Occasional Papers | Public administration and legal system | 2015-03-18

Preclearance Arrangement in Hong Kong: Benefits and Challenges

The Bauhinia Foundation Research Centre (the Centre) today released a new edition of Occasional Paper ‘Towards implementing preclearance in Hong Kong’, which draws on the successes and lessons learned from the American-Canadian ‘preclearance’ example, and further proposes a pilot arrangement be implemented at the Hong Kong International Airport for Mainland-bound flights. It also points out noteworthy issues for expanding preclearance to rail travel.

Currently, Hong Kong is a separate entity distinct from the Mainland and independently regulates the movement of persons in and out of its territory. Passengers must cross multiple checkpoints. In order to facilitate increased cross-boundary traffic, make large infrastructure investments worthwhile, and create a more convenient passenger experience, Hong Kong should adopt ‘preclearance’ at its boundary with Mainland China. The successful airport preclearance agreement between Canada and the United States can serve as an example for Hong Kong and Mainland China.

The paper suggests that preclearance should initially be introduced at a single boundary crossing, and expanded gradually if proven effective. Preclearance would allow passengers travelling from or via Hong Kong to Mainland China to clear Mainland Chinese customs and immigration checks in Hong Kong. Flights from Hong Kong would arrive in domestic terminals in Mainland China.

With reference to the successful examples, there are two basic principles that make preclearance in Hong Kong viable. Hong Kong and Mainland China must draft and sign a written, enforceable agreement similar to the ‘Aviation Preclearance Agreement Between the United States of America and Canada’. The agreement must be as detailed as possible so as to eliminate any possible ambiguity in the arrangement. The goal is to have preclearance be as mechanical as possible. In addition, it must codify into Hong Kong law the already agreed upon arrangement.

Most prominently, preclearance in Hong Kong would have to comply with the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China. It is also essential to articulate and adhere to Hong Kong’s priorities while adopting preclearance in Hong Kong regarding Hong Kong’s relationship with Mainland China. First, Hong Kong law cannot merely dominate—it must always apply. Second, preclearance must safeguard freedoms and protect civil liberties in the preclearance area and terminal. Third, Hong Kong officials must exercise sole jurisdiction in Hong Kong, including in the preclearance area and terminal. Mainland Chinese officials cannot have enforcement power in Hong Kong. Fourth, Hong Kong’s high degree of autonomy and its differences from the socialist system and policies must be maintained. Fifth, preclearance must be written, adopted and supported by Hongkongers.

When Hong Kong expands preclearance to rail travel to and from Mainland China, China-bound rail services can largely follow the Hong Kong International Airport model. However, preclearance for Hong Kong-bound rail services from Mainland China presents a new set of issues.

If rail services are to be made efficient and if high speed rail lives up to its name, it is likely that postclearance will need to be adopted in Hong Kong. Postclearance refers to the concept where passengers on Hong Kong-bound trains perform Mainland Chinese-exit customs and immigration procedures and Hong Kong-entry customs and immigration procedures all at the Hong Kong terminus. However, postclearance brings with it challenging legal issues. For example, a Mainland Chinese fugitive may take a train and arrive at the Hong Kong terminus to conduct postclearance. Only at that point, under Hong Kong jurisdiction, that Mainland Chinese immigration officials would discover that he or she is a fugitive and cannot leave Mainland China. Repatriation of this individual may be seen as an enforcement of Mainland Chinese criminal law in Hong Kong territory, even if it is done so within a unique postclearance area. This raises various questions on adherence with multiple Basic Law provisions.

Technology offers a possible solution to this dilemma. Mainland Chinese immigration may employ a ‘no-exit list’. At every Mainland Chinese rail station, all passengers embarking on a Hong Kong-bound train can be identified with fingerprint or other biometric identification systems; their identity and status can quickly and automatically be checked against a ‘no-exit list’. Given the already prevalent use of biometric identification systems for immigration control at Hong Kong and Mainland Chinese checkpoints, this solution is simple and time-efficient.

Please refer to the Paper for details.


Occasional Paper