FUNG CHUEN KAN v. THE GOVERNMENT OF UNITED STATES

HEADNOTE

Habeas Corpus - Extradition - Warrant of Committal - whether duly authenticated - Joint Warrant - duty on . magistrate to analyse evidence where two apparently similar conspiracy charges - duty to consider case against different defendants separately - conspiracy must have moved from negotiation to agreement.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. These are two applications for 'habeas corpus' which with the consent of the parties I have heard together. They raise precisely the same points and the submissions of Mr. Sedgwich Q.C. from Cho Ming Lok (Cho) are supported by Mr. Poll for Fung Chuen Kan (Kan).

2. Warrants of arrest were issued out of the United States District Court for the Southern District of New York on March 6th 1991 to arrest the applicants. The charges were said to be "Conspiracy to import and distribute heroin". Cho's warrant alleges two violations of the United States Code but the indictment handed down by the Grand Jury (91 Cr 551) only charges a violation of s. 846 of Title 21 (this is an attempt or conspiracy to violate s. 841 - manufacture or distribution of heroin). It is important, in view of the submissions, to understand the distinction between what appears to be similar conspiracies as translated into Hong Kong crimes. Count 3 of the American Indictment particularizes by way of "Overt Acts" that:-

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

3. There then follows other overt acts.

4. An order to proceed was sealed by the Governor on July 11th 1991. The crimes charged are:-

Crime 1

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

Crime 2

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

Crime 3

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

8. Trafficking is defined in s. 2 and covers a variety of acts in relation to dangerous drugs.

9. A hearing took place before Mr. Wright at the Eastern Magistracy on September 6th 1991 and a warrant of committal was issued which is said to justify the return to the writ.

10. Before I turn to counsel's submissions, three principles must be borne in mind. First, although extradition crimes must always be set out, it is clear from the Treaty that it is the facts of the crimes which have to be considered - see Article VII (2)(b).

11. Roberts C.J. in Levy v. Attorney-General (1981) HKLR 777 at 779 said

"   It is therefore the conduct established by the evidence placed before the magistrate which is the crucial factor throughout extradition proceedings.

     It is that conduct which the Governor considers when he decides whether to make an order requiring the magistrate to issue his warrant for the apprehension of the accused person. It is that conduct which the magistrate considers when deciding whether there is prima facie evidence that the crime specified in the Governor's order would have been committed if it had taken place within the jurisdiction. It is in respect of that conduct that the magistrate makes an order of committal, if he is satisfied that there is prima facie evidence of the offence specified in the Governor's order."

12. Secondly, the court's role in a 'habeas corpus' arising from an extradition hearing is somewhat limited. It does not act in an appellate capacity - it cannot retry or rehear the case. As Lord Reid said in Armah v. Government of Ghana (1968) AC 192:-

"The court does not hear the case by way of appeal so as to reverse the magistrate's decision on fact or alter a discretion properly exercised."

13. Lloyd L.J. in ex p. Osman (No 3) (1989) 3 AER 701 succinctly stated the court's role when he said it must consider ''whether there was evidence on which a reasonable magistrate properly directing himself in law, could commit". (underlining mine.)

14. Thirdly, although extradition proceedings do not determine the guilt or innocence of a defendant and they are conducted within the confines of the scheme of extradition, nevertheless the evidence must be closely examined, as must relevant legal principles, to see whether a 'prima facie' case has been made out. In one sense such proceedings are "unfair" because there is no right to cross-examine a deponent and Article XI of the Bill of Rights does not apply (see Ng Hung Yiu v. U.S.A. Government M.P. 2007/92), but the hearing must have all the semblance of fairness as in a trial. Each defendant and each crime must be examined separately and the appearance must not be given that if there is a large bundle of papers from the U.S.A. then there must be sufficient evidence.

15. I have not been assisted in this case by the magistrate's approach. First of all, although it was made clear by Fuad V-P in Choi Sze Yuen v. The Government of United States of America CA 9092, that applications for 'habeas corpus' by more than one person involving the same papers and issues should be heard by the same judge who decides whether he hears them together or one after the other, it is wrong for a magistrate to hear committal proceedings for two persons and deal with the issues and evidence all put together. There were separate warrants of arrest and although the facts of one charge appear to be similar, the first applicant Kan faced three crimes whereas the second applicant faced only one crime. These men were given the assistance of a duty lawyer; it appears that points which could have been taken in relation to these two were not taken. Now I have had the benefit of hearing Mr^. Sedgwick, Q.C. and Mr. Michael Poll addressing argument to the court on matters of law. It must be remembered that even those who are said to be major drug traffickers are entitled in Hong Kong to have matters dealt with properly and fairly at extradition proceedings. Even though there is a duty lawyer, the magistrate must address his mind to all the relevant factors.

16. I do not know how long the hearing took. It apparently occurred on one day; there was a large amount of documents and oral evidence was given. I note from the record that there was some constraint as to time because the magistrate was proceeding on leave that day. At the conclusion the record states simply:

"Court: I am satisfied that the affidavits may be properly admitted in evidence and that they disclose a prima facie case for the Respondents to answer."

17. There is no differentiation or distinction between either of these applicants. Furthermore, there does not appear to have been a separate consideration given to the charges. The magistrate later says:-

"In the circumstances I am satisfied that it is proper for me to make an order that the Respondents be extradited to the U.S. on the three charges set forth in the Order To Proceed."

18. That is wrong because one of the men faced only one charge. I note that the bundle of papers concerning Cho contains a large quantity of irrelevant and inadmissible evidence relating to Kan. For this type of case, involving serious crimes with substantial punishment which can be imposed by the requesting state, a proper critical analysis should be made of the evidence.

19. The magistrate signed a warrant for committal for both persons. That is a demonstration that everything was being considered together. If there are extradition proceedings against two persons facing different charges, in my judgment, although the evidence can be heard together, the considerations and the decisions must be separate.

20. I would like to say at the outset that I am very grateful to counsel for their assistance, in particular to Mr. Harris and his department. They always prepare for the judge in these cases substantial written submissions with a large number of authorities. I do wish to acknowledge the care which the Attorney-General's Chambers take when there is a 'habeas corpus' hearing arising from extradition proceedings.

21. Mr. Sedgwick takes two points concerning the formalities of the warrant and submits there is no 'prima facie' case on crime 3. These are the same as taken by Mr. Poll. First, it is said that the warrant of arrest was not properly authenticated and the signature of the clerk was not an authenticated signature, and it did not appear as though the document was embossed with the seal of the court. I have examined the original, it is embossed, although it may well be that the particular court would be better served by getting a new machine which creates the embossment.

22. There is no doubt the production of the duly authenticated warrant is a condition precedent to the magistrate committing a fugitive, see Section 7 to the First Schedule to the 1989 Act and Article VII of the Treaty:-

"5. The warrant of arrest ..., or any certified copy thereof shall be received in evidence in any proceeding for extradition:-

(a) if it is authenticated ... 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."

23. In my judgment, these warrants of arrest have been properly authenticated; they are sworn to by Karen Patton, an Assistant U.S. Attorney, to be true and correct copies of the warrants issued by the District Court judge in America. They are certified to be a true copy by a deputy clerk and under the seal of the court, appears the words "A true copy, United States Magistrate for the Southern District of New York", then a signature. Patton swears that the Clerk of the Court and his deputies are officers of the court and are authorized to certify as true and accurate copies of warrants of arrest. They are certified by Drew Arena, Director of the Office of International Affairs, Criminal Division of the U.S. Department of Justice as a true and correct copy of the warrant of arrest. Drew Arena's status is itself certified by the Attorney General of the United States, Mr. Dick Thornburgh and this method of certification has been accepted before by the courts. I am satisfied that these warrants have been duly authenticated and sealed.

24. The second point is that the warrant of committal is defective because it is a joint warrant. There is no separate warrant of committal for each applicant. This point has not arisen before as far as counsel's researches have shown. However, it is clear in my judgment that, generally speaking, warrants which are issued should be in an individual name; for example, a.warrant of arrest which is made as a result of a judge's order, or of a magistrate's order is addressed to one person because the police officer, goes up to the particular person requires his name and he is arrested. Similarly, warrants of committal which are issued out of the court for contempt of court, in my experience, have been issued always in one person's name. I am grateful to counsel for bringing to my attention the 1849 Poor Rate Act, where it would appear that the common law position of only one "warrant of commitment" being issued by justices against one person was preserved - see s. IV. I confess that this is an unusual matter, because when I turn to the warrant of committal the magistrate appears to have committed them both on three crimes, whereas, as I have said, only one crime relates to two of them, the other two crimes relating to Kan. In my judgment, the procedure adopted was wrong. There should be separate warrants. That error however does not invalidate this warrant of committal. I consider it should not have happened, but the names of the persons are properly set out and the crimes do encompass the particular person. On this point, I would not have granted any relief to either of these applicants.

25. I turn then to the last matter which does not appear to have been considered by the magistrate at all. Submissions were not made to him, but it was still necessary for him to consider whether there was a 'prima facie' case for each defendant on each crime. The list of crimes are translated from the American indictment. It can be seen that Kan is facing in crime 1 the same charge (albeit there is one additional named conspirator) as in crime 3. That should have immediately made the magistrate realize that there could be either interwoven conspiracies or separate conspiracies arising from different facts. When, therefore, the evidence in the case is examined it must be with the background that the American indictment sets out a number of individual acts charged as overt acts in relation to all three crimes.

26. A brief recital of the facts will demonstrate the unusual complex circumstances which occurred. There was a drug dealer in Hong Kong who decided to cooperate with the American Authorities, the Drug Enforcement Agency, by giving information regarding major traffickers. He said that there was substantial money laundering activities being carried on in Hong Kong by Kan and Cho, and the Narcotics Bureau and the DEA mounted a two-month investigation and surveillance operation into these matters.

27. Kan had a problem in that he had approximately $500,000 US dollars that he held in America as a result of major drug trafficking, but this money could not be transferred to Hong Kong in an expeditious or safe manner. (There is in America a restriction on the export of US dollars without the appropriate licence.) So he wished to utilize the undercover agent to get the money into Hong Kong. There were meetings between the Narcotics Bureau in Hong Kong and agents both in Hong Kong and New York to make arrangements to get $500,000.00 into Hong Kong. On November 30th 1990 there was a meeting at the coffee shop in the Nikko Hotel in Tsim Sha Tsui, where a surveillance operation was mounted so everything could be heard. Kan was introduced to the undercover agent, Ma, who is a United States citizen, who pretended to be a major drug dealer himself and he was said to be the man who would facilitate the transfer of the money from New York to Hong Kong. He also represented that he wished to purchase substantial quantities of heroin which he understood were being stored in New York, and over which Kan had control with his associates. Kan stated that he had between 30 and 70 units of heroin, (a unit is 700 grammes) which were part of a recent 100 unit importation, but it had been distributed. He "offered to sell the heroin from another shipment". The undercover agent said that he wanted to purchase a substantial quantity and they then went to the Toh Lee Restaurant. Kan then said that he had 100 units of heroin, in addition to the other units which he had just imported into New York, and he said that he would sell 30 units of the heroin to Ma. "We then discussed the terms of the heroin purchase."

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

29. In the Volvo Nightclub, after the restaurant, the applicant Cho was introduced to the undercover agent and also the informant who, as I have said, was himself a drug dealer. There was discussion about the transfer of $500,000.00 which continued in a restaurant. The next day the undercover agent went to see Kan in Room 1130 of the Nikko Hotel and he took with him US$450,000.00 in cash which was the US$500,000.00 less a percentage commission which had been agreed for laundering the money. This money had been supplied by American agents. The money was apparently spread out all over the bed. Cho came into the room and obviously was well able to see this very large quantity of money on the bed. Ma then said that there was discussion about the 30 units heroin transaction and Kan and Cho "agreed to supply me with the 30 units of heroin out of a large shipment of 100 that was in New York, with payment to be made in Canada. I suggested that payment be made in Hong Kong. Cho replied that he would check with his associate whom he said was a Japanese woman."

30. I have no doubt, whatsoever, that Cho is well versed in drug matters. He may well be an international drug trafficker, but I would be failing in my duty were I to approach this case on any basis, other than one of law. It.is easy to say a person should be extradited to America and let the American Authorities deal with him. That, in my judgment, is a wrong approach. The principle is that committal only occurs on a factual 'prima facie' basis according to the legal concepts of conspiracy. This principle is much more important than any particular case.

31. There was another meeting on December 3rd at the Nikko Hotel. Cho said that he could not finalize plans concerning the place of payment until he spoke to his associate. When Kan came into the coffee shop in the Nikko, and when they were all there together, Cho and Kan said they had transferred some of the laundered money to a Japanese woman in Bangkok to facilitate a 10 to 12 shipment of heroin. As I have said, I have no doubt at all that Cho is 'prima facie' guilty, if he is guilty of anything, of being a general dealer in drugs. That, however, is not what he is charged with; he is charged with a specific conspiracy and the only evidence of that conspiracy is loose drug talk on December 1st. There was no price set out. There were no dates set out. There were no details of delivery. It is all in very vague terms. The offence of conspiracy is well-known to the law. The prosecution has to prove not only that there was an agreement between the alleged conspirators to carry out an unlawful purpose, but also an intention in the mind of any alleged conspirator to carry out that unlawful purpose. An agreement in the sense of one required by the law of contract is not necessary, but the parties must have reached a decision to carry out the unlawful object. There must be evidence which shows that the parties have moved beyond the stage of negotiation to one of decision (See e.g. R v. Walker (1962) Crim. L.R. 458). Normally this is done by showing that the parties have done or said things in pursuit of some common objective which demonstrate that they were acting by virtue of a prior agreement. It is rare that there is evidence of the alleged agreement, but in covert operations, such as this case, evidence can be given of the actual words used. I note that the conversations in Hong Kong were taped. The U.S.A. Government could have exhibited those tapes, but they declined to do so. The only words therefore that have to be examined are those contained in Ma's affidavit. As long as there is a decision it does not matter that one or more conditions have not been finalized.

32. As was said by Macdougall J. (as he then was) in Cho Campo (1985) 503 Cr. Appeals "an agreement is no less an agreement simply because it is hatched with conditions". When his very clear Judgment is read, and the facts he was dealing with examined, the Judge was using the word "agreement" as meaning something which had passed from negotiation to decision, albeit with some unresolved conditions.

33. When one analyses the evidence here it is apparent that there were a variety of offers to supply. On December 4th, there was a further discussion about this purchase of 30 units. At the same meeting, Cho said that the Japanese lady in Bangkok agreed to advance 30 units out of 170 units. The later discussions as to the 30 units (New York supply) indicates that on December 1st there was no conspiracy in law.

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

35. It must also be noted that Cho disappears from the scene from December 12th and the last recorded facts - see paras. 13 and 14 about a "30 unit shipment" on December 12th relate to an "advance" of 30 units of a 170 unit shipment to New York. This is wholly different from the charged conspiracy of a supply of 30 units from New York. These facts demonstrate that there was another potential conspiracy in being and, if read quickly or without due appreciation of what was occurring, might make a reader consider that all this drug talk could be put together. The cardinal rules of evidence which do not appear to have been borne in mind are :-

(i) The facts of the money laundering of US$500,000 are irrelevant, and for the charged conspiracy inadmissible.

(iii) Although acts and declarations of one conspirator are evidence against the others, they must be in furtherance of the conspiracy. Here, that means a concluded agreement to supply 30 units out of 100 held in New York - not in furtherance of other potential conspiracies.

36. I can find no legitimate evidence against Cho from December 4th and there are no overt acts, as Hong Kong law understands this phrase, by Cho or by Kan. There is no supply, no attempt to supply, nor even arrangements to supply. That in itself may be inconclusive, but there is nothing said or done by Cho or Kan after December 4th from which a jury could infer that there had been a prior concluded conspiracy. I have in the last few years dealt with a large number of U.S.A. related drug cases whether in 'habeas corpus' proceedings, or at trials where the undercover agent comes and gives evidence, and I have not seen evidence of this general nature which is said to justify a 'prima facie' case of a specific conspiracy. It gives me no pleasure to reach my decision as there is ample evidence against Cho of involvement in the drug trade, knowledge of drug dealing and the supply of drugs from Bangkok, but I must restrict myself to the correct legal principles, otherwise the safeguards given to a citizen, even a drug dealer, are set at nought.

37. Mr. Sedgwick submits there is no 'prima facie' case on the specific charge of conspiracy and I agree.

38. As far as Crimes 1 and 2 are concerned, Mr. Poll accepts that there is a 'prima facie' case against Kan relating, at the least, to a conspiracy to supply approximately 16 kgs of heroin and an actual supply in January 1991 of that heroin. The evidence demonstrates that there was a "decision" to supply and it is of interest to compare the facts supporting Crimes 1 and 2 to those which are said to support Crime 3.

39. I would also like to draw the attention of the legislature in Hong Kong, to the fact that there is no provision in Hong Kong for the retention in custody of a person released by 'habeas corpus', arising out of extradition proceedings, pending an appeal. In England, there is such a statutory provision. Judges should recognise they may be wrong and the freeing of persons awaiting extradition before an appeal can be considered by the Court of Appeal offends the underlying principle of comity between nations.

40. As far as Kan is concerned, the evidence against him on crime 3 is as tenuous. I quash crime 3 and he is committed to U.S.A. to face criminal proceedings on crimes 1 and 2. Cho's application is successful and he must be released.