Chu Po Kan v. Attorney General

CACV000035/1981

Extradition - requisition not accompanied by warrant of arrest - alleged crime "Murder" - Governor's order under s.7 of Extradition Act 1870 - subsequent warrant of arrest for "Manslaughter" - committal on charge of murder - whether Governor's order ultra vires - committal bad by reason of its inconsistency with warrant of arrest.

Habeas corpus - correct procedure.

Dates of hearing: 1st, 2nd and 23rd June, 1981

S.V. Gittins, Q.C. & Barretto (D.L.A.) for Appellant.

R. Pritchard (Legal Department) for Respondent.

-----------------

Coram: Sir Alan Huggins, V.-P., Leonard and Cons, JJ.A.

Date of Judgment: 23rd June, 1981.

-----------------

JUDGMENT

-----------------

Sir Alan Huggins, V.-P.:

1. This is another case where confusion has arisen as a result of a failure to appreciate the true nature of the proceedings and to follow the prescribed procedure in relation to habeas corpus. An Order of Habeas Corpus was issued on 8th December 1980 to the Commissioner of Prisons. The notice served with the writ called for a return to be made on 29th December 1980. On the day appointed the return should have been read and Counsel for the person detained (whom I shall refer to as "the Appellant") should have moved to quash the return. In the event it is conceded that there was no return made and the argument appears to have proceeded before the Full Bench as though there were before the Court two inconsistent applications, because the order against which the present appeal has been brought was that (1) the application for a Writ of Habeas Corpus be dismissed and (2) the Writ be revoked. Both parts of the order are objectionable, the first because a writ had been issued and no application for a further writ had been made or was necessary, and the second because there was neither any application nor any ground for revoking the Writ : an application to revoke the Writ would have amounted to an appeal against the order granting it.

2. It seems that the argument below proceeded in effect on the basis that the only possible return to the Writ was that the Appellant was detained under and by virtue of a Magistrate's order, dated 10th November 1980 and made under the Extradition (Hong Kong) Ordinance, whereby the Appellant was committed to prison to await the Governor's warrant for the surrender of the Appellant to the Panamanian authorities for trial on a criminal charge. To save time and expense we have proceeded in this Court on the same basis.

3. The first point taken is that there was no lawful requisition for an extradition order and consequently no foundation for the Magistrate's order. The history of the matter is as follows. On 27th June 1980 the Vice-Consul for Panama in Hong Kong swore out an Information alleging (a) that the Appellant was suspected and accused of the offence of "murder within the jurisdiction of Panama in that he is accused of the unlawful killing of SUN Shing-chun on 22nd June 1980" on board a Panamanian registered vessel in international waters; (b) that the Appellant was then in the Colony and that a warrant for his arrest would be issued in Panama; and (c) that the Vice-Consul had received advice from the Government of Panama that it would be making a formal request for extradition in due course. Upon this Information a warrant for the arrest of the Appellant was issued on 27th June 1980 and duly executed. He was brought before the Magistrate on 30th June and remanded in custody. On 3rd July 1980 the Governor made an order signifying that a requisition had been made for the extradition of the Appellant on a charge of "murder" and requiring the Magistrate to issue his warrant for the apprehension of the Appellant and otherwise to proceed in accordance with the Extradition Act 1870 as applied to Hong Kong. It is now conceded - and this must be borne in mind throughout - that at that date no Warrant of Arrest issued by the Panamanian authorities had been received in Hong Kong and that no such warrant was received until late in October 1980.

4. What is contended on behalf of the Appellant is that Article VIII of the relevant Treaty required that the Warrant of Arrest should accompany the requisition and that, as it did not, the requisition was bad. That article reads as follows :

5. It is not contested by the Attorney General that the Appellant is entitled to rely upon the terms of the Treaty by reason of their having been embodied in the Order in Council (1907 No. 648) and thus made part of the domestic law of Hong Kong. What is submitted is (i) that the terms of the Treaty have been complied with and (ii) that, if they have not been complied with, that does not affect the jurisdiction of the Magistrate to proceed under the provisions of the legislation.

6. Mr. Pritchard argued that, although the requisition referred to in the Governor's order dated 3rd July 1980 was not physically accompanied in the first instance by the Warrant of Arrest (which was not authenticated until 8th September 1980), it nevertheless remained an effective requisition up until the time when the authenticated Warrant of Arrest was delivered to the Governor and then became "accompanied by" such warrant within the meaning of the Treaty. The practical result, he says, is that the Appellant was lawfully arrested under the provisional warrant issued by the Magistrate on 27th June 1980 and lawfully detained thereunder for a period of 60 days; that the Appellant ought then to have been discharged under Article X of the Treaty because up to that time no requisition had been made "in accordance with the stipulation of [the] treaty"; that the Appellant may have a remedy for his wrongful detention from that date until 10th November 1980 when the Panamanian Warrant of Arrest was delivered to the Magistrate; that the requisition was made effective by the arrival of the Warrant of Arrest; that on 10th November 1980 the Magistrate had jurisdiction to proceed upon the Governor's order of 3rd July 1980, which had been validated by a lawful requisition; and that consequently the Magistrate's order of committal was good.

7. As to the existence of a "lawful requisition" Mr. Pritchard contends in the alternative that, even if the requisition referred to by the Governor in his order of 3rd July 1980 was not a continuing requisition which, although ineffective in the first instance because it was not accompanied by the Warrant of Arrest, could become effective when the warrant arrived, it was reasonable either to interpret the Warrant of Arrest itself as a further requisition by reason of the inclusion of a paragraph which has been translated as follows :

"Therefore, the extradition of the accused is requested through the Attorney General of the Nation fulfilling what was specified in the telegram no. 54 dated 26 of November 1969."

or to infer a further requisition made some time between 4th August 1980 and 10th November 1980, which requisition was in fact accompanied by the Warrant of Arrest as required by Article VIII, this inference to be drawn from the fact that on 4th August 1980 the Attorney General for the Republic of Panama wrote to the Minister of Foreign Relations a letter asking him to make a requisition and stating that the letter was accompanied by the authenticated Warrant of Arrest. Counsel submits that the subsequent arrival of the authenticated Warrant of Arrest justifies the inference that the requisition was made in accordance with the request of the Attorney General of Panama : it was not necessary that the requisition should be in any particular form and could even be made orally.

8. It is, I think, implicit in the foregoing contentions that, in a direction by the Governor which was dated 23rd September 1980 and purported to extend under Article XV the period of 90 days from the date of apprehension prescribed by that Article for the production of sufficient evidence for the extradition, "the date of apprehension" for the purposes of this case meant the date of the Appellant's apprehension under the provisional warrant dated 27th June 1980, although in a case where a provisional warrant under section 8 of the Act was superseded, on receipt of an effective requisition, by a remand pursuant to a Governor's order under section 7, "the date of apprehension" for the purposes of Article XV was the date of apprehension under the latter warrant : The Government of the Federal Republic of Germany v Sotiriadis 1975 A.C. 1.

9. I do not decide whether an oral requisition could properly be said to be "accompanied by" a document. Whilst the general jurisdiction of the Magistrate in extradition proceedings arises from the legislation, Mr. Pritchard recognised that on a strict interpretation of the legislation the Magistrate could acquire his jurisdiction to inquire into a particular case only from a Governor's order made upon receipt of a requisition and that there was no Governor's order made after the Panamanian Warrant of Arrest arrived in Hong Kong. Where a person is brought before a magistrate under a warrant issued under section 8, the magistrate cannot ipso facto proceed under section 9, for that section must refer to a fugitive criminal brought before the magistrate under a warrant issued pursuant to section 7 (or remanded in custody in reliance upon an order under section 7). It is only after a person has been apprehended under such a warrant or remanded in custody in reliance upon such an order that he will be required "to show cause why he should not be surrendered" : see Athanassiadis v The Government of Greece 1974 A.C. 282, 288. I fully appreciate that the fact that the Appellant had been wrongfully detained at some stage before the committal proceedings would be irrelevant if he were lawfully detained at the time of the inquiry. In Athanassiadis v The Government of Greece the fugitive was lawfully detained at the time of the inquiry. It is this which, in my judgment, differentiates the present case. Certainly no one could have criticised the Magistrate if he had on 7th July informed the Appellant that he was being remanded pursuant to the Governor's order of 3rd July. I think we are agreed that if he had done so the remand would have been unlawful and that the Appellant should have been released 60 days after his arrest under the provisional warrant, the purported extension under Article XV being ineffective. The order of 3rd July was intended to take immediate effect and it seems to me that it matters not whether in fact the Magistrate purported to act under it. If it was invalid to authorise the detention of the accused person beyond the 60 days from the day of execution of the provisional warrant, it was invalid to found jurisdiction to inquire into the charge. Nevertheless, the Magistrate was entitled to assume that it was valid unless and until there was evidence before him that it was not.

10. For my part I do not attach any significance to the fact that the Governor's order of 3rd July includes words which do not appear in the statutory form. Those words are, indeed, appropriate to a case where a warrant has already been issued under section 8 and duly executed, but they are in any event to be implied into the order : see Government of the Federal Republic of Germany v Sotiriadis 1974 1 A.E.R. 692.

11. Mr. Pritchard submitted that it would have been "pointless" for the Governor to make a further order. I understood him to mean that it would have been pointless because of the existence of the order dated 3rd July 1980. The difficulty as to that is that that order was made before the "effective" date of any requisition. If one assumes that the requisition was a "continuing" requisition, which could not be lawfully acted upon until the Warrant of Arrest arrived, I am not persuaded that the Governor's order was in a similar sense a "continuing" order. Indeed, if the Magistrate had been asked on 7th July under what power he was remanding the Appellant, he would probably have said that he was doing so by virtue of the Governor's order and not that he was still acting under section 8 and the provisional warrant, although it may be (and I express no opinion as to this) that the provisional warrant would still avail the Commissioner of Prisons until the expiry of the period of 60 days laid down in Article X. It was not open to the Magistrate at that stage to inquire whether the Governor's order was intra vires. However, on 10th November the Magistrate had before him a Governor's order dated 3rd July 1980 and a supporting Warrant of Arrest which had not been authenticated until 8th September 1980. That should have put him upon inquiry as to his jurisdiction and a further order could probably have been obtained. In my view such a step was not pointless and I think it would be wrong for us to shut our eyes to the fact that the order of 3rd July 1980 was clearly ultra vires.

12. The argument which attracted Liu, J. in the Full Bench and which Mr. Pritchard seeks to support is that the requisition referred to in the order dated 3rd July was not ineffective by reason of the later arrival of the Panamanian Warrant of Arrest, and reliance is placed upon The King v The Governor of Brixton Prison 1911 2 K.B. p.82, which has been referred to throughout as "Thompson's Case". What happened there was that there was a defect in the proceedings in the requisitioning state which had the result that the documents accompanying the requisition were not those required. The relevant treaty provided that the requisition be accompanied by

"a warrant of arrest or other equivalent judicial document issued by a judge or magistrate duly authorised to take cognizance of the acts charged against the accused in France together with duly authenticated depositions or statements taken on oath before such judge or magistrate."

In fact the only duly authenticated deposition had not been taken by the magistrate who issued the French warrant. It was held, in reliance upon a dictum of Blackburn, J. in Re Counhaye (1873) 8 Q.B. 410, that the alleged defect in the proceedings in France would not invalidate the requisition and entitle the person arrested to be discharged. Mr. Pritchard submits that the Warrant of Arrest in the present case is in no different position from the deposition in that case. For the purposes of this case I am prepared to assume that Thompson's Case was rightly decided, but it seems to me that there is a great distinction between producing at the proper time a deposition which shows that the alleged offence has been committed but which, in breach of the procedural requirements, has been taken before the wrong person and failing to produce a warrant of arrest at all : it is the warrant which establishes that proceedings are in train in respect of the alleged offence which require the presence of the alleged offender in the requisitioning country. As to this I respectfully concur with the disenting opinion of Zimmern, J. in the Full Bench and would allow the appeal.

13. It should not be thought that I would hold that the requisition and foreign warrant of arrest must necessarily arrive in the Colony in the same envelope before one can be said to accompany the other. I agree that, if the Governor had retained the requisition until the authenticated warrant of arrest was delivered and had then issued his order under section 7, the committal could not have been impeached on the ground that it was entirely without jurisdiction. That is not what happened here. The danger in proceeding to committal upon a Governor's order made before the warrant has arrived is demonstrated by what happened in the present case, for in the event the Governor's order and the Panamanian Warrant of Arrest related to different offences, and to that unfortunate inconsistency I now turn, although it will in the event be of no practical importance. The Governor's order dated 3rd July 1980 must be assumed to have stated correctly the terms of the requisition which had been received and it defined the alleged offence thus :

"murder within the jurisdiction of Panama namely on board the said vessel 'Po Toi Island' in international waters".

It is only of passing interest that the Information which led to the issue of the provisional warrant had stated the offence in these terms :

"murder within the jurisdiction of Panama, in that he is accused of the unlawful killing of SUN Shing-chun on the 22nd day of June 1980 on board the said vessel in international waters".

The provisional warrant correctly adopted the wording of the Information. However, the Panamanian Warrant of Arrest was merely for

"the offence of Homicide against SUN Shing-chun".

It is not for us to question a translation which is the only translation of a vital document, but we are not only entitled but bound to take notice of the terms of Article II of the Treaty, which clearly distinguished between "homicidio" and "assesinato" and likened them to "manslaughter" and "murder" respectively. It is enough that they are different crimes. We therefore have the position that the requisition sought committal for one offence and the warrant of arrest related to another, albeit a related, offence. Had the warrant physically accompanied the requisition this inconsistency might well have been noticed earlier. What should the Magistrate have done? In fact he committed in accordance with the requisition as reflected in the Governor's order. Article VII of the Treaty provides :

In Hong Kong legislative effect is given to that provision by section 19 of the Act and that section was considered in Reg. v Aubrey-Fletcher ex parte Ross-Munro 1968 1 Q.B. 620, where it was held that a person extradited to England could be tried for "such of the crimes as might be disclosed by the facts alleged in the extradition proceedings", "the extradition proceedings" being those which took place in England. We do not know what evidence was given before the Magistrate in Panama which led to the conflicting requisition and warrant of arrest. It is possible that he had the six statements which are exhibited to the Appellant's affidavit, but that is mere conjecture. It would be strange if a Magistrate who had before him evidence justifying committal on a charge of murder issued a warrant of arrest on a charge of manslaughter. Extradition being a matter which so deeply affects the liberty of the subject we should not assume anything against the Appellant and, in particular, we should not assume that the Magistrate had before him more evidence than is reasonably to be inferred from his warrant. It is true that the Attorney General for Panama in his request to the Minister of Foreign Relations stated that the Appellant "had been accused of" murder, but he did not expressly say that the evidence justified the accusation and he was content to forward a warrant for a lesser offence. (In referring to the Attorney General's letter I am, of course, accepting the translation as correct, although in justice to him I think it should be mentioned that the translation is almost certainly inaccurate, for the letter nowhere mentioned "asesinato".) In my view it was wrong that the Appellant should be committed for extradition for an offence different from that mentioned in the warrant. It may be that on arrival in Panama he could, by virtue of legislation based on Article VII of the Treaty, be charged with murder, but that would not justify his committal here on a charge of murder. I think the Magistrate should have committed him on the charge of homicide. I doubt whether it would have been proper for him to adjourn the matter pending receipt of an amended requisition and warrant of arrest, but his powers in that respect have not been argued before us.

14. I would discharge the Appellant.

Leonard, J.A.:

15. This is an appeal from an order made by Mr. Justice Liu in the above-mentioned miscellaneous proceedings by which it was ordered (1) that the application for habeas corpus be refused; (2) that the writ of hebeas corpus issued on the 26th November 1980 be revoked and for costs. The matter was beset by irregularities and its history is as follows :

16. On the 22nd of June 1980 the applicant was involved in a fracas on board a Panamanian registered vessel "Pa Toi Island" in international waters. In the course of it one SUN Sing-chun died of a knife wound. On the arrival of the "Po Toi Island" in Hong Kong on 24th June 1980 the appellant was arrested and on 27th June the Vice-Consul of Panama in Hong Kong in Charge laid an information before a magistrate which averred that the applicant was suspected and accused of the commission of the offence of murder within the jurisdiction of Panama

"in that he is accused of the unlawful killing of SUN Shing-chun on the 22nd day of June 1980 on board the said vessel in international waters."

The information stated that a warrant for the arrest of the applicant would be issued in Panama and that a formal request for his extradition would be made in due course. As a result, on the same day the magistrate issued a warrant for the arrest of the applicant under the Extradition Acts 1870 and 1873 and under the Extradition (Hong Kong) Ordinance Cap. 236. The applicant was as from the 30th of June 1980 detained under this warrant. The magistrate reported the information, warrant, arrest and detention to the Governor but failed to fix a time for the release of the applicant as provided by section 8 of the Extradition Act 1870.

17. On the 3rd July 1980 the Governor by an order under his hand and seal signified to the magistrate that a requisition had been made and required him to issue his warrant for the apprehension of the applicant or otherwise to proceed in accordance with the Extradition Act 1870 as applied to Hong Kong.

18. On the 23rd September 1980 the Governor issued a further order informing the magistrate that sufficient evidence for extradition had not been produced within 90 days of the date of the apprehension of the applicant and directed, pursuant to Article XV of an Order in Council dated the 12th August 1907 made in pursuance of an arrangement with the Government of the The Republic of Panama, that a further period of sixty days from the expiration of the aforesaid period of ninety days should be allowed for the production of sufficient evidence for the extradition.

19. After remands to the 10th November, 1980 the magistrate was informed by counsel for the appellant that he agreed "that all the necessary formalities have been complied with". Crown Counsel thereupon produced to the magistrate what purported to be a warrant of arrest and translation of the same together with excerpts from the Panama Penal Code and translation.

20. The translation of the Panamanian warrant or "order of arrest" read with typographical errors as follows :

On the 4th August, 1980 the National Attorney General of the Republic of Panama had written to the Minister of Foreign Relations of that Republic informing him that he had been approached by the Third Higher District Attorney of the First Judicial District who sought the extradition of Mr. CHU Po-kan who was accused according to the original Spanish "deldelito de homicidio" but according to the official translation of the Consulate General of Panama " of the murder of SUEN Shing-chum". This letter requested the Minister to request "the British authorities of the Colony of Hongkong the extradition to our country a Mr. CHU Po-kan in order that he may be innestigated and trial (sic) according to the Procedure and corresponding Penal laws of the Republic of Panama". It is to be noted that in his order to the magistrate of the 3rd of July 1980 the Governor states that requisition had been made to him by the Vice-Consul for Panama in Charge in Hong Kong for the surrender of the applicant "accused of the commission of the crime of murder within the jurisdiction of Panama". We have not seen a copy of this requisition if indeed it was made in writing nor do we know if a further requisition was made preceding the issue of the order of the 23rd September 1980. This also states that the applicant is accused of the commission of the crime of murder. It was conceded before us that the only warrant emanating from the Panamanian authorities was that set out above and that it did not come to Hong Kong until late in the month of October 1980. The offence alleged against the applicant in that warrant or order of arrest is "the offence of homicide". This phrase appears to be a translation from the Spanish of the words "del delito de homicidio". We thus have two different translations of that phrase in official translations. A third translation of the phrase exists for from Article II of the Extradition Treaty between the United Kingdom and Panama as recited in the Order in Council No. 648 of the 12th August 1907 in both English and Spanish it appears that the word used for "murder" is "asesinato" and that for "manslaughter" is "homicidio". I am constrained because of this Article II and the many qualifications applied in our criminal law to the word "homicide" to regard the word "homicide" in the translation of the warrant as meaning "manslaughter". The extracts from the Panamanian Penal Code submitted to the magistrate are headed :

"Laws applicable to the citizen CHU Po-kan accused of the homicide of SUN Shing-chun." (emphasis added)

Article 2091 which is referred to in the warrant is an article dealing with the power to arrest persons for offences punishable with imprisonment and is of no assistance in this connection. Article 311 which is also set out reads :

"He that with the intention of killing causes the death of another person, will become liable to the penalty of confinement for five to fifteen years."

I regard the warrant in this case as charging the applicant with manslaughter and not with murder. The evidence adduced before the magistrate established a prima facie case of murder but one in which a judge would be obliged to leave the questions of provocation and self-defence to a jury and in which a Hongkong jury might well, have returned a verdict of manslaughter.

21. On the 26th November 1980 a Full Bench (O'Connor, J. and Baber, J.) ordered ex parte that a writ of habeas corpus should issue. The writ dated the 8th December 1980 commanded the Commissioner of Prisons to produce the body of CHU Po-kan together with the day and cause of his being taken and detained. It was accompanied with the usual notice requiring the Commissioner to make a return. This the Commissioner, it is conceded, did not do. In paragraph 11 of an affidavit sworn on the 24th November 1980 the applicant stated

"11. At the hearing verbal evidence was given by prosecution witnesses and despite strong evidence of self-defence and provocation, the learned Magistrate committed me to Prison to await the Governor's Warrant for surrender on the charge of murder."

The order made by the magistrate on the 10th November 1980 reads :

"for committal to prison to await the Governor's warrant for surrender."

Quite clearly had the Commissioner of Prisons complied with the obligation imposed upon him to make a return the return which he would have made would have been to the effect that the applicant was in his custody pursuant to this order and a warrant issued in consequence of it by the magistrate. No other return would have been possible. Therefore if we were to remit this case to the Full Bench ordering that a return should be obtained it is inevitable that a return having been made, the same result would follow and the same points which have been raised before us and with which I will now deal would be raised again. I see no reason for visiting on the appellant the anguish of delay for this purpose and I propose to deal with the matter as if a return had been made. In taking this course I would remark that it does not appear from the papers before us that the omission of the Commissioner was noticed by the Full Bench or by any party before it.

22. The first ground of appeal was not pursued before us. It suggests that Mr. Justice Liu erred in revoking or purporting to revoke the writ of habeas corpus. As it was not pursued I think the only sensible course to adopt is to regard the order made by the Full Bench as being one refusing to quash the notional return of the Commissioner for Prisons. And it was on this basis that the argument was pursued before us.

23. It is necessary at this stage to refer to a number of sections in the 1870 Act and to a number of Articles in the Treaty. Under section 2 of the Act the Crown may direct that the Act shall apply in the case of a foreign state where an arrangement has been made with that foreign state by Order in Council. By that or a subsequent Order in Council the operation of the Act may be limited and its operation rendered subject to such conditions, exceptions and qualifications as may be deemed expedient. The Order in Council must recite or embody the terms of the arrangement. Under this section Order in Council No. 648 of 1907 applying the act to Panama was made. Section 3 of the Act sets out various restrictions to be observed with respect to the surrender of fugitive criminals and by the second paragraph of section 3

"A fugitive criminal shall not be surrendered to a foreign state unless provision is made by the law of that state, or by arrangement that the fugitive criminal shall not, until he has been restored or had an opportunity of returning to Her Majesty's dominions, be detained or tried in that foreign state for any offence committed prior to his surrender other than the extradition crime proved by the facts on which the surrender is grounded."

I will comment on the significance of the words underlined later. Under section 5 when an order applying the act has been published the Act shall apply so long as the order remains in force

"but subject to the limitations, restrictions, conditions, exceptions and qualifications, if any, contained in the order apply in the case of such foreign state."

Under section 8 of the Act with necessary alterations for the Colony, a warrant for the apprehension of a fugitive criminal, whether accused or convicted of crime, who is in or suspected of being in the Hong Kong, may be issued -

Any magistrate issuing a warrant under this section without an order from the Governor shall forthwith send a report of the fact of such issue, together with the evidence and information or complaint, or certified copies thereof, to the Governor, who may if he think fit order the warrant to be cancelled, and the person who has been apprehended on the warrant to be discharged.

24. Section 10 of the Extradition Act empowers a magistrate to commit a fugitive criminal accused of an extradition crime to prison to await the Governor's warrant for his surrender, if the foreign warrant authorising his arrest is duly authenticated and such evidence is produced as would according to the law of Hong Kong justify the committal for trial of the prisoner if the crime of which he is accused had been committed in Hong Kong but otherwise shall order him to be discharged.

25. I turn now to the provisions of the Treaty which is set out in full in Order in Council 648 of 1907. I have already mentioned the relevant provisions of Article II of this Treaty. Articles IV, V, VI and VII were clearly inserted in the Treaty for the protection of the fugitive offender and I need not refer to them now save to note that they are there. Article VII I will deal with later. Article VIII reads :

In our case a provisional warrant was issued under section 8 on the information of the Panamanian Consul. The magistrate reported its issue to the Governor and the Governor then informed the magistrate that he had received a requisition and ordered the detention of the applicant. Mr. Gittins suggests that the Governor could not in fact or in the law have received a requisition when he so ordered. The national Attorney General of the Republic of Panama did not ask the Minister of Foreign Relations of that Republic to make a requisition until the 4th August 1980. No requisition could be validly made, he argues, before the order of arrest which I have set out in full above had reached Hong Kong because the requisition could not have been accompanied by the warrant which, it is conceded had not then arrived in Hong Kong and did not arrive until late October 1980. The relevant portion of Article X provides :

"He (the fugitive offender) shall, in accordance with this Article, be discharged, as well in the Republic of Panama as in the United Kingdom, if within the term of sixty days a requisition for extradition shall not have been made by the Diplomatic Agent or Consul-General of his country in accordance with the stipulations of this Treaty. The same rule shall apply to the cases of persons accused or convicted of any of the crimes or offences specified in this Treaty, and committed in the high seas on board any vessel of either country which may come into a port of the other."

26. Article XV is also of relevance. It provides that

"If sufficient evidence for the extradition be not produced within ninety days from the date of the apprehension of the fugitive, or within such further time as the State applied to, or the proper Tribunal thereof, shall direct, the fugitive shall be set at liberty."

It was apparently the existence of this Article which led to the second direction of the Governor to the magistrate on the 23rd September 1980. Blackburn, J. in the case of Re Counhaye L.R. 8 Q.B. 410 observed that :

"The Secretary of State having made an order, and the magistrate having acted under it, all we have to do is to look at the Act to see whether he had jurisdiction under it."

In Rex v. Governor of Brixton Prison⁽¹⁾ commenting on the effect which R. v. Wilson⁽²⁾ may have had on the authority of in Re Counhaye Darling, J. observed :

"I think that the latter case shews that the language attributed to Blackburn, J. is somewhat too wide, but I do not think that it overrules it. The Act as applied to the particular State is no doubt limited by the terms of the treaty, but it is not therefore every condition to be found in the treaty that is essential to the legality of an arrest and detention under the Act. It is essential that the offence for which the prisoner is sought to be surrendered should be one of those specified in the treaty, but I do not think that a mere defect in the procedure prescribed by the treaty is sufficient to invalidate the warrant."

Channell, J. in the same case made the relationship between the three documents clearer. He said :

In Kossekechatko & Others v. The Attorney General Trinidad⁽³⁾ the importance of looking at the three documents together is emphasized. The appellants were fugitive criminals from the French penal settlement at French Guiana. They had each been convicted in France of a specified crime and each had received a sentence of imprisonment which was unexpired. Under the terms of the treaty with France they could be extradited only if the crimes of which they had been convicted were committed in French territory .... It was clear that conviction in France did not necessarily involve that the crime of which the person had been convicted had been committed in the territory of the French Republic. Omission to prove this essential fact was held fatal. In Athanassiadis v. Government of Greece and Others⁽⁴⁾ Viscount Dilhorne observed at page 290 :

"While I agree that the meaning of language used in a treaty is not to be interpreted as if an Act passed in the territory of one of the powers governed it, it does not, in my view, follow that a rule of construction applicable under the law of one power in relation to legal documents ... is to be applied in relation to it. In each case, it seems to me, one has to consider what was the intention of the treaty."

On this basis of these cases Mr. Pritchard conceded that one must look to the Treaty to see what rights are conferred on the individuals concerned. He contended that those involved in this case were merely procedural and that Thompson's case⁽¹⁾ therefore be followed. Is there validity in this submission? The requisition made to the Governor and leading to his orders of the 3rd July 1980 and the 23rd September 1980 was for the surrender of CHU Po-kan "accused of the commission of the crime of murder". It appears that he was not accused of the commission of that crime but of "delito de homicidio en perjuicio de SUN Shing-chun". When one looks at Article II of the Treaty this is seen to mean "the crime of manslaughter of SUEN Shing-chun". This error would not have occurred if the warrant had accompanied the requisition and been seen by the Governor before he gave the order to the magistrate. The order to the magistrate was therefore irregular.

27. Mr. Pritchard submits that the only consequence of the error made in issuing the order was to give to the appellant the right to sue for false imprisonment and did not affect the jurisdiction of the magistrate on November the 10th 1980. The appellant having been apprehended under a provisional warrant became entitled under Article X of the Treaty to be discharged "as well in the Republic of Panama as in the United Kingdom, if within the term of sixty days a requisition for extradition shall not have been made by the Diplomatic Agent or Consul-General of his country in accordance with the stipulations of this Treaty." It is clear that on the lapse of sixty days from the time of his apprehension the appellant was entitled to be discharged under this Article of the Treaty. Mr. Pritchard says that that he was not released gives him no more than a right to complain of false imprisonment between the dates when he should have been discharged under Article X and the date of committal. He contends that on July the 3rd 1980 the Governor must have had a requisition. He stresses that it is nowhere provided that the requisition must be in writing. No formality is provided for. It can he suggests be written, oral, made over the telephone or even made by implication. A requisition is, he says, no more than a communication which remains a requisition until complied with, refused or withdrawn. However, the requisition was not refused or withdrawn. It was accordingly, he suggests, in existence in late October when it was joined by the warrant. Then he suggests it became a requisition accompanied by a warrant. He argues that the warrant did not fail to accompany it because it was not contemporaneous with its issue. The warrant is itself, he points out, a requisition. He suggests that all the Governor would have had to do on sight of it would have been to have issued his order but it was pointless for him to do so since the order had already gone out. This is to lose sight of two facts (a) that the Governor acted on a requisition when it was unaccompanied and (b) that he stated in his order that requisition has been made for the appellant's surrender "accused of the commission of the crime of murder". The warrant when it arrived did not indicate that he was wanted in Panama for murder. Even in its translation it refers to homicide which is not necessarily murder. As late as the 10th of November 1978 the magistrate, counsel for the appellant and Crown Counsel were all under the misapprehension that the appellant was wanted for the offence of murder. It was on this basis that the evidence was examined by the magistrate and on this basis that he was committed to prison to await surrender. Do the words in Section 3 of the Act which I have underlined save the magistrate's order of committal? I do not think so for they are not contained in an enabling section. Further section 8 has its counterpart in Article VII of the Treaty which states that

"A person surrendered shall in no case be kept in prison or be brought to trial in the state to which the surrender has been made for any other crime ... than those for which the extradition shall have taken place ...".

28. While the evidence taken by the magistrate suggests that a prima facie case of murder has been made out and while as a consequence it might be said that "the extradition crime proved by the facts on which the surrender is grounded" is murder the surrender cannot properly be made for murder since it is not sought for that offence.

29. It is with considerable regret that I have come to the conclusion that this appeal must be allowed and the appellant be discharged as the unfortunate situation that arose, arose in fact through errors in translation which did little to prejudice the appellant. I regret that the damage cannot be cured by substituting for the order of the magistrate an order that the appellant be committed to prison to await surrender for the crime of manslaughter but to make such an order would as I see it be beyond our jurisdiction on an appeal in Habeas Corpus.

Cons, J.A.:

30. I must confess that I have found the jurisdiction point one of difficulty. It seems to me to turn ultimately on whether one looks upon the Governor's order as a hook upon which the whole proceedings are hung or as merely one strand in the rope on which the magistrate finally hangs the committal, the other strands being the warrant, its authenticity and the evidence. On the former view, if the hook is insecure because the requisition to which it is attached is itself defective, being unsupported by the necessary warrant, the whole proceedings fall to the ground. On the latter view, the rope is strong enough provided that all four of the strands have been laid up by the time the magistrate actually makes his enquiry.

31. I find temptation in the latter view, for although the strand in question was defective on the 3 July, it had been made good by at least the 10 November and it is the committal on that day which is the subject of this appeal. Yet there is some logic in the opposing arguments. However in view of the conclusion I have come to on on the second point, I do not find it necessary to decide which is the better opinion.

32. I am in agreement with the learned Vice-President, and for the reasons he has given, that the extradition crime in the present instance is the crime of manslaughter. That is the crime into which the magistrate was bound to inquire and, if appropriate, for which he should have committed. S.10 does not in so many words require the magistrate to commit for a particular crime, but I think it is to be implied from the general wording of the section, which is confirmed by the words used in the forms scheduled to the Act.

33. In the present instance, although we have not been shown the magistrate's warrant, we must assume that it specifies murder. In that case the applicant stands committed for a crime of which he is not accused and he must therefore be discharged.

34. I come to that conclusion with the greatest reluctance, and for two reasons. One is that the applicant appears to be entirely devoid of merit. Had the warrant been scrutinized more carefully and the applicant been then committed, as I think he must, for manslaughter I cannot conceive that he would have stood any chance of success in this court.

35. The second is that there is no suggestion that the evidence does not support a charge of murder, so that on a surrender for manslaughter the Panamanian authorities might nevertheless have preferred the former charge. However, it seems to me that to commit a fugitive on a charge more serious than that of which he is accused in the requisitioning state goes beyond a mere technicality. For this reason I agree that the appeal should be allowed.

23rd June, 1981.

Representation:

S.V. Gittins, Q.C. & Barretto (D.L.A.) for Appellant.

R. Pritchard (Legal Department) for Respondent.

(1) (1911) 2 K.B. 82

(2) (1877) 3 Q.B.D. 42

(3) (1932) A.C. 78

(4) (1971) A.O. 282