Re Chao Piu-fai

HCMP002355/1982

Headnote

Extradition - Section 12 of Extradition Act - application for release on ground that applicant has not been in fact deported within 2 months of order being made - necessity for inquiries to be made by Crown following making of order - no unreasonable delay. Application refused.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MISCELLANEOUS PROCEEDINGS NO. 2355 OF 1982

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Coram: Hon. Penlington, J. in Court

Date: 7th February, 1983

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JUDGMENT

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1. This is an application for the release of the applicants made under Section 12 of the Extradition Act 1870 on the ground that as two months have lapsed since the committal of the applicants and they have not been surrendered. I have been referred to the decision in re Shuter 1959 3 AER 481 which holds that the word "may" in that section should be taken as "shall" and therefore the applicants are entitled to be released and unless sufficient cause be shown to the contrary. The background of the applicants' trial and appeals is to say the least extraordinary and quite clearly the magistrate who heard the matter was rightly concerned whether there may have been a denial of natural justice.

2. The applicants who were either born in Hong Kong or came here at an early age, were arrested in Macau in June 1978. They were tried and convicted of murder in March 1980. They appealed to a Court of Appeal in Lisbon and their appeal was allowed in July 1980 when they were released and returned to Hong Kong. They heard nothing more but in fact there was a further appeal to the Supreme Court of Portugal who restored the conviction in January 1981. They were re-arrested in Hong Kong in June 1982 and an order for their extradition made in October 1982. Nevertheless that is not a matter which is for me to consider today. All I have to consider is whether the conduct of the Crown since the committal has been reasonable or whether the delay is such as to require me to act under Section 12 on discharge the applicants.

3. This is not an application for Habeas Corpus.  I am quite satisfied by the very careful and full affidavits which had been filed, sworn by a senior officers of the Attorney General's Chambers, and the Political Adviser to the Hong Kong Government and finally two affidavits sworn by His Excellency the Governor himself. That the questions raised by the magistrate and the whole background of the case did cause the greatest concern to the Crown. Very careful, detailed but I think inevitably lengthy investigations had to be made during the period between the committal and the 13th December when the matter was formally placed before His Excellency the Governor which was exactly two months. It is conceded by the Counsel for the applicants that thereafter the enquiries made were perfectly reasonable and he has no complaint about the events after the 13th of December.

4. It seems to me reading those affidavits that the only delay which could perhaps be the cause of comment would be the delay between the time the Portuguese Consul-General was asked for certain information, the 7th of November, and the time when that information was supplied on the 4th of December, a period of some three weeks. I do not think under all the circumstances and taken into account the complexity of this case that was in fact an unreasonable delay. I am satisfied that such enquiries had to be made in the interest of the applicants and the Crown through the officers in the Attorney General's Chambers did all they could to try to find out as much as possible of the background of the case so that when it came to a decision by His Excellency the Governor he would be aware of everything that was possible to find out. I am satisfied that was done. That being so basis of the decision in Shuter and the later decision in re Enahoro 1963 2 Q.B. 455 that the Crown have shown that there was reasonable grounds for the warrants being held up in the matter they were.

5. The Attorney General would have been failing in his duty if he had failed to make the fullest possible inquiries into the matter, particularly on the question of the representation of the applicants, or lack of it, before the Supreme Court of Portugal, and there was no unreasonable delay in doing so. It would be wrong if the applicants were now released because of those inquiries made really on their behalf.

6. The application must be dismissed.

Representation:

M. Lucas, Q.C. & F. Stock, Counsel for the Crown

Bryan Chau (Kwan & Kwan) for the Applicants