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LCQ7: Discussion of surrender of fugitive offenders arrangement between Hong Kong and Mainland
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     Following is a question by the Hon Alan Leong and a written reply by the Secretary for Security, Mr Lai Tung-kwok, in the Legislative Council today (May 18):

Question:

     At present, the Fugitive Offenders Ordinance (Cap. 503) stipulates the requirements and procedures for the surrender of fugitive offenders (SOF) between Hong Kong and specified jurisdictions, but Mainland China is not among those jurisdictions. The authorities of Hong Kong and Mainland China are now discussing the formulation of an SOF arrangement between the two sides. On the other hand, in reply to a question raised by a Member of this Council on February 3 this year, the Secretary for Security indicated that in the past, following discussion between the Hong Kong Police Force and the Mainland authorities, the Mainland law enforcement authorities had exercised discretion to return to Hong Kong for investigation or trials certain Hong Kong residents suspected of having committed crimes in Hong Kong. In this connection, will the Government inform this Council:

(1) of the latest progress regarding the discussion on the SOF arrangement between the authorities of both sides; the number of meetings held for this purpose by the authorities of both sides in the past three years, the government departments respectively from which the representatives of both sides attending the meetings came, and the discussion directions;

(2) whether the Mainland authorities discussed with the Hong Kong authorities in the past three years to seek the Hong Kong authorities' return to the Mainland those Mainland residents in Hong Kong who were suspected of having committed crimes on the Mainland; if so, of the number of such cases;

(3) of the number of cases in the past three years in which the Hong Kong authorities discussed with the Mainland authorities to seek the Mainland authorities' return to Hong Kong those Hong Kong residents on the Mainland who were suspected of having committed crimes in Hong Kong;

(4) of the Hong Kong authorities' criteria and legal basis for requesting the Mainland authorities to conduct the discussion mentioned in (3);

(5) whether it knows the Mainland authorities' legal basis for exercising discretion to return to Hong Kong for investigation or trials certain Hong Kong residents suspected of having committed crimes in Hong Kong;

(6) whether the Mainland authorities refused, in the past three years, any request made by the Hong Kong Government for returning Hong Kong residents to Hong Kong; if so, of the number of such cases, and whether it knows the respective reasons for those refusals; and

(7) whether the two principles of "non-extradition for political offences" and "non-extradition for death penalty", which are recognised and highly valued by the international community, (i) are applicable to the existing practice of exercising discretion in SOF between the two sides, and (ii) will be applicable to the SOF arrangement currently under discussion between the two sides?
 
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 the Hong Kong Special Administrative Region (HKSAR) and the Mainland.  Such an arrangement is still under discussion between the HKSAR Government and the Mainland authority.  Given the differences in the legal systems between the two places and the complexity of issues involved in the SFO arrangement, the discussion must be proceeded with care, and the details must also be placed under close scrutiny.

     The Fugitive Offenders Ordinance (Cap. 503) (the Ordinance), currently the legal basis for SFO in the HKSAR, is not applicable to the Mainland.  For SFO to be conducted between the HKSAR and any other jurisdiction, it is necessary either for the HKSAR Government to enter into a bilateral SFO agreement with that jurisdiction, or for a relevant multilateral agreement to be made applicable to Hong Kong, and for subsidiary legislation to be made under the Ordinance.  Only on such a basis may an SFO request be processed.  If an 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 an SFO arrangement between the HKSAR and the Mainland or relevant legislation conferring the necessary power, the HKSAR Government has never surrendered fugitives to the Mainland, and would not do so before such arrangement takes effect after legislation.

     Regarding the return of Hong Kong residents suspected of having committed crimes to the HKSAR by the Mainland authorities, 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, depending on the actual situation of individual cases.  Two persons had been returned from the Mainland to Hong Kong in previous three years.  The Hong Kong Police Force does not maintain the other statistics as mentioned in the question.

Ends/Wednesday, May 18, 2016
Issued at HKT 13:14

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