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Opinion | Criminal fugitives: Facing justice on both sides of the border

In this opinion piece, Grenville Cross shares his insights on the case of the 12 fugitives.

By Grenville Cross

On August 23, the China Coast Guard intercepted a speedboat in Shenzhen waters, with 12 criminal fugitives from Hong Kong on board. Having boarded the vessel in Sai Kung, they were trying to flee to Taiwan, where they hoped to claim safe haven. Given that Hong Kong has no surrender of fugitive agreement with Taiwan, they would have hoped either to stay there, or else to use it as a springboard for entry into one of the countries that have recently suspended their agreements with Hong Kong, such as Australia, Canada or the United States. None of those places is concerned that fugitives are accused of committing the gravest of crimes, and all that matters is that the crimes are in any way "protest-related", which is an obvious incentive to others in Hong Kong to offend in the same way, thereby endangering life, limb and property.

Indeed, the fugitives are wanted in Hong Kong for some of the most serious offenses in the criminal calendar. They include the alleged manufacture or possession of explosives, arson, conspiracy to wound, rioting, assaulting a police officer, possession of offensive weapons, money laundering and violating the national security law. Although, therefore, all right-thinking people will be grateful to the Chinese authorities for preventing the fugitives from evading justice, the US secretary of state, Mike Pompeo, instead of thanking China, announced, on December 19, that they should "be released immediately", as they were only trying to "flee tyranny", and were only "seeking freedom elsewhere". Even for such a seasoned hypocrite as Pompeo, these remarks marked a new low, as they sought, for political reasons, to lend legitimacy to crimes which, if occurring in the United States, would be prosecuted to the hilt.

Under China's Criminal Law, illegal entry into mainland China is an offense, punishable with one year's imprisonment, although this can rise to 3 years' imprisonment if there is a terrorist dimension. If, however, somebody is involved in organizing an illegal entry, the maximum sentence increases to 7 years' imprisonment. In consequence, prosecutors in Shenzhen's Yantian district approved the charging of the fugitives with either illegal border crossing or organizing such an act. On December 28, ten of the fugitives appeared for trial at the Yantian District People's Court, where eight of them pleaded guilty to illegal border crossing, and two to organizing the offense, and the sentencing formalities are now being completed. As the other two fugitives are aged under 18, they have faced a separate hearing with prosecutors, described as "close-door".

Since the fugitives have been in detention pending trial for five months, this will be taken into account in the computation of the time to be served under the final sentence. In practical terms, therefore, many of them will likely be back in Hong Kong in the near future, perhaps sooner than most people expected. Upon return, they will have to face the music, with the criminal proceedings they originally faced getting back on track.

When they fled, at least one of the fugitives was still under investigation. If the investigations are complete and legal advice has been obtained, charges could now be forthcoming, including under the national security law. For those who fled while on court bail, and thereby hoodwinked the judiciary, there must be immediate detention until the conclusion of their trials. Even the most relaxed of magistrates will have no difficulty in refusing any of them bail, not least because everyone can now see the lengths to which they, and their foreign backers, are prepared to go in order to cheat justice.

Although there is no specific crime of exiting Hong Kong through non-official channels, which, for example, fishermen do all the time, those suspects who were on court bail must expect to be prosecuted for absconding. Under the Criminal Procedure Ordinance, a person who, without reasonable cause, fails to surrender to custody on the day appointed by the court is guilty of an offense, the maximum punishment for which is 12 months' imprisonment, and "a fine of any amount" (Sect.9L). Any money deposited with the court, or any recognizance of bail (surety), may also be forfeited (Sect.9M).

If, moreover, the suspects are prosecuted for absconding, as they surely must, it will clearly be difficult for them to mount any credible defense, save perhaps on technical grounds. The courts, moreover, would be fully justified, for sentencing purposes, in treating their cases as being in the worst category for offenses of this sort, and, in accordance with principle, imposing condign punishment.

Their flights, however, may also have a significant impact on the trials the suspects will face, assuming they plead not guilty. This is because, in a contested trial, prosecutors are entitled to adduce evidence that a defendant has fled from a place in order to avoid arrest or trial, and they do this on the basis that it is indicative of a consciousness of guilt. In 1990, in the Judicial Committee of the Privy Council, the predecessor of the Hong Kong Court of Final Appeal, Lord Ackner, in an appeal from Hong Kong, said that, for flight to be capable of amounting to an admission of guilt, "there must be some evidence which establishes a link between the conduct of the accused, his flight or concealment and the offense in question" (The Queen v Chan Kwok-keung). Since the suspects were either on court bail or under criminal investigation at the time they fled, prosecutors will have very little difficulty in placing reliance on the evidence of flight as materially supporting their prosecutions, particularly as there is, it seems, no innocent explanation for what they did.

What this episode shows, therefore, is that justice is not lightly cheated, that the forces of law and order, on both sides of the border, are more than equal to the challenges they face, and that foreign forces cannot subvert the legal system, whether in Shenzhen or Hong Kong. Once they return from mainland China, the fugitives will receive fair trials here, which was always the case, and they will only be convicted if prosecutors can establish their guilt beyond a reasonable doubt. By their actions on August 23, however, they have provided prosecutors with significant new evidence which will greatly assist them in proving the guilt of those on trial.

 

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

The views do not necessarily reflect those of DotDotNews.

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