Editorial: Shanghai trial: NZ shouldn't feel insulted

Hiren Mohini with his family. Photo / Supplied

Opinion

For reasons of principle and practicality, it is generally desirable that criminal proceedings take place in the country where the crime was committed. Extradition treaties recognise as much. Thus, there is justifiable unease that the trial of the man alleged to have murdered taxi driver Hiren Mohini in Mt Eden last January will be held in Shanghai. Zhen Xiao, a Chinese citizen, left this country shortly after the killing and was arrested by Chinese authorities almost six months later. The location of his trial has drawn strong criticism from Associate Professor Bill Hodge, of the University of Auckland. "It is an insult to the jurisdiction of New Zealand," he said.

The case is certainly precedent-setting in that it is believed no one has ever been tried in another country for a murder committed here. Nonetheless, Professor Hodge seems to be overcooking the pot somewhat. In the first instance, a specific set of circumstances is involved. There is no extradition treaty between China and New Zealand, perhaps in some measure because China has always been loath to send its nationals to other countries to be tried. This, added to Zhen's obviously strong legal argument that he should not be removed from China, effectively precluded any sort of agreement between the two governments for the former SkyCity kitchenhand to return here. Negotiations did, however, achieve a nod to New Zealand law. Zhen, if found guilty, will be punished by life imprisonment or something similar, not the death penalty, which still applies in China.

More fundamentally, Professor's Hodge's criticism fails to acknowledge that China's action is hardly unique. Indeed, international law recognises that countries may enforce their laws outside their territorial jurisdictions to hold their own citizens accountable for their crimes. As one example, several American laws allow employees of private security firms contracted to the United States military to be tried for human rights violations overseas. As another, New Zealand is one of many countries to have laws designed to protect children in the likes of Thailand and the Philippines from New Zealand sex predators.

The provisions of that law relate only to sex crimes against children. Other crimes committed overseas would require an alleged offender to be extradited to stand trial. This situation reflects international repugnance over sex tourism. Equally, however, the narrow ambit of such extraterritorial law points to its shortcomings, not to speak of its breach of a worthy principle. In this country, and others, the number of convictions of child sex offenders is low. Likewise, the US has been condemned for its lack of action over alleged crimes by contractors in Iraq. If some of this criticism may be valid, there can be practical excuses. Often, it can be difficult to get admissible evidence from the country where the offence was committed, and to gain testimony from witnesses.

Zhen's trial will have nothing like the extreme problems of many of these cases. But it will not be without its difficulties. Chinese authorities must travel to New Zealand to gather evidence on the murder of Mr Mohini. Likewise, New Zealand witnesses may have to go to China to testify at the trial. If so, it will be a somewhat alien, and potentially problematic, experience. Zhen will be tried not under the jury-based adversarial trial system used here but an inquisitorial system overseen by a judge.

Such issues reinforce the desirability of offenders standing trial in the country of their alleged crime. A special set of circumstances has led to Zhen being tried in Shanghai. This is not a slap in the face to New Zealand. But neither does it provide the best framework for delivering justice.