RE YEUNG YAN CHI

1996 M.P. No. 2049

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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REASONS FOR DECISION

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1. On the 28th of June 1996, I dismissed the Applicant, Yeung Yan Chi's application for leave to issue a writ of Habeas Corpus. I indicated that I would give my reasons in writing and this I now do.

2. The application was an ex-parte application on notice. At the commencement of the hearing, Mr. McCoy, on behalf of the Applicant agreed that Mr. McMeans, on behalf of the Respondent had the right of audience and the right to be heard. Indeed I am grateful to counsel for their clear and succinct arguments.

3. The Applicant was arrested on 18th of August 1995 and was being detained at the Laichikok Reception Centre, pending extradition to the United States of America pursuant to a request by the Consulate General of the United States of America.

4. The "crimes" for which the Applicant was committed in accordance with the Magistrate's Warrant of Committal dated 21st of March 1996 were described as follows:

5. CRIME 1: Yeung Yan-chi, on unknown date between the 1st day of July, 1993 and the 15th day of August, 1993 did conspire with another person or persons to murder Jian Tai, contrary to Common Law.

6. CRIME 2: Yeung Yan-chi, on an unknown date between the 1st day of July, 1993 and the 15th day of August, 1993 did conspire with another person or persons to kidnap JIANG Ai-Hao, also known as "Iron Balls", contrary to Common Law.

7. CRIME 3: Yeung Yan -chi, on an unknown date between the 1st day of July, 1993 and the 15th day of August, 1993, together with others, did kidnap JIANG Ai-Hao, also known as "Iron Balls' contrary to Common Law.

8. CRIME 4: Yeung Yan-chi, on an unknown date or dates between the 1st day of July, 1993 and the 15th day of August, 1993, together with others, did falsely imprison JIANG Ai-Hao, also known as "Iron Balls" contrary to Common Law.

9. CRIME 5: Yeung Yan-chi, on an unknown date or dates between the 1st day of July, 1993 and the 15th day of August, 1993 did conspire with another person or persons to murder JIANG Ai-Hao, also known as "Iron Balls", contrary to Common Law.

10. CRIME 6: Yeung Yan-chi, on an unknown date between the 1st day of July, 1993 and the 15th day of August , 1993, together with others, murdered JIANG Ai-Hao, also known as "Iron Balls" contrary to Common Law.

11. At the extradition hearing on 21st of March, 1996, the Applicant was represented and he did not argue that there was insufficient evidence to commit him on any of the offences and no point was taken about the wording of the charges aforesaid. The only point which was taken concerned the description of the U.S. arrest warrant which argument was rejected and the Applicant was committed.

12. The Applicant then applied for a writ of Habeas Corpus, arguing the same point on the arrest warrant again. Sears J. refused the Habeas Corpus application on the 13th of May, 1996 and found the detention of the Applicant to be lawful. An appeal against the decision of Sears J. was lodged which appeal was subsequent abandoned.

13. Mr. McMeans, on behalf of the Respondent raised a procedural matter. He argued that as the Applicant had already taken out a Habeas Corpus application before Sears J. He was not entitled to take out a second or fresh application. The suggestion was that even the doctrine of Issue Estoppel does not apply to an application for Habeas Corpus, it would be an abuse of the process of the court if an applicant raises, in subsequent proceedings matters which could, and should have been raised in the earlier proceedings.

14. Mr. McMeans relied on Section 23 of the Supreme Court Ordinance which provides:-

"23. Notwithstanding anything in any law or rule of court, where a criminal or civil application for habeas corpus has been made by or in respect of any person, no such application shall again be made to the High Court or any Judge thereof by or in respect of that person on the same grounds, unless fresh evidence is adduced in support of the application."

In Reg. v. Governor, Pentonville, Ex p. Tarling (D.C.) [1979] 1 W.L.R. 1417 Gibson J. said at P. 1423:

"The phrase 'on the same grounds' in section 14(2) of the Act of 1960 cannot have the limited and technical meaning which this submission would attach to it. The phrase should be given its ordinary meaning. The grounds of an application include those facts upon which the court is asked to base the decision which the court is asked to make, namely, that the detention is unlawful, or that in the exercise of its discretion under the Act of 1967 the applicant should be discharged from that detention. This construction of the phrase will not permit the process of return under the Act of 1967 to be improperly prolonged because, as has been stated, the court would not permit an applicant to hold back, and not use, a ground of application which was fairly available to him on his initial application and then claim to put forward that ground on a second application."

One can readily appreciates situations whereby an applicant deliberately tries not to use all the grounds knowingly available to him in the first hearing and seeks to use such other ground or grounds one by one in subsequent hearing or hearings. Such behaviour would no doubt constitutes an abuse of the court's process and should not be condoned, let alone encouraged.

15. On the other hand, there can be situation whereby an applicant does not seek to rely on a ground, though available because of inadvertence, error of judgment or even incompetence on the part of his legal representative? Should he be debarred from raising such ground in subsequent application? Should he be punished for making mistake or for the incompetence of his legal representative when his liberty is in issue? The answer, I think, is clear.

16. Section 23 of the Supreme Court Ordinance prohibits repeated application on the same ground. Gibson J's judgment in Tarling's case (supra) emphasis the importance of not allowing an applicant to hold back and not use a ground of application which was fairly available to him on his initial application and then claim to put forward that ground on a second application.

17. In Law Kin Man v. Commissioner of Correctional Services HCMP 2393 of 1991, Mayo J. in referring to Tarling made the following observation:

"I am satisfied that the principles which were referred to by Gibson J. in Ex parte Tarling are the correct ones governing successive applications for Writs of Habeas Corpus and that the applicant clearly could and should have raised the issue in these proceedings in one of the earlier applications"

If a ground of application was not identified and therefore not used due to genuine inadvertence, error of judgment or even incompetence, it cannot be said that such ground was fairly available and it could not be said to be a deliberate holding back. It could not be said that the issue could and should have been raised in the earlier proceeding.

18. A reasonable tribunal should have no difficulty in identifying a situation of an abuse of the court's process whereby an applicant deliberately withholds available ground and then seek to use it in subsequent application from a situation whereby the available ground is not used as a result of genuine mistake, error of judgment or even incompetence of the legal representative.

19. The background of the present case was not such that there had been an abuse of the court's process by the Applicant in relying on another ground in a second application for Habeas Corpus. A detailed explanation had been given as to why the Applicant had taken the steps as he did. Such matters do not support the suggestion that the Applicant had deliberately held back grounds which were fairly available to him in the first application. Mr. McMeans' argument on this aspect failed.

20. I shall now turn to the merit of the application.

21. The Applicant in his affirmation raised two simple points.

22. Firstly, it was suggested that Crimes in question except Crime 4 were offences unknown to the law as they were described to be contrary to common law when they were in fact statutory offences. Secondly, it was suggested that there was repeated and prejudicial overlap and multiplicity of the Crimes.

23. Mr. McCoy did not seek to argue the second point which was clearly unarguable. The function of examining magistrates in committal proceedings is to accept and consider any admissible evidence which is put before them to decide if such evidence as, according to the laws of Hong Kong, would justify the arrest of the person accused if the crime had been committed there.

24. It is not the function of the examining magistrates to exercise any discretion in rejecting evidence because of its prejudicial effect. It is not the function of the examining magistrates to consider if the charges are bad for duplicity or that the person accused can not have a fair trial. Such matters involves the exercise of discretion and an enquiry into the system of the administration of justice of the requesting state. They are not matters for the Hong Kong courts.

25. I must confess I have some difficulty in understanding the argument that Crimes 1, 2, 3, 5 and 6 were unknown to the law because they were described as common law offences. Conspiracy to commit an offence is indeed a common law offence and there has not been any legislation in Hong Kong which expressly abolishes the offence of conspiracy at common law.

26. The offence of false imprisonment, kidnapping and conspiracy to kidnap have always been and remain common law offences. Section 42 of the Offences Against the Persons Ordinance deals with the offence of forcible taking or detention of person. Technically, section 42 of the Offences Against the Persons Ordinance is not the same as the common offences of false imprisonment and kidnapping as the offence of false imprisonment and kidnapping does not require the proof of the element of an intention to sell the victim or to procure a ransom of the liberation of the victim.

27. There had been frequent occasions in Hong Kong where defendants were charged with false imprisonment, kidnapping and conspiracy to kidnap contrary to comon law. I find it difficulty to accept how by describing kidnapping and conspiracy to kidnap contrary to common law would render such offences unknown to the law.

28. It is true that section 5 of the Offence Against the Persons Ordinance specifically set out the offence of conspiracy to murder, that does not mean that the common law conspiracy to murder would be automatically abolished or impliedly repealed.

29. Jennings v. United States [1982] 3 All E.R. 104 clearly demonstrated that in the absence of an express provision, the codification of an common law offence does not have the effect of repealing it. Lord Roskill stated at Page 116;

"In a field so complex as the criminal law as it exists today, frequently changing society, a crucial change of this kind was, if counsel's submission is right, left only to implication. The 1977 Act, on s. 50 of which counsel relied so strongly as giving rise to an implied repeal of the relevant part of the common law of manslaughter, itself contains an express repeal of the common law offence of conspiracy in clear and explicit language. I refer to s. 5 which provides that 'the offence of conspiracy at common law is hereby abolished'. If Parliament had in the 1977 Act intended to abolish the relevant part of the common law offence of manslaughter I should have expected to find a similar provision somewhere in the legislation between 1956 and 1977. My Lords, there is none. On the contrary there are, as I have shown, plenty of indications of an intention that that common law offence should remain fully intact after 1956 and after 1977 as it had before the successive statutory offences had ever been created. The fact that Parliament made it possible in those years for prosecuting authorities to choose to prosecute for a lesser offence carrying a lesser penalty does not seem to me to militate against the correctness of the view I have formed. No doubt the prosecuting authorities today would only prosecute for manslaughter in the case of death caused by the reckless driving of a motor vehicle on a road in a very grave case."

There is no merit whatsoever in the suggestion that by describing the 6 Crimes in question as offences contrary to common law, they were rendered offences unknown to the law.

30. Even if the 6 Crimes were not common law offences and were wrongly described as such, it had, in my view no bearing whatsoever on the validity of the warrant of committal in question.

31. The warrant of committal in extradition proceedings is not an indictment. It needs only to sufficiently identity the offences which are offences according to the law of Hong Kong.

32. The offences in question are conspiracy to murder, conspiracy to kidnap, kidnapping, false imprisonment, and murder. They had been sufficiently identified for the purposes of the extradition proceedings whether they are described as offences contrary to common law or contrary to a particular statutory provision.

33. The Applicant has not raised an arguable case on material issue which requires further consideration to justify the granting of leave to issue a writ of Habeas Corpus. The application is therefore dismissed.

34. This is an ex-parte application, but the respondent was served with the application and was expected to attend. The court has also derived considerable help from the able argument of Mr. McMeans. I see no reason why the Applicant should not bear the costs of the respondent. I therefore order that the Applicant is to pay the respondent the costs of the application to be taxed if not agreed. The order on costs is an order nisi to be made absolute 14 days after the handing down of the reasons for decision.