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President, the SNOWDEN incident has awakened the people of Hong Kong to the fact that Internet security in Hong Kong is like the King’s New Clothes, and they have no privacy at all in the cyber world.
Other than shocking the people of Hong Kong in respect of Internet security and their privacy, the SNOWDEN incident has also prompted the community to discuss whether Hong Kong should surrender SNOWDEN to the United States if such request is made. The main issue for discussion is that Hong Kong and the United States had signed the Agreement on Mutual Legal Assistance, the Agreement for the Surrender of Fugitive Offender and also the agreement for the transfer of sentenced persons in 1997. These three agreements mainly deal with tendering of mutual legal assistance between two signatories in respect of offenders of criminal offences recognized by both countries, such as rape, drug trafficking, homicide, corruption and even hijacking. In fact, even though Taiwan and the Mainland are in a tense relationship politically, they would also sign agreements similar to the mutual legal assistance agreement.
However, the signing of the Agreement on Mutual Legal Assistance does not necessarily mean that the requested party has to voluntarily surrender the person to the requesting party which claims that the person has committed a criminal offence of that country or place. For example, according to international practice, a political offender or an offender likely to be subjected to a death penalty will normally not be repatriated.
In 1988, a British special agent Peter WRIGHT published his memoirs in another Commonwealth country exposing some confidential British intelligence. The British Government was furious and took action against all Commonwealth countries or places, including Hong Kong, who had published the memoirs. The British Government even took action against the South China Morning Post barring it from publishing the contents or extracts of the memoirs. However the other Commonwealth countries or places would not listen to the United Kingdom, neither would they repatriate Peter WRIGHT. In 1990, the former Director of the Hong Kong Branch of the Xinhua News Agency also fled to the United States after publishing his memoirs exposing state secrets of China. Such incidents of exposure of state secrets are actually quite common in the international community and obviously exposing state secrets is a political offence. What is a political offence? It is an offence to the country concerned but not an offence to another country. The other countries may even welcome that these persons
would expose more information.
Therefore, under such circumstances, let us re-examine the SNOWDEN incident. The United States will certainly try every means to prove SNOWDEN’s guilt. For example, it stated recently that it had almost established 36 counts of crime committed by SNOWDEN, including illegal access to the computer to obtain information. But we cannot look at the true nature of the SNOWDEN incident in such a partial manner, that is, because he worked for an intelligence agency, he had a special identity and was thus able to access the information. From the information that he accessed and the impact of the whole incident on the international community and Hong Kong, we can see that the nature of this incident is that he has exposed the state secrets of the United States. It is like a killer stealing a car with an aim to kill a person. We cannot just prosecute him for stealing a car but we have to examine the whole case.
Under such circumstances, especially after the former United States Vise President Dick CHENEY purposely accused SNOWDEN as a spy for China, I think that apart from trying to diverting people’s attention, he also wanted to discredit SNOWDEN and smear his image among his compatriots. However, this makes it even more obvious that in the mind of the Americans or the United States Government, the crime committed by SNOWDEN was indeed a political offence in his country. Therefore, I think that even though Hong Kong and the
United States have signed the Agreement on Mutual Legal Assistance, according to international practice, the SNOWDEN case is outside the scope of rendition arrangements. Hence I think the Hong Kong Government should also bear the international obligation to protect him until he arrives in a third country.