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Why Hong Kong's protesters must stop now.

Peter Lee

What were once peaceful demonstrations against a Hong Kong Bill that would, incidentally to its main purpose, have facilitated extradition to China for a wide range of offences, have become expensive, disruptive and divisive. Every day seems like a new turning point where protesters increase the lengths they are willing to go to, often seemingly with the specific intent of provoking a reaction from the police which the protesters then claim was unduly harsh. And the UN and the USA aren't helping.

It is difficult to know exactly what the Hong Kong protests expect to achieve. Their demands on, on paper, simple:

1. that the Extradition Bill (full name Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 ) be withdrawn, not merely "suspended" as at present.

2. that there be an inquiry into what they say was police brutality in the initial days of the protest

3. that Hong Kong be allowed universal suffrage.

4. (sometimes) that Hong Kong's de facto prime minister, Carrie Lam, resign or be replaced.

The Extradition Bill came about because a Hong Kong man suspected of the murder of a pregnant Hong Kong woman in Taiwan, flew back to Hong Kong. In the absence of an extradition treaty, there was no power for Hong Kong to return him for trial. What the Hong Kong government proposed was that it amended the existing law to enable the extradition of suspects, already permitted to 20 countries, to Taiwan, Macau and, most controversially in Hong Kong, the mainland. The problem, as Hong Kongers saw it, was that the effect would be to allow extradition to the mainland for a wide range of alleged offences which may be a cover for the grabbing of political dissidents. This fear is founded upon the cases in which Hong Kong residents have been arrested when visiting China and also by unconfirmed reports that China has snatched one or two people off the streets of Hong Kong. Hong Kong's business community felt especially under threat

The Bill originally included 46 offences for which extradition could be granted. After hearing from business leaders, Hong Kong's Security Council dropped nine offences from the list. Some were bizarre such as "offences against the law relating to false or misleading trade descriptions" - although that is rarely an extraditable offence in other countries so may be it was not such a bizarre exclusion. Far more serious were "Offences involving the unlawful use of computers and Offences relating to fiscal matters, taxes or duties." There is a good reason for the latter: China imposes the death penalty for some tax offences, including VAT evasion. Also, withdrawn was "Offences against the law relating to the control of exportation or importation of goods of any type, or the international transfer of funds." This, however, is not the same as money laundering: it relates to currency controls, for example but the former does not draw a distinction between sanctions-busting and smuggling, which are, one might consider, very different offences. Perhaps more surprising, on the face of it, is the removal of "Offences against the law relating to environmental pollution or protection of public health" but in fact Hong Kong has, for some years, suffered considerable deterioration in air quality as a result of pollution drifting down from factories in Guandong, many of which are owned or operated by Hong Kong businesses. As China tries, frantically, to reduce air pollution, there is concern that factory owners might be taken across the border for trial over the increasingly stringent emissions law to say nothing of pollution in mainland rivers.

A measure which, many would argue, should have been included relates to the protection of intellectual property. China has a huge problem with counterfeits a significant proportion of which is widely said to be shipped out via Hong Kong. Also surprisingly removed is "offences relating to securities and futures trading." Hong Kong's Securities and Exchange Commission is very active against market manipulation and one might conclude that such a measure would favour HK rather than the mainland. Stock manipulation and falsified IPO documents have been rife in China, despite stringent efforts in the mainland to curb it.

However, where the business community was especially concerned is with the nebulous "Offences against the law relating to companies including offences committed by officers, directors and promoters." These, as regulators and fraud prosecutors all over the world are aware, are very difficult to bring to a successful prosecution. What concerns people is that China rarely grants bail to white collar crime suspects and there is worry that people might disappear into the somewhat opaque detention system for long periods of time. Similarly "Offences against bankruptcy law or insolvency law."

What is left is a long list of offences against the person, fraud, piracy, mutiny, hijacking of an aircraft or other means of transport, genocide, helping escape from custody, smuggling, certain immigration offences, people trafficking, offences relating to gambling or lotteries, unlawful abortion, offences relating to women and children, theft and fraud. Also included is money laundering where it relates to any of the offences remaining in the Bill, conspiracy to commit any of the scheduled offences or aiding anyone to commit such an offence.

It is obvious that the list of offences is, on the face of it, similar to extradition treaties around the world. It is only the risk of extradition to China (including Macau) that is the live issue.

There is a complexity: while Hong Kong has autonomy over its domestic criminal law, policies and procedures, under the 1997 Handover Treaty, China is responsible for foreign affairs. It has, from time to time, flexed that particular muscle. In 2009, it was alleged that Mrs Robert Mugabe assaulted and injured a photographer at a time when questions were being asked as to how her husband was able to buy an expensive "mansion" in Hong Kong at a time when Uganda was in the grip of hyper-inflation at a rate of 100% per day. When HK authorities wanted to question her, China stepped in, said she was entitled to diplomatic immunity (a dubious statement under the rules applicable to diplomatic immunity) and said she must be left alone. So far, treaties and memoranda of understanding (MoUs) relating to domestic HK matters have been subject to scrutiny in China but not to interference. In this case, however, the fact that it is an inter-governmental agreement between HK and Taiwan, which China insists is not a country but a "breakaway province" of China may have proved too much for China to stand back from. Many in HK have seen the hand of Beijing in the Extradition Bill and argue that the fact that the Bill included Macau (like Hong Kong a semi-autonomous region) and the mainland was a back-door way of demonstrating some form of unification. The Hong Kong Bill would not allow the mainland to directly extradite anyone from Taiwan. However, there was concern that China may influence HK to seek extradition from Taiwan for the mainland's purposes. Indeed, it was reported that Taiwan said that it would not extradite any Taiwanese citizen to HK for fear that they would then become at risk of transfer to the mainland.

It is unlikely that there would have been protests in HK if the Bill had been restricted to HK-TW.

The protesters won a famous victory when Carrie Lam, almost but not quite a Beijing appointee, announced that the Bill would be suspended. Carrie Lam has said that the "Bill is dead" and will not be brought back within the current LegCo period. The effect of that is that it will automatically die when LegCo rises in 2020. For the protesters, that's too long and too big a risk. For Lam, she is stuck - Hong Kongers, en masse, don't want it; China supports it. As China's woman in HK, Lam would be seen as acting against the wishes of the mainland.

Are the protesters right to continue to demand its formal withdrawal? They are failing to see the nuances of the relationship between Hong Kong's legislature and the mainland. But they have won an unprecedented back-down. Now it's time for them to give face, as Chinese custom has it and let it run out of time and die a natural death. To push for Lam's resignation (even death, as one reporter is said to have shouted yesterday) is to fail to realise that Lam is also working hard to defend Hong Kong without causing political waves across the border. The right thing to do now is to suspend the protests and to see if Lam is as good as her word.