Opinion | Snowden case poses complex legal challenges for Hong Kong

If Edward Snowden remains in Hong Kong, determined to wage his legal battle here, it could pose complex legal challenges for the territory’s government and courts. It could take months - even years - to resolve.

One thing is certain - any suggestion Beijing will intervene is premature. As well as the question as to whether or not it makes political sense for Beijing to let Snowden stay, should Hong Kong decide to give him up to the United States, as a matter of procedure it would be a long time before Beijing could legally intervene.

Under the territory’s Fugitive Offenders Ordinance, Beijing could issue an instruction to alter a Hong Kong decision on whether or not to “surrender” (“extradite” only applies to two sovereignties) a fugitive on the basis that “the interests of the People’s Republic of China in matters of defence or foreign affairs would be significantly affected”. However, this intervention could only take place when the Hong Kong government decides whether or not to surrender Snowden. This could be a long process.

The Hong Kong government is likely to have to make two decisions: one under an agreement to surrender fugitives as signed between the US and Hong Kong government in 1996, and another under international refugee law.

First, the US government would have to bring a criminal charge against Snowden, and make a request to the Hong Kong government for the surrender of Snowden under the 1996 agreement. Then, the Hong Kong government would have to surrender Snowden - subject to two exceptions.

The first exception to surrender is if the offence is of a “political character”, and the second exception is an international law concept known as “dual criminality”. Applying to Snowden’s case, “dual criminality” means whatever crime he is alleged to have committed in the US must also be punishable in Hong Kong.

While Hong Kong has yet to implement national security laws pursuant to Article 23 of the Basic Law, it does have an Official Secrets Ordinance, which is likely to meet the “dual criminality” criteria, should the US decide to charge Snowden for disclosing state secrets.