WONG SHU KWAN, JOHNNY v. THE GOVERNMENT OF CANADA AND ANOTHER

HCAL135/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 135 OF 2000

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J U D G M E N T

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Introduction

1. This is an application for a writ of habeas corpus. The Canadian authorities have sought the applicant's return to Canada where a warrant has been issued for his arrest for offences of murder and conspiracy to murder his wife, Maria Wong, who was killed in Toronto on 11 February 1999. The applicant was arrested in Hong Kong on 31 August 1999 pursuant to a provisional warrant.

2. On 17 March 2000, the matter came before me on an application which I treated as an application for the issue of a writ of habeas corpus. The case was presented then in a way which demonstrated some lack of understanding about habeas corpus procedure and about the issues relevant for a court to address upon such an application. It was impossible to say whether there was an arguable case, so I adjourned the ex parte application to enable the applicant to renew his application to serve such papers as were necessary to raise an arguable case, if one existed, and to state to the court precisely what was unlawful about the magistrate's order to commit.

3. Nothing happened. The applicant took no steps to revive the matter, no new papers were presented, and so I caused the matter to be brought back to court on 12 June 2000 when such explanations as were advanced for inactivity were entirely unsatisfactory. So I ordered the application to be adjourned on notice to the respondents until today for full argument on the substantive application. I set out the history in case there be any subsequent issue about the length of time this applicant has been in custody awaiting determination of this application for a writ of habeas corpus.

4. The authority to proceed in this case is dated 27 October 1999 and it reads as follows :

" A Request for Surrender having been received from Canada for the surrender of Johnny WONG Shu-kwan, who is wanted in the said place for prosecution in respect of the offences of murder and conspiracy to murder.

I hereby order that the said person be dealt with under Part II of the Fugitive Offenders Ordinance, Cap.503."

The authority is signed by the Chief Executive.

5. I pause to comment that it is typical of the preparation of this case that I have had to find the authority to proceed in the respondents' papers. It is still not in the bundle prepared by the applicant's solicitors. Neither is the Committal Order. That is because no bundle has been prepared by those acting for the applicant. I had even to extract the magistrate's ruling from an affirmation by the applicant, which affirmation was not in any bundle but on the court file.

6. There was a four-day hearing before the magistrate and on 24 February 2000 he issued his committal order. It reads :

" Pursuant to section 10(6)(b) of the Fugitive Offenders Ordinance, Chapter 503, Laws of Hong Kong, I hereby order WONG Shu Kwan, Johnny, to be committed to custody:-

(a) in respect of the following offences:

(i) Murder and

(ii) Conspiracy to murder

(b) to await the Chief Executive's decision as to his surrender, in respect of those offences to the prescribed place, Canada, by which the request for surrender in respect of the person was made; and

(c) if the Chief Executive decides that he shall be surrendered to that place, to await such surrender."

Section 10

7. Section 10 of the Fugitive Offenders Ordinance, Cap.503 prescribes the conditions precedent to the making of a committal order. Section 10(6)(b) in so far as is relevant provides as follows :

"(6) Where -

...

(b) an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied -

(i) that the offence to which the authority relates is a relevant offence;

(ii) that the supporting documents in relation to the offence -

(A) have been produced; and

(B) are duly authenticated;

(iii) where the person is wanted for prosecution in respect of the offence, that the evidence in relation to the offence would be sufficient to warrant the person's committal for trial according to the Law of Hong Kong if the offence had been committed within the jurisdiction of that court or any other court; and

(iv) ...

the court shall (unless the person's committal is prohibited by any other provision of this Ordinance) by order commit him to custody -

(i) to await the Chief Executive's decision as to his surrender to the prescribed place by which the request for surrender concerned was made; and

(ii) if the Chief Executive decides that he shall be surrendered to that place, to await such surrender."

There is no question in this case but that the offences to which the authority relates are relevant offences within the meaning ascribed to that term by the Ordinance, and it is accepted that the supporting documents are properly authenticated.

The issues

8. The only issue is whether the evidence before the magistrate was sufficient to warrant the applicant's committal for trial had the offence been committed or allegedly committed within Hong Kong's jurisdiction.

9. The complaints are these :

(1) that hearsay evidence was admitted which ought not to have been;

(2) that there was weak identification evidence which ought to have resulted in a refusal to make the committal order; and

(3) that the only evidence then admissible against the applicant was of innocent association.

I turn first to the question of hearsay evidence.

The alleged facts

10. The skeleton argument recited much law about hearsay evidence and in so far as identifying the evidence said to have been inadmissible said only this :

"It is submitted that the learned magistrate erred in failing to exclude from his consideration blatant repetition of others' speeches which were intended to be relied upon as truth."

Before canvassing this question of hearsay evidence, it is as well to say something about the nature of the case. The facts alleged by the requesting jurisdiction are broadly that the applicant lived with his wife Maria Wong at 178 Raymerville Drive, Markham, a suburb of Toronto. He lived there with his elderly father and a cousin. He managed a restaurant called the Century Palace, and had an interest in a business called Champions Off-Track Betting ("Champions"). At Champions, there worked one Andre Jones ("Jones") with whom the applicant was familiar. Jones had a close friend James Pierce ("Pierce"). They knew two men called Figueroa and Ortiz. Pierce had a girlfriend called Lisa Bateman ("Bateman"). These are the central characters in the case as it is put by the requesting jurisdiction.

11. The late Mrs Wong worked as a librarian in the Unionville Library. She died in the garage of her home on 11 February 1999. She had been stabbed to death. The case is that between 14 January 1999 and 11 February 1999, the applicant made frequent telephone contacts with Jones. There had been no contact of that kind previously, and has been none since. The evidence is that on the afternoon of 11 February 1999, Pierce and Bateman and Figueroa and Ortiz and another drove to the Unionville Library. Mrs Wong left and they followed her home. At this time, according to the evidence, Pierce telephoned Jones telling him to inform the husband that they wanted "to do it" that night, and that they knew where she lived. Shortly after, there was a very short call from Jones to the applicant's mobile phone, and then a call from the Century Palace Restaurant to Jones; then a call from Jones to Pierce and then a call from the applicant to his home. The wife left her home to go to a store. There is evidence of a call from the restaurant to Jones. There is evidence of the call between Jones and Pierce and of a call then from Jones to the applicant, and a series of such calls between these personalities in the hour or so following. The wife returned from the store. Figueroa and Ortiz had disembarked Pierce's vehicle. It is said that Pierce telephoned them to tell them of the wife's return. When she left her vehicle at the garage of her home, she was attacked and killed. Ortiz took her vehicle and abandoned it nearby supposedly to give the impression that there had been a robbery. Pierce and Bateman fetched the three attackers. Ortiz was covered with blood, and said that he had stabbed the lady in the neck. There was a discussion between Pierce and the killers about the money that they were to be paid.

12. There was also evidence that the applicant was heavily in debt. The matrimonial home in the deceased's name was mortgaged, but a mortgage insurance policy would effect payment of the outstanding balance upon her death. She had two life insurance policies in respect of which the applicant is said to have been a beneficiary to the tune of CAN$100,000.

Ms Bateman's evidence

13. The key evidence upon which Mr Yeung concentrates is that of Bateman. She speaks of the hire of the vehicle in early 1999 by Pierce, a vehicle that was returned on 14 February. She describes the picking up of the three men in Pierce's vehicle, the fact that he, as well as one of the others, had a cellular telephone, of the drive to the library. And then there was a conversation about killing a woman in the parking lot of the library. They tried to catch her there, according to this evidence, but she went into her car before they caught her. They followed her to her home in Raymerville Drive. They said they wanted to kill her that night. Pierce called Jones and said he wanted him to call the husband to say that they were doing it that night; they knew where she lived.

14. Pierce and Bateman, according to this evidence, dropped off the three men and there was a call from Jones to Pierce and Pierce told Bateman that the husband agreed to have it done at the house and the husband was going to send her out to a store and they waited for her to return from the store. Then she said this :

"She drove by where we were waiting. She was driving a jeep and it was red. It was burgundy red with, I believe silver grey around it."

Pierce, according to this evidence, called the others to signal the woman's return. Bateman described arrangements to fetch the killers at designated spots after the killing, and the fact that they were picked up. One of them had blood all over him, and he described the murder. He said that they had taken her jeep. And then she described how they dropped off the men.

15. She spoke also in her evidence of post-killing events, the disposal of a knife by Pierce, the burning of clothes and of the meeting between Pierce and Jones when Pierce said that the husband wanted his wife murdered and there was a lot of money involved. Jones handed Pierce money. Amongst the copious evidence is evidence of the discovery of the deceased on her garage floor at about 10:20 p.m. that evening. There is evidence that the deceased's vehicle was a green Honda. There is evidence of debts in excess of CAN$100,000 and a mortgage debt of CAN$210,000; there is evidence suggesting that the applicant behaved in an unusually restless manner on the evening of 11 February. There is very detailed evidence of a series of telephone calls made by and between the central characters, including calls by the applicant on the evening of and just before the killing. There is also evidence of the applicant's relationship with Jones.

Primary facts and inferences

16. The case of the requesting government is that the evidence against the applicant is largely circumstantial, the inference of complicity in the planning and execution of the wife's murder to be drawn from a series of factors, including the following :

(1) The person killed was the applicant's wife.

(2) She worked at the Unionville Library and the killers went that evening to the Unionville Library to wait for a woman who worked there in order to kill her. The husband, better than anyone, would know where at any time she might be found and what she looked like.

(3) The people following her were in contact with Jones. Payment was in due course made by Jones to one of the killers. Jones was making calls and receiving calls at and shortly before the killing to and from the killers. Jones was well acquainted with the husband. He worked in the same building as the applicant - indeed in the same building in which the applicant was that night, and the applicant had an interest in the business where Jones worked.

(4) There were frequent telephone calls between the applicant and Jones that evening. There was also a call from the applicant to his wife and then immediately afterwards to Jones from the applicant just before his wife went out.

(5) There was evidence that the killers asked Jones to contact the husband for authority to do the killing that night. This is said to be inadmissible. I shall return to it.

(6) A suggested lie by the applicant as to where he was that evening. He had, in fact, left the restaurant and gone at one stage to Champions where Jones worked.

(7) The fact that the husband was in debt and stood to gain financially from the wife's death.

Hearsay

17. I turn to the objection in relation to hearsay evidence. It is common ground that, as a matter of law, the fact that proceedings are extradition proceedings does not permit the admission of evidence which in domestic proceedings would be inadmissible. The question is whether inadmissible evidence has been admitted and, if so, its relevance and impact.

18. Mr Yeung, in his address to me today, objected to the following evidence which is to be found at paragraphs 23 and 25 of Bateman's affidavit. Paragraph 23 reads :

"James Pierce and the Spanish guys were talking. They wanted it done that night. They didn't want to wait any more. The Spanish guys told James Pierce to call his cousin, to call the husband, because they wanted it done right away. The person I referred to as the husband I came to know is Johnny Wong."

Paragraph 25 reads :

"James Pierce called Andre. I was there and could hear him talking on his cellular phone. James Pierce said to Andre he (James Pierce) just wanted him (Andre) to call the husband and tell the husband that they wanted it done that night, and he (James Pierce) said 'You get in contact with him and tell him that we're doing it tonight. We know where she lives now'. I heard James Pierce say this on his cellular phone."

I should say that Andre is a reference to Jones.

19. The principle is that acts and declarations of a conspirator may be given in evidence against any other conspirator if the act or declaration is in furtherance of the conspiracy. There must first, however, be prima facie evidence that the defendant, or in this case, the applicant (as the case may be), was party to the conspiracy, and that evidence must be independent of the acts and declarations under challenge. The rationale for this requirement is that proof of the existence of the conspiracy is proof of authorization to the declarant to speak in furtherance of the conspiracy. In my judgment, there was before the magistrate such prima facie evidence, constituted by the evidence to which I have referred - the applicant's close association with Jones, his calls to and from Jones on the night of the killing, the fact that such calls ceased immediately after the killing, his behaviour on the night of the killing, his indebtedness, and the lie about leaving the restaurant that night.

20. The question in each instance is whether a statement made by one conspirator is one that tends to advance the common purpose. If it is mere narrative, then unless the narrative is in furtherance of the common purpose, it is not admissible. When information about progress of the conspiracy is imparted in circumstances which show that it is imparted as part of the planning and in order to carry the conspiracy to the next stage, the evidence is admissible (see United States v. Paone 782 F 2d 386, (2nd Circ.)).

21. The two passages about which Mr Yeung complains were, in my judgment, admissible as being statements clearly made in furtherance of the conspiracy. The sentence "The person I referred to as the husband I came to know as Johnny Wong" is not admissible to establish the identity of the husband.

22. There are other passages which under the rules to which I have referred were not admissible to establish the truth of comments as against the applicant. These passages were a comment by Pierce to Bateman whilst waiting in the car for the killing to be carried out that Jones had told him that the husband agreed to have it done, and that the husband was going to send her out to the store. This was not said in furtherance of the conspiracy. There is also evidence of comments three days after the killing where Jones told Pierce, whilst paying him, that the husband wanted the wife murdered. Mr Blanchflower says that these comments were not led as evidence of their truth, although it is difficult, as to the latter piece of evidence in particular, to see why else it would be led. The question, however, is whether any of this renders the committal order unlawful. I am told by Mr Blanchflower that there was no specific objection during this four-day hearing to the admissibility of any specific passage of Bateman's evidence. The magistrate was simply asked to keep in mind the rule against hearsay when he considered the evidence. Mr Yeung says that he asked the magistrate to exclude this evidence and the magistrate did not decline to do so. Then Mr Yeung said to me that the magistrate's attention was drawn to hearsay evidence, and he was asked to bear it in mind. I have no reason to suppose that the magistrate did not bear it in mind, and it is evident that the evidence upon which the magistrate specifically relied for his finding that there was sufficient to amount to a prima facie case did not include the evidence now challenged. The magistrate said this :

" I am required to consider whether, if this evidence stood alone at trial, a reasonable jury properly directed could accept it and find a verdict of guilty. The Government of Canada say that in this case, on the evidence provided by them, there is circumstantial evidence from which a jury could draw irresistible inferences of the guilt of Mr Wong in relation to each relevant offence.

....

The evidence produced by the Government of Canada shows the murder of Maria Wong to have been planned. The evidence of Liza Bateman, who was present in the car with the killers, her evidence establishes Jones, Pierce, Ortiz and Figueroa participated. The murder was originally planned to be carried out in the Unionville Library on the evening of 11 February 1999. This shows that these killers were privy to detailed information about Maria Wong, including her scheduled appearance and the car she was driving.

This evidence must be taken together with the telephone pager connections established between Wong/Jones and Jones, Pierce and Figueroa. The telephone traffic is set out in the papers. The telephone connections between Wong and Jones originate from 14 January to 11 February.

An analysis of these telephone contacts between Pierce, Jones and Wong on the material date, 11 February 1999, considering their timing, duration, together with Bateman's evidence, is evidence from which the irresistible inference can be drawn that Mr Wong was involved not only in the planning of the murder but also in its detailed timing, location and execution, especially in respect of the need to get Mrs Maria Wong out of the house so that she could be murdered.

I do consider on this and the other evidence produced that a prima facie case exists in relation to both offences set out in the authority to proceed."

23. It is clear that there was much evidence upon which the magistrate relied for his conclusion and to which he specifically refers for his conclusion, and there is no specific reference to any of this evidence suggested to be hearsay.

24. Mr Yeung says that without the inadmissible hearsay evidence, there is insufficient to link the applicant to the murder. As I say, not all of the hearsay evidence is inadmissible. But taking out the declarations made to Bateman or in her presence that seems to me to be inadmissible, if adduced as evidence of the truthful content, there is in my judgment ample evidence to warrant, and to have warranted, a finding by the magistrate of a prima facie case. It is the evidence to which the magistrate expressly referred. There is in the result nothing in this point.

The identification point

25. The second ground is put thus in the skeleton argument :

"When there is a weakness in identification which would justify a judge's withdrawal of the case from the consideration of the jury in a criminal trial, would such a weakness justify a magistrate's refusal to make an order of committal?"

Mr Yeung says that the answer is 'no'. The point arises in this way. At paragraph 33 of her affidavit, Bateman said that the vehicle they saw driving by, when they were waiting for the lady they were to kill to return to her home in Raymerville Drive, was a red jeep; but it is common ground that Mrs Wong's car was green (although I note that it is described by a police officer's evidence as a jeep, or in the style of a jeep). It follows, says Mr Yeung, that the killers were targeting someone else's wife, not Mrs Wong, someone who drove a red vehicle, and that in error they killed Mrs Wong. In other words, they identified a lady in the red car and when they saw Mrs Wong at her garage, they thought that she was the lady who had been in the red car. This is part of the problem with identification in criminal cases, says Mr Yeung, he drawing my attention to the Turnbull principles in consequence of which dangers, he says, the magistrate should have thrown out the whole case.

26. This is, I think, a rather difficult submission to sustain. The essential points are these : the magistrate had the point well in mind. He said :

" I did bear in mind the reference made to paragraph 33 of Bateman's affidavit by Mr Yeung in his submission which identified the victim's car as being a red jeep, whereas other evidence showed that Maria Wong's car was a green Honda CRV. This does not justify rejecting or eliminating the other evidence which went to show that Maria Wong was the target and subsequent victim of this planned murder, as was submitted by Mr Yeung."

The magistrate was fully entitled to take that view.

27. That, it would seem to me, should suffice to dispose of the point. But one might add that there was evidence of Bateman that they followed the lady to be killed from the library to her actual house in Raymerville Drive. It was, according to the evidence, the very fact that the actual house was located that prompted calls to the husband for permission to kill her at the house. Bateman subsequently took the police on the route that had been taken to the house. The theory postulated by Mr Yeung supposes that the killers not only misidentified the victim, but went to a house different from the one to which they had followed the victim earlier in the evening, and had seen a victim emerge from a green vehicle whereas the car that they had followed must have been red. This was a winter night in Toronto, and to suggest that this identification by Bateman of the colour of the car is of such weight as to undo the requesting authorities' case when all that is required is prima facie evidence of the offences, is a suggestion which, in my judgment, can hold no water at all. The point fails.

Innocent association

28. The third point is that there was evidence from the applicant of innocent association with Jones and that it was the only evidence of communication or association with Jones. The problem with this point is that there was no such evidence before the magistrate. It is evidence that the applicant has filed in these proceedings. Accordingly, the point is a non-starter.

Murder and conspiracy

29. I note also a suggestion in the skeleton argument, not advanced orally before me today, that there is no evidence anyway of complicity by the applicant in the crime of murder; merely, at its highest, of conspiracy to murder. I do not agree. There is evidence from which inferences may be drawn that the applicant was directing the killers to their task and luring his wife out of the house to be killed; and if these are inferences which may be drawn, then there is prima facie evidence of him being party to the killing.

Conclusion

30. The task of the magistrate was merely to determine whether there was a prima facie case, a case which would warrant committal for trial in this jurisdiction had the alleged offences taken place here. In my judgment, he was perfectly entitled to come to the conclusions at which he arrived; and the committal order he made was lawful. Accordingly, this application for a writ of habeas corpus is dismissed.

31. There will be an order that the applicant paid to the respondents their costs of and occasioned by this application for a writ of habeas corpus.