Re Ho Kin Man
Read the full judgment text of HCMP 162/1969 on BabelCite. This High Court CFI judgment was delivered on 1 November 1969.
1. In these proceedings, counsel moves for writs of habeas corpus on behalf of four applicants. There are four separate applications before the court, but the facts in each case are very similar and it is convenient to deal with the four cases together. This judgment, therefore, deals with all four applications.
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HCMP000162/1969 IN THE SUPREME COURT OF HONG KONG MISCELLANEOUS PROCEEDINGS ACTION NO. 161 OF 1969 -----------------
----------------- IN THE SUPREME COURT OF HONG KONG MISCELLANEOUS PROCEEDINGS ACTION NO. 162 OF 1969 -----------------
----------------- IN THE SUPREME COURT OF HONG KONG MISCELLANEOUS PROCEEDINGS ACTION NO. 163 OF 1969 -----------------
----------------- IN THE SUPREME COURT OF HONG KONG MISCELLANEOUS PROCEEDINGS ACTION NO. 164 OF 1969 -----------------
----------------- Coram: Full Court (Scholes, Briggs & Pickering, JJ.) Date of Judgment: 1 November 1969 ----------------- JUDGMENT ----------------- 1. In these proceedings, counsel moves for writs of habeas corpus on behalf of four applicants. There are four separate applications before the court, but the facts in each case are very similar and it is convenient to deal with the four cases together. This judgment, therefore, deals with all four applications. 2. Each applicant was arrested and committed to the Victoria Remand Centre pursuant to a warrant dated August 11, 1969 issued in pursuance of the Fugitive Offenders (Hong Kong) Order 1967. 3. The applicants are each charged with two offences said to have been committed in the Republic of Singapore namely (1) making use of a forged identity card contrary to section 13(1)(e) of the National Registration Act, 1965 of the laws of the Republic of Singapore; and (2) knowingly uttering a false document contrary to sections 466 and 471 of the Penal Code of Singapore. 4. At the time of the hearing before this court the applicants had been admitted to bail. 5. The basis for this application is that the magistrate had no jurisdiction to make the orders that were made. 6. Counsel for the applicants relied on six principal grounds, namely:-
It will be convenient to deal with the first three grounds together. 7. As to the first ground, section 5 of the Order states that a person shall not be dealt with under the Order except in pursuance of an Order of the Governor which is there referred to as "an authority to proceed". 8. Such an authority to proceed was signed by the Governor on June 16, 1969 in respect of each of the applicants but no evidence of this fact was given in the proceedings before the magistrate. 9. As to the second ground, section 4(3) of the Order states that a person shall not be committed for the purposes of returning him to any country unless provision is made by the law of that country (or an arrangement made with that country) to ensure that upon his return he will only be dealt with for the offence in respect of which his return is requested by that country or for other offences allowed by the sub-section. 10. As to the third ground it must be shown that the alleged offence constitutes an offence under the laws of that country on account of section 3(1)(a) of the Order. 11. There is such a provision as is mentioned in the above paragraph in the laws of Singapore. It is contained in section 31 of the Extradition Act, 1968, of the Republic. In addition the facts adduced before the magistrate in respect of the second charge, if believed, would constitute an offence against the laws of Hong Kong as required by section 3(1)(c) and section 7(4)(a) of the Order. 12. However, in the proceedings before the magistrate the evidence referred to in grounds (1) & (2) was not properly given in evidence. 13. The Solicitor General who appeared on behalf of the Crown agreed that it would have been desirable had such evidence been called before the magistrate but argued that it was not essential. We think that in a future case such evidence should be called before the magistrate and we are at a loss to understand why affidavits containing the notice to proceed and an expert view of the relevant portions of the laws of Singapore were not produced before the magistrate in this case. 14. Section 8(4) of the Order specifically gives this court power to receive additional evidence as to the exercise of our jurisdiction under section 4 of the Order. The Solicitor General drew our attention to various authorities where it is clearly shown that the court before which an application for a writ of habeas corpus is made will, where it requires to be satisfied as to the jurisdiction of the committing magistrate, either remit the matter to the magistrate for further evidence to be called or call such additional evidence themselves. The court will not rehear the case before the magistrate nor will it hear an appeal from an order of committal. "Its function" said Lord Radcliffe in Schtrak's case(1) "is to see that the prisoner is lawfully detained by his gaoler". In the same case it was pointed out that a writ of habeas corpus is not to be granted on a mere technicality. (See the speech of Hodson L.J. at p.550). 15. A similar distinction was drawn in Shuter's case(2). See also Sadri's case(3) and Gardner's case(4). 16. It appears to us that the matters referred to in the first two grounds for this application are matters going to the jurisdiction of the magistrate and further are matters as to which we are entitled to and indeed should call for further evidence. 17. The authorities clearly show that the court can either send the case back to the magistrate in order that he may take further evidence or may itself call for such evidence. The point raised in the first ground was abandoned by counsel for the applicants during the course of the hearing before us. The proposed affidavits so far as the second and third grounds are concerned had already been sworn. We considered it more convenient to deal with the matter ourselves and we therefore ordered the necessary affidavits to be filed. These clearly fill the lacunae in the case for the Crown before the magistrate. And that disposes of the first three grounds. 18. The fourth ground is that the first charge or ground for committal was not a "relevant offence" for the purposes of the Order. 19. By section 1 of the Order a person cannot be committed unless he is charged with what is described in section 3 of the Order as a "relevant offence". 20. The first charge is laid under the National Registration Act, 1965 of the Republic of Singapore: the gist of such charge has been set out above. 21. It was conceded by the Crown that this did not constitute a "relevant offence" on account of section 3(1)(c) of the Order. And so we do not intend to deal further with this point. 22. The committal in each case therefore so far as the first charge is concerned cannot be supported. 23. The fifth ground for the application was that certain documentary evidence which was admitted by the magistrate should not have been admitted. And that if it had not been admitted there would have been insufficient evidence on which to commit. 24. Counsel for the applicants took three separate points: (a) that affidavits were served on the applicants during the course of the proceedings without the notice required by law; (b) that certain depositions were taken in proceedings in Singapore when the applicants had no opportunity of cross-examination; and finally (c) that the affidavits produced contained matter that was hearsay. 25. It will only be necessary to touch on these three points briefly. As to the first, section 7(2) of the Order states that a magistrate shall have the like jurisdiction and powers as a magistrate has under Part 3 of the Magistrates Ordinance. 26. Section 81A of that Part states among other matters that the prosecutor may tender a written statement in evidence provided that ten days' notice is given to the accused person before the hearing. It was not denied that in the proceedings before the magistrate several statements in writing were tendered and accepted in evidence by the magistrate without such notice. 27. This is a matter of procedure and if the applicants considered that they were prejudiced they could have applied for an adjournment. It does not appear that this was done. In any event section 7(2) of the Order only refers to the jurisdiction and powers of a magistrate: it does not refer to matters of procedure. And no authority was quoted to satisfy us that insufficiency of notice would invalidate an order of committal. 28. As to the second point that there was no opportunity of cross-examining the witnesses whose depositions were put in evidence. There is nothing in the Order to suggest that this is required or, for that matter, that it should be allowed. 29. Counsel for the applicants complained that the depositions which were placed before the magistrate were taken in proceedings other than the present proceedings and even after these were commenced. 30. Section 11 of the Order refers to "documents duly authenticated". This is a definition wide enough to cover the depositions and affidavits which were put in evidence before the magistrate in this case. We see no reason why such depositions should not have been taken in proceedings in Singapore. The evidence taken in Singapore together with the evidence taken in Hong Kong constitutes the case against the applicants. And we can see nothing wrong with that. 31. The final point is that the documentary evidence was hearsay in part. This matter was extensively canvassed before us. And the case of each individual applicant dealt with separately by counsel. We are satisfied that though the documents do contain some hearsay evidence that they were properly accepted in evidence by the magistrate. The magistrate himself dealt with this point. And we think that looking at the evidence as a whole that the decision of the magistrate to commit the applicants was correct, and that there was a prima facie case against each applicant. 32. The sixth and final ground was a complaint that there were defects on the face of the warrants of committal themselves. Though we do not think this is of sufficient importance to go to the root of the matter, we find this to be a fact. 33. The warrants of committal of course made reference to the first charge. We thought that the right course to adopt in the circumstances was to amend the warrants, which we ordered to be done. 34. We have therefore come to the conclusion that the committal warrants of the four applicants so far as the second charge is concerned should be supported, but that the four applicants should not be returned to Singapore on the first charge, but only on the second charge.
1st November, 1969. Representation: Donnelly (Gunston & Fairbairn) for Applicants. Sneath Q.C. Sol.-Gen. & Evans, C.C. for Respondent. Jackson-Lipkin (Woo & Woo) for Singapore Government. (1) (1962) 3 A.E.R. 536 (2) (1959) 2 A.E.R. 782 (3) (1962) 3 A.E.R. 747 (4) (1968) 1 A.E.R. 636 |