Anti-Death Penalty Asia Network

Hong Kong – Extradition Agreements and Death Penalty?

#Extradition agreements may result in persons being sent back subsequently being charged tried and sentenced to death. Hong Kong, at present no extradition if it is political in nature and the requesting country need give an undertaking that the death penalty will not imposed…which is difficult if national laws provide for the death penalty.

Hong Kong is considering changing the law on transferring fugitives – so how are extraditions dealt with now, and why are there no deals with mainland China, Taiwan and Macau?

  • If proposal becomes law, there will be an extradition arrangement between Hong Kong and the mainland for the first time
  • But legal experts caution such a change could also affect existing arrangements with other jurisdictions
PUBLISHED : Wednesday, 13 February, 2019, 8:20am
UPDATED : Wednesday, 13 February, 2019, 9:39pm

The proposal by the Security Bureau is the latest response to a high-profile case in Taiwan, involving a Hongkonger accused by the authorities there of murdering his pregnant girlfriend last February before fleeing to Hong Kong.

Chan Tong-kai, 19, was arrested in Hong Kong, but is facing charges related only to having his dead girlfriend’s bank card, cash and other possessions.

He has not been sent to Taiwan, despite requests from the authorities there, because there is no formal extradition agreement between the two places.

If the bureau’s proposal becomes law, there will be an extradition arrangement between Hong Kong and the mainland for the first time. Legal experts caution that such a change could also affect existing extradition arrangements with other jurisdictions.

How are extradition requests handled now?

Hong Kong has signed mutual extradition agreements with 20 countries, including the United States, Britain, Canada and neighbouring jurisdictions such as the Philippines and Singapore. Every new agreement negotiated between Hong Kong and a different country must be approved by the city’s lawmakers.

When a foreign country makes an extradition request, Hong Kong’s chief executive must decide whether to issue an arrest warrant. Among other things, the city’s leader must consider if the accused person’s alleged action would be considered a crime in Hong Kong as well, and be satisfied that the case was not of a political nature.

If the crime the person is accused of carries the death penalty in the jurisdiction requesting extradition, the country must undertake not to impose the death penalty if the suspect is sent back.

If an arrest warrant is issued, the fugitive is allowed to oppose the order in a Hong Kong court.

Aside from extraditing wanted individuals, Hong Kong also provides criminal legal assistance to 32 countries, for instance, by handing over evidence, with decisions made by the secretary for justice.

Why is there no extradition to the mainland, Taiwan and Macau?

Hong Kong’s two main laws governing the transfer of fugitives and providing help in criminal cases – the Fugitive Offenders Ordinance and the Mutual Legal Assistance in Criminal Matters Ordinance – have expressly excluded China. Macau and Taiwan are also excluded.

On a discretionary basis, mainland authorities have handed over to Hong Kong fugitives accused of violating the city’s laws. But this has only been an administrative arrangement, and Hong Kong has never reciprocated.

The former deputy director of public prosecutions, John Reading SC, said the major obstacle in reaching an agreement with the mainland was the death penalty in its legal system. Other signatories were prepared to give Hong Kong the assurance in their respective agreements that they would not impose the death penalty if a fugitive was extradited.

“I really can’t believe that China would agree to give an undertaking not to impose the death penalty if somebody is to be extradited to China,” he said.

Hong Kong and the mainland have moved closer in recognising civil and commercial verdicts by each other’s courts.

In recent years, the mainland’s judiciary has also raised the issue of the absence of mutual legal agreements on cross-border criminal cases. In 2017, the former vice-president of the Supreme People’s Court, Shen Deyong, mentioned the issue in a speech in Hong Kong.

After the two sides signed a reciprocal arrangement on enforcing judgments in civil cases, a spokesman of the Supreme People’s Court said there was a need to also “resolve the void in criminal legal assistance between Hong Kong and the mainland”.

What is Hong Kong pushing for in changing the law?

The bureau has proposed taking a case-by-case approach for extraditions involving any place with which Hong Kong does not yet have an agreement.

The process will involve following all the requirements in the Fugitive Offenders Ordinance, which covers Hong Kong’s dealings with the 20 countries with which there are extradition agreements.

To trigger the process, the chief executive will issue a certificate to request a provisional arrest, and that will be used to apply for an arrest warrant in court. The accused person may contest the extradition in court.

The government cited the case of the woman found dead in Taiwan last year to justify the need to change the law. Although her boyfriend was in custody in Hong Kong, there was no extradition arrangement to send him to Taiwan, where the authorities suspect him of murder.

Hong Kong hopes to amend the law before the Legislative Council’s summer recess in July.

Are there any concerns over the proposed change?

Democratic Party lawmaker James To Kun-sun and Reading both warned that introducing the one-off extradition mechanism could affect how countries with extradition agreements view Hong Kong.

“Taking a case-by-case approach could mean it could apply to all sorts of cases,” To said, citing the 2015 saga of five Hong Kong booksellers who disappeared.

In contrast, he said, extradition agreements always relied on trusting the requesting country’s legal system.

Pro-establishment lawmakers Starry Lee Wai-king and Regina Ip Lau Suk-yee dismissed concerns over handing over Hongkongers to mainland authorities, saying there were enough safeguards.

Law professor Simon Young of the University of Hong Kong, however, said the proposed change could be a breakthrough, so long as a fugitive received no less legal protection before being handed over.

The change could strengthen strategic cooperation with Taiwan and Macau in combating commercial and financial crime as well, he said.

Young pointed out that at present, if a criminal was suspected of moving assets to any of these jurisdictions, there was very little Hong Kong could do to recover them.

Can the rule change be retrospective?

Technically, the new law could apply to cases that happened earlier, although much depends on the actual wording of the bill.

“Usually the law is not retrospective, but sometimes, very rarely, drafters do make the law retrospective,” Reading said. But such a move could attract opposition, he added, if the law was viewed as violating the basic principle of natural justice.

Young said the principle of not making the new law retrospective would not apply if an action such as murder was considered an offence in both jurisdictions. He noted that other existing extradition arrangements could apply in cases that happened before the change in the law.

For example, he said, after the rules were changed, the Macau government could request the extradition of Hong Kong property tycoon Joseph Lau Luen-hung, who was jailed in absentia for more than five years in 2014 on corruption charges.

But such request did not mean Lau would be jailed if Hong Kong did decide to hand him over to Macau.

“Under the existing Fugitive Offenders Ordinance, you cannot send someone to serve a sentence if he was convicted without being present at the trial,” Young said.

“You would only send a person back to face trial.”

Additional reporting by Ng Kang-chung

JAPAN – World’s longest-serving death row inmate Iwao Hakamada

National / Crime & Legal

Story of Iwao Hakamada, boxer who spent 48 years on death row, to become manga series

by Magdalena Osumi and Masumi Koizumi

Staff Writers

The story of Iwao Hakamada, a former professional boxer and death-row inmate, 82, who continues to battle to clear his name over a 1966 quadruple murder, will be adapted into a manga series, supporters of the convict announced Wednesday.

Hakamada was sentenced to hang in 1968 by the Shizuoka District Court, but was freed in March 2014 after nearly 48 years in prison on death row. Much of that time was spent awaiting his retrial, which has yet to be held.

But a group of Hakamada’s supporters who believe the former boxer is innocent want to retell the events in his case in the form of a manga, to convey his side of the story to younger generations.

To better portray the atmosphere and circumstances surrounding Hakamada’s arrest and his trial, the supporters are working with a manga artist from Shizuoka Prefecture.

Shigemi Mori, 30, who shares Hakamada’s experience as a professional boxer, will create the series. In his younger years Mori lived in Shimizu, an area that is now part of the city of Shizuoka and is also where the 1966 murder occurred.

“I want to tell people how sloppily the investigation was conducted and what Hakamada’s life has been like, in as understandable a way as possible,” Mori said Wednesday at a news conference in Tokyo.

He said he learned about Hakamada’s case as a junior high school student and then-aspiring boxing apprentice, and started questioning the trial that put Hakamada behind bars.

Mori said he believes Hakamada is innocent. Nonetheless, he also said that he is keen to not “coerce readers to accept the supporters’ opinions, and to convey what really happened around Hakamada.”

The manga will be released in six episodes under the title “Split Decision,” with the first episode scheduled for publication on Feb. 15. Eight-page episodes will be published at jpbox.jp/hakamada2.html on the same day of every month.

Those behind the project also plan to translate the series into English and make it available via YouTube to reach a global audience. “I like the title,” Hakamada’s elder sister Hideko said at the news conference. Conceived by Mori, the title is a winning criterion used in boxing matches in which two of three judges pick a different winner than the third judge.

The title also reflects supporters’ criticism of the “unfair” decision in which Hakamada was sentenced to death by a 2:1 majority. The courts’ decisions were split over DNA tests on bloodstained clothing found near the murder victims.

“I promised to do everything I can (to prove Iwao’s innocence) and I did,” Hideko said. She lamented, however, that her efforts to convey her plea have gone unheard.

“It won’t help anything if I tell his story, so I want to convey it through manga,” Hideko said.

Hakamada was a live-in employee at a soybean processing firm in Shizuoka when he was arrested in August 1966 for robbery and the murder of the firm’s senior managing director, his wife and two children. The police found their bodies with fatal stab wounds at their fire-damaged home.

Hakamada initially confessed to the charges, but changed his plea at trial.

The Shizuoka District Court found Hakamada guilty and sentenced him to death in 1968. The sentence was finalized by the Supreme Court in 1980.

Hakamada and his family have long sought retrials, to no avail. But a new development came in 2014 when the district court accepted DNA test results undermining the prosecution’s claim that Hakamada’s blood had been detected on clothing found at the crime scene. The court noted that the evidence could have been fabricated by police.

Then, last June, the Tokyo High Court overturned the lower court’s ruling granting the retrial, questioning the credibility of the DNA analysis method. Hakamada’s lawyers are planning to appeal that decision to the Supreme Court.

Hakamada’s case has gained international attention as the former boxer remains the world’s longest-serving death row inmate.

Japan’s capital punishment system has also been criticized internationally as inhumane.

Hideaki Nakagawa, director of human rights advocacy group Amnesty International Japan, who was present at the news conference, believes the manga will and should spark debate regarding capital punishment among the public.

As of January, 110 inmates were awaiting execution and 86 of them are seeking retrials, according to the Justice Ministry.

“The Justice Ministry says the death penalty system reflects public opinion and enjoys support from the public, but it’s misleading,” he said. “Some people already protest against it … and (the manga) could be thought-provoking for others, too, and could impact public perception.” – Japan Times, 23/1/2019

Malaysia and Pakistan supports 2018 UNGA Resolution on Moratorium on Executions pending Abolition of Death Penalty

Death penalty: Global abolition closer than ever as record number of countries vote to end executions

After a record number of UN member states today supported at the final vote a key UN General Assembly resolution calling for a moratorium on executions with a view to abolishing the death penalty, Amnesty International’s Death Penalty Expert Chiara Sangiorgio said:

“The fact that more countries than ever before have voted to end executions shows that global abolition of the death penalty is becoming an inevitable reality. A death penalty-free world is closer than ever.

“This vote sends yet another important signal that more and more countries are willing to take steps to end this cruel, inhuman and degrading punishment once and for all.

“The result also shows the increasing isolation of the 35 countries that voted against the resolution. Those countries still retaining the death penalty should immediately establish a moratorium on executions as a first step towards full abolition.”

Background

121 of the UN’s 193 member states voted in favour of the seventh resolution on a moratorium on the use of the death penalty at the UNGA plenary session in New York, while 35 voted against and 32 abstained. 117 had done so in December 2016. This resolution was proposed by Brazil on behalf of an Inter-Regional Task Force of member states and co-sponsored by 83 states.

For the first time, Dominica, Libya, Malaysia and Pakistan changed their vote to support the resolution, while Antigua and Barbuda, Guyana and South Sudan moved from opposition to abstention. Equatorial Guinea, Gambia, Mauritius, Niger, and Rwanda once again voted in favour of the call for a moratorium on executions, having not done so in 2016.

Five countries reversed their 2016 votes, with Nauru moving from vote in favour to vote against and Bahrain and Zimbabwe switching from abstention to opposition. Congo and Guinea changed from voting in favour to abstention.

When the UN was founded in 1945 only eight of the then 51 UN member states had abolished the death penalty. Today, 103 of 193 member states have abolished the death penalty for all crimes, and 139 have abolished the death penalty in law or practice. In 2017 executions were reported in 22 UN member states, 11% of the total. Amnesty International opposes the death penalty in all cases without exception. – Amnesty International, 17/12/2018

%d bloggers like this: