Re Chuen Sau Kam

HCMP001377/1989

M.P. 1377 of 1989

Headnote

Writ of Habeas Corpus - Requirements for a Magistrate to fix a date within the time limit laid down in the relevant Treaty. Do successive adjournments of the proceedings within the prescribed time meet the Treaty requirements.

Is an applicant entitled to insist upon the production of a Letter of Request for Extradition.

Held

Adjourning proceedings generally did comply with the Treaty requirements. An applicant is not entitled to production of the Letter of Request.

M.P. 1377 of 1989

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Mayo in Court

Date of Hearing: 17th August, 1989

Date of Delivery of Judgment: 29th August, 1989

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J U D G M E N T

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1. The Applicant is seeking an Order that a writ of Habeas Corpus should issue.

2. By a Diplomatic note issued in January 1989 The American Consul General requested the arrest of the Applicant. The request was made pursuant to the provisions of the Extradition Treaty between the United States of America and the United Kingdom of the 8th of June 1982. The Treaty was extended to Hong Kong by virtue of the United States of America (Extradition Order) 1976.

3. The Applicant appears to have been resident in Taiwan. However she arrived in Hong Kong on the 19th of January 1989. On her arrival in Hong Kong she was arrested in connection with alleged Bribery offences. I do not need to comment upon these charges as they were not proceeded with.

4. While the Applicant was still in the custody of the Independent Commission Against Corruption a provisional warrant of arrest was issued by Mr. Burrell, a magistrate. This was issued under the Extradition Act 1870. It was issued as a result of Chief Inspector by the of the Royal Hong Kong Police Force producing the Diplomatic note I have referred to and swearing the necessary information.

5. It was alleged that in March and April 1986 the Applicant and another person had arranged for the delivery of 33 kilograms of heroin from Hong Kong to New York.

6. The grounds of the Application are as follows:

"1 The learned trial magistrate erred in refusing an application to set the applicant at liberty pursuant to Article VIII (2) of the Extradition Treaty between U.K. and U.S.A. in that:

a) the learned Magistrate was wrong in omitting and/or refusing to make a finding of fact, viz., whether there was a receipt of the request within 60 days after the arrest of the applicant under a provisional warrants;

b) the learning Magistrate was wrong in refusing to determine the point, viz., by commenting to the applicant's Counsel "if you are correct (in saying there is no receipt of the request within 60 days)', how does that effect this proceedings? This is not a Habeas Corpus application."

2. The learned magistrate erred in refusing an application to set the applicant free pursuant to Section 8 (2) of the Extradition Act 1870 in that:

a) the learned Magistrate wrongly rules that "when a Court remanded (the applicant) to a date, it satisfied Mr. Burrell's (the Magistrate who issued the provisional warrant) duty to fix a date (under Section 8(2) of Extradition Act 1870)."

3. The learned Magistrate erred in ruling that the evidence of the identification of the applicant was admissible when the said evidence was to the effect that only one photograph bearing the picture and name of the applicant was shown to various persons for the purpose of an identification by photograph."

7. There was an additional ground that the certificate of the 13th of March was a nullity by virtue of the failure of the Attorney General of the United States of America to ensure the Seal of the Department of Justice was affixed to the document with his name duly attested thereon. This ground was not proceeded with as it transpired at the hearing that the necessary formalities had in fact been complied with.

8. It may perhaps be helpful for me to set out what I understand to be the correct framework for applications of this nature.

9. I accept the validity of Mr. Thomas' contention on behalf of the Applicant that it is essential that all technical requirements are rigidly adhered to. His authority for this was Re Epinosa 1986 Crim. L.R. 684.

10. I also accept that while the Extradition Act 1870 to 1935 lays down a code for extradition the relevant treaty is paramount. I do not think that Mr. Cahill for the Crown contested this.

11. What I will now consider is whether the requirements of the Act and the Treaty have been strictly complied with.

12. Mr. Thomas submitted that they had not. I will first consider the time limit point.

13. Safeguards against unduly lengthy detention are contained in both the Act and the Treaty.

14. Section 8 of the Act provides:

"8. A warrant for the apprehension of a fugitive criminal, whether accused or convicted of crime, who is in or suspected of being in the United Kingdom, may be issued -

(1) By a police magistrate on the receipt of the said order of the Secretary of sate, and on such evidence as would in his opinion justify the issue of the warrant if the crime had been committed or the criminal convicted in England; and

(2) By a police magistrate or any justice of the peace in any part of the United Kingdom, on such information or complaint and such evidence or after such proceedings as would in the opinion of the person issuing the warrant justify the issue of a warrant if the crime had been committed or the criminal convicted in that part of the United Kingdom in which he exercises jurisdiction.

And person issuing a warrant under this section without an order from a Secretary of State shall forthwith send a report of the fact of such issue, together with the evidence and information or complaint, or certified copies thereof, to a Secretary of State, who may if he think fit order the warrant to be cancelled, and the person who has been apprehended on the warrant to be discharged.

A fugitive criminal, when apprehended on a warrant issued without the order of a Secretary of State, shall be brought before some person having power to issue a warrant under this section, who shall by warrant order him to be brought and the prisoner shall accordingly be brought before a police magistrate.

A fugitive criminal apprehended on a warrant issued without the order of a Secretary of State, shall be discharged by the police magistrate, unless the police magistrate, within such reasonable time as, with reference to the circumstances of the case he may fix, receives from a Secretary of State an order signifying that a requisition has been made for the surrender of such criminal."

Art VIII of the Treaty reads :

"ARTICLE VIII

(1) In urgent cases the person sought may, in accordance with the law of the requested Party, be provisionally arrested on application through the diplomatic channel by the competent authorities of the requesting Party. The application shall contain an indication of intention to request the extradition of the person sought and a statement of the existence of a warrant of arrest or a conviction against that person, and, if available, a description of the person sought, and such further information, if any, as would be necessary to justify the issue of a warrant of arrest had the offence been committed, or the person sought been convicted, in the territory of the requested Party.

(2) A person arrested upon such an application shall be set at liberty upon the expiration of forty-five days from the date of his arrest if a request for his extradition shall not have been received. This provision shall not prevent the institution of further proceedings for the extradition of the person sought if a request is subsequently received."

15. The period of 45 days referred to in Art VIII has been extended to 60 days.

16. The Applicant appeared before magistrate an the 21st of January 1989. The case was then adjourned to the 30th of January and thereafter to the 17rh of March and then the 20th of March.

17. In the meantime on the 18th of March His Excellency the Governor made an order signifying to the Chief Magistrate of Hong Kong that a requisition had been made to him by the Consul General of the United States for the surrender of the Applicant. This was filed in the Central Magistracy on the 20th of March.

18. What is very clear to me on reading the record of the various appearances in the Magistrates Court is that all parties, that is the Magistrate, Crown Counsel and the Applicants legal representatives were fully aware of the Treaty requirements relating to time. It is clear that in everyone was mindful of the 60-day requirement and steps were taken to ensure that there was complaince therewith.

19. If I understand Mr. Thomas correctly his objection is that the magistrate failed to comply with the requirement to specifically fix the date within the prescribed period. In other words, the court had not complied with the mandatory requirement to make an order that the matter be proceeded with.

20. In this connection he placed heavy reliance upon the speech of Lord Diplock in Ex parte Sotiriadis (1975) AC 1. At page 25 he said:

"The other procedure for which the Act provides is the precautionary arrest of the fugitive criminal to prevent him from fleeting the country before the requisition for his surrender has been received by the Secretary of State and signified to the metropolitan magistrate. This is the procedure by provisional warrant under section 8(2). The warrant may be issued not only by a metropolitan magistrate but also by any justice of the peace. It is issued on the same kind of information or complaint supported by the same kind of evidence as would justify its issue if the crime alleged had been committed in England. The informant or complainant may be a private individual acting on his own initiative. He need not be acting on behalf of any police or governmental authority of the foreign state where the crime is alleged to have been committed. The warrant requires the person alleged to be a fugitive criminal to be brought before the magistrate or justice of the peace by whom it was issued; but if issued by a justice of the peace he must, when the alleged fugitive criminal is brought before him, issue a further warrant ordering the prisoner to be brought before a metropolitan magistrate.

This kind of warrant is provisional in two respects. It must be reported to the Secretary of State who may order it to be cancelled and the person apprehended on it to be discharged. Secondly, when a person apprehended on a provisional warrant is brought before a metropolitan magistrate, the magistrate is required by the last paragraph of section 8 to discharge the prisoner unless"… within such reasonable time as, with reference to the circumstances of the case, he may fix, …" he receives from the Secretary of State an order signifying that a requisition has been made for the surrender of the prisoner. Under this paragraph the magistrate is bound to fix a date by which the order must be received although, no doubt, he has power also to extend it from time to time if he considers that the circumstances justify his doing so. He is, however, acting in breach of the Act if, as in the instant case, he fails to fix a date at all.

The purpose of this provision is clear. A person arrested on a provisional warrant is not at that stage subject to extradition at all and may never become so. He becomes subject to extradition only when a requisition for his surrender had been received by the Secretary of State. Although the provisional warrant charges him with an offence committed abroad the charge is as yet inchoate. It is not yet the subject of the judicial hearing for which the Act provides. There may never be a requisition for his surrender or, if there is, it may not be for the same crime as that with which the provisional warrant charges him or it may be for other crimes as well. He ought not to be kept in custodial limbo indefinitely entitled neither to a hearing of the case against him nor to be set at liberty. So the magistrate is required to fix a date by which either those charges which alone can be the subject matter of the hearing must be formulated or the prisoner be discharged.

Discharge of a prisoner under either of these provisions, however, does not preclude his subsequent rearrest under a warrant issued under section 8(l) of the Act after receipt by the metropolitan magistrate of an order by a Secretary of State signifying that a requisition for the surrender of the prisoner has been made. It is, indeed, the duty of the magistrate to issue such warrant if the evidence in support of it is sufficient to justify the arrest. Even if the prisoner has not been discharged and rearrested the purpose of his detention changes once the order of the Secretary of State has been received. Up to that time the purpose of his detention is to await the receipt by the magistrate of such an order not later than a date that the magistrate must fix; and the authority for his detention meanwhile is no longer the provisional warrant on which he was first arrested but a subsequent order of the magistrate for his remand in custody until the date so fixed. After the receipt of the order the purpose of the prisoner's detention is for the conduct of the judicial hearing of the case against him in respect of the crimes to which the requisition relates; and the authority for his continued detention is a fresh remand order made by the magistrate when the prisoner is first brought before him after the order of the Secretary of State has been received.

Where the procedure of arrest on a provisional warrant under section 8(2) of the Act is used there are thus two distinct stages involved during which the accused may be detained in custody. The second may follow immediately upon the first or there may be an interval between them when the accused is entitled to be set at liberty. There may be undue delay in either of these stages; and against this risk the Act itself provides separate safeguards. In the first stage the statutory safeguard is that to which reference has already been made, viz., the specific obligation of the magistrate to fix a reasonable time within which the order of the Secretary of State is to be received. In the second stage the statutory safeguard lies in the power of the magistrate to control the duration of the judicial hearing of the case against the accused. As in the case of ordinary committal proceedings for indictable offences committed in England, the magistrate has power to fix the dates of hearings and to decide the length of any adjournments that he may allow. By doing so he can compel the prosecution to adduce sufficient evidence to justify the extradition within such time as he considers to be reasonable in all the circumstances; and if the prosection fails to do this, the accused will be discharged. The Act itself, however lays down no specific time limit for the second stage. It leaves the exclusive control of the duration of the judicial hearing to the magistrate."

21. He summarised the, requirements at p. 28:-

"My Lords, in the light of what your Lord ships have been told about the current practice at Bow Street magistrates' court in proceedings for the extradition of fugitive criminals to the Federal Republic of Germany and other states with which there are extradition treaties in similar terms, it seems desirable that this House should give some guidance as to the correct procedure to be followed in future where there has been an arrest on a provisional warrant under second 8(2) of the Extradition Act 1870.

(1) When the prisoner is first brought before him, the metropolitan magistrate should fix a date on which the prisoner is to be discharged unless the magistrate has by that date received an order of the Secretary of State signifying that a requisition for the surrender of the prisoner has been made. He may extend this date at a subsequent hearing if he considers that the circumstances justify this course. If no order of the Secretary of State has been received the prisoner should be brought before the magistrate upon the date so fixed, and should be discharged, but he may be rearrested by warrant under section 8 (1) of the Act if and when the order has been received.

(2) if an order of the Secretary of State is received before the date so fixed, the prisoner should be brought before the magistrate without delay. He should be informed of the charges made against him in the requisition and if, as would usually be the case, the judicial hearing cannot start immediately, he should be told that he is being remanded in custody pending the hearing of the case against him for his extradition on those charges. The date of this remand is the starting point of the two months' time limit under article XII of the treaty.

(3) If the hearing of the cases against the prisoner has not been completed before two months from the date of the rearrest (under l above) or of the first remand under (2), the prisoner should be brought before the magistrate on the day on which the two months expires or as soon thereafter as is practicable, for the magistrate to make his finding whether the evidence which has already been produced to him in support of the charges made against the prisoner would be sufficient, in the absence of any further evidence, to justify the prisoner's committal for trial if the charges had been in respect of indictable offences committed in England. He may take into consideration not only evidence which has been adduced at any previous hearing in open court but also any duly authenticated depositions taken in Germany which had in fact been received at the Foreign Office before the time limit expired although they have not been previously tendered in open court. If he finds this evidence to be insufficient the prisoner must be discharged. If, on the other hand, he finds it to be sufficient he must continue with th hearing until both parties have completed their evidence, and then decide upon the totality of the evidence whether the case for extradition has been made out."

22. I do not think that this case assists the Applicant. From the very short summary of the facts I have referred to, it is evident to me that the requirements laid down by Lord Diplock have been complied with. I accept the validity of the submission made by Mr. Cahill that there is no prescribed form of wording required by a magistrate to adjourn proceedings. What is necessary is to have regard to the substance of what happened. A date was fixed for the hearing within the time limit referred to and there has not been any breach of the requirements of either the Act or the Treaty.

23. I will now consider the complaint that it had never been proved that the Letter of Request for Extradition had been produced within 6 days. Mr. Thomas argued that placing reliance upon the recitals contained in His Excellency the Governor's Order of the 17th of March was not sufficient. I regret that I do not agree. A similar issue was raised in R. v. Governor of Pentonville Prison 1980 1 All ER 701. Griffiths J. summarised the documentary requirements in, such cases at p. 705 :-

"The pleading point

The first ground of attack was conveniently described by counsel for the applicants as the pleading point. His complaint is that there was no formal document before the magistrate that contained sufficient particulars of the applicants' offence to show that it constituted the crime of burglary according to English law. It is submitted that before the magistrate can begin to consider the evidence in support of the application for an extradition warrant he must have all the necessary ingredients to establish the English offence formally set out in some documents; and as there was no formal document in this case that alleged the burglars entered 'as trespassers' the magistrate should have refused to consider the matte further because trespass is an essential element of the English crime of burglary (see s 9 of the Theft Act 1968).

In order to examine this submission it is necessary to consider the steps by which extradition is obtained to see what formal documents are required to be placed before the magistrate. The first step is the request for extradition. This is through diplomatic channels and the material that must accompany the request is set out in Article VII of the extradition treaty between the two governemnts, given statutory force by Order in Council.

This is the material on which the legal advisers in the Home Office will consider whether they should advise the Secretary of State to take the next step in the extradition procedure, which is to refer the request to a metropolitan magistrate pursuant to s 7 of the Extradition Act 1870, which provides :

'A requisition for the surrender of a fugitive criminal of any foreign state, who is in or suspected of being in the United Kingdom, shall be made to a Secretary of State by some person recognised by the Secretary of State as a diplomatic representative of that foreign state. A Secretary of State may, by order under his hand and seal, signify to a police magistrate that such a requisition has been made, and require him to issue his warrant for the apprehension of the fugitive criminal. If the Secretary of State is of opinion that the offence is one of a political character, he may, if he think fit, refuse to send any such order, and may also at any time order a fugitive criminal accused or convicted of such offence to be discharged from custody.'

When the magistrate receives the order from the Secretary of State, it is his duty to enquire into the evidence and, if sufficient, to issue his warrant as plainly appears from the terms of ss 8 and 10. Section 8 provides :

'A warrant for the apprehension of a fugitive criminal, whether accused or convicted of crime, who is in or suspected of being in the United Kingdom, may be issued - 1. By a police magistrate on the receipt of the said order of the Secretary of State, and on such evidence as would in his opinion justify the issue of the warrant if the crime had been committed or the criminal convicted in England.'

Section 10 provides :

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

The form of the Secretary of State's order is prescribed by s 20 which provides :

'The forms set forth in the second schedule to this Act, or forms as near thereto as circumstances admit, may be used in all matters to which such forms refer, and in the case of a British possession may be so used, mutatis mutandis, and when used shall be deemed to be valid and sufficient in law.'

The 'Form of Order of Secretary of State to the Police Magistrate' contained in Sch 2 requires the Secretary of State to do no more than insert the name of the crime for which extradition is asked. The order in the present case is in the form prescribed by Sch 2 and names the crime as burglary. As such it is deemed to be valid and sufficient in law by s 20.

The only other document of a formal nature that is required to be before the magistrate is the foreign warrant authorising the arrest of the criminal. It cannot have been intended that this foreign warrant should set out all the ingredients of the English offence for, as Stephen J said in R v Jacobi and Hiller 'if it were necessary for the warrant to set forth precisely the crime… every magistrate [in a foreign country] who issued a warrant…would have to be acquainted with the law of England'. Such an oppressive requirement would, of course, make extradition unworkable. There is nothing in the treaty that requires any other formal document to be before the magistrate and no authority has been cited to show that extradition has ever been refused on this ground. I am quite satisfied that in extradition proceedings there is no requirement for any formal documents to be before the magistrate other than the order of the Secretary of State and the warrant of arrest, neither of which, for the reasons I have given, are required to set out all the particulars of the English offence. It is to the evidence that the magistrate is directed to look to see whether there are sufficient facts established to constitute an offence contrary to English law and not to any formal document. I am glad to find that this is so, for it would be deplorable if the technicalities of English procedure were introduced to thwart an otherwise proper request for extradition."

24. I am satisfied that this is a correct statement of the law. The Applicant had no right to insist upon the formal production of the request.

25. The only outstanding matter is the question of the admissibility of the photograph of the Applicant with the Board attached around her neck.

26. Mr. Thomas sought to derive assistance from Ex parte Voets (1986) 1 WLR 470. With respect the circumstances of that case were entirely different to those of the present one. I am satisfied that the photographic evidence is redundant. It is evident from the facts which were before the magistrate that the Applicant was well-known to the persons who were parties to the proceedings in the U.S.A. Also two passports containing photographs of the Applicant were seized when she was arrested. There would accordingly be sufficient identification evidence before the magistrate to meet the requirements of a prima facie case.

27. I have now dealt with all of the matters which seem to me to be of importance. For the reasons I have given I dismiss this motion. I will hear the parties on costs.

Representation:

Mr. Martin Thomas, Q.C. & Mr. Jimmy Kwong (William Sin & Co.) for Applicant.

Mr. Peter Cahill & Miss A. Au (Attorney General's Chambers) for Respondent.