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

CACV74/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 74 OF 2006

(ON APPEAL FROM HCAL NO. 103 OF 2005)

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BETWEEN

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Before: Hon Ma CJHC, Stuart-Moore V-P & Yeung JA in Court

Date of Hearing: 13 September 2006

Date of Handing Down Judgment: 5 October 2006

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J U D G M E N T

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Hon Ma CJHC :

1.The Government of Singapore seeks the extradition of the Applicant in order for him to face some 16 criminal charges involving the use of forged documents and theft.  After a contested hearing, on 26 July 2005 the Applicant was committed by a magistrate (Mr Eddie Yip) at Eastern Magistracy into custody to await the Chief Executive's decision whether or not to surrender him to Singapore.  Following the committal, the Applicant applied for a writ of habeas corpus.  This was his right, a right expressly preserved by section 12 of the Fugitive Offenders Ordinance, Cap.503 (“the Ordinance”).

2.The substantive application for habeas corpus was heard by Hartmann J who, in a judgment handed down on 11 January 2006, dismissed the application for the issue of a writ of habeas corpus with costs.  He was satisfied that the order for committal made by the Magistrate was lawful and that the Applicant's detention was also lawful.

3.Hartmann J dealt with the habeas corpus application by having to resolve a number of issues, including abuse of process and oppression to the Applicant.  In this appeal, most of the issues that were live ones in the court below, are no longer so, leaving only one issue for this court to resolve.  This relates to the authentication of documents under section 23 of the Ordinance and Article 9 of the Agreement between the Government of the Hong Kong Special Administrative Region of the People's Republic of China and the Government of the Republic of Singapore for the Surrender of Fugitive Offenders contained in the Fugitive Offenders (Singapore) Order, Cap.503 Q1 (“The Hong Kong-Singapore Arrangements”).

4.Before dealing with this issue, I first set out the factual background to the present application; this can be done briefly in view of the narrowness of the point before us for determination : -

(1)    The Applicant is a permanent resident of Hong Kong.  In 1997, following the issue of warrants for his arrest and the arrest of his then girlfriend (later his wife) regarding their financial activities, they left Hong Kong for the United States and then to Singapore.

(2)    In 2001, certain acts in Singapore gave rise to the charges in respect of which the Singapore authorities now seek the Applicant's extradition.  I will detail these charges presently.

(3)    In May 2002, the Applicant left Singapore again for the United States.  In October 2003, he was located there and following a request for extradition by the Hong Kong Government to the US Government, the Applicant returned to Hong Kong on 15 December 2003 to face trial (he did not contest his extradition to Hong Kong).  It will be recalled that the Applicant was wanted in Hong Kong in respect of his financial activities here.

(4)    The trial of the Applicant and his wife took place in October 2004, culminating in their acquittal on 29 October 2004.

(5)    On 18 October 2004, the Government of Singapore had requested the provisional arrest of the Applicant under section 7 of the Ordinance.  This was granted on 21 October 2004.  After his acquittal on 29 October 2004, the Applicant was immediately arrested.

(6)    On 10 December 2004, the Government of Singapore made a formal request for the surrender (extradition) of the Applicant to Singapore to face charges.  As indicated above, on 26 July 2005, he was committed.

5.I now deal with the issue of authentication.

6.It is first necessary to identify the 16 charges the Applicant faces in Singapore.  Here, I gratefully adopt the Judge's summary of the relevant offences contained in paragraphs 2 to 4 of his judgment : -

“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 Kim 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.”

7.The authentication point relates to two pieces of evidence that were placed before the committing magistrate in Hong Kong : - two affidavits from officers of Rothschild Bank AG Zurich, Switzerland (“the Swiss Affidavits”).  These Affidavits provided important evidence going to six of the Singapore charges relating to the use of alleged forged letters from Rothschild Bank and of the alleged forged letter of credit from that bank.

8.The Swiss Affidavits were exhibited to an affidavit of one Mohd Shahri bin Kamsin, an Assistant Superintendent of Police of the Commercial Affairs Department of the Singapore Police Force.  Assistant Superintendent Kamsin's affidavit was one of the affidavits placed before the committing magistrate in Hong Kong.

9.Assistant Superintendent Kamsin's affidavit was on its face certified by a District Judge (District Judge Wong Choon Ning) as being an original document recording his evidence.  District Judge Wong also signed on each exhibit page including the exhibit containing the Swiss Affidavits.  His affidavit was part of a bundle of affidavits that were sent to Hong Kong from Singapore to constitute evidence before the committing magistrate.  A Certificate of Authentication was issued by the Minister of Law in Singapore (Mr S Jayakumar) stating that the signature of, among others, District Judge Wong appearing in Assistant Superintendent Kamsin's affidavit (and other affidavits) was his signature and it was also stated that this and other affidavits were originals.  The Certificate of Authentication was sealed with an official seal.

10.Mr Johnny Mok SC for the Applicant contended that the evidence contained in the Swiss Affidavits was not duly authenticated and as a consequence, ought not to have been admitted into evidence before the committing magistrate.  Accordingly, he argued, the Applicant could not be committed in relation to the relevant six charges.  Forcefully though he has put his arguments, I am unable to agree with them.

11.The requirement of authentication of documents is contained in section 23 of the Ordinance and Article 9 of the Hong Kong-Singapore Arrangements : -

The Ordinance

“23.   Admissibility of evidence, etc.

(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. …”

The Hong Kong-Singapore Arrangements

“	ARTICLE 9 AUTHENTICATION

(1)    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 of a true copy of such a document; and

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

(2)    An authenticated translation of documents submitted in support of a request for surrender provided by the requesting Party shall be admitted for all purposes in proceedings for surrender.”

12.The term “supporting document” in section 23 of the Ordinance is defined in section 2(1) of the Ordinance as being a document that provides evidence of the relevant offence, the penalty which may be imposed in respect of that offence and the conduct constituting the offence.

13.I should also add that the status of the Hong Kong-Singapore Arrangements is set out in sections 3(1) and (9) of the Ordinance : -

“3.   Chief Executive in Council may apply Ordinance

(1)    Subject to subsection (9), the Chief Executive in Council may, in relation to any arrangements for the surrender of fugitive offenders, by order -

(a) reciting or embodying the terms of the arrangements;

(b) specifying the extent, if any, to which any relevant enactment specified in the order is to be repealed or amended,

direct that the procedures in this Ordinance shall apply as between Hong Kong and the place outside Hong Kong to which the arrangements relate, subject to the limitations, restrictions, exceptions and qualifications, if any, contained in the order. …

(9)     The Chief Executive in Council shall not make an order under subsection (1) unless the arrangements for the surrender of fugitive offenders to which the order relates are substantially in conformity with the provisions of this Ordinance.”

14.The process of authentication of a relevant document in any extradition to Singapore contains two requirements (see Article 9 of the Hong Kong-Singapore Arrangements) : -

(1) First, that the document purports to be signed or certified by a judge or magistrate of Singapore to be the original document containing or recording the evidence therein or a true copy of such document; and

(2) Secondly, that the document is sealed with the official seal of a competent authority in Singapore.

Once authenticated, the document will be admitted into evidence as proof of the facts contained therein.

15.In the present case, the relevant documents are the Swiss Affidavits.  On their face, they have not been signed or certified by a judge or magistrate of Singapore.  Nor were they sealed with the official seal of any competent authority in Singapore.  So, argues Mr Mok, there is simply no authentication of these documents as required by the Ordinance and the Hong Kong-Singapore Arrangements.

16.In my view, the requirements of the Ordinance and the Hong Kong-Singapore Arrangements are not required to be so narrowly construed : -

(1)    As far as these requirements are concerned, nothing requires a signature, certification or seal actually on the very document sought to be authenticated.  As long as the relevant document is clearly identified and intended to be authenticated, a global certificate will suffice.

(2)    In Oskar v Government of the Commonwealth of Australia and Others [1988] 1 AC 366, the House of Lords dealt with the requirements of section 11 of the Fugitive Offenders Act 1967 (which was largely the equivalent of section 23 of the Ordinance).  There, the documents in support of the request for extradition had merely been bound together with an endorsement containing the seal and signature of the Attorney General of Australia (the endorsement was signed on his behalf).  Within the bundle was also a certificate of a stipendiary magistrate that covered the statements that were sought to be used in the extradition proceedings.  Lord Ackner said this at 377C-D : -

“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.”

(3)    In Tiongco v The Government of the Republic of the Philippines & Another [1998] 2 HKLRD 282, one of the issues was again whether there had been due authentication.  The relevant documents in that case comprised a number of affidavits each signed by a judge or magistrate but these documents were not individually sealed (our second requirement).  There was only a global certificate of authentication to which the affidavits were attached.  Stock J held that the global certificate of authentication was sufficient.  In relying on Oskar, he said at 312E : -

“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.”

(4)    Applying the principle I have referred to in paragraph (1) above, which is supported by these two authorities, I am of the view that there has been due authentication in the present case of the Swiss Affidavits.  So far as the first requirement is concerned, not only did a judge sign or certify on Assistant Superintendent Kamsin's affidavit which, it will be remembered, had exhibited to it the Swiss Affidavits so that he is to be taken to have signed or certified all the exhibits contained in that affidavit as well, he also signed on the exhibit page of each exhibit.  It could not have been clearer that he intended to sign or certify the Swiss Affidavits.  As for the second requirement, the Swiss Affidavits were exhibited in an affidavit that was expressly referred to in the Certificate of Authentication signed and sealed by the Minister of Law of Singapore.  It is again clear that the Swiss Affidavits were intended to be included in this part of the authentication process.

(5)    As both Mr Mok and Mr Wayne Walsh (for the Respondents) pointed out, the authentication of a document does not render what may be inadmissible in the relevant document, admissible (for example if the material fact relied on is based on multiple hearsay) : - see R(Saifi) v Governor of Brixton Prison and another [2001] 1 WLR 1134, at 1138 (paragraph 6).  In other words, authentication will result in the facts contained in the relevant document being admitted into evidence without further proof (that is without calling the maker) but whether the facts themselves are admissible is another question.  Thus, for example, as both parties accepted, if the document is an affidavit from a person deposing the facts of which he has direct knowledge, the evidence will be admissible unlike in a case where he deposes to matters not within his personal knowledge.

(6)    The purpose of authentication is a procedural formality to enable the use of documents (which have been duly processed by judges or officials in the requesting country) in extradition proceedings without the need to call live witnesses.

17.For the above reasons, I would dismiss the appeal.  I would also make an order nisi that the Applicant do pay the Respondents the costs of this appeal, such costs to be taxed if not agreed.

Hon Stuart-Moore V-P :

18.I agree.

Hon Yeung JA :

19.I agree with the judgment of the Chief Judge and the order he proposes in paragraph 17 hereof.

Hon Ma CJHC :

20.Accordingly, the appeal is dismissed.  There will also be a costs order nisi that the Applicant do pay the Respondents the costs of this appeal, such costs to be taxed if not agreed.

Mr Johnny Mok SC & Miss Jessica Ng, instructed by Messrs Boase, Cohen & Collins for the Applicant/Appellant

Mr Wayne Walsh of the Department of Justice for the 1st & 2nd Respondents/Respondents