See Cherk Ching v. Superintendent of Lai Chi Kok Reception Centre and Another

HCAL 4/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 4 OF 2005

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BETWEEN

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Before : Hon Hartmann J in Court

Dates of Hearing : 6 – 9 September 2005

Date of Handing Down Judgment : 30 September 2005

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J U D G M E N T

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Introduction

1.The applicant seeks the issue of a writ of habeas corpus to be directed to the superintendent of Lai Chi Kok Reception Centre.  The applicant is held in custody in that prison awaiting a decision by the Chief Executive whether to surrender him to the Government of the Kingdom of the Netherlands.

2.The Netherlands has sought the extradition of the applicant on the basis that he stands accused in that country of various criminal offences.  In Hong Kong terms, the offences include conspiracy to manufacture and traffic in dangerous drugs; conspiracy to import, possess, manufacture and distribute controlled chemicals; unlicensed possession of arms and ammunition (including automatic weapons, grenades and grenade launchers) and possession of a false instrument; that is, forged papers.

3.As a broad definition, extradition is the delivery by one government to another of persons accused or convicted of crimes committed (and justiciable) in one state or territory who have fled to another.  Hong Kong law regarding extradition is not to be found in the common law.  It is entirely dependent on statute, that statute being the Fugitive Offenders Ordinance, Cap.503 (‘the Ordinance’) which came into effect in April 1997.

4.The applicant is presently held in custody in terms of an order of committal dated 23 December 2004 made by a magistrate pursuant to s.10(6) of the Ordinance.  It is the applicant’s case that this order of committal is not, in terms of the Ordinance, a lawful order and that his detention is therefore unlawful.

5.As a person accused of criminal offences, the applicant may only be lawfully committed into custody pursuant to s.10(6) of the Ordinance if, among other things, evidence has been placed before the magistrate which, in his opinion, if the offences had been committed in Hong Kong, would be sufficient to warrant the applicant’s committal for trial in this Territory.  In short, to secure extradition, the Netherlands must establish a prima facie case against the applicant in respect of each of the offences of which he is accused.  In this regard, s.10(6)(b) of the Ordinance stipulates that, where an authority to proceed has been issued in respect of an accused person, before that person may be committed into custody to await the Chief Executive’s decision as to his surrender, the magistrate must be satisfied 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 …”

6.However, the evidence presented by a requesting government must not only be sufficient to establish a prima facie case against an accused person, it must be evidence which – in terms of the Ordinance – the magistrate is permitted to consider.  If the evidence presented to the magistrate does not comply with the requirements of the Ordinance then the magistrate may not take it into account.  It is inadmissible and a prima facie case may not be founded on inadmissible evidence.

7.It is the applicant’s case that the evidence supplied by the Netherlands, and upon which the magistrate relied to find a prima facie case, was not evidence – in its greatest and determinative bulk at least – which the magistrate was entitled to consider under s.10(6) of the Ordinance.  As such, it was inadmissible and could not go towards founding a prima facie case.

8.On behalf of the applicant, Mr Blanchflower SC has conceded that, if the evidence supplied by the Netherlands does comply with the requirements of the Ordinance, then it would demonstrate a prima facie case.  The challenge does not therefore go to the issue of sufficiency of evidence, it goes to the issue of whether the evidence in the form tendered has met with the requirements of the Ordinance.

9.Mr Blanchflower has submitted that the magistrate was not entitled to consider the evidence tendered by the Netherlands for two reasons.  First, the evidence itself, consisting of witness statements, police reports and the like, was not in the form of depositions or statements on oath or affirmation.  Second, the translations of the evidence from Dutch into English, while certified by the translators as accurate, were not certified on oath or affirmation to be accurate.

10.Prior to the Ordinance coming into effect in April 1997, applications to Hong Kong for the extradition of accused persons were made under what stock J (as he then was) described in Tiongco v. The Government of the Republic of the Philippines and Another [1998] 2 HKLRD 282 as ‘the umbrella of United Kingdom legislation applied to Hong Kong’.

11.That legislation – the Extradition Act 1870 (which related to foreign states) and the Fugitive Offenders Act 1967 (which related to Commonwealth countries and British Commonwealth territories) – required that, to secure the extradition of a person accused of criminal offences, the requesting government had to establish a prima facie case in respect of those offences.  S.10(6) of the Ordinance follows those ‘earlier statutes’, as I will call them.

12.As to the form of the evidence to be tendered by the government seeking extradition, those earlier statutes stipulated in specific terms that it had to be in the form of depositions or statements on oath or affirmation.  In short, a third party summary of evidence or a series of witness statements bearing no more than a signed confirmation of accuracy were not sufficient and would not be admissible.  As to this requirement, Lord Diplock said the following in Dowse v. Governor of Pentonville Prison and Others [1983] 2 AC 464, at 470 :

“My Lords, … the Extradition Act where it speaks of ‘affirmations’ and ‘depositions’ and ‘statements on oath’ is dealing with documentary evidence.  It makes admissible in evidence in extradition proceedings written statements of fact which fall within any of those descriptions and are duly authenticated … notwithstanding that under English laws of evidence what appears in the statement would only be admissible in the form of oral testimony given on oath by the maker of the statement.  The manifest purpose of the section, as has frequently been stated, is to obviate the necessity of bringing witnesses from one country that is a party to an extradition treaty to give oral evidence in the other.”

13.Unlike the earlier statutes, the present Hong Kong legislation – the Ordinance – does not stipulate that written statements tendered as evidence must be in the form of depositions or must be statements on oath or affirmation.  In determining whether a prima facie case has been established, s.10(6) of the Ordinance requires the magistrate only to consider the evidence contained in ‘supporting documents’ which are supplied by the requesting country and are put before him.  Those supporting documents must, however, be authenticated.

14.Authentication is the means by which a requesting country establishes the genuine nature and legal validity in its jurisdiction of its ‘supporting documents’.  In respect of authentication, s.23 of the Ordinance provides as follows :

“	(1)	Any supporting document or other document which is duly authenticated is admissible in evidence in any proceedings under this Ordinance without further proof.
	(2)	Any supporting document or other document shall be deemed to be duly authenticated if it—
		(a)	purports to be signed or certified by a judge, magistrate or officer of the prescribed place concerned; and
		(b)	purports to be sealed with the official or public seal of a competent authority of that place.”  [my emphasis]

15.For the respondents, Mr Walsh has submitted that, on a plain reading of the Ordinance, there is no requirement for the evidence of witnesses provided in support of a request for surrender to be in the form of depositions or statements on oath or affirmation.  It has been his submission that unsworn witness statements are admissible provided that they are duly authenticated pursuant to s.23 of the Ordinance.

16.For the applicant, however, Mr Blanchflower has submitted that the safeguard afforded to an accused person in extradition proceedings to have the evidence produced against him either sworn or affirmed in some acceptable manner is not only a safeguard of some antiquity but is of such importance that it may now be said to constitute a fundamental right.  As such, he has said, absent express language to the contrary, the Ordinance must be read as retaining that right.  As Mr Blanchflower expressed it in his skeleton argument : “… it would be odd that a right which has been part of extradition statutes for over 130 years was removed by a ‘side wind’.  There is nothing clear and plain to suggest such a change.”

17.In support of his submission, Mr Blanchflower has relied on the words of Lord Hoffmann in Ex parte Simms [2000] 2 AC 115, para.131 :

“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights.  The Human Rights Act 1998 will not detract from this power.  The constraints upon its exercise by Parliament are ultimately political, not legal.  But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost.  Fundamental rights cannot be overridden by general or ambiguous words.  This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process.  In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.  In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.”  [my emphasis]

18.Mr Blanchflower’s submissions, of course, beg the question : is a requirement in extradition proceedings that evidence be sworn or affirmed in some suitable way such an important protection for an accused person that it may be classified as a fundamental right?

19.As to the true interpretation of the Ordinance, Mr Blanchflower has said that s.10(6) demands that evidence submitted by a requesting country be evidence that is admissible according to Hong Kong’s rules of evidence.  Those rules, he has said, demand that evidence – oral or written – must, except in a few exceptional circumstances, always be on oath or affirmation.  That being the case, evidence submitted to the committal magistrate must also be on oath or affirmation.

20.Absent express language to the contrary, that, he has submitted, is how the Ordinance must be read.  In the present case, Mr Blanchflower has said, the Netherlands has not provided evidence that meets that requirement.  As such, virtually all of its evidence is inadmissible and should not have been considered by the magistrate.

21.The core issue therefore is a concise one.  Does the Ordinance demand, first, that evidence presented by a requesting government be by way of depositions or by statements on oath or affirmation and, second, that the accuracy of translations be certified by oath or affirmation?

22.On the basis that there is no express provision in the Ordinance, Mr Blanchflower has argued that, to interpret the true meaning of the Ordinance, it is necessary to conduct a searching examination of the legislative process that led to the enactment of the Ordinance.  In this regard, he has relied on the principles set out in Pepper v. Hart [1993] AC 593.

23.Mr Walsh, however, for the respondents, has said that there is nothing ambiguous or obscure about the relevant language of the Ordinance.  Nor can there be any suggestion that a plain reading of that language would lead to an absurdity.  In the result, on the authorities, it is not open to this court to conduct an examination of the legislative process.  In any event, he has said, references in this court to legislative material should only be permitted where such material clearly discloses the legislative intention lying behind the language that is asserted to be ambiguous or obscure.  In the present case, other than the fact that there appears to have been no direct disclosure nor debate on the issue, the legislative material takes the matter no further.  It certainly does not clearly disclose the intention of the legislature.  It discloses nothing.

24.But that is exactly the point, Mr Blanchflower has replied.  The silence speaks for itself and reveals that there could have been no legislative intent to change what has been a fundamental requirement in common law extradition statutes for over 130 years.

25.In my view, for reasons which I will set out in this judgment, the intention of the legislature can be read in the language of the Ordinance itself.  With respect to the very thorough and multi-layered arguments of Mr Blanchflower, I see no need to embark on a Pepper v. Hart investigation.

26.The Ordinance, which puts into operation Hong Kong’s international extradition obligations, must be read, I believe, in its international context.  In addition, to understand the workings of the Ordinance, something must be said not only of the nature of the extradition process but of fundamental changes to that process which have taken place in a number of common law countries in the past 15 to 20 years.

The nature of extradition

27.While it is no small thing to surrender a person for trial in another state, and while a person in such jeopardy is entitled to the full application of the safeguards accorded by Hong Kong law, it must be remembered that neither the extradition process as a whole, nor the committal hearing before the magistrate, which is part of that process, determines the guilt or innocence of an accused person.  Because persons are only surrendered to states with which Hong Kong has reached extradition agreements, it is taken that an accused person will enjoy a fair and impartial trial in the state seeking his surrender.  As La Foret J observed in R. v. Schmidt (1987) 33 C.C.C. (3^rd) 193 :

“The trial, when held, will be in the foreign country according to its laws for an alleged crime committed there, and it should require no demonstration that such a prosecution is wholly within the competence of that country.”

28.In Re Kindler and Minister of Justice (1992) 84 DLR (4^th) 438, in looking to the fundamental nature of the extradition process, McLachlin J emphasised this principle of mutual respect or comity :

“While the extradition process is an important part of our system of criminal justice, it would be wrong to equate it to the criminal trial process.  It differs from the criminal process in purpose and procedure and, most importantly, in the factors which render it fair.  Extradition procedure, unlike the criminal procedure, is founded on the concepts of reciprocity, comity and respect for differences in other jurisdictions.”

29.In Re United States of America and Smith (1984) 10 C.C.C. (3d) 540, at 554, Houlden J explained the purpose of what in Hong Kong is called the committal hearing in the following terms :

“The purpose of an extradition hearing [the committal hearing] is not to determine the guilt or innocence of the fugitive.  It is merely an inquiry to determine whether there is sufficient evidence to warrant sending the fugitive to the demanding State so that he may stand trial … The extradition judge is not required to weigh the evidence or to decide the credibility of witnesses; his duty is to determine if the evidence would justify the committal of the fugitive for trial if the alleged crime had been committed in [the requested state] … The trial and the full determination of the fugitive’s rights will take place in the courts of the demanding country.”

The traditional common law approach

30.In respect of accused persons, both the Extradition Act 1870 and the Fugitive Offenders Act 1967, as they were extended to Hong Kong, provided the following safeguards :

(i)	The requesting state had to supply evidence which established a prima facie case in respect of each alleged offence or, to express it as the legislation expressed it, evidence had to be produced which would, according to Hong Kong law, justify the person’s committal for trial.
(ii)	In deciding whether there was a prima facie case, the magistrate who conducted the committal hearing had to apply Hong Kong rules of evidence; hearsay, for example, being inadmissible.
(iii)	The evidence itself had to be in the form of depositions or statements on oath or affirmation.
(iv)	In addition, those depositions or statements on oath or affirmation (together with all other supporting documents) had to be authenticated.

31.Prior to the mid-1980s, extradition legislation (governing state to state surrenders) in most of the common law world provided essentially the same safeguards.  The United States of America was a little different in that it committed accused persons on the standard of ‘probable cause’, a pre-trial standard that permits the reception of hearsay evidence.

32.As to the requirement for a prima facie case, s.10 of the Extradition Act 1870 stated that :

“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.”

33.S.7(5) of the Fugitive Offenders Act 1967 was to the same effect :

“Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any evidence tendered in support of the request for the return of that person or on behalf of that person, that the offence to which the authority relates is a relevant offence and is further satisfied—
(a)	where that person is accused of the offence, that the evidence would be sufficient to warrant his trial for that offence if it had been committed within the jurisdiction of the court;
(b)	…
the court shall, unless his committal is prohibited by any other provision of this Act, commit him to custody to await his return thereunder; but if the court is not so satisfied or if the committal of that person is so prohibited, the court shall discharge him from custody.”

34.That Hong Kong rules of evidence had to be applied in determining whether a prima facie case had been established was made clear in a number of authorities.  By way of illustration, in R. v. Governor of Pentonville Prison, ex parte Kirby [1979] 1 WLR 541, at 543, the English Court of Appeal said in respect of the Fugitive Offenders Act 1967 :

“Both the procedure laid down in section 7 (2) and the standard of proof implied in section 7 (5) (a) clearly contemplate that it is English rules of evidence which have to be applied in the course of the committal proceedings.  Section 7 (5) (a) specifically refers to the evidence being sufficient to warrant the defendant’s trial as though the offences had been committed in England.  One cannot see what other rules of evidence could be applied in such proceedings.”

35.As to the requirement for evidence to be by way of deposition or by statement on oath or affirmation, s.14 of the Extradition Act 1870 stated :

“Depositions or statements on oath, taken in a foreign state, and copies of such original depositions or statements … may, if duly authenticated, be received in evidence in proceedings under this Act.”

36.The Fugitive Offenders Act 1967 was to the same effect, s.11(1)(a) stating :

“In any proceedings under this Act, including proceedings on an application for habeas corpus in respect of a person in custody thereunder -
(a)	a document, duly authenticated, which purports to set out evidence given on oath in a designated Commonwealth country or United Kingdom dependency shall be admissible as evidence of the matters stated therein.”

The word ‘oath’ was defined in s.11(3) :

“In this section ‘oath’ includes affirmation or declaration; and nothing in this section shall prejudice the admission in evidence of any document which is admissible in evidence apart from this section.”

37.When translations of evidence had to be made, evidence was required of the accuracy of those translations.  Broadly speaking, that could be done in two ways.  First, by way of a deposition or statement on oath or affirmation by the translator in the requesting state, that piece of evidence, along with all the other evidence, being duly authenticated.  Second, by way of evidence given at the committal hearing itself by a translator who, having been sworn or affirmed, could testify as to the accuracy of the translations.

38.It is important to note that not only was evidence under the earlier legislation specifically required to be by way of depositions or statements on oath or affirmation but, in addition, such evidence had to be duly authenticated.

39.In this respect, s.15 of the 1870 Act stipulated :

“Foreign warrants and depositions or statements on oath, and copies thereof … shall be deemed duly authenticated for the purposes of this Act if authenticated in manner provided for the time being by law or authenticated as follows :
(1)	If the warrant purports to be signed by a judge, magistrate, or officer of the foreign state where the same was issued;
(2)	If the depositions or statements or the copies thereof purport to be certified under the hand of a judge, magistrate, or officer of the foreign state where the same were taken to be the original depositions or statements, or to be true copies thereof, as the case may require; and
(3)	…
if in every case the warrants, depositions, statements, copies, certificates and judicial documents (as the case may be) are authenticated by the oath of some witness or by being sealed with the official seal of the minister of justice, or some other minister of state : And all courts of justice, justices, and magistrates shall take judicial notice of such official seal, and shall admit the documents so authenticated by it to be received in evidence without further proof.”

40.In respect of authentication, the 1967 Act was to the same effect, s.11(2) :

“A document shall be deemed to be duly authenticated for the purposes of this section—
(a)	in the case of a document purporting to set out evidence given as aforesaid, if the document purports to be certified by a judge or magistrate or officer in or of the country or dependency in question to be the original document containing or recording that evidence or a true copy of such a document.
(b)	in the case of a document which purports to have been received in evidence as aforesaid or to be a copy of a document so received, if the document purports to be certified as aforesaid to have been, or to be a true copy of a document which has been, so received;
(c)	…
and in any such case the document is authenticated either by the oath of a witness or by the official seal of a Minister of the designated Commonwealth country or of the Governor or a Minister, secretary or other officer administering a department of the Government of the dependency, as the case may be.”

41.Authentication, therefore, was not sufficient on its own in the earlier legislation.  But, as will be seen, for pressing reasons going to the effective operation of the international extradition process, that double-layered protection was removed by a number of common law countries.  The demand for authentication – proof of validity – was retained.  The requirement, however, that in all instances evidence be sworn or affirmed in some acceptable way was abandoned.

The impenetrable thicket of common law rules

42.While the requirement to provide evidence that was sworn or affirmed (and otherwise complied with common law rules of evidence) caused no difficulties when extraditions took place between common law countries, it was a different matter when the requesting country was a civil law state.  The requirement to establish a prima facie case according to common law rules of evidence often meant that a civil law state could only succeed in its extradition request if it produced a case that complied with evidentiary rules that were essentially alien to it.  All too often, the result, in the view of the requesting civil law state, was that fugitives escaped justice on technical as opposed to meritorious grounds.

43.In Bourgeon v. Canada (Attorney General) 35 CR (5^th) 25, the court spoke of the difficulties faced by civil law states, making reference to the testimony of an international criminal law expert, Professor Williams :

“[The professor] testified that it is generally accepted that civil law countries have great difficulty in understanding the common law evidentiary rules and in the preparation of documents in order to meet the requirements of those rules.  The frustration with those requirements has led many civil law countries simply to forego requests for extradition of their fugitives from common law countries.  In turn, this has led to international conferences with a view to facilitating extradition to civil law countries so that common law countries do not become havens for civil law fugitives.”

44.To further illustrate the difficulties, in 1994 the International Law Association, through its Committee on Extradition and Human Rights, published a report in which it recommended that the requirement to establish a prima facie case should no longer be the general rule.  The report said that the rights of an accused person would still be protected when —

“the requesting state is obliged to produce evidence of the allegations sufficient to allow judicial or executive authorities in the requested state to decide whether there are reasonable grounds to suspect that the person whose extradition is requested has committed an extraditable offence.  Such evidence should be in sufficient detail to disclose the substance and the source of the allegations made against the accused.”

As to the form of evidence to be supplied in support of an extradition request, the report said that it —

“… should not be required to be presented in a form that satisfies the legal rules governing the receivability of evidence in courts of the requested state in domestic proceedings.”

45.Of course, one of the legal rules governing the receivability of evidence in common law courts is that – except in a small minority of instances – such evidence (oral or written) must be on oath or affirmation.

46.For common law lawyers, the need for evidence to be on oath or affirmation is so ingrained as to seem perhaps to be a universal rule.  But it is not.  Many civil law states do not require all witnesses to testify under oath or affirmation.  Indeed, there are occasions when, under civil law rules, giving evidence under oath or affirmation may be forbidden.

47.In extradition proceedings, when the requested state demands evidence on oath or affirmation, while the requesting state forbids evidence in that form, the clash of systems may mean that there can be no lawful extradition.  In Burgeon, the court recalled just such a clash, the case being that of Lind v. Sweden (1987) 30 C.C.C. (3d) 327 :

“In that … application for extradition of the fugitive Lind from Canada to Sweden, the requesting state tendered a sworn statement from an interested party, even though Swedish law prohibited an interested party from testifying under solemn affirmation or oath, though the witness was otherwise permitted to testify.  The Ontario Court of Appeal held that the statement of the interested witness made on oath was admissible at the Canadian extradition hearing.  However, the fugitive’s extradition was later quashed by a Swedish court on the ground that the extradition was based, in part, on the inadmissible evidence of the interested party, who had deposed his evidence on oath, contrary to Swedish law.”

48.It is not surprising perhaps that by the mid-1980s, as Professor Williams testified in Bourgeon, many civil law countries had simply abandoned the attempt to cut their way through what they saw as the impenetrable thicket of common law rules of evidence in attempts to seek the surrender of criminal fugitives.  I do not think it would be an exaggeration to say that extradition as an international system had fractured.

The change to common law legislation

49.In order to repair that fracture, from about the mid-1980s, a number of common law countries fundamentally changed their extradition schemes.  In the hearing before me, it was described as a ‘sea change’.

(i)   Australia

50.New extradition legislation was introduced in 1988.  At the time of its introduction, it was observed in Parliament that the need to establish a prima facie case was considered by civil law states to be alien and unacceptable.  While the Act requires evidence of conduct which would constitute an extradition offence, a prima facie case does not have to be established according to Australian rules of evidence.

51.In terms of s.19(2) of the Act, in determining eligibility for surrender, the magistrate must have before him ‘supporting documents’ supplied by the requesting country.  These documents are defined in s.19(3) as, first, a duly authenticated warrant (or copy of it), and, second, ‘in any case’, in terms of s.19(3)(c) :

“	(i)	a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and
	(ii)	a duly authenticated statement in writing setting out the conduct constituting the offence.”  [my emphasis]

52.A duly authenticated statement in terms of s.19(3)(c) is one certified by a judicial official of the requesting country and authenticated by the seal of an officer of its government.  There is therefore no requirement for individual statements of fact to be on oath or affirmation.

53.It should be said that the Act does make provision for the traditional requirement of establishing a prima facie case to be maintained in respect of certain countries with whom such an arrangement is made by way of an extradition agreement.

54.It should also be noted that s.19(5) of the Act specifically provides that :

“In the proceedings, the person to whom the proceedings relate is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought.”

55.S.19(5) underscores the true nature of an extradition (or committal) hearing.  As I have said earlier, it does not determine guilt or innocence and is not to be elevated into a quasi trial to similar effect by allowing the accused person to introduce ‘defence’ evidence that contradicts or qualifies the ‘prosecution’ evidence.

56.S.23(4) of the Ordinance – the Hong Kong legislation – is to the same effect.  It states :

“… in any proceedings under this Ordinance, any evidence which contradicts an allegation that a person sought to be surrendered under this Ordinance to a prescribed place has engaged in conduct which constitutes a relevant offence for which such surrender is sought is inadmissible and, accordingly—

(a)      that person is not entitled to adduce such evidence; and

(b)      any court is not entitled to receive such evidence.”

(ii)   United Kingdom

57.New extradition legislation was introduced in 1989.  The Extradition Act 1989 differentiates between ‘foreign states’ (with whom extradition arrangements have been made) and ‘other countries’, essentially Commonwealth countries and colonies.  Different extradition regimes apply to ‘foreign states’ and ‘other countries’.

58.In committal proceedings, other countries are required to establish a prima facie case in accordance with common law rules of evidence, the statements to be on oath or affirmation.  However, foreign states are not subject to the same requirement.  S.9(4) reads :

“Where—

(a)      the extradition request is made by a foreign state; and

(b)      an Order in Council such as is mentioned in subsection (8) below is in force in relation to that state,

there is no need to furnish the court of committal with evidence sufficient to warrant the trial of the arrested person if the extradition crime had taken place within the jurisdiction of the court.”

59.While foreign states seeking the extradition of an accused person must supply evidence in respect of any request, that evidence need not be on oath or affirmation.  In this respect, s.26(1) states that documents containing such supporting evidence shall be admitted into evidence without further prove if they are —

“… authenticated by the oath of a witness, but shall in any case be deemed duly authenticated—
(a)	if they purport to be signed by a judge, magistrate or officer of the foreign state where they were issued; and
(b)	if they purport to be certified by being sealed with the official seal of the Minister of Justice, or some other Minister of State, of the foreign state.”

(iii)   Canada

60.New extradition legislation was introduced in 1999.  The Extradition Act 1999 still provides for an extradition hearing at which, in respect of an accused person, a prima facie case must be established.  However, if there is an extradition agreement in place, the evidence need not comply with Canadian rules of evidence.  In such cases, evidence may be in the form of a ‘record of the case’, a document summarising the evidence upon which extradition is sought.  A record of the case need not contain statements of fact made under oath or affirmation : see s.34.  Such a record is admissible into evidence if a judicial or prosecuting authority certifies that the evidence has been gathered according to law and is sufficient in the requesting state to justify prosecution.

61.It is pertinent, I think, to note that, in terms of s.36 of the Canadian legislation, a translation of a document into one of Canada’s official languages is admissible into evidence without any formality; put shortly, a translation need not be certified, either by way of oath or affirmation or otherwise.

(iv)   New Zealand

62.New Zealand also introduced new legislation in 1999.  This legislation, like the Canadian legislation, still requires, in respect of an accused person, the establishment of a prima facie case.  However, as with Canada, if extradition agreements have been reached, ‘exempted countries’ need not supply evidence on oath or affirmation to establish a prima facie case.  Exempted countries may supply ‘a record of the case’, a document which summarises the evidence.  In terms of s.25(3), the record of a case is admissible if it is accompanied by :

“	(a)	An affidavit of an officer of the investigating authority, or of the prosecutor, as the case may be, stating that the record of the case was prepared by, or under the direction of, that officer or that prosecutor and that the evidence has been preserved for use in the person’s trial; and
	(b)	A certificate of the Attorney-General or principal law officer of the extradition country stating that, in his or her opinion, the record of the case discloses the existence of evidence that is sufficient under the law of that country to justify a prosecution in that country.”

63.What emerges from this overview of extradition legislation introduced between 1988 and 1999 by four common law countries is that, whether the requirement for a prima facie case has been retained or not, each statute has made provision for requesting states to supply supporting evidence in a form that does not have to meet the common law requirements of admissibility.  In respect of the form of evidence, this had meant that not all evidence need be sworn or affirmed.  It is sufficient that it be authenticated.

64.The clear intention of these statutory compromises was to repair the fracture in the international system of extradition.

65.What, in my view, is important to remember is that the Ordinance must have been considered, drafted and made into law at a time when this ‘sea change’ was taking place.  It would be artificial, I think, to hold that the drafters of the Ordinance would have carried out their work in a vacuum unaware of the material changes taking place elsewhere in countries with which Hong Kong already had extradition agreements or would, as a result of the change of sovereignty, have to negotiate new agreements.

The purposive interpretation of extradition statutes

66.With the introduction of new legislation has come a new approach to interpretation, one which has adopted a purposive interpretation of extradition statutes.  I believe that this purposive approach must apply to the interpretation of the Hong Kong statute.

67.In Cartwright and another v. Superintendent of Her Majesty’s Prison and another [2004] 1 WLR 902, the Privy Council was given the opportunity to pronounce on what it saw as the modern interpretative approach to extradition legislation.  The Privy Council was sitting in that case as the final court of appeal of the Bahamas.  The applicants were the subject of extradition requests made by the United States to the Bahamas.  They were wanted on drug offences.

68.In giving the majority judgment, Lord Steyn said the following :

“In extradition law the court must adopt a balanced approach.  Throughout extradition law there are two principal threads.  First, in exercising powers of extradition courts of law must … be vigilant to protect individuals from the overreaching of their rights by the government.  Justice to the individual is always of supreme importance.  Secondly, the Board considers that it is imperative of legal policy that extradition law must, wherever possible, be made to work effectively.  There was some controversy about this point.  It is, therefore, necessary to explain the position.

Crime and criminals have always traversed national boundaries.  But in the modern world advances in technology and means of communication have enormously increased this phenomenon, notably in the fields of financial crimes, drugs offences and terrorism.  It is, therefore, of great importance that extradition law should function properly.  For the applicants Mr Fitzgerald accepted on the authority of R v Governor of Ashford Remand Centre, Ex p Postlethwaite [1988] AC 924, 946-947, that extradition treaties, being contracts between sovereign states, should be purposively and liberally construed.  But he argued that a different approach is necessary in regard to domestic extradition legislation.  He made a comparison with criminal statutes and submitted that an approach of strict construction is necessary.  The Board would reject this submission.  Even in regard to criminal statutes the presumption in favour of strict construction is nowadays rarely applied. … In any event, it is a well settled principle ‘that a domestic statute designed to give effect to an international convention should, in general, be given a broad and liberal construction’: The Antonis P Lemons [1985] AC 711, 731.  The same must be true of a statute passed pursuant to a bilateral treaty.  Moreover, in In re Ismail[1999] 1 AC 320 the House of Lords in a unanimous judgment commenced on the need to bring suspected criminals, who have fled abroad, to justice through the extradition process.  In that case I observed, at p 327:

‘There is a transnational interest in the achievement of this aim.  Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the texts permit it in order to facilitate extradition …’

As the final court of The Bahamas the Board is in no doubt that it must adopt, where the Extradition Act 1994 permits it, a purposive or dynamic interpretation to make extradition work effectively.”

69.Lord Hoffmann and Lord Rodger gave a dissenting judgment.  But it does not seem to me that issue was being taken in that judgment with the principle that domestic extradition legislation is to be interpreted purposively.  As Lord Steyn had said, the House of Lords in In re Ismail had declared unanimously that extradition statutes were to be accorded a ‘broad and generous construction’ in order to facilitate their purpose.  Rather, it seems that Lords Hoffmann and Rodger were taking issue with the conclusions which, on the facts of the particular case, a purposive construction had enabled the other members of the Privy Council to reach.  Lords Hoffmann and Rodger concluded their judgment by saying :

“We repeat that in our opinion the requesting state made out a strong case for extradition and it is therefore with genuine regret that we find ourselves unable to agree with the majority in thinking that the judge’s error can be corrected.  The ‘war on drugs’ is important, although not everyone would agree with the means employed to wage it or even with the military metaphor.  But equally, if not more important, is the rule of law.  People facing extradition, however unmeritorious they may be, are entitled to the law … It is not the function of judges to become legislators and remedy what they perceive as a defect in the law by giving a far-fetched construction to what we are bound to say are the extremely plain and simple words of [the extradition statute].”

Is sworn or affirmed evidence a fundamental right in extradition?

70.In presenting his submissions, Mr Blanchflower has been obliged to describe what was the standard common law requirement that all evidence in extradition proceedings be sworn or affirmed not simply as a traditional safeguard but as a ‘right’ possessed by an accused person, indeed such an important right that it can be classified as a fundamental right.

71.In my view, calling it a fundamental right, similar therefore to a right such as the right against self-incrimination, pitches it too high.  I reject the contention that in common law matters of extradition, a requirement for evidence to be presented in a sworn or affirmed form was, and remains, the expression of a fundamental right.

72.I have already pointed to the fact that in certain civil law jurisdictions there are circumstances in which such evidence is actually forbidden.  It is not therefore woven into civil law extradition legislation.  I would also point to the fact that the United Nations Model Treaty on Extradition (45/116), adopted in 1990, in respect of evidentiary requirements, states the following in art.5(2) :

“A request for extradition shall be accompanied by the following:
(a)	In all cases,
	(i)	As accurate a description as possible of the person sought, together with any other information that may help to establish that person’s identity, nationality and location;
	(ii)	The text of the relevant provision of the law creating the offence or, where necessary, a statement of the law relevant to the offence and a statement of the penalty that can be imposed for the offence;
(b)	If the person is accused of an offence, by a warrant issued by a court or other competent judicial authority for the arrest of the person or a certified copy of that warrant, a statement of the offence for which extradition is requested and a description of the acts or omissions constituting the alleged offence, including an indication of the time and place of its commission;”  [my emphasis]

73.In common law countries, as I have said earlier, matters of extradition do not find their roots in the common law itself.  Extradition is entirely dependent on statutes and statutes are created by law makers with regard to social, political as well as legal realities.  It has been said on many occasions that the business of government is a practical one.  Some extradition schemes, for example, may be based simply on the endorsement of an arrest warrant, especially where jurisdictions are closely linked.  Others demand far more stringent provisions.  As was said in Re Kindler, cited in para.19 of this judgment, ‘extradition procedure, unlike the criminal procedure, is founded on the concepts of reciprocity, comity and respect for differences in other jurisdictions’.

But what of the oath itself?

74.In Clarkson v. Government of the Kingdom of the Netherlands (2000) 146 C.C.C. (3d) 482, at 490, the British Columbia Court of Appeal spoke of the historical purpose of the oath :

“The historical efficacy of the oath presupposes a belief in the divine.  For the witness with the necessary religious belief it sets in advance against the witness’ motives to falsify, his or her fear of divine displeasure and punishment.”

75.The court observed that the oath, as a spur to truth, had lost much of its compulsion :

“If cannot be seriously doubted that … the moral efficacy of the oath has ceased to be what it once was for many people.  Common law jurisdictions now permit witnesses to affirm rather than take the oath.  The affirmation may be described as a security for credibility which operates on a different basis than the oath.  It is generally administered in a form calculated to impress on the conscience of the witness the seriousness of the obligation to tell the truth in accordance with the witness’ religious or ethical beliefs.

76.But, whether in respect of an oath or an affirmation, the court went on to observe :

“More recently courts have recognized that the obligation to tell the truth may be enhanced by more temporal and tangible methods.”

77.As to the loss of the moral efficacy of both the oath and the affirmation in modern times, in Bourgeon Ewaschuk J took what some would describe as a cynical, others a realistic approach.  He commented that an affirmation or oath may be seen as ‘somewhat anachronistic’ in modern times, indeed for many it is no doubt seen as a ‘meaningless ritualistic incantation’.  He continued :

“Most independent lay people tell the truth to police or judicial officials investigating a crime, mindful that it is a criminal offence to falsely accuse a person of a crime.”

78.At this juncture I turn again, briefly, to look at the function of the magistrate at a committal hearing.  In R. v. Governor of Pentonville Prison, ex parte Osman [1990] 1 WLR 277, at 299, the English Divisional Court described this function in the following terms :

“In our judgment, it was the magistrate’s duty to consider the evidence as a whole, and to reject any evidence which he considered worthless.  In that sense it was his duty to weigh up the evidence.  But it was not his duty to weigh the evidence.  He was neither entitled nor obliged to determine the amount of weight to be attached to any evidence, or to compare one witness with another.  That would be for the jury at the trial. ...”                                                  

79.It is not therefore the duty of the magistrate to determine issues of credibility or to test the evidence, once it is ruled admissible, for its reliability.  Outside of utter worthlessness, shades of reliability are irrelevant.  In common law, however, an oath or affirmation is simply a threshold requirement that supports credibility and therefore reliability – the exact issues with which the magistrate at committal is not concerned.  The magistrate is concerned instead with the sufficiency of the evidence.  Whether that evidence is believed or not is a matter for the trial court in the requesting state.

80.I accept that evidence on oath or affirmation goes generally to support the evidence presented by a requesting state and is to that extent a basic form of assurance.  But authentication, it seems to me, also provides an assurance – an assurance that the case presented is genuine and has been compiled by recognised officers in the requesting state who have done so in accordance with the law, practice and procedures of that state.

81.I conclude by making reference again to Bourgeon.  This was a case in which the applicant, whose extradition was sought by the United States, asserted that his Charter rights were contravened by the failure of the Canadian Act to demand that evidence must be on oath or affirmation.  The court rejected that assertion, Ewaschuk J saying :

“… it is unnecessary for Canada to impose its own form of witness authentication on foreign countries, particularly those which do not require a solemn affirmation or oath as a threshold requirement for evidence to be admissible in their country.”

The Hong Kong legislation

82.Against this background, I come to consider the present Hong Kong legislation; that is, the Ordinance and the extradition agreements entered into with other countries, those agreements being made subsidiary legislation.

83.In Tiongco v. The Government of the Republic of the Philippines and Another, cited in para.10 of this judgment, Stock J set out the historical context within which the Ordinance came into law in April 1997.  Having looked to the extradition schemes in place when Hong Kong was a colony, he went on to say :

“The change in the exercise of sovereignty on 1 July 1997 meant that international arrangements previously extended in their operation to Hong Kong would, in so far as they had been extended to Hong Kong, lapse by that date and, further, that UK legislation could not, after that date, any longer have effect within Hong Kong.  Two consequences flowed.  The first was that there had to be put in place a fresh legislative framework within which extradition procedures could be conducted; and secondly, if it was intended, as it was, that that framework would continue to be allied to specific international agreements, fresh agreements had to be made with appropriate authorisation by the sovereign power responsible for Hong Kong’s foreign affairs.  In that setting, Hong Kong entered upon specific agreements with other jurisdictions and shortly before the change in the exercise of sovereignty, domestic legislation to complete the framework was enacted.  That legislation is the Fugitive Offenders Ordinancewhich came into effect on 25 April 1997.”

84.Prior to 1997, therefore, Hong Kong was looking to its own extradition statute and must, in that process, have taken into account the possible or potential difficulties that may be faced by some extradition partners if there was no change to the previous schemes.

Committal proceedings under the Ordinance

85.As I have said earlier, Hong Kong has retained the requirement for proof of a prima facie when the surrender is sought of an accused person.

86.In respect of an accused person who does not agree to voluntary surrender, s.10(6)(b) of the Ordinance directs that :

“	(a)  …
	(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; and
		(iv)	…
		the court shall (unless the person’s committal is prohibited by any other provision of this Ordinance) by order commit him to custody—
		(i)	to await the Chief Executive’s decision as to his surrender to the prescribed place by which the request for surrender concerned was made; and
		(ii)	if the Chief Executive decides that he shall be surrendered to that place, to await such surrender.”

87.Accordingly, in terms of s.10(6)(b)(ii), before the magistrate may consider whether a prima facie case has been established, he must have before him ‘supporting documents’ which have been ‘duly authenticated’.

88.What are ‘supporting documents’?  The phrase is defined in s.3(1) of the Ordinance.  In respect of an accused person, it reads as follows :

“‘supporting documents’ means—
(a)	in relation to an offence in respect of which a person is wanted for prosecution—
	(i)	a warrant of arrest (or a copy thereof) issued in the prescribed place which has made the request for surrender concerned; and
	(ii)	other documents which provide evidence of—
		(A)	the offence;
		(B)	the penalty which may be imposed in respect of the offence; and
		(C)	the conduct constituting the offence;”

89.In respect of the provision of evidence, therefore, ‘supporting documents’ are simply ‘documents’ which provide; that is, contain or convey, evidence of the conduct which is alleged to constitute the offences for which surrender is sought.  I do not see that the use of the word ‘documents’ in the definition implies any particular class of documents, for example, documents that are sworn or affirmed.

90.But how then are the contents of those documents to be verified?  On what basis is the committal magistrate able to place trust in them?  In my view, the verification is to be found in the requirement contained in s.10(6)(b)(ii) that all the supporting documents, including those containing evidence, must be authenticated.  In this regard, to cite it again, the relevant portion of s.23 stipulates :

“	(1)	Any supporting document or other document which is duly authenticated is admissible in evidence in any proceedings under this Ordinance without further proof.
	(2)	Any supporting document or other document shall be deemed to be duly authenticated if it—
		(c)	purports to be signed or certified by a judge, magistrate or officer of the prescribed place concerned; and
		(d)	purports to be sealed with the official or public seal of a competent authority of that place.”  [my emphasis]

91.On a plain reading therefore it seems to me that the language of the Ordinance is to the following effect :

(i)	Evidence supplied by a requesting country to establish a prima facie case is to be contained in supporting documents.
(ii)	Those documents are not restricted to any particular class of documents.  Evidence contained in supporting documents may therefore be in the form of depositions or statements on oath but may also be in other forms, for example, witness statements made in accordance with the laws and procedures of the requesting country.
(iii)	Admissibility of supporting documents containing evidence is not determined by whether they are supported by some acceptable form of oath or affirmation but solely by the determination that they are duly authenticated in terms of the Ordinance and the prevailing extradition agreement.

92.On a purposive reading, I simply do not see how the language of the Ordinance can be given any other meaning.  The drafters of the Ordinance had the templates before them if they desired supporting evidence to remain in the form of depositions or statements on oath or affirmation.  Those templates were contained in s.14 of the Extradition Act 1870 and s.11(1)(a) of the Fugitive Offenders Ordinance 1967.  Both require the authentication not simply of documents containing evidence but of depositions or statements on oath containing evidence : see paras.35 and 36 of this judgment.  The drafters of the Ordinance, however, chose not to follow the templates but to create a new scheme.  That could not have happened by oversight.  That must have been intentional.  That new scheme was made into law.

93.As to the reason why there should be a new scheme, that, I think, in light of the legislative changes that had taken place or were taking place in other common law jurisdictions, must be self-evident.  The purpose of the changes was to allow for greater flexibility in reaching agreements with Hong Kong’s extradition partners, a number of them – including the Netherlands – being civil law countries.

94.The House of Lords, in In re Ismail, cited in para.69 of this judgment, emphasised that there is a transnational interest in bringing suspected criminal fugitives to justice through the extradition process.  Accordingly, extradition statutes ought to be accorded a broad and generous construction – so far as the text permits – in order to facilitate extradition.

95.In my judgment, it is plain that, while the Ordinance may have retained certain aspects of what I will call traditional common law extradition schemes, it made fundamental changes too.  One of those changes, on any purposive reading, was to abolish the demand in every case, no matter what the system of law of the extradition partner, that evidence must be sworn or affirmed in some acceptable way.

96.The scheme of the Ordinance, in my view, reveals a very clear mechanism.  As to the production of documentary evidence, that mechanism allows for Hong Kong and its extradition partners to agree, if they desire, on the manner in which evidence will be supplied provided only that such agreement complies with the Ordinance; an agreement may be more restrictive but not broader than the language of the Ordinance permits.  In short, by agreement, for example, Hong Kong can conclude extradition arrangements with another country in terms of which supporting evidence will still have to be in the form of depositions or statements on oath or affirmation.  Indeed, a study of Hong Kong’s present extradition agreements reveals one instance of this example : the agreement reached with Malaysia, another common law country.

97.Art.7(3) of the Fugitive Offenders (Malaysia) Order stipulates that :

“If the request relates to an accused person, it shall also be accompanied by a warrant of arrest issued by a judge, magistrate or other competent authority of the requesting Party and by such evidence as, according to the law of the requested Party, would justify his committal for trial if the offence had been committed within the jurisdiction of the requested Party.”

98.As to the form of the supporting evidence, art.11 stipulates that :

“The authorities of the requested Party shall admit as evidence, in any proceedings for the surrender of a fugitive offender, a sworn deposition or affirmation taken in the jurisdiction of the requesting Party, any warrant, any copy of any such deposition, affirmation or warrant, and any certificate of a conviction or sentence if it is authenticated …”  [my emphasis]

99.In short, the supporting evidence to be supplied by either Hong Kong or Malaysia is to be in the form of depositions or statements on oath or affirmation.

100.The Fugitive Offenders (Canada) Order, however, does not lay down the same requirement.  Art.8(3) of the Order states that :

“If the request relates to an accused person it shall be supported by a copy of the warrant of arrest issued by a judge, magistrate or other competent authority of the requesting Party and by such evidence as, according to the law of the requested Party, would justify committal for trial if the offence had been committed within the jurisdiction of the requested Party.  Such evidence may include originals or copies of statements or depositions, whether taken in the jurisdiction of the requesting Party or elsewhere, purporting to have been taken on oath or affirmation together with any exhibits referred to therein.”  [my emphasis]

101.Whereas the Malaysia Order says that evidence ‘shall’ be in the form of depositions or statements on oath or affirmation, the Canada Order uses the word ‘may’, suggesting that there is a choice in the form of evidence to be supplied.

102.The Fugitive Offenders (Netherlands) Order is yet again different.  It says nothing of depositions or statements on oath or affirmation.  In terms of art.8(3), it stipulates that :

“If the request relates to an accused person, it shall also be accompanied by a copy of the warrant of arrest issued by a judge, magistrate or other competent authority of the requesting Party and by such evidence as, according to the law of the requested Party, would justify his committal for trial if the offence had been committed within the jurisdiction of the requested Party.”

103.Nor does the Netherlands Order lay down a requirement for certification on oath or affirmation of translations.  Art.8(6) reads :

“The requesting Party shall provide a translation of all documents relating to the request into a language acceptable to the requested Party.  This provision shall not affect the admissibility of an untranslated document furnished by the requesting Party.”

104.In summary, therefore, despite the impressive edifice of Mr Blanchflower’s extensive arguments, I believe that the language of the Ordinance more than adequately speaks for itself and the principles of Pepper v. Hart are not applicable.

105.I am satisfied that the Ordinance does not demand that the evidence submitted by the Netherlands to establish a prima facie case must be by way of depositions or statements on oath or affirmation.  I am further satisfied that the Ordinance does not demand that the accuracy of translations by certified by oath or affirmation.

106.Assuming that the Ordinance does require some formal proof of the accuracy of translations, but without making any finding that the Ordinance does in fact make that demand, it seems to me that in the present case adequate proof has been supplied in the form of certificates of accuracy.  Each certificate has been dated and signed and bears an official seal.  By way of illustration, one of the certificates reads :

“The undersigned … registered as a sworn translator in the English language at the District Court of The Hague, hereby certifies that the attached document in the English language is a true translation of the original Dutch text, consisting of 412 pages, being an additional police report of investigation ‘Fagot’…”

Critically, and I do not understand this to be disputed, the certificates are duly authenticated in terms of s.23 of the Ordinance.  They are therefore, in my view, admissible into evidence by that fact alone.

Conclusion

107.For the reasons given, I am satisfied that the order of committal made by the magistrate in this case and in terms of which the applicant is held in custody is a lawful order.  The applicant’s present detention is therefore lawful.  The application for the issue of a writ of habeas corpus is dismissed.  There will be an order for costs in favour of the respondents.

Mr Michael Blanchflower, SC leading Mr Trevor Beel, instructed by Messrs Ivan Tang & Co., for the Applicant

Mr Wayne Walsh, DPGC of the Department of Justice, for the Respondents