ENG SUI HANG, JOHNNY v. GOVERNMENT OF THE UNITED STATES OF AMERICA

1989, M. P. 3484

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HEADNOTE

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EXTRADITION - WRIT OF HABEAS CORPUS.

Two provisional warrants of arrest were issued under the Extradition Act 1870 on behalf of the Government of the United States. Before the Governor made the orders to proceed, the Act of 1870 had been repealed by the Extradition Act 1989. However, despite its repeal, all subsequent proceedings, including the grant by the magistrate of warrants of committal, were continued under the 1870 Act.

Held : -

1989, No. MP3484

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. The applicant, Johnny ENG Sui-hang, applies for a writ of habeas corpus pursuant to leave granted by Sears J. on the 5th January 1990. The matter arises from two warrants of committal issued by a magistrate Mr I. Britton at the Central Magistracy on the 21st December 1989 under the Extradition Act 1870 that applies in Hong Kong, in respect of a number of offences involving dangerous drugs that it is alleged the applicant has committed in the Eastern and Southern Districts of New York. A provisional warrant of arrest relating to the Eastern District charges was issued by a magistrate in Central Magistracy on the 15th August 1989 and a second provisional warrant was issued in respect of the Southern District charges on the 11th September 1989. The applicant was arrested in Hong Kong on the 17th August 1989 pursuant to the first provisional warrant and was remanded in custody on the 18th August 1989 by a magistrate to the 29th August 1989 and thereafter to the 13th October 1989 pending a request by the Government of the United States (the respondent) for his extradition. While in custody, under the first provisional warrant the applicant was arrested pursuant to the second provisional warrant on the 11th September 1989 on which day he was remanded by a magistrate to the 7th November 1989 pending a similar request by the respondent.

2. The Extradition Act 1870 and subsequent enactments were repealed by the Extradition Act 1989 which was passed on the 27th July 1989. By section 8(2), the Act came into force at the end of the period of two months beginning with the day on which it was passed. Mr Blanchflower who appeared for the respondent submitted that the Act came into force on the 27th September 1989, but Mr Nicholls, counsel for the applicant, disagreed saying that it was the 28th September 1989. Nothing turns on the exact date, but I agree with the interpretation of Mr Nicholls.

3. On the 13th October 1989 the Governor in response to a diplomatic request from the respondent, signed an order addressed to the Chief Magistrate directing him to proceed in accordance with the Extradition Acts. This order specified two extradition crimes, conspiracy to traffic in a dangerous drug and trafficking in a dangerous drug within the jurisdiction of the United States. A supplementary order to proceed in respect of twenty one extradition offences for the Eastern District of New York was signed by the Governor on the 1st November 1989 and a further order to proceed was signed the same day for four other charges in the Southern District. The proceedings before the magistrate which led to the issue of the warrants of committal were heard from the 12th to the 21st December 1989. Despite the repeal of the Extradition Act 1870, the proceedings after the 1989 Act came into force were continued under the previous legislation.

4. The submission put shortly on behalf of the applicant and the issue that I have to determine is whether the order of the Governor and all the subsequent proceedings that led to the making of the committal orders under the Extradition Act 1870 were unlawful and of no effect having regard to the repeal of that Act.

5. It is significant that earlier Acts relating to extradition, including the Act of 1870, the Fugitive Offenders Act 1881 and the Fugitive Offenders Act 1967 contained transitional provisions or saving clauses, whereas the Act of 1989 does not have such provisions. As there are no transitional provisions nor any savings clause, it will be necessary to construe the extradition legislation in conjunction with the Interpretation Act 1978 which also applies to Hong Kong.

6. It will now be convenient to deal with those provisions of the 1870 Act which are relevant in these proceedings. When the Act applies to Hong Kong, the Governor should be substituted for a Secretary of State, and Hong Kong for the United Kingdom or England. The preamble to the Act states that it is an Act to consolidate enactments relating to extradition under the Criminal Justice Act 1988, the Fugitive Offenders Act 1967 and the Extradition Acts 1870 to 1935.

This section also provides that if the fugitive criminal is sentenced to prison, the magistrate shall forthwith send to a Secretary of State a certificate of the committal and a report upon the case as he may think fit.

7. Section 17 of the Extradition Act 1870 provides that when applied by Order in Council, it will extend to every British possession in the same manner as if throughout the Act that British possession were substituted for the United Kingdom or England with certain modifications.

8. Section 18 of the Act of 1870 enabled the legislature of any British possession to carry into effect the surrender of fugitive criminals who are in or suspected of being in such British possession. By Ordinance No. 11 of 1875 the Hong Kong legislature made such a provision and by an Order in Council made on the 20th March 1877 in accordance with section 18 the Ordinance was approved and allowed.

9. An Extradition Treaty that replaced an earlier Treaty made in 1931 was made between the Government of the United Kingdom and the respondent on the 8th June 1972 for the reciprocal extradition of offenders. The Treaty was ratified on the 21st October 1976. Pursuant to the Treaty, the United States of America (Extradition) Order 1976 came into operation on the 21st January 1977. The Treaty applies to Hong Kong by virtue of Schedule 2 of the Order. The following articles of the order are relevant to this application :-

10. The Interpretation Act 1978 applies to Hong Kong by virtue of section 79 of the Interpretation and General Clauses Ordinance. Sections 15 and 16 of the Act which appear in the part dealing with the repeal of enactments are relevant. These sections read as follows : -

11. Section 1(3) of the Extradition Act 1989 is also relevant and reads :-

"     (3)    Where an Order in Council under section 2 of the Extradition Act 1870 is in force in relation to a foreign state, Schedule 1 to this Act (the provisions of which derive from that Act and certain associated enactments) shall have effect in relation to that state, but subject to the limitations, restrictions, conditions exceptions and qualifications, if any, contained in the Order."

12. On behalf of the applicant, it was submitted by Mr Nicholls that the effect of section 1(3) is to keep alive the orders in Council applying the Act of 1870 and subsequent enactments including the United States of America (Extradition) Order, so as to substitute the provisions of Schedule 1 of the Act of 1989 for the provisions of the Act of 1870 and subsequent enactments. Further, as there were no transitional provisions or saving clause in the Act of 1989, the effect of the repeal of the Act of 1870 and subsequent enactments is that all requests for extradition and orders of the Governor made after the 28th September 1989 must be in accordance with the 1989 Act. Although Mr Nicholls acknowledges that the application is technical, nevertheless he referred to a new provision in Schedule 1 of the 1989 Act under paragraph 9 which introduces a simplified procedure to enable a fugitive criminal to waive his rights of surrender for the prescribed fifteen day period and his right to apply for a writ of habeas corpus that is set out in paragraph 8. He emphasised that this provision was of particular significance in extradition proceedings to the United States where it might become important on the question of mitigation.

13. My attention was drawn by counsel to R. v. Chief Metropolitan Magistrate, Ex parte Government of Denmark (1984)79 Cr. App. R. 1 where Robert Goff, L.J., as he then was, summarised the statutory scheme of the Extradition Act and the Treaty between the United Kingdom and Denmark. At 11 he had this to say : -

"....As we have already recorded, the scheme envisages, in summary, the following stages before extradition can take place: (1) A requisition by the foreign state; (2) A decision by the Secretary of State to issue an order to proceed; (3) Issue of a warrant for the apprehension of the fugitive criminal; (4) After such apprehension, a hearing before a police magistrate, under sections 9 and 10 of the Act; (5) A committal of the fugitive to prison by the police magistrate; (6) Possibly, habeas corpus proceedings; and (7) A decision by the Secretary of State to surrender the fugitive to the foreign state.

 

        Now it is important to observe that the legal proceedings in this country depend entirely upon the Secretary of State issuing his order to proceed. It is true that, without such an order, a provisional warrant may be issued for the arrest of the fugitive under section 8(2). But if the Secretary of State decides not to issue an order to proceed, he may cancel that warrant and order the fugitive to be discharged from custody (under section 8). The Secretary of State has a discretion whether to issue an order to proceed, and the question whether the offence is of a political character is only one of the matters which he may take into account in considering the exercise of his discretion. But since, as we have already observed, the Act which confers his powers upon the Secretary of State only applies subject to the limitations, etc., if any, contained in the Order in Council (which incorporates the Treaty), he can only act within that framework. Accordingly he has to consider, before issuing an order to proceed, whether the requisiton and the documents presented with it comply with the terms of the Treaty. If he satisfies himself that this is so, then (subject to any question of the offence being of a political character) he issues his order to proceed.

 

        Once he does so, however, the effect of the order to proceed is that proceedings are launched before the police magistrate in this country."

14. In an earlier case, Government of the Federal Republic of Germany v. Sotiriadis (1975) AC 1 Lord Diplock explained the effect of a provisional warrant at 25 when he had this to say : -

"    The other procedure for which the Act provides is the precautionary arrest of the fugitive criminal to prevent him from fleeing the country before the requisition for his surrender has been received by the Secretary of State and signified to the metropolitan magistrate. This is the procedure by provisional warrant under section 8(2). The warrant may be issued not only by a metropolitan magistrate but also by any justice of the peace. It is issued on the same kind of information or complaint supported by the same kind of evidence as would justify its issue if the crime alleged had been committed in England. The informant or complainant may be a private individual acting on his own initiative. He need not be acting on behalf of any police or governmental authority of the foreign state where the crime is alleged to have been committed. The warrant requires the person alleged to be a fugitive criminal to be brought before the magistrate or justice of the peace by whom it was issued; but if issued by a justice of the peace he must, when the alleged fugitive criminal is brought before him, issue a further warrant ordering the prisoner to be brought before a metropolitan magistrate.

 

    This kind of warrant is provisional in two respects. It must be reported to the Secretary of State who may order it to be cancelled and the person apprehended on it to be discharged. Secondly, when a person apprehended on a provisional warrant is brought before a metropolitan magistrate, the magistrate is required by the last paragraph of section 6 to discharge the prisoner unless '...within such reasonable time as, with reference to the circumstances of the case he may fix, ...' he receives from the Secretary of State an order signifying that a requisition has been made for the surrender of the prisoner. Under this paragraph the magistrate is bound to fix a date by which the order must be received although, no doubt, he has power also to extend it from time to time if he considers that the circumstances justify his doing so. He is, however, acting in breach of the Act if, as in the instant case, he fails to fix a date at all.

 

    The purpose of this provision is clear. A person arrested on a provisional warrant is not at that stage subject to extradition at all and may never become so. He becomes subject to extradition only when a requisition for his surrender has been received by the Secretary of State. Although the provisional warrant charges him with an offence committed abroad the charge is as yet inchoate. It is not yet the subject of the judicial hearing for which the Act provides. There may never be a requisition for his surrender or, if there is, it may not be for the same crime as that with which the provisional warrant charges him or it may be for other crimes as well. He ought not to be kept in custodial limbo indefinitely, entitled neither to a hearing of the case against him nor to be set at liberty. So the magistrate is required to fix a date by which either those charges which alone can be the subject matter of the hearing must be formulated or the prisoner be discharged."

15. Mr Nicholls submitted that the applicant's arrest under the provisional warrants and his remands in custody thereunder are not affected by the repeal of the 1870 Act by virtue of section 16(1)(b) of the Interpretation Act 1978. While he accepts that proceedings by way of provisional warrant form part of the machinery of extradition, he contends that they are separate legal proceedings for at that time no right, privilege, obligation or liability had become vested in the respondent. under section 16(1) of the Interpretation Act 1978 at the date of the repeal of the 1870 Act.

16. He further argued that a person arrested upon a provisional warrant does not incur liability to be apprehended and surrendered under section 6 of the 1870 Act until an order to proceed is made by the Governor under section 8(1). A person arrested pursuant to a provisional warrant is under no such liability for it merely follows an indication of an intention by the authorities of the requesting state, the United States, to request the extradition of the person sought. Mr Nicholls submitted that the provisional arrest is a separate emergency procedure and is a legal proceeding which is completed by the apprehension of the fugitive following upon the receipt by the magistrate of the Governor's order to proceed or by his discharge by the Governor's cancellation of the provisional warrant or by the magistrate under section 8 of the 1870 Act.

17. Mr Nicholls went on to argue that the mere right to take advantage of the provisions of a repealed statute does not satisfy section 16(1)(e) with regard to an investigation, legal proceeding or remedy and cited Abbott v. Minister of Lands [1895] AC 425, where Lord Herschell, the Lord Chancellor, at 431 had this to say :-

This case was approved in Hamilton Gell v. White [1922]2 KB 422, where Atkin L.J. said at 431 :-

"As far as the claim under the Act of 1908 is concerned that depends on the proper construction of s.38 of the Interpretation Act, 1889, which provides that where an Act is repealed 'the repeal shall not affect any right, privilege, obligation or liability acquired, accrued, or incurred under any enactment so repealed.' It is obvious that that provision was not intended to preserve the abstract rights conferred by the repealed Act, such for instance as the right of compensation for disturbance conferred upon tenants generally under the Act of 1908, for if it were the repealing Act would be altogether inoperative. It only applies to the specific rights given to an individual upon the happening of one or other of the events specified in the statute. Here the necessary event has happened, because the landlord has, in view of a sale of the property, given the tenant notice to quit. Under those circumstances the tenant has 'acquired a right,' which would 'accrue' when he has quitted his holding, to receive compensation."

On the matter of accrued rights, I was also referred to Heston and Isleworth Urban District Council v. Grout [1897] 2 Ch. 306,  In re A Debtor [1936] 1 Ch. 237, Director of Public Works & Anr. v. Ho Po Sang and Ors. [1961] AC 901 and Free Lanka Insurance Co. Ltd. v. A.E. Ranasinghe [1964] AC 541. In the latter case Lord Evershed made the following observations upon an accrued right and approved the dictum of Lord Morris of Borth-y-Gest in Director of Public Works v. Ho Po Sang when he said at 552: -

"The distinction between what is and what is not 'a right' must often be one of great fineness. But their Lordships agree with Gunasekara J. in thinking that on September 1, 1951, the respondent had as against the appellants something more than a mere hope or expectation - that he had in truth a right, within the contemplation of section 6(3) (b) of the Interpretation Ordinance, under, section 133 of the Ordinance of 1938 although that right might fairly be called inchoate or contingent. In Director of Public Works v. Ho Po Sang the Board was concerned with an analogous problem under the language (closely approximating to that of the Ceylon Interpretation Ordinance) of the Interpretation Ordinance of Hong Kong. Their Lordships are well content to accept and adopt the language used by Lord Morris of Borth-y-Gest in the judgment of the Board in that case: 'It may be ... that ... a right has been given but that in respect of it some investigation or legal proceeding is necessary. The right is then unaffected or preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given.' "

18. Mr Blanchflower submitted that the extradition proceedings commenced upon the making of the request by the respondent for a provisional arrest under Article VIII(1) when an information is laid before the magistrate for the issuance of a warrant of apprehension, or at the latest by the arrest of the fugitive criminal pursuant to the warrant of apprehension. He therefore submitted that the proceedings continued when an order to proceed is signed by the Governor and received by the court. He cited the following passage of Mustill L.J.'s judgment in In re Treitz Divisional Court 20th December 1985 at 5 when he said :-

"Where the extradition proceedings are initiated by a provisional warrant, and are subsequently made the subject of an order to proceed, the proceedings are regarded as continuing, with effect from the first remand in custody after the receipt by the court of the relevant documents, by virtue of the requisition of the foreign government. The provisional warrant thereupon becomes spent. It is accordingly immaterial that offences alleged in the provisional warrant, pursuant to which the prisoner was reduced to custody, may differ from the offences which are stated in the order to proceed. It is only the latter offences which the magistrate need examine (Athanassiadis v. Government of Greece (1971) AC 287A; Government of the Federal Republic of Germany v. Sotiriadis and anr. [1975] AC 1.)"

19. Mr Blanchflower submits that the proceedings in this case commenced when the information was laid before the magistrate to obtain a provisional warrant on the 15th August 1989 or, at the latest, when the applicant was arrested under the provisional warrants on the 17th August 1989 and 11th September 1989. The subsequent steps taken, following the arrest, including the remands for the purpose of awaiting the receipt of the Governor's orders to proceed and the committal hearing amounted to a continuation of those proceedings under the 1870 Act. Further, at no time prior to the committal hearing in December were the proceedings discontinued nor was the applicant discharged from custody.

20. By an alternative argument, Mr Blanchflower submitted that section 16(1) (c) must be read with 16(1) (e) of the Interpretation Act 1978 so that the right accrues as soon as the fugitive is found in Hong Kong or at the latest when he has been arrested at which time the respondent has the right to have the fugitive criminal extradited. The provisional warrant is the first stage and is issued to preserve an acquired right until the respondent makes a formal request, as it  is stated that it is its intention to do and to assemble information for that purpose under Article VII(2) and (3). The provisional arrest ensures the presence of the fugitive in court for committal so that the respondent can present evidence under section 10 of the 1870 Act and Article IX of the Treaty. The request is to follow within 60 days to provide a prima facie case for committal. Once the respondent complies with Article VIII(l), the Governor of Hong Kong is obliged to act. Accordingly, the respondent does not have a mere hope or expectation, but has an acquired right that it will have the fugitive surrendered so long as the Treaty conditions are complied with even if other matters have to be done. The respondent's right to surrender of the applicant is contingent upon an order being made, a prima facie case being found and the Governor signing the order of surrender.

21. Mr Blanchflower further submitted that if at the time of the hearing the proceedings were governed by the Extradition Act 1989, then at the time the magistrate admitted into evidence the respondent's documents, he was deemed to have judicial notice of the 1989 Act, by virtue of section 75 of the Interpretation and General Clauses Ordinance (Cap. 1). He commented that pursuant to section 1(3) of the Act of 1989 where an Order in Council is in force in respect of a foreign state, the proceedings are governed by Schedule 1 of the 1989 Act.

22. Section 12 of Schedule 1 provides for the admissibility of authenticated documents which may be compared with sections 14 and 15 of the Act of 1870 which set out in detail the requirements for the authentication of documents. No issue was taken by the applicant with regard to the authentication of those documents which the magistrate ruled were authenticated in accordance with the Treaty, see Article VII(5) of the United States of America (Extradition) Order. Whether or not the magistrate exercised jurisdiction under the Act of 1870 or the Act of 1989 in addition to the Treaty, he would have made the same order admitting the authenticated documents as evidence so that the applicant has suffered no prejudice. As a result Mr Blanchflower submits that in the interests of justice, the application should be dismissed or the case remitted to the magistrate to make such order as he deems appropriate having regard to the fact that the issue raised is purely technical. Further, no issue was taken that the evidence adduced at the hearing was insufficient to justify the orders of committal. In suport of his submission that habeas corpus should not be granted on a mere technicality, he cited R.v. Governor of Brixton, Ex parte Servini [1914] 1 KB 77 and Athanassiadis v. Government of Greece (1971) AC 282.

23. From the authorities, in order for the respondent to succeed it must be established that the right has become vested at the date of the repeal of the 1870 Act and not a mere right to take advantage of the enactment which has been repealed. The procedure for a provisional warrant is an emergency procedure as was submitted by Mr Nicholls to keep the fugitive criminal "on ice" pending formal requisition by the requesting state the United States to the requested state Hong Kong. At the time when the provisional warrant is issued, no consideration would of course have been given by the Governor to the requisition that the respondent intended to make. Indeed, the charges that were the subject matter of the provisional warrants would not even necessarily be part of the chargers which. are the subject of a requisition. Apart from the simplified procedure to which I have referred which may or may not have been invoked by the applicant, no other advantage could have been derived under the new Act so that the applicant would obviously suffer no prejudice whether the proceedings were under the old act or the new.

24. Nevertheless, as a matter of law, the respondent had not acquired any right nor had the Hong Kong Government incurred any obligation at the date of the repeal of the 1870 Act. The rights and obligations are only acquired or accrued when the documents are submitted through diplomatic channels to the Hong Kong Government. The provisional warrant is an emergency procedure that only preserves the position pending receipt of the appropriate documents from the respondent within the time limited by Article VIII(2). When the documents are received, the proceedings under the provisional warrant fall away. I therefore accept Mr Nicholls' submission that those proceedings are quite separate from the subsequent proceedings following the requisition from the respondent. The proceedings after the repeal of the Act of 1870 should therefore have been taken under the Act of 1989. As a result the order of the Governor made under the 1870 Act was unlawful. Further the magistrate was in error by proceeding under that Act so that all the subsequent proceedings including the warrants of committal are a nullity. Under these circumstances the court has no power to correct the error that has been made. The applicant is therefore entitled to the writ of habeas corpus.