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. 

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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.

Johannes Chan: Hong Kong University's Chilling Message

By Jerome A. Cohen

Here is the recent news about Johannes Chan’s departure from Hong Kong University. He is a wonderful scholar and long-term, courageous critic of the PRC’s increasing repression in Hong Kong. Before, during, and after his distinguished service as the eminent Hong Kong University Law School’s dean, his published analyses have provided invaluable insights into Beijing’s manipulations of the Joint Declaration, the Basic Law and the former UK colony’s traditional legal system. At 62, he is at the top of his form. Yet the university’s political leaders have now diminished his status to, at best, that of a part-time adjunct lecturer. They previously rejected the formal recommendation that, after his deanship, he would become one of the university’s most prominent administrators. How far the discrimination against him will go is hard to say. Some time ago he was even denied entry into Macao on national security grounds.

Professor Chan would grace the faculty of any law school anywhere and will undoubtedly have opportunities to teach in many common law countries, as many prematurely “retired” HKU professors have done. I have no idea what his plans might be but hope that he will not leave  Hong Kong unless, like some other invaluable human rights advocates there, he believes his personal security is threatened by government prosecution. Hong Kong’s embattled barristers will surely welcome his newly-liberated participation in their efforts to slow the process of dictatorial controls.

Remembering 709: Confronting Today and Tomorrow

By Jerome A. Cohen

Here are the remarks that I delivered at today's event, the 5th China Human Rights Lawyer Day, hosted by several US and Taiwanese organizations. I am honored that I was asked to participate in the program, yet I am sad that I cannot be more encouraging than last year about the prospects for China’s human rights lawyers and other Chinese advocates for political and civil liberties in their country.

Of course, I again want to try to rally China’s beleaguered human rights activists and their many foreign supporters to keep the faith. We must not lessen our support for all those engaged in the great and historic effort to nourish the development of justice, due process, government under law and freedoms of expression in China, even while those of us outside China strive to meet similar challenges in our own societies.

Yet we owe each other and our shared cause the duty of candor. Illusions and self-deception cannot serve us. We are engaged in a long-run struggle. The six years since the start of the tragic 709 crackdown are a mere speck in China’s long history. Even the 70 years since the establishment of the People’s Republic is but a short interval. It is important to note that these most recent seven decades have been marked by major swings in the pendulum of political development. The current Xi Jinping era is especially depressing to those who hope for a democratic dawn or at least a more pluralistic and freer country that offers protection to individual rights. But change will come again, as many of us predicted even during the darkest days of Mao’s Cultural Revolution. I recommend that everyone inside and outside China see the so-called film comedy “THE DEATH OF STALIN”. As the nineteenth century poet Swinburne wrote: “No life lives forever”.

In the interim, what should we be doing?

1. Certainly we should give all the support we can to those who, despite all obstacles, continue to engage in the struggle for the protection of human rights in China. We should continue to let them know that we greatly appreciate the risks and suffering they endure and the contributions that they are managing to make.

2. We need to do much more to inform the world about the true situation of China’s human rights lawyers and the extent to which the PRC’s criminal process serves as totalitarianism’s major weapon of repression and injustice.

3. We must provide full support to those Chinese human rights lawyers who escape from China, and we must benefit from the accurate information and advice that they bring us.

4. We must attempt to persuade UN institutions, other international organizations, foreign governments and legislatures, NGOs, the media, bar associations, law firms, law schools, and individual lawyers, judges, officials, scholars and students to focus on the suppression of China’s human rights lawyers and to maximize pressures to alleviate their persecution. Every day in many fora we have to keep asking questions such as: Is the great lawyer Gao Zhisheng dead or alive? Is the great civic reformer Xu Zhiyong  again suffering torture while imprisoned?

We must not succumb to compassion fatigue. Indeed, if we increase our efforts, perhaps next year’s 709 conference will be convened in a more optimistic atmosphere. 

The link to the video of today's program is here: https://www.youtube.com/watch?v=pJY_WNtPcOs

My latest article on extradition in The Diplomat

By Jerome A. Cohen

Here is an article that I hope will be appreciated by all who are concerned with the administration of justice generally. The issues go beyond extradition, of course. The piece was recently published in two parts by The Diplomat. Part 1 is here; part 2 is here.

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!!

Taiwan is not just a "question"

By Jerome A. Cohen

Here is my appreciation of an interesting message from one of the best-informed observers of cross-strait relations, J. Michael Cole. His message and our subsequent exchange are below.

Taiwan Is More Than a Mere ‘Question': J. Michael Cole for Inside Policy

Time and again in academic works, newspaper articles and public comments, the dispute in the Taiwan Strait, which stems from Beijing’s longstanding claims of sovereignty over Taiwan, has been referred to as the “Taiwan question” or, alternatively, the “Taiwan issue.” Whether by design or intellectual sloppiness, this designation of Taiwan – of Taiwan’s fate, in fact – is reductionist, a construct that presupposes conclusions and frames the complex dispute in ways that benefit China.

By referring to the matter as a “question” or an “issue” (not to mention the occasional use of “Taiwan problem”), Taiwan and its people become dehumanized.

This kind of dehumanization has a long and dangerous history. In Canada, the “Indian Question” and “Indian Problem” were shorthand for discussing the assimilation, territorial conquest of, and cultural erasure of Indigenous peoples, while simultaneously treating these peoples as others who are unimportant in the determination of their own futures. The “Ukraine Question” is often thrown around in the context of the country being supposedly in Russia’s sphere of influence, once again reducing the sovereignty of Ukraine and the self-determination of her own people to a mere rump status. At its most infamous and extreme, references to the “Jewish question” created a special category of people who were both inherently “problematic” and somewhat “less human.” As we now know, such language, which predated National Socialism, opened the door for Hitler and his cronies to launch efforts to annihilate an entire category of people.

In the same vein, the reductionist language downgrades Taiwan and the Taiwanese people to the status of mere objects, a problem that needs to be managed and, ultimately, resolved. A “question” presupposes an unfinished state of existence. It makes an object transitionary. Thus, rather than an entity in itself, Taiwan is a question mark on its way to something else. Such designations already answer half of the question by refusing to concede that Taiwan’s current status can actually be what it is, no more, no less.

This framing is also predicated on the assumption that Beijing has a point: Taiwan – or the “Taiwan question,” to use the Chinese foreign ministry’s own formulation – “is a question left over by the civil war in China, and it is purely China’s internal affair.” Therefore, when we call Taiwan a “question,” we replicate the reductionist language, carefully selected by Beijing in its propaganda, that aims to distort historical facts and make a complete abstraction of the Taiwanese people. Simply put, Beijing’s formulation aims to make the Taiwanese less human, and thereby less worthy of the world’s attention.

It is revealing that the Taiwanese people themselves do not refer to their predicament as a “question” or an “issue.” To them, the “question” was resolved a long time ago, and their status is that of citizens of a country that is both sovereign and democratic, defined both by what it is and what it is not.

Admittedly, that existence is bracketed by another concept – the “status quo” in the Taiwan Strait, which continues to be supported by a majority of Taiwanese. This “status quo,” however, underscores a belief in Taiwan’s de facto sovereignty and is, it must be pointed out, a linguistic sleight of hand meant to reduce the risk that Beijing will seek to annex it by use of force. While a “question” or an “issue” for people on the outside, it is a lived reality for the Taiwanese themselves: it is nothing less than an external threat, the imposition of a value system, ideology, and way of life by an exogenous force. The Taiwanese have answered that question, and they have done so loudly. They do not want it.

If the international community is to find a way to break the impasse in the Taiwan Strait and reduce the likelihood the region will descend into catastrophic war, it is incumbent upon its diplomats and intellectuals to get it right. What this means is the necessity of avoiding a subjective take that reinforces propaganda by the Chinese Communist Party (CCP), dehumanizes Taiwan’s 23.5 million people and reduces them to a question mark.

That isn’t to say that everybody should agree as to how the dispute should be resolved. After all, some analysts, primarily those in the realist school of international relations, will continue to argue that China has a right to its own sphere of influence and that Taiwan, whether it likes it or not, has no choice but to subjugate itself. Whether one agrees or disagrees with such a contention (and this author strongly disagrees), we should nevertheless approach the dispute with moral and intellectual clarity rather than a subjectivism that blurs the contours of the matter.

What this means, concretely, is that the matter should be framed properly: China’s claim over Taiwan, and the actions it has threatened to take to make that goal a reality, isn’t the answer to a question, but is rather a form of colonialism. It is nothing less than the threatened annexation of a territory that the People’s Republic of China has not controlled for a single day of its existence. Some can support Beijing’s aims all they want, but they should have the intellectual honesty to admit that what they are advocating is annexation, one that, furthermore, is being attempted by a deeply autocratic regime against a polity that, over decades of development, has become one of the most successful examples of democratization in modern times.

My Comment on J. Michael Cole

As Cole points out, reductionist terminology has intellectual and political impacts and is a problem that the media and all discussions confront in response to many “questions”. Was it Sartre who published a book entitled “La Question Juive”? We all need short-hand references to various issues. Yet we have to be alert to their potentially dehumanizing consequences. At the beginning of last year, as the Council on Foreign Relations was about to convene a discussion of what is often referred to as “the Xinjiang question,” I felt that there was too little public recognition of the humanity of the Muslims involved. At my request, my wife Joan Lebold Cohen and CFR mounted an exhibition of her splendid photos of Uyghur and Kazakh people in Xinjiang as reminders to all who approached the Council’s main meeting room that we were discussing the fate of human beings, not abstractions or statistics. Yet we still need short-hand references. What suggestions seem best for discussions of Taiwan’s continuing security?

J. Michael Cole’s Response

Jean-Paul Sartre indeed wrote on the subject, in a book titled Réflexions sur la question juive. Marx also had a book titled On the Jewish Question (Zur Judenfrage). How I wish I could have attended that exhibit at CFR! I won't pretend to know what the optimal formulation would, or should, be to characterize the "situation" in the Taiwan Strait. Perhaps this is an occasion for all of us to put our minds together and come up with a few, which we could then synchronize in our respective writings as an attempt to counter the longstanding use of the "Taiwan question" (which popped up again in recent articles in Xinhua and by Michael Swaine). In my own writing and interviews, I use language that emphasizes that this is a conflict; Chinese claims to/over, or annexation designs on, Taiwan.

My Review of The Last Kings of Shanghai

By Jerome A. Cohen

In reciprocation for Winston Lord’s well-warranted, enthusiastic endorsement of Orville Schell’s new novel My Old Home, I write to alert those who have not yet seen Jonathan Kaufman’s book, The Last Kings of Shanghai. Although non-fiction, it is sometimes hard to keep this in mind as he unfolds in highly readable style an extraordinary, complex and fascinating story that covers the whole era of modern China in an even broader compass than the book’s title suggests.  I was eager to see it because of my friendship with the Kadoories and my ignorance of the frequently-touted Sassoons who preceded and overlapped with them in many ways. I was also interested generally in the Jewish angle in the China story. Kaufman gives us much more. His research goes far beyond what even he could accomplish when formerly a distinguished Pulitzer Prize-winning journalist covering China as well as other subjects, and his interpretations and analysis have contemporary ramifications. The encomiums in the jacket blurbs are all entirely credible. 

I say all this despite the fact that Kaufman apparently made no effort to interview me among the horde of relevant witnesses still alive whom he did pursue. Lawrence and Muriel Kadoorie welcomed my family to Hong Kong in the fall of 1963, and they treated us warmly.   Kaufman actually provides evidence of this at page 226 when he anonymously quotes my six-year-old son Peter who, on ringing the doorbell of the Kadoorie country mansion for the first time, shouted: “Hey, what is this? A hotel?” The author must have gleaned this from an article I had published in the Hong Kong Law Journal. Oddly, it is not mentioned in the book’s helpful Notes. Twenty years later Lawrence Kadoorie retained me as the chief lawyer for negotiating the complex Daya Bay nuclear power  joint venture, which was then by far the largest foreign investment in China and probably the most controversial. As Kaufman points out, this imaginative project was the centerpiece of the Kadoorie family’s many contributions to Hong Kong –China relations and the development of China.    

I always urged Lawrence to write his memoirs. He was a great story-teller but steadfastly resisted, citing his belief that one should never look back, even in his eighties.   He wanted to live forever and was convinced that he had to keep driving up Hong Kong’s steep hills into the future, whatever the risks to himself and his passengers!  Fortunately, he need not have been concerned about the past, since Kaufman has given us a remarkably balanced, sophisticated account of Lawrence’s challenges and achievements, more credible than any personal self-assessment might have been. I also appreciated the book’s positive rendering of the many often underestimated accomplishments of Lawrence’s younger brother, whom we all called “Uncle Horace”.  Thanks to Horace, the family did a lot not only for China’s industrial progress but also its agriculture.

But don’t neglect the Sassoons. Their story is eye-popping in many ways that others can still testify to.                                         

Margaret Ng's Statement at Conclusion of Today's Trial

Margaret Ng’s wonderful statement, made under enormous pressure, deserves the broadest distribution and will be a powerful indictment of the Communist application of law in Hong Kong. I don’t know whether the Judge’s reasoning in granting her, Martin Lee, and Albert Ho suspended sentences was in recognition of their distinguished careers dedicated to political freedom and the rule of law or whether it was on the ground of age, other factors, or a combination. There were also slight sentencing differences in each case. Martin, by far the oldest, drew a month less than others.

Margaret embodies the best combination of training in journalism initially, and then law and philosophy, followed by a lifetime of application of these skills in the political-legal trenches of Hong Kong warfare. She has been an invaluable player. My mind goes back to over forty years ago to the lunch we had when she asked whether it was wise to add the study of law to her repertoire. She would have been a force without it, but legal skills enhanced her capacity, as we witnessed today. Ironically, after the early Court of Final Appeal decision in the groundbreaking post-Handover Ng Ka Ling case, when she was given the relatively rare opportunity for foreigners to testify in Washington before the Senate Committee on Foreign Relations, I think I annoyed her by taking a different view of the wisdom of the CFA’s decision. But her arguments were well-made and persuaded many, I believe.

What now needs to be confirmed by experts in Hong Kong criminal justice is the set of restrictions under which people serve the term of their suspended sentence. What types of conduct can result in termination of suspension and imposition of imprisonment? Will Margaret, Martin, Albert and others continue to be free to fully express their views and to meet anyone they wish to? I assume this is a question of traditional Hong Kong law, since these prosecutions were not brought – they could not be because the events occurred in 2019 – under the National Security Law. Yet, we have seen that NSL policy regarding denial of bail was cited by a Hong Kong court in a case that was prosecuted under traditional HK law. Have the suspended sentence rules regarding conduct been altered? What are they?

Not an April Fool's Joke: Decision on the Nine HK Leaders Released

By Jerome A. Cohen 

Here at last is the decision in the long-awaited prosecution of the 9 prominent HK democratic leaders for their participation in the August 18, 2019 protest against the proposed extradition/rendition law. 89 pages to wade through, but an apparently reasoned opinion by Judge Amanda Woodcock. Unlike some of her colleagues handling earlier cases, she may emerge from this with added prestige from handling a controversial case in a responsible way, even though the outcome is politically disappointing to many of us. As the wife of KH Leung, always the most demonstrative of the protesters, said: “It was expected.”

There are many questions about the case, at least in my mind, and I hope that closer observers of Hong Kong justice will aid our understanding. I have never understood why Mr. Au and YC Leung pleaded guilty while the other 7 decided to go to trial. Perhaps Au wanted to take responsibility for leading the march and thereby relieve the others from guilt. YC Leung, a moderate, may have hoped for a lenient sentence by not contesting the charges. But breaking with the other 7 seemed puzzling. The judge did continue to grant him bail, together with most of the others, pending completion of the mitigation hearing that will give them a chance to obtain lenient sentences on April 16.

The maximum sentence will be five years, which no one will receive, I believe. But sentencing will challenge the judge to distinguish among varied cases. One pro-Beijing supporter has voiced support for giving Jimmy Lai a life sentence, impossible in this case but not at all impossible, given his age and the accumulated prosecutions to which he is being subjected.

The granting of bail between now and April 16 was certainly the right choice. But it makes one wonder why Joshua Wong and Agnes Chow were not also granted bail before their mitigation hearings in a previous, similar case. The court this time wisely rejected bail denial but did amend the terms to prevent legal fleeing of the jurisdiction.

It is notable that Paul Harris, the new president of the Bar Association who is under vicious attack from Beijing forces, represented YC Leung and managed to get in a plea for leniency before the mitigation hearing was postponed until April 16. I do not know who is representing Martin Lee, Jimmy Lai, Margaret NG, Albert Ho and the others. It will be interesting to see the arguments made on behalf of leniency for each of them, given differing circumstances. Martin Lee is 82. I think he deserves a suspended sentence of some sort, and not only because of age. Albert Ho is also a respected friend and distinguished civil rights campaigner, as is Margaret Ng, not to mention the other ex-legislators. These lawyers will also face collateral non-criminal sanctions that often follow criminal conviction.

I wonder how they will deal with prospects for appealing the convictions. Appeal is unlikely to be successful in view of a previous decision of the Court of Final Appeal, but the defense has access to able counsel, and appeal, while very expensive for the defendants, may give them further time to be free on bail and to mobilize further public support.  The constitutional questions involved may benefit from updated consideration by the CFA, although prospects for modification or reversal in the current political climate seem grim.

The PRC's Trial of Michael Spavor

By Jerome A. Cohen

I have been trying to follow PRC justice for over sixty years but am genuinely puzzled by the brief report I have seen on today’s “trial”. After a closed hearing of merely two-hours in Dandong, the court released a statement saying that the judgment would be announced at a later date. What is the PRC up to? Do its leaders realize what a self-inflicted wound this amounts to?

After arbitrarily holding Spavor and Michael Kovrig incommunicado for over two years as diplomatic hostages, the PRC brings them to trial at precisely the time PRC and US leaders are meeting nearby amid world publicity, and the PRC is increasingly being accused of crimes against humanity and genocide in Xinjiang and the violation of the Sino-British Joint Declaration on Hong Kong. Nevertheless, the PRC conducts the Spavor trial in circumstances that are sure to subject the PRC to ridicule by all democratic nations.

A two-hour trial with important international implications conducted in a total news blackout? No foreign journalists, diplomats or other outsiders permitted to watch? The Canadian consul excluded from the hearing in violation of the PRC-Canada Consular Agreement? Were there defense lawyers? An indictment? Witnesses? For the defense? Did Spavor have an interpreter? An opportunity to speak? To question witnesses? How did he plead? What is his mental and physical condition after his long pre-trial ordeal? When will the verdict be announced and the sentence? Does this depend on the outcome of the endless Canadian extradition case? Will the accused be allowed to appeal or possibly encouraged to do so in order to extend the proceedings until the extradition of Ms. Meng is decided?

Is the handling of this case designed to demonstrate that China has stood up to the world judicially in a blatant exercise of a newly empowered “sovereignty” that rejects conventional contemporary standards? What can its leaders be thinking? Are we back to the days of Chinese-Western conflicts over Imperial China’s criminal prosecutions of Western sailors at the end of the 18th century and early 19th century?

"Trial-Centered Justice" in PRC Political Prosecutions

By Jerome A. Cohen

It is not surprising that, after more than two years of holding the two Michaels in incommunicado detention, the PRC, under increasing international pressures about these cases, has decided to bring the accused to trial.

Yet there is more to the question of timing of the trials.  Ms. Meng’s Canadian extradition case, to which the prosecutions of the Michaels are linked, is finally moving toward a preliminary outcome. Moreover, behind the scenes, there have been some as yet unsuccessful attempts to negotiate a trilateral compromise among the US, the PRC and Canada that could terminate this excruciating extradition/criminal justice/hostage diplomacy dilemma. And it is unclear what policies the US and the PRC will want to pursue toward each other following today’s first meeting of the highest foreign policy officials of the two superpowers in Anchorage. 

Concluding the trials of the two Michaels now will maximize the PRC’s flexibility for responding to the needs of the current situation, whatever is deemed to be the desirable reaction.

Contrary to what some observers have recently opined, the forthcoming conviction and sentencing of the two Michaels, rather than terminating prospects for their release, can, in light of practice, be interpreted as possibly preparing the grounds for their release.

The PRC is more likely to release them after vindicating its judicial sovereignty by convicting them than by interrupting the judicial process prior to conviction. The defendants may receive harsh sentences, such as ten years in prison, but they will also be sentenced to deportation to be carried out at the conclusion of their imprisonment. This will not preclude the possibility of prematurely terminating their prison sentences  and carrying out deportation soon after sentencing has been imposed, for example on the ground of medical necessity due to serious health problems.

I have been involved in extracting prisoners from China via this technique. In one case, involving a Chinese permanent resident of the United States, Ms. GAO Zhan, there was a deal made between the US and the PRC before trial that within days of her sentencing to heavy punishment she would be released on medical grounds. After an anxious 48-hour wait, she was deported despite having also been sentenced to ten years behind bars.

Also worth noting is the issue of whether a Canadian consular official will be allowed to attend the trials even if they are declared to be closed to the public because state secrets are said to  be involved. The bilateral PRC-Canada Consular Agreement clearly authorizes such attendance in all prosecutions. This agreement is even clearer in this respect than the PRC-Australia Consular Agreement that the PRC failed to honor in the Stern Hu-Rio Tinto case of many years ago. I published an op-ed  together with Yu-jie Chen criticizing the PRC’s conduct in that case regarding this issue, and the PRC never sought to repudiate our condemnation.

Also of great interest in the cases of the Michaels will be their legal representation. Will they be defended by Chinese counsel of their own choice? Will counsel have been given meaningful opportunities to prepare their defenses? To present their cases, cross-examine prosecution witnesses, introduce their own witnesses and offer concluding arguments?

At least we learned something from Bo Xilai’s public trial, however truncated it was. I doubt that the Communist Party will stage a similar show for these cases.

What are the implications of China's lawsuit against Adrian Zenz?

By Jerome A. Cohen

U.S-based academic Adrian Zenz

Here is a recent article by Eva Dou on a lawsuit against U.S.-based academic Adrian Zenz for his work on exposing human rights abuses in Xinjiang. I assume this is a civil lawsuit for defamation. It is probably an effort to reinforce propaganda throughout the country to convince the Chinese people that foreign stories about Xinjiang are demonstrably false. Defamation can also be a crime in China. Zenz has nothing to worry about as long as he does not set foot in China, unless some effort is made to enforce a PRC judgment in the courts of a country where he resides or has assets, which could be the United States, Germany or elsewhere. In such case, he might well benefit from the pro bono services of local lawyers who oppose this form of PRC oppression. Otherwise, legal defense fees could prove costly even if, as I assume, he defeats the attempt at enforcement of the foreign judgment and the court does not require the plaintiffs to reimburse his fees.

Similarly, Singapore’s Prime Minister Lee Kuan Yew made good use of defamation suits to crush local political opponents by persuading his courts to award huge damage verdicts against the opponents. They would also have to pay court costs and lawyers’ fees, perhaps even for the lawyers who sued them! The defendants had no place to hide.

Perhaps Zenz should contemplate bringing suit outside China against the Chinese companies who seek to harass him in China if they have a presence in relevant jurisdictions. He can probably find lawyers to help him pro bono, and this would not only cause the companies to incur expense but also harm their reputations in markets of importance.

Bail Decisions Must Give Reasons

By Jerome A. Cohen

Here is a report on the outcome of the three days of most recent bail hearings involving the HK 47. Only 11 have been granted bail. Because of the unfairly restrictive HK rules against media reporting and commenting, we know little about the crucial details.

Why have some been granted bail and most others denied? In democratic systems judicial decisions must be based on reasons. Presumably the judge will give her reasons in a written opinion to be delivered in a few days. One hopes her opinion will really do so rather than merely list factors to be considered and then simply announce the individual decisions without explaining why the application of the various factors has led to the various outcomes. 

Moreover, why did the Government give up its opposition to bail for four of the suspects? That would be very important to know for purposes of dealing with the many other cases.

Note that those granted bail “are banned from making any speech or committing any act that MAY BE SEEN as breaching the security legislation”. “May be seen”? By whom? Police or prosecutors? Eventually the courts? The NSL is so expansive and hopelessly vague that this is an impossible standard. Moreover, does this restriction include not only “subversion” and all other possible violations of the NSL but also possible violations of Hong Kong’s pre-NSL security legislation ban such as that on “sedition”?

The result thus far in this most recent NSL prosecution is that 36 democratic activists will continue to be imprisoned for many months and perhaps years while awaiting the conclusion of their cases, even though it is quite possible, if HK judges and defense lawyers can maintain their independence, that they will eventually be acquitted! Moreover, all those who have been granted bail have been silenced and neutered for this entire period even though they too may be acquitted. 

Is it any wonder that those Hong Kongers opposed to the NSL who have not yet been prosecuted have in many – not all – cases been silenced too? Unless, of course, they have managed to flee abroad.

What will the PRC-USA Alaska meeting bring?

By Jerome A. Cohen

This Thursday, Secretary of State Anthony Blinken and Biden’s national security adviser, Jake Sullivan, will meet with Chinese Foreign Minister Wang Yi and Yang Jiechi, the PRC’s most senior foreign policy official, in Anchorage. This will be a fateful first meeting between the two leading foreign policy experts of the Biden Administration and their PRC counterparts. Even if it does not moderate tensions, let us hope that it does not make things worse.

The odds are that each side will restate its already well-known positions and then depart. But sober statesmen with a long view should try to identify and pursue areas of cooperation that will benefit both sides and the world community. Climate is only the most obvious of these. If things go well, perhaps progress may be made regarding trade, investment and technology transfer, and there could be some agreement on methods of seeking to resolve the many issues relating to the South China Sea. Sadly, there is not likely to be favorable movement regarding Taiwan, Hong Kong, Xinjiang, Tibet or the general suppression of human rights throughout the Mainland. It would be good if consular premises that were recently closed could be reopened in both countries and journalists’ access improved.Reinstatement of the Fulbright program should also take place.

If the talks become open and sincere, I hope the US side will emphasize to the PRC the desirability for the PRC to act more humanely toward those who have been the targets of its repression. Release of the two Canadian Michaels, who are about to be put on trial, and clemency and release for Joshua Wong, Agnes Chow and their Hong Kong colleagues as well as Jimmy Lai, Benny Tai, Martin Lee, Margaret Ng and other democratic figures would improve the PRC’s stature in the world. Beijing could still maintain its right, and even its claimed necessity, to exercise jurisdiction over the range of behavior involved in these varied cases. But clemency, including release from imprisonment, would in no way be inconsistent with PRC sovereignty. Similarly, termination of the Xinjiang detention camps and moderation of the many restrictions on Xinjiang Muslim society can only improve China’s international image.

We can hope for the best even while preparing for the worst.

Some Hong Kong National Security Bail Decisions Are Delayed

By Jerome A. Cohen

Here is an SCMP report on this morning’s bail hearing before the Hong Kong High Court. Several items are worth noting.

In rejecting the request of one defense lawyer to grant interim bail to his client pending conclusion of the Court’s week-long review of the Chief Magistrate’s decision to grant bail to a minority of the 47 detained democratic figures, Judge Toh is quoted as saying: “This has to be done properly. Things done in haste are sometimes when mistakes are made.” Was this not a so subtle criticism of the lower court’s handling of the original applications of the entire 47 suspects? Or simply the statement of a truism that should obviously have been recognized by the lower court before deciding to inflict a black eye on Hong Kong justice?

Did the prosecution offer any clues about why it decided, sua sponte, not to pursue its appeal of the granting of bail to four of the fifteen suspects by the lower court? This is an essential point if the public is to glean any guidance from these events about the government’s interpretation of how the National Security Law is to be applied. Why were these four suspects belatedly favored by the prosecution? If defendants and their lawyers can know this, then they will be better able to argue for bail in other cases.

And what about the appeals from denial of bail by the twenty-five suspects whose cases the media seems to ignore?

I hope that, after taking a week to consider the arguments on both sides and conducting further hearings, Judge Toh will not only issue written decisions but also detail her reasoning and how it applies to her decision in each case. This would improve upon the performance of Judge Pang in denying Jimmy Lai’s most recent request for bail review.

Bail for Some, Denial for Most

By Jerome A. Cohen

Only 15 out of 47 Hong Kong opposition figures were granted bail after a marathon hearing lasting four days. As one protester observed, this decision could be characterized as “sheer political calculation,” something for everybody. Bail for roughly one-third of this extraordinary pack – throwing a bone to the democracy campaigners ­­– and denial for roughly two-thirds, which should keep the Beijing forces from running amok against the courts.

But what was the basis for the judge’s decisions? Why did some defendants win bail, but most did not? Will the public ever know? Why has it been denied this critical knowledge? The judge’s explanation of why he rejected defendants’ request to suspend the usual prohibition against media reporting is ludicrous. He told the defendants he was rejecting their request in order to safeguard the defendants’ interests! How thoughtful! I wonder why the defendants’ able lawyers did not think of this before making their request!!

This SCMP report is faulty in failing to state that the usual prohibition is permitted to be suspended whenever the court believes that it is in the interests of public justice to do so. This is what Judge Anthea Pang decided in the most recent Jimmy Lai bail case. Why did Chief Magistrate So not make the same decision in a case that involves not merely one person but 47? Again, the public is not allowed to know how he differentiated all these cases from Lai’s.

There are many things still unknown about this weird prosecution. For example, we know the government appealed the granting of bail. Did none of those denied bail appeal? If not, why not? Apparently some 25 have appealed.

In the meantime, the bail appeals will now be heard in the next day or two. Will the public also be denied knowledge of the reasons for the outcome?

What a great charade this is for the government! In the name of protecting the rule of law it prosecutes a huge number of democratic politicians for exercising the political rights that the Basic Law system prescribed for conducting LegCo affairs and free elections. Eventually, if the courts have any backbone left, the government may lose its case. But in the interim the government can inflict horrendous punishment on these democratic politicians, silencing even those who may be allowed to remain on bail for the next three months while the government completes its investigation before trial and probably for the years required for completing the judicial process.

Neither these unfortunate 47 nor Jimmy Lai will be able to protest this week’s NPC transformation of Hong Kong’s electoral system. And have we heard from Martin Lee, Margaret Ng and the many other lawyers and democrats who would normally be playing an active role in opposing this oppression? What bail restrictions are they suffering?

My Thoughts on the Proposed HK Electoral Reforms

By Jerome A. Cohen

It has recently been reported that Beijing plans to “reform” Hong Kong’s election system, expanding the membership in the local legislature and the Election Committee that selects the Chief Executive in order to assure its control. This is obviously the end of the political democracy envisioned by One Country Two Systems as agreed in the Joint Declaration and the Basic Law. It is the comprehensive culmination of a piecemeal process that has been under way for some time. Hong Kong will still have a governmental system called 1C2S, but its content has now dramatically changed. The forms of government in HK will continue to be distinct from those on the Mainland but the substance will plainly be the same – the Chinese Communist Party will call the shots and its minions in HK will loyally implement this new manifestation of socialist democracy with Chinese characteristics and be rewarded as “patriots”.

This is not only a huge defeat for the people of HK but also a huge embarrassment to Xi Jinping and the CCP before the world. It is also implicit disrespect for one of Deng Xiaoping’s landmark achievements, which is consistent with other efforts by the Xi regime to downgrade Deng’s status.

Moreover, the Xi regime will not stop at transformation of the electoral system. It will next accelerate the efforts it has been making to rein in the courts and the legal profession. All branches of government must be brought to heel in a totalitarian system. And these “reforms”, of course, are only part of the broader effort to transform Hong Kong society through reshaping education from kindergarten through university, from dominating the media and via other means.

Hong Kong Makes a Farce of Procedural Fairness

By Jerome A. Cohen

What is taking place in Hong Kong’s Magistrates’ Court regarding bail hearings for the 47 democratic politicians is already an unthinkable travesty of justice and apparently is about to get worse.

The defendants were locked up Sunday, roughly a month earlier than scheduled, in an obvious effort to prevent them from being able to comment in public when, in a few days, the NPC imposes major changes in Hong Kong’s electoral system. Moreover, in order to try to show their eligibility for bail, some of the most prominent political figures have now felt coerced into abandoning their democratic political party and even firing their lawyers.

The unprecedented marathon, almost around-the-clock, four-day hearing makes a farce of procedural fairness. No single magistrate can fairly deal with the individual circumstances of 47 different bail applications in such a short time. The court system should never have arranged such a chaotic judicial review that has made Hong Kong’s formerly revered judicial system look like the willing instrument of the police and prosecution. Did only one magistrate have the confidence of the new NSL regime? At least five should have divided the work load and dealt with these cases in an orderly environment that did not put such strain on the magistrate as well as the abused defendants.

And now it looks as though the prosecution is seeking to persuade the magistrate NOT to reveal the bases for the bail decisions he is about to render. This would be a shocking restriction on the public’s right to know what the proceedings have been about and what the justification allegedly is for keeping these defendants locked up for at least many months to come. This dangerous and specious argument was rejected on February 18 by High Court Judge Andrea Pang for the reasons stated in her February 23 opinion in the most recent Jimmy Lai bail case. She found that the usual restrictions on informing the public do not apply, as the law makes clear, when it appears that the interests of public justice require otherwise.

It would be scandalous if in the cases of the 47, which are far more important than even the landmark Jimmy Lai litigation, the court were to conceal the reasons for its controversial decisions.

The government’s actions in this case are outrageous. On the one hand, it claims urgency and the need to keep these democratic leaders locked up immediately. On the other, it at the same time tells the court that it is a long way from completing its investigation and needs a three-month delay in further proceedings—all while the accused rot in jail awaiting trials that may well ultimately acquit them since the charge of conspiring to subvert is based on their exercise of the political rights provided by the rules regulating the affairs of the Legislative Council. Hong Kong is becoming a judicial “never never land”!

Awaiting the fate of the Hong Kong 47

As I write, it is almost noon Wednesday in Hong Kong and the extraordinary bail proceedings that have been going on since Monday morning should finally be approaching an end. I can’t recall any proceedings anywhere that have been similar to what is taking place. It is hard to believe that the Hong Kong courts, and the police and prosecution that so meticulously prepared the mass arrests, could not have done a better job in coping with the expected bail situation. Without even reaching the crucial decisions regarding the grant or denial of bail, the process itself seems outrageous and a violation of due process of law. How any judge, in the circumstances reported, can manage to give careful and fair consideration to each of the 47 individual bail applications is beyond me.

 Just this past week the Hong Kong High Court proved to be disappointing in its handling of merely one case — that of Jimmy Lai. The disappointment — little noticed until now — lay not so much in its refusal of bail to Mr. Lai but in its failure to give a reasoned explanation for its decision. Judge Anthea Pang made her decision immediately after the bail hearing on February 18 and then took five days to release the judicial opinion explaining her decision. Yet her opinion, although it listed various factors to be taken into account in applying the principles articulated in the recent bail decision of the Court of Final Appeal in Lai’s case, utterly fails to explain why she considered the extraordinary bail conditions offered by Lai insufficient to meet the strict standard innovated by the new National Security Law.

 Can we expect anything better from the court that is now trying to handle 47 different applications?

Jiang Tianyong's Continued House Arrest

Jiang Tianyong (image via Frontline Defenders)

By Jerome A. Cohen

Here is the latest report on the continuing police detention of disbarred lawyer Jiang Tianyong, whose home, like that of many others ostensibly released from prison, has been turned into his prison. This, as the report indicates, is a classic example of the widespread but little-recognized practice that I long ago termed “Non-Release Release” (NRR). Although Jiang still has another year to serve of the three-year “deprivation of political rights” (DPR) to which he was sentenced in addition to his formal two-year prison sentence, there is no way that his continuing NRR can be justified as falling under DPR, and I have seen no serious attempt to legally support that claim. This is simply another instance of arbitrary police action against which there is no appeal. It is, of course, a blatant violation of Jiang’s rights under both international law and China’s domestic laws. 

I am especially aware of the tragic injustice that Xi Jinping’s Communist Party is inflicting in this case. I have known and admired Jiang for over fifteen years since he made his career change from public school teacher to human rights lawyer because he believed that would enable him to do more to promote democracy, freedom and human rights for the country. We cooperated in 2004-05 in the vain effort to protect the famous blind “barefoot lawyer” Chen Guangcheng. Jiang proved to be an able and fearless colleague. He and his family have long suffered as a result of his many similarly courageous efforts.

Much more should be done to expose, condemn and prevent such blatant injustices.