The Arrest of Alvin Chau and Macau Extradition

 

The Arrest of Alvin Chau

Suncity Group closed all of its VIP Clubs in Macau following the arrest of CEO Alvin Chau by Macau’s Judiciary Police on 27 November 2021. Chau remains under arrest awaiting trial for alleged criminal association, illegal gambling, money laundering. Chau’s arrest came a day after China’s Wenzhou Public Security Bureau issued an arrest warrant of its own, accusing him of “opening casinos in China” via the operation of cross-border gambling operations. 

Here is the text of a recent interview on this matter.

Q: Do you know if there was any case-by-case transferal of fugitives from Macau to mainland China since 1999?

There have been ad hoc transfers in spite of the Macau Court of Final Appeals’ (TUI) holding that local authorities could not transfer criminal suspects to mainland China absent a formal agreement.

Two key cases occurred in short succession in 2007 and 2008. Both involved Hong Kong permanent residents being detained upon arrival at the Macau ferry terminal for crimes allegedly committed in mainland China for which Interpol “red notices” were issued. Both petitioners pled for the Macau court to grant them habeas corpus.

The TUI rendered its first decision in 2007 (case 12/2007) where it granted habeas to the first Hong Kong petitioner, concluding that it would be improper to detain or hand anyone over in the absence of formal agreements.

Nevertheless, the Macau authorities have acted contrary to that decision. Shortly thereafter, in TUI case 3/2008, the Macau police simply transferred the suspect to mainland China before the court could render a decision. The TUI rebuked the authorities, holding that “such acts affect the credibility of the justice system, undermine the rule of law and do not give prestige to the Macau SAR.” Yet, the proceedings ended there, as the issue had become moot upon transfer.

The Macau authorities arguably defied those rulings again in 2015, when they handed Wu Quansen – former party secretary of Dadun Village in Guangzhou – over to Guangdong police. Wu had been granted non-permanent residence status in Macau but was returned to face corruption charges after his permit expired in 2017. However, Macau officials insist upon characterizing this transfer as a “deportation” rather than a “surrender” by emphasizing the revocation of Wu’s residence permit.

 

Q: I find it odd that there is no extradition agreement between the places given Macau's good relations with China, and am interested in the reasons why. 

The Macau authorities have had trouble reconciling criminal transfers to mainland China for centuries, and vestiges of the Portuguese legacy remain. The legacy sticking points have always been the existence of political crimes, quality of criminal treatment, and practice of capital punishment. Addressing these issues was a political third rail for centuries.

For example, the Portuguese always refused to send Nationalists to Yuan Shikai’s Government for political crimes, including Sun Yat-sen. (In fact, Sun penned a letter of gratitude to Macau Governor José Carlos de Maia for this reason in 1916!).

As in Hong Kong, discretion in the practice of criminal prosecutions was perceived as fundamental to the fabric of regional autonomy. After Tiananmen, the prospect of sending criminal defendants to trial in mainland China was simply erased from the possible agenda of either of the Joint Liaison Groups. As late as 1995, the Portuguese Constitutional Court refused an extradition to mainland China where capital punishment was a potential sentence.

There may be more intrinsic barriers to extradition in Macau than exist in Hong Kong. Whereas capital punishment is lawful in mainland China but outlawed in Hong Kong and Macau, Macau also outlaws life imprisonment (which Hong Kong and China do not). Portugal became the first country in the world to outlaw life sentences in 1884, and that idea has gained greater traction in continental human dignity jurisprudence. Portugal now features a maximum sentence of 25 years for murder convictions.

 

Q: Why did Macau and mainland authorities go after Alvin Chau (at this timing)?  

It seems clear that the timing of the Macau authorities was based upon developments in mainland China. The People’s Procuratorate of Wenzhou city, Zhejiang Province, announced its arrest warrant for Alvin Chau via social media on Friday, 26 November 2021. He was among 11 persons detained by the early morning hours of Saturday, 27 November 2021.

It is not clear yet why the mainland authorities chose this time to act. On the one hand, the decision might have been strictly governed by the course of the investigation itself. On the other, one could speculate that it may be partially influenced by a policy decision to enhance supervision of Macau’s lucrative gambling junkets during a period when gambling revenues and cross-border intercourse are already low due to the pandemic, or that Mr. Chau crossed the wrong authorities at the wrong time.

 

Q: Do you think the Macau govt was taking orders from the mainland to arrest Chau as suspected by some people?

Either directly or indirectly, yes. Although the Macau Police insist they acted pursuant to their own investigation, the timeline of warrant and arrest are so linked as to yield that presumption. However, it is possible that the Macau authorities acted on their own accord to arrest Mr. Chau before he could flee, thus avoiding the embarrassment and consequences of having an alleged fugitive slip through their fingers.

 

Q: Do you expect Macau would transfer Chau to the mainland on a case-by-case basis later?

It is possible, but there is a wild card. In the three previously discussed transfer cases, none of the defendants were current Macau residents. Here, the Wenzhou authorities themselves referred to Mr. Chau’s status as a “Macau resident.” Thus, transferring Mr. Chau would set a new precedent in the post-handover era.

It is likely that an ad hoc arrangement will be reached. This has been the local practice for centuries. For example, in 1743, a Portuguese resident of Macau was accused of murdering a Chinese resident. The Qing Viceroy of Guangdong ordered that the accused be “tried and executed according to the normal legal practice of China.” Although Chinese laws were applied, venue was granted for Macau, where the defendant was ultimately hung in the presence of representatives from both regimes.

It is possible that Macau will be granted venue, and Mr. Chau face trial and punishment there under Macau law for largely the same facts with which he would be confronted with in mainland China. That would be a symbolic boost to the SAR’s autonomy and perceived rule of law on some level, though limited in the context of these extenuating circumstances. However, it is also possible that the mainland authorities will insist upon a handover for either the symbolic status of venue, or to circumvent the limited punishments available under Macau’s inherited legal system.

 

Q: Do you think mainland authorities would bring up the issue of reaching an extradition agreement with Macau in the wake of Chau's arrest? 

 Yes it is possible. The issue of mutual legal assistance (or “MLA”) has long been discussed at conferences and workshops of academics, lawyers, judges, and government officials. Article 93 of the Macau Basic Law suggests such development:

The Macau Special Administrative Region may, through consultations and in accordance with law, maintain judicial relations with the judicial organs of other parts of the country, and they may render assistance to each other.

Whereas the permissive “may” phrasing reflects fears during the transitional period, the pro-establishment, post-handover authorities are now firmly in charge, and the phrase “in accordance with the law” suggests that some kind of legislation or regulation of MLA will eventually come to pass. This task is made easier by the purging of democratic party candidates from elections for Macau’s Legislative Assembly – a bureaucratic decision of Macau’s Legislative Assembly Election Affairs Commission upheld by the TUI in July 2021.

At present, despite Macau’s close political and socioeconomic ties with mainland China there is no formal arrangement on the surrender of fugitive offenders. Macau’s current Law No. 6/2006 styled “Law on Mutual Legal Assistance in Criminal Matters” is applicable only to “States or Territories outside the People’s Republic of China.” That law enshrines several key principles, including: the primacy of international conventions (article 4); reciprocity (article 5); and recognized grounds for refusal to provide assistance (articles 7 and 8). Included under “recognized grounds for refusal” is “any offence of a political nature or an offence connected with a political offence, according to the concepts of Macau SAR law.” It appears doubtful that the Macau courts would be able to defend any contrary ruling on these terms in the domestic context given its proximity to mainland political influence.

Thus, the open question is on the form of that future agreement. Many proposals have been made, including (1) a model of single central legislation (i.e., a decree from Beijing); (2) a model based on international conventions; and (3) a model agreed through meaningful central-local consultations. At this point, it seems that the central legislation model is likely for several reasons: the capture of the Macau Legislative Assembly precluding meaningful deliberations; that streamlining the ‘one country, two systems’ relationship has been a hallmark of recent efforts; and that it would not seem to make sense to have multiple cross-border arrangements with entities other than the Mainland central authorities as the text of Article 93 suggests.