Re Yuin Kwei Sang

HCMP000145/1974

IN THE SUPREME COURT OF HONG KONG

(ORIGINAL JURISDICTION)

MISCELLANEOUS PROCEEDINGS NO. 145 OF 1974

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Coram: Full Court (Briggs, C.J. and McMullin J.)

Date of Judgment: 8 July 1974

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JUDGMENT

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1. This is an application for release from custody of a prisoner seized pursuant to a warrant under Section 8 of the Extradition Act of 1870 and in respect of whom a writ of habeas corpus was issued on the 20th June 1974. Mr. Eddis of counsel appeared on behalf of the applicant and Mr. Macdougall on behalf of the Commissioner of Prisons.

2. The circumstances leading up to this application are as follows. The applicant YUIN Kwei-sang was originally brought before a magistrate in 1972 upon a similar warrant issued under the Extradition Act pursuant to the Order of His Excellency the Governor of Hong Kong following upon a requisition in that behalf by the Consul General of the United States. It was notified in that requisition that a warrant was outstanding in the Southern District of New York charging the applicant with four violations of that part of the United States Code which deals with the illegal drug traffic.

3. Evidence was adduced on that occasion but the magistrate, having considered it, was of the view that a certain technical deficiency existed in the body of evidence put before him. At the conclusion of those proceedings therefore the discharged the applicant on the 18th December, 1972. The applicant was once again apprehended in Hong Kong on 22nd March, 1974 and was then detained at the Victoria Reception Centre with a view to extradition proceedings being recommenced against him in respect of the same charges. While the extradition procections were pending he applied to this court for a writ of habeas corpus directed to the Commissioner of Prisons to show lawful cause for his detention. It is pursuant to the writ thereupon issued, following a hearing at which Mr. Eddis and Mr. Macdougall attended, that he now appears before this court. The original return date in respect of the hearing was cojourned at the request of the legal representatives of both parties in order that the extradition proceedings before the magistrate should proceed to conclusion before the question of the lawfulness of the prisoner's detention should be pursued under the application for the writ of habeas corpus.

4. Upon the evidence adduced before him on these second extradition proceedings, the magistrate found a prima facie case sufficient to order the extradition of the applicant, who was then, as the Act requires, remanded in custody for two weeks and informed of his right to pursue his remedy by way of habeas corpus.

5. Upon the present application for his discharge Mr. Eddis makes two principal points. The first concerns the identity of the applicant and of the drugs which form the subject matter of three of the counts with which he was charged in the United States. And the second raises the issue of estoppel or double jeopardy.

6. As to the first point we think that the proceedings before the magistrate clearly showed that the applicant had a prima facie case made out against him. We agree with Mr. Macdougall that the proceedings before the magistrate are analogous to committal proceedings before a magistrates court and for that reason we do not consider that we should attempt to consider the various deficiencies alleged against the evidenco upon which he was committed to prison. This is not a case in which it can be said there was no evidence upon which extradition could have been ordered. It is not, in our opinion, for this court to query the weight of the evidence adduced before the magistrate. This applies both to the identity of the drugs as well as to the question of the identification of the present applicant as the person wanted by the American courts in connection with these charges. In this regard we would adopt the observations of Field, J. in The ...(illegible) v. Haurer⁽¹⁾ [approved and applied in Re Kwesi Armah (1966) 2 All E.R. 1006] where at page 515 he says:

"So long as the magistrate keeps within his jurisdiction we have no power to interfere with his decision. It is only when there is no jurisdiction, as when there is no evidence before the magistrate, that we can interfere."

7. We would like to make it clear that in our view the second magistrate dealing with the prissner in respect of the same charges was dealing with a body of evidence which was new in a vital respect inasmuch as a gap in the evidence adduced before the previous magistrate had been repaired. Mr. Eddis suggested this could not be regarded in the true sense as new evidence because, as he put it, that evidence was already in the pessession of the American authorities at the time of the previous extradition proceedings. In our view there is nothing in this point. The evidence was new in the sense that the magistrate in the subsequent proceedings was dealing afresh with the prissner arrested under a new warrant and had before him then for the first time under that warrant a body of evidence which included the new evidence and he found that evidence was sufficient to support his order for extradition.

8. We turn now to the second point, which Mr. Eddis regarls as his main contention and which is that the issue before the magistrate on the second extradition proceedings - viz.: is the evidence sufficient to warrant extraditing the prissner? - had already been disposed of finally upon the original extradition proceedings before the previous magistrate.

9. We see no reason why, when the Crown has been unsuccessful in bringing committal proceedings before the magistrate upon the evidence then adduced, they should not commence subsequent committal proceedings when additional evidence is available. The case will then depend upon the weight of such additional evidence and that is a question for the magistrate to determine. Authority for this is to be found in Vicente Sotto v. Welch⁽²⁾ and in R. v. Governor of Brixton Prison Ex parte Stallmann⁽³⁾.

10. In the latter case Lord Alverstone had this to say:

"In my judgment it would defeat the whole object of the treaty if an untried criminal - i.e., untried in the strict sense of the word - could be allowed to be acquitted or discharged because there had been some prior discharge without the case having been dealt with finally."

He was there dealing with the extradition treaty between Germany and Great Britain but the same observation clearly applies in respect of the present situation in view of the fact that a similar treaty exists between Great Britain and the United States and is the relevant treaty in respect of the present proceedings. We would also repeat with approval the quetation from Piggett Extradition which was adopted by the court in the Vicente Sotto case⁽²⁾ and which appears at page 10 of the report. It is in these terms:

"In an ordinary case of a crime committed in England, the prisoner is not acquitted when he is discharged by the magistrate on the ground that the evidence is insufficient for committal. And so in extradition proceedings, the finding is either that there is no evidence to justify the issue of the warrant of detention in the first instance, or, on the hearing of the case, that there is no evidence to warrant his being committed for surrender. This could not preclude fresh evidence being produced, and another warrant being issued. The nature of the application for extradition does not touch the question of guilt, the English Court not being concerned with it; and it is only when that question is in issue that the plea of autrefois acquit is available."

We do not think that any species of issue estoppel other than that described by the phrase "autrefois acquit" is relevant in the circumstances of the present application and therefore the recent decision in Reg. v. Hogan⁽⁴⁾ is of no assistance to the applicant. The determination by a magistrate of the issue before him in favour of a prisoner upon extradition proceedings can be regarded as final only in the sense that the warrant upon which the prisoner was arrested and under which he is held must be discharged and the prisoner set at liberty. It does not preclude further proceedings upon fuller evidence.

11. There is a significant difference between the language employed in Article 4 of the treaty in comparison with that used in Article 11. In the former it is said that if the person whose extradition is sought has been convicted or discharged in the country to which the application for extradition is made in respect of the same offence for which extradition is sought extradition shall not take place; in Article 11 it is said merely that if sufficient evidence is not produced within the two month period the fugitive shall be set at liberty.

12. For these reasons the application is dismissed.

Representation:

(1) 1883 10 Q.B.D. 513.

(2) 9 H.K.L.R. 1.

(3) (1912) 3 K.B. 424.

(4) (1974) 2 W.L.R. 357.