RE HABEAS CORPUS AD SUBJICIENDUM

1990, M.P. No. 1113

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. On the 4th April 1990, Mr G. Andre-Wiltens, a magistrate sitting at the Central Magistracy, issued a warrant of committal for Law Kin-man (the applicant) to be detained pending his extradition to the United States of America pursuant to the provisions of the Extradition Act 1989. The applicant applies for a writ of habeas corpus ad Subjiciendum on the ground that his committal to prison was unlawful.

2. The applicant was arrested on the 16th November 1989 pursuant to a provisional warrant of arrest upon an application by the requesting state, the United States, in respect of charges relating to conspiracy to traffic in dangerous drugs and possession of dangerous drugs for the purposes of unlawful trafficking. An order to proceed was made by the Governor on the 22nd March 1990 and a supplemental order to proceed was made on the 28th March 1990. The supplemental order relates to charges of trafficking in dangerous drugs that contain the same particulars with regard to the original charges which allege possession for the purposes of unlawful trafficking. Four of the persons named in the conspiracy charge also appeared before the magistrate and were also committed with the applicant at the end of the hearing.,

3. The decision of the magistrate to commit the applicant has been challenged on three grounds :-

Test for Committal

4. In respect of the first ground, it is agreed that the correct test for committal was set out by Lord Reid in. Schtracks v. Government of Israel [1964] AC 556 where at 580 he said :-

"It is not 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."

However, in paragraph 10 of his ruling, the magistrate adopted the following words as the correct test :-

"       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."

Mr Thomas, counsel for the applicant submitted that the test used is not synonymous with that laid down by Lord Reid for whether a jury. might "accept" evidence or believe it or regard it as true is not the same test as whether a reasonable jury would convict on that evidence for it goes to the credibility of evidence, not to its adequacy or cogency as proof of guilt whilst a jury's willingness to accept evidence as indicative of guilt is a test whether there are reasonable grounds for suspicion and it is not the same test as to whether a jury could be sure of guilt on that evidence alone to convict. Whilst the phraseology adopted by the magistrate is not as precise as that adopted by Lord Reid, nevertheless, I am quite satisfied that reading the ruling as a whole, he did not adopt the wrong test. In particular, later in his ruling he stated quite clearly that a prima facie case had to be established before issuing a warrant for committal. Accordingly, the first ground argued on behalf of the applicant must fail.

The Charges

5. Under the first order to proceed, the applicant was charged with one crime of conspiracy to traffic in a dangerous drug and five crimes of possession of a dangerous drug for the purposes of unlawful trafficking. In respect of the first crime of conspiracy, it is alleged that between approximately October 1986 and February 1988, the applicant conspired with six named persons and with other persons to traffic in a dangerous drug contrary to common law and sections 4 and 39 of the Dangerous Drugs Ordinance. In respect of the five crimes of possession of a dangerous drug for the purposes of unlawful trafficking, he was charged under crime 2 that in or about June 1985 he had in his possession 17 kilograms of heroin for the purposes of unlawful trafficking contrary to sections 7(1) and (2) of the Dangerous Drugs Ordinance. The third crime relates to a date in about July 1987 and to a quantity of 105 kilograms of heroin. Crime 4 alleges that between September and October 1987, the applicant had approximately 69 kilograms of heroin, crime 5 that between October and November 1987, he had approximately 70 kilograms of heroin and crime 6 that in December 1987, he had in his possession approximately 26 kilograms of heroin. As I have said the second order sets out the same particulars for crimes 2 to 6 but the charges allege trafficking in a dangerous drug contrary to sections 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

Facts

6. In her affidavit in support of the request for extradition, Catherine E. Palmer, an Assistant United States Attorney for the Eastern District of New York, states that a man named Wong Kwong Kit, together with various partners, arranged and directed the importation of numerous heroin shipments into New York between 1985 and December 1987 and that the applicant was one of the persons who received several of these shipments. The evidence that has been relied upon in the District Court of the Eastern District of New York against the applicant is that of two accomplices Yuen Ho yin and Cheung Wai Kam who worked for Wong Kwong Kit and acted as his representatives in New York in connection with the heroin shipments that he smuggled into New York. Specific evidence has been given by both these witnesses of their dealings with the applicant.

Evidence of Yuen Ho Yin

7. In his affidavit, Yuen states that he was arrested in New York on ..the 17th December 1987 in connection with the seizure of 165 1bs of heroin and was subsequently indicted on several charges involving a conspiracy to import and importation of a substantial quantity of heroin into New York. He said that he had been involved in heroin trafficking activities for several years and that he was involved in numerous shipments between 1985 and December 1987 into New York when he was working for Wong Kwong Kit who had also been involved in heroin trafficking for serveral years. He confirmed that Wong Kwong Kit had arranged for and invested in numerous heroin shipments to the United States and that he acted as his representative in New York where his responsibilities included receiving the heroin once it arrived in New York and then arranged for its delivery to buyers and for the proceeds to be paid to Wong Kwong Kit and his partners. He said he was assisted by Cheung Wai Kam in these activities between December 1986 and December 1987. He named Kin Man Law as one of a number of individuals who had been involved in several of the heroin shipments to new York that had been arranged by Wong Kwong Kit and his partners in which he was involved between 1985 and December 1987 and identified Kin Man Law in a photograph which was produced as Exhibit No. 1. He said that he has known Kin Man Law since about December 1986 and had several dealings with him since that time. Based upon his trafficking activities, he said that the term "unit", when it is referred to in his evidence, referred to a measurement of heroin and that the terms "stuff" and "shipment" also referred to heroin.

8. In about May 1987, Yuen was told by Wong Kwong Kit to deliver US$400,000 in cash which he held in respect of drug transactions to deliver to Kin Man Law as he was told that he had a method of getting money to Hong Kong quickly. Yuen met Kin Man Law for this purpose and handed him the US$400,000 in cash. In June 1987, Yuen delivered 25 units of heroin to Kin Man Law at a parking lot behind the Lei Yu Mun Restaurant in Queens, New York where he had been waiting in a car. Wong Kwong Kit had told him previously that Kin Man Law would pay him directly for this heroin. In July 1987, he made another delivery to Kin Man Law, of 150 units of heroin, at the same parking lot. In about late September or early October 1987, Yuen states that Kin Man Law contacted him and said he wanted 99 units which he understood to refer to heroin and that he later arranged to meet him at the Lei Yu Mun Restaurant. He states that he and Cheung Wai Kam placed 99 units of heroin into several travel bags and a suitcase which Wong Kwong Kit took and went to meet Kin Man Law at the Lei Yu Mun Restaurant and upon his return, without the heroin, said that he had delivered the merchandise to Kin Man Law, but said Kin Man Law would pay for it directly to him. He said that he understood that Wong Kwong Kit meant heroin when he used the term "merchandise". In December 1987, Yuen told Cheung Wai Kam to deliver a total of 38 units to Kin Man Law and was told later by Cheung Wai Kam that Kin Man Law had come to an apartment on 58th Avenue to take delivery. In about the middle of October 1987, Yuen was told by Wong Kwong Kit that Kin Man Law had requested 100 units of merchandise which he understood to mean heroin and that he was going to meet Kin Man Law at the Dunkin Donuts on Kissena Boulevard, Queens, New York where Wong Kwong Kit left the heroin and later returned without it saying that he had delivered the merchandise to Kin Man Law.

Evidence of Cheung Wai Kam

9. Cheung Wai Kam said that he had been involved in heroin trafficking activities for several years and had been involved in several heroin shipments into New York between December 1986 and December 1987, during which time he worked with Yuen Ho Yin as representatives or Wong Kwong Kit.  He corroborated Yuen's evidence with  regard to the arrangements for the delivery of heroin to buyers and for the remittances of the heroin proceeds to be delivered to Wong Kwong Kit and his partners. He had known Kin Man Law since about July 1987 and that he was one of the individuals involved in the heroin shipments and was able to identify Kin Man Law's photograph which was exhibited to his affidavit as exhibit 1. He said that he was told by Yuen that 25 units had been delivered to Kin Man Law in June 1985 and that Yuen and Wong had told him that Kin Man Law would pay him directly for those units. He was also told about the delivery in July 1987 of 150 units and that he and Yuen were told by Wong that Kin Man Law would remit the money directly to him for these units. He confirmed the evidence of Yuen that he and Yuen placed 99 units of heroin into several travel bags and a suitcase in late September or early October 1987 which bags and suitcase were taken by Wong Kwong Kit to Kin Man Law who returned later without the heroin and said that he had delivered the "merchandise" to Kin Man Law, which term he understood to refer to heroin.   In December 1987, Yuen told him that Kin Man Law would receive 38 units that remained from a larger instalment and that later that day Kin Man Law came to an apartment at 58th Avenue, Queens, New York, when he said he had come to pick up the merchandise. He went to the basement of the apartment where the heroin was stored, where Kin Man Law counted the 38 units of heroin which he placed into a bag and departed.

10. In about October 1987, Cheung saw Wong Kwong Kit and Yuen bring in a bay and a suitcase which contained numerous bags of loose white powder which he said he recognised to be heroin and subsequently heard Wong Kwong Kit say he was going to deliver this "merchandise" to Kin Man Law.

Concession by the Crown on Crime 5 of the Original Order to proceed and Crime 4 of the Supplemental Order

11. It has been conceded by Mr Hartmann who appeared on behalf of the Crown that there was insufficient evidence to commit the applicant on crime 5 in the first order to proceed, and therefore crime 4 in the supplemental order to proceed.

Hearsay Evidence

12. Mr Thomas argued that the magistrate had failed to exclude inadmissible evidence in the nature of hearsay which he had admitted on the basis that it related to the first crime of conspiracy. He went on to say that the hearsay evidence was not admissible as they were things said in furtherance of the conspiracy or in reference to orders for goods supplied or deliveries that had taken place or terms of payment for those deliveries which all related to the past and lacked any futuristic meaning or intent and could not therefore further a criminal conspiracy or common design.

13. Hearsay evidence on a charge of conspiracy is admissible if the statement is made by one conspiractor which incriminates another and if the statement is made in furtherance of the conspiracy to which the conspiractors are parties provided that there was some evidence of common purpose see R. v. Donat [1986]82 Cr.App.Rep.177 which was followed in R. v. Hui Wai Bun Cr.App.403/1986, also see R. v. Buckton [1985]2 NZLR 257. In respect of the matter of a statement being made in furtherance of a conspiracy, it must be one in furtherance of the conspiracy and not for recounting past events, see R. v. Baran and Wertman [1977] 73 DLR (3d) 213 at 221.

14. As was submitted by Mr Hartmann, the evidence shows that Law Kin Man must have known that there was an on-going conspiracy in which he took part as a buyer. The evidence indicates that Law was an associate of Wong in the purchase of drugs, that he made payments direct to Wong and was also conversant with the transfer of monies quickly to Hong Kong. The evidence of the overt acts clearly point to a conspiracy and I am unable to accept the submission made on behalf of the applicant that the evidence merely relates to an account of past events. In my judgment, and I agree with Mr Hartmann, the evidence relates to the business of the importation of drugs and distribution within the United States of America and that it is an on-going conspiracy so that the evidence was therefore admissible as being in furtherance of that conspiracy. There is clear evidence of a common design between the applicant and Wang if the evidence of Yuen and Cheung is to be believed.

15. The objection raised that the applicant only received deliveries from Wong could not further a conspiracy between the applicant and the other six persons named in the conspiracy charge as they were independent buyers and sub-buyers is quite clearly wrong for there can be a conspiracy where one conspiractor is not aware of the identity of the other conspiractors. The evidence relating to the other buyers and sub-buyers is clearly set out in the evidence of Yuen and Cheung.

16. It was urged upon me that as the Crown had conceded that the evidence upon crime 5 in the original order to proceed and 4 in the supplemental order had been conceded, it must therefore follow that there was also no evidence in respect of crime 4 in the original order to proceed and 3 in the supplemental order but this is not correct for Yuen gave evidence that  he had been contacted by Kin Man Law who said that he wanted 99 units of heroin which he and Cheung had packed into several travel bags and a suitcase which was then taken by Wong Kwong Kit to Kin Man Law.

17. I am therefore quite satisfied that the magistrate made a correct interpretation of the evidence and that the evidence to which objection was taken was admissible.    The second ground advanced on behalf of the applicant is therefore rejected.

Whether the Substance was Heroin

18. It was submitted on behalf of the applicant that there was no sufficient or reliable evidence that the substance supplied by Yuen to Law was in fact heroin and that Yuen was not shown to have proper qualifications to express an opinion of substances from mere appearance or packaging and that it is not apparent upon what primary facts he formed an opinion that he was handling heroin and not some other substance. Both Yuen and Cheung gave evidence that they had been involved in the trafficking of drugs for several years and had understood such terms as "units", "merchandise", and "stuff" to be terms used for heroin. Having regard to their testimony, I am satisfied that the magistrate was right to admit this evidence for the jury is entitled to draw inferences from this evidence as to whether the substance referred to was in fact heroin. This ground of objection must also fail.

Identification

19. Mr Thomas submitted that the magistrate was wrong in holding that there was any or any sufficient admissible evidence before him that the applicant was the wanted person and drew my attention to the United States of America (Extradition) Order 1976, (The Extradition Order) Article VII which where relevant reads :-

    "(1)     The request for extradition shall be made through the diplomatic channel, except as otherwise provided in Article XV.

 

    (2)      The request shall be accompanied by:

 

20. With regard to the authentication of foreign documents, section 26 of the Extradition Act 1989 provides :-

"26.      (1)    In extradition proceedings in relation to a person whose return has been requested by a foreign state foreign documents may be authenticated by the oath of a witness, but shall in any case be deemed duly authenticated -

Paragraph 12 of Schedule 1 to the Extradition Act 1989 reads :-

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

21. Mr Thomas argued that this was an unusual case because there was no evidence adduced of the identity of the prisoner for the arresting officer was not called and there was no evidence of the passport number or CTC number or date of birth, although they had been supplied by the requesting authority. He said that the photographs in the bundle were apparently relied upon by the magistrate to link the alleged offender with the prisoner. I have been told by the parties that at the hearing before the magistrate, Mr Llewellyn, on behalf of the applicant, accepted that the Hong Kong warrant of arrest had been executed and did not require evidence of its execution and that the warrant could be exhibited by agreement which was done. However, Mr Llewellyn did not suggest that the agreement went beyond the fact that the Hong Kong warrant had been executed on his client Law Kin Man. Mr Thomas contended that the photographs do not form part of the affidavits and that when the certification was made by Mr Rex L. Young, Deputy Director of the Office of International Affairs, Criminal Division, United States Department of Justice in Washington, on the 5th January 1990, it was stated that the photographs that had been produced were attached to the original affidavits. However, they were not signed by the American magistrate in New York on the 3rd January 1990 or signed or sworn to by the two witnesses. Accordingly, Mr Thomas submitted that the photographs are not duly authenticated within the provisions of section 26 of the Extradition Act 1989 and do not therefore come within paragraph 12 of Schedule 1 to the 1989 Act. He further objected to admissibility under the laws on evidence of Hong Kong having regard to the provisions of Order 41, rule 11 of the Rules of the Supreme Court that requires any exhibit to an affidavit to be identified by a certificate of the person before whom the affidavit is sworn. Mr Thomas went on to say that if the photographs had been properly admitted, the magistrate was not entitled to compare the appearance of the prisoner with the photographs which would result in an exercise in finding facts, or in the alternative, by expressing his private opinion as to the evidence which he was appointed to examine.  However, the magistrate in his ruling in clause 6 said "I have noted the photographs referred to and annexed to those various affidavits and I am satisfied that the person named in the affidavits, in the indictment and in the warrants are the fugitives in court whose extradition is sought." I do not accept that the magistrate, by those words, was making a finding of fact, but merely commenting that he was satisfied from the evidence placed before him that the persons who appeared before him were those for whom extradition has been sought in the United States. In determining whether the evidence of the photographs is admissible, I do not consider that the reference to O.41, r.11 of the Rules of the Supreme Court is in any way relevant for regard must be had to the provisions of the Extradition Act 1989 in conjunction with The Extradition Order. It is significant that neither The Extradition Order nor the Act refer to exhibits being authenticated, but merely to depositions and statements on oath. I am satisfied that the interpretation placed upon the necessity to authenticate the exhibits separately is incorrect. The photographs have been sworn to by both Yuen and Cheung which documents have been duly authenticated by the United States magistrate in accordance with the Act. The photographs form part of the court record. Accordingly, the objection raised as to the identification of the applicant will also fail.

22. The motion is therefore dismissed with the exception that there will be no committal on crime 5 of the original order to proceed and crime 4 of the supplemental order. There will be an order nisi for costs to the Crown.