Getting Away with Murder? China and Extradition, Current Case 2—Taiwan

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.

Some Early Thoughts on the New Zealand Extradition Decision

By Jerome A. Cohen

Here is Don Clarke’s excellent analysis of the major New Zealand decision that I called attention to the other day. Don’s essay clarifies several aspects of the inevitably hasty NY Times report that I discussed. Don’s essay should be read together with Michael Caster’s op-ed in Stuff, which also focuses on the extent to which other states can trust the assurances of the PRC in extradition, deportation and other related human rights situations. I just gave a talk on these issues to the American Foreign Lawyers Association in New York and will post the recording as soon as received, so I will only make some brief comments now. I also hope to write something more substantial.

At 150 pages, I would agree that this is probably the most thorough examination of the Chinese legal system that any foreign judicial opinion has discussed. It is painfully meticulous and also useful in presenting the issues as well as much relevant information about international human rights standards. Yet the Court’s opinion is also painfully naïve about the realities of PRC justice, and I would not characterize it as an “unquestionably thorough examination of the Chinese judicial system”. 

Although, as Don points out, the Court spends a great deal of time pondering whether adoption of the PRC trial judges’ recommended decision by their court’s judicial committee composed of court administrators, which did not take part in the trial, should be deemed a denial of a fair trial, the Court fails to analyze the Communist Party’s various controls over the “judicial independence” required by the relevant standard embodied in the International Covenant on Civil and Political Rights (ICCPR). It delicately acknowledges that there may be political influences on the judicial committee. Yet it makes no reference to not only the influence of higher courts transmitting Communist Party instructions but also the instructions of the relatively new government “supervisory commissions” that front for the Part’s discipline and inspection commissions and are more powerful than the courts. Moreover, nothing is said about direct orders to the court from the local Party institutions concerned with “justice,” including the Party Political-Legal Committee and a newer organization that “comprehensively” surveys the situation.

The Court’s treatment of the plight of Chinese criminal defense lawyers and their inability to provide effective representation is also alarmingly incomplete and pathetic.

The issue of PRC assurances to foreign governments in this kind of case is crucial. As Don Clarke and Michael Caster have emphasized, it is very difficult at this point, in light of over a decade of recent experiences, to credit most PRC assurances. Over twenty years ago, in Canada’s Lai Changxing case, I was willing to credit the PRC assurance that he would not be executed. Indeed, in the New Zealand case today, no one challenges the assurance that Mr. Kim will not be executed. In 1999, I was also willing, in the unique circumstances of Lai’s case, to say that it was unlikely that the PRC would  dishonor its pledge not to subject the accused to torture before conviction, although I could not guarantee his protection while serving a life sentence. But I was not asked about the fair trial question. Today, as Don and Michael have indicated, we have had so many additional unfortunate experiences with PRC treaty and other formal assurances that, apart from the death penalty question, I can put no faith in such assurances. This began when, as Yu-jie Chen and I discussed in reporting on the Australian national Stern Hu’s criminal conviction, the PRC threw aside both its consular treaty and its own national legislation with the Foreign Ministry’s airy assertion that “Nothing can interfere with China’s exercise of judicial sovereignty”. Apparently not even commitments made by the PRC in the exercise of that sovereignty!!

A Spanish extradition case that sheds light on Canada's forthcoming Huawei decision

By Jerome A. Cohen

A very good report by Raphael Minder in today’s NY Times about a Madrid court decision rejecting the U.S. request to extradite the former Venezuelan intelligence chief, politician and alleged drug runner Hugo Carvajal. The defense claimed that the U.S. request was made for a spurious purpose, using drugs as an excuse to get its hands on the suspect for political purposes involving U.S. policy towards Venezuela.

Minder correctly points out the relevance of this international precedent to the Meng Wanzhou court battle coming up in Vancouver. Meng’s lawyers must be very happy. Of course, the United States may appeal the Madrid decision. The amount of time that a suspect subject to extradition proceedings is restrained is a disturbing aspect of the process. Carvajal was locked up for six months pending this initial decision. Fortunately, the judge has released him from prison pending appeal but subject to remaining in Spain and biweekly reporting to the government. Carvajal, who sounds like a serious drug offender from the U.S. charges, has a great Reuters family photo in the Times that would support a political campaign back home.

Although Ms. Meng has been quite free and comfortable on high bail from the start of the Vancouver legal process, she has not been free to leave Canada to pursue her business and life. She must work via the Internet and other communications facilities, which presumably are monitored. The Canadian process is moving very deliberately and the final extradition decision remains a long way off. If extradited, she faces another long criminal process in the United States unless a plea agreement is negotiated, perhaps as part of a broader Huawei settlement or an even broader US-PRC trade agreement. But don’t hold your breath!

Why people subject to the possibility of US extradition continue to take the chance of passing through countries that have extradition arrangements with the United States remains a mystery to me, even though avoiding all such countries is a significant inhibition on their travels.

Hong Kong's extradition law: Not just “Hong Kong people” have reason to fear Chinese “justice”!

By Jerome A. Cohen

It’s not only “Hong Kong people” whose fate is at stake here. Anyone passing through Hong Kong airport could be detained and sent to China (compare the Huawei Vancouver extradition case). Even people who have been extradited by a third jurisdiction to Hong Kong could be subject to re-extradition to  China unless some provision is made in the extradition treaty between Hong Kong and the third jurisdiction to prevent that! This bill would undoubtedly lead those democratic countries that have extradition treaties with Hong Kong to either renegotiate them successfully or terminate them.

No criminal justice systems could be more different in practice than those of China and democratic jurisdictions including Hong Kong. Despite Xi Jinping’s occasionally expressed theoretical aspirations to promote a Chinese court system that will achieve justice in every  case, reality is very different in the many cases that, for one reason or other, are regarded as “sensitive” in China.

Actually, Xi keeps reminding the public that the courts are in fact and ought to be under the absolute political control of the Communist Party. The Ministry of Public Security, the Ministry of State Security, the newly-established Supervisory Commissions and many legally unauthorized secret Party, civilian and military units that also detain “suspects” are far more powerful than the courts or even the procuracy (prosecutors) that is supposed to supervise the legality of all government operations.

Some alleged offenders are never brought to trial in China. Think former Party General Secretary Zhao Ziyang, detained without any legal process for the last 16 years of his life!! Many are detained on spurious charges. Think Ai Weiwei, a famous dissident artist who was ostensibly detained on tax charges! How easy it would be for Beijing to conjure up charges that meet the tests of the forthcoming Hong Kong extradition amendments.

Even formal, authorized detention is frequently marked by physical and mental torture that often leads suspects to “confess” on television even before indictment. Suspects and defendants are often denied timely access to any defense counsel  or to defense counsel of their choice, even at trial. Trials in sensitive cases are usually a farce, and appeals either prevented or a meaningless exercise. Detention conditions are often execrable, leading some accused to confess in order to end the formal prosecution process so they can be transferred to the generally better conditions in prisons. Human rights lawyers are frequently disbarred, sent to prison or otherwise neutered.

Not just “Hong Kong people” have reason to fear Chinese “justice”!

My take on Hong Kong's extradition bill

By Jerome A. Cohen

I've just written a commentary on Hong Kong's controversial extradition bill (SCMP link below). Comments are welcome, especially with regard to the solution proposed at the end of the article.

Jerome A. Cohen, If Beijing wants an extradition law with Hong Kong – and elsewhere – it should reform its judicial process, South China Morning Post, May 23, https://www.scmp.com/comment/insight-opinion/article/3011117/if-beijing-wants-extradition-law-hong-kong-and-elsewhere-it. 

“Perhaps the most frightening aspect of the impending amendment is its application, not only to all SAR citizens and foreign and Chinese residents of the SAR, but also to anyone who passes through Hong Kong. ”

Hong Kong, China, “Rendition” and Human Rights

By Jerome A. Cohen

Officials in Hong Kong are now planning to allow “rendition” (the Hong Kong-Mainland equivalent of  international “extradition”) of criminals to China. This would be a major change and a development that concerns Hong Kong’s special human rights protections.

The United States, Canada, the United Kingdom and Australia have not finalized extradition treaties with China largely because of their concerns about the pervasive problems in China’s criminal justice system, including arbitrary detention, torture and other cruel treatment, coerced confessions, political prosecutions, unfair trials and capital punishment, especially for nonviolent crimes. For similar reasons Hong Kong—China’s Special Administrative Region—has not been able to conclude a “rendition” agreement with the PRC Central Government.

Hong Kong’s current plan to finally move towards a full rendition agreement with the Mainland must not violate the human rights protections that it acquired while still a UK colony under the International Covenant on Civil and Political Rights. The PRC promised to honor these protections after the former colony’s return to the Motherland. They include the non-refoulement principle, which requires governments not to expel any person to another territory if this would result in exposing him to the danger of arbitrary deprivation of life, or torture or other cruel, inhuman or degrading treatment or punishment (and other serious violations of human rights, including, notably, expected violations of the right to a fair trial).   

My colleague Yu-Jie Chen and I have written an article on the human rights problems in Taiwan’s cross-strait “repatriation” agreement (also similar to an extradition arrangement but, like “rendition”, applicable to relations between governments of different parts of China) with Mainland China (see Yu-Jie Chen & Jerome Cohen, "China-Taiwan Repatriation of Criminal Suspects: Room for Human Rights?," Hong Kong Law Journal (2018), SSRN link here). The lessons learned from Taiwan’s experience with the Mainland should be of interest to those who are considering whether Hong Kong should strike a“rendition” deal to send fugitives to suffer the fate of those subjected to Mainland justice. Analogies to the protections provided in conventional international extradition treaties also must be considered.

 

What’s going on with Huawei, China, Canada and the US?

I’ve been following the intriguing story about the US effort to extradite from Canada Meng Wanzhou, Huawei’s chief financial officer and the daughter of Huawei’s founder. The case raises many Interesting questions, including why the US Government chose Canada, why it chose to initiate the action at this time, what coordination actually occurred within the USG, how did the Canadian government analyze the situation before acting and what actions will the PRC take other than those already reported.

On the coordination on China policy within the US Government, it remains unclear whether this move is part of a well-thought out, overall carrot/stick policy, a move by hardliners trying to torpedo any possible agreement with the PRC or a move by Justice, Homeland Security and State (and Treasury??) simply to pursue an independent track relating to law enforcement despite its impact on the trade negotiations.

There may well have been poor and thoughtless USG coordination in this case, but at least one report indicated that John Bolton knew this was coming (while another report has said no one who attended the Trump-Xi dinner knew before that occasion). One cannot eliminate at this point the suspicion of mischievous interference with the Sino-American effort to resolve the trade dispute.

Canada’s willingness to make the arrest is also notable and must have been the product of extensive negotiations within the Government and with the U.S. Yet whoever did the final calculations on the Canadian side may now regret that decision because of the increasingly severe damage to Ottawa’s relations with Beijing, although Canada has on a number of occasions stood up against the PRC on international law matters.

What the independent Canadian courts are likely to do with the extradition request may be another matter. Without detailed knowledge of the case presented, prediction is always hazardous but it is unlikely that the request will fail, although some able Canadian lawyers may argue that the matter is “political” rather than legal and therefore inappropriate for extradition. I felt confident that bail would be granted with restrictions on Ms. Meng’s activities since bail was granted to Mr. Lai Changxing of China after he illegally fled to Canada to avoid, at least for many years, being prosecuted in China for being allegedly the greatest smuggler in Chinese history!

What I find attractive in the Canadian Huawei case is the attention it has directed not only to the extraterritorial application of criminal law but also to extradition treaties and relevant domestic legislation, procedures and court adjudication as well as related problems of rendition, deportation, repatriation and ad hoc interstate negotiations that increasingly confront China, the U.S. and others. Hong Kong and Taiwan also struggle with these issues in relation to Beijing.

Of course, the USG might have sought Meng’s extradition from China itself, even in the absence of a US-PRC extradition treaty. It is not necessary for two countries to have a bilateral extradition treaty in order to achieve extradition or a similar result such as through deportation. Informal negotiations often accomplish extradition or the equivalent goal. The US does have an extradition treaty with Hong Kong, where Ms. Meng undoubtedly spends a lot of time, but Beijing would plainly have ordered the Hong Kong Government to deny cooperation, as it did not long ago in a less important case, for the first time in the twenty-year history of  the US-HK agreement.

It is laughable that Global Times should call this lawful, official international process “hooliganism”. The PRC is notorious for real officially-authorized “hooliganism”. And now, in its retaliation against Canadian nationals in China, the PRC is again demonstrating its zest for abusing criminal justice!