Re Davies Yu

HCMP001216/1990

1990 MP No. 1216

HEADNOTE

Extradition - Letter of request - cross - examination of witness - jurisdiction to grant on application of person awaiting extradition - exercise of discretion on such an application.

1990 MP No. 1216

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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BETWEEN

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Coram: The Hon. Mr. Justice Sears in Court

Dates of Hearing: 31 May 1990 & 5 June 1990

Date of Delivery of Judgment: 13 June 1990

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JUDGMENT

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1. The applicant is in Lai Chi Kok pending extradition to the United States. The basic facts are that the Appellant together with Tony Wong and Simon Lai conspired to import a substantial amount of heroin into the United States.

2. This was shipped amongst a cargo or cargoes of Soya Sauce.

3. The Applicant has been indicted in New York by a Grand Jury for a number of drug offences and his extradition has been requested by the United States. The procedure for extradition is now governed by the Extradition Act 1989. The Governor by an order dated March 22nd has required the Chief Magistrate to proceed in accordance with the Act. The United States has submitted its evidence and the main witness, Tony wong, has sworn an affidavit which has been duly authenticated and submitted as part of that evidence.

4. This application is made under Section 77(E) of the Evidence Ordinance (Cap. 8) requesting that Tony Wong be cross-examined in New York, before the extradition hearing takes place.

5. At the outset, I should make some general points with regard to the purpose of extradition. It is not a trial. It does not determine guilt or innocence. It is a procedure by which a person is returned to the requesting country, but by virtue of Section 9(2) of the Extradition Act of 1989, "...a court ... shall have the like jurisdiction and powers, as nearly as may be, ... as a magistrates' court acting as examining justices." So that it is clear that the proceedings themselves include the normal safeguards which are given to persons facing a criminal charge, namely a right to remain silent, to give evidence, to cross-examine any witnesses, to appear by counsel and make submissions. The proceedings, therefore, are not in the nature of some rubber stamp procedure whereby the requesting country merely submits documents which are considered by the examining magistrate. The proceedings have all those essential hallmarks known in the British system of justice which normally occur in a trial.

6. First of all, do I have jurisdiction to make an order for cross-examination under Section 77E? Although the application by virtue of Section 77E(3) is 'ex parte', I have heard argument from Counsel for the United States as this is apparently the first time such an application has been made.

7. There are a number of matters which must be satisfied before the Court can make an order.

8. First, there must be a criminal proceedings - it is conceded that an extradition hearing is such a criminal proceedings.

9. Secondly, this must have been "instituted" in Hong Kong. This is a simple English word, synonymous will begun. How are extradition proceedings instituted? In my judgment, this occurs when the Governor in his order of March 22nd stated to the Chief Magistrate "Now I hereby, by this my Order under my hand and seal, signify to you that such requisition has been made, and require you to proceed in accordance with the Extradition Act 1989 and the said Order in Council in respect of the said Davies Yu (also known as Yok Wen Yu)."

10. The institution of the extradition hearing in the magistrates' court is therefore a formal matter. In Beardsley v. Giddings (1904) 1KB 847 the Divisional Court had to construe the words "prosecution ... shall be instituted", and it was held that these words related to the laying of the information which led to the proceedings taking place. Wills J. said "the institution of a prosecution seems to me to mean ordinarily the commencement of the proceedings by which a person is brought before the Court ..."

11. The extradition proceedings which are criminal in nature, were begun once the Order of the Governor was given. In my judgment, these proceedings were "instituted in Hong Kong".

12. Thirdly, by virtue of Section 77E(3)(a), an application for this order is to be made in respect of those proceedings "... by the Attorney General or any person charged with an offence to which such criminal proceedings relate." It is submitted on behalf of the U.S. Government, that this Applicant has not been "charged" with any offence. The Attorney-General's jurisdiction only goes to offences justiciable in Hong Kong and it is therefore submitted that only a person charged in domestic proceedings may apply.

13. As I have briefly mentioned earlier, it is important to recognise the distinction between a trial and extradition proceedings. A person facing a trial is "charged" with some offences and the Judge or Jury determines his guilt or inocence. In extradition proceedings, such a determination is not made. A decision must be made as to extradition or not, but nothing more.

14. If therefore the word "charged" indicates that the section only applies to a person charged in accordance with Hong Kong law, then this application must fail.

15. In Stirland v. D.P.P. (1944) AC 315, the House of Lords considered that the word as found in Section 1(f) Criminal Appeal Act 1907 meant "accused before a criminal court". There is no doubt that the Applicant was not "accused" according to Hong Kong law, but the words as found in Section 77E are "charged with an offence to which such criminal proceedings relate".- the underlined words indicate that the legislature must have intended a wider meaning to be given. The question still remains, however, whether "domestic" must be inserted before the word "offence".

16. I confess I find the resolution of this matter difficult. On the one hand, I should place a restricted construction on the sub-section, so as not to frustrate the whole purpose of extradition, namely that there should be an expeditious and simple method of deciding whether or not a prima facie case has been established, and not whether the Applicant is guilty or innocent. On the other hand, in Hong Kong, extradition has all the hallmarks of criminal proceedings and I should therefore place a construction on the word "offence" which is more contextually apposite and accords with the factual position that the Applicant has been "charged" in the United States and the extradition proceedings are only held because of this charge and its subsequent translation into specified extradition crimes. I have come to the conclusion that the Applicant satisfies the sub-section and that I have jurisdiction to hear the application on its merits.

17. As far as the exercise of my discretion is concerned, I agree with Mr. Hartmann that I should lean against the grant of such an order. The purpose of treaties between nations concerned with the return of alleged criminals is to ensure that they are returned to the requesting state for trial in that country, and it must be assumed that they will receive a fair and just trial in the requesting state. Mr. Hartmann has conceded that in this particular case, delay and expense are not relevant factors.

18. There are, however, two matters which, in my judgment, I should also consider. First, what is the purpose of the main prosecution witness being cross-examined in the extradition proceedings? As Lloyd L .J. pointed out in 'Re Osman (1989) 3AER at p. 121: -

"In our judgment, it was the magistrate's duty to consider the evidence as a whole, and to reject any evidence which he considered worthless. In that sense it was his duty to weigh up the evidence. But it was not his duty to weigh the evidence. He was neither entitled nor obliged to determine the amount of weight to be attached to any evidence, or to compare one witness with another. That would be for the jury at the trial. It follows that the magistrate was not concerned with the inconsistencies or contradictions in Jaafar's evidence, unless they were such as to justify rejecting or eliminating his evidence altogether. Nor, of course, was he concerned with whether Jaafar's evidence was corroborated."

19. The person sought to be cross-examined here, Tony Wong, is the main witness, a party to the alleged conspiracy and it may be that inconsistencies or contradictions could be demonstrated which might justify the magistrate in rejecting the evidence.

20. Secondly, it has been submitted that the grant of this application might lead to other similar ones being made. This "floodgate" type of argument is now common particularly in administrative law. In my judgment, I should not approach the resolution of my discretion or of my jurisdiction in a defensive manner. Lord Bridge in Leech v. Deputy Governor of Parkhurst Prison (1988) AC 533, said that the development of the law should not be impeded "... by the court's fear that unless an arbitrary boundary is drawn it will be inundated by a flood of unmeritorious claims."

21. I have already indicated that I have not found the resolution of these matters easy, and if I grant this application it does not follow that similar applications will be entertained. I therefore do not consider that the "floodgate" argument has any relevance here.

22. Mr. Hoo submits that delay is not a factor and the method of taking a deposition in the United States poses no procedural problems. In these circumstances, he submits that the Applicant has not been shown to be disentitled to an order.

23. I bear in mind that in 1990 the methods of communication and travel between nations are far less cumbersome than they were 50 years ago.

24. On balance, I have decided, on the particular facts put before me, to exercise my discretion in favour of making the order. The precise wording of the order can be agreed to give effect to this judgment.

25. I am grateful to Counsel for their very able submissions and I mean no disrespect if I have not dealt with all the various points raised.

Representation:

Mr. Michael Hartmann, Senior Crown Counsel & Mr. T, Man, Crown Counsel for the U.S.A. Government.

Mr. Alan Hoo, Q.C. & Mr. McCoy instructed by M/s Haldane, Midgley & Booth for Applicant.