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Thursday, September 19, 2019, 10:56
International obligations comprise prosecutorial responsibilities, rule of law
By Grenville Cross
Thursday, September 19, 2019, 10:56 By Grenville Cross

Since the Department of Justice joined the International Association of Prosecutors (IAP) in 2001 as its 75th organizational member, its prosecutors have played a full part in IAP affairs.

The IAP is a non-political and non-governmental organization committed to promoting the fair and effective prosecution of criminal offenses, and to advancing global e‑ orts to combat crime.

The IAP’s annual conference is underway this week in Buenos Aires, with 560 participants from 102 jurisdictions — a record. These include prosecutors from Hong Kong, Macao, the Chinese mainland, and Taiwan. The conference theme is “International cooperation across different legal systems”, with a focus on how existing arrangements to tackle transnational crime can be improved.

Unfortunately, however, there are limits to the assistance that Hong Kong prosecutors can give to their counterparts from elsewhere. Although a key IAP objective is the promotion of international cooperation “in the prosecution of fugitive criminals”, Hong Kong has failed to deliver in this area. Instead, it has allowed itself to become a sanctuary for fugitive offenders from around the world who can simply evade justice by moving here. This, of course, is a lamentable state of affairs for a place that bills itself as “Asia’s World City”.

Quite apart from the hundreds of fugitives from other parts of China who have escaped their just deserts by coming to Hong Kong, including alleged murderers, convicted money launderers and corrupt businessmen, there are apparently also significant numbers of criminal suspects from other places.

If Hong Kong is to retain its credibility at the global level, it must demonstrate not only that it is willing to join international organizations like the IAP, but also that it is capable of discharging the responsibilities that such memberships necessarily entail

Although Hong Kong has 20 fugitive-offender agreements with other countries, there are still 177 jurisdictions with which no arrangements are yet in place. The only beneficiaries of this situation are the criminals, and global prosecutors are entitled to feel aggrieved that Hong Kong has not yet discharged its obligations to help them hold their own offenders to account.

This, however, is certainly not for want of trying. The chief executive, Carrie Lam Cheng Yuet-ngor, realized earlier this year that the current vacuum is intolerable, and formulated much-needed proposals to enable fugitive offenders, in appropriate cases, to be returned for trial to the places where their crimes allegedly occurred. This, of course, was subject to court process and to stringent human rights assurances from requesting jurisdictions.

Although Lam’s proposals had to be scrapped after they were demonized by local alarmists and foreign Sinophobes who recklessly fueled public alarm for their own partisan purposes, she at least tried to honor Hong Kong’s obligations to the rest of the world, including the IAP, for which absolutely no apology is necessary.

At a time, moreover, when the protesters in Hong Kong and their collaborators are demanding that the government should unconditionally release the suspects accused of crimes arising from the ongoing disturbances, no matter how grave, the secretary for justice, Teresa Cheng Yeuk-wah, must staunchly uphold the IAP’s publicly proclaimed standards of conduct. These require that, at all times, prosecutors should exercise their prosecutorial discretion “independently and be free from political interference”.

Although, therefore, the protesters think they can use political violence to force the government to capitulate, the rule of law requires Cheng to stand firm. Were she to buckle, it would not only mean that violence works, it would also damage Hong Kong’s international standing yet further. Our legal order must be defended at all costs, and there can be no further concessions to the men of violence and those who wish us ill.

Although, to their credit, both Lam and Cheng have made clear that they will not allow public prosecutions to be subverted by political pressure or violence, there are some people, like the former chief secretary, Anson Chan Fang On-sang, who are willing to let the criminals off the hook as an act of appeasement, no matter how grave the consequences for the rule of law.

As Lam and Cheng realize, nobody is above the law, and those who indulge in wanton violence and destruction must be placed on trial. They certainly cannot be set free simply because they have irresponsible people like Chan to act as their apologists.

If Hong Kong is to retain its credibility at the global level, it must demonstrate not only that it is willing to join international organizations like the IAP, but also that it is capable of discharging the responsibilities that such memberships necessarily entail.

The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of Hong Kong.

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