Case 3/2008 in Macau
From Wikipedia, the free encyclopedia
| Case 3/2008 in Macau | |
|---|---|
 | |
| Court | Court of Final Appeal (Macau) |
| Decided | February 12, 2008 |
| Citation | Processo n.º 3/2008 |
| Transcript | Judgment in Portuguese Chinese translation |
| Case history | |
| Related action | Case 12/2007 in Macau[1] |
| Court membership | |
| Judges sitting | Viriato Manuel Pinheiro de Lima, João Augusto Gonçalves Gil de Oliveira, Jorge Miguel Pinto de Seabra |
| Case opinions | |
| Extraditing fugitives is subject to the provision of special law, but there was no such law for extradition to Mainland China. | |
| Decision by | Viriato Manuel Pinheiro de Lima |
| Concurrence | João Augusto Gonçalves Gil de Oliveira, Jorge Miguel Pinto de Seabra |
| Keywords | |
| |
Case 3/2008 in Macau was a habeas corpus case heard before the Macau Tribunal of Ultimate Instance. The applicant A[note 1] filed a request of habeas corpus to the court, as he believed his elder sister B was in unlawful detention by the Judiciary Police in Macau, when in fact B had been transferred to the Public Security Bureau of Zhuhai, China, one day before the request. The court has no jurisdiction outside Macau, so it ruled that there was no further need to adjudicate, on grounds of supervening impossibility of the remedy sought. The judgment, however, went on to cite a previous decision by the same court in 2007, which allowed a similar application.[1] The court this time reiterated that before specific legislation is introduced, it is illegal to transfer fugitives to mainland China, and the acts by the authority in the present case "discredit justice, undermine the Rechtsstaat and do not bring prestige to the Macau Special Administrative Region."[2]: 7 The case has since been cited by jurists in academic papers concerning the lack of extradition legislation between Macau and mainland China.
After the Hong Kong Causeway Bay Books disappearances in 2015, a report in February 2016 by South China Morning Post recalled this case.[3] The day after, Secretary for Security Wong Sio Chak, who was the head of Judiciary Police in 2008, emphasised that the extradition had followed the law, and the criticism by the court was due to different interpretation of the law.[4]
A Hong Kong permanent resident B of Chinese nationality arrived at Outer Harbour Ferry Terminal in Macau on the afternoon of 6 February 2008. She was then held by Migration Service personnel of the Public Security Police. Since she was the suspect of a credit card fraud case in Fuzhou, China, the Interpol had issued a Red Notice, which included the request that after her arrest, she be transferred to mainland China. The Public Security Police therefore handed her to the Macau Judiciary Police. On the same day, an Assistant Procurator General gave the order to transfer B to the Public Security Bureau of Zhuhai. This was carried out on 7 February.[2]: 5
The applicant's reason
On 8 February, B's younger brother, A, sent a habeas corpus request by fax to the Tribunal of Ultimate Instance. In his application, A said, B's family members had visited the Judiciary Police branch at Rua Central on 7 February evening. They asked B's whereabouts, only to be told that B was not there. A thought that, had B been released, then she would have been in touch with her family, but that was not the case. After the 48 hours time limit for detention[note 2] had elapsed, A said he was still oblivious to B's situation, and thus believed that she was illegally detained. This was the reason he filed the case.[note 3][2]: 1–3
The respondent
The Public Ministry (or Public Prosecutor's Office) was listed as the respondent in the case.[2]: i After receiving the habeas corpus request, the court notified Wong Sio Chak, who then was the Director of the Macau Judiciary Police,[5][6] to submit an explanation. In the official letter to the court, he explained, if an Interpol member state found an individual wanted in a Red Notice, then according to Interpol regulations, they must immediately notify the National Central Bureau and the Interpol General Secretariat, and so they did. Having communicated with the Chinese National Central Bureau, they knew that the Public Security Bureau in Fuzhou had issued an arrest warrant on 4 June 2004 and demanded that, once B was arrested, she be sent to mainland China, and the extradition that had happened was justified by the order of an Assistant Procurator General.[2]: 3–4
Decision
The court held a public hearing as the Code of Penal Procedures[note 4] prescribed.[2]: 4 In the first part of the analysis, the court confirmed that before the habeas corpus petition, B had already been transferred to mainland China, where the court in Macau has no jurisdiction. The court had no remedy available to hand down, or in other words, supervenient impossibility appeared and the court ruled to terminate the proceedings.[2]: 6, 8
However, the judgment went on to cite Case 12/2007 in Macau,[1] in which the same court had decided that extraditing fugitives to a place other than Macau requires special provision of the law, but the law at that time had no such provision governing the transfer to mainland China. The conclusion was that, even with a Red Notice from the Interpol, neither the Public Ministry nor the Judiciary Police might detain the person for extradition purposes.[2]: 6
The court acknowledged that there were probably voices objecting them, but prior to the judgment, the objections they had seen were "mere slogans without substantive content", and even if there were diverging opinions, court decisions within their jurisdiction shall prevail over all other authorities[note 5] in a territory governed by law. Regarding judicial action notifications and producing evidence on civil and commercial matters, the cooperation between Macau and mainland China had required a set of agreement,[note 6] and hence it should be more so for extraditing fugitives, or otherwise its legality cannot be guaranteed, considering that the two kinds of matters are incomparable in their aggressiveness to the fundamental personal rights.[2]: 7
Therefore, the court reprimanded, saying that despite the decision in 2007,
it persists in making such extraditions, without the provision of law or agreement, without organised process, without the possibility for the detainee to defend, and without the order from a judge for that.
These acts discredit justice, undermine the state of law and do not bring prestige to the Macau Special Administrative Region.[2]: 7