Speech by Director of Public Prosecutions

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Following is the speech delivered by the Director of Public Prosecutions, Grenville Cross, SC, entitled "Regional Cooperation in the Combat of Cross-border and Transnational Organised Crime" at the Legal Conference on Regional Criminal Judicial Cooperation in Macao today (April 30):

Introduction

I am delighted to be here today. I believe, as do our hosts, that the exchange of views amongst those who wish to promote better legal arrangements in the region will advance the rule of law and assist the combat of crime. From discussion comes understanding, from understanding comes cooperation, and from cooperation comes an appreciation of the way forward.

All of those who are involved in the enforcement of the law and the prosecution of crime are keenly aware of the problems posed throughout the country, the region and the world by organised criminal groups. Sometimes we have thwarted them, but often we have not. We must share our ideas, examine our procedures, strengthen our mechanisms and deploy our resources to best advantage if we are to secure the better and safer societies our people deserve. Our task is not an easy one, for the financial power of organised criminals has never been stronger. Crime is now transnational, and local and regional strategies of law enforcement which disregard this are doomed to failure. It is only if we appreciate the nature and scale of the problem at the international level that we can hope to come to terms with it at the regional level, and that is why something must be said about transnational organised crime.

Transnational Crime

The international criminal moves from place to place with relative ease. That is as true of the drug trafficker, the money launderer, the cyber crook and the people smuggler as it is of the terrorist. Police, however, often require agreements to travel from one city to another. Law enforcers cannot freely cross borders. Witnesses from one place cannot be compelled to testify in another. Investigative bodies are circumscribed in the intelligence they can share. Rules of evidence do not always facilitate the admission at trial of relevant material from other places. Those who man our legal systems must therefore examine how they can improve them in the interests of more effective systems of criminal justice.

We must remember as well that modes of criminality constantly evolve. Criminals capitalise upon the growth in communication and transport to expand their operations and to form alliances. They disregard our jurisdictional and geographical borders, except when they seek safety from prosecution behind them. Such machinery as we have in place to facilitate cooperation operates all too often in a slow and a cumbersome way. That is precisely why I consider that effective and streamlined modes of mutual legal assistance are imperative at all levels. Nor does responsibility lie simply with prosecutors and police. Lawmakers, professionals, bankers, businessmen and the public themselves must all pull together to ensure that we achieve systems of law which deal in a serious way with proliferating trends in organised crime. It is greatly to the credit of Prosecutor General Ho Chio-meng and his colleagues that they have had the wisdom to organise a regional conference of this type with a defined agenda designed to crystallise thought and action in important areas of common interest to law enforcers and to map the course of future cooperation.

But we must place our regional work in an international perspective. We would fool ourselves and assist the criminals if we took the view that regional crime can be combated at the local level. It cannot. For it is at the global level that the modern criminal so often operates. China, of course, recognises this, and that is why she signed the United Nations Convention Against Transnational Organised Crime at the outset in Palermo, Italy, in December 2000. The Palermo Convention, the purpose of which is 'to promote cooperation to prevent and combat transnational organised crime more effectively', points the direction in which we should be going. It demonstrates that the will and the momentum are there for concerted action against organised crime groups, and the machinery it contains must be put into operation and made to work effectively and expeditiously. A principal object of the International Association of Prosecutors, to which the prosecution services of China, Macao and Hong Kong all, to their credit, now belong, is international cooperation in the combat of transnational crime.

Although organised crime is not something new, what is new is the extent to which organised criminal networks, including triad societies, with which we are all concerned, have diversified their activities and spread themselves around the world. They use the latest techniques to perpetrate their crimes and then to cover their tracks. They move sums of money through international financial systems in aggregate amounts which sometimes dwarf the economies of some states. All too often they cannot be identified, for they pursue the same types of joint venture and forge the same sorts of strategic alliance as do legitimate global businesses. They make vast profits from corruption, drug trafficking, money laundering, people smuggling and prostitution. Trafficking in human beings is the fastest growing form of international crime, and migrant smuggling worldwide involves four million people and seven billion dollars annually. There are reports that drug traffickers are switching to people trafficking in order to get greater profit with less risk. Nor is this the smuggling of migrants, a recognised form of organised crime, but human slavery where victims lose their freedom. It has been estimated by the John Hopkins University Protection Project that two million children worldwide, half in Asia, are forced into prostitution each year. The problem is here on our doorstep, and it is only if we appreciate the scale of organised crime that we can realistically hope to confront it.

I firmly believe that we will only strike successfully at organised criminals if we hit them where it hurts them most, in their pockets. They can always replace captured personnel, but they cannot so easily replace seized profits. As the current President of the Financial Action Task Force (FATF), Hong Kong is acting decisively to coordinate regional and international initiatives to combat both money laundering and terrorist financing. Already, in 2000, we introduced legislation which regulates remittance agents and money changers, and requires non-bank businesses to adopt sound procedures including customer identification and the maintaining of records of transactions. But we must recognise that established anti-money laundering techniques might not always discover what is going on, and that is why financial institutions must exercise great vigilance at all times in the handling of systems whose conduct arouses suspicion. It would be a mistake to think that governments acting alone can counter money laundering, and that is why the engagement of the private sector is vital.

If we have learned anything in recent times about the effective combat of crime between our various jurisdictions, it is that our efforts to strike at the power of organised criminal networks will not succeed if other places do not take complementary action. Instead of operating in vacuums, we must coordinate our endeavours and seek to pull in the same direction. Not only is effective legislation required, but administrative regulations and guidelines are necessary for the authorities that oversee financial markets. Let us not forget that the proceeds of crime provide the means by which new stages of organised crime can be funded. The corruption of public officials can impede the control of money laundering, and illicit assets can be used to facilitate this. The confiscation of the proceeds of crime must therefore be regarded as a central objective of regional prosecutors and law enforcers.

It has been estimated that one in ten Internet transactions in the Asia-Pacific Region now involves some kind of fraud. Consumers, government agencies and businesses are increasingly being targeted by criminal groups which use the Internet to launder the proceeds of illegal activity. Fraud prevention now requires a response which combines traditional policing with the use of more sophisticated technology, such as the authentication of computer users. That is why confidentiality, important though it is, cannot be allowed to dictate the pace and development of criminal law, and must not be used to defeat legitimate law enforcement. Neither must bank secrecy be used as a pretext for blocking investigations into either illicitly obtained assets or terrorist financing.

The Palermo Convention, which China signed, has as its most substantial Article that which deals with mutual legal assistance. It contains practical guidance as to how different places can cooperate with each other. We all have much to learn from it. Techniques which have proved to be useful in bilateral cooperation agreements will, upon ratification, be elevated to global status. The electronic transmission of requests from one place to another is permissible under the Convention. Such a technique is essential as the time it takes to make requests that comply with the various formalities can provide criminals with all the time they need to transfer themselves and their assets elsewhere. Speed is vital, and jurisdictions must be able to seize assets before they leave the jurisdiction. Systems must be put in place which enable money to be frozen immediately, pending the making of a request, or, in a domestic case, by the time a restraint order can be sought. Mutual assistance mechanisms of this type can be of great value to us at the regional level as we confront cross-border crimes.

Regional and Cross-Border Crimes

When we speak of cross-border crimes in the Hong Kong Special Administrative Region ('HKSAR' 'Hong Kong'), we usually mean crimes that can be divided into three categories :

(a) Crimes committed by Hong Kong residents in Mainland China

These types of crimes are usually financial crimes perpetrated in the guise of legitimate businesses, and which often involve an element of corruption.

(b) Crimes committed by Mainland residents in Hong Kong

The crimes usually committed in this category are crimes such as robbery and burglary, with the perpetrators usually entering Hong Kong illegally for the purpose of committing the crime.

China

These crimes are usually of the financial type.

Although Hong Kong has yet to establish formal arrangements on mutual legal assistance in criminal matters with other parts of China, our security forces have maintained close cooperation with their counterparts, particularly in respect of cross-boundary crime. Constructive assistance is provided at present on an administrative basis. We have in place established channels of communication between law enforcers on both sides of the border and this facilitates such things as liaison, the exchange of information and intelligence, interviewing of voluntary witnesses, training exchanges, voluntary attendance at trials by witnesses, verification of documents, and collaborative operations. All of these are vital in handling issues of regional concern. All such channels have worked well and proved effective. Assistance which cannot be provided in the absence of a formal arrangement includes service of documents, search and seizure, transfer of persons for the taking of evidence and confiscation of the proceeds of crime. Within existing parameters, however, collaborative operations are permissible in Hong Kong between law enforcers provided that each side operates within the boundary of its own territory. Such operations have enjoyed some success.

In March 2001 it was announced that police from Hong Kong, Guangdong and Macao had set up a working group to map out strategies to combat cross-border crime in four specific areas : human smuggling, commercial crime, triad activity and juvenile use of psychotropic drugs. Regional police forces cooperate to combat drug offences by tracking down the source of supply, enhancing border enforcement and by mounting joint operations on public holidays. After all, young people abuse drugs whether they are in Hong Kong, Macao, Zhuhai, Shenzhen or Guangzhou.

In April 2002, it was announced that police forces from Hong Kong, Guangdong and Macao will pool their efforts to tackle illegal soccer syndicates that are gearing up for the World Cup. That is gratifying for betting laws are not identical in the various places. Intelligence is already being gathered about illegal gambling activities, and the three police forces will conduct joint operations against cross-border syndicates.

The combat of corruption is a common concern on all sides of the border. When I speak to legal officials elsewhere in China they always praise the degree of assistance they receive from Hong Kong's Independent Commission Against Corruption (ICAC), and that is music to my ears. The ICAC has established itself as a role model for the anti-corruption drive in the Mainland and Macao. Until matters can be formalised, which I hope will not be long, the sensible thing is for law enforcers to seek closer cooperation in investigation, collection of evidence and exchange of information. If that is done, each side can follow its own laws to prosecute suspects within its own jurisdiction.

There can be no doubt that mutual legal assistance amongst the different parts of China over criminal matters is necessary to ensure the most effective combat of crimes, especially cross-border crimes. I believe that more formalised arrangements can and will and must be achieved in due course. Discussions are ongoing on rendition arrangements between Hong Kong and the Mainland. As we all know, the death penalty is practised in the Mainland. Some people in Hong Kong might feel reluctant to have fugitives sent to a place where the death penalty is practised. On the other hand, the Mainland may find it an encroachment on the principle of equality before the law for fugitives sent from Hong Kong to have a different penalty and treatment from those arrested in the Mainland. It is not an easy task to reach an agreement which is acceptable to both sides, with different principles. But persevere we must, and, with good will and understanding, I have no doubt that a solution will be found within the ambit of One Country, Two Systems.

The Mutual Legal Assistance Ordinance in Criminal Matters Ordinance provides for a range of assistance between Hong Kong and other jurisdictions in the investigation and prosecution of crime, as well as the restraint and confiscation of proceeds of crime. These measures include the examination of witnesses, the execution of search warrants, production of bank records and registration of external confiscation orders. However, the Ordinance expressly excludes the application of its provisions to other parts of China. As with rendition, separate arrangements will be necessary before formal judicial assistance can be given by Hong Kong. In the meantime, informal assistance, such as the exchange of intelligence and information between law enforcement authorities, will continue to be provided, and for this no statutory legal basis is necessary.

In 1998 and 1999, two cases focused public attention on the issue of formal rendition. These were the well-known cases of Cheung Tsz-keung, the 'Big Spender', and of Li Yu-hui, the fung shui master accused of murder. Those cases generated much comment and highlighted the need for arrangements between Hong Kong and the Mainland in relation to mutual legal assistance in criminal matters, including the rendition of fugitives. Of course, under the Chinese Criminal Law, it is not only the place where the crime occurs which has jurisdiction to try the matter, but also the place where the crime is prepared or where the consequence of the crime occurs, or both. Although sensitive and complicated issues are involved in arriving at the most suitable arrangement, I believe that in due course such an arrangement must be achieved based on mutual respect and understanding. Whilst there is no need to rush this, for no one wants a botched arrangement, it cannot be left hanging in the air indefinitely. This conference will undoubtedly promote a better understanding among those who believe that to be successful systems of criminal justice need to be underpinned by the rule of law.

But let it be remembered that rendition arrangements must be consistent with Article 19 of the Basic Law of the HKSAR, which confers upon the courts of Hong Kong the right to try all offences committed in the Region. Sight must not be lost of the fact that under some circumstances two places have concurrent jurisdiction over the same case. It is therefore important for any rendition arrangement to include provisions to cover such circumstances and to deal with cross-border offences. For example, the future rendition system would need a legislative foundation; the system must be acceptable to both sides; and the safeguards for the rights of the individual who is to be tried elsewhere will need to be guaranteed.

As regards the international position, the Hong Kong law relating to the surrender of fugitives with foreign jurisdictions is the Fugitive Offenders Ordinance. Under this Ordinance where a person who is wanted for prosecution in Hong Kong for a relevant offence is located in a prescribed place, Hong Kong may request that other place to return the fugitive to Hong Kong. Similarly, a prescribed place may request the return from Hong Kong for prosecution of a fugitive who is in Hong Kong.

Whether a fugitive offender is to be returned from Hong Kong to the requesting jurisdiction, or vice versa, depends on the law of the place where the fugitive is located, and the decision will invariably depend on the presentation of sufficient evidence to a court in that place, enabling the court to order the return of the fugitive offender to the requesting jurisdiction - I emphasise that surrender proceedings must comply with certain specified legal requirements and it is the court which decides in the first instance if the conduct of the fugitive offender amounts to an offence for surrender in both jurisdictions and whether the evidence is sufficient to order the return of the fugitive.

I turn next to the current Hong Kong position concerning fugitive offenders and other crimes. Before a court in Hong Kong will order the surrender of a fugitive offender it must be satisfied :

That the evidence in relation to the offence would be sufficient to warrant the person's committal for trial according to the law of Hong Kong if the offence had been committed within the jurisdiction of that court or any other court.

Evidence sufficient to justify a person's committal for trial according to the law of Hong Kong means that there must be a prima facie case against the fugitive i.e. there must be evidence upon which, if the evidence were accepted, a reasonable jury, properly directed, could convict.

It is important to note the following points in relation to requests for surrender received by Hong Kong:-

(a) The evidence presented by the requesting jurisdiction must be admissible under the Hong Kong rules of evidence;

(b) The court of committal is not concerned about the credibility of the witnesses, as this is a matter for the court of trial;

(c) The fugitive offender or his legal representative does not have the right to cross-examine witnesses who have provided evidence in support of the request for extradition, who are outside Hong Kong;

(d) The fugitive has no right to lead evidence to contradict any allegation contained in the evidence presented by the requesting place that the fugitive had engaged in the conduct constituting the offence;

(e) The fugitive may lead evidence to show he is not the person identified in the request.

The evidence on behalf of the requesting place is usually presented in documentary form, comprising the statements by the witnesses and any relevant documentary exhibits. If the documents are in a foreign language they must be accompanied by a translation.

The requesting jurisdiction is represented in court by counsel from the Department of Justice. The fugitive is entitled to be legally represented in court, and if he cannot afford a lawyer he may apply for legal aid.

There is no death penalty for crimes in Hong Kong. Consequently, where an offence for which surrender is sought is a death penalty offence in the requesting jurisdiction [and some of our extradition partners, including parts of the United States of America, Singapore and the Philippines, have the death sentence for some offences], before the fugitive is extradited our Government will require an undertaking from the requesting jurisdiction that if the fugitive is convicted of the relevant offence, the death penalty will not be imposed.

As regards crimes committed partly in Hong Kong and partly in Mainland China, the Criminal Jurisdiction Ordinance vests Hong Kong with jurisdiction over a large number of offences of dishonesty, including theft, fraud, deception, blackmail, forgery and false accounting offences, provided a 'relevant event' i.e. one of the acts, omissions or other events, 'proof of which is required for conviction of the offence', occurs in Hong Kong, even if all other acts etc. occur in a place or places outside Hong Kong including the Mainland. This provision is a most helpful one when dealing with cross-border crime between Hong Kong and the Mainland since some cross-border crimes are partly committed in Hong Kong and partly in the Mainland.

Let us look at the statistics. In 2001, 152 illegal immigrants, mostly from the Mainland, were arrested in Hong Kong for violent crime including murder, wounding, and robbery, compared with 165 arrests in 2000. In 2001, 731 illegal immigrants were arrested for non-violent crime including burglary, theft, forgery, drug offences and immigration offences, compared with 769 in 2000. In 2001, 116 illegal immigrants were arrested for what are referred to as preventive crimes such as possession of arms and ammunition, possession of offensive weapons, going equipped for stealing, tampering with vehicles and loitering, compared with 99 in 2000.

In 2001, there were 89 reports of cross-boundary corruption, of which 68 related to the private sector and 21 related to the public sector i.e. complaints against officials such as Customs and Excise, Police and Immigration Department officers. The total number of reports in 2000 was 69, comprising 55 private sector cases and 14 public sector cases. These complaints represented only about 2% of all complaints received by the Independent Commission Against Corruption during those relevant years.

The increase in incidents of cross-border financial crime is a matter which is of concern not only to those of us involved in the criminal justice system, but also to legitimate business and the community. The most prevalent financial crime in recent years has been letter of credit (L/C) fraud, where a company will obtain letter of credit banking facilities purportedly for business purposes, and will then by the use of false documentation obtain the amount of the facilities in cash and then abscond.

In 2001 there were 14 cases of L/C fraud reported to the police involving losses of $558.09 million, of which 4 cases involving losses of $179.49 million concerned Mainland personalities or banks. In 2000 there were 13 cases involving losses of $660.37 million of which 4 cases involving losses of $527.8 million were Mainland related.

So where does all of this leave us? Discussions are under way between Hong Kong and authorities elsewhere in China. All acknowledge the need for mutual legal assistance arrangements to be concluded as soon as practicable. Rendition, in particular, is a sensitive subject, and any proposed arrangement will have to take account of the One Country, Two Systems principle, and to balance the needs to prevent criminals from escaping justice and to safeguard the rights of individuals. All sides continue to work constructively together to address outstanding concerns in relation to the issues which have to be ironed out before the arrangements which we all consider to be necessary can finally be put in place.

Conclusion

Much has been done. Much is being done. There is determination and resolve on all sides. All recognise the need for effective mechanisms of mutual legal assistance. A secure and a safe environment is in the interests of everyone. If there are loopholes and lacunae, then it is only the criminals who will benefit. Practical cooperation and coordination between those concerned with law enforcement in different places is often difficult, but we must persevere if we are to secure the societies we want in China and throughout the region. We must be bold in thought, and innovative in deed. Hurdles are there to be overcome, not shied away from. I call upon all of those at this conference not to be deterred by the difficulties in the way of achieving more formalised arrangements, but instead to use their strength, resources and ingenuity to ensure that the degree of regional cooperation in the fight against crime is moved up into first gear, and that, at all levels, the advance of organised crime is halted and reversed.

The 21st century will belong to those who dare to take the initiative, who are not afraid of setbacks, and who will do what is necessary to advance the cause of criminal justice in China itself and in the Asia Pacific Region. Our mission is clear. Far from being intimidated by the challenge we face, we must embrace it and turn it to the advantage of the peoples and the places in whose names we act.

End/Tuesday, April 30, 2002

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