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What model for extradition between Hong Kong and mainland China? A comparison between the 2019 (withdrawn) amendment to Hong Kong extradition law and the European Arrest Warrant 2020

Wieczorek, I and Yanhong, Y (2020) 'What model for extradition between Hong Kong and mainland China? A comparison between the 2019 (withdrawn) amendment to Hong Kong extradition law and the European Arrest Warrant 2020.', New journal of European criminal law., 11 (4). pp. 504-523.

Abstract

This article provides an analysis of the bill proposed in 2019 to amend Hong Kong Fugitive Offenders Ordinance (FOO), Hong Kong domestic legislation on extradition. The FOO Amendment Bill introduced the possibility of, and detailed the conditions for, surrendering fugitives from Hong Kong to other regions of the People’s Republic of China (PRC), among which, controversially, mainland China. After multiple protests, the proposal was withdrawn. It nonetheless represents the first attempt of introducing a legal basis for extradition between Hong Kong and mainland China, and it is thus deserving of close scrutiny. The article describes the unique constitutional setting in which this amendment was proposed, Hong Kong and mainland China being two regions of the same sovereign country which have two radically different legal systems under the ‘One Country, Two Systems’ principle. It compares the proposed system for extradition between these two regions with the rules regulating extradition between Hong Kong and third states, and with international systems for surrender, including the European Arrest Warrant and the UN Model Extradition Treaty. It shows that the FOO Amendment Bill would have put in place a surrender system in some respects less advanced and subject to more obstacles than standard international extradition Treaties and than the system regulating extradition between Hong Kong and third countries. This is the case, for instance, for the rules on penalty thresholds and on double criminality. Conversely, in other respects, it would have been even more advanced (and with fewer obstacles) than the European Arrest Warrant, one of the most advanced systems of international surrender. This is notably the case for the rules regulating extradition of Hong Kong residents to other parts of the PRC. These latter were, however, among the more controversial aspects of the proposal. The article also discusses the challenges that reintroducing a similar proposal would face in the future, including in light of current political and legal developments – notably the Standing Committee of the National People’s Congress’s July 2020 adoption of the ‘Hong Kong National Security Law’. It suggests that one avenue to smoothen surrender proceedings between Hong Kong and mainland China would be taking a procedural rather than a substantive approach, namely by increasing the role of courts and decreasing the role of executive bodies in the extradition procedures.

Item Type:Article
Keywords:Hong Kong, mainland China, extradition, European Arrest Warrant, political offence
Full text:(AM) Accepted Manuscript
Available under License - Creative Commons Attribution Non-commercial No Derivatives 4.0.
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Status:Peer-reviewed
Publisher Web site:https://doi.org/10.1177/2032284420972190
Publisher statement:Yin Y, Wieczorek I. What model for extradition between Hong Kong and mainland China? A comparison between the 2019 (withdrawn) amendment to Hong Kong extradition law and the European Arrest Warrant. New Journal of European Criminal Law. 2020;11(4):504-523. Copyright © 2020 The Authors. DOI: 10.1177/2032284420972190
Date accepted:19 October 2020
Date deposited:20 January 2021
Date of first online publication:03 December 2020
Date first made open access:20 January 2021

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