Cho Ming Lok v. The Government of United States

CACV000150/1992

________________

H E A D N O T E

________________

Habeas corpus application arising out of extradition proceedings.

IN THE COURT OF APPEAL

1992, No 147
(Civil)

________________

________________

IN THE COURT OF APPEAL

1992, No 150
(Civil)

________________

________________

Coram: Hon. Fuad, V.-P., Penlington and Nazareth, JJ.A.

Dates of hearing: 19 and 20 January 1993

Date of judgment: 20 January 1993

Date of handing down reasons: 24 February 1993

________________

J U D G M E N T

________________

Nazareth, J.A.:

1. This is the judgment of the court. These two appeals were heard together, as were the applications in the court below, from which the appeals arise. They arose in the following way. The Government of the United States of America (the respondent) requested the extradition of Fung Chuen-kan ("Fung") and Cho Ming-lok ("Cho") on charges of trafficking and conspiracy to traffick in dangerous drugs. They were arrested on provisional warrants of arrest issued by a magistrate. On 11th July 1991 the Governor of Hong Kong signed an Order to Proceed in which three crimes were specified in the following terms:

"Crime 1

Between approximately October 1990 and January 1991, FUNG Chuen-kan did conspire with other persons to traffic in a dangerous drug, namely heroin, contrary to Common Law and sections 4 and 39 of the Dangerous Drugs Ordinance, Cap. 134.

Crime 2

Between approximately October 1990 and January 1991, FUNG Chuen-kan trafficked in a dangerous drug, namely heroin, contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance, Cap. 134.

Crime 3

Between approximately October 1990 and January 1991, FUNG Chuen-kan and CHO Ming-lok did conspire with each other and with other persons to traffic in a dangerous drug, namely heroin, contrary to Common Law and Sections 4 and 39 of the Dangerous Drugs Ordinance, Cap. 134."

2. On 6th September 1991 a magistrate committed them on all three crimes. They then challenged their committal by applications for habeas corpus, which came before Sears J, who quashed the committal of both applicants on crime 3, but rejected the challenge by Fung in relation to crimes 1 and 2. He released Cho, who, although earlier legally represented and aware of the approaching hearing, withdrew his instructions and did not appear. Fung, who meanwhile remained in custody, appeals to this Court. The respondent filed a respondent's notice in respect of the appeal, and also appealed against the orders made in respect of Cho.

3. At the hearing, having heard Mr Gerard McCoy for Fung, and Mr Graham Harris who, with Mr Roger McMeans, appeared for the respondent, we dismissed Fung's appeal and allowed both respondent's appeals with costs indicating that we would hand down our reasons later. We do so now.

4. In his notice of appeal Fung relied on the following two grounds:

"1. That the judge was wrong in holding that the warrant of arrest dated 22nd July 1991 for the applicant was properly authenticated and/or sealed.

2. That "having found that the warrant of arrest dated 22nd July 1991 for the applicant was erroneous and/or defective because it was a joint warrant, the learned judge was wrong in law in holding that the said defect or error did not invalidate the said warrant of committal and/or that he refused to grant any relief to the applicant. The learned judge ought to have held that the said warrant of committal was invalidated by the said defect or error and that the applicant ought to be released by a writ of habeas corpus."

The respondent's notice was in the following terms:

" RESPONDENT'S NOTICE TO VARY JUDGMENT

TAKE NOTICE that the Respondent intends upon the hearing of the appeal under the Applicant's Notice of Appeal dated 16th September 1992 from the order of the Honourable Mr Justice Sears given on the 7th day of August 1992, to contend that the said judgment should be varied in any event for an order that:

(1) the Applicant's motion for release made on 6th August 1992 under Order 54 Rule 8 of the Rules of the Supreme Court be refused and the Applicant be extradited to the United States of America for trial of Crimes 1, 2 and 3 as set out in he Magistrate's Warrant of Committal

(2) the Applicant do pay the Respondent's costs of the action in the Court below.

And further take notice that the Respondent will apply to the Court of Appeal for an order that the Applicant pay to the Respondent the costs occasioned by this Notice to be taxed if not agreed.

And further take notice that the grounds of the Respondent's contentions are:

(1) That the learned judge erred in law and in fact in ruling that the learned Magistrate was Wednesbury unreasonable in finding that there was a prima facie case against the Applicant in respect of Crime 3 as set out in the Magistrate's Warrant of Committal dated 6th September 1991.

(2) That the learned judge erred in law in finding that the Magistrate should have confined his consideration of the evidence and material before him to the particulars contained in the American indictment.

(3) That the learned judge having refused the Applicant's application for writ of habeas corpus ought to have exercised his discretion in favour of the Respondent and ordered the Applicant to pay his costs."

5. In addition in Appeal No 150 the respondent appealed against the order of Sears J - (1) discharging Cho and (2) ordering that the respondents pay to Cho 50% of his costs of the application. In lieu the respondent sought orders that - (i) the appeal be allowed and the whole of the order of Sears J be set aside so that Cho may if the Governor sees fit be extradited to the US for trial; (ii) the costs of the appeal and of the application before Sears J be to the respondent. The grounds of appeal specified were identical to grounds (1) and (2) in Appeal No 147.

Whether respondent's notice defective

6. Mr McCoy who appeared for Fung at very short notice, took a preliminary point on the Respondent's Notice which we record at his request. He pointed to s 24 of the Supreme Court Ordinance under which the respondent can appeal as of right to the Court of Appeal from any decision of the High Court on a criminal or civil application for habeas corpus where the High Court orders the release of the person restrained. He also referred to the following part of 059 r 6 of the Rules of the Supreme Court:

"Respondent's Notice 6(1)

A respondent, who having been served with a notice of appeal, desires -

(a) ...

(b) to contend that the decision of the court below should be affirmed on grounds other than those relied upon by that court, or

(c) to contend by way of cross-appeal that the decision of the court below was wrong in whole or in part,

must give notice to that effect, specifying the grounds of his contention, and in a case to which sub-paragraph (a) or (c) relates, the precise form of the order which he proposes to ask the Court to make."

He contended on the foregoing provisions that the respondent should have lodged a notice of cross-appeal rather than a respondent's notice seeking to vary the judgment of Sears J. He conceded that his was a modest pleading point but submitted that it was for the US Government to get its pleadings right. Pointing also to the marginal reference in the Respondent's Notice to Order 59 r 6(1)(a) RSC, he indicated he would oppose amendment of the Respondent's Notice which he contended would amount to a criminal appeal out of time by some four months.

7. It was plain that the only difference between the Respondent's Notice lodged and a cross-appeal would be in the heading to the former which ought instead to have had a reference a "cross-appeal". The appellant was not misled in the slightest way by the minor error of form, as opposed to substance, and equally not prejudiced in any way. We saw no merit in his objection and rejected it. However, Mr Harris, ex abundanti cautela, applied and having obtained our leave therefor, amended the Respondent's Notice to refer to a cross-appeal in the heading.

Whether joint warrant defective

8. Turning then to Fung's appeal, Mr McCoy quite properly in our view, elected not to proceed on the first ground. Pursuing the second ground, he pointed out that the warrant of arrest was a joint warrant referring to both Fung and Cho; that is plain and not in dispute. He submitted that a warrant should refer to only a single person having regard to its implications for the liberty of the individual concerned. He was not able to cite any authority for that proposition but went on to submit that warrants have to be shown and produced and that therefore there could be practical difficulty if production was required in different places at the same time. He was constrained to concede that two or more original warrants could be typed or printed and signed to meet such difficulty. Having heard all he had to say we were not persuaded that Sears J was wrong in stating at p 10 of his judgment that:

"There should have been separate warrants. That error however does not invalidate this warrant of committal. I consider it should not have happened, but the names of the person are properly set out and the crimes do encompass the particular person. On this point, I would not have granted any relief to either of the applicants."

9. Furthermore, habeas corpus should not be granted on a mere technicality (R v Governor of Brixton Prison ex parte Servini [1914] 1 KB 77, 81; Athanassiadis v Government of Greece [1971] AC 282).

10. For those reasons Fung's appeal was dismissed.

Respondent's appeal

Respondent's second ground i.e. judge's reliance on foreign indictment

11. Turning then to the respondent's appeals, it is of assistance to address the second ground first, since it is implicit in the respondent's case that the error specified in the latter was a significant contributory factor in the error specified in ground 1. The respondent's second ground, which we repeat for ease of reference, is:

(2) That the learned judge erred in law in finding that the Magistrate should have confined his consideration of the evidence and material before him to the particulars contained in the American indictment."

This ground, without objection from Mr McCoy, was argued on the basis that the judge erred in considering the contents of the foreign indictment as a particularization of what had to be established by the respondent at the extradition hearing.

12. The American warrants of arrest gave the "Description of Charges" quite simply as "Conspiracy to Import and Distribute Heroin".

13. In addressing the question of how the magistrate had dealt with the question of whether there was a prima facie case against each defendant, the judge began by stating:

"The list of crimes are translated from the American indictment."

14. That statement does not accord with the statutory scheme for extradition as explained in Government of Denmark v Nielsen (1984) 79 Cr App R 1 and Reg v Governor of Pentonville Prison, ex parte Sinclair (HL (E)) [1991] 2 WLR 1028); rather it would seem that the Governor "translates" the conduct disclosed by the evidence furnished by the requesting party into a list of crimes under Hong Kong law.

15. However that may be, the judge began his judgment by referring to the American warrants of arrest and contrasting the violations of American law specified in them with those specified in the indictment handed down by the Grand Jury. He went on:

"It is important, in view of the submissions, to understand the distinction between what appears to be similar conspiracies as translated into Hong Kong crimes. Count 3 of the American Indictment particularizes by way of 'Overt Acts' that:-

'(a) On or about December 1st 1990 in the Nikko Hotel ... Chan [presumably an erroneous reference to Fung] and Cho met with an undercover agent of the DEA ... and offered to sell approximately twenty-one kilograms of heroin from a large shipment of heroin located in Hong Kong.'"

He then set out the three crimes in the Order to Proceed and went on at p 11 to say that:

"It can be seen that [Fung] is facing in crime 1 the same charge (albeit there is one additional named conspirator) as in crime 3. That should have immediately made the magistrate realize that there could be either interwoven conspiracies or separate conspiracies arising from different facts. When, therefore, the evidence in the case is examined it must be with the background that the American indictment sets out a number of individual acts charged as overt acts in relation to all three crimes."

At p 13 the judge said:

"The USA Government does not appear to charge these conversations as a justifiable conspiracy, although they may be the genesis of such an agreement. This is not on the basis that Ma is a DEA agent (see now R v Yip Chiu Cheung (1991) 181 Cr Appeal) but as the American indictment points out this conspiracy began on December 1st, although the dates charged are wider."

And again at p 17 the judge said:

"This is wholly different from the charged conspiracy of a supply of 30 units from New York."

It is plain from his judgment, including the foregoing passages, that the judge relied upon the several overt acts specified in the American indictment in his criticisms of the magistrate and in arriving at the conclusions that he did.

16. As we have already observed, the Governor in his Order to Proceed specifies the crimes by reference to the fugitives' conduct disclosed by the evidence furnished to him by the requesting state. The Extradition Act 1989 and the Treaty between the Government of the United Kingdom and the Government of the United States only require authenticated copies of the foreign warrants of arrest and of the evidence furnished to the Governor to be produced and not of the foreign indictment. The foreign indictment, obviously, would be framed by reference to foreign law, questions as to which, as will be seen, the magistrate is not in ordinary circumstances, authorised to consider.

17. If what we have said leaves any doubt as to the error of relying upon the foreign indictment to determine the details of the offences or crimes, it must surely be resolved by the following dicta of Lloyd LJ in R v Governor of Pentonville Prison ex parte Osman [1989] 3 All ER 701 at 723j - 724b:

" The practice in extradition cases has been that the English 'offences' are stated in the authority to proceed in very general terms. The magistrate is not, of course, concerned with whether the offence is made out in foreign law. He is concerned solely with whether the evidence would support committal for trial in England, if the conduct complained of had taken place in England: see Government of Denmark v Nielsen [1984] 2 All ER 81, [1984] AC 606. So the magistrate is furnished at the commencement of the hearing with a schedule of charges based on the alleged conduct and formulated in accordance with English law. The schedule of charges is frequently amended in the course of the hearing. Thus in R v US Government, ex p Blair, to which we have already referred, there were three charges at the commencement of the hearing, but the charges were amended on two occasions in the course of the hearing. In their final form there were five. Since the magistrate is not concerned with the foreign charges, but only with the evidence, there is no reason why the English charges should not be amended from time to time to fit the evidence; and this is what happens. It is the evidence which matters, not the form of the charges."

18. We are satisfied, therefore, that the judge fell into error in regarding the American indictment as specifying the charge that he and the magistrate had to address in determining whether there was a prima facie case. In consequence he failed to determine whether there was evidence upon which the magistrate could properly commit the two fugitives in respect of crime 3 as specified in the Governor's Order to Proceed. The respondent's appeal on the second ground accordingly had to be allowed. That being plainly the appropriate course we determined the matter ourselves in the context of the first ground, to which we now turn.

Respondent's first ground, whether on the evidence the magistrate could properly commit

19. The respondent's first ground was developed by Mr Harris under two main heads. First, the function of the judge on habeas corpus applications and second, the function of the magistrate on the Governor's Order to Proceed.

Function of the judge on habeas corpus

20. It was submitted that the judge erred in treating the hearing of the habeas corpus application as if it were the hearing of an appeal. The legal position, we accept, is clear from the following dicta of Lloyd LJ in ex parte Osman at p 722d, where he discussed the role of the Divisional Court on a habeas corpus application:

"The authorities are unanimous that the Divisional Court is not a court of appeal from the magistrate. It cannot retry or rehear the case. In Armah v Government of Ghana [1966] 3 All ER 177 at 184; [1968]AC 192 at 230 Lord Reid said: The court does not hear the case by way of appeal so as to reverse the magistrate's decision on fact or alter a discretion properly exercised.

In Armah's case, Lord Reid adopted a straightforward Wednesbury test (see Associated Provincial Picture Houses Ltd v Wednesbury Corp [1947] 2 All ER 680), that is to say whether there was evidence on which a reasonable magistrate, properly directing himself in law, could commit."

After reviewing counsel's submissions as to the appropriate approach of the Divisional Court, Lloyd LJ said at p 723:

" But since the point has been raised for our decision, we would say that the correct approach is best defined in Wednesbury terms. That at least has the advantage of being well understood, as well as keeping this branch of the law in line with the task of the Divisional Court in other aspects of its jurisdiction."

21. It seems to us, that notwithstanding that the judge referred to the tests in Armah and ex p Osman, he treated the habeas corpus hearing as that of an appeal, having regard to his extensive criticism of the magistrate's approach in the following matters to which Mr Harris invited particular attention, that is to say the magistrate's conduct in hearing the case against both fugitives at the same time, in committing both fugitives without distinguishing between them in ordering their committal, in failing to set out his analysis as to what evidence applied to which of the two fugitives, in failing to consider whether there was a "prima facie" case against each defendant on each crime, and in failing to bear in mind cardinal rules of evidence. On the Wednesbury test applicable, the judge was required only to examine the evidence to determine whether it was such that a reasonable magistrate, properly directing himself in law, could commit.

Function of the magistrate

22. The magistrate's jurisdiction is set out in paragraph 7(1) of Schedule 1 to the Extradition Act 1989 which provides:

"(1) In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this Schedule) would, according to the law of England and Wales, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England or Wales, the metropolitan magistrate shall commit him to prison, but otherwise shall order him to be discharged."

23. Article IX(1) of the Extradition Treaty between the Government of the United Kingdom and the Government of the United States of America (SI 1976 No 2144) sets out the same test for the hearing:

"(1) Extradition shall be granted only if the evidence be found sufficient according to the law of the requested Party either to justify the committal for trial of the person sought if the offence which he is accused had been committed in the territory of the requested Party or to prove that he is the identical person convicted by the courts of the requesting Party."

Plainly therefore the magistrate was concerned only with the question of whether the evidence was sufficient according to the law of Hong Kong to commit the accused for trial if the crime had been committed in Hong Kong. As has already been seen, the crime is that specified in the Governor's Order to Proceed.

Foreign Law

24. A magistrate at committal proceedings is not authorised to receive any evidence of foreign law, unless such evidence is relevant to the question whether the conduct is an offence of a political character, or where necessary, an extradition crime under that law. This is clear from the following dicta:

"Once [the Secretary for State issues the order to proceed], however, the effect of the order to proceed is that proceedings are launched before the police magistrate in this country. As we read the statute, these proceedings are not only proceedings under English law; but they do not involve any consideration of foreign law at all, unless such evidence forms part of the evidence tendered to show that the relevant crime is an offence of a political character ...

... So all the magistrate is concerned with (apart from the question of a political offence) is evidence tendered to show that the conduct complained of is not an offence by English law. In practice, the relevant offence or offences are those specified in the order to proceed. He is not authorised to receive any evidence of foreign law, unless such evidence is relevant to the question whether the offence is one of a political character. Exactly the same construction must, we consider, be placed on the words of the opening paragraph of section 10, which we have already quoted. Under that paragraph, in the case of an accused person, 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, had 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" (ex p Nielsen (1984) 79 Cr App R 1, 11, 12, quoted with approval in ex p Sinclair [1991] 2 WLR 1028, 1042, 1043).

25. The magistrate was not concerned with the consideration of American law save insofar as it concerned the particular reservations contained in Article III and Article V of the treaty, namely, that the offences charged were punishable under the laws of both parties by imprisonment for more than one year and that the offences constituted felonies under the law of the United States of America and were not time barred. (ex p Herbage (No 3) (1987) 84 Cr App R 149, 163 (Divisional Court) QBD)

26. In addition, as has already been seen from section 7(1) of the Extradition Act, there is no requirement under the Act or the Treaty to include the American indictment; the only formal documents which are required to be placed before the court on an extradition hearing are the Order to Proceed and the foreign warrant (R v Governor of Pentonville Prison, ex parte Budlong and another [1980] 1 All ER 701 at pp 705-6).

Role of Counsel

27. It is not without significance in the present context that counsel for the respondent who appeared below and before us, represented not the Attorney General or the Governor, but the Government of the US. They were not in the position of prosecuting counsel in domestic proceedings. They could not amend the statement of crimes in the Order to Proceed; it was for the Governor to do that.

Crime 3 - The evidence

28. We turn now to the question of whether the evidence was sufficient so that a magistrate properly directing himself in law could commit the fugitives for trial.

29. The evidence was that Fung had proceeds of drug trafficking amounting to US$500,000 which he had difficulty in getting out of the US. Thomas Ma, an undercover agent of the US Drug Enforcement Agency ("DEA"), representing himself as a major New York heroin trafficker, was introduced by an informant to Fung as a person who could help in getting the money from New York to Hong Kong. The informant told Fung Ma wanted to purchase the heroin which Fung and his associates had in New York. Fung told Ma that prior to his arrest on 6th November 1990 one Yu Kwok-ching assisted Fung and his associates in distributing their heroin and remitting the proceeds to Hong Kong. He also told Ma that he and his associates had 30 to 70 units of heroin in New York which were part of a 100-unit importation but that it had been distributed. He offered to sell Ma heroin from another shipment. A unit is said to be 700 grammes. At another meeting later that day Fung stated he and his associates had 100 units of heroin which they had just imported into New York and would sell Ma 30 units. Terms were discussed. Later that same day Fung introduced Cho to Ma, and in his presence discussed the transfer of the US$500,000 to Hong Kong.

30. On 1st December 1990 Ma delivered US$450,000 in cash (i.e. $500,000 less 10% commission) to Fung in a hotel. The money was plainly visible when Cho entered the room. Fung and Cho agreed to supply Ma with 30 units of heroin from a large shipment of heroin that was in New York. During discussions on payment Cho left the room twice saying he was going to telephone his source of supply. On 3rd December 1990 Cho and Fung discussed the place of payment for the 30 units. They met the following day again and further discussed the matter. Cho told Ma that a Japanese woman involved had agreed to advance 30 units of a 170-unit heroin shipment to Ma's associates in New York. Cho said delivery would take place as early as 6th December 1990 and that he had learnt that the shipment currently in New York was actually 300 units.

31. A further meeting was held between Fung, Cho and Ma on 5th December 1991 when Cho told Ma that the Japanese woman would be travelling to Hong Kong on 9th December and that payment would most likely be made in Hong Kong. On 9th December a further meeting took place on the matter. And yet another on 12th December 1990 between Fung and Ma, Cho not being present at the latter meeting. Fung apologised for the delay in the 30-unit deal. Fung discussed the second heroin transaction and asked Ma to invest in 15 units of a 30-unit shipment that would be sent to New York from Thailand. Later Fung and Ma met Cho who also apologised for the delay in the 30-unit shipment.

32. On 13th December 1990 Fung and Ma had further discussions. Ma said he would take 5 units of a proposed 30-unit shipment. Fung told him that he should provide the investment money on 14th December so that he could transfer the funds to Bangkok after which the deal would proceed. Fung also raised the topic of another transaction, involving 100 units of heroin that had recently been received in New York. He said he would deliver the heroin in New York prior to payment in Hong Kong and that he preferred to do the deal in two lots of 50 units each. Ma told him that he was capable of buying the whole lot of 100 units and produced a remittance slip showing that US$5 million had been deposited into an account under his control.

33. On 14th December Fung again met Ma and asked for the remittance slip so that he could produce it to a Chinese woman who was involved in the proposed 100-unit sale. He also told Ma that the 30-unit shipment from Bangkok to New York would have to be postponed.

34. On 8th January 1991 Fung proposed yet another transaction involving a 20-unit shipment of heroin. The purchase price was US$1.6 million. Ma and Fung discussed how Fung's associates would contact Ma's associates in New York to deliver the heroin. Fung also told Ma that on 15th January 1991 arrangements would be made in relation to the 30 units which were to be sent to New York from Thailand.

35. On 9th January 1991 Fung met Ma and assured him that the 20-unit transaction would proceed successfully. He said that he and his associates had 30 units of heroin in transit which were due to arrive in New York before the end of January 1991. Fung offered to sell this shipment to Ma who agreed to purchase it at a later date.

36. On 10th January 1991 Fung again met Ma. They discussed the fact that Fung's associates in New York had not contacted Ma's associates in New York. Ma gave Fung the pager number of another undercover DEA operative, Michael Shum.

37. On 12th January 1991 Fung met Ma. They discussed why Fung's associates in New York had not contacted Ma's associates. On 14th January 1991 Fung met Ma and told him that the 20 units of heroin was a firm deal but that he was not dealing directly with the people controlling the heroin. He told Ma that the 30-unit sale which he had previously agreed to sell Ma would arrive in New York on 26th January 1991 and would be available for distribution on 28th January 1991. They also discussed 30 units from Thailand and Fung offered to sell 5 units to Ma. On 15th January 1991 Fung met Ma and told him that his associates in New York would be contacting Ma's associates that day. Fung said the 20-unit sale would proceed successfully. On 18th January 1991 Fung met Ma and they discussed the delays in the 20-unit transaction. Fung told Ma that he was in direct contact with those controlling the 30-unit sale and that there should be no problems with that deal.

38. On 25th January 1991 Fung met Ma and told him that the quantity of heroin was 23 units, not 30 units, and that the price of US$80,000 per unit was US$1.84 million. They agreed that Ma would deliver the US$1.84 million to Fung immediately after the 23 units were delivered to Ma's associates in New York. On 26th January 1991 Fung again met Ma and told him that his associate, Wong Man-who, had arrived in New York and was ready to receive the 23-unit shipment. Fung and Ma discussed how the heroin would be delivered to Ma's associates in New York, and also the delivery of the US$1.84 million in Hong Kong.

39. On 28th January Ma directed his informant who had been present at most the above meetings to telephone Fung. The informant left Ma and returned later, giving Ma a telephone number in New York and a hotel room number. Ma telephoned Michael Shum in New York and gave him the telephone and hotel room numbers. Michael Shum called the telephone number and spoke to a man in Cantonese who told him that he had the "stuff" and that Shum should go to the Grand Hyatt Hotel to pick it up. Shum went to the Grand Hyatt Hotel and met up with Wong Man-wo and one Chan Ying-kin. The two men went away and returned 45 minutes later, each carrying a black knapsack which they gave to Shum. They were later arrested and the knapsacks were found to contain 16.10 kilogrammes of heroin hydrochloride of a purity of 83%.

Crime 3 - nature and elements

40. It is necessary at this point to recall the precise nature of crime 3 specified in the Order to Proceed: i.e. "between approximately October 1990 and January 1991, Fung Chuen-kan and Cho Ming-lok did conspire with each other and with other persons to traffic in a dangerous drug, namely heroin, contrary to common law and sections 4 and 39 of the Dangerous Drugs Ordinance, Cap 134".

"Trafficking" is defined in s 2 of the Dangerous Drugs Ordinance in the following way:

"Trafficking, in relation to a dangerous drug, includes importing into Hong Kong, exporting from Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drugs."

and "traffic in a dangerous drug" is required to be construed accordingly.

41. Conspiracy, it is not in question, is an unlawful agreement between two or more persons to do an unlawful act, or to do a lawful act by unlawful means.

Judge's analysis and conclusions on the evidence

42. Returning then to the evidence, the judge having reviewed it referred to the series of different quantities of heroin offered for sale and delivery at different meetings from different shipments of different quantity. He observed that "the USA Government does not appear to charge these conversations as a justifiable conspiracy, although they may be the genesis of such an agreement."

43. He said in relation to Cho at p 15 of the judgment:

"he is charged with a specific conspiracy and the only evidence of that conspiracy is loose drug talk on December 1st. There was no price set out. There were no dates set out. There were no details of delivery. It is all in very vague terms. .... There must be evidence which shows that the parties have moved beyond the stage of negotiation to one of decision (See e.g. R v Walker (1962) Cr LR 458)".

And at pp 16 and 17:

"There appears to me to be at least three potential conspiracies running between all of these parties, and a large amount of the evidence is dealing with the Japanese woman supplying from Bangkok. There was also a Chinese lady who was also going to supply, and a number of deals were being offered by [Fung] during these important days in Hong Kong when all this drug talk was taking place. ... The meetings after December 3rd appear to be dealing with the supply of 30 units through the Japanese woman, but if the meetings on December 4th and December 5th are concerned with the conspiracy to supply from New York then it is clear, in my judgment, that there was no concluded agreement (see in particular para. 10(c)). There is discussion and negotiation but I do not find a concluded conspiracy as charged."

The judge went on to observe that Cho disappeared from the scene from December 12th and proceeded to address the 30-unit shipment discussed on that day as a shipment to New York, pointing out that it was wholly different from the charged conspiracy of a supply of 30 units from New York. He added that "although acts and declarations of one conspirator are evidence against the others, they must be in furtherance of the conspiracy. Here, that means a concluded agreement to supply 30 units out of 100 held in New York - not in furtherance of other potential conspiracies". He concluded in relation to Cho "I can find no legitimate evidence against Cho from December 4th and there are no overt acts, as Hong Kong law understands this phrase, by Cho or by [Fung]. There is no supply, no attempt to supply, nor even arrangements to supply". He added later "As far as [Fung] is concerned, the evidence against him on crime 3 is as tenuous".

44. It was plain that the judge addressed the evidence with a view to ascertaining whether it proved, not the general conspiracy outlined as crime 3 in the Order to Proceed, but the several overt acts he extracted from the American indictment.

45. Proceeding therefore ourselves to address the question of whether there was evidence upon which a reasonable magistrate, properly directing himself in law, could commit Fung and Cho on crime 3, we had no hesitation in concluding that there was. We would say only that the evidence of numerous meetings and discussions about different deals, quantities and shipments, about price and delivery, apologies for late delivery, telephone calls to sources of supply and others involved, and ultimately the delivery of eighteen kilogram of heroin mixture in January 1991, is ample evidence upon which Fung and Cho could be committed for trial on crime 3. Fung's statement to Ma on 30th November 1990 that he and others had 100 units in New York that they had just imported into the United States and that he and his associates would sell Ma 30 units is an admission of his participation in a conspiracy to traffic in heroin imported into the United States. Cho's agreement the following day to sell 30 units from a 100 unit shipment that was in New York is likewise evidence of his participation in that conspiracy. Moreover the evidence is that twice during the discussion he left to telephone his source of supply.

46. On 4th December 1990 Fung, Cho and Ma had further discussions on the purchase of the 30 units of heroin which the associates of the former two held in New York, the only matter then outstanding being the place of payment. On 9th December Cho proposed delivery of one or 2 units prior to the full delivery to Ma's associates, which proposal Ma rejected. On 12th December both Fung and Cho apologised for the delay on the 30 unit shipment. On 13th December Fung told Ma that the Japanese woman was making plans to finalise the 30 unit delivery in New York. That is a declaration prima facie as much in furtherance of a general conspiracy to deal in drugs in the United States as a specific conspiracy to supply the 30 units and equally admissible against Cho.

47. While it is understandable that when examined as evidence of a concluded agreement to supply 30 units from a particular shipment, or as evidence of other specific conspiracies or overt acts, the evidence may have seemed to the judge to be "loose drug talk", the position is very different when the same evidence is examined in relation to a general conspiracy to supply or traffick in heroin in the United States between October 1990 and January 1991, a period that straddles all the overt acts. The overt acts can then be seen clearly to be overt acts in furtherance of the general conspiracy. Likewise the evidence referred to, is in our view ample evidence, upon which a court could commit for trial, of a concluded agreement for the supply and other dealing in heroin within the dictum in Walker, to which the judge referred.

48. For the foregoing reasons, therefore, we allowed the respondent's appeals, set aside the judge's orders in respect of crime 3 and in lieu made orders for the committal of Fung and Cho upon that crime. However, Cho, as we have indicated, despite being served with the respondent's notice of appeal and having been represented by solicitors who only withdrew very recently, did not appear at the hearing of the appeal, perhaps not surprisingly. The order for his committal is therefore likely to be a brutum fulmen of the sort that provoked Lord Diplock's strong remarks in Government of the USA v McCaffery [1984] 1 WLR 867C-G. But unlike that case, no criticism can be made of the judge below for releasing Cho. As he explained, he had no alternative, inviting the attention of the legislature to the absence of statutory provision enacted in England several years ago for the retention in custody of a person released by habeas corpus arising out of extradition proceedings pending appeal. Other Divisions of this Court have in the past likewise called the attention of the legislature to such absence; we do so again.

49. It remains only for us to record our gratitude to Mr Harris and Mr McMeans for the considerable assistance we derived from their particularly helpful submissions, written and oral, which were amply supported by reference to authority and the record; indeed our reasons are largely founded upon those submissions. Mr McCoy very fairly indicated that he did not feel able to resist the cross-appeals of the Government of the United States.

Representation:

Mr Gerard McCoy (M/s Walter Woo & Co.) for the Appellant in Civil Appeal 147 of 1992.

Mr G. Harris and Mr Roger McMeans (the Crown) for the Respondent in both appeals.