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  • Writer's pictureDurham Pro Bono Blog

What’s going on in Hong Kong from a criminal law perspective?

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.















The Hong Kong protests started on the 16th of June 2019 and have broken the record for the largest protest in Hong Kong’s history. These protests in reaction to Beijing’s encroachment into Hong Kong’s political and judicial system. Such encroachment is evident in the Chinese legislature’s (the NPCSC) decision in 2014 to subject the election of the Chief Executive in Hong Kong to the initial approval of the Chinese Central People’s government. Democracy in Hong Kong has arguably been stalled for many years and the “two systems one country” framework which promised civic freedoms and a high degree of autonomy to Hong Kong has gradually been undermined. The tension stemming from Beijing’s growing stranglehold over Hong Kong reached its climax when the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 (aka ‘the Extradition Bill’) was introduced in March this year. The Extradition Bill had the potential to subject Hong Kong criminals to the judicial system of China, notorious for its rumoured Human Rights violations. However, since the Bill has been formally withdrawn the citizens of Hong Kong are no longer threatened with the prospect of extradition to face trial on mainland China. Despite this, it is clear that Hong Kong’s legal system remains under threat from mainland China.


The Extradition Bill would have allowed suspected offenders to be extradited to places with which the territory of Hong Kong has no formal extradition agreement, and was perceived as a mechanism for China to target political opponents in Hong Kong. Such a law would be particularly contentious given Hong Kong’s status as a free society with a judicial system motivated to protect the “rights and freedoms” of their citizens.[1] Michael DeGolyer, an academic at the Baptist University of Hong Kong, notes that people in Hong Kong are particularly sensitive to issues involving judicial independence since it guarantees a measure of protection from the government on the mainland. [2]As it stood, the Bill ensured that the Courts in Hong Kong and the Chief Executive have the final say in whether criminals are extradited upon request. However, this provision was felt to be undermined by the fact that the incumbent Chief Executive, Carrie Lam, is widely perceived to have pro-Beijing affiliations and likely to comply with any extradition request from China. Undoubtedly, the protestors’ concerns stemmed not only from the Bill’s threat to judicial independence but also the victimisation of Hong Kong citizens under the injudicious legal system in China. The latter’s judicial system is said to have a near 100% conviction rate and has ranked 82nd out of 126 countries on the world justice project’s rule of law index in 2019.[3]


Hong Kong current status, as a Special Administrative Region (SAR), means that their Basic Law (mini-constitution) legally enshrines Hong Kong’s right to “autonomy” and their “capitalist system and way of life”. This was established as the status quo, intended to prevail for at least 50 years, following the British handover of the territory to China in 1997.[4] However, there is an element of absurdity in the idea that the Chinese one-party state – in which the judicial system is fused with its legislature, with the NPCSC carrying out judicial functions such as the interpretation of the Basic Law – is able to pass statements condemning the work of the Hong Kong judiciary, which prides itself on its English-style judicial independence from the legislative and executive branches of government.



Another recent legal dispute which reveals the developing tensions between the two systems comes in the form of a move to ban the wearing of face-masks by protestors. A recent High Court ruling in Hong Kong declared that the use of Emergency Regulations Ordinance to ban the wearing of face-masks was incompatible with the Basic Law and thus unconstitutional. This ruling was condemned by the NPC. Yan Tanwei, a spokesman for the Legislative Affairs Commission of the Standing Committee of the NPC, reminded Hong Kong that the NPCSC holds the “right to make judgements and decisions” regarding “whether the laws of [Hong Kong] comply with the Basic Law.”[5] This works to undermine Hong Kong’s legal autonomy and throws into light the concern for China’s increasing control over the democratic territory. Following these events there is a pervasive fear that China could issue an interpretation to override the court’s ruling in this case, and thus threaten Hong Kong’s judicial autonomy.

However, as it currently stands there has been a temporary suspension order before the invalidation of the ban takes effect. The court is due to make a further decision on December 10th, thus the anti-mask emergency law has not been set aside decisively. This effectively means that the suspension order has not given the government authority to use the law. However, it is dubious whether the police could still arrest protestors wearing these masks. This creates potential risks of arbitrary arrest and those convicted could face up to one year in jail and a HK$25,000 fine.


Former Chief Justice Andrew Li has reiterated his view that the NPCSC’s power to interpret the Basic Law should be only in exceptional circumstances and Beijing’s statement greatly undermines the “perception of judicial independence in Hong Kong”, further highlighting the pursuits of the pro-democracy protestors and their agitation with China’s influence in the region.[6] To this end, this agitation and desire to gain greater autonomy from China has met some success with the results on the elections to district council seats where pan-democratic candidates won almost 90% of these seats. Ultimately, Beijing has done little to de-escalate the growing violence and has arguably added to the tension by questioning Hong Kong’s judicial right to declare laws invalid, yet clearly Hong Kong as a nation is now fighting back on a democratic level through these elections.


Kate Maier (Criminal Law)


SOURCES

[1] Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, Article 4


[2] Kate Mayberry, ‘Hong Kong’s controversial extradition bill explained’ (Aljazeera, 11 June 2019<https://www.aljazeera.com/news/2019/06/explainer-hong-kong-controversial-extradition-bill-190610101120416.html> accessed 19 November 2019


[3] ibid


[4] Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, Article 5


[5] “China says Hong Kong courts have no power to rule on face mask ban” (CNBC, 18 November 2019) <https://www.cnbc.com/2019/11/19/china-says-hong-kong-courts-have-no-power-to-rule-on-face-mask-ban.html> accessed 28 November


[6] Tony Cheung, William Zheng, Gary Cheung, “‘No other authority has the right to make judgements’: China slams Hong Kong court’s ruling on anti-mask law as unconstitutional” (South China Morning Post, 19 November 2019), <https://www.scmp.com/news/hong-kong/politics/article/3038325/hong-kong-judges-slammed-chinas-top-legislative-body> accessed 25 November

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