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LCQ20: Discussion of surrender of fugitive offenders arrangement between Hong Kong and Mainland
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     Following is a question by Hon Kenneth Leung and a written reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (February 3):

Question:

     It is learnt that at present, the Hong Kong Special Administrative Region (HKSAR) Government and the Central People's Government (collectively known as "the two Governments") have not entered into any agreement on surrender of fugitive offenders. Regarding the arrangement for the surrender of fugitive offenders (the surrender arrangement) between the two Governments, will the HKSAR Government inform this Council:

(1) of the details of the existing surrender arrangement implemented by the two Governments, including the date on which such an arrangement was set up, the departments under the two Governments which are responsible for implementing the arrangement and the offences to which the arrangement applies; whether the arrangement has been revised since it was set up; if so, of the details;

(2) of the legal basis for the HKSAR Government to implement the existing arrangement for surrendering fugitive offenders to the Mainland authorities; whether it has considered making the relevant arrangement by way of legislation; if it has, of the details and progress of such work; if not, the reasons for that;

(3) whether the law enforcement agencies of the HKSAR Government have the power under the law to arrest or deport from Hong Kong those Mainland residents who stay in Hong Kong lawfully without suspicion of having committed offences in Hong Kong but are currently regarded as fugitive offenders by the Mainland authorities; if they do, of the relevant legal basis; whether the law enforcement agencies of the HKSAR Government have the power under the law to arrest and surrender to the Mainland those Hong Kong residents who are currently regarded as fugitive offenders by the Mainland authorities; if they do, of the relevant legal basis;

(4) of the procedure followed by the law enforcement agencies of the HKSAR Government in implementing the arrangement for surrendering fugitive offenders to the Mainland, including whether it is required to obtain prior authorisation from the Chief Executive, the Secretary for Security, heads of other law enforcement departments or the court; if so, of the details of the procedure for obtaining such authorisations; the procedure followed by the law enforcement agencies of the HKSAR Government in requesting the Mainland authorities to return fugitive offenders to Hong Kong, including whether it is required to obtain prior authorisation from the Chief Executive, the Secretary for Security, heads of other law enforcement departments or the court; if so, of the details of the procedure for obtaining such authorisations;

(5) of the following since Hong Kong's return to China: (i) the number of requests made by the Mainland authorities to the law enforcement agencies of the HKSAR Government for surrendering fugitive offenders each year and the number of fugitive offenders involved and, among them, the number of times for which the surrender arrangement was implemented and the number of fugitive offenders surrendered, (ii) the number of requests made by the law enforcement agencies of the HKSAR Government to the Mainland authorities for surrendering fugitive offenders each year and the number of fugitive offenders involved and, among them, the number of times for which the surrender arrangement was implemented and the number of fugitive offenders surrendered, (iii) the respective numbers of Chinese nationals, Hong Kong residents and persons of other nationalities among the fugitive offenders surrendered from the Mainland to Hong Kong each year, as well as the respective offences in which they were involved, and (iv) the respective numbers of Chinese nationals, Hong Kong residents and persons of other nationalities among the fugitive offenders surrendered from Hong Kong to the Mainland each year, as well as the respective offences in which they were involved; and

(6) in the case where a fugitive offender who is about to be surrendered to the Mainland claims that he will be subjected to prosecutions associated with political offences, death penalty, torture or other cruel, inhuman or degrading treatment if he is surrendered to the Mainland, whether the law enforcement agencies of the HKSAR Government will continue with the surrender, or escort him to the boundary for arrest by the Mainland law enforcement officers; if they will, whether the HKSAR Government has sought legal advice to assess if such practices are in line with the legal requirements under international human rights law, the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and local legislation relating to human rights; if it has, of the relevant legal advice?

Reply:

President,

     Our consolidated reply to the various parts of the question is as follows:

     Currently there is no surrender of fugitive offenders (SFO) arrangement between Hong Kong and the Mainland. Such an arrangement is still under discussion. The Fugitive Offenders Ordinance (Cap. 503) (the Ordinance), currently the legal basis for SFO, is not applicable to the Mainland. If a SFO arrangement is made between Hong Kong and the Mainland in the future, enactment of local legislation is necessary before it can take legal effect.

     In the absence of a SFO arrangement between Hong Kong and the Mainland or relevant legislation conferring the necessary power, the Government has never surrendered and will not surrender fugitives to the Mainland. In fact, for SFO to be conducted between Hong Kong and another jurisdiction, it is necessary either for Hong Kong to enter into a bilateral SFO agreement with that place, or for a relevant multilateral agreement to be made applicable to Hong Kong, and for subsidiary legislation to be made under the Ordinance to bring such an agreement into effect. Only on such a basis may Hong Kong act upon a SFO request from another jurisdiction.

     Despite the absence of a SFO arrangement between Hong Kong and the Mainland, there were occasions in the past where, following discussion between the Hong Kong Police Force and the Mainland, the Mainland law enforcement authorities exercised discretion to return to Hong Kong certain Hong Kong residents suspected of having committed crimes in Hong Kong for investigation or trials. There were about two persons returned from the Mainland to Hong Kong every year on average during the past five years. The offences involved included murder, wounding and robbery, etc.

Ends/Wednesday, February 3, 2016
Issued at HKT 14:55

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