KEN HA KHANH PHONG v. ATTORNEY GENERAL OF HONG KONG

HCMP 2765 & 2766 of 1996

H E A D N O T E

Extradition Proceedings - Alleged fugitive has no right to require cross-examination of witness supporting case for extradition, in Hong Kong or in requesting country.

Section 77E of Evidence Ordinance (Cap. 8) does not give magistrate in Extradition proceedings the power to order cross-examination of witness in requesting country or production of witness into Hong Kong for cross-examination.

Section 77E of Evidence Ordinance (Cap. 8) - High Court's power to order a letter of request to court or tribunal outside jurisdiction of Hong Kong does not apply to extradition proceedings - extradition proceedings in Hong Kong following request from another country not "any criminal proceedings instituted in Hong Kong."

Article 11(2) of the Hong Kong Bill of Rights does not apply to extradition proceedings.

Alleged fugitive in extradition proceedings has no entitlement to production/disclosure by requesting government of all other material, statements, documents etc. resulting from their investigations into offences in respect of which they seek his extradition.

HCMP 2765 & 2766 of 1996

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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R E A S O N S  F O R  J U D G M E N T

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1. There are two applications. One is for the return under a writ of Habeas Corpus seeking production of Ha Khanh Phong and his release; the other is for judicial review of an order made by the Learned Permanent Magistrate, Mr. Peter Line, at Eastern Magistracy, on the 30th July 1996, whereby he committed the Applicant in custody to await extradition to Australia. The two applications are, of course, inextricably linked and so formed the subject of one application in effect.

2. The Applicant is an Australian citizen. He was arrested in Hong Kong on the 16th February 1996 having arrived from Thailand (Bangkok). The Australian authorities seek his extradition so that he may be charged and prosecuted for an offence or offences involving a conspiracy to import drugs (heroin) into Australia.

3. The principal witness against the Applicant is an alleged accomplice by the name of Simon Leduc. Leduc's direct involvement with the Applicant is an alleged meeting in Bangkok in late September 1995. Leduc is a courier and admits having brought heroin into Australia on occasions and having assisted in its distribution in Australia. He also gave information concerning a telephone conversation with the Applicant. In serious crime of this nature there is nothing surprising that the principal perhaps even sole source of evidence against an accused is that of an accomplice. Leduc's evidence submitted in support of the extradition proceedings is in the form of an affidavit.

4. Before the learned Magistrate, Counsel for the Applicant, Mr. William Allan, who also appears before me in these proceedings, took a point on the jurat of the affidavit, arguing that because it was not specifically stated that the translation was from and to the Vietnamese language, it was defective, inadmissible and could not be received. It is clear from the body of the affidavit, and other material, that Vietnamese was Leduc's language. There is nothing in this point and wisely Mr. Allen did not pursue it before me.

5. Next he complained about the refusal of the Learned Magistrate to grant to the Applicant an adjournment in order to i) consider in greater detail earlier statements and/or interviews by Leduc to and/or with the authorities in Australia; ii) require the production of Leduc for cross-examination in Hong Kong, and iii) to prepare and/or obtain alibi evidence for the Applicant to call in these proceedings. Linked with these was an application to the Magistrate for an order that further and better particulars be provided of the alleged meeting in Bangkok to which Leduc attested in his affidavit [ - see paragraphs 58 to 68].

6. These matters indicate a complete misconception of the nature and purpose of extradition proceedings. A consideration of the Divisional Court's decision in R. v. Governor of Pentonville Prison and another - ex parte Osman 1989 3 A.E.R. p. 701 is appropriate. Lloyd L.J. (as he then was) said at page 721:

" - It was the magistrate's duty to consider the evidence as a whole and to reject any evidence which he considered worthless. In that sense it was his duty to weigh up the evidence. But it was not his duty to weigh the evidence. He was neither entitled nor obliged to determine the amount of weight to be attached to any evidence or to compare one witness with another. That would be for the jury at the trial. It follows that the magistrate was not concerned with the inconsistencies or contradictions in [Jaafar's] evidence, unless they were such as to justify rejecting or eliminating his evidence altogether. Nor, of course was he concerned with whether [Jaafar's] evidence was corroborated."

At page 722:

"The authorities are unanimous that the Divisional Court is not a court of appeal from the magistrate. It cannot retry or rehear the case."

citing Lord Reid in Armah v. Government of Ghana 1968 A.C. at page 230:

"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."

At page 723 the Learned judge returned to part of his judgment in R. v. US Government ex parte Blair 1985 The Times 21 June 1985

"The question which we have to ask ourselves is ... whether the Chief Magistrate erred in law, not whether he reached the right conclusion on the facts or a conclusion with which we would necessarily have agreed ourselves. The question for us is not whether there was sufficient evidence to send ... for trial if these offences had been committed in England. That was a question for the Chief Magistrate not for us. The question for us is whether there was any evidence on which the Chief Magistrate could lawfully reach that view; whether, in other words, it was within the range of views which a reasonable magistrate, directing himself properly and in accordance with the law, could reach."

Earlier he had stated that the "correct approach is best defined in Wednesbury terms". (Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation 1948 1 KB 223)

7. The applications made on this Applicant's behalf were without merit. He had the opportunity of considering an interview by the witness Leduc, as did the Learned Magistrate. It is clear that there were inconsistencies between the contents of that and of the affidavit. That does not surprise anyone. There was no justification for seeking an adjournment for Leduc to be brought to Hong Kong or to be interviewed or examined further in Australia. That would, in my view have been an interference with the legal process, was irrelevant to the Magistrate's considerations and is irrelevant to mine. It is in any event highly unlikely that Leduc would want to come to Hong Kong; there are no means to compel him in any event.

8. In support of this particular contention Mr. Allan relied upon a decision of Mr. Justice Sears - In Re Davies, Yu Yok Wen 1991 1 HKLR p.7 and two statutory rules of the Commonwealth of Australia, Mutual Assistance in Criminal Matters Regulation No. 126 of 1988, and Mutual Assistance in Criminal Matters (Hong Kong) Regulations No. 95 of 1991. Although I invited Mr. Allan to point to any particular feature of either to support his argument he was unable to show that either of them bore directly on the point. They do not give the Hong Kong Courts powers to examine in Hong Kong or have brought before them in Hong Kong, witnesses who have provided statements in Australia for the purposes of proceedings in Australia and who are residing in Australia. These regulations do not apply to extradition proceedings. They relate, as their titles and contents indicate, to mutual assistance in the investigation and prosecution of drug-trafficking offences etc. "to the extent possible within their respective laws."

9. In the decision of Sears, J., he was considering an application seeking the cross-examination of the main prosecution witness in New York. The Applicant had been indicted in New York by a Grand Jury and the Government of the United States of America was seeking his extradition from Hong Kong. Reliance was placed upon section 77E as providing the legal framework for such an event. Subsection 1(a) reads:

"Where it appears to the High Court that any criminal proceedings ...

have been instituted in Hong Kong ...

The High Court may order that a letter of request shall be issued and transmitted in such manner as the High Court may direct to a court or tribunal specified in the order and exercising jurisdiction in a place outside Hong Kong, requesting such court or tribunal to assist in obtaining evidence for the purposes of these criminal proceedings."

Although the Learned Judge went on to consider Beardsley v. Giddings 1904 1 KB 847, Stirland v. D.P.P. 1944 A.C. 315 and R. v. Governor of Pentonville Prison, ex part Osman 1989 3 A.E.R. 701, he decided that the application fell within section 77E and made the order requested.

10. It is clear from the section that only the High Court has the power to make such an order, and an application may be made ex parte. It is not within the power of the magistrate hearing extradition proceedings to make such order. This case is in the High Court before me simply because the Applicant has leave to challenge the Magistrate's decision by way of judicial review. I do not consider that I have the power to make such an order under section 77E because I am reviewing the learned magistrate's decision and he clearly had no power to make any decision there under.

11. Secondly I do not consider that "criminal proceedings have been instituted (i.e. begun) in Hong Kong." The Applicant has not allegedly committed a criminal offence is Hong Kong; therefore he cannot be charged with any such offence in Hong Kong. The criminal proceedings have been instituted in Australia by reason of the request for extradition from the Government of the Commonwealth of Australia.

12. There is no authority which supports a right to cross-examine deponents to affidavits or affirmations in extradition proceedings. In Re - U.S.A. v. Smith 1984 10 C.C.C. 3(d) p. 540, Houlden J.A., said:

"The purpose of an extradition hearing is not to determine the guilt or innocence of the fugitive. It is merely an inquiry to determine whether there is sufficient evidence to warrant sending the fugitive to the demanding state so that he may stand trial ... The extradition judge is not required to weigh the evidence or to decide the credibility of witnesses; his duty is to determine if the evidence would justify the committal of the fugitive for trial if the alleged crime had been committed in Canada. The fugitive can call witnesses if he so desires. He is given an opportunity to point out weaknesses or deficiencies in the evidence of the demanding state and to present argument as to why he should not be extradited, but there is no final determination of his rights. The trial and the full determination of the fugitive's right will take place in the courts of the demanding country. It is a basic assumption of extradition proceedings that the fugitive will receive a fair and just trial in the demanding state."

In R. v. Governor of Pentonville Prison ex Parte Kirby 1979 1 W.L.R. 541, Croom-Johnson J. spelt out the reliance upon authenticated documents (affidavits and affirmations) and exhibits as the "way of presenting evidence to the committing court in [extradition proceedings] ... since witnesses in proceedings of this type cannot be expected to travel all the way from a foreign country to the place of committal."

Lord Diplock in R. v. Governor of Pentonville Prison ex parte Dowse [1983] 2 W.L.R. 791 underlined the position in dealing with section 14 of the Extradition Act, 1870

"[It] speaks of "affirmations" and "depositions" and "statements on oath" ... it makes admissible in evidence in extradition proceedings, written statements of fact which fall within any of those descriptions and are duly authenticated in the manner provided for notwithstanding that under English laws of evidence what appears in the statement would only be admissible in the form of oral testimony given on oath by the maker of the statement. The manifest purpose of the section, as has frequently been stated, is to obviate the necessity of bringing witnesses from one country that is a party to an extradition treaty to give oral evidences in the other."

Although the Applicant relied upon the judgment of Sears, J. in Re Yu Yok Wen, his decision in Ng Hung Yiu v. Government of the United States of AmericaAt p. 389 the Learned Judge said: was overlooked.

"Courts over the years have held that refusal to allow cross-examination of a deponent is not a breach of natural or fundamental justice."

He went on to refuse the Applicant an opportunity to have a witness cross-examined in the extradition proceedings. He considered the effect of the Hong Kong Bill of Rights on extradition proceedings. In my view one need not go beyond the first part of Article 11(2) - "In the determination of any criminal charge against him, everyone shall be entitled ... to examine, or have examined, the witnesses against him ..." In extradition proceedings a magistrate is not concerned with "the determination of any criminal charge" so the Article has no applicability in any event.

13. I note that in that decision in July 1992 no attempt was made to refer the Learned Judge to his decision of two years earlier, and when the Court of Appeal made its decision in Thongchai Sanguandrikul v. Government of the United States of America 1992 No. 123 although the decision of Sears, J. in Re. Yu Yok Wen was cited to them, the learned Judge's later decision in Ng Hung Yiu was not, though it had been given about five months earlier. That was unfortunate, although of course the Court of Appeal followed the line of authorities which have held that the procedure sought is inappropriate to extradition proceedings.

14. I do not need to dwell upon the ancillary aspects of the Applicant's applications. It is not appropriate to request further and better particulars of a witnesses evidence for the purpose of putting forward an alibi or calling alibi evidence. That is a matter for trial proceedings (if appropriate even then.)

15. It is no part of a magistrate's function in extradition proceedings to call for disclosure of all other statements or interview records, or any other material which may be in the hands of the prosecuting authorities or police force of the country seeking extradition of the fugitive. If the material before him does not support the case for extradition, for whatever reason, then he declines to make such order and the alleged fugitive may be released.

16. Although in my view this application has no merit and has arisen out of at least one misconception I propose to set out a short summary of the conclusions.

Summary

1. There is no right on the part of an alleged fugitive in extradition proceedings to have a witness or deponent cross-examined in either Hong Kong or the country seeking extradition.

2. Section 77E of the Evidence Ordinance does not give a magistrate in Extradition Proceedings power to order cross-examination of a witness upon whose statement or affidavit the extraditing country relies, either in Hong Kong or in that country.

3. The High Court powers under Section 77E do not apply to extradition proceedings.

4. Article 11 of the Hong Kong Bill of Rights does not affect or override Extradition process.

5. A fugitive is entitled to call whatever evidence he wishes in answer to the case presented against him for his extradition, but he is not entitled to disclosure of documents which may properly form part of the trial process and/or may be released to him as material to be considered in the preparation of his defence at trial in the country which seeks his extradition.

17. The final point is whether the Learned Magistrate had any jurisdiction to release to him money in various currencies which was found on his person on his arrest in Hong Kong.

18. My immediate reaction to Mr. Allan's argument was that the court in Hong Kong dealing with his extradition proceedings may very well be interfering with what may be material evidence. Common sense demands that the "status quo" be preserved.

19. He relies upon S.102 as giving the Magistrate power to return the money to the applicant or his lawyers. I have been told he wants the money to go directly to his lawyers to pay their fees. None of the circumstances set out in subsection (1) applies to this matter. I am satisfied, as the Learned Magistrate was, that he had no power under S. 102 to make any order as to the disposal of the various sums of currency. As the Applicant is held in custody and will be handed over to the Australian authorities for arrest and further process, so too must the items found in his possession.

20. These applications are dismissed with costs.