11.

Interface between two systems

11. Interface between two systems

Need to know:
 Concurrent jurisdiction
 Extradition and rendition
 Mutual judicial assistance
 Enforcement of judgments and arbitral awards
 Juridical relations under Art.95 HKBL
 One country, two legal systems
 The Basic Law of the HKSAR allows Hong Kong to
have a different legal system to the one in
mainland China
 HK court cases do not go on appeal to the
Supreme People’s Court of the PRC. HKSAR retains
the common law, judicial review and judicial
independence.
 There are however, areas in which the two legal
systems meet or overlap.

384
 Concurrent jurisdictions

 Under Art. 19 of HKBL – HKSAR courts meant to have

jurisdiction over all cases in Hong Kong.
 However, this does not mean that HK courts have
exclusive jurisdiction over all cases in the region
 If part of the crime is committed on the mainland, or
either some of the preparations for the crime are
carried out on the mainland or its consequences occur
there, then under the Criminal Law of the People’s
Republic of China 1997, PRC courts will have jurisdiction
over all parts of the crime (including those parts of the
crime which were committed outside the mainland)
385
 Concurrent jurisdictions
Article 6, PRC Criminal Law 1997
“This Law is applicable to anyone who commits a crime within the
territory and territorial waters and space of the People’s Republic
of China, except as otherwise specifically provided by law.
This Law shall also be applicable to anyone who commits a crime
on board a ship or aircraft of the People’s Republic of China.
If a criminal act or its consequence takes place within the territory
or territorial waters or space of the People’s Republic of China,
the crime shall be deemed to have been committed within the
territory or territorial waters of the People’s Republic of China.”
http://english.court.gov.cn/2015-12/01/content_22595464_2.htm
386
 Concurrent jurisdictions
Article 22, PRC Criminal Law 1997
“Preparation for a crime refers to the preparation of the
instruments or the creation of the conditions for a crime.
An offender who prepares for a crime may, in comparison with
one who completes the crime, be given a lighter or mitigated
punishment or be exempted from punishment.”
http://english.court.gov.cn/2015-12/01/content_22595464_3.htm

387
 Concurrent jurisdictions
Article 24, PRC Criminal Procedure Law (2012 Amendment)
“A criminal case shall be under the jurisdiction of the
People's Court in the place where the crime was committed.
If it is more appropriate for the case to be tried by the
People's Court in the place where the defendant resides,
then that court may have jurisdiction over the case.”

http://english.court.gov.cn/2015-07/31/content_21464587_2.htm

 This has been interpreted on the mainland as granting

jurisdiction to the people’s court in any place where any
part of the crime has occurred.
388
 Concurrent jurisdictions
 Part of the offence having been carried out on the
mainland
• As a result of these provisions, there have been several cases
where suspects from HK have been captured on the mainland
and tried in PRC courts for crimes primarily committed in HK,
on the grounds that part of the offence (generally the
preparation for the crime) was carried out on the mainland.
• “Big Spender” Cheung Tze Keung
- The case was tried in October 1998 at the Guangzhou
Intermediate People’s Court for robberies and kidnappings
which took place in Hong Kong, but which were primarily
planned on the mainland (where smuggling of firearms and
explosives in preparation for the crimes took place). 389
 Concurrent jurisdictions
• Luk Yu tea house murder
- The October 2006 trial of five Hong Kong men (together
with three mainland accomplices) in Shenzhen
Intermediate People’s Court for the murder, four years
earlier, of Hong Kong tycoon Harry Lam in the Luk Yu tea
house in Hong Kong’s Central business district.
- It was alleged that the planning for this crime took place
primarily on the mainland, in this case including the hiring
and payment of the contract killer, making the defendants
liable for prosecution for intentional homicide under
Article 232 of the PRC Criminal Law 1997.

390
 Concurrent jurisdictions
 Crimes committed by “Chinese Citizens”
• Even for crimes entirely carried out in HK, the PRC courts
have, on occasion, claimed concurrent jurisdiction to try these
crimes on the grounds of the extra-territorial jurisdiction
afforded to the PRC courts under Article 7 of the PRC
Criminal Law 1997
• Article 7 of the PRC Criminal Law 1997
“This Law is applicable to the citizens of the People's Republic of
China who commit crimes prescribed in this Law outside the
territory of the People's Republic of China; however, they may
not be investigated if for those crimes this Law prescribes a
maximum punishment of fixed‐term imprisonment of not more
than three years. ...”
391
 Concurrent jurisdictions
• Hong Kong courts, like most common law jurisdictions, primarily
follow the territorial principle in exercising jurisdiction over
criminal offences first and foremost on the grounds that they
were committed within the territory, although with the addition
of a number of statutory provisions exercising extra-territorial
jurisdiction over a limited number of specific crimes.
• By contrast, in addition to exercising territorial jurisdiction over
crimes committed within the PRC, the PRC legal system has long
applied the personality principle in seeking to exercise
jurisdiction over crimes committed by its citizens elsewhere in
the world by asserting extraterritorial jurisdiction over the vast
majority of criminal offences.

392
 Concurrent jurisdictions
• Telford Gardens murder
- As a result of the broad extraterritorial jurisdiction of
Article 7 of the PRC Criminal Law 1997, there have also
been cases where suspects who were captured on the
mainland after committing crimes entirely in Hong Kong
were tried in PRC courts for those crimes.
- The best known of these was the March 1999 trial of
mainlander Li Yuhui in Shantou Intermediate People’s
Court for the robbery and murder of five women in
Telford Gardens in Hong Kong, by posing as a fung shui
master and persuading them to drink poisoned “magic
water.”
393
 Concurrent jurisdictions
 Concerns over HK’s autonomy
• The trial of suspects under the PRC Criminal Law 1997
for crimes committed entirely in Hong Kong has caused
particular concern.
• Arguably breaches Article 22(1) of HKBL?
“No department of the Central People’s Government … may
interfere in the affairs which the Hong Kong Special
Administrative Region administers on its own in accordance
with this Law”
• Arguably also breaches Article 18 of HKBL?
- Art.18 of HKBL provides that only the PRC national laws
listed in Annex III of HKBL apply in Hong Kong, but the
PRC Criminal Law 1997 is not listed in Annex III 394
 Concurrent jurisdictions
• Causeway Bay booksellers
- Five Hong Kong booksellers selling books which are
banned on the mainland – disappeared one after another.
All five later reappeared in custody on the mainland and
were investigated for their “illegal business” of delivering
banned books from HK to customers across the border.
- Not committed any crime in HK – but could be in breach of
mainland law by distributing books there.
- Also, mainland authorities claim jurisdiction over Chinese
citizens for offences committed elsewhere, including HK
(even if they have a foreign passport).
- Circumstances of their disappearance and subsequent
detention on the mainland has led to allegations of a
breach of the one country, two systems concept 395
 Extradition – from HK to mainland
 There is currently no formal method for Hong Kong to send
those suspected of having committed crimes on the mainland
back to the mainland to stand trial in the absence of a formal
rendition agreement.
• Despite the lack of a formal rendition agreement, there had
been cases where HK returned fugitive offenders to mainland
– but only because they have broken HK immigration law in
the same way as any other illegal migrant from mainland and
not because of crimes they may have committed.
• E.g. Former mainland student activist Zhou Yongjun was
stopped while trying to enter HK from Macau with a fake
Malaysian passport. After being deported from HK to the
mainland, Zhou was immediately detained by mainland police.
396
 Extraditing suspects overseas

 Before 1 July 1997, HK had extradition arrangements

with at least 45 foreign countries. These did not remain
in force beyond 1 July 1997.
 However, Article 96 HKBL allows the HKSAR to negotiate
its own extradition agreements with foreign countries.
 With the approval of the PRC government through the
Joint Liaison Group, during the 1990s Hong Kong began
negotiating separate extradition agreements with foreign
countries that could remain in force beyond 1 July 1997.
These are known as Surrender of Fugitive Offender
Agreements.
397
 Extraditing suspects overseas

 Fugitive Offenders Ordinance (Cap.503)

• Fugitive Offenders Ordinance (FOO) enacted in April 1997
to serve as a legal basis for the extradition agreements,
which then become law in the form of subsidiary legislation.
• s.5(1) of FOO provides safeguards concerning circumstances
under which a suspect can be extradited from HK (including
prohibition on extradition for political offences).
• s.13(5) of FOO prevents the extradition of any suspect from
HK if there is a risk of him receiving a death sentence.
• s.2 of FOO – the ordinance does not apply to extraditions to
and from “any other part of the People’s Republic of China” 398
 Extraditing suspects overseas
 Safeguards under the Fugitive Offenders Ordinance:
• Double criminality (must be a crime in both jurisdictions)
• Double jeopardy (cannot be tried twice for same crime)
• No surrender for crimes of a political character
• Fair trial
• No surrender if request motivated by political motives
or prejudice (race, religion, nationality)
• Death penalty will not be imposed or carried out
• Specialty – suspect will only be tried for offence for
which he was surrendered 399
Extraditing suspects from mainland to HK
No formal rendition agreement to extradite from mainland
 With no formal rendition agreement, all that exists is an
informal arrangement under which HK authorities provided
information to their mainland counterparts about HK residents
suspected of crimes and believed to have fled to mainland.
 If those suspects were then detained on the mainland,
mainland authorities could choose to expel them as
“unwelcome persons” and notify the HK police in advance,
who would be waiting to arrest them upon their return.
 This informal arrangement was subject to the limitation that it
only applied if the suspect was not also wanted for crimes on
the mainland, or after any legal proceedings against him
(and resulting prison sentences) had been completed. 400
 The extradition bill
 Murder case in Taiwan
• Chan Tong-kai murdered his girlfriend Poon Hiu-wing
(both of being HK permanent residents) while on
holidays in Taiwan in 2018.
• No rendition agreement between HK and Taiwan, hence
could not send Chan to Taiwan for trial for murder.
• Chan eventually prosecuted and sentenced for 29
months for money laundering in HK (released from prison
23 Oct 2019)
• HK government argued the need to amend legislation to
plug loopholes in existing extradition arrangements.
401
 The extradition bill
 Fugitive Offenders and Mutual Legal Assistance in
Criminal Matters Legislation (Amendment) Bill 2019:
• To amend the Fugitive Offenders Ordinance so that it would
allow the transfer of fugitives to jurisdictions with which HK
does not have any extradition agreement – including other
parts of China such as Taiwan, Macau and the mainland.
• To allow for “special surrender arrangements” on a case-
by-case basis
• Initially intended to cover the 46 offences listed in Schedule
1 of the FOO – but 9 ‘white collar crimes’ later removed
• Only indictable offences punishable with imprisonment for
more than 3 years (subsequently amended to 7 years) 402
 The extradition bill
• Safeguards - maintaining the existing FOO safeguards
- Double Criminality (must be a crime in both jurisdictions)
- Double jeopardy (cannot be tried twice for same crime)
- No surrender for crimes of a political character
- No surrender if request motivated by political motives or
prejudice
- Death penalty will not be imposed or carried out
- Speciality – suspect will only be tried for offence for which he
was surrendered
• Government also promised presumption of innocence, fair trial
and other safeguards would take the form of policy statements
but not be written into the bill
• Other safeguards - habeas corpus, bail, appeal, judicial review
403
 The extradition bill
 Response from the Hong Kong Bar Association:
• “the current proposals have significant and wide ranging effects
and potentially undermine the reputation of Hong Kong as a
free and safe city governed by the rule of law.”
• Raised human rights concerns about:
- mainland’s legal system and lack of human rights
protection
- lack of independent judiciary, arbitrary detention, lack
of fair public trial, prison conditions, and lack of right to
access lawyers in China.
• Argued the Taiwan murder case could be dealt with by
restricting the ad-hoc legislation to Taiwan, with one-off
regulation for the case in question 404
 The extradition bill
 The Law Society also urged the government not to rush the
bill and to conduct extensive research and consultation.

 Widespread opposition to the bill:

• Government suspended the bill indefinitely in June 2019
but did not formally withdraw it at the time
• CE Carrie Lam declared the bill “dead” on 9 July 2019
• Protests have continued, calling for it to be withdrawn
• CE announced Sept 2019 that the bill would be withdrawn
• But protests on broader issues continued

405
 Juridical relations under Art.95

 Since 1 July 1997, the guiding principle for

mutual judicial assistance between Hong Kong and
the mainland has been Art.95, HKBL
“The Hong Kong Special Administrative Region may,
through consultations and in accordance with law,
maintain juridical relations with the judicial organs
of other parts of the country, and they may render
assistance to each other”

406
 Juridical relations under Art.95
 Judicial documents
• Arrangement for Mutual Service of Judicial Documents in
Civil and Commercial Proceedings between the Mainland
and Hong Kong Courts – signed on 14 January 1999
- allowed for requests for the service of judicial documents to
be made directly between the High Court of Hong Kong and
High People’s Courts throughout China

407
 Juridical relations under Art.95
 Arbitral awards
• Arrangement Concerning Mutual Enforcement of Arbitral
Awards between the Mainland and the Hong Kong Special
Administrative Region – signed on 21 June 1999
- https://www.doj.gov.hk/eng/topical/pdf/mainlandmutual2e.pdf
• Arrangement Concerning Mutual Assistance in Court-ordered
Interim Measures in Aid of Arbitral Proceedings by the Courts
of the Mainland and of the HKSAR - signed 2 April 2019
- https://gia.info.gov.hk/general/201904/02/P2019040200782_
307637_1_1554256987961.pdf

408
 Juridical relations under Art.95
 Enforcement of judgments
• Arrangement on Reciprocal Recognition and Enforcement of
Judgments in Civil and Commercial Matters by the Courts of the
Mainland and of the Hong Kong Special Administrative Region
Pursuant to Choice of Court Agreements between Parties
Concerned – reached in July 2006.
- implemented in HK through Mainland Judgments (Reciprocal
Enforcement) Ordinance (Cap. 597)
- https://www.doj.gov.hk/eng/mainland/pdf/mainlandrej20060719e.pdf
• Arrangement on Reciprocal Recognition and Enforcement of Civil
Judgments in Matrimonial and Family Cases by the Court of the
Mainland and of the Hong Kong Special Administrative Region –
signed in June 2017 (but not yet in effect)
https://www.doj.gov.hk/eng/public/pdf/2017/family_arrangement.pdf
409
 Juridical relations under Art.95
 Taking of evidence
• Arrangement on Mutual Taking of Evidence in Civil and
Commercial Matters between the Court of the Mainland and
the Hong Kong Special Administrative Region
- https://www.doj.gov.hk/eng/topical/pdf/mainlandmutual4e.pdf
- Signed December 2016, came into effect on 1 March 2017
- Under Article 6 of the agreement, HK courts may request
evidence to be taken on the mainland for use in HK:
- obtaining of statements from parties concerned and
testimonies from witnesses;
- provision of documentary evidence, real evidence, audio-
visual information and electronic data;
- conduct of site examination and authentication 410
 Juridical relations under Art.95

- Under Article 6 of the agreement, mainland courts may

request the taking of evidence in Hong Kong courts:
- examination of witnesses;
- obtaining of documents;
- inspection, photographing, preservation, custody or
detention of any property
- taking of sample of any property or carrying out of any
experiments on any property
- medical examination of any person

411
 Juridical relations under Art.95

‒ Article 7 of the agreement:

“The requested party shall arrange the taking of
evidence in accordance with the provisions of the law
of its jurisdiction.
The requested party may carry out the taking of
evidence in a special manner as requested by the
requesting party, provided that the requested party
considers it is not in breach of the provisions of the
law of its jurisdiction”

412