YEUNG YAN CHI v. GOVERNMENT OF THE UNITED STATES OF AMERICA

IN THE COURT OF APPEAL

1996, No 179

(Civil)

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J U D G M E N T

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Bokhary JA:

1. This appellant is being detained at the Lai Chi Kok Reception Centre pending his extradition to the United States of America. He is being so detained under a warrant of committal issued by a Magistrate on March 21 this year at the end of an extradition hearing pursuant to an amended order to proceed. The committal is in respect of six crimes. They are described thus in the warrant of committal:

"Crime 1: YEUNG Yan-chi, on unknown dates 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

Crime 2: [YEUNG], on an unknown date between [those dates] did conspire with another person or persons to kidnap JIANG Ai-Hao, also known as "Iron Balls", contrary to Common Law

Crime 3: [YEUNG], on an unknown date between [those dates] together with others, did kidnap [JIANG] contrary to Common Law

Crime 4: [YEUNG], on an unknown date or dates between [those dates] together with others, did falsely imprison [JIANG] contrary Common Law

Crime 5: [YEUNG], on an unknown date or dates between [those dates] did conspire with another person or persons to murder [JIANG] contrary to Common Law

Crime 6: [YEUNG], on an unknown date between [those dates] together with others, murdered [JIANG] contrary to Common Law within the jurisdiction of the United States of America."

2. On May 13 this year, inhabeas corpus proceedings before Sears J, the appellant challenged the lawfulness of his detention. He did so by renewing a point which he had taken without success at the extradition hearing before the Magistrate. That point, which had to do with the authentication of certain documents, did not impress Sears J either. And that challenge failed.

3. An appeal was lodged against Sears J's decision. Then Mr McCoy came into the case for the appellant. On Mr McCoy's advice, that appeal was abandoned. Also on his advice, a second writ of habeas corpus ad subjiciendum was sought.

4. It was sought for the ultimate purpose of challenging, on a fresh basis, the lawfulness of the appellant's detention. Its immediate purpose, dictated by the relevant procedure, was of course to get the appellant before the High Court and to require the person detaining him to give a lawful reason for his detention.

5. This time, the quest for the writ of habeas corpus was made ex parte on notice.

6. That was because, very properly, Mr McCoy took the view that notice was appropriate since it was the second time that the appellant was resorting to the habeas corpus jurisdiction of the High Court to challenge the lawfulness of his detention.

7. The matter came before Yeung J on June 28 this year when, after hearing both sides, he refused a writ of habeas corpus, handing down his reasons on the 5th of the following month.

8. What we have before us now is the appellant's appeal against so much of that refusal as pertains to Crimes 1 and 5.

9. The relief sought at our hands are set out thus in the Amended Notice of Appeal:

"(1) The appeal be allowed.

(2) The decision of Yeung J be set aside.

(3) The applicant be given leave to apply for a Writ of Habeas Corpus.

(4) Alternatively to (3), the applicant be released pursuant to a Writ of Habeas Corpus or that the applicant be released from the Warrant of Commitment in respect of Crimes 1 and 5 only.

(5) Costs here and below."

10. Such relief is sought on three grounds which, quoting them from the Amended Notice of Appeal, read thus:

"1. The Learned Judge erred in fact and in law in ruling that the issues and evidence did not constitute a sufficient basis for even leave to issue a Writ of Habeas Corpus ad Subjiciendum, so that the application could be summarily dismissed. The test in Ho Ming Sai v Director of Immigration [1994] 1 HKLR 21 (CA) applicable to Judicial Review applications cannot be any higher in leave for Habeas Corpus applications. The Learned Judge applied the wrong test.

2. The Magistrate's Warrant of Committal (and 2 of the Crimes set out in the Governor's Order): discloses an offence unknown to law, namely in Crime 1 and Crime 5, the offence of conspiracy to murder contrary to Common Law. Since 1865 in Hong Kong, the only offence of conspiracy to murder, is contrary to s5 of the Offences against the Persons Ordinance (Cap 212). The applicant is being unlawfully detained in respect of those 2 Crimes.

3. The Learned Judge erred in law in holding that Government of the United States of America v Jennings [1983] AC 624 was authority for finding that the offence of conspiracy to murder at Common Law still existed in Hong Kong (p 14P of the appeal bundle).

11. As this Court said in the Re Tse Sun-miu [1994] 2 HKLR 78 at p. 83:

"	Anyone who is being detained and on whose behalf a viable complaint that such detention is unlawful is made has a right to a writ of habeas corpus to get himself before the High Court and to require the person detaining him to give a lawful reason for the detention."

So the complaint must be a viable one.

12. It is urged on the applicant's behalf that the judge applied the wrong test. I disagree. As I see it, the judge refused a writ of habeas corpus purely because he took the view that the complaint made against the lawfulness of the appellant's detention was not a viable complaint.

13. The appellant's complaint has contracted since it was first made. The affirmation made by the appellant for the purposes of the hearing before Yeung J indicated two points which the judge summarised thus:

"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."

14. At the hearing before the judge, Mr McCoy abandoned the second of those points.

15. And now, as we have seen, the first point itself has been reduced so as to be confined to Crimes 1 and 5 only.

16. Is the complaint - by which I mean the complaint in its present form - a viable one?

17. Conspiracy to murder is an extradition crime as between Hong Kong and the United States.

18. Let us assume that although conspiracy to murder was originally an offence at common law, it was at all times material to the present case an exclusively statutory offence.

19. What conceivable difference could that make to the present case?

20. There is no suggestion that the ingredients of common law conspiracy to murder and those of statutory conspiracy murder are in any way different in regard to the conduct alleged against the appellant.

21. It matters not that the section containing the statutory offence deals with some matters beyond the offence of conspiracy to commit murder, which is what the appellant is facing.

22. What is vital is that (as Mustill LJ put it in Re Stephen Treitz , December 20, 1985, (unreported) at p.17E) that there be "no doubt as to the precise nature of the offence on which [the appellant] was to be charged." And (as Woolf LJ put it in Re Naghdi [1990] 1WLR 317 at p. 322D) what is "essential" is:

"that the applicant has a proper opportunity to meet the case which is being put forward for his extradition at the hearing and this involves his being informed of the necessary details of the offences in respect of which his requisition is being sought at least by the beginning of the hearing though the charges may be amended thereafter."

There is no risk of any such doubt here.

23. If a point is good, it is not to be brushed aside as a mere technicality just because it is procedural. And that is especially so when the liberty of the subject is concerned. But it is not in the true interest of liberty to give detained persons any cause to become distracted from looking for points of substance and developing any such point which they can find.

24. In my judgment, despite the able efforts of Mr McCoy and his learned junior on the appellant's behalf, it is clear beyond any reasonable argument to the contrary that the appellant has failed to put forward any viable complaint against the lawfulness of his detention. Accordingly, I would dismiss this appeal.

Godfrey JA:

25. I agree that the judge was justified in refusing, as he did, leave to issue a writ of habeas corpus in this case.

26. The question which we have to decide is whether a warrant for committal for an extradition crime is bad if it inaccurately describes that crime as "contrary to common law" when in fact the crime is one contrary, not to common law, but to statute.

27. In my judgment, it is not. All that a magistrate who is asked to make an order for committal in an extradition case is concerned with is whether the evidence before him would support committal for trial in Hong Kong if the conduct complained of had taken place in Hong Kong. There is no statutory or other requirement that the warrant of committal should identify whether the source of the crime is common law or statute. The misdescription of this unnecessary matter in the instant case could have caused no prejudice to the appellant.

28. I, too, would dismiss this appeal.

Litton V-P:

29. I also agree. The result is that this appeal is dismissed with costs.