By Lei Wun-kong
Shortly after the promulgation of the National Security Law for Hong Kong (NSL), the Hong Kong Police Force issued an arrest warrant for US citizen Samuel Chu, who was the founder of Hong Kong Democracy Council. Chu was the first foreign citizen to be targeted under the NSL. Unlike the low-profile approach to the handling of Chu’s case, the police are now adopting a high-profile approach by offering a HK$1 million (US$127,900) reward for information leading to each arrest of eight anti-China disruptors accused of violating the NSL. Not surprisingly, these extraterritorial acts have been criticized by Australia, Britain and the US, where the eight fugitives are now living.
The three countries have launched a barrage of criticism of the police’s decision. The Hong Kong Special Administrative Region government and relevant central authorities have rightly rejected the unfair criticisms from these countries, which should be viewed through the prism of the geopolitical rivalries between China and the US as well as through the deep-seated prejudices created by the blind faith in Anglo-Saxon institutional superiority.
As Bing Ling, of the University of Sydney Law School, has correctly pointed out, from the very beginning, the NSL has been embroiled in international geopolitical rivalries, and any future disputes over the extraterritorial effect of the NSL could very well carry broad political implications (Bing Ling, “Extraterritorial Application of the Hong Kong National Security Law: A New Legal Appraisal”, in The National Security Law of Hong Kong: Restoration and Transformation, Hong Kong University Press).
In a bid to discredit the HKSAR and weaken China, the US has been vocal in its criticism of the NSL since its promulgation. Thanks to bipartisan unity, the US took concrete legislative and executive action against Hong Kong. The Hong Kong Autonomy Act and the Executive Order 13936 came about under the Trump administration. The order implemented sanctions on Chinese officials and HKSAR leaders. To a large extent, the American criticism of the extraterritorial application of the NSL is a facade for Washington’s attempt to use the HKSAR as a Trojan horse to weaken China.
In order to have a proper understanding of the controversy over the cash bounty, we should keep this geopolitical rivalry in mind and desist from automatically viewing the issue of arrest warrants through the distorted lens of Western countries’ perspectives. The hostile attitude adopted by these eight anti-China disruptors toward China and the HKSAR should serve as a critical focus for an independent analysis free from ideological bias which is entrenched in Western-dominated narratives.
The police should draw the public eye closer to the fact that seven of the eight wanted people had appealed for international sanctions against Hong Kong. In the high-profile “primary election” case, the prosecution has alleged that Dennis Kwok was a co-conspirator in organizing the “primary election” to destabilize the HKSAR government.
These eight individuals were singled out probably because they were alleged to have been involved in serious national security crimes. Since fleeing Hong Kong, some of them have not turned their attention away from the city. For example, Dennis Kwok suggested in a policy report that overseas governments should engage in activities hostile toward China and the HKSAR. Kevin Yam has publicly expressed support for sanctions against Hong Kong judges. Ted Hui and some activists have been vocal in maliciously attacking the HKSAR government.
Although Australia, Britain and the US suspended extradition treaties with Hong Kong following the promulgation of the NSL, the offer of bounties has reminded us that the criminal and security-threatening activities of the eight wanted people are cause for public odium and condemnation. The rewards also reflect the desire of the authorities to issue a fresh warning that the “black clouds” of national security risks are still hanging over the city.
Another warning signal sent by the rewards on offer is that local supporters and friends of the eight wanted people should keep a safe distance from them. Secretary for Security Chris Tang Ping-keung said Hong Kong investigators have taken steps to track down the source of funds that have supported the suspects. It hardly needs emphasizing that these funds are illegal (Articles 21, 23 and 26 of the NSL).
Every sinner deserves a second chance. These eight wanted people should admit their guilt and surrender themselves to the police. Pursuant to Article 33 of the NSL, a penalty may be reduced if the accused person has voluntarily surrendered himself or herself and given a truthful account of the offense. If the court decides to reduce a penalty, it may reduce it from the upper tier to the less serious lower tier (HKSAR vs Lui Sai Yu, CACC 61/2022, para 69).
To conclude, we must treat the criticisms against the offer of bounties for the arrest of eight anti-China disruptors with skepticism. Viewed in light of the geopolitical rivalries between the US and China, the US and its allies have strong motivation to discredit the NSL and the extraterritorial application of the NSL. To be fair, extraterritorial powers exist in the national security laws of other countries. It is now well established that a state may apply its criminal law to the actions committed by a foreigner outside its territory that endanger the security or a limited class of other vital interests of the state (Bing Ling, op. cit, p.241).
In fact, the NSL is a combination of personal jurisdiction, territorial jurisdiction and protective jurisdiction, including: 1) offenses under this law that are committed in Hong Kong (Article 36, territorial jurisdiction); 2) a permanent resident of Hong Kong or an incorporated or unincorporated body such as a company or an organization which is set up in Hong Kong, if the resident or the body commits an offense under this law outside Hong Kong (Article 37, personal jurisdiction); and 3) offenses under this law against the HKSAR from outside the region by a person who is not a permanent resident of the region (Article 38, protective jurisdiction).
The author is a Macao lawyer, Macao and litigation and practice senior consultant of Chinese Dream Think Tank.
The views do not necessarily reflect those of China Daily.
【CDTT Newspaper Article】Lei Wun-kong：Criticisms of SAR’s manhunt for fugitives stem from geopolitics, deep-seated prejudices (China Daily HK Edition, 7 July 2023)
This article is reproduced by Kwun Media with the consent of China Daily.
Chinese Dream Think Tank is a non-profit Hong Kong-based organization working with skilled volunteers, experts and professionals who are passionate about telling the China story well.
這八名逃犯現分別匿藏在澳洲、英國與美國。有：三名前立法會議員羅冠聰、許志峰與郭榮鏗；特區工會領袖蒙兆達、事務律師任建峰以及郭鳳儀、劉祖迪與袁弓夷。根據特首李家超先生「… [八名逃犯] 要終結被通緝生涯，只有一個方法就是自首，自首者可獲考慮減刑，否則只會終身被通緝，每日擔心被捕，惶恐渡日。
美國與英國首當其衝，率先對警方的執法決定發起一連串批評。美國國務院發言人表示，美國譴責警方國安處懸紅通緝八名身處海外的人士，認為此舉將開創一個危險的先例，威脅到世界各地人士的人權與基本自由。英國外交大臣祈湛明(James Cleverly)表示: 警方的決定，認為是我國域外法律威權影響力的又一例證(註2)。
澳洲的反應似乎比上述兩位老大哥們來得比較溫和。外交部長黃英賢 (Penny Wong)表示，澳洲政府對香港當局的決定深感失望。澳洲總理阿爾巴內塞(Anthony Albanese)表示: 特區政府的做法不可以接受(註3)。駐港國家安全公署與特區政府則表示堅決反對這些不實指控(註4)。大家應該從現時中美地緣政治競爭的角度來衡量上述不公平的論述，「盎格魯-撒克遜」制度所產生的優越感(Anglo-Saxon Institutional Superiority)是造成他國對我國根深蒂固偏見的主要原因。
美國為抹黑特區，削弱我國和平崛起，自《港區國安法》生效以來，她在無理譴責《港區國安法》方面不遺餘力。由於兩黨在打壓我國發展層面團結一致，美國對特區已採取了具體的立法與行政行動。《香港自治法》(The Hong Kong Autonomy Act)與《香港正常化總統行政命令第13936號》(The President’s Executive Order on Hong Kong Normalisation)早於特朗普政府時期出台，對我國官員與特區主要官員實施制裁(註6)。幾乎可以肯定一點，美國對《港區國安法》域外適用的批評是華盛頓試圖利用特區作為特洛伊木馬來削弱我國的又一個幌子。
註 1: Wikipedia「Samuel Chu Muk Man」available at: https://en.m.wikipedia.org/wiki/Samuel_Chu
註 2: 星島頭條「國安處通緝8人｜英外交大臣批評決定 英國會捍衛言論自由」04.07.2023 available at: https://www.stheadline.com/world-live/3249851/國安處通緝8人英外交大臣批評決定-英國會捍衛言論自由
註 3: 雅虎新聞「澳洲總理阿爾巴內塞：港府懸紅通緝兩居澳港人不可接受」05.07.2023 available at: https://hk.finance.yahoo.com/news/澳洲總理阿爾巴內塞-港府懸紅通緝兩居澳港人不可接受-020435665.html
註 4: 雅虎新聞「美國譴責香港懸紅通緝在海外人士 認為開創危險先例」04.07.2023 available at: https://hk.yahoo.com/home/%E7%BE%8E%E5%9C%8B%E8%AD%B4%E8%B2%AC%E9%A6%99%E6%B8%AF%E6%87%B8%E7%B4%85%E9%80%9A%E7%B7%9D%E5%9C%A8%E6%B5%B7%E5%A4%96%E4%BA%BA%E5%A3%AB-%E8%AA%8D%E7%82%BA%E9%96%8B%E5%89%B5%E5%8D%B1%E9%9A%AA%E5%85%88%E4%BE%8B-223134180.html
註 5: Bing Ling「Extraterritorial Application of the Hong Kong National Security Law: A New Legal Appraisal」in Hualing Fu & Michael Hor (eds.),「The National Security Law of Hong Kong: Restoration and Transformation」 HKU Press 2022 at p 254
註 6: Justine Yu「The United States’ Ineffective Response Towards Hong Kong’s National Security Law」in Hastings Law Journal Vol. 73 Issue 1, 2022 at pp 173-174
註 7: Hillary Leung「Hong Kong 47: Prosecutors name ex-lawmaker Dennis Kwok as ‘co-conspirator’ in national security trial」Hong Kong Free Press 12.04.2023 available at: https://hongkongfp.com/2023/04/12/hong-kong-47-prosecutors-name-ex-lawmaker-dennis-kwok-as-co-conspirator-in-national-security-trial/
註 8: Clifford Lo and Natalie Wong「Hong Kong national security law: police offer HK$1 million rewards for arrest of 8 people, including 3 ex-lawmakers」SCMP 03.07.2023 available at: https://amp.scmp.com/news/hong-kong/law-and-crime/article/3226372/hong-kong-national-security-law-police-offer-hk1-million-rewards-arrest-8-people
註 9: SCMP「Hong Kong security chief issues warning over June 4 anniversary as pro-Beijing groups deny Victoria Park carnival aimed at blocking any vigil」30.05.2023 available at: https://amp.scmp.com/yp/discover/news/hong-kong/article/3222274/hong-kong-security-chief-issues-warning-over-june-4-anniversary-pro-beijing-groups-deny-victoria
註 10: HKSAR v. LUI SAI YU  1 HKLRD 751 at § 69 available at: https://legalref.judiciary.hk/lrs/common/search/search_result_detail_frame.jsp?DIS=149076&QS=%24%28CACC%2C61%2F2022%29&TP=JU
註 11: 同前，註 5 at p 242