Some Implications of the Decision to Issue Arrest Warrants for Eight Overseas Hong Kong Dissidents: Facilitation Principles and the HKSAR National Security Law

 

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By now it is well known that "Hong Kong national security police have issued arrest warrants for eight self-exiled activists, including former lawmakers Ted Hui and Dennis Kwok. The Force also offered HK$1 million for each of the wanted people." (Hong Kong Free Press). It is also well known that the authorities acted about a week after an editorial in state-owned newspaper Ta Kung Pao. That editorial follows.

話你知/國安法規管範圍 包括非港人在境外犯罪
時間：2023-06-22 04:03:00來源：大公报

　　香港國安法第38條規定，「不具有香港特區永久性居民身份的人在香港以外針對香港實施本法規定的犯罪，適用本法」。換言之，該條規定適用於非香港人在香港境外所犯下的罪行。

　　可要求國際刑警緝拿逃犯

　　資料顯示，香港特區若要引渡外國罪犯回港受審，特區政府須正式通知有關國家，要求當地執法機關將逃犯拘捕，送回香港受審，即使這個國家已暫時中止與香港的移交逃犯協議，但可按個別事件合作。同時，中國是國際刑警組織（INTERPOL）的成員（而香港屬中國支局），可以要求INTERPOL通過全球近200個國家成員，通緝香港國安法逃犯。如香港警方要發出紅色通告，要求其他國家協助，尋找逃犯下落及將之引渡返港受審，案件負責人員必須先行徵詢律政司意見，然後連同有關法律意見及本港法庭發出的拘捕令，向聯絡事務科提出要求。

 Did you know: the scope of the National Security Law includes crimes committed by non-Hong Kong residents abroad
Time: 2023-06-22 04:03:00 Source: Ta Kung Pao

Article 38 of the Hong Kong National Security Law stipulates that "this law shall apply to persons who do not have permanent resident status of the Hong Kong Special Administrative Region and commit crimes against Hong Kong outside Hong Kong." In other words, the provision applies to offenses committed by non-Hong Kong persons outside Hong Kong.

Can ask Interpol to arrest fugitives

According to the data, if the Hong Kong SAR wants to extradite foreign criminals back to Hong Kong for trial, the SAR government must formally notify the relevant countries and request the local law enforcement agencies to arrest the fugitives and send them back to Hong Kong for trial, even if this country has temporarily suspended the fugitive surrender agreement with Hong Kong. However, cooperation of this sort must be made on an individual basis. At the same time, China is a member of the International Criminal Police Organization (INTERPOL) (while Hong Kong is a Chinese branch), and can request INTERPOL to arrest Hong Kong fugitives under the National Security Law through members from nearly 200 countries around the world. If the Hong Kong police wants to issue a red notice, requesting assistance from other countries to find the whereabouts of the fugitive and extradite him to Hong Kong for trial, the person in charge of the case must first consult the Department of Justice, and then, together with the relevant legal advice and the arrest warrant issued by the Hong Kong court, make a request to the Liaison Services Section.

 The action has drawn a lot of attention in the West, and some debate.  Much of it falls within predictable discursive patterns. All of it is meant more to produce some inconvenience to the people against whom warrants were issued; and cause them to exercise greater care in their travels--much like Mr. Putin and a host of people on sanctions lists in other countries.  To some extent, this may be a case of imitation as flattery--and also as a nod to the at least discursive value of such gestures.  And it is th narrative that is important, the purpose of which is to paint people (and by implication their causes) in a politically useful light.

But almost lost in the fuss about the warrants and the bounty was a much more interesting aspect of this action--what appears to be the consideration of a broad facilitation principle for the application of the HK National security law.  It was summed up nicely by Senior Superintendent Hung Ngan of the National Security Department: "'I want to remind everyone that assisting, instigating and using money or other properties to fund others in committing offences endangering national security also amounts to breaching the law,' he said." (Hong Kong Free Press).  

The idea has been gaining traction within liberal democratic circles with respect to human rights violations. It has become a tool for determining applicability, for example of the Norwegian Pension Fund Global's Ethics Guidelines--especially with respect to activity in Myanmar (see eg here). This suggests, in turn, a convergence between security and sanctions regimes that present themselves quite differently in distinct national contexts. But it also continues to raise the prominence of the concepts of both complicity and facilitation.  One might expect further development of both--one within the context of liberal democratic human rights regimes; the other within the context of Marxist-Leninist security-development-prosperity regimes.

Now, one might consider the extent to which the principle might be applied to anyone who facilitates the work of the people against whom warrants have been issued.  Of course, that might include government officials, foundations, universities--virtually anyone who provides them with a platform or any sort of support--depending on the willingness of the authorities to extend the reach of the National Security Law to that extent.   That, of course, is unlikely, but not impossible. Those foreigners in that possible position, though, would have to think hard about visiting any place where they might be subject to the reach of the authorities. Much more likely is that the broad facilitation rules will be applied to those within the HKSAR that assist, directly or indirectly, in bringing the message of the exiles back home. Here the evolution of concepts of both complicity (intent-based or reckless standard) and facilitation (absolute liability standard on the one end and gross negligence or mandatory due diligence (compliance based) standard on the other) will likely be influential--not just in HKSAR but across  other legal systems and to other ends.

All of this is speculation. And the authority of the person raising the issue  to actually make good on that idea remains in doubt. Yet, the insight is a powerful one. Complicity and facilitation are essential elements of the disciplining of core normative principles.  In human collectives, built around mandatory expectations of the rationalization of social relations it is no longer effective to use the ancient modalities of attaching norm breaches to an individual. That one to one alignment  is inefficient.  Where the object is to manage society--the web of discipline must extend to those who made the breach possible--either directly or indirectly; intentionally or by reason of otherwise ordinary course relationships.  It will be interesting to see if or whether societies will realize the power of facilitation and complicity as mass management technique.

Reporting by the Hong Kong Free Press follows below.

 

 

Hong Kong national security police issue HK$1 million bounty each for 8 self-exiled activists

The move, which sees arrest warrants for overseas activists including Ted Hui and Elmer Yuen, came two days after Hong Kong marked the third anniversary of the Beijing-enacted national security law.

by Kelly Ho18:36, 3 July 2023

Hong Kong national security police have issued arrest warrants for eight self-exiled activists, including former lawmakers Ted Hui and Dennis Kwok. The Force also offered HK$1 million for each of the wanted people.

Hong Kong national security police announcing arrest warrants for eight overseas activists at a press conference on July 3, 2023. Photo: Kelly Ho/HKFP.

The announcement came a week after an editorial in state-owned newspaper Ta Kung Pao cited Article 38 of the national security law, which states that the sweeping legislation applies to people outside the city. It added that China – as a member of International Criminal Police Organization, or Interpol – can request international cooperation from member countries to help apprehend fugitives.

Police named ex-lawmakers Ted Hui and Dennis Kwok; activists Nathan Law, Anna Kwok, Elmer Yuen, Mung Siu-tat and Finn Lau; and solicitor Kevin Yam as the eight who were wanted.

Chief superintendent of the national security police Steve Li said offering the bounties was not the Force’s way of putting on a show, but was enforcement of the law.

He cited Article 37 and Article 38 of the Beijing-enacted security law, and said Hong Kong police had extraterritorial jurisdiction and the responsibility to pursue individuals based overseas who committed acts endangering the city’s national security. Such powers were stipulated in similar legislations adopted in other countries and regions, he said.

The chief superintendent of the national security department Steve Li on July 3, 2023. Photo: Kelly Ho/HKFP.

Police said that the group had “seriously violated the national security offences, called for sanctions against local officials and schemed for foreign countries to undermine Hong Kong’s financial status.” The eight should come forward and surrender, police added, saying the courts may consider imposing a lighter penalty if they did so.

Li admitted that the Force would not be able to arrest the wanted individuals if they did not return to the city. But the arrest warrants would be useful for future law enforcement actions, he said.

The purpose of offering reward notices for the eight activists was to allow the Hong Kong authorities to find their whereabouts and be prepared to make “effective arrests” in case the wanted individuals return to the city one day.

“Of course, you may say that now they are in overseas, that will not be useful. But you never know, maybe someday they come back to Hong Kong through other illegal means, that kind of information should be very useful for us,” he said.

Hong Kong national security police announcing arrest warrants for eight overseas activists at a press conference on July 3, 2023. Photo: Kelly Ho/HKFP.

China’s top legislative body passed a national security law in Hong Kong in June 2020 after months of protests and unrests against a controversial extradition law. It criminalised subversion, secession, collusion with foreign forces and terrorist acts, which were broadly defined to include disruption to transport and other infrastructure.

The move gave police sweeping new powers, alarming democrats, civil society groups and trade partners, as such laws have been used broadly to silence and punish dissidents in China. However, the authorities say it has restored stability and peace to the city.

Calls for sanctions, independence

Speaking at Monday’s press conference, Senior Superintendent Hung Ngan of the police National Security Department said the Force had evidence against the eight wanted individuals relating to their alleged national security offences.

The superintendent of the national security department Hung Ngan on July 3, 2023. Photo: Kelly Ho/HKFP.

According to the arrest warrant, solicitor Yam, 46, was said to have met with foreign government leaders in November and December last year and called for sanctions against Hong Kong officials. He also allegedly made similar appeals at a hearing held by an official foreign organisation in May, asking foreign countries to sanction members of the city’s Judiciary and public prosecutors.

Yam stands accused of “collusion with a foreign country or with external elements to endanger national security.”

Hui, 41, is wanted for inciting subversion and secession, and foreign collusions. He was said to have initiated the “2021 Hong Kong Charter” with others since March 2021 and repeatedly advocated for Hong Kong independence and Taiwan independence on social media platforms.

He also allegedly called for sanctions against local officials in social media posts and engaged in other activities which the police described as being hostile against China and Hong Kong between January 2021 and December 2022.

Elmer Yuen listed as one of the eight pro-democracy activists wanted by the national security police. He is accused of subversion and collusion with foreign forces to endanger national security. Photo: Kelly Ho/HKFP.

Yuen, 74, who is the father-in-law of pro-establishment legislator Eunice Yung, was said to have urged foreign countries to impose sanctions on Hong Kong officials and members of the Judiciary on various online platforms between July 2020 and May 2023. He was also among the activists behind a plan to form a “Hong Kong Parliament” last year, which promoted Hongkongers’ right to self-determination. Such acts amounted to subverting the state power and foreign collusion, police said.

The Security Bureau said last August that the activists involved in the “Hong Kong Parliament” were suspected of subversion.

Police alleged 45-year- old ex-Civic Party legislator Dennis Kwok supported recommendations in a report published by a foreign organisation in September 2021, which requested overseas governments to impose sanctions and blockade and in other hostile activities against China and Hong Kong.

The former politician, who is also a lawyer, was said to have appealed for financial sanctions on Hong Kong at a meeting held overseas last December. He faces a charge of colluding with foreign forces.

Nathan Law listed as one of the eight pro-democracy activists wanted by the national security police. He is accused of incitement to secession and collusion of foreign forces to endanger national security. Photo: Kelly Ho/HKFP.

Activist Law, 29, stands accused of requesting foreign sanctions or blockade on Hong Kong and calling for the city’s separation from China by attending hearings, meeting foreign politicians, giving media interviews, penning open letters, signing petitions and making social media posts between July 2020 and last November.

Police said his actions amounted to inciting secession and foreign collusion.

According to police, between September 2021 and last February, 26-year-old activist Anna Kwok met foreign lawmakers and officials to call for sanctions, and attended meetings of the Hong Kong Democracy Council, for which she has been accused of colluding with foreign agents.

Anna Kwok Fung-yee listed as one of the eight pro-democracy activists wanted by the national security police. She is accused of collusion with foreign forces endangering national security. Photo: Kelly Ho/HKFP.

Mung, 51, faces one charge of inciting secession over an overseas meeting held in June 2022 at which police said he “smeared” the Hong Kong and central governments, and advocated separating the city from mainland China.

Twenty-nine-year-old Lau is facing a foreign collusion charge after allegedly calling for sanctions on various platforms through Hong Kong Liberty, an organisation he founded, between July 2020 and June 2021.

The national security police would take “necessary and effective measures” to cut off the chain of funding to the wanted activists, said Senior Superintendent Hung Ngan of the National Security Department.

Some of the wanted people had “flagrantly” launched crowdfunding campaigns online, Hung said. The senior superintendent warned that the Force would also track down contacts of the wanted individuals in Hong Kong and overseas, as well as the source of their funding.

“I want to remind everyone that assisting, instigating and using money or other properties to fund others in committing offences endangering national security also amounts to breaching the law,” he said.

Additional reporting: Hillary Leung.

Correction 23:00: A previous version of this article referred to Kevin Yam as a barrister, as opposed to a solicitor. We regret the error.