Hong Kong’s Proposed Extradition Law Amendments

Hong Kong’s Proposed Extradition Law Amendments

Updated October 23, 2019
Hong Kong’s Proposed Extradition Law Amendments
Two proposed changes to Hong Kong’s extradition law
released on October 23, 2019, and has offered to voluntarily
have sparked over two months of massive demonstrations
return to Taiwan to face murder charges.
across the city. If they had been adopted, the changes could
make anyone—including U.S. citizens—residing in,
How would extradition requests from mainland China be
visiting, or transiting the Hong Kong Special
administered under the proposed amendments?
Administrative District (HKSAR) vulnerable to
The FOO amendments would have changed how the
investigation by or extradition to mainland China, raising
HKSAR government can extradite people to jurisdictions
concerns about possible political prosecutions.
with which the HKSAR does not have an extradition
agreement. Under the current FOO, the HKSAR
On April 3, 2019, Hong Kong’s Chief Executive Carrie
government must ask Legco for permission to consider such
Lam Cheng Yuet-ngor submitted to the city’s Legislative
an extradition request. The FOO amendments would have
Council (Legco) proposed amendments to the Fugitive
created a new “special surrender arrangement” that would
Offenders Ordinance (FOO) that would permit—for the
eliminate the need to obtain Legco’s approval, including
first time—extradition of alleged criminals from Hong
requests from mainland China.
Kong to mainland China, the Macau Special Administrative
Region (Macau), and Taiwan. In addition, the legislation
Should U.S. citizens be concerned?
seeks to amend its Mutual Legal Assistance in Criminal
Matters Ordinance (MLAO) to include mainland China,
If the FOO amendments had been adopted, any U.S. citizen
Macau, and Taiwan.
residing in, visiting, or transiting through Hong Kong could
have been extradited from Hong Kong to mainland China.
Legco was scheduled to take up the proposed amendments
In addition, if the MLAO amendments had been approved,
on June 12, but large-scale demonstrations on June 9 and 12
PRC security officers could request that HKSAR security
led Chief Executive Lam to announce on June 15 the
officers assist criminal investigations against U.S. citizens,
suspension of consideration of the bill. On June 16, Hong
including conducting searches of suspects’ homes or
Kong protesters gathered in even larger numbers in
businesses. The State Department estimated that there were
opposition to the amendments. Since then, large-scale
85,000 U.S. citizens residing in Hong Kong in 2018.
protests have been held in Hong Kong every week, as the
focus of the demonstrations has expanded beyond the
Does the United States have an extradition agreement with
extradition bill to an expression of general dissatisfaction
Hong Kong?
with the status of Hong Kong under China’s policy of “one
country, two systems.” On October 23, 2019, Secretary for
Yes, that agreement sets the terms for extradition requests
Security John Lee Ka-chiu formally withdrew the proposed
between Hong Kong and the United States, which are then
amendments, but the protests are expected to continue.
administered in Hong Kong in accordance with the FOO.
What is the Fugitive Offenders Ordinance (FOO)?
Why was the PRC excluded from the original FOO?
Legco passed the FOO in March 1997, four months before
The FOO establishes the process by which the HKSAR
the United Kingdom transferred sovereignty over Hong
government administers extradition requests from other
Kong to the PRC. According to Hong Kong’s last colonial
governments, including those with which the HKSAR has
Governor Chris Patten and others, China was intentionally
an extradition agreement (such as the United States). It also
excluded from the FOO because its legal and judicial
specifies which types of crimes are eligible for extradition.
systems were not up to international standards. Chief
Executive Lam has claimed, however, that the exclusion of
Why propose the FOO amendments?
China from the FOO was an oversight.
The HKSAR government has offered two reasons to amend
Do the current FOO and/or the proposed amendments
the FOO. The first broad reason is to allow extradition of
protect people from false or politically-based charges, or
people to “other parts of the People’s Republic of China”
human rights abuses after extradition to mainland China?
(PRC), including Macau, mainland China, and Taiwan. The
second specific reason is to permit the extradition of Hong
The current FOO, as well as the proposed amendments,
Kong permanent resident Chan Tong-kai to Taiwan to face
include some safeguards, such as prohibiting the extradition
trial for the alleged murder of his girlfriend while they were
of a person for “an offence of a political character.” They
vacationing in Taiwan in February 2018. After serving 19
also prohibit the extradition of people who were convicted
months in Hong Kong for money-laundering, Chan was
in absentia, or where the sentence could be the death
penalty. Opponents fear the PRC will use the extradition
https://crsreports.congress.gov

Hong Kong’s Proposed Extradition Law Amendments
process to persecute or falsely imprison its critics, like was
Canadians Michael Kovrig and Michael Spavor, and U.S.
done in the cases of Swedish national Gui Minhai,
citizens Kai Li and Sandy Phan-Gillis.
Table 1. Extradition Provisions of Hong Kong’s Fugitive Offenders Ordinance (FOO)
Existing FOO compared to proposed amendments, as submitted on April 3, 2019

Existing FOO
Amended FOO
Coverage
Governments with which
Any other governments
Governments with which
Any other governments
the HKSAR has an
(excluding Mainland
the HKSAR has an
(including Mainland China,
extradition agreement
China, Macau, and Taiwan)
extradition agreement
Macau, and Taiwan)
Crimes
46 types of violent and
46 types of violent and
46 types of violent and
37 types of violent and
Subject to
commercial crimes with
commercial crimes with
commercial crimes with
commercial crimes with
Extradition possible sentence of 1 year possible sentence of 1 year possible sentence of 1 year possible sentence of 3
or more
or more
or more
years or more (see Note)
Role of
None
Pass legislation to permit
None
None
Legco
HKSAR to enter into a
special extradition
arrangement
Source: CRS analysis.
Notes: Excludes crimes pertaining to bankruptcy and insolvency; acts of corporate officers; security and futures trading; intel ectual property
rights; environmental pol ution and public health; export or import controls and international fund transfers; use of computers; taxes or duties;
and false or misleading trade descriptions.
How have people in Hong Kong reacted to the proposed
Two Systems” framework puts at risk Hong Kong’s long-
FOO amendments?
established special status in international affairs. On June
12, 2019, President Trump said that he was sure that Hong
On June 9, 2019, according to the protest organizers, 1.03
Kong and China will “be able to work it out.” In subsequent
million people joined a march opposing the extradition
tweets and statements, he has expressed similar views that it
amendments (the Hong Kong Police’s official estimate was
is up to China and Hong Kong to address the protests.
240,000 people). On June 12, 2019, the day Legco was to
take up the bill, tens of thousands of protesters surrounded
What has the PRC government said?
the Legco building and the HKSAR government
headquarters. An estimated 5,000 Hong Kong police
The PRC government supported the amendments, but has
officers used tear gas, rubber bullets, bean bag rounds and
backed Lam’s decision to suspend the bill. It also has
water cannons to break up the protest. On June 16, 2019, an
accused the United States and other governments of
estimated 2 million people (338,000, according to the Hong
interfering in China’s “internal affairs,” and claims that “the
Kong police) rallied in protest against the bill and alleged
opposition camp and its foreign allies” have “hoodwinked”
police misconduct on June 12.
Hong Kong residents into joining the protests.
Since then, large-scale demonstrations have been organized
How has Taiwan’s government reacted to the issue?
in various parts of Hong Kong every weekend, and on
The Taiwan government has stated it would not seek
many weekdays. The protesters have given 5 demands to be
Chan’s extradition under the amended FOO, as it implied
met before they will end the demonstrations: (1) complete
that Taiwan is part of the PRC, but is blocking Chan’s
withdrawal of the extradition bill; (2) drop all charges
voluntary return to Taiwan.
against protesters; (3) reverse the characterization of June
12 demonstration as a “riot”; (4) conduct an independent
What legislation has been introduced regarding U.S. policy
investigation of police conduct during the protests; and (5)
in Hong Kong?
implement the election of the Chief Executive and all
Legco members by universal suffrage. While the initial
Three bills have been introduced specifically on Hong
demonstrations generally have been peaceful,
Kong. H.R. 3289 and S. 1838 are companion bills that
confrontations between police officers in riot gear and some
would require that the Secretary of State certify annually
more militant protesters have escalated, generally ending
that Hong Kong remains sufficiently autonomous to justify
with the police using tear gas, rubber bullets, and pepper
separate treatment from mainland China, seeks to protect
spray to disperse the protesters.
U.S. citizens from extradition to mainland China, and
blocks the entrance into the United States of persons
How has the Trump Administration responded?
responsible for abductions or extraditions of people from
On June 10, 2019, the State Department expressed “its
Hong Kong to mainland China. H.R. 3289, as amended,
passed the House on October 15, 2019. H.R. 4270 would
grave concern” about the Hong Kong government’s
“prohibit the issuance of licenses to export covered defense
proposed amendments to its fugitive offenders ordinance,
articles and services and covered munitions items to the
and stated that the continued erosion of the “One Country,
https://crsreports.congress.gov

Hong Kong’s Proposed Extradition Law Amendments
Hong Kong Police.” H.R. 4270, as amended, passed the
Michael F. Martin, Specialist in Asian Affairs
House on October 15, 2019.
IF11248

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