Re Thongchai Sanguandikul

HCMP000804/1992

H E A D N O T E

Extradition - whether Attorney General's Guidelines on 'unused material' apply - whether inclusion of 'inadmissible evidence' renders Magistrate's decision invalid - requirement of fairness

1992, MP Nos. 802 & 804

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: The Hon. Mr. Justice Kaplan in Court

Dates of Hearing: 4th & 5th May 1992

Date of Delivery of Judgment: 26th May 1992

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J U D G M E N T

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1. I have before me two sets of proceedings by which the Applicant seeks to challenge the decision of Mr. Wright given on 3rd March 1992 whereby he ordered that the Applicant should be extradited to the United States of America on the charges contained in the Order to Proceed dated 30th December 1991. These charges relate to a conspiracy to import huge quantities of heroin into the United States of America.

2. The first proceeding is an application to quash the return made to the Writ of Habeas Corpus. Mr. Justice Mortimer gave leave for the writ to issue and the return states that the Applicant is being held by the Correctional Services Department at Lai Chi Kok Detention Centre under and by virtue of a warrant of committal issued and signed by Mr. Wright. Mr. Sarony Q.C., who appears for the Applicant, submits that Mr. Wright was wrong in law in committing the Applicant and that I should quash the return and discharge the Applicant.

3. The Applicant was also granted leave by Mayo J. to apply for judicial review of the proceedings before Mr. Wright. In those proceedings, the Applicant seeks

(1) an order of certiorari quashing Mr. Wright's decision;

(2) an order of Mandamus compelling the application for extradition to be heard before another magistrate;

(3) an order of Mandamus in respect of any future extradition proceedings compelling the Attorney General of the United States of America to disclose to the court and to the Applicant all statements, depositions and testimony of Albert Castagnola (the main witness against the Applicant and an accomplice);

(4) a further order of Mandamus compelling the Attorney General of the United Stated of America to adduce only such evidence as is admissible according to the rules of the lex fori (Hong Kong);

(5) a declaration that on any hearing of an application to extradite the Applicant, he should be entitled to pre-trial disclosure of all statements, etc. of Castagnola pursuant to the principles of the Attorney General's Guidelines in relation to 'unused material';

(6) a declaration that in any future extradition hearing, the Attorney General of the United States of America should only be permitted to adduce evidence which is admissible under the law of Hong Kong;

(7) that any future hearing should be heard before a magistrate other than Mr. Wright.

4. I agreed to hear both sets of proceedings together and to deliver one judgment in respect of both. I will comment later upon the relief sought in the judicial review proceedings which only has to be stated to be seen to be somewhat unusual in the context of extradition proceedings.

Basic facts

5. In the spring of 1987, Albert Castagnola was introduced to narcotics trafficking by Raphael Santana. He began his role by storing money and drugs and went on to meeting with Santana's co-conspirators and travelling to various destinations to negotiate drug deals for Santana. It is alleged that he negotiated such deals with the Applicant.

6. In August 1988, Castagnola flew to Bangkok on the directions of Santana. Santana told him to meet two brothers of the Applicant namely Chowalit and Somchai.  It is said that the purpose of the trip was to arrange for shipment of 100kg of heroin from Bangkok through Mexico to the United States of America. On his arrival in Bangkok, it is alleged that Castagnola met the Applicant and his brother Chowalit. Meetings are alleged with the three brothers in August 1988 and various discussions are said to have taken place. Castagnola alleges that he told the three brothers that he wanted 100kg of No. 4 heroin as soon as possible. There were discussions about Santana wanting to warehouse between 1,000-2,000kg of No. 4 heroin on the regular basis. I do not propose to go into further details about these meetings.

7. Castagnola returned to Bangkok in January 1989 to negotiate further with the Applicant. Various introductions were made. Castagnola met the Applicant again on February 1st 1989. They met again on the 2nd or the 3rd February, this time for Castagnola to sample marijuana. Castagnola alleges that he returned to the United States of America and sent a coded fax message to the Applicant which confirmed an order for, inter alia, 80 units of heroin for US$2.24m. This fax was allegedly sent to the Applicant's wife. Castagnola alleges that he wire transferred funds to the Applicant and that the Applicant confirmed receipt. On March 4th 1989, Castagnola alleges that he phoned the Applicant who was then in'Bangkok and that the Applicant confirmed that a shipment would be ready in a few weeks. Again in May 1989, Castagnola alleges that he phoned the Applicant to find out if the heroin had been shipped. It is alleged that the Applicant said that the heroin had been seized and that he was now in hiding. Castagnola asked for proof of the seizure and he alleges that the Applicant sent newspaper clippings showing that the drugs had been seized.

8. On 29th June 1989, Castagnola was arrested in Pennsylvania and charged with conspiracy to import heroin into the United States of America. I was also told that Santana had been arrested, pleaded guilty and was sentenced to life imprisonment.

9. On 15th September 1989, Castagnola pleaded guilty to these charges as well as to a charge of money laundering. Castagnola entered into an agreement with the United States whereby he agreed to co-operate with them in this investigation.

10. On 16th January 1990, the Applicant was indicted by a grand jury in the United States of America.

11. On 29th August 1991, Castagnola was sentenced to a total term of five years imprisonment.

12. On 2nd November 1991, the Applicant was arrested in Hong Kong.

13. On 30th December 1991, the Governor signed the Notice to Proceed.

14. The hearing before Mr. Wright took place on 2nd and 3rd March 1992.

The hearing before the Magistrate

15. Mr. Sarony appeared for the Applicant before the learned magistrate. The evidence placed before the learned magistrate consisted of two affidavits of William Behe who is an Assistant U.S. Attorney in the middle district of Pennsylvania. It is accepted that most of his evidence was hearsay. Also placed before the magistrate was the testimony of Dennis Malloy before the grand jury enquiring into the Applicant's case. Mr. Malloy is a special agent of the Drug Enforcement Agency of the United States. There was also an affidavit of Mr. Malloy placed before the magistrate. It was also conceded that most of Mr. Malloy's evidence contained hearsay. The final piece of evidence which is clearly not hearsay were the two affidavits of Castagnola himself.

16. Mr. Sarony submitted to the learned magistrate that the Attorney General's Guidelines on unused material applied to this case and he invited the magistrate to order the United States government to produce any other statements made by Castagnola. He was confident that such material would conflict with the two affidavits of Castagnola upon which the United States government relied.

17. Mr. McMeans who appeared for the United States government placed a detailed and^-most helpful written submission before the magistrate which contained an argument to the effect that the Attorney General's Guidelines did not apply to extradition proceedings.

18. The learned magistrate then gave his reasons for rejecting Mr. Sarony's submissions. He held that whereas such material may be relevant at trial, it was not relevant for extradition purposes. He referred to the role of the magistrate in extradition proceedings and he cited authority on this point.

19. Mr. Sarony next submitted that a large amount of the evidence placed before the court consisted of hearsay and was thus inadmissible under the law of Hong Kong. He argued that the prejudicial effect of reading such evidence could not be negatived by the magistrate.

20. Mr. McMeans most fairly and properly accepted that he could only invite the magistrate to consider evidence admissible under the law of Hong Kong and he further conceded that there was, amongst the papers, a great deal of inadmissible evidence. He submitted that in extradition proceedings it was usual for inadmissible evidence to be included amongst the papers placed before the magistrate, but the magistrate would ignore the inadmissible parts and act solely upon the admissible parts.

21. The learned magistrate rejected Mr. Sarony's submissions in the following terms:

" The documents before me are in what may be referred to as the 'usual form' in extradition proceedings initiated by U.S. government.

Magistrates daily make rulings on questions of admissibility of documents and they continue to deal with the matter. Sitting as both judges of law and judges of fact involve a regular practice of judicial schizophrenia.

There is nothing either unusual or untoward in having to go through extradition papers and sift out the admissible portions. To alleviate concern by respondent, I put on record that I shall disabuse my mind of portions of the documents which are inadmissible.

The matter may proceed on the present documents."

22. The hearing then continued with Mr. Sarony informing the magistrate that:

" In view of the rulings this morning respondent does not contest extradition any further but reserves his position as to those two points."

23. After evidence of identity had been called, the learned magistrate gave the following ruling:

"I have read the papers submitted by the US Government. I am satisfied that

1. there has been due compliance with the provisions of the Treaty;

2. the respondent before me is the person whose extradition is sought in these proceedings;

3. the admissible portions of the evidence in the papers made out a prima facie case against the respondent; and

4. in the circumstances he should be extradited to stand trial on the charges in the order to proceed dated 30.12.91.

The respondent is to be detained in custody pending his extradition to the United States. That will not occur for a period of 50 days during which time the respondent may apply for a writ of habeas corpus."

Points raised before me

24. Before me, Mr. Sarony renewed his arguments that inadmissible evidence should not have been placed before the magistrate and that the United States government should have disclosed and/or the magistrate should have ordered disclosure of the unused material referred to above.

25. Mr. Sarony broadened-his. argument by a submission based on the English Divisional Courts, as yet, unreported judgment in Osman (No. 7). This submission was based on the proposition that the failure to disclose this material resulted in an unfair hearing which vitiated the decision of the learned.magistrate.

26. I propose to deal with each submission separately.

Inadmissible evidence

27. Mr. Sarony conceded that the evidence of Castagnola consisted of evidence admissible against the Applicant which implicated him in the conspiracy alleged. However, he contended.that, notwithstanding the learned magistrate's express statement to the contrary, it was not possible for the magistrate to ignore the prejudicial effect of the inadmissible evidence.

28. It is quite clear that Mr. McMeans drew the learned magistrate's attention to the "inadmissible evidence. There can be no question of any confusion as to what was inadmissible and what was not. Castagnola's evidence was ex facie quite sufficient to satisfy any Tribunal that a prima facie case had been  made out against the Applicant.

29. As to the ability of a professional judicial officer to put out of his mind material which he holds to be inadmissible, Mr. Marshall Q.C. who appeared with Mr Bruce for the Government of the United States of America, reminded me of certain observations of Lord Griffiths in Attorney General of Hong Kong v. SIU Yuk-shing (1989) 1 WLR 236 at 241 where he said:

" It is not without significance that this was a trial by judge alone. If the judge had been sitting with a jury he would have had to weigh carefully' the probative value of such a previous conviction against the prejudice to the defendant that would be likely to arise in the minds of the jury. The. risk of such prejudice overbearing the probative value of evidence is of infinitely less significance when a case is tried by a judge alone. The judge must of course guard against any such result but his whole background and training have fitted him to do so. In a trial by a judge alone the exercise of excluding the evidence on grounds of prejudice becomes somewhat unreal when it is remembered that the judge must be informed of the nature of the evidence in order to rule upon whether or not it is admissible. If the judge having ruled it inadmissible is to be trusted to put the evidence out of his mind he can surely be trusted to give it only its probative, rather than its prejudicial, weight if he rules that it is admissible. The trial judge in the present case showed an entirely correct approach to this aspect of the case when he said: ...."

30. In my judgment, there is nothing whatsoever in this point. True it is that in the bundle of documents received from the United States of America there was material which was inadmissible under Hong Kong law. This material was pointed out to the magistrate and it is patently obvious that he only considered and took into account the admissible evidence, namely the affidavits of Castagnola. It has been said time and time again that judges and magistrates are not juries and are well capable of distinguishing between the admissible and the inadmissible. I am frequently invited to look at material on a de bene esse basis and if I subsequently decide that the material is inadmissible I ignore it. Lawyers are trained to sift evidence and the argument that Mr. Wright was unable to do this in this case where the lines were so clearly drawn is an argument bordering on the impertinence.

31. Although I am quite satisfied that there is no merit whatsoever in this ground of complaint, I must nevertheless express my surprise that more effort is not made by the United States authorities to ensure that the material upon which the United States seeks to rely in extradition proceedings does in fact comply with the rules of evidence of the lex fori. The United States of America has made many requests for extradition from Hong Kong and, no doubt, will continue to do so, and thus it should by now know what is and is not admissible in criminal proceedings in Hong Kong. I would, in any event, be surprised if the inadmissible material in this case would be admissible in proceedings in the United States of America. I can only express the hope that in future cases, the United States of America will have more regard to the rules of evidence in Hong Kong when preparing evidence to be submitted in extradition proceedings in Hong Kong. Although I am satisfied that in this case the magistrate correctly relied on the admissible evidence, it is important to avoid leaving a sense of injustice in the mind of a fugitive, however untenable that view might be as a matter of strict law.

The Attorney Generals Guidelines on unused material

32. Mr. Bruce was good enough to confirm to me from the Bar that the Attorney General's Guidelines are applied in Hong Kong.. He told me this from his specialist knowledge as one time head of the trial preparation unit of the Attorney General's Chambers. The Attorney General of Hong Kong has quite properly and fairly recognized and applied the guidelines of his English counterpart which were laid down in 1982.

33. Mr. Sarony submitted that one only has to read the guidelines to see that they apply at the committal stage and are not limited to trials on indictment alone. Be that as it may, Mr. Bruce informed me that in Hong Kong the guidelines have not been applied at the committal stage, but only at the trial stage.

34. The Attorney General of Hong Kong is, of course, free to adopt or modify the guidelines as he sees fit taking into account the special circumstances of Hong Kong. I was told that in Hong Kong, most committals are paper committals and thus consideration of unused material usually becomes relevant post committal.

35. Mr. Sarony quite properly did not attempt to challenge the information given to me by Mr. Bruce and I am, thus, satisfied that the guidelines have not been applied in Hong Kong at the committal stage.

36. If the guidelines are not applicable at the committal stage in a criminal case in Hong Kong, it follows inexorably that they would not be applicable to extradition cases before a magistrate.

37. If the guidelines were applicable to committals for trial, it would still be contended that they are not relevant to extradition proceedings.

38. Mr. Marshall Q.C. made a number of points in support of his submission that the guidelines could not possibly be applicable to extradition proceedings.

39. He pointed out that a magistrate hearing extradition proceedings has no power to make orders for disclosure of the material sought in this case. Extradition proceedings are permitted as a result of the  Anglo/USA treaty and Schedule 1 of the 1989 Extradition Act which sets out the obligations of the contracting parties. Article VII(3) of the Treaty provides:

"(3) If the request relates to an accused person, it must also be accompanied by a warrant of arrest issued by a judge, magistrate or other competent authority in the territory of the requesting Party and by such evidence as, according to the law of the requested Party, would justify his committal for trial if the offence had been committed in the territory of the requested Party, including evidence that the person requested is the person to whom. the warrant of arrest refers."'

Article IX(2) of the Treaty provides:

" If the requested Party requires additional evidence or information to enable a decision to be taken on the request for extradition, such evidence or information shall be submitted within" such time as that Party shall require."

40. Mr. Marshall submits that the additional information referred to relates to the decision to extradite and the decision to issue the notice to proceed - both executive functions - not the decision of the magistrate to commit to prison. There is nothing in this Article which gives the magistrate power to require disclosure from the Respondent or the Applicant.

41. As Lord Morris said in Reg. v. Governor of Brixton Prison ex parte Koltronis (1971) A.C. 250:

"It is important, I think, to observe. that the function of the magistrate is one which is defined by statute. He has a highly important but yet limited part to play in the procedure which may - or which may not - lead to the result that the requisition made to the Secretary of State will meet with compliance. But. the magistrate is not called upon to make any decision as to whether the 'fugitive criminal' will in fact be surrendered. That is for the Secretary of State. The duty of the magistrate is laid down by section 10. If he is dealing with the case of a fugitive criminal who is alleged to have been convicted of an extradition crime, he must commit the fugitive criminal to prison 'if such evidence is produced as' (subject to the provisions of the Extradition Act, 1870) 'would, according to they law of England, prove that the prisoner was convicted of such crime...'

If such evidence is not produced, the magistrate must order the prisoner to be discharged. If the magistrate finds that the prisoner was convicted of an extradition crime, then, having committed him to prison (in accordance with a precise statutory direction), the magistrate is under a statutory duty forthwith to send to the Secretary of State a certificate of committal."

42. The magistrate in Hong Kong is concerned with the functions set out in paragraphs 6 and 7 of the First Schedule to the 1989 Extradition Act. Paragraph 7 provides:

"(1) In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorizing the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this Schedule) would, according to the law of England and Wales, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England or Wales, the metropolitan magistrate shall commit him to prison, but otherwise shall order him to be discharged."

43. There is no discretion vested in the magistrate once he is satisfied of the matters set out in para. 7.

44. An example of the limited role of the magistrate in such proceedings is exemplified by R. v. Governor of Pentonville Prison ex parte Sinclair [1991] 2 WLR 1028 where it was held that an extradition magistrate could not stay extradition proceedings on the grounds of abuse ofprocess of the court whereas there is now a long line of authority in the English Court of Appeal and in Hong Kong to the effect that a magistrate in non-extradition proceedings has such power. As Lord Griffiths remarked in Sinclair, none of those cases has yet had to be considered by the House of Lords.

45. Reference in paragraph 6 of the First Schedule to the extradition magistrate having the same jurisdiction and power 'as near as may be' as a magistrate hearing proceedings for an indictible offence clearly means as near as may be consistent with the extradition legislation. As an example, cross-examination of deponents in extradition cases is not permitted.

46. Even if the material was disclosed, it would not be admissible in extradition proceedings before a magistrate in Hong Kong. If there was an existence a statement from Castagnola which was inconsistent with his affidavit, it could not just be introduced into evidence. In the normal way, it would have to be put to Castagnola in cross-examination, so that he could proffer an explanation as to why he gave two inconsistent statements. If it be alleged that he has given an oral statement to a third party which contradicts the evidence contained in his affidavit, this again would have to be put to him to see if he agrees that he actually said those words. If he does not agree, the third party would have to be called and he too would have to be questioned about his note-taking accuracy, etc. Quintessentially, these are all matters for the jury at trial.

47. It is, of course, a fundamental assumption of extradition proceedings that the Applicant will receive a fair and just trial in the United States of America when all these matters will no doubt be gone into in some detail.

48. I am quite satisfied that it would be wholly inconsistent with the extradition legislation and treaty to hold that a magistrate hearing extradition proceedings has the power to order disclosure of the sort of material requested in this case.

49. The conclusion which I have arrived at is supported by authority from New Zealand and England. In Flickinger v. Crown Colony of Hong Kong (1990) 3 NZLR 372, Williamson J. held that there was no jurisdiction for a District Court to order general discovery in an application for extradition. A number of cases in this area were cited to the learned judge and he noted that not one of them was an extradition case.

50. At page 19 of Osman (No. 7), Woolf LJ had the following to say after having referred to observations of Lords Reid and Wilberforce in Wiseman v. Bornemann (1971) A.C. 297 on the need for fairness before all tribunals:

" However the question here is not whether the applicant should  have an  opportunity to deal with the evidence which was relied on by the Hong Kong Government, but the extent to which he is entitled to know about evidence of which the Hong Kong Government at least ought to have been aware, according to the applicant, on which the Hong Kong Government is not relying. Bearing in mind the purpose of the legislation, the conclusion to which I have come is that it would not be right to infer any general obligation here on the Hong Kong Government to make the sort of disclosure described in the Attorney-General's Guidelines As To The Information The Prosecution Should Make Available To The Defence (1982) 74 CAR 302. This is the position notwithstanding the fact that those guidelines do have application to the extent indicated in the guidelines to committals for trial in this country. In the course of her helpful submissions, Miss Montgomery pointed out the practical difficulties which would arise as a result of implying such a duty in the case of some of the countries whose procedures are different to those in this country to which the legislation applies. It appears to me, that an adequate standard of fairness, so far as disclosure is concerned, in the absence of any express undertaking given to a defendant, can be achieved by the statutory ground for applying for habeas corpus contained in section 11(c). In considering that ground, in my judgment the term "good faith" has to be given a reasonably generous interpretation so that if the proceedings were brought for a collateral purpose, or with an improper motive and not for the purpose of achieving the proper administration of justice, they would not be regarded as complying with this statutory requirement. Likewise the accusations would not be made in good faith and in the interests of justice if the prosecution deliberately manipulates or misuses the process of the court to deprive the defendant of a protecion to which he is entitled by law."

51. [I should add that in Hong Kong we do not have the equivalent of section 11(c) and the final decision still rests with the Governor.]

52. I think it may also be helpful to cite a passage from the judgment of Houlden JA in the Canadian case of Re United States of America and Smith (1984) 10 CCC (3d) 540 where the learned judge sets out succinctly the purpose of extradition proceedings in the following passage commencing at page 554:

"The purpose of an extradition hearing is not to determine the guilt or innocence of the fugitive. It is merely an inquiry to determine whether there is sufficient evidence to warrant sending the fugitive to the demanding State so that he may stand trial: Re State of Wisconsin and Armstrong, supra, at pp. 276 and 297. The extradition judge is not required to weigh the evidence or to decide the credibility of witnesses; his duty is to determine if the evidence would justify the committal of the fugitive for trial if the alleged crime had been committed in Canada: United States of America v. Shephard, [1977] 2 S.C.R. 1067, 30 C.C.C. (2d) 424, 70 D.L.R. (3d) 136, sub nom. United States of America v. Sheppard. The fugitive can call witnesses if he so desires. He is given an opportunity to point out weaknesses or deficiencies in the evidence of the demanding State and to present argument as to why he should not be extradited, but there is no final determination of his rights. The trial and the full determination of the fugitive's rights will take place in the courts of the demanding country. It is a basic assumption of extradition proceedings that the fugitive will receive a fair and just trial in the demanding State.

In Vardy v. Scott, supra, a justice of the peace was taking depositions pursuant to s. 31(1) of the Extradition Act. The person accused of the extradition crime wished to attend the proceedings and to cross-examine the witnesses. The examination under s. 31(1) occurs, of course, at an earlier stage of extradition proceedings than those with which we are concerned in this case. Dickson J., in holding that the accused had no right to attend and cross-examine the witnesses, said (at p. 306 S.C.R., p. 174 C.C.C., p. 441 D.L.R.):

A further consideration in determining the scope of s. 31(1) lies in the effectiveness of the right claimed. If the submission on behalf of Vardy is valid, the Extradition Act would become ineffective as a means of extraditing fugitive criminals, for if a fugitive has a right of cross-examination of witnesses giving evidence by way of deposition, he should be afforded an opportunity for the effective exercise of that right. This would require, minimally, that the fugitive be given notice, that he be permitted to retain counsel, and that he be advised, personally or through counsel, of the time and place when each deposition is to be taken. If there is a genuine right of cross-examination imported into the Extradition Act from s. 468 of the Code, it would not do to leave the exercise of the right to chance, available only if the accused or his counsel happened to learn fortuitously that a deposition was to be taken at a certain time and place. When one recalls the parts of the world in which fugitive criminals may seek refuge, the language and other difficulties in communicating with authorities in those countries, and the complicated legal-diplomatic lines of communication in extradition matters, it is obvious that a right to notice would frustrate or defeat the entire extradition process.

Appellant would import into a pre-trial, and indeed pre-inquiry, procedure most of the panoply and trappings of a criminal trial - and all of this in respect of proceedings in which time may be of the essence.

These comments are also apt, in my opinion, in considering whether a fugitive should be given the right to cross-examine on affidavits used at an extradition hearing. Although, in the present case, permitting cross-examination might not cause too great difficulty because all the deponents are located in the United States, if the witnesses were located in many countries, permitting cross-examination would in the words of Dickson J., "frustrate or defeat the entire extradition process"."

The Craven debriefing

53. Mr. Sarony invited me to admit into evidence an affidavit of the Applicant which exhibited a debriefing note of Castagnola by drug enforcement agent Craven. This document had apparently been obtained recently by the Applicant's United States lawyer and it was submitted that what Castagnola is alleged to have told Craven about these matters casts doubt on the veracity and reliability of Castagnola's evidence in this case.

54. This debriefing note was not before the learned magistrate. I expressed some doubt about the relevance and admissibility of material that was not before the learned magistrate, but I agreed to look at it de bene esse and to rule upon it in this judgment and comment upon it if I felt it was admissible.

55. My doubts about this document's admissibility stemmed from the basic proposition that in judicial review proceedings one was concerned with the decision making process and not with material which came into being after the decision challenged had been made. I have particularly in mind some observations of Lord Reid in Reg. v. Governor of Brixton Prison ex parte Schtracks (1964) A.C. 556 at 580 where he said:

"The accused sought to adduce further evidence before your Lordships in order to show that on the whole material now available it would be improper to commit him. In my judgment, we are not entitled to look at such evidence and we have not done so. owing to the restricted character of habeas corpus proceedings, a court is not concerned with anything that comes to light after committal. This could easily lead to injustice if the accused had no other remedy; there may well be cases when new evidence flows quite a different light on the material originally before the magistrate. But that is a matter which the Secretary of State is entitled to consider when deciding whether to have granted extradition."

56. Although I accept the general rule as stated by Lord Reid, it is fair to point out that there had been certain developments in the law and procedure relating to judicial review proceedings since his observations in 1964. The general rule in judicial review proceedings is however, as stated by Lord Reid , but I note, that in Osman (No. 7), the court did look at documents which were not placed before the learned chief stipendiary magistrate. I would not want this Applicant to have any sense of injustice and, therefore, I propose to admit his affidavit which exhibits the Craven report. I admit it due to the unusual circumstances of the case and certainly not on the basis of any general principle that fresh evidence is generally admissible in these proceedings.

57. Mr. Sarony compared what agent Craven had recorded C'astagnola as saying with what Castagnola says in his evidence before me. There is, of course, the world of difference between what a witness says himself in evidence which he reads, understands and signs and what someone else records him as saying during the course of a long and detailed interview ranging over a substantial period of time and involving many other individuals.' The Craven report runs in some 42 pages and, as I say, involves reference to a number of other individuals.

58. I am, however, prepared to agree with Mr. Sarony that there are at least differences of emphasis between the two versions. But one thing is clear beyond doubt and that is whatever way one reads the Craven debriefing, Castagnola is still implicating the Applicant in this very conspiracy. The differences which do exist whether they be differences of emphasis or examples of unreliability on the part of Castagnola will have to be gone into at trial which I have to assume will be a fair one. I cannot see how any magistrate could have come to a different conclusion on prima facie case even if the Craven debriefing had been placed before him. To have held on this and the other evidence placed before him that no prima facie case had been made out against the Applicant in respect of this conspiracy would have been a perverse decision. It may well be that the Craven debriefing will be a great assistance to the Applicant at his trial in attempting to shatter the credibility of Castagnola. Nevertheless, a common thread running through all the admissible evidence in this case, and also running through the Craven debriefing, is that this Applicant was heavily involved in this conspiracy.

59. I should add that Mr. Sarony submitted that there was evidence that the drugs the subject matter of this alleged conspiracy were destined for Mexico and not the United States. I am quite satisfied that there was before the Magistrate sufficient evidence that the drugs were intended for the United States even though one of the routes might have been via Mexico.

The unfairness argument

60. Mr. Sarony submits that the magistrate's decision to commit this Applicant has been vitiated by the unfairness involved in the United States of America not placing before the magistrate all the material that he now seeks.

61. He seeks to draw an analogy with Osman (No. 7) where an order for certiorari was sought in order to quash the Chief Magistrate's decision to commit given as long ago as June 1st 1987. It was there contended that the magistrate's decision was void and the grounds upon which relief was sought stated the following:

"The order of the Chief'Stipendiary Magistrate (the committal order) was made in breach of natural justice. The requesting state, the Government of Hong Kong, withheld from both the Applicant and the court vital and relevant material, going to the merits and strength of the prosecution against the Applicant. The Applicant has been deprived of the elementary right to be notified of evidence known to the Hong Kong Government which would have afforded to him defence to the charges which he faced and had thereby suffered great prejudice. The magistrate has been denied the benefit of that evidence in the adjudicating process and the proceedings before him had been thereby vitiated and his circumstances impugned."

62. The major difference between Osman and the present case lies in the fact that Osman had gained possession of documents which he contended supported his grounds of relief. Some documents had been properly obtained by him through discovery in civil litigation to which he was a party. The Jalil documents were sent anonymously to Osman's former solicitor. Thus Osman had the documents in' his possession which he submitted showed a cover up by the Hong Kong Government and further were allegedly inconsistent with the prosecution case and this he alleged would or could have affected the magistrate's decision to commit him.

63. In the present case, apart from the Craven debriefing to which I have already made reference, the Applicant is not in possession of documents which cast doubt on the United States of America's case against him. He may well hope that there is something inconsistent, for example, in the evidence that Castagnola gave at the trial of one Hill or that there are in existence other and different versions of Castagnola's evidence against him but he does not know this and he cannot possibly mount an allegation against the United States of America that they have suppressed evidence which they know is helpful to his case.

64. The allegation of unfairness based on the non-disclosure thus far of the requested material is, quite clearly in my mind, in the nature of a fishing expedition. At least, Osman had the documents upon which he sought to rely in his possession and they were looked at by the Divisional court who concluded that they did not add to or detract from his case.(The Osman court was also concerned with issues of Public Interest Immunity which has not been raised before me.]

65. The Applicant has got nowhere near to establishing that the allegations made against him are not made in good faith. I am not satisfied that the process leading to committal has been corrupted by the United States of America in a manner which has resulted in any unfairness to this Applicant.

66. When it comes to the question of disclosure, it is as well to bear in mind the words of Lord Reid in Wiseman v. Bornemann (supra) where after stating that natural justice requires a fair procedure and that the courts for some time, supplemented procedures laid down in legislation went on to add this most important caveat:

"But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require . additional steps would not frustrate the apparent purpose of the legislation."

67. Mr. Marshall also referred me to Pearlberg v. Varty (1972] 1 WLR 534 where at page 540 Lord Hailsham said this:

"Despite the majestic conception of natural justice on which it was argued, I do not believe that this case involves any important legal principle at all. On the contrary, it is only another example of the general proposition that decisions of the courts on particular statutes should be based in the first instance on a careful, even meticulous, construction of what that statute actually means in the context in which it was passed. It is true, of course, that the courts will lean heavily against any construction of a statute which would be manifestly unfair. But they have no power to amend or supplement the language of a statute merely because on one view of the matter a subject feels himself entitled to a larger degree of say in the making of a decision that the statute accords him. Still less is it the functioning of the courts to form first a judgment on the fairness of an Act of Parliament and then to amend or supplement it with new provisions so as to make it conform to that judgment. The doctrine of natural justice has come in for increasing consideration in recent years, and the courts generally, and your Lordships' House in particular, have, I think rightly, advanced its frontiers considerably. But at the same time they have taken an increasingly sophiscated view of what it requires in individual cases. As Tucker L.J. observed in Russell v. Duke of Norfolk (1949) 1 All E.R. 109, 118, in a passage repeatedly cited with approval in your Lordships' House

"There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly; I do not derive much assistance from the definitions of natural justice which had been from time to time used but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case."

The taxpayer in this case will be given a reasonable opportunity of presenting. his case at the proper time, if not at the stage he demanded it, that is when the proceedings had not yet reached the point of judicial determination."

68. In the same case at page 547 Lord Pearson pointed out that:

" Fairness, however, does not necessarily require a plurality of hearings or representations and counter-representations."

69. These important observations have to be borne in mind in the context of extradition proceedings where the requesting state has to do no more than established a prima facie case for a committal order to follow automatically. No determination whatsoever as to the Applicant's guilt has been made and it is' to be assumed that he will enjoy a fair and impartial trial. Further, the decision to return a fugitive is still with the Governor and he can always take into account sentations based upon material which. may have come to light after the magistrate's decision.

70. I would also like to reiterate what Woolf L.J. said in Osman (No. 7) namely that:

" Where a tribunal is not at fault (even if it comes to a final as opposed to a prima facie decision) there are limits as to the circumstances in which the court will intervene on the grounds of breach of natural justice. This was made clear by the House of Lords in R. v. the Home Secretary ex parte Al-Mehdawi (1990) 1 AC 876. In the case of a trial it is necessary to establish circumstances which are analogous to fault, collusion and perjury. This can exist, particularly where there is a duty to disclose, if there is "suppressio veri" which had the same effect as a "suggestio falsi" in distorting and vitiating the process leading to conviction."  (Per Lord Bridge at page 896) The same approach is reflected in the even more recent decision of R. v. Bolton Justices exparte Scally (1991) 2 WLR 239...."

71. Very recently, the Supreme Court of Canada had cause to comment on the very special nature of extradition proceedings. In Kindler [1991] 84 DLR (4th) 438, the was faced with an appellant who had been convicted in the United States of murder and the death penalty had been recommended by the jury. Before sentence, he managed to escape to Canada where the United States of America sought his extradition. This was resisted on the grounds that to return him would be in violation of section 12 of the Canadian Charter of Rights and Freedoms which give a right not to be subjected to any cruel and unusual treatment orpunishment. A majority of the court dismissed Kindler's appeal and in so doing, and speaking for the majority, McLachlin J. drew a distinction between the extradition escape process and the criminal trial process. At page 488 he said:

" While the extradition process is an important part of our system of criminal justice, it would be wrong to equate it to the criminal trial process. It differs from the criminal process in purpose and procedure and, most importantly, in the factors which render it fair. Extradition procedure, unlike the criminal procedure, is founded on. the concepts of reciprocity, comity and respect for differences in other jurisdictions.

This unique foundation means that the law of extradition must accommodate many factors foreign to our internal criminal law. While our conceptions of what constitutes a fair criminal law are important to the process of extradition, they are necessarily tempered by other considerations.

Most importantly, our extradition process, while premised on our conceptions of what is fundamentally just, must accommodate differences between our system of criminal justice and the systems in place in reciprocating states. The simple fact is that if we were to insist on strict conformity with our own system, there would be virtually no state in the world with which we could reciprocate. Canada, unable to obtain extradition of persons who commit crimes here and flee elsewhere, would be the loser. For this reason, we require a limited but not absolute degree of similarity between our laws and those of the reciprocating state. We will not extradite for acts which are not offences in this country. We sign treaties only with states which can assure us that their systems of criminal justice are fair and offer sufficient procedural protections to accused persons. We permit our Minister to demand assurances relating to penalties where the Minister considers such a demand appropriate. But beyond. these basic conditions precedent of reciprocity, much diversity is, of necessity, tolerated.

Thus this court, per La Forest J., recognized in R. v. Schmidt (1987), 33 C.C.C. (3d) 193 at pp. 214-5, 39 D.L.R. (4th) 18, [1987] 1 S.C.R. 500, that our extradition process does not require conformity with Canadian norms and standards. The foreign judicial system will not necessarily be considered fundamentally unjust because it operates without, for example, the presumption of innocence and other legal safeguards we demand in our own system of criminal justice.

72. This passage is, in my Judgment , helpful in that it underscores the very special nature of extradition proceedings having its roots in-international comity.  To supplement the local legislation, which gives effect to treaty obligations, by imposing doctrines of fairness applicable to domestic proceedings is to run a real risk of interfering with such treaty obligations. I do not rule out the application of the principle of fairness to extradition proceedings, but I would reserve them for the most exceptional situation which in my judgment the present case is not.

73. As I am satisfied that there is, in this case, no lack of good faith nor representations made by the United States of America which would place upon them any additional duty, it follows that the submission based on unfairness must be rejected.

The relief sought

74. Had I been persuaded that the magistrate's decision was wrong, I would have quashed it. I would not have granted the orders of mandamus nor the declarations sought. Had I discharged the Applicant and had he been re-arrested and the proceedings begun again, I am confident that the United States of America would have regard to the observations I would have expressed in this judgment. It could not be appropriate for this court exercising its supervisory jurisdiction over proceedings in a magistrate's court to order a foreign state to frame its evidence in any particular way. The United States of America would only ignore the court's observations in an appropriate case at its peril.

75. Although no substantial arguments were raised on the relationship between habeas corpus and judicial review save that Mr. Marshall contended that judicial review was inappropriate in this case, it is useful to have regard to the judgment of Lord Donaldson MR in Reg. v. Home Secretary ex parte Muboyayi (1991) 3 WLR 442 where he discusses in detail the relationship between these two remedies.

Conclusion

76. Both the application to quash the return to the writ of habeas corpus and the application for judicial review are dismissed. I propose to make a costs order nisi in favour of the United States of America.

77. Finally, I would like to thank all three counsel for their assistance, especially for providing me with most helpful written submissions which enabled us to get through a mass of material in the allotted two days.

Representation:

Appearances

Neville Sarony Q.C. instructed by Edward C.T. Wong & Co. for the Applicant.

William Marshall Q.C.. and Andrew Bruce instructed by the Crown Solicitor for the United States of America.