fraud suspectsAfter two years of judicial procedures, 94 people have just repatriated Beijing last week.) Recently, the fugitives were repatriated to China without any problems, which caused the EU to protectIt is more surprising that public expression concerns are recommended to publicly express concerns.Even without such an agreement, the United States (Yu Zhendong, who was wanted by fraud, Yang Jinjun, who was wanted by bribery, Zhu who was arrested under the red wanted order due to violations of his personal rights), and Canada (Lai Changxing, who was wanted by smuggling, was wanted) Recently repatriated Chinese fugitives, although their future treatment must be guaranteed.In all these situations, China has fulfilled the guarantee that it is required. A fair observers can draw conclusions that the mainland government will treat any fugitives repatriated from Hong Kong.

Generally speaking, the 50 -year unchanged provisions of the Hong Kong capitalist system and lifestyle (Article 5) will end in 2047. No one knows what will happen after that.There is no doubt that some people in Beijing must think that the process of one country, two systems has completed the process and should not continue.However, I think everyone here wants our current arrangements to be maintained after 2047, but if Hong Kong proves that they are a responsible member of the country and are willing to bear the responsibility of cracking down on crimes, this situation may continue to continue this situation.Sex will be much greater.

The author is an honorary professor at the University of Hong Kong and a former Criminal Prosecutor Specialist of the Hong Kong Department of Justice

This article was on the Extraxties and Human Rights on June 11: Does the Hong Kong Government Act provide sufficient guarantee for our rights?Speech of the seminar

Original on June 12th China Daily

Wu Hanjun, Jin Shun Translation