Law Kin Man v. Government of the United States of America and Another

Case No.CACV 161/1990

Court

Court of Appeal

Date14 May 1991

Judge—

Case Document

100%

CACV000161/1990

IN THE COURT OF APPEAL

1990, No. 161
(Civil)

BETWEEN

	LAW KIN MAN	Appellant / Applicant

	AND

	GOVERNMENT OF THE UNITED STATES OF AMERICA	1st Respondent
	DIRECTOR OF LAI CHI KOK RECEPTION CENTRE	2nd Respondent
	-----------

Coram: Hon, Yang, C. J., Fuad, V.-P. & Penlington, J. A.

Date of hearing: 14 May 1991

Date of judgment: 14 May 1991

Date Reasons handed down: 22 May 1991

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JUDGMENT

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Fuad, V.-P. (giving the judgment of the Court):

1. This is an appeal from the order of Jones, J. dated 25th September 1990 whereby he dismissed an application by Law Kin Man ("the applicant") for a writ of habeas corpus. At the conclusion of the hearing, without calling upon Mr. Hartmann for the respondents, we dismissed the appeal and said we would hand down later the reasons for our decision, which we now do.

2. The extradition of the applicant is sought by the Government of the United States of America. On 4th April 1990 a magistrate (Mr. G. Andre-Wiltens) committed the applicant to prison to await the warrant of the Governor of Hong Kong for his surrender to the USA. We are not concerned with the other man and the two women who were the subject of committal warrants made the same time.

3. The magistrate exercised jurisdiction under the Extradition Act 1989 of the United Kingdom ("the 1989 Act") most of the provisions of which came into force on 27th September 1989. Before that date, the law which applied was the Extradition Act 1870 of the UK as amended, and as modified in its application to Hong Kong. By an Order in Council made under the enabling provisions of the Act, the Extradition Acts 1870 to 1935, as amended or extended, were directed to apply, inter alia, to Hong Kong in accordance with the Treaty dated 8th June 1972 entered into between the Governments of the United Kingdom and of the USA ("the Treaty") and ratified oh 21st October 1976. This is the United States of America (Extradition) Order 1976, S. I. 1976 No. 2144 which came into operation on 21st January 1977. The text of the Treaty is set out in Schedule 1 to the Order. The Extradition (Hong Kong) Ordinance, Cap. 236, provides by ss. 2 and 3 that the powers etc. given to the Secretary of State and the police magistrate in the UK by the Extradition Acts may be exercised, respectively, by the Governor of Hong Kong and by any magistrate.

4. The Extradition Act 1870 was repealed by the 1989 Act. The provisions of the latter Act which apply to this case are those set out in Schedule 1 to the Act because the 1976 Order in Council in relation to the USA is still in force, no applicable Order in Council having been made under the 1989 Act (see ss. 1(3) and 4 of the 1989 Act).Section 1(3) explains that the provisions in Schedule 1 derive from the 1870 Act and certain associated enactments. Therefore, unless and until new extradition arrangements are made by Order in Council in relation to the USA, very substantially the previous law, but in the form set out in Schedule 1, continues to apply.

5. The Governor's order to proceed, directed to the magistrate, was dated 22nd March 1990. He issued a supplemental order on 28th March. The two orders specified the crimes (all of which related to dangerous drugs) in respect of which the magistrate was required to issue his warrant for the apprehension of the applicant and the others involved.

6. In the first order, Crime 1 charged that the applicant, between October 1986 and February 1988, had conspired with 6 named persons and with others to traffic in a dangerous drug contrary to the Dangerous Drugs Ordinance, Cap. 134. Also in the first order, there were 5 other Crimes specified against him. In respect of the Crime in Column I in the table below, on the dates mentioned in Column II, it was averred that the applicant had in his possession for the purposes of unlawful trafficking therein, the quantity of heroin set out in Column III, contrary to ss. 7(1) and (2) of the Dangerous Drugs Ordinance.

7. In the second order, 5 Crimes were specified, identified in parenthesis in the table below. In respect of the Crime in Column I, on the dates mentioned in Column II, it was alleged that the applicant had unlawfully trafficked in the quantity of heroin shown in Column III, contrary to ss. 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

TABLE
	Column I	Column II	Column III
	Crime 2 [Crime 1]	In or about June 1987	17 Kilos.
	Crime 3 [Crime 2]	In or about July 1987	105 Kilos.
	Crime 4 [Crime 3]	Between September and October 1987	69 Kilos.
	Crime 5 [Crime 4]	Between October and November 1987	70 Kilos.
	Crime 6 [Crime 5]	In December 1987	26 Kilos.

* In respect of these Crimes, counsel for the Crown conceded before Jones, J. that there was insufficient evidence to justify committal.

8. The relevant parts of ss. 4 and 7 of the Dangerous Drugs Ordinance are in these terms:

	"4. (1) Save under and in accordance with this Ordinance or a licence granted by the Director hereunder, no person shall, on his own behalf or on behalf of any other person, whether or not such other person is in Hong Kong -
	(a)	traffic in a dangerous drug;
	(b)	offer to traffic in a dangerous drug or in a substance he believes to be a dangerous drug; or
	(c)	do or offer to do an act preparatory to or for the purpose of trafficking in a dangerous drug or in a substance he believes to be a dangerous drug.
	(2) subsection (1) shall apply whether or not the dangerous drug is in Hong Kong or is to be imported into Hong Kong or is ascertained, appropriated or in existence.
	(3) Any person who contravenes any of the provisions of subsection (1) shall be guilty of an offence ..."
	"7. (1) No person shall have a dangerous drug in his possession for the purpose of unlawful trafficking therein, whether by him or some other person.
	(2) Any person who contravenes subsection (1) shall be guilty of an offence ..."

9. These definitions, in s.2 of the Ordinance are relevant:

	"'trafficking', in relation to a dangerous drug, includes importing into Hong Kong, exporting form Hong Kong, procuring, supplying or otherwise dealing in or with the dangerous drug, and 'traffic in a dangerous drug' shall be construed accordingly;"
	"'export' means to take or cause to be taken out Hong Kong or any other country, as the case may be, by land, air or water;"
	"'import' means to bring or cause to be brought into Hong Kong or any other country, as the case may be, by land, air or water;"'

10. There was no dispute before Jones, J., or on this appeal, that each offence for which the applicant is wanted in the USA is an "extradition crime" for the purposes of paragraph 7(1) of Schedule 1 to the 1989 Act (set out below) by reference to:

	(a)	Paragraph 20 of Schedule 1 to the 1989 Act;
	(b)	Paragraph 3 of the 1976 Order in Council;
	(c)	Section 26 and the First Schedule to the Extradition Act 1870, as amended by s.1 of the Extradition Act 1932 and s.33 of the Misuse of Drugs Act 1971;
	(d)	Article III and item 12 of Schedule 1 to the Treaty.

Where expert evidence was necessary to satisfy any of the provisions just mentioned, it is to be found in the affidavit sworn on 4th January 1990 by Ms. Catherine E. Palmer, an Assistant US Attorney for the Eastern District of New York. Her affidavit also fully explains and defines the crimes alleged against the applicant which founded the requisition.

11. The complaints about the magistrate's decision to commit the applicant to prison to await surrender have nothing to do with procedural matters. They all relate to the sufficiency of the evidence upon which the magistrate acted.

12. The law to be applied by the magistrate when deciding whether or not to issue his warrant for committal is to be found, in familiar terms, in paragraph 7(1) of Schedule 1 to the 1989 Act:

"7 (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 [Hong Kong], justify the committal for trial of the prisoner if the crime of which he is accused had been committed in [Hong Kong], the magistrate shall commit him to prison, but otherwise shall order him to be discharged."

13. That provision is echoed in Article VII(3) of the Treaty, read with Article IX(1):

"VII. (3) If the request relates to an accused person, it must also be accompanied by a warrant of arrest issued by a judge, magistrate or other competent authority in the territory of the requesting Party and by such evidence as, according to the law of the requested Party, would justify his committal for trial if the offence had been committed in the territory of the requested Party, including evidence that the person requested is the person to whom the warrant of arrest refers."

"IX.(1) Extradition shall be granted only if the evidence be found sufficient according to the law of the requested Party ... to justify the committal for trial of the person sought if the offence of which he is accused had been committed in the territory of the requested Party ..."

14. We mention here that by s.85(2) of the Magistrates Ordinance, Cap. 227, a magistrate is obliged to commit the accused for trial if he is of the opinion that the evidence before him "is sufficient to put the accused upon his trial…"

15. The first ground in the Notice of Appeal is that the judge erred in concluding that the magistrate had adopted the correct test of whether there was sufficient evidence to justify the committal for extradition of the applicant.

16. This is how the magistrate described the test he had to apply in reaching his decision:"

"Under Article IX and Section 9 of the Act I must consider whether there is a prima facie case established against the fugitives in respect of each of the crimes set out in the Order to proceed. In doing this I have had to consider only whether there is any admissible evidence which a jury, properly directed, might accept as indicative of guilt. The quality of that evidence, and the weight to be attached to it are not within my province." (pp. 2-3 of his judgment)

17. In relation to the conspiracy crime this is what the magistrate said:

"Mr Smith has submitted there is simply no evidence against his client in respect of the conspiracy. I have carefully studied the evidence and the submissions by both Mr. Smith and Mr. Pallaras. If. the jury looks at the evidence, as Mr Pallaras has put the applicant's case and if they decide to place weight on the evidence of the various accomplices, they may well enter a conviction. In my judgment there is a prima facie case established." (p.4 of his judgment)

18. The proper test has so often been stated that we content ourselves with citing a short passage from the speech of Lord Reid in Schtracks v. Government of Israel [1964] AC 556, at p.580, where he said:

"It is hot in dispute that the proper test for the magistrate to apply was whether, if this evidence stood alone at the trial, a reasonable jury properly directed could accept it and find a verdict of guilty,"

19. Mr. Llewellyn, for the applicant, submitted that the magistrate's approach had been "lax" and that he had misdirected himself so that his error had invalidated his decision. Reading his judgment as a whole, we are not persuaded that this experienced magistrate applied the wrong test. In our view he demonstrated by what he said that he fully appreciated his proper function. It would not be right to insist upon any particular form of words for describing the test to be applied at the committal stage. There is nothing in the point raised.

20. The next ground of appeal was that the judge erred in finding that statements in the affidavits of Yuen Ho Yin and Cheung Wai Kan to the effect that they had been told by Wong Kwong Kit that he had delivered "the merchandise" to Kin Wan Law (sic) were admissible against the applicant as being statements made in furtherance of a common design and that there was, therefore, sufficient evidence to justify the applicant's committal for extradition in respect of Crime No.4 in the Governor's first order [and Crime No. 3 in the second]. It will be recalled that those Crimes charged the applicant with possessing 69 kilos of heroin for the purpose of unlawful trafficking (Crime 4) and with trafficking in that quantity of heroin (Crime 3).

21. Yuen Ho Yin implicated the applicant in his 49 page affidavit sworn in New York on 3rd January 1990. When he made the affidavit he was in custody in the MA for a number of drug-related offences and had pleaded guilty to a heroin trafficking offence which carries a mandatory minimum of 10 years' imprisonment, the maximum being life imprisonment. He is a Hong Kong citizen and frankly admitted that he had been "involved in heroin trafficking for several years". He said he had known the applicant since about December 1986.

22. In paragraph 105 of his affidavit he stated that the applicant contacted him in about late September - early October 1987 and said that he wanted 99 units. (Yuen had earlier stated that in this trade a "unit" meant a compressed block of heroin weighing approximately 700 grams). They had agreed to meet at a particular restaurant in New York. Together with Cheung Wai Kam, he had placed 99 units of heroin into several travel bags and a suitcase. Another associate, Wong Kwong Kit, had then taken the travel bags and the suitcase containing the heroin and left ostensibly to meet the applicant at the restaurant. Wong Kwong Kit had later returned without the heroin and said that he had delivered the "merchandise" to the applicant. He had added that the applicant would pay him directly for the "merchandise". He had understood (and this again was clear, he said, from the context of their conversation) that Wong Kwong Kit had been using the term "merchandise" to refer to heroin.

23. This evidence was supported in part by what appears in paragraph 39 of the affidavit, also sworn on 3rd January 1990, by Cheung Wai Kam, an alleged accomplice. He is also a Hong Kong citizen. He said that in late September/early October 1987 Yuen had told him of the applicant's request for 99 units of heroin. They had together packed the heroin in several travel bags and a suitcase; given them to Wong; Wong had returned without them; and had said that the applicant had promised to pay him.

24. Cheung swore that he had been involved in trafficking in heroin for several years. He acknowledged that he had pleaded guilty to a drugs offence in New York, punishable by a mandatory minimum sentence of 5 years' imprisonment, and a maximum 40 years' imprisonment.

25. Both Yeun and Cheung swore that throughout the conversations and meetings they recounted and mentioned in their affidavits, it was clear to them that whenever words such as "units", "stuff", "merchandise" and "shipment" were used by all those involved they were references to dealings in heroin.

26. Mr. Llewellyn accepted the proposition, as stated in Archbold, 43rd Edition, p.1290, that as a general principle, the acts and declarations of a conspirator in furtherance of the common design are admissible in evidence against any other conspirator, and that this principle applies when the charge is one of a crime committed in pursuance of a conspiracy, whether the indictment contains a Count for conspiracy or not. However, he pointed out that no conspiracy between Wong and the applicant had been charged and the hearsay evidence that the applicant had received a delivery of drugs from Wong could not further a conspiracy between the applicant and the 6 other persons mentioned in Crime 1, who were not connected with such an alleged transaction.

27. It seems to us that in the light of the evidence (which was not hearsay) that indicated that the applicant was a party to a common design to traffic, by asking Yuen to deliver heroin to him at a particular restaurant, and the evidence that heroin was put together and packed for this very purpose, and then handed to a confederate, Wong, the statement by Wong that he had given the heroin to the applicant could be said to be a declaration made in furtherance of the conspiracy. The definition of the word "trafficking" in s.2 of the Ordinance (set out above) must be borne in mind, and the fact that payment would be made, and who would receive the money, was relevant and admissible as a declaration made in furtherance of the common design.The co-conspirators would naturally be very concerned about, and interested in, this aspect of the matter.

28. The evidence against the applicant about these Crimes can fairly be said to be weaker than the evidence supporting the other alleged Crimes, but we are satisfied that a prima facie case in respect of them had been made out.

29. Complaint is also made that the judge was wrong in concluding that the magistrate had correctly held that there was admissible evidence that what Yuen and Cheung called "units", "merchandise" and "stuff" and which they purported to recognise as heroin was in fact heroin.

30. It seems to us that the prima facie evidence from which a fury would be asked to infer, in the absence of any evidence to the contrary, that the substance Yuen and Cheung had dealt with was indeed heroin, would be:

	(i)	the fact that both Cheung and Yuen were convicted heroin traffickers who had confessed to being in the business for several years, and they both knew exactly what was meant when the words "stuff", "pieces", "merchandise" etc., were used in the trade - heroin;
	(ii)	that they had, between them, received large sums of money for what they had sold, (see e.g. para. 33 of Yuen's affidavit where he speaks of receiving "several million dollars over the course of 3 or 4 instalments);
	(iii)	the evidence in the affidavits which showed that in June 1987 Yuen had handed over 25 units of what he said was heroin to the applicant in his parked car and that the applicant had driven off with it, with no evidence of any complaint made by the applicant;
	(iv)	the evidence to the effect that in July 1987 Yuen and a confederate handed over 150 units of what the former said was heroin to the applicant, again while he was waiting in his parked car. There was no evidence that the applicant had ever refused to pay for any of the substances given to him.

31. In R. v. Chatwood and Others [1980] 1 WLR 874, Forbes, J. giving the judgment of the Court of Appeal approved the law as stated by Lord Widgery, C. J. in Bird v. Adams [1972] Crim LR 174. We will cite only part of the passage cited with approval by Forbes, J.:

"... If a man admits possession of a substance which he says is a dangerous drug, if he admits it in circumstances like the present where he also admits that he has been peddling the drug, it is of course possible that the item in question was not a specific drug at all but the admission in those circumstances is not an admission of some fact about which the admitter knows nothing. This is the kind of case in which the appellant had certainly sufficient knowledge of the circumstances of his conduct to make his admission at least prima facie evidence of its truth and that was all that was required at the stage of the proceedings at which the submission to the justices was made."

32. Mr. Llewellyn contended that Yuen and Cheung had not been shown to have proper qualifications to express a valid opinion on what were the substances allegedly handled - nor was it apparent upon what primary facts they had formed their opinion that they were handling heroin and nothing else.

33. About the Bird v. Adams and Chatwood cases, he submitted that they were not applicable to the present circumstances since in each of those cases, the admission relied upon had come from the accused person, and was used against him. But it is not simply as an admission of guilt that such evidence can be considered. It may be taken as prima facie evidence of the nature of the substance.

34. There can be no doubt that if Yuen and Cheung are to be believed, they had plenty of experience about the nature of heroin. At any future trial, of course, they will (if the point is raised) be cross -examined as to the basis upon which they felt able to assert that what was involved in the case was in fact heroin, and it will be a matter for the jury to decide what weight, if any, they should give to such assertions in the light of all the evidence. It would not be necessary to prove what proportion of heroin was contained in the substances supplied and traded.

35. In our view, as the evidence stands, at present unchallenged, there was sufficient prima facie evidence of the nature of the drugs mentioned in the Crimes in the Governor's orders.

36. Mr. Llewellyn has also submitted that the judge erred in finding that the photos alleged to be likenesses of the applicant and purporting to form part of the affidavits of Yuen and Cheung were properly authenticated. The judge was therefore wrong, he said, to hold that there was admissible evidence that the applicant was the person named in the USA Warrant and Request for Extradition. This is what the magistrate said about the photographs (in para. 6 of his judgment):

"I have noted the photographs referred to and annexed to those various affidavits and I am satisfied that the persons named in the affidavits, in the Indictment and in the Warrants are the fugitives in Court whose extradition is sought. The differences in the names I do not find cause me any doubt."

37. The following provisions of Schedule l to the 1989 Act and of the Treaty appear to be relevant. In paragraph 12 of Schedule l we finds:

"12. Depositions and statements on oath taken in a foreign state, and copies of such original depositions or statements and foreign certificates of or judicial documents stating the fact of conviction, may, if duly authenticated, be received in evidence in proceedings under this Schedule."

38. Article VII(2)(a) of the Treaty requires the request to be accompanied by "a description of the person sought ... and any other information which would help establish his identity". Article VII(5), in so far as it is relevant is in these terms:

	(5) The warrant of arrest ... and any deposition or statement or other evidence given on oath or affirmed, or any certified copy thereof shall be received in evidence in any proceedings for extradition:
	(a)	if it is authenticated in the case of a warrant by being signed, or in the case of any other original document by being certified, by a judge, magistrate or other competent authority of the requesting Party, or in the case of a copy by being so certified to be a true copy of the original; and
	(b)	... where the requesting Party is the United States of America, by being sealed with the official seal of the Department of State for the Secretary of State, or
	(C)	..."
	In his affidavit, in paragraph 7, Yuen swore:
	"The individual shown in the photograph of Yuen Exhibit No. 1 is the person I know as KIN MAN LAW. I have known KIN MAN LAW since approximately December 1986, and I have had several dealings with him since that time."

The photograph of a man is the first exhibit annexed to the affidavit and is marked "YUEN EXHIBIT 1". The exhibit follows immediately after the signature of the affiant and the authenticating certificate of the US magistrate.

39. Cheung, in paragraph 6 of his affidavit, uses the same formula about the photograph of the applicant, and "CHEUNG EXHIBIT 1" is obviously of the same man. It is to be observed that the applicant did not choose to give or call evidence to the effect that he was not the Kin man Law depicted in the two photographs.

40. Apart from the certifications at the end of both affidavits (immediately before the exhibited photographs) by the US magistrate, the two affidavits are among the documents, all tied together and sealed, which have been certified by Mr. Rex L. Young, Deputy Director of the Office of International Affairs, Criminal Division, US Department of Justice by his certificate dated 5th January 1990. That certificate states that among the documents his certificate covers are:

	(a)	"Exhibit C (an original affidavit of Yuen Ho Yin with photographs of Kin Man [and 6 other named persons] attached thereto)"; and
	(b)	"Exhibit D (an original affidavit of Cheung Wai Kam with photographs of Kin Man [and the same 6 named persons] attached thereto)".

41. If any authority were needed for the proposition that the convenience of photographs can be used to prove identification in extradition cases, it can be found, for example, in the decision of the Divisional Court in Paul Bradshar dated 28th February 1984 (unreported, transcript No. CO/301/83) where, Goff, L. J. (as he then was) said at p.9 of the transcript:

"So evidence in committal proceedings under the Extradition Act normally takes the form of sworn depositions. In such committal proceedings, it is, in my judgment, entirely appropriate for evidence of identity to take the form it took in the present case, viz. a photograph exhibited to a sworn deposition and a statement in the sworn deposition that the photograph is a true likeness of the person whose extradition is being sought."

42. In our judgment there can be no real doubt that there was ample prima facie evidence, unchallenged as it was, to justify the magistrate's finding we have set out above. The applicant's identity was very clearly established by documents duly authenticated in accordance with the provisions of Schedule 1 to the 1989 Act, read with the requirements of the Treaty.

43. There is nothing whatever in the point that the papers refer to the applicant's name in an unorthodox order: Kin Man Law.

44. The final ground of appeal is that the judge erred in law in finding that the magistrate had sufficient admissible evidence before him to justify the committal for extradition of the applicant in respect of the conspiracy offence which is Crime l in the Governor's first order to proceed.

45. We think it is convenient here to set out precisely how that Crime is worded in the order:

"Crime 1:

Between approximately October 1986 and February 1988, LAW Kin-man, WONG Kin-cheung, WONG Sai-chun (also known as Amy CHAN), LEUNG Pau-wing, WONG Kin-lam, CHEUNG Let-sing, and TANG Po-lin (also known as Pauline TANG), did conspire with each other and with other persons to traffic in a dangerous drug, contrary to Common Law and sections 4 and 39 of the Dangerous Drugs Ordinance, Cap. 134."

46. The evidence, if true, indicated a conspiracy involving the applicant, the 6 named men and women, Wong Kwong Kit and the two accomplices who swore affidavits - Yuen and Cheung. Their evidence was to the effect that they had worked for Wong Kwong Kit and, in effect, acted as his representatives in New York in connection with the various heroin shipments he arranged to have smuggled into New York. As his representatives in these various heroin transactions, Yuen and Cneung received the heroin in New York, delivered the heroin to the buyers, and collected the proceeds. Thus, they met and dealt with each of the persons named in the conspiracy charge while concerned with various heroin trafficking activities.

47. I take the facts and circumstances showing the alleged involvement of the applicant in the conspiracy charged in Crime 1 from the very fair and accurate summary of the affidavit evidence which appears in Ms. Palmer's own affidavit (some of this evidence has been previously mentioned) :

	(a)	Between approximately 13th May and 20th May 1987, acting on the instructions of Wong Kwong Kit, a man delivered to Yuen, in several instalments a total of $1,800,000 USD in cash. As Yuen received this cash, Pau Wing Leung and Amy Chan each took large amounts of the cash and changed it into money orders and cashiers' cheques in denominations of under $10,000 USD. As Yuen was collecting the total of $1,800,000 USD, Wong Kwong Kit contacted him and told him to deliver $400,000 USD of that money to the applicant. Wong Kwong Kit told Yuen where he was to meet the applicant and informed Yuen that the applicant had a method of getting money to Hong Kong, quickly. Thereafter, Yuen met the applicant as Wong Kwong Kit had directed and gave him $400, 000 USD in cash.
	(b)	On about 25th June 1987, two big boxes, each containing 50 units of heroin were put into a car belonging to Kai Cheung Chan, Amy Chan's husband, in the presence, too, of Wong Kwong Kit and Yuen, and he drove off with the heroin. After this, Wong Kong Kit said that he had spoken to the applicant who had indicated that he wanted the remaining 25 units. Thereafter, Wong Kwong Kit and Yuen drove to the Lei Yu Mun restaurant in Queens, New York. They went to the parking lot behind the restaurant and Yuen saw the applicant waiting in a car there. Yuen took the last box, a small one containing 25 units of heroin, and gave it to the applicant in his car. The applicant then drove off with the 25 units of heroin. Wong Kwong Kit told Yuen that the applicant would pay him (Wong) directly for this heroin.
	(C)	Between approximately 8th to 12th July 1987, a man who had delivered 150 units, part of the planned shipment, to Wong Kwong Kit and Yuen, contacted them and said he was ready to deliver the next instalment. Hong Kwong Kit said they would take 200 units this time. Wong Kwong Kit told Yuen that the applicant had ordered 150 units. Yuen then contacted Amy Chan and she said that she and the applicant would take 20 units. Wong Kwony Kit and Yuen took six cardboard boxes containing a total of 150 units of heroin by van to an apartment on 58th Avenue and stored them there. Later, from that stock, Wong Kwong Kit and Yuen took two large boxes, each containing 50 units, and two smaller boxes, each containing 25 units, and put them in a car. They then drove to the Lei Yu Mun restaurant. When they reached the restaurant, the applicant was in a car in the parking lot. Wong Kwong Kit and Yuen delivered the four boxes, containing a total of 150 units of heroin to the applicant. Subsequently, Wong Kwong Kit told Yuen not to worry about collecting money from the applicant for the 150 units because the applicant would pay Wong Kwong Kit directly.
	(d)	In approximately late September - early October 1987, the applicant contacted Yuen and said that he wanted 99 units. They agreed to meet at the Lei Yu Mun restaurant. Cheung Wai Kam and Yuen placed 99 units of heroin into several travel bags and a suitcase. Wong Kwong Kit then took the bags and the suitcase containing the heroin and went off. He later returned without the heroin and said that he had delivered the "merchandise" to the applicant.
	(e)	Throughout the months of September and December 1987, Cheung Wai Kam and Yuen distributed the balance of the stock of heroin to several customers in New York. In December 1987, they had 38 units of heroin left. On about 14th December 1987 Yuen told Cheung Wai Kam to deliver the remaining 38 units to the applicant. Later that day, the applicant went to the apartment on 58th Avenue, met Cheung Wai Kam there, counted out the 38 units of heroin, and took delivery of the heroin.
	(f)	In approximately mid-October 1987 Wong Kwong Kit and Yuen took delivery of l00 units of heroin at a New York hotel and stored them in the 58th Avenue apartment. There, Wong Kwong Kit told Yuen that the applicant had requested the "merchandise". Later, Wong Kwong Kit told Yuen he was going to meet the applicant at the Dunkin Donuts on Kissena Boulevard, Queens, New York. Wong Kwon Kit left with the heroin and returned without it, saying that he had delivered the "merchandise" to the applicant. Wong Kwong Kit then said that the applicant would make arrangements to remit the proceeds directly to him in Hong Kong. Wong Kwong Kit also said that he would arrange to have Lai King Man's share delivered to him in Hong Kong.
	(g)	In December 1987, Wong Kwong Kit told Yuen that he had discussed an expected large shipment of heroin (of more than 100 units) with the applicant. This was due to arrive in New York in early 1988. Wong said that the applicant had agreed to take 100 units a month from that shipment. He also told Yuen that the applicant would help to remit the proceeds to Hong Kong for he had a method whereby he could do this quickly.

48. As Mr. Llewellyn's arguments developed, it was clear that he was not so much contending that there was insufficient evidence of a drugs operation conspiracy, but that there was no evidence whim connected the applicant's activities with any of the 6 persons named in the particulars of Crime 1. He relied on the following which appears in paragraph 28-25, pp. 2673-4 of Archbold, 43rd Edition:

"Where the evidence discloses that the accused conspired with other persons who are not before the court, this can properly be averred in the indictment. The form of the averment will vary according to the circumstances: For example, if the other persons can be readily identified by the evidence their names should be inserted; if they cannot be so identified, then it is sufficient to describe them as 'persons unknown'. sometimes, although the Crown contends that the evidence discloses the conspiracy to have been with persons not before the court, the evidence may be unclear as to which of certain identifiable persons was (or were) involved. In such circumstances, there can be no objection either to 'other persons unknown', or to 'other persons'. However, where during the course of the trial the uncertainty is resolved by evidence which is capable of founding the assertion that an identifiable person not before the court was a conspirator with the accused in the conspiracy charged, then the indictment should be amended accordingly."

49. It seems to us that the two affiants and Wong Kwong Kit would come within the expression "other persons" as used in the particulars of Crime 1. What the magistrate had to consider was the sufficiency of the evidence and not the way the particulars of a charge happened to be formulated. The particulars of Crime 1 could have been amended to include the three men we have mentioned by their names. The fact that no amendment was made cannot, in our view, affect the validity of the magistrate's decision. There was, we are satisfied, ample prima facie evidence, on the uncontroverted testimony, of the conspiracy averred and of the part the applicant played in it.

50. We reached the conclusion that the magistrate's handling of the extradition proceedings could not be faulted and that the judge was right to refuse the remedy sought from him.

51. It was for these reasons that we dismissed the appeal. We make an order nisi that the applicant shall pay the costs of the appeal.

Representation:

Mr. Stephen Llewellyn (Tai, Ho & Chan) for theApplicant/Appellant

Mr. M. J. Hartmann and Miss Maria Ip (Crown Solicitor) for the Respondents