Pearls and Irritations

A Hong Kong resident, Chan, Tong-kai murdered his pregnant Hong Kong girlfriend, whilst they were holidaying together in Taiwan in mid-February, 2018. After killing her and disposing of her body, he fled back to Hong Kong, admitting to his crimes. Significant CCTV circumstantial evidence helped confirm what had happened, but the murderer has yet to be tried.

Erle Stanley Gardner was the creator of the fictional criminal defence lawyer, Perry Mason. Gardner’s novels were turned into films and then into a television series starring Raymond Burr which ran for a decade, from 1957. Like all such writers, Gardner drew on real life cases as he wrote. Had he written based on the remarkable facts set out below, he might have called the resulting tale: The case of the rejected suspect.

The HKSAR law of murder has no extra-territorial effect. Chan could not, thus, be tried for murder in Hong Kong, as that crime had been committed in Taiwan. Moreover, formal extradition to Taiwan was not an option at the time these events unfolded (and this continues to be so). Hong Kong’s general provisions allowing for the extradition of certain criminal suspects are quite inadequate. This was another legacy of the too-light regulatory approach sometimes evident during the British era.

In 2008, The Financial Action Task Force (FATF) of the G7 (Group of Seven) leading democratic countries advised the HKSAR that its lack of adequate extradition provisions notably compromised its ability to combat internationally-based corruption. In fact, it was the Chan case which provided the spur for the introduction, in early 2019, of a new Extradition Bill designed both to address those FATF concerns – and to provide a mechanism for extraditing Mr Chan to Taiwan. The Chief Executive of the HKSAR was moved by the deep concerns directly expressed to her by the family of the murder victim.

The proposed new law allowed for a case-by-case extradition system – subject to judicial review – on the order of the HKSAR Chief Executive. It covered, in effect, all the many jurisdictions (around 170) with which the HKSAR had no formal extradition agreement, including Mainland China, Macau and Taiwan.

As it happens, Chan illegally used his deceased girlfriend’s ATM card in Hong Kong, to withdraw around US$2,500 to pay his own credit card bills, on his return from Taiwan. After he was apprehended in Hong Kong, he pled guilty to the charges related to this fraud. He also confessed to the Hong Kong Police, under caution, to killing his girlfriend in Taiwan. And he revealed where he had disposed of the body, following which the police in Taiwan discovered the victim’s remains.

He was convicted and imprisoned in the HKSAR on the fraud-related charges. The timing of the passage of the Extradition Bill was meant to put the right mechanism in place (to return Chan to Taiwan) by the time Chan had served this sentence.

Meanwhile, the Extradition Bill provided the foundations for (rather than being the fundamental cause of) very large mass protests. These huge marches were conspicuously animated by highly successful, alarmist publicity against the Bill. By early June, 2019, major political rioting had spun off from the peaceful protests and a deeply violent and destructive insurrection, which lasted for many months, rapidly gained traction. The Extradition Bill was suspended and then withdrawn as the fearsome violence intensified.

There is no question that Chan, Tong-kai is remorseful. A key advisor, the Reverend Peter Koon, Ho-ming, has helped him face the consequences of what he has done. Apart from earlier admitting to the Hong Kong Police that he killed his girlfriend in Taiwan, Chan also apologised to the victim’s family and to the people of Hong Kong and asked for forgiveness, on his release from jail in October 2019.

Since Chan was released from jail on the fraud charges, he has been trying, without success, to return to Taiwan. Mr Chan openly admits that he is guilty of murder. And he wants to travel to Taiwan to hand himself in. Recent reports on this extraordinary case in the South China Morning Post (SCMP) have referred to Hong Kong’s “refusal to send” Chan, Tong-kai to Taiwan to stand trial. This is rather curious. In October, 2019, the SCMP told us (rather more plausibly) that Taiwan “refused to grant [Chan] entry”. The Voice of America, at about the same time headlined their narrative on this matter: “Why Taiwan Wanted to Try a Murder Suspect, Then Asked Him to Stay Home.”

How on earth have we come to this point?

Taiwan has, frankly, continuously ducked and weaved around this case in order to advance certain primal political strategies. Pious invocations about protecting its self-ruling status cannot bounce this sharp reality out of the way.

The island pre-emptively rejected accepting any extradition, based on the planned new Extradition Bill, in early 2019. It appears an advantage was swiftly seen, especially as the hostile reaction gathered pace in Hong Kong, in terms of a ripe campaign issue which would work in favour of the incumbent Democratic People’s Party (DPP) President, Tsai Ing-wen, as she campaigned for re-election, in February, 2020, for a second term. The DPP had been crushed in local elections in November, 2018. By late 2018, President Tsai’s popularity rating had recovered some but was still stuck below 25%. She clearly needed to find ways to boost her standing.

The Chan matter could also be used to argue a key position of the DPP (which is pro-independence according to Reuters) that Taiwan must not be treated as part of China – it must be treated as a separate jurisdiction. As 2019 progressed, the DPP led the way in Taiwan in stirring up discontent in the HKSAR as much as it could by persistently lecturing Hong Kong, voicing adamant support for the protestors and rioters – and encouraging support for the insurrection. It also made safe-haven offers to escaping militant protestors – but cooled these offers markedly once Tsai Ing-wen was re-elected.

Since that re-election Taiwan has work assiduously to avoid dealing with this matter straight-forwardly: by allowing Chan to return to Taiwan, by arrangement, under normal visa protocols; and then arresting Chan as soon as he arrives so that he can be tried for murder. Given Chan’s murder confession under caution in Hong Kong, it appears highly likely that he would plead guilty to murder in Taiwan, once arrested and detained.

But this is all too straight-forward.

To understand why, first, let us return to the scene of the crime. In early March, 2018, after they had reviewed the strong circumstantial evidence, the Taiwan Police contacted their counterparts in Hong Kong. The Hong Kong Police, soon after, summoned Chan, Tong-kai for questioning. This was when Chan first confessed to murder. Next, Chan was convicted and sentenced in Hong Kong on the fraud-related charges arising from the illegal usage of his deceased girlfriend’s ATM card. In December, 2018, prosecutors in Taiwan formally issued a warrant for Chan’s arrest for murder. By this time, Chan was serving jail-time in Hong Kong.

In essence what the Taiwan authorities have stipulated is that they must be allowed to send Taiwan criminal enforcement personnel, in that capacity, to the HKSAR in order to apprehend Chan and then take him back to Taiwan. This move is aimed at forcing a level of de facto recognition on Beijing, via Hong Kong, of the official separate standing of these officers by emphasizing their (Taiwanese) judicial autonomy. This, presumably, is meant to put some dent in Beijing’s long-standing claim that there is only One China (a position accepted, in essence, by the vast majority of nations, including Australia and the US) and that Taiwan is a renegade province of that One China. Everyone involved, not least the Taiwan authorities, knows that however well these demands may score as bold political gestures, they simply will not be accepted.

On the day of his release from jail in Hong Kong, in late October 2019, Chan had planned to fly to Taiwan (tickets were bought) but he was unable to board his flight, apparently due to impediments imposed by Taiwan. The Taiwanese elections were still a few months off. The Reverend Koon said, at that time, that Chan would delay his return to Taiwan until after the elections were over.

Around a year later, in October 2020, Radio Television Hong Kong (RTHK) reported that Chan now had lawyers in Taiwan representing him who were meeting with the authorities in Taiwan to discuss his voluntary return, likely accompanied by Reverend Koon. RTHK also reported that Taiwan’s Immigration Ministry said that Chan was not barred from going to Taiwan – yet Chan was marked as a person who was not allowed to apply for a visa online. It appears that an alternative attempt to obtain travel permission from the Taiwan Representative Office in Hong Kong was also rebuffed.

Meanwhile, according to RTHK, the Premier, no less, of Taiwan, Mr Su, Tseng-chang said, in October, 2020, that Taiwan was not going to let a murder suspect come and go freely. Let us think about this for a moment. Taiwan had already issued an arrest warrant for Chan. Chan was ready, accompanied by the Reverend Koon, to travel to Taiwan at a pre-agreed time, to hand himself in to the Taiwanese authorities as he landed. Chan had engaged a law firm in Taiwan to make his position clear to the authorities in Taiwan. How could this person possibly be at liberty “to come and go freely”? This is comfortably the most improbable explanation offered so far as to why Taiwan is refusing to accept the return of Mr Chan. Indeed, it is so far-fetched it verges on the absurd.

Finally, there is some related context to this story which has rarely been discussed. It is, however, relevant in that it shows what Taiwan is able to do in order to secure rendition of criminal suspects, when it actually wants to do this, compared to when it is set on impeding that process.

In 2009, as Taiwan’s Mainland Affairs Council (MAC) has explained, Taiwan signed the “Cross Strait Joint Crime-Fighting and Judicial Mutual Assistance Agreement”, with Mainland China. This compact was preceded by an earlier more informal agreement, with the same focus, which dates from 1990. Taiwan has, thus, operated under a criminal justice mutual assistance agreement (which allows for rendition) with Mainland China (with limited Taiwan safeguards on the face of it) for over 30 years – apparently without mishap. According to a Mainland website some thousands of persons have been transferred under this arrangement.

There is a blunt test of just how politically driven this remarkable effort by the Taiwan authorities has been to avoid the application of the law of murder. Imagine if Chan’s murdered, pregnant girlfriend had been a resident of Taiwan, with a Taiwanese family – rather than a young Hong Kong woman visiting Taiwan. It is inconceivable that the Taiwan Government and the MAC would have been so exceptionally comfortable – in the midst of a crucial election campaign – with allowing Mr. Chan to escape timely justice. The more so, given that we know from Chan’s confession and other evidence that the murder was exceptionally violent.

Mr. Chan’s expressly does not wish to get away with murder. He is a self-admitted killer to whom the law is not being applied, due, fundamentally, to actions on the part of the government with primary responsibility to apply the relevant law. A central precept of the Rule of Law, that no one should be above the law, is not being observed. Unfortunately, what we have here is a grim example of Taiwan political imperatives trumping the basic application of the judicial process.

All those who may, in future, find themselves on the receiving end of any lectures on the meaning of the Rule of Law from the current government in Taiwan could be forgiven if they find themselves quietly rolling their eyes as they listen.

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