Lam Yu Shing and Others v. The Government of United States of America

HCMP003967/1990

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

_____________

_____________

BETWEEN

_____________

Coram: Kaplan, J. in Court

Dates of Hearing: 29 & 30 January 1991

Date of handing down Judgment: 9 February 1991

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

JUDGMENT

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

1. I have before me four applications for writs of habeas corpus which arise by virtue of warrants of committal made by Mr. Ian Carlson, a magistrate of Hong Kong, on the 10th December 1990. The Government of the United States of America seeks the extradition of all four Applicants to stand trial in the United States of America on drug offences. Mr. Carlson considered this matter following an Order of the Governor dated 17th July 1990 which was amended by the Governor on 25th November 1990.

2. I heard all four applications at the same time pursuant to an interlocutory order I made shortly before the hearing. Mr. Edward Chan, Q.C. and Mr. C.Y. Li appeared for Mr. Lam (Lam). Lam was committed on crimes 1 and 2 of the Governor's amended Order. Law submits that he should not have been committed on either crimes. The other three Applicants whom I shall call wirote, Yeung and Ng respectively were all represented by Mr. Michael Poll. All three were committed on crimes 1 and 2.  Mr. Poll's submission only extends to crime 2, so come what may these three Applicants will stand trial in the United States on crime 1. The Governor's amended Order did contain a third crime which was not proceeded with and can therefore be ignored.

3. I heard Lam's case first because it was wide ranging and Mr. Poll for the other three indicated that his case would not take long. Mr. Michael Hartman to appear for the Government of the United States of America responded to Mr. Chan's submissions and Mr. Chan then replied. I then heard Mr. Poll. Mr. Hartman answered Mr. Poll's submission and Mr. Poll replied shortly. Both Mr. Hartman and Mr. Chan provided me with very useful and meaty skeleton arguments. I was also supplied with two bundles of relevant authorities. I am grateful to all counsel for their clear and able submissions and the economy with which they were delivered.

4. As the liberty of the subject is involved, I indicated that I would endeavour to hand down my judgment prior to my leave. This will necessitate not going into as much detail as I otherwise would. I mean no disrespect to counsel if I do not mention every point they made the bulk of which are recorded in the skeleton arguments. I will not refer to all of the evidence but only to such parts of the evidence as I think necessary. However, I must make it clear that I have read and re-read all the evidence.

5. The four individual returns to the writ of habeas corpus were read in open court at the outset of the hearing by Mr. Hartman and were exhibited. Lam's return is Exh 1. Wirote's is Exh. 2, Yeung's is Exh.3 and Ng's is Exh.4. The Relevant Facts (not exhaustive but concentrating on the evidence of Lam's alleged involvement)

6. On 13th January 1990, Michael Shum, a DEA undercover agent and Byron Tong, a confidential informant met Yeung in Hong Kong. Shum told Yeung that his people in New York were interested in obtaining 'stuff' and an initial shipment of 30 units was mentioned. Yeung indicated that his organisation had the ability to ship as many 'pieces' as Shum could afford to buy. Yeung indicated that he knew Khun Sa (a golden triangle war-lord) and that he,Yeung, was one of his representatives in South-East Asia for the distribution of heroin. Yeung said that he would receive a fee of US$5,000 for each unit delivered to New York. Yeung also requested a deposit of US$10,000 which Shum delivered to Yeung on 15th January 1990.

7. On 16th January 1990, Yeung arranged to meet Shum and Tong in Bangkok. Yeung also gave Shum the phone number of Khun Sa's relative who was arranging the shipment of heroin.

8. On 17th January 1990, Yeung met Shum and Tong in Bangkok. The said relative was present. He is known variously as Chalee Yangvirikul, and Yeung Sze Wan but is hereinafter called 'Chalee'. They discussed the 30 units and a distribution network in New York.  Chalee said that the quality of the heroin would be of the highest and Chalee took from his pocket a plastic bag containing a small amount of white powder and handed it to Shum for examination. Chalee added that he rarely met with people to conduct business and he said that he usually relied on Yeung who was his close associate to conduct the negotiations. Shum says that he understood and it was clear from the context of the conversation on the 17th of January that the terms 'merchandise', 'stuff', 'business' and 'units' were being used to refer to heroin.

9. A further meeting took place on January the 20th, 1990 between Shum, Tong and Yeung at a hotel in Thailand. During this meeting, Yeung told Shum and Tong that the person who would supervise and control the courier would arrive in New York around February the 7th and would contact Tong. Yeung said that the actual courier should arrive in New York city around February the 15th with the merchandise. Yeung told Shum that Chalee was planning the shipment on more than 300 pieces to the United States. Again Shun says it was clear from the context of the conversation that the terms 'merchandise'  'shipment' and 'pieces' were being used to refer the heroin.

10. On 21st January, Yeung met Shum and Tong at a hotel in Bangkok. Yeung was with another person who was subsequently identified as Wirote. Later on the 21st. Chalee joined the party and said that the 30-unit shipment to New York was proceeding according to plan. During this meeting, Shun handed Chalee some United States currency and Chalee later said that Yeung would handle the rest of the money owed. During this meeting, Chalee stated that he was planning to ship approximately 300 units to United States.

11. On 25th January 1990, Yeung met Shum and Tong. On this occasion, Yeung introduced them to Lam. Shum said he had an additional US$30,000.00 for Chalee. Yeung replied that Lam would be responsible for transferring the money to Chalee for the merchandise. Shum handed money to Lam who counted it. Once counted, Yeung used a mobile phone and said he was phoning Chalee in Thailand. Yeung was heard to say that "everything's alright". Lam then took the phone and spoke about the US$30,000.00. Yeung then said he had to go to China for a few days but he instructed Shum and Tong to contact Lam during this time regarding any further transfers of money to Chalee in Thailand for the merchandise. Again Shum says that it was clear from the context of the conversation that the term 'merchandise' was used to refer to heroin.

12. Later that night, Shum spoke to Chalee who said that Shum could deliver the balance of any monies to Lam who would transfer it to him.

13. On 26th January, Chalee confirmed that he had received monies from Lam. Also on that day. Tong had a recorded conversation with Lam who confirmed that he had spoken to Chalee about the money and it's safe remittance. Tong told Lam that US$47,500 had to be sent to Chalee "for the business we had with him". Tong says these words were used, and it was clear from the context of the conversation that the term 'business' was used to refer to the heroin business.

14. In early February 1990, Shum remitted a further sum of US$47,500 from New York to Yeung in Hong Kong. Yeung confirmed receipt and said he would send it to Chalee.

15. There were some delays.

16. On 20th March, Tong flew to Hong Kong to meet Yeung about the delays. Yeung said he had spoken to Wirote about the delay and that Wirote assured him that the 'merchandise' would arrive in late March. Yeung told Tong that the 'Ng brothers' (who had a heroin processing laboratory) were supplying Chalee with the 30 units.

17. On 31st March, Yeung in the presence of Tong phoned Wirote in Bangkok to complain about the delay. Also that day Yeung had a conversation with someone he called 'Sai Yeung' Ng, the younger Ng brother. Yeung asked 'Sai Yeung' about the 30 units and was told that they had not been released because Chalee had not paid for them.

18. On 2nd April 1990, Lam left Hong Kong for Chiangmai. Also that day, Yeung phoned 'Sai Yeung' in Thailand and advised Tong that 'Sai Yeung' confirmed that 30 units would be sent down from Northern Thailand in the next day or two.

19. On 12th April, Tong went to Bangkok and met Yeung and Wirote as well as Chalee.

20. On 17th April, Yeung met Tong and suggested that after the 30 units had been delivered, Tong should cut out Chalee and deal only with Yeung, Wirote and the Ng brothers.

21. On 18th April, Chalee contacted Tong to give him delivery details. On 7th May, Shum received an airway bill confirming that this related to the 30 units. The heroin arrived in New York on 9th May 1990. It cane from Thailand and it contained 30 units in excess of 21 kilos with a New York street value of HK$100m.

22. On 18th May, Shum and Tong met Yeung and discussed the delivery and packaging as well as future shipments. Referring to the 30-unit shipment, Shum asked Yeung whether Lam was still capable of transferring money from Hong Kong to Chalee. Yeung replied that Lam personally accepted the US$47,500.00 and remitted it to Chalee.

23. The above summary is taken from the affidavits of Shum and Tong sworn in connection with the Government of United States' request for extradition of all four Applicants.

Lam's Defence Evidence

24. Lam called a number of witnesses in the Magistrate's Court. Their evidence is set out in the notes of proceedings. Basically, this evidence was intended to establish the following facts:

The Governor's Amended Order

25. The wording in the Governor's amended Order to proceed in relation to crimes 1 and 2 is in the following terms. I have omitted crime 3 which, as I have said, is no longer relied upon.

The Test for Prima Facie Case

26. All counsel agreed that the appropriate test to be applied by the magistrate and to be considered by myself was:

"Whether upon the evidence adduced a jury properly directed could (and not would) come to the conclusion of guilt beyond all reasonable doubt."

27. This was recently considered by the Court of Appeal in Li Fook Shiu, Ronald v. A.G. Cr. App. 3 of 1990 where the test stated by Lord Lane in R. v. Galbraith (1981) 1 WLR 1039 at 1042 was adopted.

28. In considering whether a prima facie case has been made out to justify a committal for trial, the duty of the magistrates is :

"To consider the evidence as a whole and reject any evidence which he considered worthless. In this sense it was his duty to weigh up the evidence."

"But the magistrate is not entitled to determine the amount of weight to be attached to any evidence or to compare one witness with another. That is for the jury at trial. (see R. v. Governor of Pentonville Prison ex parte Osman [1989] 3 AER 701 at 720d-722c.)"

29. It is clear from reading Mr. Carlson's ruling that he applied the correct test which is no surprise bearing in mind that magistrates are called upon to consider it, perhaps several times every working day. He correctly identified that there was no direct evidence of knowledge and that the case against Lam turned upon inferences. He identified the issue thus:

"The issue in this case so far as he (Lam) is concerned is whether there is evidence from which a reasonable jury properly directed might conclude beyond reasonable doubt that he (Lam) knew that this money was the money used to purchase this heroin."

30. In concluding that the Government of United States of America had satisfied him as to this test he relied upon the following matters:

31. The learned magistrate went do to say that it is "for a jury to say whether or not on all of the evidence before them substantial drug traffickers in these circumstances would go to a wholly innocent man to transfer the substantial funds representing the purchase money for the heroin on their behalf. It is for the jury to judge this matter. In my view, from all the circumstances concerning D3's (Lam) involvement in the passages that I have drawn attention to, a jury may draw the certain inference that D3 knew what the money was referable to and that it was therefore a party to both offences by virtue of being the conduit for the transfer of these funds."

32. The learned magistrate went on to make one factual error by relying upon a conversation from New York involving Lam and Tong about which there is in fact no evidence. This was a further point which followed on after the passage I have just quoted. Even though it was an error, it seems clear to me that it was a make-weight and that the magistrate was clearly saying that the matters he had relied upon before mentioning this matter were sufficient in themselves to satisfy the prima facie case test.

Lam's submission on Crime 1

33. Mr. Chan submits that there is no or no satisfactory evidence to establish that Lam knew the conversations at which he was present concerned heroin. He submits that it is no evidence of what Lam knew and understood to be told what Shun and Tong understood by the conversations. I disagree. It is open to a jury to be satisfied beyond reasonable doubt on the evidence that everyone, including Lam, knew perfectly well what was being discussed. It is quintissentially a matter for the jury.

34. Next Mr. Chan says that as the magistrate correctly stated that the question of Lam's knowledge was a matter of inference, such inference cannot be drawn unless it is the only inference to be drawn. In my judgment, Mr. Chan is applying the correct test at the wrong moment in time.  What the magistrate is concerned about is whether there is sufficient evidence upon which a jury could draw the necessary inference that Lam knew perfectly well that the discussions at which he was present and the money which he transmitted were all to do with sending drugs to the United States of America. In my judgment such evidence exists and I cannot fault the learned magistrate's approach.

35. Mr. Chan bolsters up his last submission by referring to and relying upon the evidence called by the defence which he submitted was unchallenged. He submits that this shows that Lam was a frequent courier of money to Thailand, sometimes without even knowing about the underlying transaction. I fail to see, however, how at this stage this evidence impinges on the evidence from which a jury could infer that Lam knew he was dealing with drugs and drug money. I do not know what will happen at trial, but it may be that this evidence is not challenged but instead the jury may be invited to infer that Lam's jade business was an excellent cover for his clandestine involvement with drugs. The evidence called by the defence might have no bearing on the jury's decision, if it be so, that Lam knew from the conversations at which he was present that drugs were the subject matter of such conversations. The fallacy in Mr. Chan's approach is, I believe, that a jury could well accept the evidence of Shum and Tong as to Lam's knowledge without having to disbelieve the defence witnesses.

36. On the correct approach at this stage to evidence called by the defence, I think I can do no better than rely upon a passage of Widgery LCJ in Ex parte Godber 285/1974 at p. 10:

"He (Mr. Scrivener) says that the defence are allowed to call evidence and they must be allowed to call evidence for some purpose. When their evidence is called it ought to be put beside the prosecution evidence and balanced against it.

In my judgement that happens only in a very small minority of cases. Of course if the defence are able to discredit a prosecution witness to the point that no one would really believe his evidence at all, they have achieved something and this will have an important effect on the outcome of the committal proceedings. But merely to show that there is defence evidence which is as good as the prosecution's case  merely to show that kind of result, is not good enough in these proceedings because it merely shows that there is an issue for the jury to try and it does not in any way prevent the prosecution from claiming that they have made out a prima facie case."

37. Mr. Chan attempted to distinguish this passage on the grounds that there the court was not dealing with the question of drawing inferences. My earlier comments deal with this point. In my judgment, this passage indicates the correct approach to defence evidence called at this stage of the proceedings. It follows, therefore, that the evidence adduced by the Government of the United States was not discredited by the defence evidence upon which it had no direct bearing but will doubtless be a matter which will be placed before the jury in due course, and upon which they will have to make a decision.

38. Mr. Chan's next point on prima facie case was that in order to establish the conspiracy, there had to be evidence which could establish :

(see R v. Bux [1989] 1 HKLR l relying heavily on R. v. Griffiths [1965] 3 WLR 405.)

39. As Mr. Chan puts it in his skeleton "it is necessary to show that there is prima facie evidence that the Applicant knew that there was a scheme for trafficking in drugs and that this scheme went beyond the transfer of money handled by him (even if he knew  that such money was for the payment of drugs)".

40. If the magistrate be right, as I think he was, that there was evidence upon which a properly directed jury could conclude that Lam knew perfectly well that what was being discussed in his presence was a plan to purchase heroin, it is open to a jury to conclude that he knew perfectly well what was going on, and that this involved the scheme beyond merely the handling of money by him. Surely the prosecution can rely upon Lam contacting Chalee who was the Thai contact, and invite a jury to infer from that evidence that Lam had agreed to play a role, albeit in relation to the finances, in the conspiracy which had been entered into and which did involve the importation of dangerous drugs into the United States of America.

41. Once I am satisfied that such evidence exists, it is not my role, nor was it the magistrate's role, to speculate what a properly directed jury would make of it at the end of the day.

42. On Mr. Chan's submissions on prima facie case, I am of the clear view that the learned magistrate applied the correct test and correctly considered all the evidence tendered to him in the light of that test. In my judgment, a prima facie case on crime 1 was made out in relation to Lam and the submissions to the contrary are therefore rejected notwithstanding the attractiveness of their presentation by Mr. Chan.

Crime 2

43. On this aspect of the case, Mr. Chan submits that Lam should be told for what crime he is being extradited because of the differing definitions of 'trafficking'. He emphasizes that crime 2 might encompass acts preparatory in Thailand which would not be an extraditable offence. He points out that the time frame in crime 2 is wide namely from the 1st January 1990 to the 20th May 1990. He submits that justice demands that Lam should know the crime he is facing and for which his extradition has been sought. As there is a doubt about the matter Lam should not be committed on crime 2.

44. Mr. Chan concedes, rightly so, that the Governor's Order to Proceed is not to be treated as though it were an indictment. However, he submits that importation of the drugs into the United States of America is the only extraditable offence and that this  has not been clearly spelt out in the Governor's Order to Proceed.

45. Mr. Chan submits that if Lam is extradited on crime 2, the charge which he will face in the United States of America may turn out not to be an extraditable one under Hong Kong law.

46. Mr. Hartman in response submits that this submission is misconceived. He points out that there is no requirement in either the statute (schedule 1 of the Extradition Act 1989) or the treaty between the Government of the United Kingdom and the United States of America that the alleged crime has to be particularized in the same manner as a domestic indictment. He submits that the practice in extradition cases has been for the English offence (here Hong Kong offence) to be stated in general terms in the authority to proceed issued by the Secretary of State. He relies on the passage to this effect in Osman at page 723.

47. He further submits that the Order to Proceed is addressed to the magistrate and is not an appropriate document to set out in detail the case which could be brought against Lam at committal. (see Naghai [1990] 1 WLR 317.)

48. Mr. Hartman emphasizes that the magistrate is concerned solely with whether the evidence would support committal for trial in Hong Kong if the conduct complained of had taken place in Hong Kong and he is not concerned with the form of charges. In Treitz [1985] QBD unreported at p. 5, Mustill L.J. said:

"(11)         When the magistrate comes to assess whether the evidence tendered demonstrates a prima facie case of an extradition crime, the relevant offence is not the foreign offence specified in the requisition or the foreign warrant, but the English offence referred to in the Order to Proceed : In re: Nielson (1984) 1 A.C. 606. It is for the Secretary of State, not the magistrate, to "translate" the foreign offence disclosed by the documents into an English extradition crime, the evidence of which he directs the magistrate to examine."

As to the form of Order to Proceed, Mustill L.J. said:

"The objection here is more substantial. Since In re Nielsen (supra) it has been recognised that the order to proceed is the pivotal document. It launches the English proceedings, and it identifies for the magistrate and the parties the English offence against which the evidence is to be measured. The magistrate does not know what to look for (so the argument runs) unless the offence is particularised. The prisoner does not know what case he has to meet and the magistrate cannot tell him. Furthermore, he cannot consider whether to raise a plea of autrefois acquit or autrefois convict unless he knows on which of the possible grounds which might be said to exist in the evidence tendered, his extradition is actually sought.

1 see much practical force in this argument. Indeed it appears from re Elliott (unreported 11 July 1975: Transcript No. 171/75) that, at least in cases under the Fugitive Offenders Act. 1967, there may be a practice to set out the particulars of the offence in a similar manner to the particulars of offence contained in an indictment."

Lord Justice Mustill, however, went on to find that there was no requirement to particularize the offences in the Order to Proceed in the same manner as a domestic indictment (p. 16 G):-

"I am unable, however, to hold that the Act of 1870 imposes any such requirement. By section 20 the forms set forth in the second schedule to the Act, or forms as near thereto as circumstances admit, may be used in all matters to which such forms refer. Form No. 2 in that Schedule gives a precedent for an order to proceed. This form probably contemplates, and certainly admits, a description of the offence in generic terms without particularisation of date, place and other matters. I am wholly unable to accept that the completion of the form without such particulars would contravene the requirements of the statute and I would observe that in In Re Nielsen the order to proceed was expressed in very similar terms to the present without any suggestion being made by their Lordships, who put such weight on the order, that it might be lacking in particularity." [emphasis added]

49. Mr. Hartman also relied on passages in the judgment of Roberts C.J. in Levy v. Attorney General [1987] HKLR 777 at 779 et seq. These passages emphasized that it is the conduct which the Governor considers when he decides whether to make an order requesting the magistrate to issue his warrant. It is that same conduct which the magistrate has to consider when deciding whether a prima facie case has been made out in relation to the crime specified by the Governor if it had taken place in Hong Kong. Roberts, C.J. went on to make it clear that the magistrate is not generally concerned with the law of the requesting state.

50. From these authorities, Mr. Hartman distilled three principles.

51. Mr. Hartman submits that the form of crime 2 is sufficiently particularizes. It alleges trafficking in dangerous drugs contrary to Section 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. The particulars give:

52. He reminded me of the wide definition in Section 2 of the Dangerous Drugs Ordinance. He submits that 'trafficking' includes any number of different acts and that further particularity is not required. (see R. v. Fan Chung Yuen [1973] HKLR 516 at 520.)

53. Mr. Hartman submits, and the contrary is not alleged, that there is no duplicity in crime 2 nor is it said to be bad for vagueness.   

54. Both Mr. Chan and Mr. Poll placed reliance upon a recent decision of the Privy Council on appeal from Hong Kong. In Somchai Liangsiriprasert v. the Government of United States of America [1990] 2 HKLR 731, the court was concerned with a similar factual situation to that before me. In that case, crime 2 alleged trafficking in dangerous drugs and crime 4 alleged acts preparatory to trafficking. In relation to these two offences.  Lord Griffiths giving the Board's decision made clear that these 2 charges related to the Appellants' activities in Thailand. He was able to say this because crime 2 alleged trafficking on a particular day which the evidence clearly showed was the day the heroin was handed to the DEA agents in Bangkok. Crime 4 alleged acts preparatory between 14th September and 22nd September, and the evidence showed that this covered events in Thailand. Because the Dangerous Drugs Ordinance did not have extra territorial effect, the acts alleged in crimes 2 and 4 did not constitute an offence in Hong Kong. On this basis, the Privy Council set aside the committal on these two crimes.

55. The difference between Somchai's case and the present is that there was no doubt that in Somchai the conduct shown in the papers indicated that crimes 2 and 4 were committed in Thailand and thus were not extraditable. Crime 2 in the case before me covers a wide period and there was evidence before the magistrate which related to trafficking in Hong Kong.

56. Insofar as Mr. Chan and Mr. Poll submitted that the United States Grand Jury charge 2 would not be triable in Hong Kong for the reasons above stated Mr. Hartman on behalf of the Government of the United States gave a clear undertaking to this court that if these Applicants are returned to the United States of America they will not be tried on the second count contained in the Grand Jury charges. He further made it clear to the court on behalf of the United States Government that these Applicants, if returned, will not be tried on a count or counts which related to acts done solely in Thailand.

57. Mr. Hartman also referred to the principle of speciality by which a fugitive may not be tried or committed for offences which occurred prior to surrender other than those for which he was returned. In Hartley Booth's British Extradition Law and Procedure, vol. 1 p. 67, it is stated:

"The tendency of courts has been to assume that the requesting party will act in accordance with its treaty commitment and that the request was made with the bona fide intention to put the accused on trial solely for the offences recited in the extradition warrant and indeed there is authority which strictly may preclude any argument which question of good faith of the Requesting State."

58. Mr. Hartman conceded that the speciality rule would be breached if the Applicants were charged in the United States of America with offences only committed in Thailand and that I should not, for one moment, take into account that there is any prospect of the United States of America breaking its treaty obligations.

59. I have given very careful consideration to all the arguments advanced in relation to crime 2 by Mr. Chan, Nevertheless, I can see nothing wrong in the way in which it is framed and the concerted attack upon it fails. All Applicants have the benefit of the undertakings given to me by Mr. Hartman on behalf of the United States Government which I have recorded and which, of course, I accept.

Arguments on behalf of Wirote, Yeung and Ng

60. These Applicants do not challenge their committal on crime 1, but only on crime 2. In relation to crime 2, they rely on Mr. Chan's arguments advanced in relation to crime 2 and of course they rely heavily on the way at which their cases would put by Mr. Poll. Mr. Poll's two grounds on behalf of his three clients are as follows:

I have, of course, covered most of this ground already.

61. Mr. Hartman submits that the complaint is essentially that the crimes listed in the Governor's Order should more accurately mirror the United States offences specified in the Grand Jury Indictment. However, he points out that there is no requirement by treaty or statute for the United States Indictment to be before the magistrate. In this case, it simply was an additional document, but was not necessary. If there is no United States Indictment, the magistrate will have to look at the foreign warrant.

62. Mr. Hartman submits that the magistrate looks at the crimes outlined by the Governor and asks himself whether there is a prima facie case in relation to them on the conduct shown on the evidence.

63. Mr. Poll's argument, with respect, seeks to treat the Governor's Order to Proceed as if it were a domestic indictment. It further seeks to introduce a requirement that the United States charges should in some way be mirrored in the Governor's Order to Proceed. I do not think that that is the correct approach.

64. I am fortified in that conclusion by the fact that Mr. Chan expressly disassociated himself from that part of Mr. Poll's submissions, and he stated specifically that he did not allege that the crimes specified in the Governor's Order to Proceed should mirror the United States Grand Jury Indictment.

65. As to Mr. Poll's complaint about the dates in the Order, it is fair to point out that dates in a domestic indictment are not fatal if wrong and the argument is a fortiori with the Governor's Order to Proceed. Mr. Poll's complaint about the width of the time span alleged is not justified in my judgment in the light of the evidence before the magistrate.   There was evidence before the magistrate to substantiate those dates for the purposes of the Governor's Order to Proceed.

66. I am therefore of the clear opinion that there is nothing in the points taken by Mr.Chan or Mr. Poll in relation to crime 2. The magistrate was entitled on the evidence before him to commit all four Applicants on that crime.

67. It follows therefore that all four applications for habeas corpus are dismissed. I propose to make a costs order nisi against all four Applicants in favour of the Government of the United States of America.

Representation:

Mr. Edward Chan, Q.C. and Mr. C.Y. Li & Mr. M.T. Yeung instructed by Yung Yu Yuen & Co. for the 1st Applicant

Mr. Michael Poll instructed by Paul Kwong & Co. for the 2nd, 3rd & 4th Applicants

Mr. Michael Hartman, Senior Assistant Crown Prosecutor and Miss M. Ip for the Government of United States of America