SJ speaks on Snowden case (English translation)


Following is the English translation of the transcript of remarks by the Secretary for Justice, Mr Rimsky Yuen, SC, who spoke to the media on the Snowden case today (June 25):

Secretary for Justice: Dear friends from the media, since the Department of Justice (DOJ) has received a lot of enquiries from the media regarding the Snowden case in the past two days, I would like to take this opportunity to speak to you on a number of matters:

First, as I explained before, the surrender of fugitive offenders between the United States and Hong Kong is governed by the Fugitive Offenders Ordinance (Chapter 503, Laws of Hong Kong) and the Agreement between the United States and Hong Kong made in December 1996. Any request by the United States for the surrender of fugitive offenders or related request, including that for a provisional warrant of arrest, is governed by the above Ordinance and Agreement.

One of the legal requirements is that any criminal charge made by the US Government must be a criminal offence falling within the offences set out in Article 2 of the Agreement and that the relevant conduct also constitutes an offence under Hong Kong law. If either of these two conditions is not satisfied, no surrender can be made. A third consideration is that the request for surrender must not involve any political offence or prosecution of a person on account of his political opinion.

Regarding the Snowden case, the DOJ did receive a request for the issue of a provisional warrant of arrest from the US, but not a formal request for the surrender of fugitive offenders.

The documents requesting the issue of the provisional warrant were received in the afternoon on 15 June (Saturday) (Note 1). The documents revealed that the US Government was filing three charges of unauthorised disclosure of national defence information, unauthorised disclosure of communication intelligence information and theft of state property, i.e. the related information, against Mr Snowden. On receipt of these documents, counsel in the International Law Division of the DOJ examined the documents immediately so as to verify whether the criminal accusations against Mr Snowden by the US Government satisfy the relevant legal requirements, and review if other basic information required was sufficient.

On 17 June (Monday), colleagues in the DOJ notified the US Department of Justice by email that Hong Kong was preparing a list of questions to seek clarification of the relevant information required.

On 19 June, the US Department of Justice asked to get in touch with me. In response to the request, I spoke with the US Attorney General in the morning of 20 June (Hong Kong time). In the brief call, I put two points across clearly to the US Attorney General:

Firstly, in handling the request for the provisional warrant from the US, we would act strictly in accordance with the laws of Hong Kong and the Agreement made between Hong Kong and the US in 1996; secondly, due to the complexity of the case, colleagues in the DOJ would need some time for processing it, nevertheless a reply would be given as soon as possible. I pointed out that our request for information was expected to be handed over to the US by last Friday (Hong Kong time).

On the morning of 21 June (Friday), the SAR Government wrote to the US Government through the Security Bureau, seeking clarification on the reported hacking into Hong Kong computer systems by US government agencies. In the afternoon of the same day (21 June), (i.e. Friday morning US time), the DOJ sent a letter to the US Department of Justice by email and courier service requesting further information in respect of matters of the following areas from US Government pursuant to its request for the provisional warrant:

Firstly, of the criminal charges laid against Mr Snowden, in particular the first two charges of unauthorised disclosure of national defense information and communication intelligence information, under which item(s) of Article 2 of the Agreement between the United States and Hong Kong made in 1996 did the US Government consider they could fall under ? As I just said, the request for surrender could only be made if the charges against Mr Snowden fell under the offences specified in Article 2. Therefore we requested clarification of the specific item(s) under Article 2 that they were relying on.

Secondly, we requested information on certain legal issues relating to the evidence to be relied on by the US Government. As the documents did not specify what evidence they would be using and certain related issues would arise under the law of Hong Kong, clarification was necessary.

Thirdly, there was some other basic information which required clarification. Regarding this, I can give two examples. For instance, there are discrepancies in the English names of Mr Snowden as per the information and documents we have. The name shown on the Diplomatic Note is Edward James Snowden, while the name appeared in our movement record is Edward Joseph Snowden. That means the middle name as shown on the diplomatic documents is James and that in the movement record is Joseph. In addition, the name shown on the US court documents handed over by the US Department of Justice is simply Edward J. Snowden. As the three names were not entirely the same, we were of the view that clarification was necessary. Otherwise legal issues would arise on the issuing of the provisional warrant.

Also, we noted that the documents from the US mentioned that Mr Snowden held a US passport. However, the documents did not provide the passport number. We consider that the passport number is relevant information for identification purpose. In view of this, apart from the other legal issues I just mentioned, including criminal offence, evidence etc, we also asked the US Department of Justice to provide the requisite basic information in this area.

Besides, as I said just now, the media reported on the hacking into computer systems in Hong Kong by US government agencies. This matter was also raised with the US Department of Justice in our letter requesting further information issued last Friday afternoon, as we would take it into account when considering whether the charges brought by the US Government against Mr Snowden would be regarded as one of political offence, or whether Mr Snowden would be subject to prosecution by the US Government on account of his political opinion. For this reason, we considered that it was necessary to seek clarification from the US Government.

As we all know, last Sunday morning (23 June), Mr Snowden left Hong Kong on his own accord through a lawful and normal channel. Up to the very moment of his departure from Hong Kong, the US had not responded to the DOJ's request for further information. Hence the DOJ could not and did not have any legal basis to seek the issue of the provisional warrant of arrest from our judge under the legal system of Hong Kong. Without a provisional arrest warrant the HKSAR Government had no legal basis to restrict or prohibit Mr Snowden's departure from Hong Kong.

The approach and standards adopted in handling the matter by the DOJ has all along been very clear. The DOJ did not deliberately let Mr Snowden go away, nor did it deliberately delay processing the US's request. On the contrary, as I said just now, we all along dealt with the matter in accordance with the law of Hong Kong, the Agreement between the US and Hong Kong and the spirit of the rule of law. Also, as I just briefly put, communication with the relevant US departments was maintained all along.

Up till now, the US Government has not replied to the Security Bureau's letter sent last Friday seeking clarification on the reported hacking into Hong Kong computer systems by US government agencies, or the DOJ's letter sent last Friday which also raised issues concerning the hacking. The US Government has so far not given any reply to the Security Bureau or the DOJ.

As an international financial, economic and information centre, internet security is very important to Hong Kong. The HKSAR Government is highly concerned about computer security issues in Hong Kong. We will continue to follow up on the matter and hope that the US Government will give a full and satisfactory account to the Hong Kong people as soon as possible. Thank you.

Reporter (original question in English): The US Government said it was a deliberate choice by the Hong Kong Government to let Mr Snowden leave Hong Kong because the Government was not honouring the extradition request and the arrest warrant. Was that the case?

Secretary for Justice (original response in English): As I explained earlier, with the chronology which I have given, the answer to your question is "no". We have been acting fully in accordance with the law in Hong Kong, particularly the Fugitive Offenders Ordinance (Chapter 503) as well as the agreement made between Hong Kong and the United States in 1996. We have been keeping in touch with the US authorities. We notified them through emails initially that we would be studying the case and that we would need further information, and I reiterated the same stance with the US Department of Justice on the 20th of June. Then on the 21st of June, we actually sent them a list of questions which I have outlined earlier, which identified the areas of substantive issues, both in relation to the charges, in relation to the question of whether they can actually satisfy the dual criminality requirement under Hong Kong law, as well as the question of evidential issues, and other questions I outlined earlier, i.e. details which helped to identify exactly which is the person, such as the name and the passport number. So I think I can tell you in no uncertain terms that we have not been deliberately delaying the progress. All along we acted fully in accordance with the law and any suggestion that we have been deliberately letting Mr Snowden go away or to do any other things to obstruct the normal operation is totally untrue.

Reporter: The US Government alleged that the HKSAR Government deliberately let Mr Snowden go away. Do you consider this allegation as totally groundless? What is the HKSAR Government's view on this strong allegation by the US Government?

Secretary for Justice: As I said earlier, we absolutely did not deliberately let Mr Snowden go away. We disagree with this observation completely. As the Chief Executive said earlier, we appreciate how the US feels. Yet, what we, as the Government of the HKSAR, and I, as the Secretary for Justice of Hong Kong, can, and should, do is to act according to the law of Hong Kong. As I explained earlier, we told the US side from the outset that we might need further information for such a complicated case. We did in fact request further information. We did not deliberately drag our feet throughout the matter.

Reporter: Has the Central (Government) been consulted on this case?

Secretary for Justice: We have all along maintained normal communication with the OCMFA in the HKSAR in this respect. However, on the matters relating to the law of Hong Kong I just mentioned decisions were made by the DOJ in accordance with the law of Hong Kong.

Reporter: In handling this matter, the US Government took so long to provide the requested information. Do you consider that the US side as slow? Did Mr Snowden leave Hong Kong in the capacity of a visitor or a refugee? As for the US hacking into Hong Kong computer systems, the US has yet to give a reply. Did the DOJ set a deadline for the reply?

Secretary for Justice: I would rather not comment on the US Government as I do not know why their progress was such in handling the case. They may have their reasons. It is not for me to speculate. Neither do I want to. Mr Snowden left Hong Kong as an ordinary visitor on Sunday morning. Regarding the reports on the hacking into Hong Kong's computer systems by the US, as I have mentioned earlier, Hong Kong is very concerned about the matter. We will work with other relevant departments, especially the Security Bureau, to follow up on it. At this stage, I am not in a position to disclose other details of the actual situation, but I can tell you that we are very concerned about the reports in this respect as the SAR Government places great emphasis on cyber security. Therefore, we will actively follow up on the matter.

Reporter: What has been the communication with the Ministry of Foreign Affairs about? Does that affect Hong Kong?

Secretary for Justice: I have mentioned just before that we have communicated with the Office of the Commissioner of the Ministry of Foreign Affairs in the HKSAR on this case. This is a normal communication on our work, as it is undeniable that this case concerns matters of foreign affairs. All normal communication is absolutely normal. It is not only in this case, but in others involving foreign affairs, that other government departments concerned will have such normal communication at work as well. I wish to reiterate that, our communication is fully in compliance with the law of Hong Kong and is in no way in breach of the principle of "One Country, Two Systems".

(Please also refer to the Chinese portion of the transcript.)

Note 1: Unless otherwise stated, all references to date and time are references to Hong Kong date/time.

Ends/Tuesday, Jun 25, 2013

 

 

 

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