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【逃犯條例】律政司前高官:修例後港人或移交至無人權保障國家 剔九商罪奇怪

2019/4/4 — 19:27

政府建議修訂《逃犯條例》,容許日後以單次申請方式將在港人士引渡至包括中國內地的其他司法管轄區。律政司前高級助理刑事檢控專員、曾處理引渡及司法互助等範疇的資深大律師白孝華回覆《立場》查詢時提到,若政府提出的條例修訂草案獲得通過,港人可能會被引渡至任何一個司法管轄區,涵蓋範圍比其聲稱要處理的台灣殺人案闊很多。白孝華又指,政府剔除9項商業罪行豁免移交的做法奇怪,看不到政府此做法有任何理據。

至於政府加設門檻,要涉及罪行可判監超過3年才可以申請單次移交,白孝華認為這個門檻非常低,除了最輕微的違法之外,幾乎無所不包,並非有意義的保障。

以下為白孝華評論《逃犯條例》全文。

【文:白孝華】

1. The cbc approach would allow the surrender of a person from Hong Kong ("HK") to any place outside HK. The proposal appears to be justified by the government on the basis that it would allow the person in HK alleged to have murdered a person in Taiwan to be surrendered to Taiwan, or for a person to be surrendered to the PRC for prosecution or imposition of a sentence. However, the cbc approach is far broader - it would allow the surrender of a person from HK to any place which the CE (with the approval of the Central Authority) decides. A person may be surrendered to places that with legal, judicial and penal systems which do not share the same values and principles as HK's systems. Values and protections which HK sees as a minimum for the guarantee to a right to a fair trial, such as an independent judiciary, rule of law. There is no assurance to the HK public that the government would made a cbc arrangement with a place that HK could have trust and confidence in its legal, judicial and penal systems. The places may not have any guarantees of rights and freedoms. For example, a person may be surrendered pursuant to a cbc arrangement to "any place". Examples of "any place" are those countries with which the PRC currently has extradition treaties with, such as, Russia, Kazakhstan, Uzbekistan, United Arab Emirates, Lesotho, Angola, Iran, Afghanistan or Ethiopia.

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2. The cbc arrangement would be made by the government and the place outside HK, and would not be made the subject of subsidiary legislation and therefore vetted by the Legislative Council as general arrangements are.

3. If the cbc arrangement is made law, then there would be no incentive for the government to made general arrangements with countries. All requests for the surrender of persons to places not subject to an existing general arrangement could be done by cbc arrangement.

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4. The 3 year threshold for offences is very low. It would catch almost every offence except the most minor infraction. So it does not afford a meaningful protection.

5. The exclusion of certain offences under laws relating to trade descriptions, fiscal matters, environment, etc, is odd. I have not seen the government's justification for their exclusion. Such offences can be very serious, so why should they be excluded? But more importantly, their exclusion does not give any meaningful protection to persons. For example, a person may commit an offence which constitutes an offence relating to securities and futures trading (item 12), and also constitutes an offence relating to false accounting, fraud, theft, etc (item 9). This is common in HK: the person is not charged under the specific ordinance, but charged with conspiracy to defraud or false accounting. So in the case of persons wanted for prosecution under a cbc arrangement, the requesting place could charge them with a general theft or fraud offence and thereby circumvent the specific exclusion.

6. A person will be surrendered under the cbc arrangement if the HK court is satisfied that the conditions of the arrangement and FOO are complied with. The court has no general jurisdiction to question the government's decision to make a cbc arrangement or the CE's decision to issue a certificate.

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