By Jerome A. Cohen
While we await the outcome of New Zealand’s struggle with its China extradition challenge, here is a message that I recently received from a Taiwanese colleague at my request. Mr. Chan, a HK person, and the alleged murderer of his HK fiancée while they were visiting Taiwan, has been free for almost two years since completing his sentence for money laundering committed in HK by illegally drawing on the bank account of the deceased. Indeed, he even is receiving police protection wherever he goes. Given the evident animus of the victim’s family and friends, he probably needs it.
The statements below – one from John Lee, now HK Chief Secretary but until recently Secretary for Security, made last October and the other from Taiwan’s MAC made in October 2019 – cry out for investigation, update and analysis by journalists and legal scholars. The nub of the problem, as most of us would suspect, is the refusal of the HK government to negotiate ad hoc extradition or a general extradition agreement with a Taiwan government that refuses to recognize the PRC claim that Taiwan is part of China. Thus, Taiwan is denied—or denies itself—the right to punish murder committed in its territory. HK, of course, is denied—or denies itself—the right to punish one of its citizens for murdering another of its citizens outside HK, something that the PRC Central Government would not normally tolerate.
There are some mysterious factual questions as well as complex legal ones. For example, did or does Mr. Chan want to return to Taiwan to face prosecution? If so, why? This strange stalemate should not be ignored or tolerated, as the victim’s mother seeks to remind the HK Government, which, having failed in its effort to use the Chan case as the excuse for seeking the infamous bill that would have authorized extradition/rendition to the Mainland, seems to have other priorities.
Below you can find HK Gov’t’s latest statement and TW gov’t’s latest statement on the Chan Tong-kai case. Chan was prosecuted in Hong Kong for money laundering (committed in Hong Kong—the money he withdrew from the victim/girlfriend Poon's account was proceeds of an indictable offence). Chan was subsequently convicted and sentenced to 29 months' imprisonment. He was release on Oct. 23, 2019.
1. Hong Kong’s latest public statements 2020-10-21
Secretary for Security speaks on the Chan Tong-kai case
Following is the transcript of remarks by the Secretary for Security, Mr John Lee, at a media session after attending the Legislative Council meeting today (October 21):
Reporter: Secretary, first of all, did you personally read mother Poon's letter and your response to her letter because she is appealing to you to do more? Can you just tell her how many times have the Police and your bureau, a Government minister, reached out to Taiwan to proactively try to solve the stalemate? My second question is about the point on police's protection for Chan Tong-kai. Can you explain to mother Poon as well as taxpayers why is he still under police protection in a luxury home when he is supposed to be surrendering himself? You were also explaining earlier that it is up to him to go and apply for his own travel document to go to Taiwan to surrender himself. He is free to go out himself. Why is he not doing that to handle and proactively solve this problem and go to Taiwan? Earlier from your introduction and your explanation, are you blaming the society for opposing the extradition bill that your administration was pushing last year for this stalemate that we have right now, because last time Taiwan already said that it wouldn't accept such kind of extradition even if the bill was passed. Can you clarify on that point as well? Thank you.
Secretary for Security: To answer your last question first, don't put words into my mouth. Society has made its own choice so I will have to somehow accept that choice. In regard to the protection for Chan Tong-kai, the Police of course made an assessment of the threats to his safety. This assessment will be reviewed as the situation needs. I shall leave it to the Police to make assessment of the threat that he may be facing so as to make the decision. But a person under police protection doesn't mean that he cannot do what he wants. He is free to do what he wants and police will accordingly take measures. Chan can, if he chooses to, go to a particular place to further his surrender, he is free to do so. Lastly, regarding what we have been doing to facilitate Chan's surrender, you have to understand that it is facilitation. He has served his sentence, he has not committed any crime in Hong Kong, so there will be no compulsory measures that the Government can take. The decision is his. He has indicated his wish to surrender so what we can do is to facilitate. And if we can do it in accordance with what the law allows us to do, of course we will do it. When the Taiwan side, through the Police working level co-operation channel, asked us to pass on information to Chan, we have expeditiously done that and so informed the Taiwan side. I cannot force the decision on Chan and I cannot force any arrangement on Chan. If Chan has been allowed to go to Taiwan, his indication is made clear to us, then we can do what the law allows us to do.
Reporter: Have you read mother Poon's letter personally?
Secretary for Security: I of course have read her letter many times and I understand her feelings. I want as much as she does to facilitate the surrender of Chan. I sincerely appeal to everyone that we have to understand this case's special circumstances. It has not happened before. It is about a man who has served his sentence, has not committed any offence (in Hong Kong now), and the present laws in Hong Kong do not allow us to do legal assistance with the Taiwan side. We are operating under all these limits. Some of these limits are legal restrictions. While I sincerely try my best, I can't do anything in contravention to the law. I sincerely appeal to anybody to look at this case from this perspective. The key for further action is not the Hong Kong Government; the key for further action is the Taiwan side. Open the door, open the window.
2. MAC Responds to the Hong Kong Government's Statement on Taiwan Homicide Case
MAC Press Release No. 92, Date: October 20, 2019
The Mainland Affairs Council (MAC) issued the following solemn response to the Hong Kong government's statement on Taiwan homicide case:
(1) The Hong Kong government claimed that the decision of the homicide case suspect Chan Tong-kai to surrender himself to Taiwan is purely out of his own free will. However, the timing of the announcement, the background of the person said to have persuaded Chan to surrender, various illogical circumstances, and the consistent rhetoric on the handling of this matter by the Hong Kong government and Mainland media, all together, make abundantly apparent that the surrender was carefully arranged by political powers behind the scenes. It is no wonder that many media channels and individuals suspect that Chan was manipulated to surrender. The Hong Kong government's statement does nothing to dispel these doubts.
(2) Taiwan has long made clear on several occasions that the two sides need to establish a mutual judicial assistance and cooperation mechanism for homicide cases to achieve a fundamental solution. However, the Hong Kong government has not responded to the multiple judicial requests by Taiwan. It also refused to allow the Ministry of Justice and other agencies in Taiwan to jointly participate in communication last November. As for the letters mentioned by the Hong Kong government, Taiwan had clearly replied and stated the hope to focus on mutual legal assistance in this matter. However, the Hong Kong government failed to respond positively. Instead, it only sought to use negotiations between the two sides to act as an endorsement of its amendments to the Fugitive Offenders Ordinance. Therefore, as early as May 2 this year, the MAC stated at a regular press conference that Taiwan would have reservations if negotiations were conducted under the framework of the existing Fugitive Offenders Ordinance. This position was also conveyed to the Hong Kong government on the same day through existing channels. The claim that Taiwan has not responded is entirely at odds with the facts and is intended to mislead the public. MAC expressed the deepest regret for this wrongful claim by the Hong Kong government.
(3) The Hong Kong government stated that should Taiwan raise any request for evidence in processing Chan’s surrender case, it would positively assist in accordance with the law. However, it also said that there is no law that allows Hong Kong to pursue any criminal justice cooperation with Taiwan. With this self-contradictory statement, we would like to ask the Hong Kong government, exactly how does it plan to assist Taiwan? Or whether this is simply another excuse to shirk responsibility?
(4) The defendant and the victim in the homicide case are both Hong Kong residents. A responsible government would do its utmost to bring justice and consolation to the victim's family. However, over the past months, the Hong Kong government has done many things but thinking about how to resolve this matter. It first ignores Taiwan's judicial requests, and then uses this opportunity to promote the widely opposed amendments to the Fugitive Offenders Ordinance. Now it is trying to circumvent its own proper jurisdiction. This exhibits an astonishing level of contempt for the murder of a Hong Kong resident.
(5) The political maneuvers of the Hong Kong government in this case is to fundamentally and methodically underscore that the Hong Kong government lacks jurisdiction over offenses committed by people of Hong Kong outside Hong Kong, but in the Mainland area, must therefore be sent to mainland China for trial. The Hong Kong government tries to use the same logic to bring Taiwan under the so-called "one China" political framework. It emphasizes that Taiwan alone has jurisdiction over the Chan Tong-kai homicide case because it considers Taiwan to be a part of China and consequently Taiwan and Hong Kong cannot hold negotiations on mutual legal assistance. In reality, Hong Kong has signed agreements on "mutual legal assistance in criminal matters" with 30 countries worldwide, including Australia. Why will it not negotiate and sign such an agreement with Taiwan? The MAC believes that such political maneuvers undoubtedly seek to achieve "extradition to China" without the "Extradition to China bill," denigrate Taiwan's sovereignty, and undermine justice and human rights. Taiwan will never accept this, nor will we play along with this shenanigan.
(6) The MAC reiterated that Taiwan will, on the basis of reciprocity, dignity, and mutual benefit, proactively and promptly provide relevant evidence pertaining to the homicide case and cooperate with the Hong Kong government on subsequent prosecution of the murder case if the Hong Kong government so requests. Taiwan also hopes that the Hong Kong government will promptly and pragmatically address our request and together work to ensure justice is served for the victim.