THONGCHAI SANGUANDRIKUL v. GOVERNMENT OF THE UNITED STATES OF AMERICA AND ANOTHER

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J U D G M E N T

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Sir Derek Cons, Ag. C.J.:

1. By a warrant dated 3rd March this year Mr. A.R. Wright, a magistrate sitting in Eastern Magistracy, committed Thongchai Sanguandikul, the appellant in these proceedings, to custody pending extradition to the United States of America where he was wanted for conspiracy to traffic in dangerous drugs. The crucial evidence put against him before Mr. Wright was two affidavits by one Albert Castagnola, an accomplice to the conspiracy in question and a convicted criminal currently in prison, who had already given evidence in America against others accused of crimes connected with dangerous drugs.

2. On 26th May Kaplan, J. declined to quash the return, based on the magistrate's warrant, to a writ of habeas corpus which the appellant had obtained leave to issue. On 17th November this Court dismissed his appeal against the judge's order, saying that we would give our reasons later which we now do.

3. The appeal depended upon the submission, advanced unsuccessfully in both courts below, that in presenting their evidence in support of their request for extradition the Government of the United States of America was obliged to disclose and produce to the appellant "all relevant unused material", in particular, as set out in the amended notice of appeal:

"All previous: affidavits, depositions and written statements of Albert Castagnola germane to or impinging on his evidence in EMP 1467/91 ("the extradition hearing"), and a copy of the plea bargain agreement between the (Government of the United States of America) and Albert Castagnola including an official copy of the transcript of the trial and sentencing hearings of Albert Castagnola and any correspondence or submission made to the trial Judge by any person, not appearing on any official transcript."

4. The phrase "unused material" is taken from the guidelines issued by the Attorney General of England and Wales in December 1981, (1982) 74 Crim. App. R. 302, and followed by counsel in Hong Kong by reason of the Prosecutions Manual 1988. Mr. McCoy, who now appears for the Appellant, accepts that the notice of appeal goes beyond those guidelines, but is content to restrict his submission to matters within their limits.

5. The First Schedule to the Extradition Act 1989 contains the statutory provisions applicable to extradition in this jurisdiction. Paragraph 5 provides that:

"The magistrate shall hear the case in the same manner, and have the same jurisdiction and powers, as near as may be, as if the prisoner were brought before him charged with an indictable offence committed (in Hong Kong)".

There was some discussion before us as to whether the Attorney's guidelines were intended to be applicable in committal proceedings as such. Guideline 3(a) in particular would indicate that they were; on the other hand, the Prosecutions Manual expressly asks the reader to note that "the guidelines do not apply in the magistrates' court". We understand that, as a matter of fairness, crown counsel here usually do in fact make appropriate disclosure when the committal is resisted at that stage. However this provides no assistance, for what is fair in particular proceedings depends upon the nature of the proceedings themselves and the context in which they are held. In this respect there are significant differences between extradition and normal committal proceedings.

6. The duties of the magistrate in the latter are set out in paragraph 7(1) of the First Schedule:

"In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this Schedule) would, according to the law of (Hong Kong), justify the committal for trial of the prisoner if the crime of which he is accused had been committed in (Hong Kong), the ... magistrate shall commit him to prison, but otherwise shall order him to be discharged."

7. It may be that there is still room for further discussion as to the correct approach to evidence which is produced in justification: see the comments of Lord Goff in In re Alves, House of Lords, 20th October 1992, at p. 4 of the printed speeches. But for the moment we are content to apply, as did the House on that occasion, the approach adopted in R.v. Galbraith [1981] 73 Crim. App. R. 124 at 127 or as Lloyd, L.J. succinctly put it in R.v. Government of Pentonville Prison Ex Parte Osman [1989] 3 All ER 701 at 721:

"In our judgment it was the magistrate's duty to consider the evidence as a whole, and to reject any evidence which he considered worthless"

8. The substance of the Appellant's argument is that the magistrate cannot properly decide whether or not the evidence of a witness is worthless if he is deprived of the material necessary for that consideration.

9. Superficially it is an attractive argument, but with respect it is misconceived, for the simple reason that the magistrate has no power to order disclosure of that nature, nor any sanction to impose should an order not obeyed. Mr. McCoy accepts this, but suggests that the magistrate would be able in that instance to stay the proceedings as an abuse of the court, for if the requesting government were not required to make full disclosure of all the material available to it, it would be able to manipulate the evidence or so frame the depositions submitted as to present a completely false picture. He concedes that at the moment he has nothing at all to suggest that the Government of the United States of America has in this instance acted in that manner. But even if he had, the cases of Atkinson v. The Government of the United States of America [1971] AC 197, The Royal Government of greece v. The Governor of Brixton Ex Parte Kotronis [1971] AC 250 and R. V. Governor of Pentonville Prison Ex Parte Sinclair [1991] 2 WLR 1028 make it clear that such unfairness would, in the absence of legislation comparable to s. 11(3) of the English Act, be a matter for the executive and not for the magistrate. In Re Osman (No. 7), unreported, Queen's Bench Divisional Court 28th February 1992 Woolf, L.J. took the view, with which we respectfully agree, that this opportunity satisfied the demands of fairness in the context of extradition proceedings, albeit the point may now, in England, also be taken before the courts.

In any event much of what the appellant seeks, e.g. the transcripts of Castagnola's own sentencing proceedings and evidence which he gave on other occasions, is already available to the appellant as a matter of public record; and the appellant would have difficulty in introducing before the magistrate here statements that Castagnola had made privately to the American authorities. Normally these would be put to him by way of cross-examination, but that would not be possible in the present instance. Our attention has been drawn to In re Davies, Yu York Wen [1991] 1 HKLR 7 where in extradition proceedings an order for cross-examination of a deponent abroad was made under s. 77E of the Evidence Ordinance, Cap. 8. But the judge himself expressly indicated that it did not follow from the granting of that particular application that similar applications would be entertained and as at present advised we think it unlikely that that authority would be accepted as a precedent for similar orders. Neither can assistance be derived from alternative suggestions, namely R.v. Brown & Hadley [1867] 10 CCC 453 and s. 37 of the Evidence Ordinance. It was for these reasons that we dismissed the appeal, making it then unnecessary to consider the notice lodged by the respondents. In handing down these reasons we make an order nisi that the respondents do have their costs of the appeal.