Extradition Wars: How the Chinese and Hong Kong Governments Fell into a Trap They Laid for Taiwan

Written by Jean-François Dupré.

Image credit: 16 June 2019 antiextradition 164 by Etan Liam/Flickr, license CC BY-ND 2.0

Hong Kong’s extradition bill and the mass protests it triggered have garnered much international attention. Presumably motivated by a dual attempt to infringe on Taiwan’s sovereignty and to increase Beijing’s grip over Hong Kong, the extradition debacle exposed in quite unambiguous terms the Hong Kong government’s incompetence and intractable pandering to Beijing.

The bill came in response to the murder of Poon Hiu-wing, a 20-year-old Hong Kong woman, who was presumably killed by her 19-year-old Hong Kong boyfriend, Chan Tong-kai, whilst on a trip in Taiwan in 2018. Upon his return to Hong Kong, the suspect was jailed on money laundering charges for having withdrawn money from the victim’s account. Despite having allegedly confessed his role in the grisly murder to the Hong Kong police, Chan could not be tried for murder in Hong Kong, nor could he be extradited to Taiwan, as the city does not have extradition mechanisms in place with the neighbouring country.

What followed were a series of leaps of imagination by the Hong Kong government (presumably guided by Beijing), which argued that Hong Kong laws currently in force prohibited the establishment of extradition or legal assistance mechanisms with Taiwan. Particularly problematic, it appeared, were clauses in Hong Kong’s pre-Handover Fugitive Offenders Ordinance (FOO) and the Mutual Legal Assistance in Criminal Matters Ordinance (MLACMO) that explicitly forbid extradition and mutual legal assistance arrangements between Hong Kong and “any other part of the People’s Republic of China” (PRC). In order for an extradition toward Taiwan to proceed, the Hong Kong government first needed fix this “loophole” to allow for case-by-case arrangements to be made with any jurisdiction — including the PRC. This, in essence, was the rationale for the extradition bill.

The government’s conceptual acrobatics were impressive. First, the FOO and the MLACMO didn’t say anything about Taiwan, which is an independent country that has quite undeniably never been part of the PRC. Second, the PRC clauses most definitely didn’t constitute a loophole. Their purpose was clear: if Hong Kong and its legal system were to remain autonomous from China, Beijing could not be allowed to extend its grip over Hong Kong’s judiciary, be it obliquely through extradition or legal assistance mechanisms.

Such mental acrobatics were not new. In 2018, the Hong Kong government had set up a contorted arrangement for Chinese laws to be applicable on Hong Kong segments of a high-speed railway linking the city to China. While misleadingly comparing its “co-location” arrangement to Canada-US pre-clearance mechanisms, the government got around constitutional hurdles by leasing territory to China, so that Chinese laws were not being applied to Hong Kong, but to (leased) Chinese territory. The constitutionality of this arrangement was severely challenged by the legal community.

The extradition bill was merely a continuation of these dynamics. The Hong Kong government’s fixation on the amendment was suspicious, especially given that simpler options had been suggested, including measures towards extra-territorial jurisdiction, only to be dismissed out of hand. As the government was adamant that its bill was the only way out, it became obvious that the murder case was merely being used as a convenient excuse not to fix a loophole, but instead to create one that would enable Beijing to extend its legal jurisdiction on Hong Kong through extradition and assistance mechanisms.

The benefits of the proposed bill to Hong Kongers were literally nil and the harms were many. But it opened a plethora of opportunities to Beijing in its ever-growing irredentist ambitions. Not only could Beijing have extended its de facto legal jurisdiction to Hong Kong by having escapees, dissidents or other individuals wanted by the regime sent back to China, but it would also have enabled Beijing to reciprocate on the Meng Wanzhou case. Anyone passing through Hong Kong—one of the world’s foremost financial centres—could have been grabbed to serve in China’s hostage diplomacy.

Hong Kongers aside, the stakes were particularly high for Taiwan, as the bill not only endangered the safety of its citizens visiting or living in Hong Kong, but also constituted an implicit legal manifestation of the PRC’s territorial claims over the country.

The Taiwanese government has consistently pushed for some form of mutual legal assistance. After all, even though Taiwan had territorial jurisdiction over the murder case, Chan, his alleged confession and much of the relevant evidence were in the hands of Hong Kong authorities. As early as December 2018, the Taiwanese authorities had issued an arrest warrant for Chan, and indicated they had already submitted multiple requests to Hong Kong authorities for legal assistance, which, along with subsequent requests, remain unanswered. Hong Kong authorities, it seemed, wouldn’t engage in dialogue outside of a legal framework that defined Taiwan as a part of the PRC.

As opposition to the extradition bill was mounting in Hong Kong, the Taiwanese government stressed that extradition would not take place under an agreement that, as it stood, undermined human rights in the region — thus making the proposed bill useless in solving the murder case. An important concern for Taiwan was probably to avoid falling into a trap was set to undermine its national sovereignty.

Only after mass-protests that brought millions to the streets in June 2019 did the Hong Kong government declare the bill “suspended” and, in July, “dead”. Protests and their repression nonetheless intensified over the summer, leading scores of Hong Kong dissidents to flee to Taiwan, where they were welcomed with some level of assistance.

In Taiwan, the protests were largely seen as benefitting President Tsai Ing-wen’s re-election bid. Although unification had never been an option, images of the repression in Hong Kong intensified worries and made the Taiwanese public even more distrustful of China than it already was. As Tsai pointed out in her National Day address, the “One Country, Two Systems” scheme had all but failed.

As Chan’s release approached, the Hong Kong government was pressed to resort to further mental acrobatics. Despite having stubbornly called for a profound overhaul of Hong Kong’s legal assistance mechanism and claiming the extradition bill as the only acceptable option, it now advocated a completely extra-institutional solution: Chan had apparently been persuaded to fly to Taiwan and turn himself in to Taiwanese authorities. Hong Kong authorities were hence relieving themselves from their legal jurisdiction over the case, expecting Taiwan to deal with it without assistance from their Hong Kong counterpart, including the valuable statements and evidence they had gathered on the case.

Taiwan’s reaction was to oppose to the arrangement (or lack thereof), partly for safety and procedural reasons, requesting at least that Taiwan police officers travel to Hong Kong to escort Chan back. This request was firmly rejected by the Hong Kong side, even though a similar arrangement had previously been granted by Taiwanese authorities to their Hong Kong counterparts, and despite analysts vouching for the proposal’s feasibility.

Having politicised the case to the point wherein the original purpose of bringing justice to the murder appeared all but secondary, the Hong Kong government was now accusing Taiwan of putting politics above justice. But the accusation had little credibility.

By the time Chan was released from jail and the extradition bill formally withdrawn on 23 October 2019, the anti-extradition movement had evolved into a popular uprising against Hong Kong’s authoritarian government. About two and a half thousand arrests had been made. The government’s ruling legitimacy had reached a new low and its international image was tarnished along with that of its puppeteers in Beijing.

Meanwhile, Hong Kong’s democratisation movement garnered unprecedented global attention and support, and Taiwan’s international visibility was enhanced.

Beijing and Hong Kong had clumsily fallen into a trap of their own making.

 Jean-François Dupré is a Postdoctoral Fellow at the Institute of Sociology, Academia Sinica, Taiwan. This article is a part of the special issue on the Hong Kong protests and their impact on Taiwan.

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