Re Paul Kan
Read the full judgment text of HCMP 1273/1992 on BabelCite. This High Court CFI judgment.
1. This is an application by Mr Paul Kan for a writ of habeas corpus.
Cited by 1 case
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HCMP001273/1992 MP No. 1273 of 1992 ---------------------- H E A D N O T E ----------------------- EXTRADITION PROCEEDINGS - WARRANT OF ARREST - NOT NECESSARY TO SET OUT ALL OFFENCES IN THE WARRANT - NO RIGHT TO GENERAL OR SPECIFIC DISCOVERY - NO POWER TO MAKE SUCH ORDER. IN THE SUPREME COURT OF HONG KONG HIGH COURT MISCELLANEOUS PROCEEDINGS NO. 1273 OF 1992 ------------------
------------------ Coram: Hon. Chan J., in Court Dates of hearing: 8th - 9th June 1992 Date of delivery of judgment: 3rd July 1992 --------------------- J U D G M E N T ---------------------- 1. This is an application by Mr Paul Kan for a writ of habeas corpus. The extradition proceedings 2. The Government of the United States of America seeks his extradition to the United States to stand trial on two drug related offences. The events leading to the present proceedings are as follows. On the 10th December 1991, a Warrant of Arrest was issued by a United States magistrate judge ordering the arrest of Mr Kan charging him with the offence of "conspiracy to possess (1) kg or more, that is, approximately 3,600 g. of heroin, a Schedule I narcotic drug controlled substance" in violation of certain provisions in the United States Code. 3. On the 31st December, 1991 the United States Grand Jury, by an indictment, charged Mr Kan and five other persons with two counts of offence, namely, Count 1, that between July 1991 and December 1991 Mr Kan and five others conspired to possess with intent to distribute certain quantities of heroin and Count 2, that on or about the 6th December 1991, Mr Kan and these five other persons knowingly and intentionally possessed with intent to distribute certain quantities of heroin. The details of these two counts are set out in the Grand Jury Indictment appearing on pages 21 to 26 of the bundle before me which is in fact Exhibit KKY-1 in the affidavit of Kam Koon Ying sworn on the 2nd June 1992. 4. In January 1992, the U.S. Government made a request for the extradition of Mr Kan. On the 1st February 1992 an Order to Proceed was issued by the Governor of Hong Kong directing a magistrate in Hong Kong to proceed in accordance with the 1976 Order in Council, the Extradition Act 1989 and the Schedule thereto in respect to Mr Kan. The Order to Proceed sets out two crimes of which Mr Kan was accused. These crimes are the translation into Hong Kong law the two counts set out in the Grand Jury Indictment. Crime one alleges that between July 1991 and December 1991 Paul Kan (also known as Paul Chien) together with Wong Kwok Wah did conspire with each other and with other persons to traffick in a dangerous drug contrary to common law and ss.7 and 39 of the Dangerous Drugs Ordinance, Cap.134 and Crime two alleges that between July 1991 and December 1991, Paul Kan unlawfully trafficked in a dangerous drug, namely approximatley 3.5 kg of heroin contrary to ss.4 (1) (a) and (3) of the Dangerous Drugs Ordinance, Cap. 134. 5. Between 21st and 23rd April 1992, the extradition proceedings were heard before a magistrate Mr Y.W. Yung. 6. During the hearing, the learned magistrate made certain rulings regarding the admissibility of certain parts of the evidence adduced before him by way of depositions and affirmations. He was also satisfied that there was a prima facie case regarding the chain of evidence and a prima facie case for both these crimes. Upon the application by counsel for Mr Kan for the production by the U.S. Government of a tape referred to in the depositions, the learned magistrate refused such application. Mr Kan then made an unsworn statement. After certain submissions from counsel for Mr Kan and counsel for the U.S Government, the learned magistrate made an order of committal. The allegations 7. The allegations made against Mr Kan as disclosed in the depositions and affirmations were as follows. One Madam Tse Suet Fung had known Mr Kan for over ten years. Some time in July 1991, Mr Kan telephoned Madam Tse and asked her if she was willing to be a broker of a 30 unit shipment of heroin. Mr Kan said that he and two others had invested in that shipment, that one of them would be sending it to California, that the price for the heroin was US$67,000 per unit, that the shipment would arrive after the 20th November 1991 and that he would contact Madam Tse in due course. Madam Tse then talked to her boyfriend, one Richard Chan and they agreed to be a broker. Between 5th November and 6th December 1991, Madam Tse and Mr Kan had discussed the logistics of the shipment. On the 26th November 1991, Mr Kan telephoned Madam Tse and said that the heroin had arrived and that he would later contact Madam Tse and Mr Chan to obtain a portion of the shipment for distribution in California. On the 6th December 1991, Mr Richard Chan, upon instructions received on a pager, arranged to pick up five units of heroin from one. Wong Kwok Wah. After having received the heroin, Mr Richard Chan turned it over to the United States Drug Enforcement Agency ("DEA"). On the 9th December, on the instruction of the DEA agents, Mr Richard Chan made a telephone call to Mr Kan complaining about the poor quality of the heroin received. This conversation was taped. The five units which were turned over to the DEA agents were subsequently analysed and found to be heroin. The foreign warrant 8. In the application before me for a writ of habeas corpus, counsel for Mr Kan raised three objections. The first objection relates to the Warrant of Arrest issued by the United States magistrate judge. This is usually referred to as the foreign warrant. Counsel accepted that that was a warrant of arrest and that it was a judicial document. However, he criticised the warrant as defective in two ways. first, it did not bear the name of Mr Kan in the title appearing on the warrant. Second, while the U.S. Attorney Mr Christopher Johnson in his affidavit deposed to a warrant which "is a judicial document authorising the arrest of the named defendant (i.e. Mr Kan) for the crimes set forth in the warrant", the warrant which was actually exhibited in the affidavit set out only one crime - the conspiracy count. Counsel argued that there was nothing in the 1989 Act or the Extradition Treaty which specified what the warrant must set out, and in particular, whether there should be one warrant of arrest for all the crimes alleged or there should be one warrant for one crime only. He queried whether the warrant of arrest produced before the court was the one referred to by Mr Johnson and whether that warrant was valid. If the warrant produced was the wrong one or was ineffective, then the order of committal should not have been made. The onus was on the U.S. Government to prove that the detention of Mr Kan was lawful. Furthermore, even if the warrant produced in court was valid, there was still no foreign warrant against Mr Kan in respect of Count 2, and therefore, the magistrate had no authority in respect of that count. 9. On the other hand, counsel for the U.S. Government argued that there was nothing in paragraphs 6 and 7 of Schedule I to the 1989 Act about the contents of a. warrant. There was no requirement that there must be correspondence between the foreign warrant and the Governor's Order to Proceed. Counsel referred me to the cases of R. v. Jacobi and Hiller (1881) 46 LT 595 and R. v. Governor of Pentonville Prison, ex parte Budlong and Another (1980) 1 All ER 701 which held that it was not necessary to set out the particulars of crime in the warrant. Counsel further submitted that in extradition proceedings the magistrate had limited jurisdiction and he was concerned only with the alleged conduct of the person to be extradited and not the crimes. He argued that there were other safeguards in the Act. It was therefore not necessary to set out all the offences in the foreign warrant. 10. It is not disputed that the law applicable to the present extradition proceedings is the Extradition Act 1989 which repealed the Extradition Acts 1870 - 1932. The repeal did not affect the operation of the United States of America (Extradition) Order 1976 which applied the English Extradition Acts to Hong Kong. Since no new Order in Council was made pursuant to the 1989 Act, by virtue of s.1 (3) of the 1989 Act, Schedule I thereof applies to Hong Kong. That Schedule I contains provisions which are basically similar to those in the 1870 Act. The 1989 Act is of course meant to give effect to the Extradition Treaty and is therefore subject to that Treaty. 11. The relevant provisions in the Extradition Treaty regarding the requirements for an extradition are as follows :
12. It is clear from these provisions that the foreign warrant is an essential document without which the magistrate cannot make an order of committal. While it is necessary to have the warrant authenticated, there is, however, no requirement regarding the contents of such warrant. The definition of warrant specified in paragraph 20 of Schedule I to the 1989 Act "includes any judicial document authorising the arrest of a person accused of crime". It can be noted that the definition refers to the person "accused of crime" generally and not accused of any particular crime or crimes. 13. In my view, the purpose of having a foreign warrant shown or produced to the Governor before he issues an Order to Proceed and to the magistrate before he makes an order of committal is to satisfy the Governor or the magistrate that the person to be extradited is wanted by the requesting country to stand trial for having committed some extradition crime or crimes. It is sufficient that the authenticated foreign warrant produced before the magistrate meets the following criteria:
As Stephen J. said in R. v. Jacobi and Hiller, supra, at p.597, "the warrant need show nothing more than the fact that it has been issued by some competent authority and is in fact an official document for the arrest of the prisoner." 14. A warrant is a lawful authority under which a person is arrested. That person is, of course, entitled to know for which offence he is arrested. Hence, the warrant must contain at least one offence with which the prosecution genuinely intends, at the time the warrant is issued, to charge that person. Even if he is wanted for several offences, it is not necessary to set out all of them in the warrant. Nor is it necessary to have several warrants of arrest issued against him. To arrest a wanted person, one warrant is sufficient. Very often, the offence set out in the warrant used to arrest the person is but one of the many offences with which he is subsequently charged. 15. Another reason why a foreign warrant need not contain all the crimes alleged against the person to be extradited is because there is invariably a separate document setting out the allegations of crime or crimes against that person. In fact, Article VII (2) (b) of the Extradition Treaty requires the request for extradition to be accompanied by, inter alia, a statement of the facts of the offence for which extradition is requested. Where the requesting party is the U.S. Government, there is usually the Grand Jury Indictment which sets out the foreign offence or offences of which the person is accused. These offences are then translated into similar or equivalent offences under Hong Kong law and form the basis of the Governor's Order to Proceed. It is the offences set out in the Order to Proceed and not those in the foreign warrant that the magistrate will deal with when he comes to decide upon the evidence presented to him whether he should make an order of committal. (See In re Nielson (1984) 1 AC 606). 16. Further, although there must always be an extradition crime, it is clear from the Extradition Treaty and legislation that it is not the foreign crimes, but the facts of the crimes which are to be considered. As I have pointed out earlier, Article VII (2) (b) of the Extradition Treaty requires a statement of the facts of the offence. Article XII, which is commonly known as the speciality rule, also specifies that the person extradited shall not be detained or proceeded against in the territory of the requesting party for any offence other than an extraditable offence established by the facts in respect of which his extradition has been granted. In other words, it is the facts of the offence of which the person is accused, that is, his conduct as disclosed in the evidence, which is under scrutiny. As Roberts C.J. in Levy v. Attorney General (1987) HKLR 777 said at p.779J:
17. In the present case, what Mr Christopher Johnson was doing in paragraph 15(a) of his affidavit is to identify the foreign warrant which he was seeking to produce and not testifying on the law of the United States of America regarding the validity of a warrant of arrest or indeed the validity of the warrant sought to be produced. As to the warrant concerned, I do not think there is any question of misidentification. It is quite clear that he was referring to the Warrant of Arrest which was issued against Mr Paul Kan, which was dated the 10th December 1991 and which was signed by United States Magistrate Judge Elgin Edwards. Although Mr Johnson in his affidavit mentioned "crimes" and the Warrant of Arrest adduced by him contains only one crime, I have no doubt that that was the warrant of arrest he was referring to. It was accepted that the warrant of arrest before the magistrate was a judicial document and a warrant of arrest. It was duly issued by a competent judicial officer in the United States of America and required the arrest of Mr Kan to answer a charge of conspiracy to possess drugs. That is sufficient for the present purpose. 18. In these circumstances, I do not think the extradition proceedings can be affected by the defects as mentioned by counsel for Mr Kan. For the reasons I have stated above, I do not think the first ground of objection can succeed. Chain of evidence 19. The second ground of objection raised by counsel for Mr Kan relates to the chain of evidence in respect of the heroin seized which was the subject matter of Crime 2. Counsel attacked the report on the drugs seized which was attached to the affidavit of the Chemist Mr Brian Henderson. Without showing any disrespect to counsel, I do not intend to repeat the queries raised by him. Some of them were valid criticisms. However, one must not forget that the report was merely a record of what Mr Henderson did with the drugs. There is also the evidence set out in his affidavit on which the magistrate and this court can rely. 20. On the chain of evidence regarding the heroin seized, there was the following evidence. Mr Richard Chan said that he received the drugs from Mr Wong, one of the co-conspirators and handed them to DEA agent Mr Kevin Hartmann. Mr Hartmann said that he marked the drugs as Exhibit No.1 under Case No.Rl-91-0114 in the presence of another DEA agent Mr Mark Wilbur. That exhibit was kept in the evidence vault for safe keeping. Later, it was retrieved by Mr Hartmann and identified, marked and sealed in the presence of Mr Wilbur. It was Mr Wilbur who subsequently mailed that Exhibit No.1 to the DEA laboratory in National City California for analysis. When it arrived at the laboratory, it was Mr Brian Henderson who conducted a number of chemical and physical tests upon that Exhibit No.1 from File No.R1-91-0114. Upon analysis, he found that exhibit to contain heroin of about 3.5 kg. Faced with this evidence, I have no doubt that the learned magistrate was' correct in holding that there was prima facie evidence of the chain of evidence regarding the seized heroin. This ground of objection therefore also fails. Discovery of the tape 21. The third objection relates to the tape recording of an alleged telephone conversation between Mr Kan and Madam Tse/Mr Richard Chan on the 10th December 1991. This conversation was referred to in the affirmations of Madam Tse and Mr Chan. The English transcript was also exhibited in the affirmations. It was pointed out that the conversation might have been in Chinese. If so, the Chinese transcript together with the certified English translation should have been produced. Since neither these documents was available, the learned magistrate was correct in ruling that the English transcript was inadmissible. Counsel for Mr Kan quite rightly pointed out, and counsel for the U.S. Government fairly conceded that the transcript was only secondary evidence and that the tape itself was the best evidence apart from what Madam Tse and Mr Chan could recall and depose to in their respective affirmations. During the extradition proceedings before the learned magistrate, an application for the production by the U.S. Government of the said tape was refused. Counsel for Mr Kan argued that the tape was relevant in that it might shed some light on the evidence of Madam Tse and Mr Chan and that this might affect the magistrate's decision as to whether there was a prima facie case. Counsel submitted that paragraph 6 of Schedule I to the 1989 Act provided that a magistrate in extradition proceedings shall have the same power as near as possible to those in committal proceedings and that Part III of the Magistrates Ordinance shall apply to extradition proceedings as near as possible. Hence, it was argued, the magistrate had the power to order discovery of the tape. It was also submitted that s.32 of the Criminal Procedure Ordinance, Cap. .212 gives 'the magistrate such power. Reliance was placed on R. v. Tse Yuk Ming and Anr., (Mag App No.1216 of 1988, unreported), an appeal from a magistrate's decision. Counsel further sought to distinguish the case of Flickinger v. The Government of Hong Kong, (1990] 3 NZLR 372, and the case of In re Thonqchai Sanquandikul, MP 802 and 804 of 1992, unreported, a High Court decision resulting from a magistrate's order of committal in extradition proceedings. It was submitted that these two cases dealt with the power of the court to order general discovery whereas in the present case, it was the discovery of a specific article that was applied for. 22. On the other hand, counsel for the U.S. Government submitted that extradition proceedings are different from domestic committal proceedings. If it were the latter type of proceedings, the tape would have been produced without any court order and in accordance with the Attorney General's guidelines. However, in extradition proceedings, the court had no jurisdiction to order such discovery. Counsel referred me in depth to the cases of Flickinger, In re Thonchai Sanquandikul and a number of other cases. It was also argued that even if the court had the power to order such discovery it was a discretion of the court and that in the circumstances of this case, the court should not exercise such discretion in favour of Mr Kan because the tape did not advance the case either for or against Mr Kan. 23. Committal proceedings and extradition proceedings obviously have something in common. In both sets of proceedings, it is not the function of the magistrate to determine guilt or innocence and he is only obliged to be satisfied that there is a prima facie case. However, I do not think it can be disputed that committal proceedings extradition proceedings are different in nature and purpose. Committal proceedings are a part of the criminal procedure aimed at deciding whether an accused person should stand trial in the local High Court. Extradition proceedings, on the other hand, are an essential step in a special procedure designed for the surrendering of a fugitive criminal to a foreign country to stand trial there. Committal proceedings are a necessary part in the administration of criminal justice whereas extradition proceedings are part of an arrangement founded on international comity and reciprocity. At the end of the criminal proceedings, if the magistrate is satisfied that there is a prima facie case against the accused, he will commit that person to stand trial. In the case of extradition proceedings, even if the magistrate is satisfied that there is a prima facie case against the fugitive criminal, all that he can do is to commit him to prison pending the decision of the Governor to extradite that person. He conducts the extradition proceedings in order to assist the Governor in making a decision as to whether he should order the fugitive criminal. to be surrendered to a foreign country. While a magistrate in committal proceedings may have a discretion to stay proceedings if he is satisfied that there is an abuse of the process of the court, in extradition proceedings he has no power to stay proceedings or to examine the question of abuse. He does not even have power to see whether the requirements of the Treaty have been complied with. (See R. v. Governor of Pentonville Prison ex parte Sinclair, [1991] 2 WLR 1028). 24. In view of the difference in nature and purpose of these two sets of proceedings, it is anticipated that the procedure before the magistrate and his jurisdiction and powers in the conduct of each of these proceedings cannot be exactly the same. Paragraph 6(1) of Schedule I to the 1989 Act therefore provides that the magistrate shall hear the case in the same manner and have the same jurisdiction and powers, "as near as may be", as if the fugitive criminal were brought before him charged with an indictable offence. That phrase was held by Kaplan J. in In Re Thonachai Sanguandikul, supra, at p.17 to mean as near as maybe consistent with the extradition legislation. (See also Halsbury's Statute, Vol.17, page 100.) I would respectfully agree. 25. Is there a right to discovery, general or specific, in extradition proceedings? 'Is a power to order such discovery consistent with the Extradition Treaty and legislation? 26. There is no provision in The Extradition Treaty or the legislation giving a right to the fugitive criminal to seek discovery or a power to the committing magistrate to make such order. Paragraph 6 of Schedule I to the 1989 Act confers upon the magistrate the same jurisdiction and powers as near as may be as if he were conducting a committal proceeding. This brings us first of all to Part III of the Magistrates Ordinance, Cap. 227 which deals with committal proceedings. Nothing in Part III however gives the magistrate any power to order discovery. The only other relevant provision appears to be s.32 of the Criminal Procedure Ordinance, Cap.221. That section provides:
27. In R. v. Tse Yuk-ming and Anr., the court held that this provision confers upon a defendant the right to apply for and the magistrate a power to make an order for discovery. However, that decision obviously dealt with the situation at a trial. It is also quite clear that s.32 of the Criminal Procedure Ordinance applies only to domestic criminal proceedings and has no application in extradition proceedings. In any event, s.32 is very wide in scope and I do not think that it is consistent with the extradition legislation. 28. In the case of In re Thonqchai Sanguandikul, supra, Kaplan J., following Flickinger, supra, held that there was no power to order general discovery in extradition proceedings. Woolf L.J. in Re Osman (No.7), Bar Library transcript, unreported, took a similar view. He said at p.19
29. I would respectfully adopt these decisions and comments. 30. Committal proceedings may be conducted in either one of 2 ways : first, uncontested committals where the prosecution purports to prove a prima facie case by tendering the statements of witnesses without actually calling them; or second, contested committals where the prosecution calls witnesses who may be cross-examined by defence counsel. Extradition proceedings, on the other hand, almost invariably take one form. Counsel for the requesting party seeks to establish a prima facie case by tendering the depositions or affirmations of the witnesses. To this extent, this is similar to an uncontested committal. But it has been clearly established by the authorities that there is no right of cross-examination of witnesses in extradition proceedings and it is not the task of the magistrate to order the cross-examination of witnesses. (See for example per Dickson J. in Vardy v. Scott D.L.R. p.441.) The reasons are obvious and sensible. The witnesses are overseas and it is not the intention of the requesting or requested parties that there should be a "mini-trial" in the territory of the requested party. All that is required is for the Governor of Hong Kong to be satisfied that there is a prima facie case. This the Governor directs the magistrate to do on his behalf. Once it is appreciated that this is the rationale for denying the person to be extradited the right to cross-examine the witnesses, it becomes clear that for the same rationale, it would not be appropriate to confer upon him a right to a general discovery of documents or articles. Although the judgments in Flickinger, supra., and Re Thonqchai Sanquandikul, supra., were couched in general terms and appear to relate to general discovery, I take the view that the same reasoning applies equally to specific discovery. In fact, some of the documents sought to be disclosed in these two cases were specific documents which would have existed or had been shown to have been in existence. 31. That leaves me with the question whether it is right to imply a power in the magistrate to order specific discovery in extradition proceedings. I think the basis for implying such a power is that it would be contrary to the rules of natural justice if the person to be extradited is deprived of the opportunity of obtaining evidence which may be relevant to the magistrate's decision. It was argued, in this case, that the tape in question may shed some light on the credibility of the two witnesses, namely, Madam Tse and Mr Richard Chan. This, counsel submitted, was relevant not only to the magistrate's decision as to whether there was a prima facie case but was also relevant to Mr Kan's decision whether to give or call any evidence. I accept that in some cases the court may require that the principle of fairness be applied to proceedings before them and therefore are ready to imply certain powers in the magistrate in the conduct of those proceedings. However, in deciding whether this should be done, it is important to bear in mind what Lord Reid said in Wiseman v. Bornemann [1971] AC 297 at p.308:
32. In extradition proceedings, the relevant legislation has made it clear that the primary obligation of the requesting party is to do no more than establish a prima facie case of criminal conduct on the part of the person to be extradited. I can see no difference between seeking specific discovery (in this case, calling for the production of a tape) for the purpose of considering the credibility of some witnesses on the one hand and requiring the witnesses to attend for the purpose of cross-examination on the other. If it is not the function of the magistrate to conduct a cross-examination of the witnesses in extradition proceedings, or within his power to direct any witness to attend for cross-examination, I fail to see how the magistrate is concerned with the tape or has the power to order its production. The basic presumption in extradition proceedings is that the person to be extradited will have a fair trial in the foreign country. He will have his day in the foreign court. He will have the opportunity to cross-examine the witnesses and test their credibility. He will no doubt have the chance of seeking disclosure of all evidence which is relevant to his case. I do not think natural justice or the principle of fairness would require the magistrate conducting extradition proceedings to have the power to order discovery, be it general or specific. 33. For the above reasons, notwithstanding the forceful submission of counsel, the third ground of objection also fails. 34. Having gone through the notes of proceedings, I agree with counsel for the parties who appeared before the learned magistrate that in the difficult circumstances before him, the learned magistrate had acted quite properly and fairly. I have also come to the conclusion from the evidence adduced that he was right to conclude that there was a prima facie case of criminal conduct against Mr Kan. The application for a writ of habeas corpus is therefore dismissed. 35. Finally, I would also like to take this opportunity to thank all counsel involved for their thorough research and very able submissions.
Representation: Mr G.J.X. McCoy (inst'd by M/s Raymond Hung & Co.) for Applicant Mr A.A. Bruce, Senior Assistant Crown Prosecutor and Mr R.G. McMeans, Senior Crown Counsel, for Crown. |
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