The Fugitive Offenders Ordinance

The Fung Shui Master case concerned Li Yuhui, a Chinese national who killed five women in Hong Kong and escaped back to the Mainland was tried and sentenced under the PRC Criminal Law. 34 As Li was a Chinese national, he was triable under Article 7 of the PRC Criminal Law which provides that the PRC Criminal Law applies when a citizen of the PRC committed a crime as specified by the PRC Criminal Law outside the territory ("lingyu") of the PRC.

Under this provision, the meaning of "citizen of the PRC" and "the territory ("lingyu") of the PRC" needs to be studied. Elsie Leung suggested that residents of Hong Kong should be distinguished from residents of the PRC and that Article 7 of the PRC Criminal Law only includes residents of the PRC. 36 She further suggested that "lingyu" referred to jurisdictional territory only. 37 This was as "lingyu" is a territorial concept in the sense of jurisdiction, whereas "lingtu" is a concept related to sovereignty.

38 Using the word "lingtu" instead of "lingyu" would jeapordise the territorial integrity of China. Accordingly, the word "lingyu" is used so as to maintain China's territorial integrity. 39 As a linyu has its own legal jurisdiction ("fayu"), Hong Kong should be classified as outside the lingyu of the PRC. 40 However, some scholars do not support Elsie Leung's explanations of "lingyu" and "citizen of the PRC". 41 The term of "jurisdictional territory" has never existed in both international law and Chinese law.

Although sovereignty and jurisdiction are two separate legal concepts, under international law, a state's sovereignty is shown in its jurisdiction. 43 Confining the interpretation of "lingyu" to the Mainland with exclusion of Hong Kong and confining "citizen of the PRC" to mainland residents with exclusion of Hong Kong residents imply separation of Hong Kong's sovereignty from China which would infringe the spirit of "One Country" under the "One Country, Two Systems" principle.

It was opined that "lingyu" is defined as the scope of sovereignty of a state, whereas "fayu" in general is referred to a region where a legal system applies and takes effect. 45 "Fayu" can either take a state or an administrative region within a state as a unit. 46 Hence, Hong Kong should be viewed as a special administrative region within the lingyu of the PRC but outside the fayu of the Mainland. 47 Therefore, the meaning of "citizens of the PRC" should be understood from the nationality perspective instead of the residency one. 48

Bing Ling pointed out a supportive argument from Article 20(1) of the Law on the Garrisoning of Hong Kong, which provides that if members of garrison commit crimes in Hong Kong during their performance of official duties, they will be subject to the jurisdiction of the PRC military courts. However, if crimes are committed in Hong Kong during their off-duty hours, the members of garrison will be subject under the jurisdiction of Hong Kong courts only. Therefore, it must follow the same logic that the crimes committed by ordinary mainlanders in Hong Kong are subject to exclusive jurisdiction of the Hong Kong courts.

49 Although the explanation suggested by Elsie Leung is weak,50 however, Scholar Albert H. Y. Chen suggested that under the current situation in which there is no criminal mutual assistance arrangement between Hong Kong and the Mainland regarding the surrender of fugitive offenders,51 considering the inconvenience in transferring the offenders to Hong Kong for trial, there is a practical need for the Mainland courts to adopt the personality principle and exercise jurisdiction over crime committed by mainlanders in Hong Kong so as to efficiently deter and punish such crime.

52 Again, Li's case raises concerns about who have jurisdiction? Would the existence and non-existence of a rendition agreement affect the principles in determining who should have jurisdiction? Relevance of a rendition agreement to the jurisdictional controversies Currently, there is no rendition agreement between Hong Kong and the Mainland enabling the formal transfer of an alleged offender from the Mainland to Hong Kong. 53 Could a rendition agreement help resolve who has jurisdiction in a cross-border case?

The absence of formal rendition arrangement does not actually prohibit the transfer of suspects from the mainland to the Hong Kong. 54 Under existing administrative arrangements between Hong Kong and the Mainland, fugitives have been transferred back to Hong Kong for crime committed in Hong Kong although this has been limited to non-Mainland offenders. 55 However, surrender of fugitives from Hong Kong to the Mainland has never occurred. 56 The non-surrender of Mainlanders and the one-way nature of transfers, undermine the effectiveness of the arrangement in combating cross-border crimes.

57 It should be noted that whether Mainland courts can exercise their jurisdiction in Hong Kong is not an incidental issue to a rendition arrangement. 58 If there is any rendition agreement entered by Hong Kong and the Mainland, it will only provide for the transfer of suspects59 as with most normal extradition treaties. 60 The solution for deciding which jurisdiction should prevail over another will remain unresolved by the negotiation of a rendition agreement. 61 Since a rendition agreement concerns only the transfer of suspects, not the underlying issue of competing jurisdictions.

If the existence of concurrent jurisdiction within the territory of Hong Kong over cross-border crimes is affirmed, the PRC Criminal Law will still be applicable even after the conclusion of a rendition agreement. 62 Unless the rendition agreement had specified the exclusion of the PRC Criminal Law's applicability over the territory of Hong Kong, problem under concurrent jurisdiction still exists. 63 Further, the absence of a rendition arrangement only constitutes an executive problem but not a legal problem.

64 Indeed, under Article 95 of the BL,65 Hong Kong is allowed to maintain juridical relations with the judicial organs of other parts of the country through consultation. 66 Judicial assistance has been contemplated in Article 95 of the BL. 67 Theoretically, if Hong Kong can maintain an effective system of judicial assistance over transfer of suspects with PRC judicial institutions, the transfer of suspects (even a mainland suspect) for crimes that were solely committed in Hong Kong should not create any problem.

68 Hence, even under the assumption that the extra-territorial jurisdiction of the Mainland under the personality principle was not applicable to Hong Kong cases and that the PRC Criminal Law could not apply in Hong Kong should raise no practical problem to any such transfer. 69 In short, a rendition agreement governing the transfer of suspects between the Hong Kong and the Mainland does not resolve the issue of who should have jurisdiction.

Rather, it is a tool for executing the principles in dividing criminal jurisdiction and would set out the framework of under what conditions suspects would be transferred. Principles in deciding jurisdiction between Hong Kong and Mainland The conflict of jurisdiction between Hong Kong and the Mainland is a regional conflict which happens within a country. 70 It happens in two fayu which have fundamental differences in their respective economic and social conditions and jurisprudence.

While Hong Kong belongs to the common law system, the Mainland is belonged to the socialist legal system. 72 Furthermore, the occurrence of the conflict is based upon the premises that Hong Kong enjoys a high degree of autonomy, independent legislative power and final adjudication. 73 The conflict of jurisdiction between Hong Kong and the Mainland cannot be resolved by unified substantive law as each jurisdiction has its own criminal law system nor can it be solved by a unified court as Hong Kong courts are not subordinate to the Mainland Courts.

74 Therefore, developing specific principles for determining which place should have jurisdiction is essential. There are lots of different opinions and suggestions in relation to the principles and criteria for deciding the criminal jurisdiction between Hong Kong and the Mainland. Nevertheless, the principles should not be incompatible with the basic policies guaranteed by the PRC in the BL and its articles in relation to Hong Kong. 75 Scholar Zhang Xiaoming has proposed some general principles for deciding jurisdiction over cross-border crimes.

76 Firstly, in the situation of concurrent jurisdiction of both Hong Kong and the Mainland, the judicial institutions of the place where the crime occurs should exercise the jurisdiction. 77 Secondly, if the act of crime and the consequence of the crime occur in different places, the judicial institutions of the place where the consequence of the crime occurs should have the jurisdiction. 78 Thirdly, if a crime is committed partly in Hong Kong and partly in the Mainland, the judicial institutions of the place where the main criminal act or the main elements of crime occurs should have the jurisdiction.

79 Fourthly, if the crimes were committed in Hong Kong and the Mainland consecutively, the judicial institutions of both sides should have jurisdiction over the particular crime happened in its own jurisdiction. 80 Scholars Zhao Bingzhi and Tian Honjie have proposed a list of specific rules for settling the conflict of criminal jurisdiction between Hong Kong and the Mainland. 81 They suggested that in dealing with this conflict, the territorial principle should be used as the basis and supplemented by the principles of "actual control" and "first control".

Nevertheless, the concept of "first control" was not clear. 83 Should it be determined by where a victim first reports the case; or should it be determined by the place which starts the investigation first; or should it be determined by the place which starts the prosecution first. 84 All these required further exploration before they could be used for solving the criminal jurisdiction conflict between Hong Kong and the Mainland. As suggested by Priscilla Leung, the "most convenient venue" principle should precede in determining which jurisdiction prevail another.

85 She suggested that in the cases of a continuous act across jurisdictions, the place where the "major damage" is committed should have jurisdiction over the case. 86 However, she did not elaborate on the concept of most convenient venue. 87 Should convenient venue be considered in terms of prosecuting the offender? Or should it mean the most convenient venue for trial taking the availability of evidence into account? Or should it be the venue for offenders to keep contact with family under humanitarian grounds?

Again, the meaning of "most convenience venue" requires further exploration before it can be used for solving the criminal jurisdiction conflict between Hong Kong and the Mainland. To summarize, most of the views mentioned above seems to suggest that territorial principle should be the major principle. 88 If it cannot resolve the conflict, principles such as "the most convenient venue", "the first control" and "the actual control" can be taken into consideration if they are specific and clear enough. Difficulties in reaching a Formal Rendition Agreement

Hong Kong has successfully negotiated and entered into more than 10 bilateral extradition agreements with foreign countries. 89 By contrast, no formal rendition agreement has been reached between Hong Kong and China. 90 In fact, the relationship of Hong Kong and China, being a Special Administrative Region within one country, is different from that under a rendition agreement between Hong Kong and foreign countries. As a result of such difference, there are some issues regarding the content and scope of the formulation of a formal rendition agreement will raise difficulties.

Double Criminality In drafting a rendition agreement between the Hong Kong and China, one of the most important issues is whether the "double criminality principle" which provides that only conducts which are punishable under laws of both sides can amount to an extradition should be adopted. 91 This principle is an international convention adopted between countries. There is opinion that this principle should not be adopted as the agreement between Hong Kong and China is merely a regional issue which should be distinguished from the international one between countries.

They based their reasoning on the territorial principle over jurisdiction and the fact that provisions on criminal offence in the two places are different. However, others have suggested that this principle should be adopted as it has already been followed by Hong Kong and the Mainland over their current extradition judicial practice. 93 Extraditable Offence Another issue to be taken into consideration is what offences can amount to a transfer.

The Fugitive Offenders Ordinance ("FOO") which governs the arrangements for the surrenders of fugitive offenders between Hong Kong and foreign countries (exclude the Mainland China)94 has adopted the listing approach in defining the meaning of extraditable offences. Whereas in China, the eliminative approach has been adopted in all the extradition treaties signed between the Mainland and other countries. Whether the enumerative or the eliminative approach should be adopted in the formal rendition agreement is another considerable issue.