Re Chu Po Kan
Read the full judgment text of HCMP 1091/1980 on BabelCite. This High Court CFI judgment was delivered on 26 February 1981.
1. The applicant was committed by a magistrate to prison to await his surrender to the Panamanian authorities on a charge of murder aboard a ship of that country in international waters. There was ample evidence to ground his committal and counsel on his behalf now move for a writ of habeas corpus ad subjiciendum.
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HCMP001091/1980
Coram: Full Bench (Zimmern & Liu JJ.) Date of Judgment: 26th February, 1981. ----------------- JUDGMENT ----------------- Zimmern, J.: 1. The applicant was committed by a magistrate to prison to await his surrender to the Panamanian authorities on a charge of murder aboard a ship of that country in international waters. There was ample evidence to ground his committal and counsel on his behalf now move for a writ of habeas corpus ad subjiciendum. 2. The applicant was arrested on 30th June 1980 and detained under a provisional warrant issued by a magistrate pursuant to an information sworn by the vice consul for Panama dated 27th June 1980 under Section 8 of the Extradition Act 1870 that the applicant was suspected and accused of the offence of murder on 22nd June 1980 on board the Panamanian registered vessel "Potoi Island" in international waters. The magistrate reported the information, warrant, arrest and detention to the Governor but failed to fix a time for the release of the applicant subject to notification from the Governor an order signifying that a requisition has been made for the surrender of the fugitive as provided by the final paragraph of Section 8. Nothing turns on the non-compliance in this case but we have been reminded to draw to the attention of magistrates Lord Diplock's judgment in Government of the Federal Republic of Germany v. Sotiriadis(1) directing the Bow Street Magistrates that this fixing of time is mandatory and ought to be complied with because the Act is silent as to the time a fugitive may be detained under a provisional warrant and the magistrate's mandate is his safeguard. 3. On 8th July 1980 the Governor under Section 7 of the 1870 Act by an order under his hand and seal signified to the magistrate that a requisition had been made and required him to issue his warrant for the apprehension of the fugitive criminal. 4. Article VIII of the Treaty of 1906 made between His Majesty and the President of the Republic of Panama provides:
5. It is expressly stated in the Governor's order that the requisition was made by the vice consul for Panama in Hong Kong and it is clear on the evidence before us that the vice consul was in breach of Article VIII in that his requisition when made could not have been accompanied by a warrant of arrest issued by the competent authority of Panama. Mr. Gittins for the applicant argues that the Governor cannot waive the breach and ought not to have issued his order. 6. On this very point Blackburn J. in re Elsie Counhaye(2) said:-
This was said in passing as it was found the magistrate had no jurisdiction under the Act. 7. In R.v. Governor of Brixton Prison(3) a similar point came before the Court. It was the case of the applicant that the requisition had not been made in accordance with Article 7 because the requisition had not been accompanied by deposition and a warrant of arrest issued by a competent authority of the requesting country: Ridley, Darling JJ. discharged the rule by applying the dictum of Blackburn J. The third judge Channell J. agreed that the rule must be discharged but did not apply re Counhaye. He said the Order in Council, the Act and the Treaty must be read together but found that the failure of the foreign government to comply with the requirements of Article 7 did not entitle the applicant to be discharged. 8. Whether the Articles in a Treaty give an applicant any legal rights was dealt with thus by Viscount Dilhorn in Athanassiadis v. Government of Greece(4):
9. That an applicant do have rights under a Treaty was brought out by the House of Lords in Government of the Federal Republic of Germany v. Sotiriadis(1). The issue turned on the construction of Article XII of the Treaty with Germany in term
10. The appellant was committed to await surrender to West Germany and upon application the Divisional Court ordered the writ to issue on the ground that the evidence was not produced within two months from the date of the applicant's arrest under the provisional warrant. The House of Lords held that "the date of apprehension" was the date the fugitive was held on an order after requisition from a secretary of state and not the date he was held under a provisional warrant. Sufficient evidence was produced within time from that commencement date and the appeal was allowed. 11. See also R. v. Governor of Ashford Remand Centre exparte Beese(5) wherein at p.256 Lord Widgery said:
12. Mr. Gittins submits that re Counhaye(supra) and R. v. Governor of Brixton Prison(3) have been overruled. 13. The West Germany case went to jurisdiction and re Counhaye decided that the issue was merely a procedural point. Article X of the Treaty with Panama provides that in the case of a criminal fugitive arrested on a provisional warrant:
14. The applicant has a right to be discharged if the requisition was not made in accordance with the Treaty within 60 days of his arrest. He has proved that the vice-consul's requisition to the Governor could not have been accompanied by a warrant of arrest therefore not made in accordance with the stipulation contained in Article VIII. Nor was the foreign warrant received in Hong Kong within 60 days of arrest. In my view Article X transformed what might have been something procedural into a jurisdiction matter. The foreign warrant of arrest is not just a perfunctory document. It has to emanate from the judiciary of the foreign state and duly authenticated. The parties to the Treaty have stressed the importance of this document by stipulating that it must accompany the requisition; and must means must. 15. The magistrate could have not discharged the appellant because of the Governor's order. However, the Governor had the power under Section 8 of the Act. If the had issued his order upon requisition in expectation that the requesting authorities would comply with Article X then upon non-compliance within stipulated time he was bound to revoke his order and discharge the applicant. He failed to do so and I find all subsequent proceedings were thereby invalidated and the applicant succeeds in his application. Representation: S.V. Gittins, Q.C. & R. Barretto (D.L.A.) for applicant T. Bellanto for Crown (1) (1974) 1 A.E.R. at pp 703/704 (2) (1873) L.R. 8 Q.B. 410 at p. 416 (3) (1911) 2 K.B. 82 (4) (1969) 3 A.E.R. at p. 298 (5) (1973) 3 A.E.R. 250
----------------- Coram: Full Bench (Zimmern & Liu, JJ.) Date of Judgment: 26 February 1981. ----------------- JUDGMENT ----------------- Liu, J.: On the 22nd June, 1980, on board the Panamanian registered vessel "Po Toi Island", the applicant allegedly killed one SUN Shing-chun without any lawful excuse whilst the vessel was on the high seas. Upon entry into Hong Kong on the 24th June, 1980, the applicant was detained. Being satisfied on the information of the Vice Consul of Panama sworn on the 27th June, 1980 that a warrant would issue if the alleged crime had been committed in Hong Kong, a provisional warrant for the arrest of the applicant was granted by a Causeway Bay magistrate on the same day. Thereupon, on the 30th June, 1980, the learned magistrate reported the applicant's arrest and remand to His Excellency the Governor in conformity with section 8 of the Extradition Act, 1870, but no time was fixed by the learned magistrate for the discharge of the applicant unless in the meantime an order was received from His Excellency signifying that a requisition had been made for the surrender of the applicant as a fugitive criminal. On the 3rd July, 1980, the Governor issued an order to the learned magistrate in the following terms:
The applicant complained to this court firstly, that the learned magistrate's failure to fix a time within which the Governor's order must be received was an irregularity to his prejudice, secondly, that as the Governor had not been presented with any foreign warrant of arrest to accompany the Panamanian requisition or at least before his order to the magistrate, the applicant's arrest under the Extradition Act, 1870 was invalid and of no effect and thirdly, that from its translation the foreign order of arrest might, in terms, be construed to refer to a lesser offence than murder, and for such ambiguity, its form left much to be desired. On the 23rd September, 1980, the Governor issued a further order to the learned magistrate, whereby after a recital of, inter alia, the said requisition made on behalf of the Republic of Panama, an extension of sixty days was granted for the production of sufficient evidence to found the applicant's requested extradition to Panama. Leading counsel for the applicant pressed upon us that such an extension of an otherwise invalid order of the Governor directing the arrest of the applicant under the provisions of the Extradition Act, 1870 was equally ineffective if only by reason that a nonentity could not be given life to by an extension. By a writ of habeas corpus issued pursuant to leave granted by a Full Bench sought under Order 54 rule 1(2), the Commissioner of Prisons was called upon to deliver the body of the applicant to this court for the examination and determination of the legality of his detention. We are indebted to counsel for their assistance at the date of hearing and in their further submissions on authorities which subsequently came to our notice. Sections of the Extradition Act, 1980 alluded to in these proceedings are as follows:
On the 12th August, 1907, an Order in Council was directed to apply to the Republic of Panama. Having made reference to the Extradition Acts, 1870 to 1906 and the Treaty concluded with Panama on the 25th August, 1906 for the mutual extradition of fugitive criminals, full text of the treaty was reproduced therein in extenso, the relevant articles of which are set out below:
By section 2 of the Extradition Act, 1870, the Sovereign is endowed with the power to apply the Act to a foreign State by an Order in Council. The Order in Council would invariably embody the treaty, and the instant case is no exception for the Treaty with Panama. Vis-a-vis Panama and Hong Kong under the umbrella of the United Kingdom, reciprocal concessions in the extradition of fugitive offenders are respected within the bounds set by the contracting States. It stands to reason that the 1870 Act can have no extraterritorial application other than what is sanctioned by the treaty terms. That being the limitation placed on the operation of the 1870 Act without jurisdiction, how then would the Treaty with Panama fetter the 1870 Act in its manifestations within jurisdiction? Evidently, the Order in Council activated and incorporated into the Act all the treaty provisions. It was therefore said in Government of the Federal Republic of Germany v. Sotiriadis and Another(1) that "conditions, exceptions and qualifications introduced by Order in Council may add to the restrictions on the surrender of fugitive criminals contained in the Act itself." But not every treaty term is fundamentally tied to the main object of the 1870 Act, that is to say, some treaty terms are not indispensable for the ultimate surrender of fugitives. Terms may be arranged for the regulation of matters of practice and procedure "for carrying into force the main object of the Act." Provisions in the treaty pertaining to procedure have been held not to affect "the legality of the arrest and detention of the fugitive" under the Act in England. See R. v. Wilson(2), In re Counhaye(3) and R. v. Governor of Brixton Prison; Ex parte Thompson(4). The question for consideration may be posed thus: Are the pre-conditions laid down by the Treaty with Panama for the issue of a treaty warrant in Hong Kong matters of mere practice and procedure or are they essential for the eventual surrender of the applicant to a contracting foreign State? No arrangements made by the Panamanian Treaty should be lightly ignored, but the central issue is whether or not the departure in the instant case would vitiate the Hong Kong proceedings under which the applicant was arrested and committed for surrender pursuant to the Governor's order. The combined effect of section 7 and paragraph 1 of section 8 of the 1870 Act enjoins a magistrate to issue a warrant of arrest upon the receipt of an order from the Governor who stands in the shoes of a Secretary of State for the 1870 Act and the 1906 Treaty concluded with Panama. In his order requiring a magistrate to issue locally a treaty warrant for the apprehension of a fugitive criminal, the Governor need simply signify that a requisition for his surrender has been made on behalf of a contracting foreign State. No further step is required under the Act of 1870. Only in Article VIII of the 1906 Treaty with Panama is to be found the prerequisite that the requisition for the extradition of a fugitive offender by a contracting State "must be accompanied" by a foreign order of arrest and specified evidence. In the case of Re Counhaye(3), at p.415, Blackburn, J. interjected during the arguments on behalf of a fugitive criminal in no uncertain terms:
Unfortunately, it ceased to be a live issue, but in his judgment at page 416, the learned judge refused to allow the point to pass without an observation:
At page 418, Archibald, J. aired his concurrence. The judicial opinions so expressed laid to rest all passions for letting technicalities of the situation prevail over the requirement of justice. An attempt was made in Re Thompson(4) to undermine the succinct but sweeping views given in Re Counhaye(3). The validity of a French requisition for the surrender of a fugitive criminal was challenged in Re Thompson(4) where the treaty provisions as to requisition were alleged not to have been fully complied with. Under a treaty with France for the mutual extradition of fugitive criminals, it was arranged that the requisition made by the requesting State should be accompanied by a warrant of arrest together with duly authenticated depositions taken before a judge or magistrate responsible for the issue of the warrant. The French requisition for the surrender of Thompson was not accompanied by a deposition so taken before such a judge or magistrate. The treaty provision was thus breached. At p.68, the Attorney General, Sir Rufus Isaacs urged upon the court, inter alia:
At p.70, Ridley, J. delivered himself of the following judgment:
Ridley, J. readily accepted as conclusive the view of Blackburn, J. and took the stance that these expressions of opinion were not overruled by the case of R. v. Wilson(2). At p.71, the learned judge drew the distinction that "the requisition by the Secretary of State ought to be treated rather as a matter of procedure, as a matter of machinery for carrying into force the main object of the Act of Parliament - namely, the apprehension of the fugitive criminal." He concluded:
At p.72, Darling, J. described the omission as a mere "defect upon one point of procedure" "not essential to the legality of the arrest and detention of the fugitive" under the Extradition Act. At p.73, Channell, J. classified these requisite documents to accompany the requisition as requirements of "mere machinery" and not matters of "jurisdiction either to arrest or to detain the fugitive criminal." In the instant case, in accordance with section 7 and paragraph 1 of section 8 of the Extradition Act, 1870, the Governor signified in his order to the learned magistrate the receipt of a requisition. In my judgment, that would per se be sufficient to invoke the magistrate's jurisdiction to issue a warrant for the arrest and detention of the applicant. In view of the staunch judicial observations made in Re Counhaye(3) and so jealously defended in Re Thompson(4), it is quite unnecessary for me to deal with the consequences of a belated foreign order of arrest or its contended invalidity on account of vagueness and uncertainty. Much play was made of the true construction of the translated terms of the foreign warrant of arrest, but I was and remain unimpressed by submissions founded on the surmise of a possibly imprecise, though probably not inaccurate translation. Similarly, the effect of the provisional warrant in the eventuality of an invalid order from the Governor also does not call for an examination as it did in A.G. for the Dominion of Canada v. Fedorenko(5). The interest of the applicant is well guarded by, inter alia, section 3(2) of the 1870 Act, whereby he, as a fugitive criminal may not be surrendered to the Republic of Panama except on the explicit arrangement or legislative assurance that he shall not be prosecuted otherwise than for the extradition crime of murder allegedly committed in international waters on board the Panamanian registered vessel "Po Toi Island". It would indeed be censurable to surrender the applicant to Panama for the extradition offence of murder if any misgivings were felt by the Government as to the nature of the crime charged in the foreign order of arrest. Nothing has been shown to warrant or induce that anxiety. A magistrate's duty to fix a time within which the fugitive must be discharged unless the Governor's order is received was thoroughly canvassed in the case of Sotiriadis(1). The guidelines laid down for magistrates in proceedings under the Extradition Act, 1870 appear at page 705a, but suffice it for me to say that as in the case of Sotiriadis.(1), failure of the learned magistrate in this case to specify such a time limit would not invalidate the subsequent order emanating from the Governor nor the local warrant of arrest issued in compliance thereof. Moreover, that is past history which has caused no appreciable prejudice. For all these reasons, I cannot permit the admirably trenchant and well-reasoned arguments of Mr. Gittins to deflect me from affirming the compelling judicial views expressed on the validity of the learned magistrate's warrant of arrest issued by order of the Governor. I would refuse the application and revoke the writ of habeas corpus.
Representation: Mr. Gittins, Q.C. with Mr. R. Barretto instructed by D.L.A. for Applicant. Mr. T. Bellanto, counsel for Respondent. (1) [1974] 1 AER 692 at p.p.698f & 701c (2) (1877) 3 Q.B.D. 42 at p.45 per Cockburn, C.J. (3) L.R. 8 Q.B. 410 (4) (1911) 105 L.T. 66 (5) [1911] A.C. 735 |