tim's experiment

Will people please stop wheeling out the argument that Britain, France and sundry other healthy and law-abiding countries have extradition agreements with China, so why shouldn’t we have one?

This was offered in a playful spirit by Nury Vittachi in the Standard, and in full formal legal dress by Greville Cross in the China Daily. No doubt it has surfaced in other places. It is wrong, because it overlooks some vital differences.

If you are the subject of a bid by China to extradite you from the UK, the request goes first to the Home Secretary. This title is a quaint historical survival – in other jurisdictions the corresponding political person will be the Minister for Justice or the Minister for the Interior.

Whatever you call him, the Home Secretary is a political figure who is answerable to Parliament for his actions. Unlike the person in Hong Kong who will do this, if the law passes, the Home Secretary does not make two or three visits to Beijing each year to report on his doings and receive instructions. Nor does he or she have a China Liaison Office whispering in his ear and jogging his elbow.

Similarly, if the matter is passed to a court, the judge is in a rather different position in the UK from that of his Hong Kong counterpart. Judicial independence is not an on-off switch. It exists to varying degrees.

A UK judge, for whom the Chinese government is a distant litigant with no way of making him suffer if he displeases it, will find it easier to be independent than a Hong Kong judge who, no matter how hard he tries, knows that in the view of mainland officials – and presumably of some Hong Kong ones – he is part of the administrative machinery and expected to be a team player.

I expect some Hong Kong judges privately think that this view of their functions is quite wrong. Other, perhaps, take a less robust view and try not to rock the proverbial boat.

Mr Cross points out that in past extradition cases China has always played by the rules. But this does not help us at all. When dealing with independent countries like the UK or France, China has every incentive to play by the rules because any breach of them will result in extradition becoming more difficult, or possibly impossible.

Even if future requests pass the political hurdle, the proposed victim will argue in court that assurances about his treatment cannot be relied on and the extradition request should accordingly be rejected.

I fear that in Hong Kong this important incentive is lacking. Hong Kong officials are extremely reluctant to criticise, or even recognise, abuses of the law on the mainland. No doubt they would happily wink at violations of the conditions attached to extradition orders. Judges might be less tolerant. But then again they might not. People who were not prepared to turn a tactful blind eye would find their careers shorter than they expected.

Also misleading is Mr Cross’s quaint comparison with the United States, where the country’s component states do routinely extradite people to each other. If you are wanted in California and flee to Nevada, the Californian authorities will ask for you to be sent back.

But once again this is not like the situation in Hong Kong at all. The Governor of Nevada is not appointed by the Californian government. Nevadan judges do not have to worry about whether their decisions will be welcome in California.

Also in America the legal systems in different states are quite similar. This is not the case for us. Hong Kong has a legal system which conforms to international standards. China does not.

Similarly Hong Kong does not have a separate political system from the Chinese one. On the contrary it has been made very clear that we are in the last analysis ruled by Beijing. This results in a quite understandable lack of confidence in the judgements made by ostensibly impartial government figures here.

If the mainland police were after you on some totally specious basis and applied for your extradition, would you trust Carrie Lam to say ‘no’?

Of course not. Comparisons with genuinely international transactions of the same kind are misleading and unhelpful.