Re Vonchai Tumtonkitkul

HCMP000186/1982

[Particulars of offences which should be entered in order of committal pending extradition.]

Coram: Roberts, C.J., Mayo & Kempster, JJ.

Date: 29 March 1982

-----------------

JUDGMENT

-----------------

Roberts, C.J

1. On the 3rd February this year, a magistrate made an order under section 10 of the Extradition Act 1870, committing Vonchai Tumtonkitkul to prison to await the issue of a warrant by the Governor for his surrender to the Netherlands for trial on the offences which were set out in his order.

2. On the 9th February, an ex parts application was made by the applicant to a Judge of the High Court, for leave to apply for the issue of a writ of habeas corpus. The Judge ordered that the "application be adjourned for hearing before the Full Bench so that notice thereof may be given" to the various persons who were listed in his order.

3. Order 54 of the Hong Kong Rules of the Supreme Court, which deals with applications for a writ of habeas corpus, is not without difficulty, and we are left in some doubt as to which paragraph of Order 54 was the basis of the judge's order. However that may be, when the matter came before us this morning, we permitted counsel for the applicant, with the consent of counsel for the Crown, to address us as if this were the substantive application for the issue of a writ of habeas corpus and were based on an originating summons which had been properly issued.

4. It emerged, however, when counsel for the applicant addressed us, that he was not in fact challenging the magistrate's order for the custody of the applicant pending his return to the Netherlands for trial. He was seeking a number of substantial amendments to the terms of the magistrate's order, on which, of course, the Governor's warrant for the applicant's return to the Netherlands would be based.

5. The effect of the amendments which he seeks would be to reduce the number of offences and to make the remaining ones more particular in detail, so as to limit the offences for which the applicant could properly be tried in the Netherlands.

6. It was necessary for us to decide whether we have power, on an application of this nature, to amend the order of a magistrate. We were referred to no authority either way in direct terms, though R. v. The Governor of Brixton Prison, ex parte Armah^(l), in particular the speech of Lord Reid at pages 234 and 235, appears to encourage a pragmatic and flexible approach by the courts in applications of this nature, where the statute is silent, if such an approach is necessary in order to achieve substantial justice.

7. We think that it would be unfortunate if the Full Bench, when dealing with an application for the issue of a writ of habeas corpus (or an application for leave to apply) were not able to deal with the terms of an order for committal which had been issued by the magistrate. Therefore, encouraged by Armah' s Case⁽¹⁾, we decided that we do have power to make such amendments to the magistrate's order as are justified by the documents which were put before him.

8. In the alternative, we were asked by counsel for the applicant, again with the concurrence of counsel for the Crown, to permit him to proceed alternatively by way of an application for judicial review under Order 53. We gave him leave, in case we decided that we could not act under the Extradition Acts themselves, as we havedecided we can do.

9. One of the reasons why we favoured proceedings under the Extradition Acts was that, if we had proceeded under Order 53, by way of certiorari, we would have been obliged to return the order to the magistrate for him to amend it instead of amending it ourselves, an, additional step which we would in any event have wished to avoid if possible. Although we did not hear full argument on the matter we are inclined to think that Order 53 would have been available to us had this been necessary.

10. The various amendments to the magistrate's order, which are necessary to achieve ,justice in this case, have been agreed by counsel on both sides. They are embodied in the order which is attached to this judgment. We commend it to magistrates as a guide for use in future applications under the Extradition Acts. In particular we draw their attention to the desirability of setting out clearly the offences alleged both against Hong Kong law and against the Law of the requesting state.

11. In the result, we order that the application for the issue of a writ of habeas corpus be refused. The effect is that the applicant will remain in custody under the warrant which was issued on the 3rd February by the magistrate.

12. We are not disposed to adopt the artificial procedure suggested, albeit very tentatively, by counsel far the Crown, of ordering the issue of a writ of habeas corpus, regarding today as being its return date and refusing to issue it now, thus extending the period allowed by section 12 of the Extradition Act 1870 to two months as from today.

13. We appreciate that, as a result of our refusal to adopt this course, the two months within which a person who is subject to an order under the Act must normally be conveyed out of the territory will have expired on the 2nd April.

14. It would therefore be open to the applicant, on or after the 3rd April, to apply .for his discharge from custody under section 12 of the Extradition Act 1870. However, in view of the course which these proceedings have taken, we think it unlikely that a Judge of the High Court would be inclined to accede to such an application, unless it could be shown that the Crown had taken an unreasonable period, as from today, to arrange far the return of the applicant to the Netherlands for trial.

15. We amend the magistrate's order of the 3rd February in the terms which. have been agreed by counsel and which effectively embody those alterations which were read out in open court to us earlier this morning by Mr. Huggins, who appeared on behalf of the applicant.

Representation:

A.A. Huggins (Hampton, Winter & Glynn) for the Applicant

R. Pritchard, Crown Counsel, for Crown.

EXTRADITION ACT 1870

-------------------

--------------------

ORDER OE COMMITTAL (UNDER SECTION 10)

Whereas requisition has been made to the Governor of Hong Kong by the Government of the Netherlands for .the extradition to Holland of Vonchai Tumtonkitkul under the provisions of the Extradition Acts 1870-1932 and the Treaty fo 26 September 1898 ,as read with the Extradition (Hong Kong) Ordinance Cap. 236,I, J.C. Griffiths, permanent magistrate of Hong Kong, make the following order:

I have read the evidence submitted to me, including that of the defence, and I am satisfied on the evidence as a whole that there is a prima facie case against the person accused such as would be sufficient to justify the committal of Vonchai Tumtonkitkul, who has been duly identified to me, for the following offences:

I therefore order that ,you, Vonchai Tumtonkitkul, be committed to jail custody to await your return to the Netherlands under arrangements to be duly made.

(1)    [1968] A.C. 192.

This order incorporates amendments made by the Full Bench on 29th March 1982.