Statutes Criminal Law of the People’s Republic of China

Another controversial issue is whether non-extradition for death penalty should be implemented in the arrangement. The principle of non-extradition for death penalty is expressly implemented in Hong Kong's extradition judicial system. The BL in Hong Kong95 gives effect to Article 6 and 7 of the International Covenant on Civil and Political Rights (ICCPR) which provides for the protection of right to life96 and protection of free from danger of torture.

Some people are of the view that this principle is an extradition principle among countries, and, it should not be applied in the arrangement between Hong Kong and China. If this principle is to be included from the agreement, Mainland felony offenders may treat Hong Kong as a haven to avoid the death penalty and take advantage from the loopholes of differences between the laws of the two jurisdictions.

98 Nevertheless, if this principle is to be excluded from the rendition agreement between Hong Kong and China, unless special provisions were made for the waiver of the death penalty, it may put Hong Kong in a situation of violating the ICCPR. Non-extradition of Political Offence Further, the principle of "Non-extradition of Political Offence" also creates difficulty for the formulation of a formal rendition agreement. This principle received international recognition as a general principle for rendition agreement.

99The provisions in the FOO provides that no surrender shall be made if the request is for the handling of an offence which is of political character100 or the request is for the purpose of punishing one's political opinions. 101 Although this principle is an internationally recognized one which has been adopted between Hong Kong and foreign countries, there are views expressed that considering the nature of one country, the exclusion of this principle is beneficial to the maintenance of China's sovereignty and political system.

102 Nevertheless, there are views expressed that as the political system and the protection of political rights between the two places are different, in order to maintain the stability of Hong Kong's system and life style, this principle should be included in the agreement. 103 In addition to the three principles mentioned above, other issues must be considered such as principle of protecting a fair trial, principle of double jeopardy as well as the review mechanism for any extradition requests. 104 Further study on these issues need to be addressed in reaching a formal rendition agreement.

Conclusion Regarding the issue of jurisdictional controversies arose from the cross border cases, after considered the different views from scholars, on one hand, it will appear that the provision in BL support a conclusion that the Mainland courts should not be conferred with jurisdiction over crime took place in Hong Kong by adopting the nationality principle. 105 On the other hand, for a practically reasons under the current situation when there is no rendition agreement, in order to combat crime, it is reasonable for China to adopt the nationality principle.

106 Consider the principles in determining which courts should have jurisdiction, the territorial principle should be followed strictly. Cases happened in Hong Kong can therefore only be tried by Hong Kong courts. A rendition agreement is only a practical tool for Hong Kong and China to transfer fugitive offenders between themselves; nevertheless, it does not address the principles in determining which jurisdiction should prevail over another under a situation of concurrent jurisdiction.

Summarizing the above and the scholars' view, to deal with the difficulties arise from the formulation of a formal rendition agreement between Hong Kong and China, I have concluded the following for the future development of a formal rendition agreement. Firstly, due to the difference criminal justice values and processes between HK and China and the mutuality nature of a formal rendition agreement, Hong Kong Government and Hong Kong people must be ready to accept that under the rendition agreement, the surrender of fugitives must be different from all the previous one as signed between Hong Kong and foreign countries.

107 Secondly, the double criminality principle can be excluded from the rendition agreement as it will help fighting against crime. 108 Nevertheless, the transfer could only occur when the requesting party based its jurisdiction on the territorial principle and any request based on the extraterritorial principles should not be able to amount a transfer. Thirdly, the principle of non-extradition of death penalty can also be excluded. This is for the reason to combat crime and to avoid fugitives to perceive Hong Kong as a haven to escape punishment.

109 Nevertheless, the extradition could only occur under an agreement that even the offender is sentenced with the death penalty, a waiver of death must be granted. 110 Fourthly, in order to protect Hong Kong's high degree of autonomy, the non-extradition for political offence should not be implemented. Nevertheless, Hong Kong should formulate its own legislation for the political offence which may endanger the sovereignty of the country under Article 23 of the BL so as to protect the principle under "one country, two systems".

Lastly, in relation to other issues (i. e. principle of protecting a fair trial, principle of double jeopardy as well as the review mechanism for any extradition requests), study on arrangement in other countries112 should be conducted so that we can learn from the practice of other countries as a blueprint.

BIBLOGRAPHY

Primary Sources: Statutes Criminal Law of the People's Republic of China (1997 Version)