Opinion | Fugitives arrested: Actions have consequences and justice prevails

By Grenville Cross

On August 23, the China Coast Guard intercepted a speedboat in Shenzhen waters. It was found to contain 12 criminal suspects from Hong Kong, apparently hoping to escape justice in Taiwan. The fugitives included at least one person who was under investigation for breaches of Hong Kong's National Security Law, as well as people who had already been charged before the courts with protest-related crimes, including making or possessing explosives, arson, riot and conspiracy to wound with intent to cause grievous bodily harm.

Apart from anything else, therefore, these attempted flights have placed a sharp focus on the laxity of the bail arrangements being imposed by the judiciary. Given that this was not an isolated incident, and that other charged persons have previously escaped to Taiwan, as well as to places like Germany, the courts must now be far more realistic. Flight, regrettably, is now a real possibility in national security and public order cases, not only because of the welcoming attitude of the Taiwan authorities, but also due to the hostile stance of the United States and its allies, some of whom, including the US, have suspended their extradition treaties with Hong Kong, in order to spite China.

Active encouragement, therefore, is being provided by various jurisdictions to criminal suspects to flee, and courts considering bail must now factor this in, as it clearly operates as a magnet to many of them. On top of this, the suspects often have access to unlimited finances, which makes it easier for them to pay snakeheads to transport them to Taiwan. The money also covers their costs in getting to foreign destinations, including flights, the bribery of facilitators, the production of false travel documents, and accommodation expenses. The courts, quite clearly, can no longer disregard these factors, and, if bail is granted, very strict terms are vital, including daily reporting to a police station.

Anybody who enters the mainland unlawfully is liable to 1 year's imprisonment, although this rises to 3 years if the entry is terrorism-related. The Shenzhen prosecuting authorities, therefore, will need to ascertain from the crew and the passengers who exactly arranged the trip, who provided the finance, how much each of the passengers paid for their berths, and who, if anyone, had been bribed. They will also wish to discover the extent, if any, of involvement in the plot by Taiwanese facilitators. This, of course, will take time, but hopefully the truth will be forthcoming. If culpability is established, prosecutions are a real possibility, given what is known of the background of those involved.

Although the US Secretary of State, Mike Pompeo, whose government's handling of illegal immigrants at the US-Mexico border has sparked global outrage, has tried to stoke concerns over the processing of the 12 suspects, this is no more than cynical mischief-making, designed to appease anti-China elements. If Pompeo finds it acceptable to separate little children from their parents in border detention centers, leaving many traumatized, he has clearly forfeited any right to pontificate upon the treatment of criminal suspects trying to evade justice.

Indeed, the Shenzhen authorities may have widened the scope of their investigations. When responding to Pompeo, the foreign ministry spokeswoman, Hua Chunying, having pointed out that the suspects were arrested for illegally crossing the border by sea, added that they were "elements attempting to separate Hong Kong from China". This suggests, therefore, that the arrestees are now also suspected of secessionism, which, if true, obviously makes their situation far more serious. As the PRC National Security Law makes plain (Art.15), conduct designed to betray the country or divide the nation may be "lawfully punishable".

Under the PRC Criminal Law (Art.6), moreover, China can assume jurisdiction over an offence which, while committed elsewhere, has a consequence within its territory. Thus, for example, if a Hong Kong resident commits a robbery in Hong Kong, and then spends the stolen cash in the mainland, he can also be prosecuted there as he was unlawfully disposing of his criminal proceeds, which amounts to money laundering under mainland law. If, therefore, people plot secession in Hong Kong, and plan to further their plan by joining hands with hostile forces when they arrive in Taiwan, but instead end up in the mainland, this could be viewed as a consequence of their original plan, albeit that it went awry, and is therefore prosecutable.

Although Pompeo, and his local proxies, have criticized the Hong Kong authorities for not doing more for the 12 suspects, they are obviously ignorant of the legal situation. Anyone who allegedly commits a crime on the mainland is subject to its legal procedures and criminal code, and can expect no special favors. If Hong Kong residents are convicted of offences under the mainland's laws, they are returned only after the necessary proceedings have been completed, and after their sentences, if any, have been served.

This, moreover, is precisely how cases are handled in the US and elsewhere, and no amount of sanctimonious huffing and pumping by the likes of Pompeo can affect these basic realities, let alone thwart justice.

Grenville Cross is a Senior Counsel and Professor of Law, and was previously the Director of Public Prosecutions of the Hong Kong SAR.

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