Re Lui King
Read the full judgment text of HCMP 403/1977 on BabelCite. This High Court CFI judgment.
1. On the 7th June, 1977 Lui King and his wife Lui Shun-ha were committed to custody by a permanent magistrate to await their return to Canada on a request of the Government of Canada to the Governor made in pursuance of the Fugitive Offenders (Hong Kong) Order in Council 1967 to answer charges of (a) conspiring to import heroin into Canada, and (b) conspiring to traffic in heroin contrary to the law of Canada. Each applied for a writ of habeas corpus on grounds which are almost identical. Their
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HCMP000403/1977 IN THE SUPREME COURT OF HONG KONG MISCELLANEOUS PROCEEDINGS NO. 402 OF 1977
----------------- MISCELLANEOUS PROCEEDINGS NO. 403 OF 1977
----------------- Coram: Full Bench (Trainor & Cons, JJ.) Date of Judgment: 31st August, 1977. ----------------- JUDGMENT ----------------- Trainor, J.: 1. On the 7th June, 1977 Lui King and his wife Lui Shun-ha were committed to custody by a permanent magistrate to await their return to Canada on a request of the Government of Canada to the Governor made in pursuance of the Fugitive Offenders (Hong Kong) Order in Council 1967 to answer charges of (a) conspiring to import heroin into Canada, and (b) conspiring to traffic in heroin contrary to the law of Canada. Each applied for a writ of habeas corpus on grounds which are almost identical. Their applications were heard as one by this Court. Summarised, the grounds that were set out in the applicants' affirmations were: 1. That part of a paragraph in the affidavit of one, Wong Kwok-hang, in which he said: "I formed the opinion that the type of business transactions between Lui King and Chan was heroin and that in the conversations referred to in my affidavit where the words 'goods' and 'shipment' appear I then understood that these referred to heroin and that the word 'business' referred to the heroin business" was inadmissible as being "opinion evidence" given by a witness who was not an expert. 2. That a certified translation of a transcription of a tape recorded telephone conversation in Chinese between Chan Joe-wai and an unidentified Chinese male and the original tape recording were inadmissible as evidence as the conversation was hearsay and not held in furtherance of the conspiracies. 3. That evidence given by Senior Inspector Horner of the Hong Kong Police of interviews between himself and the applicants on the 14th January 1977, tape recordings of the interviews and transcriptions of the recordings were inadmissible or ought in the discretion of the Court be excluded on the grounds that the applicants were in custody, and that a warrant for their arrest issued in Canada was in existence. Lui King complained that he was not cautioned before he was interviewed. Lui Shun-ha complained that though cautioned she was tricked and deceived into answering questions in that what she said was not written down but recorded by a concealed tape recorder although she was told that whatever she said would be taken down in writing and might be used in evidence. 4. That the magistrate wrongly held that an affidavit of one Lennox Elliott sworn in the Canadian Embassy in Holland was admissible by virtue of sections 11(1)(a) and 11(1)(b) of the Schedule to the Order in Council. 5. That Lennox Eliott, who is to the knowledge of the Canadian Government undergoing a sentence of imprisonment, would not be available as a witness at a trial of the applicants in Canada and, therefore, for the Canadian Government to produce the affidavit of Lennox Elliott to secure the applicants' return to Canada was an act "not done in good faith and in the interests of justice". 6. That assuming the evidence produced to the magistrate to be true then properly construed it would reveal a conspiracy to traffic in dangerous drugs contrary to the laws of Hong Kong and it is wrong in principle to remove the applicants to Canada for trial when they could be tried in Hong Kong. 2. There was a further ground raised by Lui King, viz., that as the Schedule to the Order in Council refers throughout to the "return" of the offender he could not be "returned" to Canada as he had never been there. 3. It was on those grounds that counsel for the applicants sought to establish that the learned magistrate was wrong when he made the committal order. 4. Where the formalities have been complied with (and no question concerning them was raised before us) it is the duty of the magistrate to proceed according to the provisions of section 7(4) of the Schedule. That subsection reads:
In interpreting section 7(5) of the English Act (which is the same as section 7(4) of the Schedule) Lord Wilberforce in the Government of Australia v. Harrod (1975) 2 All E.R. 1 at 10 said:
That succinctly sets out the magistrate's duty and it is of importance to note the learned law lord's view that the magistrate is not to have regard to whether the trial would lead to conviction, but only to decide if the evidence, and that of course means admissible evidence, would be sufficient to warrant the magistrate's returning the offender for trial were he before the court in committal proceedings for an indictable offence committed and to be tried in Hong Kong. 5. I shall first deal with the fourth ground raised by the applicants in their affirmations, viz., that the affidavit of Lennox Elliott should not have been admitted. 6. Lennox Elliott is a self-confessed drug trafficker at present serving a term of 2 ½ years' imprisonment in Holland imposed on him on the 1st April, 1976 for his activities in drugs. He is also named in the information with the applicants. On the 16th August, 1976 he was brought to the Embassy of Canada in The Hague and there swore an affidavit before a consul of Canada. The consul was authorised to take affidavits within the confines of the Embassy of Canada under the provisions of sections 49 and 50 of the Canada Evidence Act and such affidavits have in Canada the same force and effect to all intents and purposes as if taken in Canada. The affidavit was held to be admissible by the magistrate on two grounds: sub-section 11(1)(a) and (b) which read as follows:
7. The relevance of the affidavit of Elliott was not questioned, only its admissibility; and Mr. Sedgwick argued that the magistrate was in error when he held that it was admissible under either section 11(1)(a) or 11(1)(b). He contended that only if the evidence had been given on oath in Canada might a duly authenticated document setting out that evidence be admitted in Hong Kong as evidence under section 11(1)(a) of what is set out therein. He maintained that the Canadian Embassy in the Hague of Holland is not Canada and the magistrate was wrong when he held that although the Embassy is not "part of" or "in" Canada yet it could be so considered for the purpose of taking statements to be used in proceedings in Canada. 8. As to the admissibility of Elliott's affidavit by reason of section 11(1)(b) it was Mr. Sedgwick's contention that when section 11(1)(a) referred to a document it included an affidavit complying with the other requirements of the paragraph of the sub-section (Fernandez v. Government of Singapore (1971) 2 All E.R. 691) and, therefore, when the word "document" was used in section 11(1)(b) what was intended was a document other than an affidavit which had been produced in evidence in "proceedings"; something in the nature of an exhibited document. He pointed out and stressed the absence of the word "proceedings" in section 11(1)(a) and its presence in 11(1)(b). He further contended that there was nothing before the magistrate's court to indicate that there had been "any proceeding" in Canada but rather the reverse. He argued, therefore, that the affidavit of Elliott was not a document purporting to set out evidence given on oath in Canada [s.11(1)(a)]; and was not a document within the meaning of section 11(1)(b), nor was it received in evidence in "any proceeding" in Canada, and consequently it was inadmissible in the magistrate's court. 9. I think what Lord Diplock said in the Fernandez Case (694/695) is apt:
As Lord Diplock there says, evidence may be given in the form of an affidavit or orally before a court or tribunal, but a document, simpliciter and subject to certain exceptions, is not evidence; it only becomes so when it is established by the oral evidence of a witness or made an exhibit to the affidavit of a deponent. It is difficult to accept therefore that under s.11(1)(b) an exhibit to an affidavit might be accepted as evidence on an application for an order for the return of a fugitive but the affidavit may not except under s.11(1)(a). That, as I understand it, is what Mr. Sedgwick contends is the interpretation of that part of the subsection. 10. But an affidavit may be received in evidence and its contents as proof. In my opinion "document" in both parts of the subsection is capable of including an affidavit and is admissible in evidence if it complies with the other requirements. 11. In section 11(1)(b) the other requirements are that the document be duly authenticated and purport to have been received in evidence, or to be a copy of a document so received, in any proceeding in Canada. Sections 11(2)(a) and (b) set out what constitutes authentication and, mutatis mutandis, for the purpose of s.11(1)(b) would read:
There is endorsed on the copy of the affidavit of Lennox Elliott:
The difference between the documents as visualised in s.11(1)(a) and 11(1)(b) is simply that in 11(1)(a) the document sets out the evidence that was given on oath whereas in 11(1)(b) the document is the evidence itself or a copy of such a document. In the latter case if the documentary evidence is in the form of an affidavit that affidavit, or a copy of it, if properly authenticated is admissible under s.11(1)(b). The affidavit of Lennox Elliott is such documentary evidence. It is duly authenticate and it purports to have been received in a proceeding in Canada. It therefore complies with all the requirements of s.11(1)(b) and is clearly admissible. In the circumstances I do not consider it necessary to consider its admissibility under s.11(1)(a). 12. The next point with which I shall deal is the first one to which I referred in the beginning of this judgment: that part of a paragraph in the affidavit of one WONG Kwok-hang should not have been admitted. In referring to that paragraph in their affirmations both applicants stated erroneously that the offending passage was to be found in paragraph 84. There is no such paragraph as paragraph 84 in the affirmation; the correct paragraph is 17 which reads as follows:
Mr. Sedgwick maintained that only an expert can be heard to express an opinion and even then the ground must be laid to permit him so to do firstly by establishing that he is an expert, and then the facts to justify the opinion or inference which he forms or derives from those facts. 13. It might be noted en passant that no objection was taken to the next paragraph where the deponent expressed an opinion, albeit expressed by the word "understood"
14. Wong and Chan are both named in the information with the applicants but Wong has been promised immunity. 15. To revert to paragraph 17 and its offending part I think the offending part can be divided into two parts. It is to be noted that immediately prior to the offending passage, the deponent tells of a conversation he had with Chan who asked him to tell Lui that when the money for the "goods" is fixed up (and I think a jury might well interpret that to mean when Chan was paid) he, Chan, would pay Lui. Wong then goes on to say that in the course of that conversation Chan informed him of the current price of heroin in the Vancouver market and asked him to pass on the information to Lui. What he says then "I formed the opinion that the type of business transactions between Lui King and Chan was heroin" might be expressed in popular parlance, "The penny dropped". From that, it would appear, again to use popular parlance, he "put two and two together" and formed the opinion that when the words "goods", "shipment" and "business" had been used in earlier conversations between himself and Chan, or by him in a conversation on the telephone with one WONG Gui-nam he had unwittingly been speaking of dealings in heroin. (I suppose the same would apply to his use of the word "stuff" in the telephone conversation with WONG Gui-nam). 16. An opinion might be stated as being a conclusion reached on observed facts. It may, I think, be stated as a generality that witnesses will not be heard to express an opinion as to that which a judge sitting alone or a jury has to decide. It is for a witness to narrate the facts and it is for the judge or jury to conclude from those facts whether or not they establish what is alleged. What might appear to be a departure from that is where a witness from observation of happenings that cannot easily be described forms an opinion or reaches a conclusion from his assessment of them and is permitted to express it. Perhaps what the witness has done might better be expressed by saying he forms an impression and expresses it as an opinion. An example is where a witness expresses his opinion as to the speed of a motor car. But although his opinion as to the speed is admissible his opinion as to whether the driver was driving negligently or dangerously is not. In such a case he may, as I said express his opinion as to speed, but where negligent or dangerous driving is the issue his evidence must be confined to facts which are relevant to the driving, and it is for the count to draw the inference from them as to whether or not the driving was as alleged. There are other cases where an opinion might be expressed on a matter not requiring specialist, expert, knowledge by a person without any specialist knowledge, but where evidence of facts can be given and they are capable of founding a basis from which an inference or conclusion can be drawn an expression of opinion on those facts is inadmissible. 17. In so far as the first part of the offending passage is concerned, i.e. when the penny dropped, Wong was deposing to what Chan then said of the price of heroin and the instruction to pass on the information to Lui King. But there was also the atmosphere in, and the emphasis with which Chan spoke to be considered. It is not easy to describe or convey such atmosphere and emphasis, and it might well be held that evidence of the impression Chan's remarks made on the witness, or an expression of an opinion of what Chan was then talking about is properly admissible despite any obscurity or camouflage in the words used. 18. As to the second part of the offending passage, the retro-active opinion, if I may call it that, reached by Wong that might be held to be different. In the earlier part of his affidavit Wong referred to conversations he had with Lui King going back to May 1975 and with Chan going back to June. In those conversations, he said the words "business" "goods" and "shipment" were used. He said in paragraph 17, as I understand it, that when in November he was instructed to inform Lui King that heroin was $18,000 he formed the opinion that the use of those words in the earlier conversations indicated that Chan and Lui King had at those times been engaged in or considering heroin transactions. 19. What Wong had deposed to in the earlier paragraphs of his affirmation, and his deposition as to the conversation and instruction in paragraph 17 were facts from which a judge or jury might draw, or refuse to draw the inference that there had been transactions in heroin between Chan and Lui. In that circumstances the expression of opinion by Wong might well be held to be inadmissible. 20. Having regard to my ultimate decision in this case and that, possibly, the matter will have to be ruled on in another court and jurisdiction I do not think it is desirable that I express myself more positively. 21. But if the magistrate had ruled that the whole of the offending passage was inadmissible would that have affected his decision to commit? In my opinion not at all. With the offending passage removed the value of the remainder of the affidavit was in no way lessened; its weight combined with the weight of the affidavit of Elliott was more than sufficient to warrant the magistrate making the Order he did. 22. Ground No. 2 pertained to a telephone call between Chan and one calling himself Lofty Jung, in Holland. This conversation, like many of Chan's telephone conversation, was tapped by the police in Vancouver. Although the man is, apparently, unknown to the police it would appear from the transcript of the conversation that he knew Chan, whom he addressed by the title of familiarity "Uncle Wai", and Chan knew him. The conversation that ensued might well be summarised as "pay up or else". 23. Mr. Sedgwick objected to this evidence on the ground that neither of the applicants was a party to it. He said that it could only possibly be admissible on a count of conspiracy, but as the conspiracies had broken down or were completed the evidence was inadmissible; only evidence of acts done or things said by a con-spirator in the absence of a fellow-conspirator in furtherance of the conspiracy is evidence against the other. 24. There is substance in what Mr. Sedgwick says, but if one were to hold with him what would be the effect of ignoring that affidavit. Clearly the answer is none. The remaining evidence would still be such as to have left the magistrate with no choice but to make the order he did. Had that evidence been accepted by a magistrate on committal proceedings on an indictable offence in Hong Kong there is no way in which the committal for trial could be quashed or the indictment set aside. 25. The next point, point 3, was that the evidence of Inspector Horner of an interview between him and the applicants was inadmissible, or ought in the discretion of the court to have been excluded. A further separate point was made on behalf of Lui King, that at the time of the interview he was in custody and the Inspector knew that a warrant for his arrest had been issued in Canada but the Inspector did not caution him. On his wife's, the other applicant's, behalf the point was made that although she had been cautioned and told that anything she said would be taken down in writing nothing was; instead a concealed tape-recorder recorded what she said and she was tricked into saying what she did. 26. I can see little merit in these points; but even if there were one is forced back to s.7(4) of the Schedule, and the magistrate, having accepted the evidence which was unobjectionable and the affidavits of Elliott and Wong, which I have held to be admissible, would have had no alternative but to commit the applicants to custody to await their return to Canada. 27. The next point was that the magistrate failed to warn himself of the danger of relying on the evidence of Elliott and Wong as they were accomplices. 28. That was a jury point which was not persisted in by Mr. Sedgwick. 29. Another point raised in the applicants' affirmation was that should they be returned to Canada to stand trial Elliott, to the knowledge of the Canadian Government, would not be available to give evidence, and the Government was acting in bad faith. When, however, Mr. Little, who appeared to oppose the applications, told the court of the assistance given by the authorities in Holland, e.g. bringing Elliott to the Canadian Embassy from prison to make the affidavit, and of the assurance of its assistance when a Commissioon to take the evidence of Elliott goes to Holland the point was, as I understood it, also abandoned. 30. The next point argued by Mr. Sedgwick was that assuming the evidence to be true then the applicants had been guilty of conspiracy in Hong Kong to traffic in drugs contrary to the laws of Hong Kong, and that it was wrong in principle to remove them to Canada for trial there when they could be tried here. 31. I see little force in this argument. There does not exist in Hong Kong sufficient evidence to warrant the applicants being committed for trial here under the ordinary procedure in committal proceedings. The evidence which would be required to warrant their return for trial could only be obtained from witnesses who are outside the jurisdiction of the Courts of Hong Kong, whereas with the exception of Elliott and Inspector Horner all the witnesses to the present proceedings are in Canada, and the overt acts of the female applicant were performed in Canada. Moreover, although it might be possible successfully to prosecute the case against the applicants if all the evidence were available here, it was not the Colony of Hong Kong that suffered from the conspiracy, it was Canada where the co-conspirators are. In my opinion Canada is the poper place for the trial of the charges. 32. Finally it was argued on behalf of Lui King that the legislature by its use of the word "return" did not intend to affect a person who had never been in the country seeking him. 33. The whole philosophy behind the Fugitive Offenders Act and the Extradiction Acts is to ensure that criminals do not escape their due deserts. The Fugitive Offenders Act was introduced to ensure (subject to certain exceptions) that anyone who had committed a crime contrary to the law of a territory subject to Her Majesty's jurisdiction and to which the Act applied did not escape punishment by fleeing to England or any other colony or place to which Her Majesty's writ ran and to which the Act was extended by Order in Council. The Extradition Acts were introduced to enable the Courts of the United Kingdom to order (subject to certain exceptions) the committal to custody to be "surrendered" to a foreign country which had reciprocal arrangements with the United Kingdom persons (including citizens of the United Kingdom) who had offended against the criminal law of that country and were in the United Kingdom. Had the word "surrender" been used in the Fugitive Offenders Act Mr. Sedgwick would have been deprived of his argument. 34. I do not think that it was the intention of the legislature of the United Kingdom when it enacted those acts and extended them by Order in Council to, inter alia, Hong Kong to exclude anyone from their operation except as provided therein. I do not think the Fugitive Offenders Act was ever intended to provide an escape and a refuge for any criminal; on the contrary, I consider it to have been the intention to cover every offender other than those for whom express provision was made. Indeed, I think considerable support is to be found for my view in s.5(1). There it is provided that "Subject to the provisions of this Act relating to provisional warrants, a person shall not be dealt with except in pursuance of an Order of the Governor .....". In section 19(1) "dealt with" is said to mean "tried or returned or surrendered to any country or detained with a view to such return or surrender;". It might appear that the draftsman found it difficult to envisage an application concerning a person other than one who had committed an offence while actually in the country seeking him, and used in s.7(4) what he considered to be an appropriate word, "return"; but he covered himself by using a compendious phrase, "dealt with" in s.5(1) to include any action to be taken under the Act, and then set out in s.19(1) the different meanings, including "returned", which that word might have, thereby indicating that a person who had never been in the country seeking him might be "returned" to that country. I do not think the legislature left a loophole through which any criminal might escape. 35. There were other points argued by Mr. Sedgwick but I do not intend to dwell on them. When it was accepted that it was the intention of the Canadian Government to take the evidence of Elliott on commission as permitted by the laws of Canada, the argument that he would not be available to give evidence at the trial, and, therefore, the use of his affidavit to procure the return of the applicants was evidence of the male fides of the Canadian Government, went overboard. 36. The position is that this Court, as was the learned magistrate is faced with s.7(4); and the evidence to warrant the order for committal being cogent indeed, and being such as might well lead a jury to convict left the magistrate with no choice but to make the order he did. I would dismiss the applications. Cons, J. : 37. I have had the advantage of reading the draft of the judgment given by my learned brother and agree with the conclusions he has reached on all the points raised. Both applications should be refused. Representation: Mr. Sedgwick, (David K.W. Tsang & Co.) for both applicants. Mr. Little, C.C. for Crown. |