Surveillance scandal

Edward Snowden (main picture) is facing hard choices as the US Justice Department prepares to charge him with disclosing classified information. If the American intelligence analyst, whose exact location is currently unknown, is still in the Chinese territory of Hong Kong, US lawmakers will most likely demand the whistleblower's expulsion to face justice at home.

Hong Kong is a semi-autonomous territory with its own political and legal system that guarantees civil liberties not seen on the mainland, including freedom of speech and association.

However, Hong Kong's extradition agreement with the United States has some loopholes including for crimes deemed political, says lawyer and current member of the Legislative Council of Hong Kong, Ronny Tong in a DW interview.

DW: The Chinese territory of Hong Kong has had an extradition treaty with the United States since 1998. How may the agreement come into play in Snowden's case?

Ronny Tong: The agreement has certain exceptions. First of all, the relevant crime needs to be regarded as criminal conduct by the authorities in Hong Kong. Secondly, the crime must not be considered political. If the crime which is to be indicted in the United States relates to conduct which cannot be considered criminal in Hong Kong, then there is no obligation for Hong Kong authorities to extradite Snowden to the US.

Thirdly, if the crime is considered a political crime in the sense that is not recognized in other countries save in the United States, then again there is no obligation in the part of Hong Kong authorities to extradite Snowden.

I think the issue of extradition is not an open-and-shut case. I think it is very much alive. There are no precedents in Hong Kong. I think that if Snowden were to take the matter to court, there is a possibility that the court here would say: 'this is not a proper extradition.'

What kind of influence can the Chinese government exert?

I think there is practically no role Beijing can play here. It is a purely legal question, as to whether the judicial authorities in Hong Kong should extradite Snowden. It is inconceivable that Beijing could step in and either influence or dictate what the court should or should not do.

From a political perspective it is arguably possible for Beijing to influence the Secretary for Justice not to apply for an extradition order, particularly if the legal grounds are very shaky. Having said this, I cannot see Beijing simply overturning a Hong Kong court ruling on extradition.

Are you saying Beijing doesn't have a veto right?

The Chinese government doesn't have a veto right here. There are not provisions written anywhere that Beijing can do that. The government's power in this case lies in the fields of diplomacy and international relations. Extradition, however, is purely a legal question for the courts to decide.

A few days ago US President Barack Obama met with his Chinese counterpart Xi Jinping in California to talk about the future of US-China relations. On top of the agenda were growing concerns about cyberattacks that had created frictions between the two powers. What role does the Snowden case play here?

I think President Xi must be quietly smiling to himself. This is a great irony in the sense that it appears to be a reversal of roles. Somebody is escaping the administration of the United States to come to China in order to seek protection from suppressive conduct, which I think many would view as unjust measures taken by the CIA. I think this is possibly something China should welcome.

Some years ago Hong Kong handed over an al Qaeda suspect to the US. How is this different from Snowden's case?

This was different example because that was a case of common criminal conduct. The allegation was that the suspect had embezzled or laundered money and this can be prosecuted according to criminal law. The accusations made against Snowden however reflect by no means common criminal conduct. He exposed things which a lot of people would consider to be unjust.

There is no equivalent of the crime of espionage or theft of national secrets in Hong Kong. We just don't have any legislation to that effect, so it is conduct that cannot be considered as criminal in the eyes of the Hong Kong court. I think there is certainly a gray area, as to whether Snowden would have committed a crime had his actions taken place in Hong Kong.

Snowden's precise whereabouts remain unknown at the moment. What is the 29-year-old allowed to do is this sort of situation?

He is a free man and as such able to leave Hong Kong anytime he wants. He has committed no crime and is free to come and go. The authorities in Hong Kong have no power or justification to detain him.

The interview with Ronny Tong was conducted by DW editor Xiegong Fischer.