Mutual legal assistance in criminal matters between Hong Kong and the Mainland

Abstract

of thesis entitled Mutual Legal Assistance in Criminal Matters between Hong Kong and the Mainland Submitted by Xiang Fang for the degree of Master of Philosophy at The University of Hong Kong in August 2004 Mutual legal assistance in criminal matters between Hong Kong and Mainland China is problematic. To date, there is no formal agreement on criminal matters between the two jurisdictions. Legal assistance is rendered on the basis of individual cases according to the principle of reciprocity. The substantial differences in the political and legal systems of the two jurisdictions directly affect the negotiation progress and pose numerous theoretical and practical issues. These issues include the delimitation of criminal jurisdiction, the treatment of political offences and capital punishment, the applicability of the double criminality principle, the availability of a fair trial on the Mainland, etc. On a more general level, the resolution of these issues would have a significant impact on the preservation of the “one country two systems” policy and the rule of law in Hong Kong and the Mainland. Geographic adjacency between the two jurisdictions allows criminals to take advantage of the common border to avoid prosecution and conceal the evidence of and profit of their crimes. The rise in cross-border crime necessitates formal mutual legal assistance in criminal matters between Hong Kong and the Mainland. Judicial assistance is an essential part of the mechanism in combating cross-boundary crime. And compared with informal arrangements such as using abduction as an alternative mechanism for rendition, formal judicial assistance is a better way to protect individual rights during that process. This study focuses on the challenges of and difficulties in executing mutual legal assistance in criminal matters between Hong Kong and the Mainland. This paper discusses the current status in cross-border cooperation and draws references from international conventions and practice. This study argues that the mutual legal assistance between Hong Kong and the Mainland needs to be institutionalized. And political and legal differences notwithstanding, there are common grounds for the two parties to begin cooperating together on a more formalized and institutionalized manner according to mutually agreeable principles. An abstract of exactly 315 words