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Hong Kong's judicial jurisdiction remains intact, an HKSAR Government spokesman stressed today (Wednesday).

He refuted outright suggestions that the sentence and executions of Cheung Tze-keung, nicknamed "Big Spender", and his gang in the Mainland has "set a dangerous precedent" of the Mainland trying and executing Hong Kong residents for crimes committed in the HKSAR where there is no capital punishment.

"Cheung and his gang were arrested, tried and sentenced in accordance with the Mainland's criminal laws for crimes committed in the Mainland, not for offences committed in the HKSAR. These crimes include the purchase, transporting and possession of ammunition and explosives and the plotting of kidnappings in the Mainland," the spokesman explained.

He noted that this was not the first case in which Hong Kong residents were convicted and sentenced because of serious crimes committed in the Mainland. This was similar to situations where Hong Kong residents received penalties outside Hong Kong for offences they committed elsewhere.

"The HKSAR also has jurisdiction over the alleged crimes committed by Cheung and his gang in Hong Kong. Had they been arrested in Hong Kong and if there were sufficient evidence, they would be prosecuted in Hong Kong. It is a case of concurrent jurisdiction," he said.

He explained that the HKSAR did not ask for the return of Cheung and his gang because subsequent to their arrest in the Mainland, investigation and court proceedings on them had started in accordance with Mainland laws.

"This is in line with the common practice in the surrender of fugitive offenders (SFO) where a fugitive offender is wanted by more than one jurisdictions, the jurisdiction which arrests the fugitive may refuse to return the offender to the other jurisdiction until it has completed its own proceedings.

"There is no question of the HKSAR giving up its judicial jurisdiction to the Mainland or changing its policy in this respect with its reunification with China.

"Had the case involved other jurisdictions, and not the Mainland, it would have been dealt with in the same manner," he continued.

He noted that the Cheung Tze-keung case had highlighted the urgency of putting in place a rendition arrangement with the Mainland and the HKSAR Government would do its best to expedite work in this area in order to conclude an early arrangement. However, given the immense differences between the legal and judicial systems in the Mainland and the HKSAR, the Government had to proceed carefully.

Turning to a suggestion by Martin Lee of the Democratic Party that the rendition arrangement agreed with the Mainland should be based on internationally accepted principles, the spokesman pointed out that Article 39 of the Basic Law provides that the International Covenant on Civil and Political Rights shall remain in force in the HKSAR. Therefore our laws and policies must comply with this provision.

"Under this major premise, our goal in rendition talks with the Mainland is to reach an arrangement that enshrines internationally accepted safeguards," he said.

He added that in devising a rendition arrangement with the Mainland, the government would have regard to the usual safeguards contained in international models on SFO. These safeguards include double criminality, specialty, no re-surrender to third country, death penalty exclusion and political offence safeguards.

At the same time, the government would also study how other jurisdictions overcome problems of different legal and judicial systems in reaching extradition treaties.

"However, similar to our agreements with other countries on SFO, certain modifications of the Model text may have to be agreed to in the course of discussions and introduced into the agreed arrangements to take account of the different systems and practices in the partner countries. The most important consideration is that the final package must be in the broader interest of both parties to the agreement."

The spokesman added that the Legislative Council (LegCo) would be consulted on the proposed rendition arrangement after completion of discussions with the Mainland authorities. The rendition arrangement would need to be supported by legislation for its implementation. It would have to be supported by the public and scrutinised by LegCo before it could be passed into law.

Ends/Wednesday, December 9, 1998

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