Cheung Ying Lun v. Government of Australia and Another

CACV000074/1990

Headnote

When considering an application for extradition in relation to a "relevant" offence pursuant to the Fugitive Offenders (Hong Kong) Order 1967 the magistrate must be satisfied only that a prima facie case has been made out; as when considering whether an accused should be put upon his trial for an indictable offence. Admission of translations and the rule in R V Brown and Hedley (1867) 10 Cox CC 453 also considered.

BETWEEN

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Coram: Hon Kempster, JA and O'Connor and Barnett, JJ

Dates of Hearing: 17-18 July 1990

Date of Judgment: 18 July 1990

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JUDGMEAT

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Kempster, JA:

1. This is an appeal from the judgment and order of Sir T.L. Yang CJ given on 10 April 1990 whereby he declined to discharge from custody one Cheung Ying-lun (the appellant) who had been brought before him pursuant to a writ of Habeas Corpus issued by order of Sears J on 16 February.

2. Chronologically the first relevant event in Hong Kong was the issue on 3 April 1989 of a provisional warrant for the arrest of the appellant pursuant to section 6(1)(b) of the Fugitive Offenders Act 1967.  That and other sections of the statute were extended to Hong Kong by the Fugitive Offenders (Hong Kong) Order 1967 (SR&O No 1911 of 1967) as amended. By section 34(3) of the Extradition Act 1989 that order remains unaffected by the repeal of the 1967 Act as from 28 September 1989.

3. The warrant recites that the appellant had been accused both of conspiring to traffick and of trafficking in dangerous drugs contrary to the law of Australia. Two other men were arrested on like warrants but that is by tlhe way for present purposes. Authority to proceed on the two offences mentioned in the warrant, as required by section 5 of the Act, was issued by His Excellency at the request of the Australian Government on 2 October and the application to extradite the appellant was heard by Mr Carlson, a permanent magistrate, between 8 January and 9 February 1990. The appellant gave evidence and called witnesses. On the latter date the magistrate found a prima facie case to have been made out in relation to the offences which he also found "relevant" within the meaning of section 3. He thereupon committed the appellant into custody to await the issue by His Excellency of a warrant for his return to Australia pursuant to section 9. Offences charged are "relevant" if the underlying acts or omissions would give rise to criminal liability in Hong Kong. The material underlying acts, as presented to the magistrate on behalf of the Government of Australia, can shortly be outlined.

4. In the course of his duties as a Senior Inspector with the Anti-Narcotics Division of the Customs and Excise Department of the Hong Kong Government the appellant made the acquaintance of one Cheung Siu-wah whom he recruited as an informer.  During August 1988 he requested Cheung to play a different role namely to arrange a shipment of some 50 kg of No 4 heroin to Australia via Vanuatu; promising him HK$2 m for his pains. Others were involved in the conspiracy. In December Cheung shipped the heroin to Vanuatu concealed in a van which itself was loaded into a container.

5. The heroin was not shipped from Vanuatu until April 1989. It reached Sydney during the following month; at that stage concealed in a freezer and water-heater within a container. By then Cheung had informed on the appellant. Members of the Australian Federal Police arrested the buyers and seized the heroin. Its estimated street value was 45 m Australian dollars.

6. By his Notice of Appeal the appellant contends that the Chief Justice erred in law in seven respects in the course of his judgment but in substance only two questions arise.

7. The first question, encompassing four suggested errors, derives from the ruling that uncertified translations of documents in a primary language other than English were admissible in evidence before the magistrate. The documents were taped telephone conversations and a statement made by Cheung. The language was Chinese. All were translated in Australia and the translators verified the fruits of their labours on oath before a magistrate in that country. Chinese and English versions were duly authenticated within the meaning of section 11 of the Fugitive Offenders Act 1967. I cannot in the circumstances think that the permissive terms of sections 27 and 29A of the Evidence Ordinance (Cap 8) precluded the admission of these documents in evidence; particularly when the same practice in relation to the Extradition Acts 1870 to 1932 was approved by a Divisional Court in England provided over by Lord Goddard CJ. In re Savundranayagan 21 March 1955 (unreported). At p 12 of that report Ormerod J pointed out, as I would in the instant appeal, that -

"... the procedure must follow as near as may be the procedure which is normally adopted in this country; but it is a special procedure dependent on a special Act of Parliament."

To like effect Dowse v Governor of Pentonville Prison [1983] 2 AC 464 at p 472 per Lord Diplock. It may be observed that the appellant called his own interpreter who, while making specific criticisms, said that the translations were adequate as working copies and gave a general picture of what was said in the conversations recorded.  It was after her evidence had concluded that objection was taken. I would uphold the Chief Justice's ruling in relation to the translations together with his reliance on R v Wong Cheong-wai MP No 2246 of 1989 [unreported).

8. The second question, encompassing the fifth and sixth suggested errors, derives from the ruling that the requesting country need only establish a prima facie case before the magistrate.  Again I would repeat the words of Ormerod J quoted above.  Section 7(2) of the 1967 Act as scheduled to the Order in Council reads : -

"For the purposes of proceedings under this section a Court of Committal shall have the like jurisdiction and powers, as nearly as may be, including power to remand in custody or on bail, as a magistrate has under Part III of the Magistrates Ordinance"

and subsection (5) - (4) in the Schedule s : -

Contrary to the unarguable but sustained argument of Mr Blanchflower, for the respondents, what constitutes sufficient warrant for the trial of an offence committed in Hong Kong is to be found in section 85 of the Magistrates Ordinance (Cap 227) : -

It is apparent that subsections (1) and (2) deal with considerations leading to discharge and to committal respectively. As footnotes to the section point out the apparently alternative standards of proof described in subsection (2) derive from section XXV of the Administration of Justice (No 1) Act 1848 and the reference to evidence given by the accused and his witnesses from section 12(8) of the Criminal Justice Act 1925. "It is not sufficient," submits Mr McCoy on behalf of the appellant, "to regard the second or higher test in subsection (2) as posing an a fortiori situation.  It must be presumed that the legislature had some purpose in so enacting and the only purpose that can be inferred is that the higher test is to be applied if the accused, by himself or witnesses, has adduced evidence". But the expression "the evidence" in the second part. of subsection (2) must refer to "such evidence as aforesaid" and to "all the evidence offered on the part of the prosecution and the evidence, if any, of the accused and his witnesses" earlier appearing in the section. It leaves no room for the construction suggested. Further, the equivalent of these words, as found in section 25 of the Indictable Offences Act 1848, has judicially been construed by Lord Reid in Armah v Government of Ghana [1968] AC 192 at pp 225 and 226 : -

"In my view this section, though using different words, was clearly referring to the two different standards set out in the Act of 1826 (the Criminal Law Act) : in effect it provided that even if the evidence only came up to the lower standard set out in the Act of 1826 the accused should be committed to prison."

He went on to point out the distinctions in wording between section 5 of the Fugitive Offenders Act 1881 and section 10 of the Extradition Act 1870.  In proceedings under the Extradition Acts there is no question but that a prima facie case is all that is required. As Lord Griffiths said when delivering the opinion of the Board in Liangsiriprasert v the Government of the United States of America Privy Council App No 6 of 1990 (unreported) at p 5 : -

"It is common ground that these crimes are all extradition crimes and that the task of the magistrate was to apply Hong Kong Law and to consider whether the evidence disclosed a prima facie case against the appellant upon the assumption that the drugs were to be imported into Hong Kong rather than into the United States."

9. The equivalent of section 85(2) found in section 76 of the Magistrates Ordinance 1890 was considered by Rees-Davies CJ, presiding over the Full Bench, in re Hung Siu-lun (1915) HKLR 114 at pp 115 and 117 : -

"This section requires the magistrate to commit, if in his opinion, the evidence offered on the part of the prosecution 'is sufficient to put the accused upon his trial for an indictable offence, or if the evidence given raises a strong or probable presumption of the guilt of the accused.' ...  Now as to the finding of the magistrate. It is clear that he regards the discretionary power conferred on him as alternative or twofold. He says 'It is the duty of the magistrate to commit firstly if in his opinion the evidence given is sufficient to put the accused upon his trial or, secondly if the evidence given raises a strong and probable presumption of the guilt of the accused.'  I think this reading of the section is obviously a correct one. ... I have no hesitation in construing them as conferring two alternatives on the magistrate in his power to commit."

This section and its successors does not appear to have been construed in Hong Kong since.

10. In England the relevant law was simply expressed by Lord Widgery CJ in R v Epping and Harlow JJ [1973]QB 433 at p 435 : -

"For my part I think that it is clear that the function of committal proceedings is to ensure that no one shall stand his trial unless a prima facie case has been made out."

Implicitly he was referring to section 7(1) of the Magistrates Courts Act 1952 : -

"Subject to the provisions of this and any other Act relating to the summary trial of indictable offences if a magistrates' court inquiring into an offence as examining justices is of opinion on consideration of the evidence and of any statement of the accused that there is sufficient evidence to put the accused upon trial by jury for any indictable offence the court shall commit him for trial and if it is not of that opinion it shall, if he is in custody for no other cause than the offence under inquiry, discharge him."

11. Section 6(1) of the Magistrates Courts Act 1980 is to like effect. I do not accept the appellant's submissions in relation to the second question and the fifth and sixtn suggested errors.

12. The seventh and final and, I believe, academic error alleged is the ruling that evidence by one witness in relation to another witnesses' mendacity, normally admissible following the principles declared in R v Brown and Hedley (1867) 10 Cox CC 453, should not have been deployed before the magistrate in extradition proceedings. Although this authority was known to and invoked by Mr McCoy, in Toohey v Metropolitan Police Commissioner (1965) AC 595 at p 606 Lord Pearce said : -

"None of your Lordships and none of the counsel before you could remember being concerned in a case where such evidence was called. But the rule has been sanctified through the centuries in legal examinations and textbooks and in some rare cases, and it does not create injustice. Its scope is conveniently summarised by Professor Cross [Evidence, 2nd Ed (1963) p 225]: '... the witness must be asked whether he is aware of the impugned witness's reputation for veracity and whether, from such knowledge, he would believe the impugned witness on oath.' ... There seems little point, however, for present purposes in exploring these archaic niceties.''

The latter observation is appropriate in the instant appeal. I cannot think that the magistrate failed to take the relevant, and unchallenged, evidence called on behalf of the appellant into account. He had admitted it after argument and, in his sixth ruling, made at the conclusion of the hearing, stated : -

"I have considered all the evidence called by the requesting State and on behalf of the fugitive."

13. As must be apparent this appeal should, in my opinion, stand dismissed.

O'Connor, J :

14. I agree with my Lord as to the disposal of the appeal and as to his reasons.

Barnett, J :

15. I too agree. There is nothing I can usefully add.

Representation:

G J H. McCoy (M/s Tony Kan & Ho) for Appellant

M. Blanchflower, SCC and Miss A. Au, Crown Solicitor for 1st and 2nd Respondents