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【TO ALL REPRESENTATIVES & SENATORS OF THE UNITED STATES CONGRESS】

Joint submission in support of


the Hong Kong Human Rights and Democracy Act of 2019 (H.R. 3289/S. 1838),
United States House of Representatives and Senate of the 116th Congress

by

22 post-umbrella professional groups in Hong Kong

A. Introduction

1. Senators Bob Menendez, Jim Risch, Marco Rubio, and Ben Cardin
reintroduced the Hong Kong Human Rights and Democracy Act (H.R. 3289/S. 1838,
the “Bill”) on June 13, 2019, and that Representatives Jim McGovern and Chris Smith
have introduced companion legislation in the House.

2. The Bill supports the autonomy, democracy and human rights as guaranteed to
the people of Hong Kong by the Joint Declaration of the Government of the United
Kingdom of Great Britain and Northern Ireland and the Government of the People’s
Republic of China on the Question of Hong Kong, done in Beijing December 19,
1984 (the “Joint Declaration”), and the Basic Law of the Hong Kong Special
Administrative Region of the People’s Republic of China (the “Basic Law”).

3. One of the particular motivations behind the reintroduction of the Bill was the
Hong Kong Special Administrative Region (the “HKSAR”) government’s proposed
amendments to the Fugitive Offenders Ordinance (the “Hong Kong Extradition
Legislation”), which would enable the extradition of persons in Hong Kong to stand
trial in any other jurisdiction, including Mainland China, without adequate human
rights safeguards.1

4. Following massive protests against the Hong Kong Extradition Legislation


and unwarranted use of violence by the Hong Kong Police Force, the HKSAR
government has suspended the legislative process. Nonetheless, we note that the
HKSAR and PRC Chinese governments continue, through other acts, to endanger the
autonomy of Hong Kong and the fundamental rights of its citizens, both ostensibly
guaranteed by the Joint Declaration and the Basic Law pursuant thereto. We therefore
write in support of the Bill, elaborating on how the Bill could safeguard the interests
of the U.S. and the autonomy, human rights and democratic development of Hong
Kong.

B. Grounds to Support the Bill

U.S. national interests and their relevance to the state of autonomy, democracy and
human rights of Hong Kong

1
For further information, see our Brief on the Extradition Bill
here: https://drive.google.com/file/d/1dk56uvRnVvUpuW2uLhlSKxOM3H6WgjAl/view?usp=sharing
.
5. As the Department of State noted in its March 2019 Report pursuant to the
United States-Hong Kong Policy Act of 1992 (the “Hong Kong Policy Act”):2

a. The United States “continues to have deep economic and cultural interests in
Hong Kong”;
b. “U.S.-Hong Kong relations are based upon the continued substantial
maintenance of the ‘one country, two systems’ framework,” as established by
the Basic Law; and
c. The Hong Kong Policy Act is the basis of the U.S. policy of treating Hong
Kong as a non-sovereign entity distinct from China for the purposes of U.S.
domestic law, with such treatment being contingent on the maintenance of
the “one country, two systems” framework.

6. We note that Congress made the following declaration in the Hong Kong
Policy Act:

“(6) The human rights of the people of Hong Kong are of great importance to
the United States and are directly relevant to United States interests in Hong
Kong. A fully successful transition in the exercise of sovereignty over Hong
Kong must safeguard human rights in and of themselves. Human rights also
serve as a basis for Hong Kong's continued economic prosperity.”3

7. We also note the following concrete examples of the continued ties between
the United States and Hong Kong:

a. An estimated 85,000 U.S. citizens live in Hong Kong, and a further 1.3
million visited or transited in 2018;4
b. U.S. institutions maintain extensive academic, cultural, educational, and
scientific exchanges with Hong Kong;5
c. As of 2018, 290 U.S. companies maintained regional headquarters in Hong
Kong;6 434 U.S. companies had regional offices in Hong Kong;7
d. In 2017 the U.S. was Hong Kong’s 7th largest investor country, investing
almost HKD325,900 million (or USD41,548 million) in the territory;8 and
e. In 2017 the U.S. was the 9th largest recipient of outward direct investment
from Hong Kong, receiving an estimated HKD89,900 million (or
USD11,461 million).9

8. As U.S. Consul-General Kurt Tong noted in a speech on “Hong Kong’s Role


in the Indo-Pacific Economy” on February 27, 2019, Hong Kong’s continued success

2
https://www.state.gov/2019-hong-kong-policy-act-report.
3
§5701, 22 USC.
4
https://www.state.gov/2019-hong-kong-policy-act-report.
5
https://www.state.gov/2019-hong-kong-policy-act-report.
6
https://www.censtatd.gov.hk/hkstat/sub/sp360.jsp?tableID=133&ID=0&productType=8.
7
https://www.censtatd.gov.hk/hkstat/sub/sp360.jsp?tableID=134&ID=0&productType=8.
8
https://www.censtatd.gov.hk/hkstat/sub/sp260.jsp?tableID=048&ID=0&productType=8.
9
https://www.censtatd.gov.hk/hkstat/sub/sp260.jsp?tableID=050&ID=0&productType=8.
is based on its maintenance of free economy principles, including in particular the rule
of law and good governance. In particular, Mr. Tong highlighted the pivotal position
of Hong Kong as a “change agent” for driving China’s liberalization, “my hope is that
Hong Kong will make full use of what I call its ‘demonstration power’ — its power to
show just how much prosperity is possible when global best practices are applied, in
China as they are elsewhere.”10

Threats to autonomy, democracy, and human rights in Hong Kong

9. As we noted in paragraph 4 above, consideration of the Hong Kong


Extradition Legislation has been suspended indefinitely. Nonetheless, there remain
continuous and numerous threats to the autonomy of Hong Kong, and to the exercise
of civil liberties by its residents.

10. As the Department of State noted in its March 2019 report:11

a. Certain acts of the mainland and Hong Kong authorities were “at the expense
of” our human rights and fundamental freedoms, covering the democratic
electoral processes, freedom of expression and association such as the
disqualification of pro-independence candidates;
b. Citing the “redlines” precluding advocacy of independence for Hong Kong
and the subsequent denial of visa to Victor Mallet, the “growing political
restrictions in Hong Kong may be straining the confidence of the
international business community” and the American Chamber of Commerce
expressed concern as to whether “free speech and free flow of information in
this world city is still sound enough for business to consider Hong Kong as
an important hub”.

11. The Congressional-Executive Commission on China (the “CECC”) has


repeatedly noted threats to the rule of law and fundamental freedoms in Hong Kong,
including:

a. “Abduction and forced repatriation of critics”, namely, disappearance of


certain Hong Kong booksellers known for publishing books banned in
mainland China and their “coerced confession”;12
b. “Political prosecutions intended to curtail freedom of expression” as well as
applications for harsher jail terms for the activists involved in the Umbrella
Movement, being “evidence that Hong Kong’s cherished autonomy is
precipitously eroding” and “another severe blow to Hong Kong’s reputation
as a city governed by the rule of law”; and13
c. “The proposed amendments to Hong Kong’s extradition laws” which if
approved, will “erode Hong Kong’s reputation as a center of commerce
governed by the rule of law” protecting Hong Kong people and foreigners

10
https://hk.usconsulate.gov/sp-2019022701.
11
https://www.state.gov/2019-hong-kong-policy-act-report.
12
https://www.cecc.gov/media-center/press-releases/president-xi-tightens-grip-cecc-cochairs-say-no-
one-is-outside-his-reach.
13
https://www.cecc.gov/media-center/press-releases/statement-by-chairs-on-the-
%E2%80%9Cpolitical-prosecutions%E2%80%9D-of-umbrella-movement.
residing in Hong Kong from the mainland Chinese legal system that is
“regularly employed as a tool of repression.”14

12. The U.S.-China Economic and Security Review Commission (the “USCC”)
has also repeatedly warned of threats to the “One Country, Two Systems” framework:

a. The disappearance of the Causeway Bay Booksellers has led many to


question Hong Kong’s autonomy and “caused a chill” to publishers,
manifesting in the form of bookstore closures and self-censorship”;
b. The interpretation of the Basic Law on Hong Kong lawmakers’ oaths of
office while a legal case on the matter was ongoing has “raised widespread
concerns about the level of autonomy in Hong Kong’s judiciary” and
“caused apprehension in Hong Kong about the implications for political life
and freedom of speech in the territory.”
c. Most recently, it commented that a Hong Kong government extradition bill,
if passed into law, would enable rendition to mainland China and “increase
the territory’s susceptibility to Beijing’s political coercion and further erode
Hong Kong’s autonomy”.

The needs for going beyond territory-wide sanctions and incorporating individual-
targeted sanctions

13. Under the existing Hong Kong Policy Act, the U.S. President can impose
territory-wide sanctions by suspending part or all of the differential treatments granted
to Hong Kong should it be deemed “not sufficiently autonomous.”. While territory-
wide sanctions could be quickly executed under the existing Hong Kong Policy Act
by way of presidential executive orders, they are “nuclear options” because once
implemented not only Chinese and HKSAR government officials who are directly
responsible for the erosion of Hong Kong’s autonomy will be sanctioned, but also all
the innocent citizens of Hong Kong will receive unwarranted punishment.

14. Therefore, we support the Bill because it will enable individual-targeted


sanctions on those Chinese and HKSAR government officials for their infringements
of Hong Kong’s autonomy under the “One Country, Two Systems” framework. Such
individual-targeted sanctions, which are modelled on sanctions pursuant to the Global
Magnitsky Human Rights Accountability Act (P.L. 114-328) such as freezing U.S.-
dollar assets and denying entry to the U.S., will then help distinguish Chinese and
HKSAR government officials from the harmless citizens of Hong Kong. Individual-
targeted sanctions will also help increase the cost for Chinese and HKSAR
government officials when executing Beijing’s interventions to the territory, therefore
providing an effective check against further erosion of Hong Kong’s autonomy.

C. Our recommendations on the texts of the Bill

15. In relation to the proposed section 206 of the Hong Kong Policy Act, to be
added by section 4 of the Bill:

14
https://www.cecc.gov/media-center/press-releases/hong-kong-serious-concerns-about-amendments-
to-extradition-laws.
a. The wording of the proposed section 206(a) is confined to ensuring that the
visa applications of otherwise qualified applicants who resided in Hong
Kong in 2014 shall not be denied on the basis of “any arrest, detention or
adverse government action as a result of participation in nonviolent protests
related to the electoral process, internationally recognized human rights,
protecting an independent judiciary or the rule of law.”15
b. Whilst we applaud the endorsement of the Umbrella Movement as a
nonviolent protest in pursuit of the internationally recognised right to
political participation, we are concerned that these protections may be too
restrictive in practice.16
c. In particular, we note that, due to the continued erosion of basic freedoms in
Hong Kong, the ambit of the proposed section 206(a) may exclude
individuals deserving of protection. For instance, protesters in similar
position of Ray Wong and Alan Li, two political activists who were granted
asylum by Germany last year, or those who stormed into the Legislative
Council on 1 July 2019, may not be qualified for such protection under the
proposed section 206(a). Therefore, we suggest that the reference to “in
2014” should be deleted.17

16. In relation to section 7(a) of the Bill, which sets out the criteria for identifying
persons responsible for abductions and other actions suppressing basic freedoms in
Hong Kong:

a. The material definition is a person responsible for “the rendition to the


mainland of the People’s Republic of China of any individual, or the
arbitrary detention, torture, or forced confession of any individual after
rendition, in connection with the exercise by that individual of internationally
recognized human rights in Hong Kong”.
b. It appears that this section will not be triggered unless a specific person is
extradited to the PRC by reason of exercising internationally recognised
human rights in Hong Kong. In other words, those responsible for the
passing of the extradition bill per se would not be caught by this provision.
c. More generally, we observe that the individual-targeted approach seems to
be only a small part of the multiple measures under the Bill, being confined
to the Causeway Bay Bookstore victims and, under the latest draft, any
individuals actually being extradited. In view of the heading to this section
“…other actions to suppress basic freedoms in Hong Kong”, this section
should be more emphasized and drafted more widely.

15

https://www.uscc.gov/sites/default/files/annual_reports/2016%20Annual%20Report%20to%20Congres
s.pdf.
16
https://www.uscc.gov/sites/default/files/annual_reports/2017_Annual_Report_to_Congress.pdf.
17

https://www.uscc.gov/sites/default/files/Research/USCC%20Issue%20Brief_HK%20Extradition%20Bi
ll.pdf.
17. Therefore, we propose to rewrite section 7(a) by covering the original
subsections (1) and (2) in a more widely termed subsection (1) and adding new
subsections (2) and (3) (changes emphasized):

“IDENTIFICATION OF PERSONS RESPONSIBLE FOR


INFRINGEMENT OF AUTONOMY WITH RESPECT TO AND
SUPPRESSION OF BASIC FREEDOMS IN HONG KONG

IN GENERAL.—Not later than 180 days after the date of the enactment of
this Act, and annually thereafter in conjunction with the publication of the
report required under section 301 of the Hong Kong Policy Act of 1992 (22
U.S.C. 5731) the President shall submit, to the appropriate congressional
committees, a list containing the name of each person who the President
determines, based on credible information, is responsible for—

1. the actual or threatened rendition or unlawful abduction to the mainland


of the People’s Republic of China of any individual, or the arbitrary
detention, torture, or forced confession of any individual before or after
such rendition or abduction, in connection with the exercise by that
individual of internationally recognized human rights in Hong Kong,
including but not limited to such individuals extradited to the mainland of
the People’s Republic of China under any amended fugitive offenders
ordinance in Hong Kong;
2. the passage of bills in the Hong Kong Legislative Council which erodes
Hong Kong’s autonomy or restricts the exercise of internationally
recognized human rights in Hong Kong, including but not limited to the
rendition to the mainland of the People’s Republic of China of any
individual in connection with the exercise by that individual of such
internationally recognized human rights in Hong Kong; or
3. any other acts or decisions which erodes Hong Kong’s autonomy by the
Government of China that are inconsistent with its commitments in the
Basic Law and the Joint Declaration identified in the report under
section 205 of the Hong Kong Policy Act of 1992 (22 U.S.C. 5731) to be
added by this Bill, or causes further restrictions of internationally
recognized human rights in Hong Kong and the exercise thereof.”

18. Further, in relation to section 8 of the Bill:

a. The heading of the section is titled “Inadmissibility of Certain Aliens and


Family Members”, but the section only says “Any alien included in the list
submitted by the President under section 7(a) of the Hong Kong Human
Rights and Democracy Act of 2019 is inadmissible.” We suggest the wording
be amended to refer to family members of any such persons expressly.

19. With respect to section 9 of the Bill, concerned with financial sanctions upon
such persons:

a. The operative section only empowers and requires the President to exercise
his powers under 50 USC 1701 et seq. to the extent necessary to prohibit all
transactions in property of a person on the list required under section 7(a).
Again, as discussed above, such person named in the list under section 7(a)
likely does not include his family members.
b. Thus, there is a risk of such persons evading this section by offloading assets
to family members and/or holding assets through offshore trusts and/or
nominee companies. Whilst it would be difficult to detect such evasion in
the latter case, at least the Bill should provide a legal basis to target the
property not directly held by such persons under section 7(a). We thus
recommend that either (1) such “persons” expands to their family members,
associates, companies on which they exercise effective control; or (2) section
9 itself refers to property beneficially owned by such persons named in the
list under proposed section 7(a).

D. Conclusion

20. Notwithstanding our observations on the text of the Bill above, we consider
that the Bill will be a powerful tool to protect the national interests of U.S. within
Hong Kong as well as safeguarding the autonomy, human rights and democratic
development as guaranteed to the people of Hong Kong by the Joint Declaration and
the Basic Law.

21. We therefore respectfully urge you to act quickly to pass the Bill within the
116th Congress, so that it can be signed into law as soon as possible.

This joint submission is agreed upon by the following post-umbrella professional


groups in Hong Kong:
1. Progressive Lawyers Group(法政匯思)
2. Progressive Scholars Group(高教公民)
3. Frontline Tech Workers(前線科技人員)
4. Progressive Teachers’ Alliance(進步教師同盟)
5. Financier Conscience(思言財雋)
6. Surveyor Conscience(量心思政)
7. CMDoctorsCure(本草匡時)
8. Democratic Action Accountants(民主進步會計師)
9. OccuFocus(職療同行)
10. Radiation Therapist and Radiographer Conscience(放射良心)
11. HK Psychologists Concern(良心理政)
12. Engineer Frontier (工程思政)
13. Nurse Politik(護政)
14. Médecins Inspirés(杏林覺醒)
15. HKEd4All(全民教育局)
16. IT Voice(IT 呼聲)
17. Reclaiming Social Work Movement (社工復興運動)
18. Act Voice(精算思政)
19. Insurance ARISE(保險起動)
20. ArchiVision(思政築覺)
21. Physio Action(物理治療起動)
22. At-grade(園境願景)