Huang Yuan Yuan Ian v. Superintendent of Lai Chi Kok Reception Centre and Another

HCAL 103/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 103 OF 2005

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BETWEEN

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Before : Hon Hartmann J in Court

Dates of Hearing : 4 – 6 January 2006

Date of Judgment : 11 January 2006

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J U D G M E N T

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Introduction

1.This matter arises in extradition, the Government of Singapore having sought the applicant’s surrender to face criminal charges in that jurisdiction.  On 26 July 2005, at the end of a committal hearing, a magistrate, sitting at Eastern Magistracy, committed the applicant into custody to await a decision by the Chief Executive whether to order his surrender.  The applicant now applies for a writ of habeas corpus on the basis that his detention pursuant to the warrant of committal is unlawful.  

2.The charges in respect of which Singapore has sought the applicant’s surrender – 16 in all – concern alleged criminal activities that are said to have taken place in Singapore between about June 2001 through until the end of that year.  In the broadest terms, those alleged criminal activities may be described as follows :

(a) In June 2001, the applicant, then residing in Singapore, sought a loan of US$500,000 from a company called Kim Eng Finance.  As an assurance that the loan would be repaid, a letter purportedly written by Rothschild Bank in Switzerland was given to Kim Eng Finance.  The letter stated that in October 2001 the applicant was due to receive an amount in excess of US$500,000 from Rothschild Bank.  The letter was forged.

(b) In addition, Kim Eng Finance was given a copy letter said to be signed by the applicant purporting to give irrevocable instructions to Rothschild Bank to transfer the funds to him in Singapore.  This letter had on it the purported signatures of two employees of Rothschild Bank confirming that the request would be actioned.  Those signatures were forged.

(c) Kim Eng Finance required more security.  The applicant offered to obtain a guarantee from his landlady, a Ms Edna Ko.  After a credit check, Kim Eng Finance agreed and in early July 2001 the applicant and a woman purporting to be Ms Ko went to a firm of Singapore solicitors to execute the guarantee.  The woman, however, was not Ms Edna Ko, a fact which would have been known to the applicant.

(d) Thereafter, Kim Eng Finance gave to the applicant a cheque in Singapore dollars.  The cheque was drawn on HSBC for a sum of S$860,000.  The cheque was duly presented and its proceeds paid into the applicant’s account.

(e) The obtaining of funds from HSBC was the substance of the first charge on the ‘list of Hong Kong offences’ placed before the committal magistrate.  As a Hong Kong offence – the Singapore charge being one of ‘cheating’ - it is described as follows :

“Theft,

contrary to section 9 of the Theft Ordinance, Cap. 200

Particulars of Offence

Ian Huang Yuan Yuan, on or about 3 July 2001, stole a thing in action, namely a debt in the sum of S$860,000 owed by HSBC to Kim Eng Finance (Singapore) Pte Ltd, the property of Kim Eng Finance (Singapore) Pte Ptd.”

(f) In October and November 2001, being unable to repay the loan to Kim Eng Finance, the applicant engineered a series of complex delaying tactics by using more false documents.  For example, letters purportedly written by Rothschild Bank in Switzerland explaining the delay in the transfer of funds were given to Kim Eng Finance.  In addition, the applicant claimed that Ms Edna Ko would mortgage her apartment in order to secure an extension of repayment of the loan.  To this end, a mortgage document was signed by a woman purporting to be Ms Ko.  Again, however, it was not the real Ms Ko, a fact which would have been known to the applicant.

(g)     At the end of December 2001, the applicant approached Merrill Lynch International Bank in Singapore seeking a loan of US$1,000,000.  As security, the applicant presented a letter of credit dated 28 December 2001 purportedly issued by Rothschild Bank in favour of Merrill Lynch International Bank for the account of the applicant.  Investigations revealed that this letter of credit was a forgery.

3.This broad overview may be broken down into three distinct courses of action.  First, there was the alleged use of false documents to obtain a loan of S$860,000 and the actual theft of that money.  Second, several months later, there was the use of further false documents to attempt to explain the delay in repayment of the loan and/or to engineer an extension of the repayment date.  Third, and seemingly unrelated to the Kin Eng Finance matter, there was the unsuccessful attempt made in late December 2001 to obtain US$1,000,000 from Merrill Lynch International Bank upon the security of a forged letter of credit.

4.The alleged criminal activity which I have described has resulted in the Government of Singapore seeking the extradition of the applicant for the following 16 charges :

(a)  14 counts of using as genuine a forged document, the maximum term of imprisonment for each count being two years;

(b)  1 count of cheating, the Hong Kong equivalent – the first count in the list of Hong Kong offences – being theft, the maximum term of imprisonment being 7 years, and

(c)  1 count of using as genuine a forged valuable security, the maximum term of imprisonment being 10 years.

5.While it is not for me to speculate on the likely sentence that would be visited upon the applicant if he was returned to Singapore and was convicted of all these charges, it is legitimate, I believe, in considering the gravity of these offences, by looking at the Hong Kong list of offences, to take into account that, in Hong Kong at least, absent compelling mitigation, a conviction for all these offences would likely result in a lengthy period of imprisonment, probably well in excess of two years.

6.For reasons which will appear later in this judgment, I have so far considered in some detail the alleged criminal conduct for which the applicant’s extradition has been sought.  However, it is equally important, as a preliminary consideration, again for reasons which will appear later in this judgment, to take into account the actions of the Singaporean authorities in investigating the applicant’s conduct and seeking his return to Singapore to face trial.

7.I say this because it is fundamental to the applicant’s challenge to the lawfulness of his present detention that the Singaporean authorities have been so dilatory in putting together their case and – flowing from that delay – have so manipulated the extradition arrangements that exist between Hong Kong and Singapore that their actions have amounted to a gross abuse of the process of the Hong Kong courts.

8.This gross abuse, according to Mr Mok, counsel for the applicant, has resulted in the applicant spending a far longer period in custody here in Hong Kong then would otherwise have been the case.

9.In the result, it has been submitted by Mr Mok that the applicant’s present detention has been rendered arbitrary and thereby unlawful.  Alternatively, Mr Mok has submitted that, if I should decline to find that there has been an abuse of the process of the Hong Kong courts of sufficient gravity to render the applicant’s detention unlawful, the applicant should in any event be discharged from custody pursuant to art.6(1)(b) of the Fugitive Offenders (Singapore) Order on the basis that it would be oppressive to return him to Singapore.

10.Art.6(1) of the Hong Kong-Singapore extradition treaty (or agreement) insofar as it is directly relevant, reads :

“The surrender of any person sought under the terms of this Agreement may be refused if it appears to the appropriate authority of the requested Party that:

(a)      …

(b)      by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large as the case may be; or

(c)      …

(d)      …

it would, having regard to all the circumstances, be unjust or oppressive to return him.”

11.In order to place the actions of the Singaporean authorities into historical context, so that the issue of alleged delay may be better understood, it should be recorded that at all material times the applicant has had the right to live in Hong Kong, Singapore and the United States of America.  The applicant was born in Hong Kong and holds a British National (Overseas) passport.  He is a permanent resident of Singapore and is also a citizen of the United States of America, holding a United States passport.

12.The relevant history, I believe, may be summarised as follows :

(a)  In 1997, the applicant was living in Hong Kong with his girlfriend, later to be his wife.  While here, certain of their financial activities gave rise to a criminal investigation.  This investigation resulted in warrants being issued for their arrest.

(b)  In 1997, however, before the issue of the Hong Kong warrants, both the applicant and his girlfriend left Hong Kong.  The applicant spent some time in the United States before he and his girlfriend went to live in Singapore where they married.

(c)  As I have indicated, the criminal offences in respect of which the applicant’s extradition to Singapore has been sought were allegedly committed in 2001 while the applicant was living in Singapore.

(d)  In May 2002, the applicant left Singapore, returning to the United States.  He has not returned to Singapore.

(e)  Shortly after his departure, in July 2002, the Singapore police commenced their investigations.  The affidavit of Assistant Superintendent Yeo Ai Beng shows that apparently by January 2003, some six months later, much of the evidence to support the criminal charges had been secured, at least to the extent that relevant documents and the like had been identified and obtained.

(f)  In October 2003, the applicant was located by the Hong Kong authorities in the United States and, pursuant to a request made by the Hong Kong Government for his extradition, he was arrested.  The applicant agreed not to contest his extradition and was returned from the United States to Hong Kong on 15 December 2003.

(g)  The following day, the applicant appeared at the Eastern Magistracy.  Seemingly, while prosecuting counsel had initially been agreeable to the applicant (and his wife) obtaining bail, two matters arose that day which resulted in the applicant’s request for bail being opposed.  First, the applicant admitted only to having one travel document, a United States passport, which he was prepared to surrender.  Prosecuting counsel, however, was aware that he had a second passport, his British National (Overseas) passport, which he had not disclosed.  Second, prosecuting counsel had learnt that the applicant was now also wanted in Singapore in respect of offences of dishonesty.  In this second respect, during the course of submissions, prosecuting counsel said the following to the magistrate :

“The Singaporean authorities are continuing to investigate this matter, and I am told – or the officer in charge of the [Hong Kong] case is told – that they will be seeking to secure Mr Huang back to Singapore if and when he is released from Hong Kong.”

(h)  In light of submissions by prosecuting counsel, the magistrate refused to grant the applicant bail, finding that there was a substantial risk of flight. 

(i)  The trial of the applicant and his wife commenced in the Hong Kong Court of First Instance on 4 October 2004, approximately 10 months after the applicant had voluntarily returned to Hong Kong.  During that period of 10 months, the applicant had remained in custody.

(j)  The trial ended on 29 October 2004 with the acquittal of both the applicant and his wife.

(k)  It was while the trial was taking place that the Singaporean authorities sought the extradition of the applicant.  On 15 October 2004, a warrant of arrest was issued in Singapore.  Three days later, on 18 October 2004, the Government of Singapore made a request for the provisional arrest of the applicant pursuant to s.7(2) of the Fugitive Offenders Ordinance, Cap.503 (‘the Ordinance’) and art.12 of the Hong Kong-Singapore extradition agreement.  Art.12(1) reads :

“In urgent cases the person sought may, at the discretion of the requested Party and in accordance with its law, be provisionally arrested on the application of the requesting Party.”  [my emphasis]

(l)  In furtherance of that request, on 21 October 2004 an information was laid before a magistrate in which inter alia the following was affirmed :

“The facts in this case reveal that HUANG resorted to using several forged documents to procure a loan from the Kim Eng Finance Company (KEF) in Singapore for himself, in the amount of S$860,000.00.  When he was unable to repay the loan on time, he used more forged documents to obtain an extension of time.  When KEF took legal action against him and his guarantor, he again resorted to using more forged documents to cover his tracks, until he was eventually revealed as a fraudster by KEF.

Separately, HUANG had also presented a forged document to the Merrill Lynch International Bank in Singapore with a view to obtaining a loan from them, although he was unsuccessful in doing so.

All the purported writers of the forged documents have denied writing those documents.

By the time investigations revealed the extent of HUANG’s acts, he had fled Singapore.  HUANG is currently in Hong Kong, where he is now standing trial for a number of charges on unrelated offences.  The trial will be concluded on 25 OCT 2004.”

(m)  A provisional warrant of arrest was issued on 21 October 2004.  That warrant of arrest was executed on 29 October 2004, the day on which the applicant’s trial in the High Court ended with his acquittal.

(n)  In terms of this provisional warrant, the applicant was placed back into custody.  An application for bail was made the following day; that is, on 30 October 2004, but bail was refused.

(o)  On 10 December 2004, the Government of Singapore submitted a formal request for the applicant’s surrender.  On 16 December 2004, pursuant to the provisions of s.6(2) of the Ordinance, the Chief Executive issued an authority to proceed.

(p)  In the result, a committal hearing in terms of s.10 of the Ordinance commenced on 22 July 2005 at the Eastern Magistracy.  The applicant was represented by counsel. 

(q)  As earlier indicated, the order for committal, which is the subject of this application for habeas corpus, was issued by the magistrate on 26 July 2005.

(r)  However, before the applicant’s arrest, the Hong Kong authorities had submitted a request to the United States Consulate General for the consent, should it be needed, of the United States to the surrender of the applicant to Singapore.  This request was made in terms of art.16(2) of the extradition agreement between the United States of America and Hong Kong.  Art.16(2) reads :

“A person surrendered under this Agreement may not be surrendered or transferred beyond the jurisdiction of the requesting Party for the offence for which his surrender was granted, or for an offence committed prior to his original surrender, unless the requested Party consents.”

(s)  The consent from the Government of the United States of America was received on 29 December 2004, almost seven months before the committal hearing itself took place in Eastern Magistracy.

13.As I have indicated earlier, the applicant’s essential challenge to the lawfulness of his present detention has been founded on the assertion that the Singaporean authorities have acted in such a dilatory fashion in compiling their case against him and, in the result, have so manipulated the extradition arrangements that exist between Hong Kong and Singapore that, taken together, their actions have amounted to –

(a)  an abuse of process of the Hong Kong courts of such magnitude that it amounts to an affront to the public conscious and requires the extradition proceedings to be stayed, or, in the alternative,

(b)  in all the circumstances, in terms of art.6(1)(b) of the Hong Kong-Singapore extradition agreement, a finding should be made that it would be oppressive to return the applicant to Singapore to face trial.

14.This abuse of power by the Singaporean authorities, it has been submitted, has resulted in the applicant spending far longer in custody here in Hong Kong than would otherwise have been the case.  Mr Mok has submitted that the applicant has had to endure more than a year in custody as a result of the culpable conduct of the Singaporean authorities. 

15.However, in my view, even if the submissions as to excessive delay and manipulation of the process of extradition are accepted, it is impossible to assess with any degree of accuracy just how much longer the applicant has had to spend in custody than would otherwise have been the case.  There are simply too many vagaries or, to put it another way, too many issues of ‘what if?’.

16.Mr Mok has submitted that if the Government of Singapore had presented its formal request for surrender shortly after the applicant had been returned to Hong Kong from the United States, the extradition process may well have been resolved by now.  But that, in my view, is really an expression of optimism more than a rational deduction.  By way of illustration, let us assume that the Government of Singapore had filed an application for surrender in March 2004, some three and a half months after the applicant had been returned to Hong Kong.  On the basis – as a basis of comparison – of the time that the present extradition process has taken, calculating this present process from 10 December 2004 when the Government of Singapore submitted its formal request, a lapsed period so far of approximately 12 or 13 months, if the hypothetical case applied, this judgment would have been handed down in or about April 2005.  On that basis, it could perhaps be argued that the matter would therefore by now have been ended and that, calculating matters to the present date, this indicates that the applicant has spent some eight or nine months more in detention than should have been the case.  But this, of course, does not take into account possible appeals or any representations to be made to the Chief Executive, matters which themselves could take up six months or more.  It does not take into account any possible judicial review of any decision that the Chief Executive may make.  On this basis, it seems to me that it may be argued that, at this moment in time, with the extradition process far from conclusion, no ‘unwarranted’ time in detention has been demonstrated.

17.The comparison I have made also presumes that the time lapse in the hypothetical case and the actual case have been exactly the same.  But this ignores another ‘what if?’.  If the extradition request had been made when the applicant was facing trial in Hong Kong, it seems to me rational that the applicant may have applied to have that application adjourned until after his trial so that he would not be burdened with two matters, both of them complex, to be defended at the same time. 

18.Other vagaries have also made it impossible to come to any specific calculation.  What is to be made, for example, of the fact that, on the evidence, at least in part, the applicant’s failure to declare his possession of a second passport resulted in him being detained rather than granted bail?  Bail, of course, is a form of restriction but, when considering matters of abuse of process, a distinction, I believe, can properly be drawn between the hardship of actual detention and the lesser hardship of restriction of movement brought about by the granting of bail.

19.During the course of submissions, it was even suggested that the applicant may not have opposed the extradition request by the Government of Singapore if it had been made shortly after the applicant had been returned to Hong Kong.  But that is pure speculation.  It must be borne in mind that the applicant opposed the request for his surrender when it was submitted, his counsel arguing matters at the committal hearing in July 2005 other than matters concerning abuse of process or excessive delay.  Indeed, I understand that these two issues have been raised for the first time in this habeas corpus application.   

20.Mr Mok has submitted that the court should conclude that the applicant has spent more than a year in detention as the result of the culpable actions of the Singaporean authorities.  Mr Walsh, for the respondents, has denied that any delay has been proved.  In my judgment, as I have said, no specific ‘unwarranted’ time in detention can be demonstrated and the best that can be said, working on the assumption, without finding it to be so, that there was excessive delay on the part of the Singaporean authorities, is that a longer period then should have been the case has potentially had to be endured by the applicant.   

21.In advancing his submissions as to the hardship placed on the applicant by reason of the alleged culpable actions of the Singaporean authorities, Mr Mok has accepted that the court must take into account countervailing considerations of policy and justice.  In this exercise, Mr Mok has accepted that the hardship endured by the applicant in being kept in custody longer than would otherwise be the case cannot be considered in isolation.  It must, to a degree, be considered in the light of the seriousness of the offences with which he has been charged by the Singaporean authorities.

22.To this end, in order to demonstrate that the charges which the applicant should properly face in Singapore are less than those for which he was committed, Mr Mok has said that the first count in the list of Hong Kong offences, the count of theft, has not been proved to the required standard and must therefore be quashed.  If the applicant was returned to Singapore this would mean, therefore, that he could not be charged in that jurisdiction with the offence of cheating for which the maximum term of imprisonment is seven years.

23.In addition, Mr Mok has submitted that, by reason of a failure to comply with the requirements of authentication, the evidence in support of the 16^th offence in the list of Hong Kong offences; that of using a false instrument, was inadmissible.  That being the case, if the applicant was returned to Singapore, he could not be charged in that jurisdiction with the equivalent Singapore charge, that of using as genuine a forged valuable security for which the maximum term of imprisonment is ten years.

24.In the result, Mr Mok has argued, with these two counts quashed, if the applicant was returned to Singapore, he would only face a series of charges, each attracting a maximum term of imprisonment of two years.  

25.In light of this, so it has been submitted, the applicant – as a direct result of the dilatory conduct of the Singaporean authorities – having already been detained in custody here in Hong Kong for a period far longer than should have been the case, the justice of the matter clearly dictates that it would either be an abuse of process to further detain the applicant in Hong Kong or, pursuant to art.6 of the Hong Kong-Singapore extradition agreement, it would equally clearly be oppressive to find that he should be returned to Singapore.

26.In further support of the submissions that the conduct of the Singapore authorities has undermined the rights of the applicant, Mr Mok has made reference to the provisions contained in s.17(2)(b) of the Ordinance which are as follows :

“(2)   Where any person is surrendered to Hong Kong by a prescribed place pursuant to prescribed arrangements, he shall not be surrendered under this Ordinance to any other prescribed place for or in respect of an offence committed before such surrender unless-

(a)  that first-mentioned place consents thereto; or

(b)  the person has-

(i)  had an opportunity of leaving Hong Kong and has not done so within-

(A)  subject to sub-subparagraph (B), 40 days of having been free to do so; or

(B)  such longer period, if any, as is specified in the arrangements; or

(ii)  returned voluntarily to Hong Kong after having left Hong Kong.”

27.Mr Mok has emphasised the fact that, when the provisional warrant of arrest was executed, the Government of the United States, pursuant to s.17(2)(a) of the Ordinance and art.16(2) of the Hong Kong-United States extradition agreement had not consented to the arrest and re-surrender of the applicant to Singapore.  Mr Mok has said that in light of this, by the device of seeking and obtaining a provisional warrant of arrest, a process reserved only for urgent cases, the applicant has been deprived of the 40-day ‘window’ allowed to him under s.17(2)(b) of the Ordinance.  Put bluntly, as I have perceived it, what is said is that, because of their delay, the Singaporean authorities were forced to manipulate the extradition process in a way which undermined the applicant’s rights under s.17(2) of the Ordinance to be given 40 days after his acquittal to leave Hong Kong.  

28.In the result, the following issues have fallen for determination :

(a)  Whether the 1^st count on the list of Hong Kong offences – theft – should be quashed.

(b)  Whether the 16^th count should be quashed for a failure to comply with requirements of authentication.

(c)  Whether, in all the circumstances, the applicant’s rights under s.17(2)(b) of the Ordinance, as read with art.16(2) of the Hong Kong-United States extradition agreement, have been breached.

(d)  Whether the alleged culpable conduct of the Singaporean authorities has constituted an abuse of process demanding a stay of proceedings.

(e)  Whether the alleged conduct has visited the applicant with such hardship that, in terms of art.6(1)(b) of the Hong Kong-Singapore extradition agreement this court should order that it would be oppressive to return him to Singapore.

Quashing the first count on the list of Hong Kong offences

29.The first count on the list of Hong Kong offences – this being the equivalent of the third Singaporean charge of ‘cheating’ – is theft of a thing in action.  In respect of this count, Mr Mok has argued that the evidence supplied by the Government of Singapore has failed to provide prima facie proof of one essential element of the offence.   Mr Mok’s submissions may be summarised as follows :

(a)  Count 1 alleges that the applicant stole a debt due by HSBC to Kim Eng Finance.  This came about, it is alleged, because the applicant, by the use of fraudulent devices, obtained a cheque from Kim Eng Finance drawn on HSBC in the sum of S$860,000.  That being the case, for the theft of a debt due by HSBC to Kim Eng Finance to be demonstrated, there must be prima facie evidence of the existence of such a debt.  However, in that single regard, Mr Mok has submitted, the evidence supplied by the Government of Singapore has been fatally deficient.

(b)  A debtor-creditor relationship between HSBC and Kim Eng Finance would be demonstrated if there is evidence that the account of Kim Eng Finance was in credit when the cheque was presented for payment or else that there was at the time some arrangement in place in terms of which HSBC, whether the account was in credit or not, would honour such cheques.  The Singaporean authorities, however, have provided evidence of neither.  

30.The law is not disputed.  It can conveniently be stated by reference to R. v. Kohn (1979) 69 Cr App R 395, at 408 :

“That leads us to the third situation, which affects only count 7, that being, it will be remembered, the count which dealt with the cheque presented to the bank at a time when the account was over the agreed overdraft limit which had been imposed by the bank.

The situation here is that there is no relationship of debtor and creditor, even notionally.  The bank has no duty to the customer to meet the cheque.  It can simply mark the cheque ‘Refer to drawer.’  It can decline to honour the cheque.  The reasons for that are obvious.  If then a bank declines to honour a cheque, there is no right of action in the customer.  If they do as a matter of grace – that is all it can be – honour the cheque then that is a course which does not retrospectively create any personal right of property in the customer and does not create any duty retrospectively in the bank.  It seems, therefore, on that bald statement of principle, that this count which alleges a theft of a thing in action when the account was over the agreed limit must be quashed, unless some external reason can be found for saving it.”

31.While the law may be settled, I do not accept that the factual evidence presented by the Singaporean authorities has failed either to show that the account of Kim Eng Finance with HSBC was in credit when the applicant presented his cheque for payment or that, if not in credit, that there was an arrangement in place that the cheque would be met.  In my view, while the evidence is not direct, there is nevertheless sufficient indirect or circumstantial evidence on the issue to warrant the applicant’s committal. 

32.While it was shown in R. v. Kohn that the cheque in issue had been presented to the bank at the time when the account was over the agreed overdraft limit, there is no such evidence in the present case.  The relevant evidence supplied by the Singaporean authorities consists of a copy of the front and back of the presented cheque itself and a copy of the relevant page of the account statement of Kim Eng Finance with HSBC.  A study of the back of the cheque shows that it has gone through standard ‘clearing’ procedures.  Indeed this is endorsed on the back of the cheque.  As for the extract from the statement of account, this document indicates an orderly running of the account.

33.Indeed, on the day when the cheque for S$860,000 was paid; that is, on 3 July 2001, the record of the bank account reveals that a credit balance of just over S$2,000 had been carried forward from the previous day.  The activities for the day itself consisted of two debits and one credit; the result being that at the end of the day the account remained in credit.  The two debits consisted of the applicant’s cheque for S$860,000 and another cheque for S$140,000, these two cheques making for a total of S$1,000,000.  The single credit was a payment into the account of S$1,000,000.

34.It is true that the two debits appear in the account before the single credit.  But no time sequence appears on the face of the account statement.  There is no evidence, therefore, as to the exact order of time in which the activities occurred.  A study of the single page appears to show that, in respect of each day’s activities, debits appear first followed by credits.  That, I think, would indicate the workings of a computer programme rather than a factual record each day of a chronological sequence of activities.  In my judgment, a reasonable jury properly directed, in light of all the evidence, would from this be able to infer either that the account was kept in credit to meet each cheque as it fell for payment or that there was an arrangement with HSBC in terms of which funds would be credited to the account, perhaps at the end of each day, to cover the day’s outgoings. 

35.In Re Holmes [2005] 1 WLR 1857, at 1866, the Court – the Queen’s Bench Division, with two judges sitting – emphasised that the information provided by a foreign state for the purposes of extradition proceedings should be considered realistically rather than over-critically.  The court said the following :

“… it is scarcely surprising that information provided by foreign courts and prosecution authorities, which establishes an offence or offences under their own law, does not address specifically the technical requirements of English law.  In the present case, for example, there was, as mentioned above, no express evidence as to the debiting of a bank account with the sum of US$15,583,128.57, doubtless because a German lawyer would consider it either irrelevant or obvious.  The conduct alleged in the German arrest warrant is very obviously criminal conduct of a most serious nature, and it would have been highly regrettable if extradition were not available for the allegation to be tried and if found proved for the applicant to be convicted and punished.  These points highlight the need for the court to consider the information provided for the purposes of extradition proceedings realistically rather than over-critically.”

36.In my judgment, this observation applies with equal force to Mr Mok’s submissions to the effect that the Singaporean authorities have failed affirmatively to prove an essential element of count 1.

37.I find nothing in Mr Mok’s submissions concerning count 1 of the list of Hong Kong offences.

The alleged lack of authentication

38.When a person’s extradition is sought to stand trial for an offence in a requesting state, s.10(6)(b)(iii) of the Ordinance directs that the evidence in relation to that offence must be sufficient to warrant the person’s committal for trial according to the law of Hong Kong

39.The Ordinance provides that such evidence may be contained in supporting documents.  In this respect, s.2 of the Ordinance defines ‘supporting documents’, in relation to an offence for which a person is wanted, as documents which provide evidence of ‘the conduct constituting the offence’.

40.‘Supporting documents’, however, to be admissible into evidence for consideration by the committal magistrate must be authenticated.  In this regard, s.23 of the Ordinance states :

“(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.”

41.Art.9(1) of the Hong Kong-Singapore extradition agreement is a little more restrictive than s.23 of the Ordinance.  Art.9(1) states as follows :

“Documents supporting a request for surrender shall be admitted in evidence as proof of the facts contained therein if duly authenticated.  Documents are duly authenticated if they purport to be:

(a)  certified by a judge or magistrate of the requesting Party to be the original document containing or recording that evidence or a true copy of such a document; and

(b)  sealed with the official seal of a competent authority of the requesting Party.”

42.In the present case, certain documents and statements of evidence supplied by the Singaporean authorities were incorporated as exhibits into the affidavits of the investigating police officers.  In particular, the sworn statements of two officials of Rothschild Bank in Switzerland were incorporated in this manner into the affidavit of Assistant Superintendent of Police Mohd Shahri bin Kamsin.  In his ‘covering’ affidavit, the Assistant Superintendent said the following :

“In the course of my investigations, a formal request dated 2 December 2004 was sent to the Central Authority of Switzerland to request for their assistance in obtaining the notarized affidavits of certain witnesses who were based in Switzerland, for the purposes of tendering the same as evidence to be used in the extradition request for Huang and in his prosecution in Singapore.

On 6 December 2004, I received from Agnes Arnold and Dr Urs Peter Kälin of Rothschild Bank AG, Switzerland, the affidavits of Agnes Arnold Kaufmann (this is Agnes Arnold’s full name) and Colin A. Service, which were notarized before a Notary Public in Zurich, Switzerland.  To the best of my knowledge, the notarized affidavits of Agnes Arnold Kaufmann and Colin A. Service contain their evidence in the proceedings referred above.  The notarised affidavits are collectively annexed as exhibits ‘MS-11’.”

43.This is to be read in conjunction with the signed and certified affidavit of Ms Jill Tan Li Ching, a member of the Criminal Justice Division of the Attorney-General’s Chambers in Singapore —

“16.  A formal request dated 2 December 2004 was sent by the Attorney-General’s Chambers of Singapore to the Central Authority of Switzerland to request for their assistance in obtaining the notarized affidavits of certain witnesses who were based in Switzerland (‘the formal request’), for the purpose of tendering the same as evidence to be used in the extradition request for Huang and in his prosecution in Singapore.

17. On 6 December 2004, the notarised affidavits of Agnes Arnold Kaufmann and Colin A. Service were received by the investigation officer ASP Mohd Shahri from Agnes Arnold (her full name is Agnes Arnold Kaufmann) and Dr Urs Peter Kälin of Rothschild Bank AG, Switzerland, and the notarised affidavits are annexed in ASP Mohd Shahri’s affidavit.

18. Any evidence received by the Attorney-General pursuant to a request for evidence to be taken in a foreign country may be admitted as evidence at any criminal proceedings to which the request relates, pursuant to section 8(3) of the Singapore Mutual Assistance in Criminal Matters Act (Chapter 190A).  The relevant provision is annexed as ‘JTLC-4’.  At the trial of Huang, the prosecution would be seeking to admit the evidence received pursuant to the formal request to the Central Authority of Switzerland.”

44.The two statements of the officers of Rothschild Bank therefore – as they stand – constitute of themselves evidence admissible in Singapore and are not merely statements of what it is hoped potential witnesses will say at trial.

45.The Assistant Superintendent’s affidavit incorporating the two Swiss statements was itself certified by a judge in Singapore, meeting the requirements of s.23(2)(a) of the Ordinance and art.9(1)(a) of the extradition agreement.  But the sworn statements of the two officers of Rothschild Bank were not themselves separately and individually certified by a duly appointed judge or magistrate of Singapore.  This omission, Mr Mok has argued, has rendered the sworn statements of the two bank officers inadmissible into evidence.  Each of those statements, he has said, to be admissible must each have been separately certified by a Singaporean judge or magistrate.

46.What appears to have been argued by Mr Mok, at least by logical extension, is that each and every statement containing evidence must each be separately certified.  It is not sufficient for those statements to be incorporated as exhibits into the single affidavit of an investigating officer who has knowledge of those statements; their relevance, contents and the manner of their compilation.  In respect of the Swiss bank officials, therefore, it would have been necessary for each of them to fly to Singapore to have their statements certified by a Singaporean judge or magistrate or for the judge or magistrate to fly to Switzerland for that purpose.

47.I reject this contention.  Despite the several ways in which Mr Mok has argued the matter, I am satisfied that it remains the same contention that was unsuccessfully argued by him before Stock J (as he then was) in Tiongco v. The Government of the Republic of Philippines and Another [1998] 2 HKLRD 282.  At page 312 of his judgment, Stock J said the following :

“Mr Mok says that there was only one document presented to the magistrate which would satisfy these criteria which was a certificate of authentication, but that no other individual document presented purported in itself to be sealed with the official seal of such officers.

The point does not, in my view, have merit.  All the affidavits had been signed by a judge or magistrate or officer of the Philippines and there is a global certificate of authentication to which the affidavits were attached.  A similar argument was deployed in Oskar v. Government of Australia [1988] 1 AC 366 in relation to a similar section of the Fugitive Offenders Act, and in that case there was one official seal affixed to a tape binding together annexed documents.  Lord Ackner said at p.377C :

‘I agree with the Divisional Court that the section does not require each statement to carry on its face a certificate from the magistrate.  Such a requirement would be highly artificial. The section is complied with if there is a separate certificate, which sufficiently identifies all the statements which it certifies, as in the instant case, where they are all tied together.’

It is not suggested in this case that the certificate does not refer to the relevant affidavits and documents.”

48.As best as I understood one of his arguments, Mr Mok submitted that the incorporation of the two Swiss statements into the affidavit of the Assistant Superintendent somehow made them hearsay, evidence merely of what he said they would say.  I have not been able to follow that argument.  Authentication does not in any way alter the contents of a statement.  Authentication does not make admissible what is otherwise inadmissible hearsay.  Nor does a lack of authentication render the contents of a statement hearsay; that statement is inadmissible simply because it is not authenticated.

49.For the reasons given, I am satisfied, therefore, that the two Swiss statements have been duly authenticated.

Depriving the applicant of his rights under s.17(2)(b) of the Ordinance and art.16(2) of the Hong Kong-United States extradition agreement

50.I find no merit in this point and, prudently in my view, while it has not been abandoned by Mr Mok, it has not been actively pursued.

51.It is correct that, when the applicant was arrested under the provisional warrant, the United States Government had not yet given its consent to the re-surrender of the applicant.  But there is no obligation, either in terms of the Ordinance or the extradition agreement, for the consent to be given before any arrest for the purposes of future surrender or even at about that time.  S.17(2) of the Ordinance states that a person shall not be ‘surrendered’ to any third place unless consent has been given.  Art.16(2), cited in para.12(r) above, also provides that ‘surrender’ shall not take place unless consent has been given.  ‘Surrender’, in terms of the Ordinance, is the physical delivery up of a person to a requested state.

52.In my view, Mr Walsh put it well when he said that neither s.17(2) of the Ordinance nor art.16(2) of the extradition agreement prohibit a person being ‘dealt with’ without prior consent pursuant to the provisions of the Ordinance and any extradition arrangements, what they prohibit is the actual ‘delivery up’ of a person without prior consent.

53.A similar point was raised in R. v. Secretary of State for the Home Department, ex parte Johnson [1998] 4 All ER 635 with Bell J saying (at 644) :

“In my view the wording of art 15 imposes no restriction upon when the consent of the requested party is to be obtained save, of course, that it must be before the surrender of the relevant person to the third state.”  [my emphasis]

54.It seems to me that the applicant’s true case is not at this time in fact related to his rights under s.17(2) of the Ordinance or art.16(2) of the Hong Kong-United States extradition agreement.  His true case is that the Government of Singapore should have proceeded by way of a formal request for extradition, seeking his arrest pursuant to an authority to proceed.  However, its delay in proceeding put it in a position in which, if it proceeded by way of a formal request, it would not be able to prevent the applicant from leaving Hong Kong.  It therefore resorted to a device to which it was not entitled to resort; namely, the request for an urgent form of arrest : a provisional arrest.  Any urgency, however, was self-induced, a result of its earlier failure to proceed timeously.  In such circumstances, to prevent the applicant’s right, upon his acquittal, to depart Hong Kong, the Government of Singapore was forced to abuse the extradition arrangements between itself and Hong Kong, invoking an urgent arrest procedure when the urgency was solely of its own making.  That case – a case to which I shall now turn – is one that goes to issues of abuse of process or oppression and not to s.17(2) of the Ordinance or art.16(2) of the Hong Kong-United States extradition agreement.

Abuse of the Hong Kong courts’ process

55.Mr Mok’s submissions that the culpable conduct of the Singaporean authorities constituted an abuse of the process of the Hong Kong courts was premised on the contention that, in matters of extradition, our courts have the jurisdiction to determine matters going to such abuse.  That premise was contested by Mr Walsh.  Neither the magistrate, he said, nor this court, has the jurisdiction in matters of extradition to determine preliminary issues going to abuse.  While the extradition process is an important part of Hong Kong’s system of criminal justice, it would be wrong, Mr Walsh has said, to equate it to the domestic criminal trial process.  It differs from the domestic process in purpose and procedures and, most importantly, in the factors which render it fair.  Extradition procedure, unlike domestic criminal procedure, is founded on the concepts of reciprocity and comity.  Accordingly, extradition agreements having been reached by Hong Kong with various states, just as questions of guilt or innocence are entrusted to the fairness of legal procedures in the requesting state so equally are matters of procedural fairness left to the requesting state.

56.In support of his submissions, Mr Walsh was able to rely on a substantial body of authority, including the decision of the Hong Kong Court of Appeal in Chen Chong Gui v. Senior Superintendent of Lai Chi Kok Reception Centre and Another [1998] 1 HKC 522.

57.Mr Mok, however, submitted that this court should follow the reasoning in the recent case of R. (Kashamu) v. Governor of Brixton Prison [2002] QB 887, a judgment of the Divisional Court.  In that judgment, Rose LJ held that the coming into force of the Human Rights Act 1998 gave to a committing magistrate the power in extradition matters to determine whether there has been an abuse of the procedures of the English courts.  Rose LJ referred to the provisions in the 1998 Act which require the lawfulness of the detention of a person detained with a view to extradition to be decided speedily by a court.  In light of the Strasbourg jurisprudence, he said, it was plain that, in the extradition context, the executive; that is, the Secretary of State, did not possess the qualities of independence and impartiality possessed by a court.  He went on to say :

“32   What is in issue in the present case is whether, when lawful extradition procedures are being used, a resultant detention may be unlawful by virtue of abuse of the court’s process.  The magistrates’ court, rather than the High Court, is, in my judgment, the appropriate tribunal for hearing evidence and submissions, finding facts relevant to abuse and doing so speedily.  Furthermore, as it seems to me, the district judge’s obligation under section 6(1) of the Human Rights Act 1998 to act compatibly with Convention rights requires him to make a determination under article 5(4).  It seems to me that that determination should be in accordance with Lord Hope’s analysis in R v Governor of Brockhill Prison, Ex p Evans (No 2) [2001] 1 AC 19, that is he must consider whether the detention is lawful by English domestic law, complies with the general requirements of the Convention and is not open to criticism for arbitrariness.

33   It does not, however, follow that the district judge can be addressed on all the issues which may arise in the course of a summary trial.  Extradition proceedings do not, nor does fairness require that they should, involve resolution of trial issues.  Self-evidently, extradition contemplates trial in another jurisdiction according to the law there.  It is there that questions of admissibility, adequacy of evidence and fairness of the trial itself will be addressed; and, if the Secretary of State has concerns in relation to these or other matters, it is open to him to refuse to order a fugitive’s return.

34   What is pertinent here in the present cases is solely whether the detention is unlawful by English domestic law and/or arbitrary, because of bad faith or deliberate abuse of the English courts’ procedure.  The scope of the inquiry is, therefore, narrow. … I add that it will only be in a very rare extradition case, provided the statutory procedures have been followed, that it will be possible to argue that abuse of process has rendered the detention unlawful under article 5(4).”  [my emphasis]

58.Mr Mok has submitted that, as Hong Kong has itself constitutionally entrenched the exact same rights to which Rose LJ referred, this court should declare that, in matters of extradition, the committing magistrate, as well as this court itself, does possess jurisdiction to determine matters which go to the question of whether there has been an abuse of our domestic process.

59.The issues raised by Mr Mok, while they may only arise on rare occasions, are of considerable importance.  In my judgment, however, there is no need for the issue, as an issue fundamentally of constitutional law, to be determined in the present case.  I say this because, even assuming that I find for Mr Mok in respect of jurisdiction, on the merits it is plain to me that this court, on the evidence available to it, must reject any contention that there has been an abuse of its process of sufficient gravity to threaten irreparable prejudice to the administration of our system of justice in extradition matters. 

60.At the outset it is necessary to emphasise the following points :

(a)  It has not been suggested that the Hong Kong authorities have in any way been guilty of any form of deceit or delay.  All allegations of culpable conduct have been directed at the Singaporean authorities.

(b)  Despite Mr Mok’s assertions to the contrary, on the evidence there is nothing to suggest that the Singaporean authorities have been guilty of any bad faith.  On the evidence, all that can be suggested is that the Singaporean authorities have been guilty of delay, that delay resulting in the wrongful use of the procedure of provisional arrest.

(c)  It has never been suggested that the conduct of the Singaporean authorities has in any way brought about a situation in which it has been, and/or continues to be, impossible for the applicant to receive a fair hearing.  The allegation, therefore, being unrelated to issues of fairness, is to the effect that the actions of the Singaporean authorities have constituted an affront to the public conscience of such gravity that the extradition proceedings against the applicant must be stayed.

61.The principles to be applied in determining an application for a permanent stay of proceedings have been comprehensively considered and determined in two judgments of the Court of Final Appeal (‘the CFA’), both arising out of the same set of proceedings.  The judgments are HKSAR v. Lee Ming Tee & Another (2001) 4 HKCFAR 133 and HKSAR v. Lee Ming Tee and Securities and Futures Commission (2003) 6 HKCFAR 336.

62.These judgments go to Hong Kong’s domestic law but what is alleged, of course, is an abuse of Hong Kong’s domestic judicial processes, albeit within the context of extradition.  I see no basis therefore for applying a less stringent set of principles.  In the first Lee Ming Tee judgment, the CFA confirmed that a stay would only be ordered ‘in exceptional cases’.  It was, said the court, a jurisdiction to be ‘only most sparingly exercised’.  Importantly, and of direct relevance in the present case, the CFA emphasised that a stay is not to be ordered as a disciplinary measure; for example, in order to express a court’s disapproval of official conduct.  As the court said :

“The public interest lies in the guilt or innocence of the accused being fairly and openly determined at trial.  For this to be displaced, powerful reasons must exist for concluding that such a trial, although fair, would nonetheless constitute an intolerable abuse of the court’s process.  The instances where such an argument has any prospects of success must necessarily be very rare.”

63.As to the principles to be applied in considering an application for a stay on the basis only that there has been an abuse of executive power, in the second Lee Ming Tee judgment, the CFA (per Sir Anthony Mason NPJ) adopted the principles stated by Lord Steyn in R. v. Latif [1996] 1 WLR 104 :

“In this case the issue is whether, despite the fact that a fair trial was possible, the judge ought to have stayed the criminal proceedings on broader considerations of the integrity of the criminal justice system.  The law is settled.  Weighing countervailing considerations of policy and justice, it is for the judge in the exercise of his discretion to decide whether there has been an abuse of process which amounts to an affront to the public conscience and requires the criminal proceedings to be stayed: R. v. Horseferry Road Magistrates’ Court, ex parte Bennett [1994] 1 A.C. 42”

64.As I have said, the CFA recognised that only in exceptional cases will a permanent stay be granted.  The court qualified what this meant by citing L’Heureux-Dubé J’s observations in R. v. O’Connor (1996) 130 DLR (4^th) 235 at p.277B-C:

“… a stay of proceedings is only appropriate ‘in the clearest of cases’, where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.’”

65.The CFA continued :

“In the absence of a finding of ‘bad faith’, this standard will rarely, if ever be satisfied in a case where a fair trial is still possible.  Even if there be a finding of ‘bad faith’, that finding would not necessarily conclude the matter.”

66.Accordingly, in the infinite variety of cases that may come before the courts, it is clear that the presence or absence of bad faith, while not a mandatory finding, will inevitably be an important, perhaps decisive, consideration for the court. 

67.It is in the light of these principles that I turn to consider the present matter.

68.First, it seems to me that, if the allegations of unwarranted delay and abuse of the extradition process are proved, that conduct goes equally to the fairness of the extradition process in Hong Kong and, if he is surrendered, the fairness of the applicant’s trial in Singapore.  What is suggested after all is that there has been an intolerable abuse of the course of justice.  That abuse, if proved, goes not only to the manner in which the applicant’s surrender to Singapore has been sought but equally to the manner in which, if he is surrendered, the applicant will be brought before the courts of Singapore.  The principle has been stated in R. v. Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 AC 42, the majority judgment of the House of Lords being summarised in the headnote as follows :

“… that where a defendant in a criminal matter had been brought back to the United Kingdom in disregard of available extradition process and in breach of international law and the laws of the state where the defendant had been found, the courts in the United Kingdom should take cognisance of those circumstances and refuse to try the defendant; and that, accordingly, the High Court, in the exercise of its supervisory jurisdiction, had power to inquire into the circumstances by which a person had been brought within the jurisdiction and, if satisfied that there had been a disregard of extradition procedures, it might stay the prosecution as an abuse of process and order the release of the defendant.”

69.Courts of high authority, in respect of extradition matters, have long recognised that special defences in law are matters essentially for the courts of a requesting state.   By way of example, in R. v. Schmidt (1987) 33 CCC (3^rd) 193, La Forest J said the following :

“... concern for the liberty of the individual has not been overlooked in these rather special proceedings.  That is why provision is made in the treaties and in the Extradition Act to ensure that, before the discretion to surrender can be exercised, a judicial hearing must be held for the purpose of determining whether there is such evidence of the crime alleged to have been committed in the foreign country as would, according to the law of Canada, justify his or her committal for trial if it had been committed here.  If so, the judge commits the fugitive for surrender, and the Executive may then exercise its discretion to surrender; if not, he or she is discharged ...

....

The hearing thus protects the individual in this country from being surrendered for trial for a crime in a foreign country unless prima facie evidence is produced that he or she has done something there that would constitute a crime mentioned in the treaty if committed here.  It must be emphasized that this hearing is not a trial and no attempt should be made to make it one.  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.  A judge at an extradition hearing has no jurisdiction to deal with defences that could be raised at trial unless, of course, the Act or the treaty otherwise provides.

…

Counsel for Schmidt argued, however, that the principle of double jeopardy is so fundamental to our criminal law that in providing that an extradition hearing should be conducted ‘as nearly as may be’ like a preliminary hearing, Parliament must have intended to import into the extradition hearing some way of presenting defences to prevent a person from being twice prosecuted for the same offence.  That, however, would seem to me to import trial procedures into the hearing, an approach that is out of keeping with extradition law generally.  In domestic law, such pleas can be made at trial. In extradition matters, too, these are issues that can be raised at the trial in the foreign country. ...”  [my emphasis]

70.In Schmidt, La Forest J set out the jurisprudence that has long underscored extradition law.  Whether the courts of a requesting state today, having regard to the advance in human rights law, have the power to adjudicate on the abuse of their own domestic process does not, in my view, alter the general jurisprudence – it may be called policy – that, if a defence is available at trial in the requesting state, then that is invariably the appropriate forum for its determination.

71.Put simply, in respect of the present case, Hong Kong having entered into extradition arrangements with Singapore, it must be presumed that, just as Singapore will trust the courts of Hong Kong to fairly determine any special defence or other application made by a surrendered fugitive, so our courts will trust the courts of Singapore in the same manner.

72.In Latif, cited in para.65 above, Lord Steyn said that, in considering an application for a permanent stay of proceedings of the kind advocated by Mr Mok, it is for the court to weigh countervailing considerations of policy and justice.  The policy, I believe, is clear.  I have set that out.  As to the justice of the matter, as I have implied, it is to be presumed that, if the applicant is surrendered and if he persists in his application as to abuse of process, he will be dealt with justly by the courts of Singapore; that is, given a full and fair hearing.

73.Additionally, of course, even if such an application before the courts of Singapore should fail, if the applicant is convicted, any ‘unwarranted’ time spent in custody can be considered in mitigation of sentence.

74.I would add that in any event, in my view, the courts of Singapore are better positioned to determine any issue of abuse of process.  If the applicant is surrendered, and if he persists in his application, then the police officers responsible for assembling the case against him can be called to give evidence.  A wider range of documents than those strictly required for this extradition can, if necessary, be placed into evidence.  The police officers can be cross-examined and other witnesses called.  There may be cases where the abuse of process is so evident that it requires no proof; Kashamu is one of those cases.  However, the present case, in my view, is not such a case.  In my judgment, if the conduct of the Singapore authorities is to be fairly considered so that this court is able to give a comprehensive determination, it will mean either that a great many more documents will have to be prepared, authenticated and brought to Hong Kong or else that, contrary to the fundamental purpose of extradition proceedings, officers and other witnesses will have to be brought to Hong Kong to give evidence.  Either way, these extradition proceedings will be further delayed.

75.I make these observations in light of the fact that, in my opinion, there is simply insufficient material available on the papers as they stand to come to a finding that the applicant had demonstrated an abuse of executive power by the Singapore authorities. 

76.Aside from the difficult issue, to which I have referred earlier in this judgment, of whether there has been any significant ‘unwarranted’ time spent in custody by the applicant as a result of the actions of the Singaporean authorities, it must be remembered that in matters of extradition there can be many legitimate reasons why a requesting state would decide to delay seeking the surrender of a fugitive.  Illustrations must be numerous.  But if, for example, a fugitive is already facing trial in a foreign state for offences which, if proved, will result in a long term of imprisonment, the requesting state may determine that it would not be in the interests of justice to pursue its extradition request immediately but perhaps to await the outcome of events.  It may also, for example, be considered oppressive to serve voluminous extradition papers on a fugitive when that fugitive is about to stand trial in a requested state.  Delay in extradition matters may therefore work to the benefit of a fugitive as much as to his detriment. 

77.Accordingly, leaving aside any issue of jurisdiction, on the evidence before me, I am far from convinced, if there was unwarranted delay on the part of the Singaporean authorities, that any such delay has been of such gravity that it can be said that irreparable prejudice would be caused to the administration of justice in Hong Kong if these extradition proceedings were continued.

Refusal to order surrender pursuant to art.6(1)(b) of the Hong Kong-Singapore extradition treaty

78.As an alternative to the contention that the conduct of the Singapore authorities has been so unconscionable that a permanent stay of extradition proceedings is demanded, Mr Mok has submitted that this court has the jurisdiction pursuant to art.6(1)(b) of the Hong Kong-Singapore extradition agreement to come to a finding that it would be oppressive, by reason of the same conduct of the Singapore authorities, to order the surrender of the applicant.

79.Mr Walsh, however, has contended that the ‘appropriate authority’ to make a decision under art.6(1) of the extradition agreement is the Chief Executive, not this court.  This court, of course, exercises a supervisory jurisdiction going to the legality of any decision made by the Chief Executive under art.6 but that, Mr Walsh has said, is the limit of its jurisdiction.

80.Art.6(1) of the extradition agreement, already cited in part in para.10 of this judgment, is headed ‘Discretionary refusal of surrender’ and reads as follows :

“The surrender of any person sought under the terms of this Agreement may be refused if it appears to the appropriate authority of the requested Party that:

(a)  by reason of the trivial nature of the offence of which he is accused or was convicted; or

(b)  by reason of the passage of time since he is alleged to have committed it or to have become unlawfully at large as the case may be; or

(c)  because the accusation against him is not made in good faith in the interests of justice; or

(d)  because such surrender would be likely to entail exceptionally serious consequences related to age or health,

it would, having regard to all the circumstances, be unjust or oppressive to return him.”

81.Art.6(1) directs that a surrender may be refused if, having regard to all the circumstances, it would be ‘unjust or oppressive’ to order the surrender.  In the present case, Mr Mok has not suggested that it would be unjust to order the applicant’s surrender.  His submissions have at all times been focused on the issue of oppression.

82.It seems to me that the central issue determining the question of jurisdiction in respect of art.6 is whether the use of the phrase ‘appropriate authority’ in the article refers solely to the Chief Executive or includes the courts.  In considering this question, it is important, I think, to bear in mind that, in terms of the Ordinance, extradition in Hong Kong is a two stage process.  The first stage may be called the judicial process.  The second stage may be called the executive process.  This separation of extradition into two distinct faces has been described by Cory J in Idziak v. Minister of Justice (1993) 77 CCC (3^rd) 65 in the following terms :

“... It has been seen that the extradition process has two distinct phases.  The first, the judicial phase, encompasses the court proceedings which determine whether a factual and legal basis for extradition exists.  If that process results in the issuance of a warrant of committal, then the second phase is activated.  There, the Minister of Justice exercises his or her discretion in determining whether to issue a warrant of surrender.  The first decision-making phase is certainly judicial in its nature and warrants the application of the full panoply of procedural safeguards.  By contrast, the second decision-making process is political in its nature.  The Minister must weigh the representations of the fugitive against Canada's international treaty obligations ....

Parliament chose to give discretionary authority to the Minister of Justice.  It is the Minister who must consider the good faith and honour of this country in its relations with other states.  It is the Minister who has the expert knowledge of the political ramifications of an extradition decision.  In administrative law terms, the Minister’s review should be characterised as being at the extreme legislative end of the continuum of administrative decision-making.”  [my emphasis]

83.The residual power of the executive to refuse to surrender – in Hong Kong’s case that power being exercised by the Chief Executive – has long been incorporated into common law extradition statutes and recognised as such by common law courts.  In Atkinson v. United States Government and Others [1969] 3 All ER 1317, Lord Reid said (at 1322) :

“It is now well recognised that the court has power to expand procedure laid down by statute if that is necessary to prevent infringement of natural justice and is not plainly contrary to the intention of Parliament.  There can be cases where it would clearly be contrary to natural justice to surrender a man although there is sufficient evidence to justify committal.  Extradition may be either because the man is accused of an extradition crime or because he has been convicted in the foreign country of an extradition crime.  It is not unknown for convictions to be obtained in a few foreign countries by improper means, and it would be intolerable if a man so convicted had to be surrendered.  Parliament can never have so intended when the Act of 1980 was passed.  But the Act does provide a safeguard.  The Secretary of State always has power to refuse to surrender a man committed to prison by the magistrate.  It appears to me that Parliament must have intended the Secretary of State to use that power whenever in his view it would be wrong, unjust or oppressive to surrender the man.”

84.The phrase ‘appropriate authority’ has not been defined in s.2 of the Ordinance; in short, it has not been defined for general purposes.  The phrase will, of course, include the courts when that is appropriate but equally, when it is appropriate, the phrase will refer only to the Chief Executive.  An understanding of the extradition process, as constructed by the terms of the Ordinance, will in every case determine whether the ‘appropriate authority’ is a court or the Chief Executive or perhaps both.

85.In the present case, it is plain to me that the ‘appropriate authority’ given the jurisdiction under art.6(1) to consider whether it would be unjust or oppressive to order surrender is the Chief Executive.

86.Art.6(1) refers to the ‘surrender’ of a person; that is, to the physical delivery up of a person to the requested state.  The final decision whether to do so, while it may be subject to the supervisory jurisdiction of our courts, is manifestly a decision for the Chief Executive.

87.I have been referred to the fact that in England Parliament has been given specific statutory power to the High Court to take into account the general nature of matters described in art.6(1).  The Hong Kong legislature, however, has given no such statutory power. 

88.I am satisfied, therefore, that this court has no jurisdiction to make an order pursuant to art.6(1)(b).  Should it reach that stage, the applicant will be able to make representations to the Chief Executive concerning his assertion that, by reason of the culpable conduct of the Singaporean authorities, it would be oppressive to surrender him to Singapore.  The Chief Executive will, in making his executive decision, be able to weigh those representations in the light of Hong Kong’s international obligations and come to a rational decision on the matter.  It is not, however, for this court at this time to usurp the power of the Chief Executive either by ordering him not to surrender the applicant or to make a declaration that it would be oppressive to do so.

89.In respect of Mr Mok’s submissions concerning abuse of process, I felt it appropriate, without having to decide the question of jurisdiction, to go directly to the merits.  I did so because, whether this court does or does not have jurisdiction, a determination of the merits is for the courts alone, it being the abuse of their process which is at issue.  In respect of art.6(1)(b), however, I do not think it would be appropriate to make any observations as to the underlying merits of the matter.  That might be perceived as intended to somehow influence the Chief Executive in a decision-making function which is his alone to make. 

Conclusion

90.For the reasons given in this judgment, I am satisfied that the order of committal made by the magistrate 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 respondent.

Mr Johnny S.L. Mok, instructed by Messrs Boase, Cohen & Collins, for the Applicant

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