Chong Bing Keung, Peter v. The Government of the United States of America and Another

HCAL000127/1999

HCAL127/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.127 OF 1999

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Coram: Stock J in Court

Date of hearing : 26 October 1999

Date of judgment : 26 October 1999

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J U D G M E N T

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1. This is an application for a writ of habeas corpus. An ex parte application was heard by this court on 12 October 1999 pursuant to the provisions of O.54, r.2(1)(b) of the Rules of the High Court. I adjourned the application to enable notice to be given. The case returns today for full argument.

Background

2. The applicant is wanted in the United States of America for offences described in the authority to proceed as conspiracy to murder, conspiracy to commit offences against the law relating to dangerous drugs, arson, and criminal intimidation. He entered Hong Kong from Taiwan on 25 July 1998 and was arrested at the airport. On 22 July 1998, the Chief Executive issued the authority to proceed which reads as follows :

" A request for surrender having been received from the United States of America for the surrender of Peter CHONG, also known as CHONG Bing-keung, also known as 'Uncle', who is wanted in the said place for prosecution in respect of the following offences :

1. Conspiracy to murder;

2. Conspiracy to commit offences against the law relating to dangerous drugs;

3. Arson;

4. Criminal intimidation :

I hereby order that the said person be dealt with under Part II of the Fugitive Offenders Ordinance, Cap.503, Laws of Hong Kong."

3. Committal proceedings were duly instituted pursuant to the provisions of the Fugitive Offenders Ordinance, and on 2 February 1999, a magistrate committed the applicant to custody to await the decision of the Chief Execution as to the applicant's surrender.

4. No order for surrender has yet been made.

5. This is the second application for habeas corpus made by this applicant in relation to this request for his surrender. The first was on 24 February 1999 when I dismissed the application at the ex parte stage. He then appealed against that decision, but his appeal was dismissed on 7 October 1999. The points taken by him in the course of the first application were entirely divorced from the point which he now takes, and nothing in this application turns upon any matter canvassed in those earlier proceedings.

The judgment of the US District Court

6. The new point arises from a decision of a judge of the United States District Court, District of Connecticut, on 1 September 1999. That case concerned one John Cheung arrested in the USA upon a request for his extradition from the USA to Hong Kong. The case has nothing to do with this case, save in so far as the applicant seeks to use the judgment in it to assist this application. Cheung applied for a writ of habeas corpus and Judge Dorsey, the District Judge, decided that his detention was unlawful and accordingly Cheung was released from custody, although there is now pending an appeal from the decision of that judge. The arguments that found favour with the District Court judge had been presented to the committing magistrate as well, but he had interpreted the relevant statutory provisions in favour of the United States Government. Judge Dorsey disagreed.

7. The judge concluded that the magistrate before whom the extradition proceedings were conducted was precluded by statute from committing the fugitive to await extradition. His power to commit could only be drawn from Congressional legislation which, in the case of extradition, is Title 18, Chapter 209, in particular sections 3181 and 3184.

8. Section 3184 is entitled "Fugitives from foreign country to United States". It reads as follows :

"Whenever there is a treaty or convention for extradition between the United States and any foreign government, ... any magistrate authorized so to do by a court of the United States, ... may, upon complaint made under oath, charging any person found within his jurisdiction, with having committed within the jurisdiction of any such foreign government any of the crimes provided for by such treaty ... issue his warrant for the apprehension of the person so charged, that he may be brought before such ... magistrate to the end that the evidence of criminality may be heard and considered."

Section 3181, "Scope and Limitation of Chapter" provides that :

"(a) The provisions of this chapter relating to the surrender of persons who have committed crimes in foreign countries shall continue in force only during the existence of any treaty of extradition with such foreign government.

....."

9. The international agreement pursuant to which Cheung's surrender was requested is an agreement labeled as one which was between the Government of Hong Kong and the Government of the United States of America. The argument which found favour with the District Judge was that these statutory provisions envisaged, and envisaged only, agreements between the United States on the one hand and, on the other, the government of a foreign country, rather than with that which the judge called "a sub-sovereign government". It was said that the word "such" before "foreign government" in section 3181 must have some meaning, and that in context it must mean that "foreign government" in section 3184 meant the foreign government of a foreign country. Those representing the Government of the United States of America had argued that "any foreign government" did not mean only a national government, and pointed to the Hong Kong Policy Act 1992, 22 USC, an Act by which Congress intimated its resolve that-

"the United States should continue to fulfill its obligations to Hong Kong under international agreement, so long as Hong Kong reciprocates, regardless of whether the People's Republic of China is a party to the particular international agreement."

The District Judge held that the interpretation for which the United States Government contended would, if correct, lead to a result which he thought incongruous, namely that the United States extradition legislation would apply to an agreement even with a foreign municipality or other local entity. He went on to say that :

"...After the fact approval of the agreement between the United States and HKSAR ... by the People's Republic of China ..., admittedly the government of a foreign country, does not convert this Agreement into one directly with the PRC, as the statue requires. See Basic Law at xii (Art.96)."

The judge went on to suggest that "... It is highly unlikely that Congress intended to grant jurisdiction to extradite foreign nationals to subsovereign regions of foreign countries when it enacted section 3184 more than 150 years ago."

10. It is said on behalf of the applicant that this is a finding that not only did the United States domestic legislation covering extradition preclude the surrender of Cheung, but that it is also a finding that the United States had no authority in law to conclude any agreement with a subsovereign entity.

11. I do not know whether the judge was told that the agreement in question was made with the express prior authorization of the sovereign state responsible for Hong Kong's external affairs, and that Hong Kong is authorized by constitutional instrument to make such agreements, and that there were exchanges of diplomatic notes between the People's Republic of China and the United States of America before the agreement entered into effect, and whether he is suggesting that Congress could never have intended the making of an agreement even in such circumstances. Whilst I do not intend to immerse myself in any interpretation of the United States legislation, for I do not think it appropriate or necessary for me to do so, I hope that I do not tread indelicately if I say that I would be surprised if any legislature would intend to preclude such agreements made with the express authorization of the sovereign country.

The arguments arising

12. Be that as it may, armed with this judgment, the applicant came before this court on 12 October 1999. Mr Dykes, S.C., then appeared on his behalf, and his skeleton argument stated that :

"The US judgment means that as a matter of US law ... the agreement should not have been concluded, ...so that the surrender of the applicant to the USA would mean that he would not be returned pursuant to a lawful extradition arrangement between the US Government and a sovereign government and that the applicant would not have the benefit in the USA of the protections traditionally associated with lawful extradition arrangements with a sovereign government."

This is the reciprocity argument which is maintained at the inter partes hearing, though Mr Dykes said in argument at this hearing that there is an even stronger point arising from the terms of section 4 of the Fugitive Offenders Ordinance ("the Ordinance"). I shall summarize that point in a moment.

13. As for the reciprocity argument, it is, I think, suggested that the Ordinance and the agreement in question presuppose reciprocity. There is no prescribed arrangement, as that is defined by the Ordinance, so the argument goes, because a prescribed arrangement, as defined, presupposes reciprocity, as indeed does the particular arrangement which is said to apply in this case. Yet the law of the United States of America, it is said, now shows that there can be no such reciprocity because a fugitive may not be surrendered to Hong Kong from the United States of America. There can, for example, be no prospect of fulfillment of the speciality provision of the arrangement, the existence of which is, by virtue of section 5(2) of the Fugitive Offenders Ordinance, a necessary pre-requisite to a lawful committal order by a magistrate.

14. The "prescribed place", or section 4, argument which now seems to take centre stage amongst the arguments deployed by Mr Dykes runs as follows : that the applicant is not liable to be detained pursuant to any provision of the Fugitive Offenders Ordinance because the only person liable to be thus detained is a person liable to be surrendered; and by reason of the terms of section 4 of the Ordinance, the only person liable to be surrendered is a person wanted in a prescribed place, as "prescribed place" is defined by section 2 of the Ordinance; and that since under United States law (as established, so the argument goes, by the Connecticut District Court decision) the United States of America is not a place from which a person may be surrendered to Hong Kong, the United States of America is not a prescribed place for the purpose of the Ordinance; and, therefore, the applicant, not being a person wanted in a prescribed place, is a person who cannot lawfully be detained under the Ordinance. And if he cannot lawfully be detained under the Ordinance, there is no other lawful authority for his detention, and he must now be released.

The Fugitive Offenders Ordinance

15. Section 4 of the Fugitive Offenders Ordinance provides that :

"A person in Hong Kong who is wanted in a prescribed place for prosecution in respect of a relevant offence against the law of that place may be arrested and surrendered to that place in accordance with the provisions of this Ordinance."

16. A 'prescribed place' is defined by section 2 as "a place outside Hong Kong to or from which a person may be surrendered pursuant to prescribed arrangements;" and 'prescribed arrangements' are defined, also by section 2, as "arrangements for the surrender of fugitive offenders which are the subject of an order under section 3(1) which is in force."

17. The reference there to section 3(1) is to the power given to the Chief Executive in Council in relation to any arrangement for the surrender of fugitive offenders, to direct by order that the procedures in the Ordinance shall apply as between Hong Kong and the place outside Hong Kong to which the arrangements relate. Section 3(12) of the Ordinance stipulates that :

" A copy of an order under subsection (1) shall be conclusive evidence that -

(a) the arrangements for the surrender of fugitive offenders to which the order relates are substantially in conformity with the provisions of this Ordinance; and

(b) the procedures in this Ordinance apply in the case of any place outside Hong Kong to which the order relates."

18. A "relevant offence" is explained by section 2(2) of the Ordinance. Section 2(2) says that :

" For the purposes of this Ordinance, an offence by a person against the law of a prescribed place is a relevant offence against that law if -

(a) the offence is punishable under that law with imprisonment for more than 12 months, or any greater punishment; and

(b) the acts or omissions constituting the conduct in respect of which the person's surrender to that place is sought amount to conduct which, if the conduct had occurred in Hong Kong, would constitute an offence -

(i) coming within any of the descriptions specified in Schedule 1; and

(ii) punishable in Hong Kong with imprisonment for more than 12 months, or any greater punishment."

19. Section 5(2) of the Ordinance contains a provision which is said in the light of the American development to be of concern to the applicant. It is the speciality provision. It specifies that :

" A person shall not be surrendered to a prescribed place, or committed to or kept in custody for the purposes of such surrender, unless provision is made by the law of the place, or by the prescribed arrangements concerned, for securing that he will not, unless he has first had an opportunity to leave that place, be dealt with in that place for or in respect of any offence committed before his surrender to it other than -

(a) the offence in respect of which his surrender is ordered;

(b) any equivalent or lesser relevant offence which is disclosed by the particulars contained in the supporting documents in relation to the offence referred to in paragraph (a); or

(c) subject to subsections (3) and (4), any other offence being a relevant offence in respect of which the [Chief Executive] may consent to his being dealt with."

20. Steps for the lawful arrest and subsequent executive and judicial procedures are prescribed by sections 6, 7 and 10 of the Ordinance. Section 6 envisages a request for surrender by the diplomatic representatives of the requesting jurisdiction. Section 6(2) provides that :

" On receipt of a request for surrender, the Chief Executive may issue an authority to proceed unless it appears to him that an order for surrender in relation to the person concerned could not lawfully be made under the provisions of this Ordinance, or would not in fact be made."

21. Section 7 enables a magistrate to issue a warrant of arrest on receipt of the authority to proceed (as well as pending the receipt of such authority).

22. Section 10(6) of the Ordinance spells out the matters about which an examining magistrate must be satisfied before he may commit the fugitive offender to custody to await the Chief Executive's decision as to his surrender to the prescribed place. He needs to be satisfied that the offence to which the authority to proceed relates is a relevant offence; that supporting documents have been produced and have been duly authenticated; and that the evidence in relation to the offence would suffice to warrant committal for trial in Hong Kong had the offence been committed here. If those conditions are satisfied, then unless the person's committal is prohibited by any other provision of the Ordinance, the magistrate is duty bound to make a committal order.

The magistrate's function

23. Mr Dykes says that there is no particular stage or order made in this case which is the subject of the applicant's attack on the legality of his detention; merely that, generally, he is not liable to be detained at any stage. Nonetheless, I think that an analysis of the magistrate's power in the light of the arguments now advanced is a useful though not exclusive vehicle by which to test those arguments. The applicant is presently detained pursuant to an order of a magistrate; an order of committal made under section 10(6) of the Ordinance. If that order is lawful, than the detention is lawful. If any of Mr Dykes arguments hold water, then that committal order was unlawful.

24. There is a key fact that faced the magistrate who made the committal order and about which there can be no dispute. It was that the Chief Executive in Council had made an order under section 3 which directed that the procedures of the Fugitive Offenders Ordinance applied to an arrangement recited in Schedule 1 to that Order, namely, the Hong Kong-USA agreement. As a matter of law, the magistrate was then bound by that section 3 order and was then obliged, upon receipt of an authority to proceed, to act solely in accordance with the provisions of the Ordinance. He was bound to look to the arrangement recited in the order to see whether it contained the guarantee required by section 5(2) of the Ordinance, namely, a provision ensuring that the fugitive offender would not, if surrendered, be tried for an offence other than that for which his surrender was ordered. Section 5(2) does not require the magistrate to look beyond the arrangement which the Chief Executive's order says is a prescribed arrangement in order to ascertain whether US domestic law will secure the speciality protection. Section 5(2) itself provides that it is enough to find that protection in the arrangement itself. And in this case the arrangement to which the Chief Executive in Council's order referred contained, in Article 16, a provision which satisfied the requirements of section 5(2). Nor is there anything in the statutory framework from which the magistrate's powers are drawn that requires or indeed enables the magistrate to second-guess that which is stated on the face of the section 3 order, namely, that there is an arrangement with the United States of America. As far as the magistrate is concerned, the arrangement to which the order refers is, by reason of sections 2 and 3 of the Ordinance, as well as the fact of the order itself, a prescribed arrangement, and the United States of America, a prescribed place. In short, for the limitations on the magistrate's power to commit under section 10, the magistrate is required to look only to the Ordinance itself and to such terms of the arrangement to which the section 3 order applies as are made relevant by the Ordinance. He is concerned with the application of domestic law, and it is not for him to examine United States decisions, or to speculate about the future of United States litigation, or to assess or receive representations about the intention of a requesting authority to meet that which Hong Kong considers to be that authority's international obligations. Questions about the intention or ability of the requesting authority to meet its obligations are a matter for the executive. In other words, in this case, the magistrate was not bound to go further than he did. Nor would he have been bound to go further than he did even had the District Court decision been delivered prior to the committal hearing, and even had he been met with the arguments which are now presented to me. He was entitled to take the order made by the Chief Executive in Council at face value, and then to treat the United States of America as a prescribed place for the purpose of ascertaining whether the applicant was wanted for a relevant offence. There is in the circumstances no basis, in my opinion, for attacking the legality of the magistrate's committal order.

"To or from which"

25. But even supposing it were permissible to look behind the section 3 order, and even supposing there were now some impediment under US law to the return of a fugitive offender from the United States of America to Hong Kong, that would not, in my judgment, take this arrangement beyond the statutory definition of a prescribed arrangement; nor would it make the United States of America something other than a prescribed place, as that is defined. Mr Dykes points to the fact that a prescribed place is defined as one outside Hong Kong "to or from which a person may be surrendered pursuant to prescribed arrangements" and that if it be shown that it is not an arrangement which allows for surrender from that place outside Hong Kong, as well as to it, then that place cannot be a prescribed place. I do not agree. The plain wording of the definitions, and of section 3, suffice in my opinion to embrace an arrangement that permits or envisages one way surrender. Section 3 refers merely to an arrangement for the surrender of fugitive offenders, wide enough to cover surrender only to Hong Kong; and if the United States of America is a place to which a person may be surrendered under such an arrangement, then section 2 makes it a prescribed place for the purposes of this Ordinance.

The Executive

26. In so far as this application is or may be an attack on the power in law of the executive to issue an authority to proceed, or otherwise to act in this case pursuant to the powers conferred by the Ordinance, because of the suggested doubt about the efficacy of the agreement and the state of the United States law, I doubt that it is permissible to look behind an extant section 3 order. Once such an order is made in relation to a particular arrangement which Hong Kong has in fact concluded, then the legality or illegality of any action of the Chief Executive under the Ordinance is to be determined by reference to the provisions of the Ordinance alone, and to the Chief Executive's duties under that Ordinance. For the reasons I have given the executive, too, is entitled to regard this applicant as a person liable to be surrendered, and the United States of America as a prescribed place.

Further Analysis and Comment

27. It may be that this is as far as one needs to go in addressing this application; but there is I believe some justification for further analysis and comment. That justification is two-fold :

(1) This case carries with it hints, albeit arising from a particular United States perspective rather than from any argument advanced before this court, of misgiving, or questions, about Hong Kong's authority, both as a matter of domestic constitutional law and international law, to enter upon this and other such arrangements.

(2) Even if it were permissible to look behind the section 3 order to scrutinize the efficacy of the arrangement, it is an exercise which in my judgment does not avail the applicant.

28. The points to be made may broadly be stated thus :

1. As a matter of local constitutional law as well as of international law, there can in my judgment be no question as to Hong Kong's capacity to enter upon the particular arrangement with which we are concerned. Indeed, it is not suggested by the applicant that Hong Kong did not have that capacity;

2. Hong Kong self-evidently regards itself as bound by that agreement;

3. The Government of the United States also self-evidently regards the arrangement as one which is fully in force; and

4. The suggestion that as a matter of United States law, there was no capacity for the United States of America to enter upon the agreement is, in the light of the evidence now before me, a suggestion that is too broad.

29. If these points or propositions be accurate, it would be odd indeed for a Hong Kong court ― even looking behind the section 3 order ― to conclude that the executive in Hong Kong was, as a matter of law, whether domestic law or international law, precluded from issuing an authority to proceed or indeed from making an order for surrender because of the judgment of the United States District Court. That is not to say that the applicant is prevented from drawing it to the attention of the Chief Executive, and no doubt the Chief Executive would take it into account, amongst other factors, when deciding whether or not to order the applicant's surrender.

30. Returning to the specific points, I have the following observations.

(1) The Constitutional and International position

31. As a matter of local constitutional law as well as of international law, there can in my judgment be no question about Hong Kong's capacity to enter upon this particular arrangement. I do not think it appropriate in this case for this court to be drawn into any discussion which touches upon the interpretation of Congressional legislation. That is a matter for the American courts. I am, however, entitled to say a word or two about Hong Kong's capacity to enter upon the USA-Hong Kong agreement, and extradition agreements of its kind; to comment upon references in the District Court judgment to the Basic Law provision thought to apply to international agreements for the surrender of fugitive offenders; and to the implication in that judgment that the approval of the arrangement by the sovereign power responsible for Hong Kong's external affairs was a mere ex-post facto affair.

32. Prior to July 1997, applications for the return of fugitive offenders from Hong Kong to requesting jurisdictions were made pursuant to the provisions of UK legislation applied to Hong Kong. But, as I pointed out in Tiongco v. Government of Philippines and the Chief Superintendent of Lai Chi Kok Reception Centre [1998] 2 HKLRD 282, 290 :

"The change in the exercise of sovereignty on 1st July 1997 meant that international arrangements previously extended in their operation to Hong Kong would in so far as they had been extended to Hong Kong lapse by that date and, further, that UK legislation could not after that date any longer have effect within Hong Kong. Two consequences flowed. The first was that there had to be put in place a fresh legislative framework within which extradition procedures could be conducted; and secondly, if it was intended, as it was, that that framework would continue to be allied to specific international agreements, fresh agreements had to be made with appropriate authorization by the sovereign powers responsible for Hong Kong's foreign affairs. In that setting, Hong Kong entered upon specific agreements with other jurisdictions and shortly before the change in the exercise of sovereignty, domestic legislation to complete the framework was enacted."

33. As a matter of international law, the efficacy of an international agreement depends upon the capacity of the contracting states to enter upon the particular arrangement. Whilst no doubt most treaties are concluded between sovereign states, international law does not always so require. In the case of federations, the power to conclude treaties is normally reserved to the federal government, and the Constitution of the United States precludes States from entering upon treaties. On the other hand, there have been cases where constituent states or regions have been empowered to conclude their own agreements. So, too, dependent states may be allowed to contract international agreements, or may be allowed to contract international agreements of certain limited kinds. "... [I]t is the duty of a State when contracting with a State known to be a dependent State to satisfy itself as to the scope of the latter's treaty-making power." (see McNair "Law of Treaties", p.42). In this case, the United States no doubt satisfied itself that Hong Kong had the requisite authority from the sovereign state to enter upon this arrangement.

34. In the lead up to the change in the exercise of sovereignty, Hong Kong did not embark on a frolic of its own, entering willy-nilly upon extradition agreements with various jurisdictions. Any examination of the matter in depth will, I have no doubt, reveal that arrangements were made with the full knowledge and with the specific authority of the sovereign powers then responsible for Hong Kong's foreign affairs, and what is more, with specific attention devoted to the need to ensure that there was not an interregnum in the efficacy of such agreements occasioned by the change in the exercise of sovereignty in July 1997. So much is clear from the terms of the Sino-British Joint Declaration of 1984, and from the terms of the Basic Law. Nor has the authority or approval of the Central Government in Beijing been, as might be suggested by the District Court judgment, a mere expost facto affair. The Sino-British Joint Declaration of 1984 provided that-

"The Hong Kong Special Administrative Region may on its own using the name 'Hong Kong, China' maintain and develop relations and conclude and implement agreements with other states, regions and international organizations in the appropriate fields. ....

International agreements to which the People's Republic of China is not a party but which are implemented in Hong Kong may remain implemented in the Hong Kong Special Administrative Region. The Central People's Government shall, as necessary, authorize or assist the Hong Kong Special Administrative Region Government to make appropriate arrangements for the application to the Hong Kong Special Administrative Region of other relevant international agreements." (see Annex 1, section XI, Joint Declaration).

Annex II of the same treaty established the Joint Liaison Group, a group to comprise representatives of the Government of the United Kingdom, then exercising sovereignty over Hong Kong, and the Government of the PRC, the power which was to resume the exercise of sovereignty after July 1997. One of that group's functions was to conduct consultations on the implementation of the Joint Declaration; and the Annex expressly refers to the requirement that the group was to consider the action to be taken by the two Governments to ensure the continued application of international rights and obligations affecting Hong Kong (see Annex II, para.4(b)). Evidence has not been placed before this court dealing with such consultation as may have taken place through the machinery of the Joint Liaison Group about the text of international agreements proposed for the Hong Kong Special Administrative Region before 1 July 1997, but it is most unlikely that any extradition arrangement was made between Hong Kong and third party States, under authorization of the UK Government without the proposed text of such agreements having first been placed before, and approved by, the Government of the People's Republic of China.

35. Article 96 of the Basic Law is the only Article of the Basic Law which was cited by the District Court in Connecticut. One can but assume that it was the only provision drawn to that court's attention. I suggest that it is not the relevant Article. First, it refers only to reciprocal juridical assistance, and I do not see extradition of fugitive offenders as coming within this head. Reciprocal juridical assistance applies rather to matters such as letters rogatory, mutual service of documents, and enforcement of judgments. Secondly, Article 96 relates to new agreements to be made by Hong Kong after 1 July 1997. Articles 151 and 153 are more relevant to agreements for the surrender of fugitive offenders. Article 151 is the Article which specifically confers upon Hong Kong the capacity to enter upon agreements with foreign States; and Article 153 implements the obligation of the People's Republic of China under the Joint Declaration as to the continued efficacy of agreements to which Hong Kong was already a party on 1 July 1997.

36. The uncontested evidence in this case is that the agreement with the United States was concluded on 20 December 1996. Mr Walsh for the Respondents informs me ― and it is not suggested otherwise ― that it was an agreement negotiated and concluded with the authority of the Government of the United Kingdom. It is pertinent to note that the agreement did not come into effect until 21 January 1998, and that its continued application was confirmed in an exchange of diplomatic notes between the Government of the People's Republic of China and the Government of the United States of America dated 31 March 1997 and 23 May 1997, in other words before, not after it came into effect. This accords with the information from Mr Walsh, again not in dispute, that the text of such agreements which were intended to span 1 July 1997 were first cleared with the Beijing authorities.

37. All this is the practical manifestation of several matters to which I have already referred : first, that the contracting parties to the Joint Declaration were fully sensitive to the question of sovereign authorization for these extradition agreements, as were the third parties with whom agreements were negotiated; and second, that the current agreement was made not only with prior authorization of the power then responsible for Hong Kong's external affairs, namely, the United Kingdom, but, as the evidence demonstrates, also with the prior approval, both as to fact and content, of the power that was to resume the exercise of sovereignty over Hong Kong after 1 July 1997.

38. There can, in my judgment, therefore, be no doubt from Hong Kong's juridical perspective, and I would venture to suggest from the perspective of international law as well, that Hong Kong agreements of the kind in issue do nothing other than comply with the historical norm for international agreements as a process between two nations, notwithstanding the fact that Hong Kong is not a sovereign entity.

(2) The attitude of the Governments

39. It is further to be noted that not only does Hong Kong self-evidently regard itself as bound by the arrangement in question, but that the Government of the United States regards the agreement as one that is fully in force. The very fact that the request for the surrender of this applicant was made, and that it has not been withdrawn, means that the United States' Government recognizes, and continues to recognize, the agreement and its efficacy, and intends to abide by its conditions. Indeed, for the avoidance of doubt, there is evidence before me by a United States attorney employed by the US Department of Justice stating that despite the judgment of the Connecticut court, the United States Government's position is that the provisions of the agreement are in full force and effect. As far as Hong Kong is concerned, the section 3 order remains in force. Section 3(14) of the Ordinance enables amendments to the order where arrangements for the surrender of fugitive offenders cease to relate to a place outside Hong Kong. Not surprisingly, no such amendment has been made.

(3) The impact in the USA of the Connecticut judgment

40. The suggestion is advanced ― and this is how it was put on the ex parte application, and seems still to be pressed ― that as a matter of US law there was no capacity for the United States of America to enter upon this agreement. That is said to be the effect of the District Court decision. I am satisfied on the evidence before me that that is far too sweeping a contention. The evidence of the US Department of Justice attorney, the contents of which are not really in dispute, is that the decision is of but limited effect, in that it holds sway in Connecticut alone. Indeed the applicant says that even there it is not binding. The particular district of Connecticut is but one of 94 Federal judicial Districts. The US Government has filed a notice of appeal, although it is not entirely clear whether the appeal is to be pursued. If it is not pursued, then the decision has no effect in law beyond the boundaries of Connecticut. If an appeal is pursued, it will go to the Second Circuit Court of Appeal and a decision would then be binding upon all district courts within the jurisdiction of that Circuit. This applicant faces prosecution in the Northern District of California which comes within the jurisdiction of the Ninth Circuit Court of Appeal. A decision by the Second Circuit is not binding upon any court outside that Circuit, and is therefore not binding upon any district court within California. There is evidence filed for these proceedings by Cheung's attorney saying that in his experience a district court decision on a novel issue is often given persuasive weight by other federal courts. So be it, but that is not the same as the blanket proposition that the Connecticut judgment establishes as a matter of US law that surrender of the applicant could not be made because there is no lawful arrangement binding upon the US authorities.

Conclusion

41. But in any event, for reasons which I have provided, the question of United States law is in my judgment academic for the purpose of this application. What is relevant is Hong Kong's domestic law, and there is presented nothing to me in this application that shows that the magistrate in the application of that domestic law erred when he made the committal order. Nor against the constitutional background which I have explained, and in the context of the provisions of the Ordinance, was there anything in law to preclude the executive from issuing the authority to proceed. Nor is there any basis which requires, as a matter of law, that the Chief Executive should at this stage order the applicant's release. There is nothing to which I have been taken which suggests that the applicant's detention is other than lawful. On the contrary, I am satisfied that he is at present lawfully detained.

42. The affirmation of the applicant asks for leave to issue a writ of habeas corpus. In view of my comment at the outset of the judgment in the applicant's first application that there was no such thing as an application for leave to issue a writ of habeas corpus, it is surprising that the error was repeated. The application is treated as an application for the issue of a writ of habeas corpus. Given my conclusion that the applicant is lawfully detained, I shall order that the application for the issue of that writ be dismissed.

43. The applicant will pay to the respondents the costs of and occasioned by this application, to be taxed if not agreed.

Representation:

Mr Philip Dykes, SC, instructed by Messrs Boase, Cohen & Collins, for the Applicant

Mr Wayne Walsh, SGC of Department of Justice, for the Respondents

Remarks:
On appeal by the Applicant to the Court of Appeal: Appeal dismissed with costs. Please refer to CACV000343/1999.