Robert Henry Cosby v. The Government of the Usa and Another

HCAL000153/1999

HCAL153/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 153 OF 1999

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Coram: Hon Stock J in Court

Dates of Hearing: 18 and 21 January 2000

Date of Judgment: 21 January 2000

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J U D G M E N T

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1. This is the second application made by this applicant the effect of which is to challenge the legality of his detention pursuant to the making of a request for his surrender to the United States of America as an alleged fugitive criminal. In November 1999, I heard argument for two days on an inter partes application for judicial review. The applicant had then sought to quash the decision of the Chief Executive, made pursuant to the provisions of section 6(2) of the Fugitive Offenders Ordinance, to issue to a magistrate an authority to proceed in respect of a request from the US Government for the surrender of the applicant. I delivered judgment on 12 November 1999, and dismissed the application.

2. The application now filed is an application for a writ of habeas corpus. Since my judgment in November, committal proceedings before the magistrate have taken place, and the magistrate has ordered that the applicant be committed to custody to await the decision of the Chief Executive whether to order his surrender. It is the legality of that order of committal that is now challenged.

The facts

3. The facts are fully rehearsed in that judgment and it is unnecessary for the purpose of this judgment to repeat the facts, save in the very broadest way, not least because it is not suggested that, in so far as the magistrate found that there was a prima facie case of conspiracy to defraud and theft disclosed by the evidence placed before him, he erred. It suffices to say that the applicant is a national of the USA who is wanted there under an indictment issued in December 1998, alleging against the applicant two counts of money laundering, and a third which seeks forfeiture of sums thus allegedly laundered. The laundered money is said to be the proceeds of fraudulent activity by the applicant, and others, in making fictitious sales to companies under the applicant's control; filing false reports with the US Security and Exchange Commission; and causing stocks to be sold to an investing public duped by reports of the supposedly genuine sales.

The earlier proceedings

4. An authority to proceed was issued by the Chief Executive on 10 September 1999 and stated that the applicant was "wanted in [the United States of America] for prosecution in respect of the offence of conspiracy to defraud".

5. The grounds of the attack in the November proceedings ran along these lines : that the applicant could no longer be prosecuted in the USA for such conspiracy to defraud as might be said to underlie the money laundering offences, because the last of the acts alleged against the applicant took place in February 1994 so that it was, by the end of 1999 and thereafter, too late, by reason of US statutory limitation periods, to prosecute in the United States for conspiracy to defraud; but that he could not be extradited from Hong Kong to the USA for money laundering, because money laundering was not at the time of its alleged commission an offence in Hong Kong. Money laundering, it was suggested, was the actual offence for which he was wanted in the USA, and the conduct for which his request had been made was money laundering - that was the actus reus for which his request was surrendered. The argument went on that the money laundering offence or conduct was not therefore a relevant offence as that is defined by the Fugitive Offenders Ordinance, and since, by reason of section 4 of that Ordinance, a person could only be surrendered in respect of a relevant offence, this applicant was not, and could not, become liable to surrender pursuant to the request that had been made, and that therefore the authority to proceed was unlawful. Furthermore, that there could self-evidently be no observance of the specialty rule to which effect is given by section 5(2) of the Ordinance and which is housed in the USA - Hong Kong agreement, in so far as it was obvious that the applicant would be prosecuted in the USA for an offence other than the offence for which his surrender was ordered. For reasons which I set out in considerable detail in the November 1999 judgment, I rejected the arguments advanced and dismissed the application for judicial review.

Subsequent developments

6. There have been a few developments since that judgment which I must mention. First, the Chief Executive issued a second authority to proceed. It is dated 12 November 1999 and reads as follows :

" A Request for Surrender having been received from the Government of the United States of America for the surrender of Robert Henry COSBY, who is wanted in the said place for prosecution in respect of the offences of :

(1)	conspiracy to defraud; and
(2)	theft.

I hereby order that the said person be dealt with under Part II of the Fugitive Offenders Ordinance ....."

7. Second, there was filed before the magistrate evidence in addition to that which was before me when the judicial review was canvassed, and which had originally been submitted by the authorities of the USA with their original surrender request.

8. Third, the magistrate, on 6 December 1999 made the order for committal.

9. There are two grounds now advanced in support of this application. I say "now" advanced because, save for the first ground, they differ materially from the grounds advanced when the application for the issue of this writ came before me on an ex parte basis. I thought then, without the advantage of argument from the other side, that there might be substance in one of the grounds then advanced, but it has been abandoned; no doubt because, upon further consideration, counsel took the view that it had no merit. I have to say that had the present grounds been then advanced, it is likely that I would have dismissed the application then as showing no substance.

Relitigating the same point

10. The first ground put forward is :

"Whether the Applicant is a person liable to be arrested and surrendered to the USA within the meaning of section 4 of the Ordinance, in particular whether he is wanted there for prosecution 'in respect of a relevant offence against the law of that place'."

The magistrate is said to be wrong in determining that the offence to which the authority to proceed related was a relevant offence. This issue is precisely the issue which was canvassed in very great detail before me in the November proceedings, and which was decided by me then, and dealt with at length in the judgment which I then delivered. It is conceded in the skeleton argument placed before this court that the issue is identical.

(1) Issue estoppel

11. What, however, he says is this : "It is submitted that this court is not bound by the ruling because the decision on the identical issue is plainly wrong, Huddersfield Police Authority v. Watson [1947] KB 842, 848, and R. v. Manchester Coroner, ex parte Tal [1985] 1 QB 67, 81. In cases involving the liberty of the subject, the courts have always adopted a more flexible attitude to the doctrine of stare decisis : see R. v. Taylor [1950] 2 KB 368, 371." Mr Bell says in that skeleton argument that I am not bound by my previous decision because it was plainly wrong, and he wants to persuade me to take a different view.

12. That argument is, in my view, on an entirely wrong track, for it rests itself on judicial precedent. What stares one in the face, I would think, in the present case, is that this is an instance of res judicata estoppel, a matter which is altogether different :

"..... a res judicata is a decision pronounced by a judicial tribunal having jurisdiction over the cause and the parties which disposes once and for all of the matters decided, so that except on appeal they cannot afterwards be relitigated between the same parties or their privies. ..."

see Spencer-Bower, Turner and Handley : Res Judicata, 3rd Edn, p.4. Whether the decision is or is not correct is then irrelevant. It binds the parties; and public policy requires that as between the parties and their privies, the same issue - whether of fact or of law - shall not be relitigated, save on appeal. "There are two policy reasons", according to Spencer-Bower, at p.10, "which have been invoked to support the doctrine of res judicata estoppel : the interest of the community in the termination of disputes and in the finality and conclusiveness of judicial decisions; and the right of the individual to be protected from vexatious multiplication of suits and prosecutions." I would add that the principle should apply no less to vexation of governments, or those who wield public power.

13. Mr Bell says that estoppel does not arise in this case, and in support of that contention he takes me to a passage in the 2nd Edition of Spencer-Bower at paragraph 210, which says that "... only determinations which are necessary to the decision - which are fundamental to it and without which it cannot stand - will found an issue estoppel." He says that the decision which was at issue in the November case was the decision whether or not the authority to proceed was issued lawfully, and that the determination in my judgment as to whether the applicant was liable to be surrendered in respect of conduct which was said to constitute a relevant offence as that is defined by the Ordinance was not necessarily fundamental to that decision. I might, he contends, have dismissed the application for judicial review nonetheless.

14. I find that a surprising suggestion. One has only to examine that judgment to see how central was that determination to the case as a whole. But, in any event, issue estoppel means what it says : it is directed at issues determined between the parties. When the passage in the 2nd edition of Spencer-Bower to which Mr Bell read makes reference to a decision, it is not referring to the outcome of the whole case; it is referring to the decision on an issue between the parties. The current edition of Spencer-Bower makes that clear at paragraph 178 :

"The term 'decision' may denote either the act, or the opinion of the tribunal - either the grant or refusal of the relief sought or the determination of a question of law, or issue of fact, in contest between the parties."

15. Mr Bell continues that issue estoppel does not arise because the parties to this application for a writ of habeas corpus were not parties, he says, to the application for judicial review. The party to the judicial review was the Chief Executive, and the party to this application for a writ of habeas corpus is the Commissioner of Correctional Services.

16. What happened at the November hearing was that the named respondent was the Chief Executive, but the USA Government asked to be heard in opposition to the application for judicial review. They had been served with the papers. I permitted the USA Government to present its opposition, as is envisaged by Order 53; and in fact, Mr Blanchflower, on behalf of that Government presented all the opposing arguments; and Mr Cooney, on behalf of the Chief Executive, adopted those arguments without more. The suggestion that is also made, and made for the first time today, is that the USA Government is not a party to these proceedings, the habeas corpus proceedings, either. That is said in face of the fact that the party to the committal proceedings was the USA Government; and that the USA Government has been served with the papers in this application for a writ; and that argument has been presented by Mr Blanchflower on behalf of the USA Government throughout this hearing as well, without any demur from Mr Bell; and that in cases going back to 1870, and since, requesting governments have traditionally been parties to habeas corpus applications in extradition cases, and have been named as such in most reports of such cases. It seems to me self-evident that the USA Government, as well as the Commissioner, has been a party to these proceedings, or at the very least must be deemed so.

17. The point taken by Mr Bell is not sound. Spencer-Bower (current edition) asserts at p.218 that :

" The parties to proceedings in personam include not only one originally named as such, but also one who intervenes and takes part in the proceedings ...."

And in the judgment of Lord Denning MR, in the case cited for that proposition - Tebbutt v. Haynes [1981] 2 AER 238, the Master of the Rolls said, at page 242 :

"I ventured [in McIIlkenney v. Chief Constable of the West Midlands Police Force [1980] QB 283] to suggest this principle : if there has been an issue raised and decided against a party in circumstances in which he has had a full and fair opportunity of dealing with the whole case, then that issue must be taken as being finally and conclusively decided against him. He is not at liberty to re-open it unless the circumstances are such as to make it fair and just that it should be re-opened."

Not only, in the present case, has the issue which Mr Bell now seeks to re-argue, been fully argued on behalf of the applicant and decided against him, but it was decided as between the applicant and the USA Government who were effectively party to the proceedings in November as well as now. One has to look at the principle behind the rule. It is a principle of public policy, and it would be quite contrary to public policy, and to common sense, to permit the matter to be relitigated simply because the USA Government was not formally a party. In my judgment, the rule applies nonetheless.

(2) Abuse of process

18. I do not think, in the circumstances, that it is necessary to go into much detail on the alternative ground advanced by Mr Blanchflower, namely, that the relitigation of the issue is an abuse of process, even if, because the parties are not quite the same, issue estoppel were not made out (and he reminds me that the Commissioner of Correctional Services was not party to the November proceedings, yet is a party to these). But it is plain that there may be an abuse readily constituted by reason of an attempt by one party to relitigate the same matter where the plea of res judicata is avoided by mere change of the identity of an opposing party. In this case, I note that the change in the opposing party - and I ignore for the moment my conclusion that the USA Government has effectively been party in both cases - the change in opposing party from Chief Executive in the November case, to Commissioner of Correctional Services in this hearing, is in truth of a technical nature. Had the November case been mounted as an application for habeas corpus rather than judicial review, as well it might have been, the respondent would necessarily have been the Commissioner of Correctional Services.

19. In Reichel v. McGrath (1889) 14 AC 665, Lord Halsbury was of the view that :

"It would be a scandal to the administration of justice if the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again."

That is precisely the effect of what is sought to be achieved now. If such a course were permitted, it would be open to a fugitive offender to take the very same point at each of the several potential stages of challenge in extradition proceedings merely by changing the form of the proceedings. Take the following example : an authority to proceed is issued by the Chief Executive, and it may be that habeas corpus proceedings are issued with the Commissioner of Correctional Services as respondent. A committal order is made by a magistrate, and perhaps a judicial review launched with that tribunal as respondent. Then an order for surrender is made and proceedings issued with the Chief Executive as respondent. Is it then to be said that the same basic argument can be run on each occasion despite a final judicial decision at the first challenge, merely because the named respondent is different on each occasion? That cannot be so. It would "bring the administration of justice into disrepute among right-thinking people" (see Hunter v. Chief Constable of the West Midlands Police and Others [1982] AC 529, 536).

20. Mr Bell says that there is shown in seeking to relitigate the same issue in this case no collateral purpose on the applicant's part. The answer to that, is that collateral purpose is but one manifestation of abuse. It is not the exclusive example of what may constitute an abuse. He says that if the point is not now taken afresh, the applicant might be surrendered to the USA. That ignores the fact that other grounds are pursued in this application and, more particularly, that there is pending an appeal to the Court of Appeal against my judgment of November 1999; indeed, against the very point which Mr Bell now wants to re-argue. To suggest that somehow the applicant might nonetheless be surrendered to the USA is a proposition which is wholly unrealistic. If the Chief Executive sought to do so in the face of pending appeals against the November decision, and no doubt against the decision in this habeas corpus application, his order would be challenged forthwith, and no doubt successfully.

21. In short, I am satisfied that the applicant is estopped from relitigating the point which is the subject of Ground 1 in this application for habeas corpus. It is a matter which has been fully litigated and determined in the November proceedings as between the applicant and the USA Government who must be deemed to have been a party to those proceedings. In so far as the Commissioner for Correctional Services was not then a party, or if I am wrong that the USA Government should be deemed a party in the November or in these proceedings, I hold nonetheless that it would be an abuse of process to set up the same case again in this application.

22. The applicant has launched an appeal against the judgment of 12 November. That is the course open to him, but I shall not permit Ground 1 to be re-argued in this application for a writ of habeas corpus; nor the ground which is itemized as Ground 2(1) which says that the magistrate erred applying the reasoning of the November judgment in holding that the offence to which the authority to proceed related was a relevant offence.

The content of the committal order

23. The committal order is in the following terms :

"ORDER OF COMMITTAL

To each and all of the authorized officers of Hong Kong SAR and to the Commissioner of Correctional Services.

Pursuant to section 10(6)(b) of the Fugitive Offenders Ordinance, Cap. 503, I hereby order Robert Henry COSBY to be committed to custody -

(a)	in respect of the following offences :
	(i) conspiracy to defraud;
	(ii) theft;
(b)	to await the Chief Executive's decision as to his surrender, in respect of those offences to the prescribed place by which the request for surrender in respect of such person was made; and
(c)	if the Chief Executive decides that he shall be surrendered to that place, to await such surrender.

Dated this 6th day of December 1999. ....."

24. The second ground upon which this application is founded is that the magistrate erred in law "in failing to identify and particularise in his order of committal the relevant offences (as he found then to be) and in failing to give reasons to explain his decision". It is said that contrary to established practice, the prosecution never, for the purpose of the committal proceedings, furnished a schedule of draft charges based on the evidence and formulated in terms of Hong Kong law. That omission was repeated by the committal order with the result, it is said, that there is then no means by which the Chief Executive can know in respect of what offence, or offences, the committal order has been made, and for which the applicant is therefore liable to be surrendered; nor for the court of trial in the requesting jurisdiction to know whether the specialty provision has been, or is being, honoured. So too the applicant remains, by reason of these omissions, ignorant of the charges in respect of which the committal order has been made.

25. In support of his proposition, Mr Bell refers me to R. v. The Governor of Pentonville Prison, ex parte Osman [1989] 3 ER 701, an extradition from the United Kingdom to Hong Kong under the Fugitive Offenders Act 1967. In the course of one of the judgments in that case, reference was made (at pp.723 and 724) to a suggested practice in England in extradition cases of furnishing the magistrate with a schedule of charges based on the alleged conduct, and formulated in accordance with English law. Mr Bell then takes me to a Hong Kong report, Fung Chuen Kan and Another v. The Government of the United States of America [1994] 1 HKLR 164, and he relies on it because on one page of that report, p.170, the Court of Appeal recites the passage from Osman which refers to that suggested practice. From this, I am invited to say that the same practice applies, or should apply, to orders for committal, and not only that, but that it is obligatory for the committal order to itemize charges and then to particularize them. I can only say that nothing of the sort follows from these citations. The passage from Osman was referred to in the judgment in Fung for a different proposition altogether. The question at that point under consideration was whether the committing magistrate ought to confine his consideration of the evidence and material before him to the particulars contained in the American indictment, and the Court of Appeal, holding that it was erroneous to rely on the foreign indictment, emphasized its view by reference to the dicta of Lloyd LJ in the Osman case. It was in consideration of that issue that Lloyd LJ made reference to the fact that charges are furnished to a magistrate in terms of English law, and not in terms of the foreign offence.

26. It may well be of assistance in certain cases, and it may well be the practice in many cases, especially complex cases, for the magistrate to be provided with a list of local charges which might be culled from the evidence; but that is not to say that that is a must, or that the magistrate in drawing his order for committal is obliged by law to frame the order for committal as if it were a local charge sheet or indictment. I note from the Osman report that the hearing lasted some 66 working days, with 30,000 pages of exhibits. Counsel in such a case who did not draw a list specifying particular offences disclosed by such a mass of material would not be doing much of a job in presenting a case - though, as Osman makes clear, the list might be varied as the case progressed. What I am concerned with in these habeas corpus proceedings are the obligations imposed by law upon the magistrate and not by a practice - if it is a practice, and if it is a relevant practice - which is not required by law.

27. And in any event, in so far as Mr Bell seeks to translate some practice of drawing specific charges for the purpose of the hearing into a practice of drawing committal orders in the same way, he has not shown me that there is such a practice, let alone an obligation, in the case of committal orders; and Mr Blanchflower, for the respondents, points as a matter of mere example to the committal order made in the USA v. McCaffery [1984] 1 WLR 867, 869, which referred simply to :

"(1) theft;

(2) obtaining property by deception; and

(3) procuring the execution of a valuable security by deception."

28. But all this aside, the authorities are all one way on this point, and they are against the proposition advanced.

29. In Ex parte Piot (1882 - 86) 15 Cox CC 208, the warrant of committal described the offence merely as "fraud by an agent". I note that counsel for Piot argued that persons are not committed in England without depositions naming the actual charge; that there was no such thing as a general commitment; and that fraud by an agent was not a description of one crime, but "the most general term that can possibly be applied, and it is not competent for a magistrate to send abroad upon an extradition warrant a person to be tried there under the authority of the treaty, for any general offence" (see p.212). Pollock B., at p.214, summarized the argument as one that suggested "that there ought to be contained in the warrant a specific description of the offence as if the prisoner were about to be indicted in this country". Mr Bell's argument in this case is an echo of Mr Besley's contention in Piot. But Pollock B. rejected it. He referred to the obligations imposed on a magistrate by the terms of the Extradition Act 1870, section 10. He said this :

"The first question is, what was the nature of the evidence brought before Sir James Ingham? If there was enough to satisfy him that the crime of which the prisoner was accused, if committed in England, justified his committal, then he is to commit the prisoner to abide the order for his surrender. Now comes the question whether Sir James Ingham should do more than say, 'Fraud as an agent.' No doubt fraud as an agent might or might not, according to the particular facts proved, constitute a crime which would justify the committal of the prisoner for trial in this country; but there is nothing in the statute which requires that the crime which would justify his committal in this country should be stated specifically in the warrant of detention. It seems to me that in this case the warrant was perfectly sufficient for the purpose which was intended by the statute, ..."

30. In In re Bellencontre [1891] 2 QB 122, the warrant referred merely to fraud by a bailee and frauds by an agent; that in the face of 19 separate charges which had been framed by the French authorities. It was suggested by counsel that some of the charges in that French warrant must fail, and as the committal by the magistrate appeared to be on all, the failure of one vitiated the entire warrant. Wills J rejected the argument, saying :

"The warrant is statutory in its form, and is not to be construed as an ordinary English common law document, and it is not at all necessary, in my judgment, that there should be anything like the same particularity that there would be in respect of the warrant of committal to the goals to this country under ordinary circumstances."

31. The same approach is to be found in Re Archondakis (unreported) 16 November 1994, a judgment of the Queen's Bench Division.

32. Section 10(6)(b) of the Fugitive Offenders Ordinance provides as follows :

"(6)			Where -
	......
	(b)	an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied -
		(i)	that the offence to which the authority relates is a relevant offence;
		(ii)	that the supporting documents in relation to the offence -
			(A) have been produced; and
			(B) are duly authenticated;
		(iii)	where the person is wanted for prosecution in respect of the offence, that the evidence in relation to the offence would be sufficient to warrant the person's committal for trial according to the law of Hong Kong if the offence had been committed within the jurisdiction of that court or any other court;
		....

the court shall (unless the person's committal is prohibited by any other provision of this Ordinance) by order commit to him to custody ......"

There is nothing to be found in that section (or in any other for that matter) which imposes upon the magistrate an obligation to list separate individual offences or to particularize them.

33. The only directive as to the form of the order is to be found in section 22 which provides that the order of committal must be in the prescribed form. Form 6 is the prescribed form for orders of committal, and all it requires is that the magistrate should "identify the offence(s) by reference to the Hong Kong offence(s), falling within the description specified in schedule 1 to the Fugitive Offenders Ordinance." That is precisely what the magistrate has done in this case, for paragraph 9 of Schedule 1 refers to "theft", and paragraph 44 to "conspiracy to defraud".

34. The flaw in Mr Bell's argument is that it equates a committal order under the Fugitive Offenders Ordinance with an indictment, whereas a committal order is the lawful authority for detention until surrender, and that is quite a different animal altogether.

35. These points suffice to answer that part of the second ground which relates to the form of the committal order. But in so far as Mr Bell asserts that the failure to specify the offences in the committal order gives rise to a risk of confusion when the person surrendered is tried in the requesting jurisdiction, and a risk that there might be a breach of the specialty provision, the point is answered in the judgment of Manisty J in Piot at p.216 :

"Mr. Besley contends strenuously that the particular crime for which the prisoner is detained must appear upon the warrant, for this reason, that it is that crime alone for which he can be tried. As I understand the argument it is, that the crime must be so specified in the warrant that the man can be indicted for no other. Now, if you look at the Act of Parliament you will find that it is not the warrant that is to be looked to for ascertaining what the offence or crime is for which the man is to be detained. Sub-sect. 2 of sect. 3 is in these terms : 'A fugitive criminal shall not be surrendered to a foreign state, unless provision is made by the law of that state, or by arrangement, that the fugitive criminal shall not until he has been restored, or had an opportunity of returning to Her Majesty's dominions, be detained or tried in that foreign state for any offence committed prior to his surrender other than -' Other than what? Not other than the offence stated in the warrant, but, 'other than the extradition crime proved by the facts on which the surrender is grounded.' Now, where do you find the facts? You find the facts in the depositions and not in the warrant."

36. In any event, section 5(2) of the Fugitive Offenders Ordinance precludes surrender unless provision is made in the prescribed arrangement for securing that the surrendered person would not be "dealt with in [the requesting jurisdiction] .... in respect of any offence" other than "the offence in respect of which his surrender is ordered"; and the point is that such an arrangement is in fact prescribed by the USA-Hong Kong Agreement (Article 16). It is not for the magistrate to speculate whether the requesting jurisdiction will or will not honour that obligation. If any such question arises, it is a question to be addressed by the executive.

37. Furthermore, there can, it seems to me, to be no question in the mind of anyone who studies the evidence what is the conduct, or indeed what are the offences, in respect of which the order of committal has been made. They are the offences to which the authorities to proceed related, and those authorities related to the evidence which has been placed before the magistrate with those authorities. Least of all is the applicant in the dark. The hearing before the magistrate took place on 25 and 26 November 1999. The applicant and his advisors were in possession of all the evidence well before that hearing. There was, before that hearing, no request to particularize the offences in respect of which committal was to be sought. At the hearing - and this is common ground - counsel for the applicant said that there were no particulars of the conspiracy to defraud and the theft, and counsel for the Government of the USA thereupon orally provided information about the conspiracy alleged, and the thefts alleged. That information was not met with any further request by those acting for the applicant. On 26 November, the case was adjourned until 6 December to give the parties time to prepare written submissions. Those acting for USA Government were required to file their arguments by 1 December; the applicant by 2 December. The USA Government's submissions were in fact filed on 30 November. That submission specified each of the conspiracies alleged and each of the thefts. There is no question of the applicant not knowing the case against him, and not knowing in respect of what conduct the committal order has been made. In so far as counsel for the applicant has referred to a practice of providing particulars, they were in any event provided in this case, both orally and in writing.

The failure to give reasons

38. When the magistrate had considered the evidence and the submissions, he said this :

"Having considered all the evidence available, I am satisfied that there is sufficient evidence to commit Robert Henry Cosby in respect of the two offences stated in the authority to proceed dated 12 November 1999 to custody to await the Chief Executive's decision as to his surrender in the United States of America, the requesting country in this matter. Robert Cosby will not be surrendered until 15 days have expired. Robert Henry Cosby is informed of his rights to apply to the Court of First Instance under section 12 of the Fugitive Offenders Ordinance to make an application for habeas corpus."

The complaint is made that the magistrate failed to give any reasons for his decision. That failure is said to be against modern extradition practice, and is said to be unfair and contrary to natural justice.

39. The question again is not whether there is a practice, but whether there is a duty in law. This question was considered in Rey v. Government of Switzerland and Another [1999] 1 AC 55. The complaint there was that the magistrate failed to give reasons on disputed issues of fact. In the context of the Extradition Act 1994 (as applied to the Bahamas to which country the applicant in that case had fled), "counsel acknowledged that there was no authority for the proposition that a magistrate seized with the duty under section 10(5) of the Act of 1994, or a like provision, to decide whether to commit an accused person to custody to await extradition is bound to give reasons for his or her decision" (see p.66).

40. Slynn LJ, delivering the judgment in that case, said :

"Despite a growing practice in England of stipendiary magistrates to give reasons in extradition proceedings it has not been held that magistrates are under a legal duty to do so. And the legal position in England is perhaps justified by the right of the fugitive to apply for habeas corpus to the Divisional Court if the decision of the stipendiary magistrate goes against him: see section 11 of the Extradition Act 1989. Turning to the position in The Bahamas, a person committed to custody for extradition has under section 11 of the Act of 1994 a right to apply for habeas corpus to the Supreme Court with a further right to appeal to the Court of Appeal if his application for habeas corpus is refused. In these circumstances their Lordships are not prepared to hold that there is a general implied duty upon magistrates to give reasons in respect of all disputed issues of fact and law in extradition proceedings. But their Lordships must enter a cautionary note: it is unnecessary in the present case to consider whether in the great diversity of cases which come before magistrates in extradition proceedings the principle of fairness may in particular circumstances require a magistrate to give reasons. It did not so require in this case. It follows that in the present case the magistrate's failure to give reasons on disputed issues of fact was not unlawful."

And, of course, there is the right in Hong Kong to apply to this court for habeas corpus, and a right to further appeals. Yet Mr Bell says that this is a case in which a duty to give reasons is implied, most particularly because return is sought for money laundering, and the committal is in respect of conspiracy to defraud. I have to confess some difficulty in following that reasoning. In particular, I fail to see why reasons were required in this case. What is it that the magistrate was expected to say, beyond the finding that there was sufficient evidence to commit in respect of the offences of conspiracy to defraud and theft? The evidence and the submissions made perfectly clear the conduct and offences in respect of which the order was made; and I note, too, that the magistrate was not invited to provide reasons or clarification. There was, in my judgment, no duty upon the magistrate to say more than he did when he announced his decision. I further fail to see from whence Mr Bell derives the proposition that the giving of reasons for a finding is general practice in such cases; but, as I say, that is not to the point. The point is whether there was a duty to do so in this case, and I find that there was not.

Conclusion

41. I find therefore that there is no merit in the grounds which attack the committal order and the omission by the magistrate to provide reasons for his decision to commit beyond the statement that there was sufficient evidence to do so. The applicant is precluded from relitigating the arguments advanced at the November judicial review. Accordingly, no basis is established for the suggestion that the committal order is unlawful. I am satisfied that the order was lawfully made, and that being so, that the applicant's present detention is lawful. The application for the issue of a writ of habeas corpus is therefore dismissed.

Addendum

42. There is by way of addendum one matter which I should make quite clear. There are passages in this judgment which speak of references by counsel to the second edition of Spencer-Bower, and I have referred to passages of clarification which I have found in the third edition. It should not for one moment be thought that counsel has acted in any way other than perfectly properly. The fact of the matter is that I hold the only third edition available in this building, and both counsel in this case had access only to the second edition and, quite understandably, thought that it was the latest edition. No criticism of either counsel is in any way intended.

Costs

43. There is an application for costs made by the Commissioner of Correctional Services only, and there are no grounds upon which that can validly be opposed. Accordingly, I shall order that the costs of this application will be paid by the applicant to the Commissioner of Correctional Services.

Representation:

Mr Adrian Bell, instructed by Messrs Erving Brettell, for the Applicant

Mr M C Blanchflower, DPGC of Department of Justice, for the Respondents