Harvey A. Silverglate, BridgeTower Media Newswires
Prominent in the news recently has been the increasing pressure that China is exerting on Hong Kong. Recent events indicate that Hong Kong’s system of governance, and the civil liberties it has long enjoyed, will soon be a mere memory, as China exerts increasing authority over its semi-autonomous region.
Behind the growing coverage of China’s increasing control, there remains an instructive history that sheds additional light. It’s a story that is little known outside of a small group of lawyers, judges, civil libertarians and journalists old enough to remember the case involving the extradition of Lui Kin-hong (also known as Jerry Lui) that unfolded in the federal courts of Massachusetts. My law firm at the time, Silverglate & Good, represented Lui.
Lui sought representation after he was arrested in Boston on Dec. 20, 1995, on an extradition warrant issued by the United Kingdom, acting on behalf of Hong Kong, which was then the UK’s crown colony. Lui was wanted by the Hong Kong authorities because during his time as a senior officer of the British-American Tobacco Co. he allegedly took bribes from another company, Giant Island, Ltd., that wanted a virtual monopoly over the export of cigarettes.
Lui was not the only one charged with accepting those bribes, but he was the only one who happened to travel to Boston, where he faced an unexpected legal proceeding.
The UK’s extradition request was based upon its treaty with the United States. The request was issued on the assumption that Lui would be tried in a Hong Kong court under the aegis of the UK, with which the United States has enjoyed a long and friendly relationship. The United States trusted that the crown colony would give Lui a fair trial.
On Aug. 29, 1996, U.S. Magistrate Judge Zachary Karol authorized the extradition of Lui. However, there was a fly in the ointment. The crown colony was scheduled to revert to Chinese ownership on July 1, 1997, ending 156 years as a possession of the UK. In its deal with the British, the Chinese agreed to establish Hong Kong as a “special administrative region” of China. Hong Kong would maintain its then-current economic and governmental systems for a period of 50 years — an arrangement known at the time as “one country, two systems.” The 50-year period was scheduled to expire in 2047.
It was hardly clear that all legal proceedings, including Lui’s trial, would be completed by the date of the reversion. If the normal time lag in this kind of case occurred, Lui would end up being tried in Hong Kong under the sovereignty of China, with which the United States did not, and still does not, have an extradition treaty. (The United States does not have extradition agreements with countries whose criminal justice systems don’t accord with our human rights policies.)
The case became quite well known locally, and eventually various amicus briefs were filed — by the Lawyers’ Committee for Human Rights, the Alliance of Hong Kong Chinese, and the ACLU of Massachusetts.
On Jan. 7, 1997, Andrew Good, my then-partner at the firm, Phil Cormier, an associate, and I filed a petition for a writ of habeas corpus, arguing that there remained too little time for Lui’s legal proceedings to be completed before the reversion. Our petition fared better in the U.S. District Court. A civil liberties-oriented judge, Joseph L. Tauro, held that the U.S. could not extradite Lui and granted Lui’s petition.
Yet, when the government appealed Tauro’s ruling on March 5, 1997, the 1st U.S. Circuit Court of Appeals reversed. The matter was of such importance that the court heard the case en banc.
Lui was sentenced to three years and eight months in prison (but served less time) in Hong Kong. After he was released, he left for Vancouver, Canada, before anything else could be done to him.
Judge Tauro passed away on Nov. 30, 2018. One assumes that by that time he recognized the wisdom of his decision, and the folly of the 1st Circuit that reversed him.
In the “Joint Declaration on the question of Hong Kong” between China and the United Kingdom of Great Britain and Northern Ireland (signed on Dec. 19, 1984), China had agreed that after the reversion:
“The Hong Kong Special Administrative Region Government shall maintain the rights and freedoms as provided for by the laws previously in force in Hong Kong, including freedom of the person, of speech, of the press, of assembly, of association, to form and join trade unions, of correspondence, of travel, of movement, of strike, of demonstration, of choice of occupation, of academic research, of belief, inviolability of the home, the freedom to marry and the right to raise a family freely.”
China had guaranteed that Hong Kong would maintain a great deal of autonomy after the reversion. Consequently, on Dec. 20, 1996, just before the reversion, the United States and Hong Kong signed an Agreement for the Surrender of Fugitive Offenders. However, with almost daily news reporting China’s crackdown on pro-liberty activists and on Hong Kong’s once-vibrant free press, it is clear that China has not taken its solemn undertakings seriously.
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Harvey A. Silverglate is a criminal defense and civil liberties lawyer in Boston and Cambridge. He thanks his paralegal, Emily Nayyer, for her assistance in the article.
