The Queen v. Somchai Liangsiriprasert

HCMP000300/1989

HEADNOTE

Habeas Corpus - Extradition - Role of the Court in reviewing the decision of the magistrate - Test to be applied - Criminal Law - Conspiracy - Whether agreement entered into abroad with no overt acts is justiciable in Hong Kong - Police as conspirators - Importation of Dangerous drugs by police - Whether a crime is committed.

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BETWEEN

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Coram: The Hon. Mr. Justice Sears in Court

Date of Hearing: 24th & 25th April 1989

Date of Delivery of Judgment: 3rd May 1989

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J U D G M E N T

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1. The Applicant, Somchai Liangsiriprasert, who is in custody in Lai Chi Kok Reception Centre, seeks a writ of Habeas Corpus challenging an extradition order made at the request of the U.S. Government against him by Mr. Burrell, a magistrate.

2. In August 1988, agents of the Drug Enforcement Agency of the United States, known as the South-Eastern Asia Heroin Task Force, had targetted the Applicant as a suspected importer of heroin from Thailand into the United States.

3. They devised a plan whereby an undercover agent would pose as a member of a Chinese organization in the New York area, interested in obtaining substantial quantities of heroin for sale by that organisation in New York.

4. The agent was Michael Shum, born in Hong Kong and fluent in Cantonese and Mandarin. He went to Bangkok and met the Applicant, who said he could arrange for 28 kilogrammes of heroin, but he would have to go to Northern Thailand to obtain it. Shum had to provide US$50,000.00 as 'front money', and the Applicant said he had connections who would smuggle 40 units of heroin through the Philippines, hidden in suit cases.

5. The Applicant would own 8 of the first 20 units, Shum would own 10, and another individual who had been with the Applicant would have two. The heroin would be sold in New York and it was expected to sell for US$65,000.00 per unit. The Applicant would therefore receive US$520,000 out of the first 20 units which were sent from Thailand.'

6. The detailed conversations are set out in the affidavit of Michael Shum, and I do not repeat them all, but they demonstrate that the Applicant was a major drug smuggler. He even boasted of his so-called partnership with the Government of Vietnam which supplied him, as he said, with a good quality heroin.

7. Shum later told the Applicant that 'his people' had arranged for a diplomatic courier to come to Bangkok and deliver the 'stuff' to New York. The Applicant readily agreed to this, but unbeknown to him the diplomatic courier would also be an undercover DEA Agent.

8. On September 21, at six o'clock in the morning, the Applicant together with his cousin Sutham who was a co-defendant, met Shum and took him into a side street, there in it the boot of a car were two bags containing 20 compressed bricks wrapped in brown paper which Mr. Shum realized was the heroin. The Applicant told Shum that he would go to Hong Kong and pick up the proceeds of his share, that is US$520,000.00, obtained from the sale of the heroin in New York. Shum marked the bricks with the date and his initials.

9. On September 23, DEA Agent Bareng together with a Thai Police Lieutenant took the heroin in a sealed diplomatic pouch on a plane to New York.

10. On September 24, the Applicant and Sutham told Shum that they would be going to Hong Kong two days later for their money.

11. On September 27, Shum met them in the Caravelle Hotel in Hong Kong and officers of the Royal Hong Kong Police arrested the two.

12. On November 10, in New York, Shum, identified the bricks as those he had earlier marked. They had been tested by an American chemist as 87% pure heroin. Their street value was between US$22m and US$28m.

13. The United States Government subsequently requested Hong Kong to extradite these two Thai citizens who would be indicted in the U.S. District Court of New York on three drug counts. The Governor of Hong Kong ordered the Chief Magistrate of Hong Kong to proceed in accordance with the Extradition Acts. There was a hearing before Mr. Burrell at the Central Magistracy on the 18th, 19th and 20th January at which he found that both Defendants had a case to answer on the charges and ordered their extradition to United States to stand trial on these drug charges. At that hearing, there was no challenge to the prosecutor's evidence.

14. There are various procedural requirements in the Extradition Acts which are not in issue here. Section 26 of the 1870 Act defines "extradition crime" as "a crime which if committed in [Hong Kong] or within the [Hong Kong] jurisdiction, would be one of the crimes described in the first schedule to the Act".

15. Section 10 deals with the 'prima facie' evidence of an extradition crime required to be produced before the magistrate.

16. The role of the examining magistrate is also not in dispute. On the evidence which is put before him he must decide whether the conduct of the accused would have amounted to an extradition crime if that conduct had taken place in Hong Kong. See the speeches of the House of Lords in 'Re Nielsen' (1984) 1AC 606 and U.S.A. v. Me Caffery (1984) 1AC 867.

17. The orders to proceed contain the corresponding offences known to Hong Kong law. The role of the court on an application for habeas corpus arising from extradition proceedings is limited.

18. In Armah v. Government of Ghana (1968) AC 192 Lord Reid said at p.230, when examining the nature and extent of the court's power to review the magistrate's decision to commit, "the court does not hear the case by way of appeal so as to reverse the magistrate's decision on fact or alter a discretion properly exercised".

19. The court's right to interfere has been the subject of differing views in the House of Lords - for example in Re Government of the Federal Republic of Germany v. Sotiriadis (1975) AC1, Lord Diplock at p.30 said:

"… your Lordships would be entitled to allow this appeal if you were satisfied that there was no evidence before this magistrate that the respondent had committed either of the offences with which he was charged. But if there was some evidence, you would not be entitled to substitute your own appreciation of its weight or cogency for that of the magistrate upon whom jurisdiction to determine whether the evidence to justify committal is conferred by Section 10 of the Act".

20. In Armah, Lord Reid had adopted the straight, forward 'Wednesbury' test; he approved the judgment of Lord Parker C.J. in R. v. Governor of Brixton Prison Ex parte Mourat Mehmet (1962) 2QB 1:

"… this court has taken upon itself the right not only to look at the evidence which was before the magistrate, but to consider whether any magistrate, properly applying his mind to the question, could reasonably have come to the conclusion that a strong or probable presumption had been made out."

21. These apparently different approaches as to the power of the court's right to review have recently been examined by the Divisional Court in England in the case of Lorrain Osman (Times April 13 1988) - I have been provided with the approved Judgment of Lloyd L.J. and French J. - that court preferred the `Wednesbury' test. I would, respectfully follow that decision. The modern development of judicial review has elevated the principles in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1QB 223 to being both well utilised and well understood. I would also gratefully adopt the succinct approach of Lloyd L.J. in the unreported extradition case of Blair (June 1985) when he said "The question for us is whether the Chief Magistrate could lawfully reach that view; whether in other words, it was within the range of views which a reasonable magistrate, directing himself properly and in accordance with the law, could reach".

22. Mr. Ford who has said everything possible for this Applicant has submitted first, that the conduct of the Applicant which must be examined means conduct within the requisitioning country, that is United States. He says the Applicant has never been to the United States and has done nothing in the United States. Secondly, he says that the conspiracy entered into abroad to import drugs, and I assume here, is not justiciable in Hong Kong if no overt acts occur. This second point raises a matter of some importance.

23. At the forefront of any consideration of legal principles on extradition, it must be recognised by the courts that modern day crime extends over national boundaries. Sophisticated electronic communications can mean that, for example, persons in England can arrange or control a crime which causes banks in America to be defrauded by channelling money to Hong Kong which is then laundered and finds its way to Switzerland.

24. International drug smuggling is an evil that corrupts the social fabric of most nations. Drugs are grown or manufactured, for example, in Laos, processed and packaged in Thailand, smuggled through other countries to Europe or America. Payment for drugs similarly encircles the globe. Nowhere is now safe from the proliferation of drugs.

25. From a public policy point of view it should be the aim of nations to ensure that the drug smugglers are brought to Justice in some appropriate jurisdiction. As Lord Diplock said in Treacy v. D.P.P. (1971) AC 537 at p.564:

"For reasons which I stated earlier, the rules of international comity, in my view, do not call for more than that each sovereign state should refrain from punishing persons for their conduct within the territory of another sovereign state where that conduct has had no harmful consequences within the territory of the state which imposes the punishment."

26. The harm of drugs may extend across international boundaries, but the particular harm here was directed to the U.S.A. The aim of this Applicant was to get drugs into the U.S.A. and the harmful consequences fell within that state. As a matter of both commonsense and reason, it should therefore be that state which tries them and, if guilty, imposes the punishment.

27. There were four extradition crimes.

1. Conspiracy to traffic in a dangerous drug, contrary to Common Law and Section 39 of the Dangerous Drugs Ordinance.

28. I assume, as the prosecution conceded, that the undercover agents were not conspirators, although it is open to the Crown, perhaps on another day, to argue that undercover agents who participate in this type of activity to entrap criminals are conspirators, but I assume here that they are not. The conspirators were the Applicant, his cousin Sutham and unknown persons. The object was to export prohibited drugs from Thailand to America. The twenty bricks which were flown out of Thailand were only a part of other deliveries which would be made.

29. As was said by Lord Pearson in D.P.P. v. Doot (1973) AC 807 at p.827:

"A conspiracy involves an agreement expressed or implied. A conspiratorial agreement is not a contract, not legally binding, because it is unlawful. But as an agreement it has its three stages, namely (1) making or formation (2) performance or implementation (3) discharge termination. When the conspiratorial agreement has been made, the offence of conspiracy is complete, it has been committed, and the conspirators can be prosecuted even though no performance has taken place: Reg. v. Aspinall, 2Q.B.D. 48, per Brett J.A., at pp. 58-59. But the fact that the offence a of conspiracy is complete at that stage does not mean that the conspiratorial agreement is finished with. It is not dead. If it is being performed, it is very much alive. So long as the performance continues, it is operating, it is being carried out by the conspirators, and it is governing or at any rate influencing their conduct. The conspiratorial agreement continues in operation and therefore in existence until it is discharged (terminated) by completion of its performance or by abandonment or frustration or however it may be."

30. Here the conspiracy was to import large quantities of drugs from Thailand to the U.S.A., not only by the twenty bricks which were actually imported, but by other quantities.

31. The intention or aim was for them to go to the United States and be resold there. I have to assume that it was conspiracy to import into Hong Kong. Could a Hong Kong court try the conspirators on these facts. In my judgment it could. In Attorney General v. Yeung Sun-shun (1987) H.K.L.R. 987, Roberts C.J. said:

"It has not been necessary for us to consider the further question of whether a conspiracy, formed abroad, to commit an offence in Hong Kong, is within the jurisdiction of the Hong Kong courts if no acts in furtherance of the conspiracy are committed within Hong Kong.

In principle, however, we are not unsympathetic to the view, expressed in recent cases, that the territorial basis for jurisdiction is becoming outmoded, and that in such circumstances the Hong Kong courts should assume jurisdiction upon the basis that:

(a) the conspiracy is aimed at Hong Kong and intended to bring about a breach of the peace here;

(b) since the conspiracy is not directed at the residents of the country where it is entered into, the courts of that country could raise no reasonable objection to this course on the ground of comity.

This approach finds support in Treacy v. D.P.P. [1971] AC 537, per Lord Diplock at p, 561-2; Libman v, R. (1985) 21 CCC (30) 206, in the Supreme Court of Canada; and Mharapara v. The State [1986] LRC (Const) 235, in Zimbabwe.

Thus those who conspire in Macau to send a parcel bomb to Hong Kong should be triable here, even if for some reason the parcel does not arrive within the Territory."

32. It must be remembered that the word "jurisdiction", as used in the Extradition Act has a wide meaning. In my judgment, I accept the submissions of Mr. Blanchflower on this point. The jurisdiction of the Hong Kong courts is a right to try and punish offenders. A conspiracy which is aimed at Hong Kong, designed to bring about either social degradation, civil unrest or damage to persons or property in the community is, in my judgment, justiciable here, albeit the conspiracy was hatched abroad and the conspirators innocently visit Hong Kong. If on such an innocent visit, they were arrested, in my judgment, the Hong Kong courts could try them. I wouldtherefore adopt the powerful dicta of Roberts C.J. given 'obiter' in Yeung.

33. Even if I am wrong on this matter, on the evidence placed before the magistrate the conspirators did come here for the express purpose of receiving their "pay-off" from the sale of the heroin in the U.S.A. The visit therefore was part of the continuing conspiracy. Although I have to assume that in an extradition crime, Hong Kong is substituted for the United States, all other facts remain the same. (See re Lorrain osman (Times April 13, 1988)).

34. In my judgment, the visit of the two Thai citizens to Hong Kong was an act in furtherance of the conspiracy which they had made in Thailand. Similarly, the transportation of the drugs to the United States was also an act in furtherance of the conspiracy. It matters not that it was an undercover agent who carried it rather than one of the conspirators, or an agent of the conspirator. The police may not be prosecuted when they engage in crime in order to assist the apprehension of criminals. Nevertheless, in my judgment, police do commit a crime, unless some statutory provision specifically excludes their conduct.

35. In David CHOW, Court of Criminal Appeal, New South Wales, (1987) 30 A Crim. R. 103, it was said by the Court at p.108:

"If follows in the present case, that the mere fact that the federal police might bona fide believe that it is in their interest in the suppression of the drug trade that arrangements be made for a narcotic such as heroin to be imported into Australia, so that persons here might be arrested and dealt with by the criminal law for offences committed under the Customs Act 1901, will afford no defence at all to a prosecution for breach of the provisions of the Customs Act 1901 in relation to importation of heroin. The police involved and the person who actually brought the goods in would ail have transgressed against the provisions of the Customs Act 1901 and would be liable therefor."

and at p. 110:

"The fact that the police handle or even take possession, in the legal sense, of goods which are prohibited imports does not deprive them of the characteristic of being prohibited imports."

I would respectfully adopt the reasoning of that court.

36. The Applicant here was as much a party to the carriage by air of the drugs as anyone else. It was the plan to get the drugs to the United States. In my judgment, there was clear evidence before the magistrate on this charge of conspiracy.

2. Trafficking in a dangerous drug, contrary to Section 4 of the Dangerous Drugs Ordinance. As in the first crime, the word traffic, by Section 2 of the Ordinance, has a wide meaning. There was evidence that the Applicant agreed to supply this undercover agent with drugs. He arranged for heroin to be brought from Northern Thailand to Bangkok; it was stored. He was paid money 'up front' and he arranged for the delivery; he later came to Hong Kong to get his hare of the proceeds. In my judgment on that charge, there was clear evidence before the magistrate.

3. This was a similar charge of trafficking, related to the date when the drugs were flown from Bangkok to New York and carried by the agent Bareng. The prosecution case was that they were there imported into the U.S.A. It has been submitted that this Applicant did not import the drugs. It was not he who carried them on the plane, it was an American agent. I have already in reality dealt with this matter by saying that he was a party to the transactions leading to the drugs being carried by Bareng. The Applicant obtained the drugs, was paid money, delivered them and he agreed with the method of importation. There was clear 'prima facie' evidence that he imported the dangerous drugs.

4. Doing acts preparatory to trafficking in a dangerous drug, contrary to Section 4(1)(c) of the Ordinance. This is similar to a charge of attempting to traffic or conduct which falls short of trafficking. It is clear that the Applicant intended throughout that the drugs be imported. The other factual considerations I have already set out.

37. In my judgment on all of the four crimes charged, there was clear evidence to support the 'prima facie' case being found, that the applicant was properly within the jurisdiction of Hong Kong and these were extradition crimes. I would only add that I have been greatly assisted by the magistrate's findings, set out in a careful and clear manner and by the submissions of counsel.

38. In my judgment this application for 'habeas corpus should be refused'. I therefore dismiss it. I would, however, subject to the submissions of counsel, be prepared to stay my order for a short period pending a possible appeal.

Representation:

Mr. M. Ford inst'd by M/s. So & Karbhari for the Applicant.

Mr. M.C. Blanchflower, S.C.C. for Attorney General/Respondent.