Lawrence Louis Levy v. Attorney General

IN THE COURT OF APPEAL

1987 No. 8
(Civil)

BETWEEN:

Before: Roberts, C.J., Sir Alan Huggins, V.P., Fuad, J.A.

Date of Hearing: 5^th & 6^th March, 1987

Date of Judgment: 25^th March, 1987

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JUDGMENT

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Roberts, C.J.

Preliminary

1. This is an appeal from an Order of Mortimer, J. dated 31^st December, 1986, whereby he dismissed the application of the applicant for an Order of Certiorari to quash an order made by a magistrate on 15^th October, 1986, under the Extradition Acts 1870-1935 and the Extradition (Hong Kong) Ordinance (Cap. 236).

2. By his Order of 15^th October, 1986, the magistrate had ordered that the applicant be committed to prison to await surrender to U.S.A. for trial on offences disclosed by such evidence as was put before him.

3. At the conclusion of the hearing of this appeal on 6^th March, 1987, we dismissed the appeal and now give our reasons.

4. It is not necessary for us, in view of the comprehensive and compelling judgment of Mortimer, J. with which we fully agree, to do more than refer to some of the salient features of this application.

The former approach of courts

5. Until the House of Lords decided otherwise in In re Nielsen[1], it had been the practice of the requisitioning foreign government to call evidence of its own criminal law, in order to establish –

(a)    that what the fugitive offender is accused of having done within the jurisdiction of its courts is criminal under its domestic law; and

(b)   that such conduct is a crime substantially similar to an “extradition crime”, that is to say one of the English crimes, of which descriptions are included in the list of crimes set out in Schedule 1 to the Extradition Act 1870, as amended from time to time.

6. An example of that approach can be seen in the judgment of this Court in In re Vonchai Tumtonkitkul[2] of 29^th March, 1982.

7. This Court there approved an Order for committal under Section 10 of the Extradition Act 1870, in which the magistrate expressed himself to be satisfied that there was a prima facie case against the fugitive criminal, such as would justify his committal for offences against both Dutch law and Hong Kong law.

8. A careful examination of the evidence adduced, so as to satisfy the magistrate that it amounts to a prima facie case against the fugitive criminal both under the law of the requisitioning state and Hong Kong law may not have been difficult in many cases, since the majority of extradition crimes are of a nature common to most countries.

9. It did, however, involve the magistrate in trying to decide whether the evidence raised a prima facie case under a law of which he knew little or nothing, so that he was obliged to rely on expert evidence of it. It would also have given rise to grave difficulty where, as in this case, one of the crimes, “Continuing Criminal Enterprise” (“C.C.E”) is, as such, unknown to Hong Kong or English law, although its ingredients amount to the various Hong Kong extradition crimes listed in paragraphs 12 to 17 of the list of crimes contained in the magistrate’s Order of Committal.

10. The principal argument advanced on behalf of the applicant was that the magistrate was wrong to commit him under the Extradition Acts because the evidence put before him must satisfy a “double criminality” test, in the sense that the magistrate must find that C.C.E. is a crime substantially similar to such Hong Kong crimes as may be set out as its equivalent in the magistrate’s Order of Committal and that the evidence amounts to a prima facie case of both crimes.

The conduct test

11. Had this argument been advanced before Nielsen⁽¹⁾, and Government of U.S.A. v. McCaffery[3] which followed it a few weeks’ later, it might well have succeeded, in view of R. v. Governor of Pentonville Prison, ex parte Budlong[4] in which the Divisional Court decided that the crime for which extradition was demanded must be substantially similar in both countries. However, the Budlong Case has been overruled by Nielsen to this extent.

12. This application for extradition is made pursuant to an extradition treaty concluded between the Governments of the United Kingdom and the United States of America and embodied in the United States of America (Extradition) Order 1976.

13. Some confusion may have arisen in the past because of references in the Treaty to “the offence for which extradition is requested” (Article IV) and to the requirement that “the offence must be extraditable” (Article III (c)), suggesting that a magistrate must be satisfied that there is a prima facie case in relation to the offence charged in the requesting state.

14. Any such doubt is removed by Nielsen which makes it clear that extradition may be granted for “an act or omission the facts of which disclose an offence” (Article III (1)). It is therefore the conduct established by the evidence placed before the magistrate which is the crucial factor throughout extradition proceedings.

15. It is that conduct which the Governor considers when he decides whether to make an Order requiring the magistrate to issue his warrant for the apprehension of the accused person. It is that conduct which the magistrate considers when deciding whether there is prima facie evidence that the crime specified in the Governor’s Order would have been committed if it had taken place within the jurisdiction. It is in respect of that conduct that the magistrate makes an Order of committal, if he is satisfied that there is prima facie evidence of the offence specified in the Governor’s Order. If so satisfied, he is under a duty to commit the accused person to prison under section 10 of the Extradition Act.

16. The magistrate is not, in general, concerned with the law of the requesting state as to the ingredients of any offence alleged in the originating process of the requesting state:

“….. apart from considering whether the foreign warrant is duly authenticated, the magistrate has only to consider whether the evidence would justify the committal for trial of the prisoner if the crime of which he is accused, i.e. the conduct complained of, has been committed in England. There is, in our judgment, no warrant in section 10 of the Act for the magistrate to consider any question of foreign law.”: per Robert Goff, L.J. in R. v. Chief Metropolitan Magistrate ex p. Government of Denmark [1984] 79 Cr. App. R. 1, 12.

17. That judgment was fully endorsed by the House of Lords on appeal: [1984] 1 A.C. 606, 620D. At p. 624G Lord Diplock said of the magistrate’s duty:

“…. at the conclusion of the evidence the magistrate must decide whether such evidence would, according to the law of England, justify the committal for trail of the accused for an offence that is described in the 1870 list (as added to or amended by subsequent Extradition Acts) provided that such offence is also included in the extraditable crimes listed in the English language version of the extradition treaty. In making this decision it is English law alone that is relevant. The requirement that he shall make it does not give him any jurisdiction to inquire into or receive evidence of the substantive criminal law of the foreign state in which the conduct was in fact committed.”

18. This was confirmed in McCaffery⁽³⁾ by Lord Diplock at p.869E:

“….. the test whether a person in respect of whom a warrant for his arrest had been issued in a foreign state for an offence alleged to have been committed in that state was liable to be surrendered as a fugitive criminal was not: whether the offence specified in the foreign warrant of arrest as that for which it had been issued was substantially similar to a crime under English law falling within the list of offences described in Schedule 1 to the Extradition Act 1870, as currently amended (i.e., the so-called ‘double criminality’ test). The right test, as stated by the divisional Court in the Nielsen case was: whether the conduct of the accused, if it ha been committed in England would have constituted a crime falling within one or more of the descriptions included in that list.”

19. He added that evidence of the foreign law defining the offence for which the warrant had been issued in the requesting state was irrelevant, save to the extent that the particular treaty might expressly require proof of some aspect of that law. In this instance it was necessary to satisfy the magistrate that the conduct was “punishable in the United States of America by imprisonment or other form of detention for more than one year or by the death penalty” and that it constituted “a felony under the law of the United States of America”. Otherwise the American law could not have been relevant, except to establish one of the defences afforded by Article V of the Treaty – e.g. autrefois acquit or limitation of time.

20. In passing, we should comment that, if a passage in Mortimer, J’s judgment (at p.20) may be thought to suggest that it is proper for the magistrate to receive evidence as to what constitutes C.C.E., we must respectfully disagree with it.

21. The basis of the argument put on behalf of the appellant was that it would be unjust to surrender him, when the Hong Kong Courts have not considered whether there is prima facie evidence of the offence for which it is desired to try him in the United States.

22. This is a misunderstanding of the task of the courts of the requested state. It is not for us to question the terms of the Treaty but to apply the law as we find it. In the event, we can discern no injustice to the appellant.

23. It was not disputed before us that the admissible evidence put before the magistrate was sufficient to establish a prima facie case of the offences prescribed in the Governor’s Order.

24. It is the conduct of a fugitive offender, as evidenced before the magistrate, which constitutes the grounds on which it is proper for the Governor to order his surrender. What may happen at any trial in the United States is no concern of this court; our duty is limited to ensuring that the appellant has enjoyed such protection as the law of Hong Kong affords him. This he has had and no complaint is, or could reasonably, be made as to this.

25. We agree with the submission by counsel for the appellant that the terms of the Order made by the magistrate have been out-dated, to some extent, by reason of Nielsen⁽¹⁾ and McCaffery⁽³⁾ and should no longer be used, insofar as they contain a finding that the evidence put before him amounted to specified crimes against the law of the requesting country. To that extent, the magistrate’s Order should be modified.

26. In all other respects, this matter has been dealt with, from first to last in accordance with the terms of the Treaty and of the Extradition Act and the Extradition (Hong Kong) Ordinance, and the appeal must be dismissed.

Mr. G. Alderdice (Gordon D. Oldham & Co.) for Appellant.

The Hon. M. Thomas, Q.C., Attorney General, with Mr. M.C. Blanchflower, Crown Counsel, for Respondent, for the Government of U.S.A., the Acting Governor of Hong Kong and Frank Gardiner, Esq., Magistrate.

[1]  [1984] A.C. 606 (H.L.)

[2]  M.P. 186/82

[3]  [1984] 1 W.L.R. 867 (H.L.)

[4]  [1980] 1 W.L.R. 1110 DC