Why Australians should be worried about Hong Kong’s new extradition laws

Teargas, rubber bullets and police batons have formed part of the chaotic scenes on the streets of Hong Kong this month as thousands of protesters resist their government's push for extradition laws that would allow suspects to be surrendered to countries, including mainland China, for the first time in Hong Kong's history.

A peaceful protest on June 9 saw one in seven Hongkongers on the streets, including families pushing strollers and elderly people staving off the sweltering heat with handheld fans. But it developed into a series of combative stand-offs after Hong Kong's chief executive Carrie Lam insisted she would press on with the new laws, regardless of the public outcry.

Tensions have been building since changes to extradition laws were first proposed in February. Heated debate between angry pro-democracy legislators and their pro-Beijing counterparts – who have a majority of 43 of 70 seats – erupted into physical argy-bargy in May.

Why are Hongkongers so angry? What do the new laws mean? And how could this affect the 100,000 Australians who live in Hong Kong – or Australians on holiday there or even just transiting through its airport?

What started all of this?

In February, Hong Kong’s secretary for security, John Lee Ka-chiu, released a briefing note to Legislative Council members floating proposed amendments to extradition laws. Since Britain had handed back its colony to China in 1997, there had been “a number of serious crime cases in which the culprits have absconded to other jurisdictions to elude justice”, it said.

While no details of those cases were given, there was one in particular that was pointed to, and which has been invoked repeatedly as a reason for urgent action.

A 20-year-old Hong Kong man who admitted to killing his girlfriend in Taiwan’s capital, Taipei, in 2018, is now in jail in Hong Kong for theft and money laundering – he used his dead girlfriend’s ATM card to pay his debts in Hong Kong – and could be released as early as October. He can be charged over his girlfriend's killing only in the jurisdiction where the alleged act took place: Taiwan.

One of the Hong Kong government's pretexts for wanting a formal extradition agreement with Taiwan, China and other countries so quickly is to facilitate the man’s return to Taiwan (although it is technically possible to request extraditions on an ad hoc basis). For its part, Taiwan, which is self-governing but considered a renegade province by China, does not support the extradition laws.

Another factor is that Hong Kong legislature’s will have its summer recess in July.

Meanwhile, some 300 other “rather important fugitives” from China are hiding out in Hong Kong and could be targeted with the laws, according to former Chinese vice-minister of public security Chen Zhimin, the South China Morning Post has reported. But he did not elaborate on who they were.

What would the new laws change?

The Hong Kong government says the amendments are merely designed to plug “loopholes” and only serious criminals have anything to fear. But lawyers, business people and overseas governments – as well as many everyday Hongkongers – regard the amendments as a threat to human rights and a breach of the 1997 "handover" agreement between Britain and Hong Kong. The agreement, consented to by China, was that while Hong Kong would be a special administrative region of China it would also retain its economic, political and judicial systems until 2047 – “one country, two systems”.

Hong Kong has entered into reciprocal extradition agreements with 20 countries, including Australia, but its Fugitive Offenders Ordinance does not currently allow requests between Hong Kong and the People’s Republic of China. Not only would the proposed amendments enable a nation such as China to request the surrender of a fugitive from Hong Kong but changes to the Mutual Legal Assistance in Criminal Matters Ordinance would allow China to request that an accused’s assets in Hong Kong be frozen and/or seized.

Under the plans, there would be 37 crimes for which people could be extradited including murder, money laundering, corruption and fraud. Nine white-collar crimes, including intellectual property infringements, were dropped after lobbying from the business community.

Hong Kong’s Legislative Council, half of whom are directly democratically elected, would also be bypassed as a first stage in scrutinising extradition requests.

The process would involve Hong Kong’s chief executive requesting the provisional arrest of the fugitive and signing off on their extradition once it was approved by the courts. The accused person could appeal their extradition in the courts.

The current chief executive is Carrie Lam, who was sworn into office by Chinese President Xi Jinping in 2017.

Who would the laws apply to?

Anyone, potentially, including Hong Kong citizens and travellers passing through Hong Kong deemed to have committed a crime referred to in the extradition agreement.

Should Australians be worried?

Australians in Hong Kong have no reason for deep anxiety over the laws, says Australian Richard Cullen, a visiting professor at the faculty of law at Hong Kong University.

He says China would bear the onus of proof to show that an extradition request was not political in nature; and it would be unlikely to attempt a “bait and switch” ­– seeking extradition on one charge then charging the same person with something else in China – because of the damage to its credibility.

But international human rights law expert Simon Henderson says there is real cause for concern.

“Any Australian should be thinking about their risk profile in the region,” he says. “We won’t know the full impact until the law is on the books but it’s the fact you have the law on the books that is problematic in and of itself.

“We don’t know whether any Australians are on a list or are being watched by mainland China because of activities they’ve conducted.

The UK’s foreign secretary is willing to speak up, the US secretary of state is willing to speak up, yet Australia seems comparatively silent.

International human rights law expert Simon Henderson

“You’re in Hong Kong, you’re doing something related to China … We have large law firms, financial services firms – it doesn’t matter if you belong to a big corporate, you could be affected. Look at the Stern Hu case. There were substantial issues with the trial, including lack of clarity on the crimes he committed and the secrecy involved, leading to his imprisonment for several years."

Stern Hu was a Rio Tinto executive who was released from jail in China in 2018 after serving nine years for accepting bribes and stealing trade secrets.

In January, Australian-Chinese writer Yang Hengjun was detained at Shanghai airport and is still being held on allegations he endangered China's national security.

Meanwhile, two Canadian citizens – former diplomat Michael Kovrig and consultant Michael Spavor – have been held in China since December. Their detention came shortly after the chief financial officer of Chinese telco giant Huawei, Meng Wanzhou, was detained in Canada, accused of breaching US sanctions in Iran in her business dealings.

There are wide concerns that requests for extraditions from China on particular crimes could mask political motives.

“Who knows how the [China-Australia] relationship might deteriorate, and whether China will retaliate in seeking the extradition of Australians from Hong Kong,” says Henderson.

“In the past,” says veteran journalist Ching Cheong, “whenever journalists or businessmen arrive back to Hong Kong from the mainland, they immediately get a sense of relief. With this bill in place, their sense of security will not be that certain.”

Ching spent three years in jail in China from 2005 on espionage charges after writing an article that angered Chinese authorities.

While the Hong Kong government has said the new laws simply close a loophole that has existed since the 1997 handover, Ching takes a different view. “The 1997 measure was not a loophole but a deliberate move to shield Hong Kong from China’s notorious malpractice in the legal sector,” he says.

While extradition laws require that the requesting country provide assurances of a fair trial, Henderson cites as causes for concern China’s indiscriminate, indefinite detention measures; lack of a fair trial, concerns regarding torture, and issues with accessing independent legal representation.

On June 11, a New Zealand court temporarily halted the extradition of a man to China on murder charges over concerns about human rights and torture.

What has Australia said?

In response to media questions, a spokesperson for the Department of Foreign Affairs and Trade said, “Australia has a substantial stake in Hong Kong's success, home to our biggest community and largest commercial presence in Asia.

“We are taking a close interest in the proposed amendments to the Fugitive Offenders Ordinance in Hong Kong. The Australian Consul-General in Hong Kong has raised this issue at senior levels [of government, and the Executive and Legislative Councils].

“Given the intense public and international community interest, we hope any amendments are pursued in keeping with due process and consultation, and resolved in a way that maintains confidence in the operation of 'one country, two systems'.”

But Australia's Minister for Foreign Affairs has yet to make a formal public statement on this issue, says Henderson. “The UK’s foreign secretary is willing to speak up, the US secretary of state is willing to speak up, yet Australia comparatively seems silent.”

A plan by the Turnbull government in 2017 would have seen the quiet ratification of an extradition treaty between China and Australia, but it collapsed after opposition from members of the Coalition backbench, Labor and the cross-benchers. They were worried about the human rights problems in China's legal system.

The fact that the Australian government made a serious attempt to pass its own extradition treaty with China might make it more difficult for it to speak strongly on behalf of Hong Kong's dissidents now.

Other countries do not seem so constrained.

The bill "could undermine Hong Kong's autonomy and negatively impact the territory's long-standing protections of human rights, fundamental freedoms and democratic values," State Department spokeswoman Morgan Ortagus said on June 11 in Washington.

In a joint statement on May 30, Britain and Canada expressed concern about “the potential effect of these proposals on the large number of UK and Canadian citizens in Hong Kong, on business confidence and on Hong Kong’s international reputation.”

The European Union Office in Macau and Hong Kong has registered its protest and the United States Congressional-Executive Committee on China requested that the bill be withdrawn, Hong Kong Free Press has reported.

Henderson is also disappointed by the Hong Kong's Australian Chamber of Commerce, which he said “should be speaking up for the rights of Australians in Hong Kong and the Greater Bay Area. Their response contrasts with the US and various Hong Kong chambers of commerce who have expressed concerns privately and publicly.”

(The Greater Bay Area is a development initiative that includes the casino hub of Macau.) Hong Kong's Australian Chamber of Commerce was contacted for comment.

How did Hong Kong get here?

China ceded Hong Kong to Britain in 1842 after it lost the first Opium War. When Britain handed back its “dependent territory” to China  in 1997, it did so with the “one country, two systems” agreement and what's called a Basic Law, which forms the constitution of Hong Kong and which, among other things, sets out the freedoms of its people, including freedoms of the press, assembly and speech.

Now that it's a special administrative region of the People's Republic of China, Hong Kong is midway through its transition period and, while its contribution to China’s GDP has dropped from 30 per cent in 1997 to just 2 per cent today, it is grappling with increasingly alarming threats to its way of life.

These have ranged from the recent jailing of leaders of the pro-democracy Umbrella Movement; to the detention of five Hong Kong booksellers for selling books banned in China; to the refusal of a work visa for a British journalist who hosted a talk by a pro-independence activist.

Germany recently granted political asylum to two young pro-independence activists convicted of rioting in Hong Kong in 2016.

One of them, Ray Wong, described the extradition laws as “the final nail in the coffin" for Hong Kong "because if this law is passed the legal system in Hong Kong will be destroyed. Hong Kong will be just another city in China."

The convenor of the pro-democracy group in Hong Kong's Legislative Council, Claudia Mo, told The Age and The Sydney Morning Herald last week, "We were promised one country, two systems and a high degree of autonomy and they are taking that away, bit by bit, and we’re terrified of becoming just another Chinese city, at the end of the day. We don’t want that because we have thrived on capitalism and universal values such as human rights, democracy and the rule of law.”

One case that caused concern in Hong Kong was that of a Chinese businessman visited by Chinese security officials in his apartment at the Four Seasons Hotel in Hong Kong in 2017 who was "persuaded" to return to the mainland, the South China Morning Post has reported. He is facing trial in Shanghai charged with stock price manipulation and bribery.

The Hong Kong extradition laws, while clearly not necessary to remove someone from Hong Kong, could nevertheless be used to smooth the way, says Mo. “They [China] would want to legitimise it [abduction] so that, very casually and easily, whoever they wanted on the mainland could be sent back. 'It’s perfectly legal,' they would say, 'and nobody should express any doubt about it.'

“They’ve had to conduct these cloak and danger operations,” Mo adds. “Maybe they’re bored of it.”

– with Bloomberg, Reuters

Felicity Lewis travelled to Hong Kong with the assistance of the Judith Neilson Institute for Journalism and Ideas.