LAY ENG TEO v. SUPERINTENDENT OF TAI LAM CENTRE FOR WOMEN & ANOTHER

HCAL540/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 540 OF 2001

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J U D G M E N T

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Introduction

1. In this matter, Mr McLanachan moves on behalf of the applicant, Lay Eng Teo, for a writ of habeas corpus.

2. The applicant stands accused in the United States of America of various criminal offences. It is alleged that between about March 1995 and September 2000 she shipped counterfeit computer software to the United States and, in order to do so, conspired with various persons in the United States. It is further alleged that she conspired with certain of those persons to launder the proceeds obtained from the disposal of the counterfeit software.

3. The applicant is a national of Singapore. It is alleged that when the offences with which she is charged were committed she was resident in Singapore, had an office there and that it was from Singapore that most of the shipments of counterfeit software to the United States were made, in the main by using regular commercial courier services such as Federal Express.

4. In October 2000, officers of the United States Customs Service who were investigating the applicant's activities had reason to believe that she was coming to Hong Kong. A request was made to the Hong Kong authorities for her apprehension, and on 23 October 2000, a provisional warrant of arrest was issued by a magistrate. The following day, the applicant was arrested at a local hotel.

5. Having received a formal request for the surrender of the applicant from the United States Government, on 15 December 2000 the Chief Executive issued an authority to proceed pursuant to section 6(2) of the Fugitive Offenders Ordinance, Chapter 503 ('the Ordinance'). The authority to proceed directed that proceedings should take place before a magistrate to determine whether, in terms of section 10(6)(b) of the Ordinance, the applicant should be committed to custody to await the Chief Executive's decision whether to order her surrender.

6. The authority to proceed directed the magistrate that the applicant's surrender to the United States was sought in respect of five criminal offences, those five offences being described in the following terms :

(a) offences against the law relating to protection of intellectual property, copyrights, patents or trademarks;

(b) conspiracy to commit offences against the law relating to protection of intellectual property, copyrights, patents or trademarks;

(c) offences against the law relating to the control of exportation or importation of goods;

(d) conspiracy to commit offences against the law relating to the control of exportation or importation of goods; and

(e) conspiracy to commit offences relating to the laundering of proceeds obtained from the commission of the above offences (a) to (d).

7. The hearing before the magistrate took place on 5 and 6 March of this year. At the conclusion of that hearing, the magistrate ruled that sufficient evidence had been placed before him to prove a prima facie case in respect of the offences listed in the authority to proceed. In his oral ruling the magistrate spoke, in fact, of the offences listed in the indictment. But that clearly was due to inadvertence as the order of committal signed by him that same day speaks only of the offences listed in the authority to proceed. The magistrate gave no reasons for finding a prima facie duly proved and said the following only to the applicant :

".... I am now committing you to prison to await the warrant from the Chief Executive for your surrender to the United States of America. I am duty bound to inform you that you will not be surrendered until 15 days have expired and that you have the right to apply to the Court of First Instance for a writ of habeas corpus."

8. On 28 March of this year, the present application for habeas corpus was made. Although she had been represented at the committal hearing, at the time of making her application for habeas corpus the applicant no longer enjoyed legal representation. The matter first came before me on an ex parte basis on 29 May when an inquiry in terms of section 22A(4) of the High Court Ordinance, Chapter 4, took place. On that occasion the applicant sought an adjournment so that she could obtain legal representation and better set out the grounds upon which she challenged her detention. The matter was therefore adjourned until 11 June.

9. On that day, a further ex parte hearing took place. The applicant was represented by Mr McLanachan. I was satisfied that the application showed substance. At that time, of course, I did not have the benefit of argument from the other side.

10. I turn now to consider the various challenges pursued by Mr McLanachan at the substantive hearing. There were a few, earlier listed in his skeleton argument, of which he made no mention. I took that to mean that he no longer sought to advance them.

The failure to give reasons

11. The complaint is made that the magistrate failed to give reasons to support his ruling that a prima facie case had been proved. The absence of reasons, said Mr McLanachan, meant that it was impossible to say how the magistrate had reached his decision. That, he said, offended the rules of natural justice.

12. In particular, the complaint is made that a failure to give reasons means that this Court cannot determine how the magistrate 'weighed' or 'considered' the evidence in order to satisfy himself that a prima facie case had been proved. It is therefore not possible to determine the manner in which the magistrate purported to discharge his obligations under section 10(6)(iii) of the Ordinance.

13. Section 10(6)(iii) can best be read in the broader context of section 10(6) for it is that subsection which directed the duties of the magistrate in the present case :

"Where-

(a) ....

(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; ....

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 ...."

14. The question of whether a magistrate in extradition proceedings is under a duty to give reasons was considered in Rey v. Government of Switzerland and Another [1999] 1 AC 55. This was in the context of the Extradition Act 1994 as it applied to the Bahamas. Lord Slynn, delivering the judgment in that case, said :

"Despite a growing practice in England of stipendiary magistrates to give reasons in extradition proceedings it has not been held that magistrates are under a legal duty to do so. And the legal position in England is perhaps justified by the right of the fugitive to apply for habeas corpus to the Divisional Court if the decision of the stipendiary magistrate goes against him: see section 11 of the Extradition Act 1989. Turning to the position in The Bahamas, a person committed to custody for extradition has under section 11 of the Act of 1994 a right to apply for habeas corpus to the Supreme Court with a further right to appeal to the Court of Appeal if his application for habeas corpus is refused. In these circumstances their Lordships are not prepared to hold that there is a general implied duty upon magistrates to give reasons in respect of all disputed issues of fact and law in extradition proceedings. But their Lordships must enter a cautionary note: it is unnecessary in the present case to consider whether in the great diversity of cases which come before magistrates in extradition proceedings the principle of fairness may in particular circumstances require a magistrate to give reasons. It did not so require in this case. It follows that in the present case the magistrate's failure to give reasons on disputed issues of fact was not unlawful."

15. While magistrates, therefore, were held to be under no general duty to give reasons, a note of caution was sounded to the effect that cases may arise in which the principles of fairness dictate that reasons (or reasons in respect of a particular issue) should be given.

16. Whether a general duty to give reasons is imposed upon magistrates under the Ordinance was considered by Stock J (as he then was) in Cosby v. Government of the USA and Another [2000] 3 HKC 688. Having considered Rey v. Government of Switzerland (supra), the judge noted that under our statute a right also existed to apply to this Court for habeas corpus and that there was a right thereafter for further appeals. The judge concluded (at page 703) :

".... I fail to see why reasons were required in this case. What is it that the magistrate was expected to say, beyond the finding that there was sufficient evidence to commit in respect of the offences of conspiracy to defraud and theft? The evidence and the submissions made perfectly clear the conduct and offences in respect of which the order was made; and I note, too, that the magistrate was not invited to provide reasons or clarification. There was, in my judgment, no duty upon the magistrate to say more than he did when he announced his decision. ...."

17. In the present case, it seems to me that the same essential observations apply. The evidence was clear (and, on its face, substantial). What was the magistrate to say beyond the finding that there was sufficient evidence shown on the documents to warrant the applicant's committal?

The time bar issue

18. The first two offences listed in the authority to proceed are both offences against the law relating to intellectual property. The first one is a substantive offence, the second a conspiracy to commit that offence. They are both drawn from section 118(1) of the Copyright Ordinance, Chapter 528. That section makes it a criminal offence to import into Hong Kong, otherwise than for private and domestic use, an infringing copy of a copyright work without the licence of the copyright owner.

19. Section 120A of the Copyright Ordinance imposes a time bar on the prosecution of offences brought under section 118(1). It reads :

" No prosecution for an offence under this Ordinance shall be commenced after the expiration of 3 years from the date of commission of the offence or 1 year from the date of discovery of the offence by the prosecutor, whichever is the earlier."

20. Notwithstanding that restriction on prosecution, the first two offences listed in the authority to proceed are in no way confined to a time frame. To repeat, they are described in the following terms :

"(a) offences against the law relating to protection of intellectual property, copyrights, patents or trademarks;

(b) conspiracy to commit offences against the law relating to protection of intellectual property, copyrights, patents or trademarks;

...."

21. There is nothing in the Ordinance which requires the Chief Executive or the magistrate to ask whether the Hong Kong offence or the conduct which constitutes the Hong Kong offence is time-barred in either the requesting or requested jurisdiction. Mr McLanachan, however, has submitted that the magistrate is obliged to do so. If the offence detailed in the authority to proceed would be time-barred in Hong Kong, he has argued, then it would not constitute a 'relevant offence' and, as such, no order for the surrender of the applicant in respect of that offence could be made.

22. Section 4 of the Ordinance provides that :

" A person in Hong Kong who is wanted in a prescribed place for prosecution .... in respect of a relevant offence against the law of that place may be arrested and surrendered to that place in accordance with the provisions of this Ordinance."

23. A 'relevant offence' is itself described in section 2(2) of the Ordinance in the following terms :

" For the purposes of this Ordinance, an offence by a person against the law of a prescribed place is a relevant offence against that law if-

(a) the offence is punishable under that law with imprisonment for more than 12 months, or any greater punishment; and

(b) the acts or omissions constituting the conduct in respect of which the person's surrender to that place is sought amount to conduct which, if the conduct had occurred in Hong Kong, would constitute an offence-

(i) coming within any of the descriptions specified in Schedule 1; and

(ii) punishable in Hong Kong with imprisonment for more than 12 months, or any greater punishment."

24. Bu if the offences listed in the authority to proceed are not in any way confined by time restraints, how does Mr McLanachan suggest that the magistrate nevertheless has an obligation to ascertain whether they are, in fact, time barred according to our law? This is to be done, he has argued, by looking beyond the authority to proceed and going to the original United States indictment. There is, of course, nothing in the Ordinance which obliges the Chief Executive or the magistrate to do so.

25. In this regard, in Cosby v. Chief Executive HKSAR [2000] 3 HKC 662 - an application for judicial review which preceded the committal hearing before a magistrate - in referring to section 2(2) of the Ordinance, Stock J defined the difference between an offence against the law of a prescribed place (the United States) and a relevant offence under the Ordinance. He said, at page 674, that section 2(2) :

".... establishes that there is a difference between an offence against the law of a prescribed place, and a relevant offence against that law. An offence against the law of the prescribed place means, in the present case, an offence against the law of the USA. But a relevant offence against that law is much wider, and it imports the law of the USA to a very limited extent, namely, to the extent only that it must be shown that the offence charged in the prescribed place carries with it liability to imprisonment for at least 12 months. .... There is no requirement in the Ordinance to examine that particulars in the indictment, even if such an indictment is forwarded (and note that there is no requirement in the US-Hong Kong agreement for the US authorities to forward, or for the Chief Executive, or for the courts in Hong Kong to examine, the indictment)." [my emphasis]

26. In an earlier judgment, Stock J had emphasized that a 'relevant offence' is not, directly or by implication, simply a description of the foreign offence in terms which are comprehended by our law. In Tiongco v. The Government of the Republic of the Philippines and Another [1998] 2 HKLRD 282, at pages 303/304, he said :

".... Section 2(2) does not require the acts or omissions to constitute an offence against the prescribed place. It follows, in my judgment, that to read 'relevant offence' whether in the section or elsewhere in the Ordinance as meaning or restricting itself to or describing only the foreign offence is to misconstrue the section."

27. On that basis alone, I am satisfied that the magistrate had no obligation in terms of the Ordinance to look to the original United States indictment. His function was only to consider the offences listed in the authority to proceed.

28. Returning to Mr McLanachan's submissions, he said that Count One in the United States indictment is the conspiracy count, equivalent to the second offence in the authority to proceed, and alleges that the applicant conspired with others to traffic in counterfeit software by importing it into the United States and did so between about March 1995 and September of last year. If that indictment was to be tried before a Hong Kong court, said Mr McLanachan, it would, without amendment at least, be time barred. Accordingly, so his argument has gone, the offence in the authority to proceed which is equivalent to Count One, cannot be a relevant offence.

29. But, of course, the magistrate was not concerned with the trial of Count One in Hong Kong, he was concerned only with the conduct of the applicant as described in the offences listed in the authority to proceed. If the magistrate did have an obligation to consider the terms of the United States indictment he would then be obliged to consider the constituent parts of the offences listed in that indictment. Stock J, however, in an analysis of the Ordinance which I can do no better than repeat, has found no such obligation. In Cosby v. Chief Executive (supra), page 672 - under the heading, The emphasis on conduct - he made the following observations :

"An analysis of the Fugitive Offenders Ordinance reveals certain key features with which it is both convenient and important to begin examination of the merits of the applicant's case. They are:

(1) that the statutory regime directs the Chief Executive in the exercise of his duties under this Ordinance to the conduct of the fugitive in respect of which a surrender is sought by the requesting jurisdiction;

(2) that the same statutory regime directs the magistrate to the conduct of the fugitive revealed by the evidence placed before the magistrate at a committal hearing; and

(3) that neither the Chief Executive nor the magistrate is required to, not should they, engage upon a study of the constituent elements of the foreign offence with which a wanted person has been charged, nor is either required to match the foreign offence with a local offence."

30. The question of the applicability of time bars, whether in the requesting state or here in Hong Kong, is not a novel one under the Ordinance. It was raised in Cheng Chui Ping v. Superintendent of Tai Lam Centre for Women and Another [2000] 3 HKLRD 695 and was dealt with by Stock J in a manner which, in substance, I am satisfied answers Mr McLanachan's submissions too. Stock J said :

"....Mr McCoy's next point is novel. It is this: that if prosecution for an offence is time-barred, it is for the purpose of the Ordinance not an offence at all. One remembers that to make an order under s.10(6)(b) of the Ordinance, the magistrate must be satisfied that the offence to which the authority to proceed relates is a relevant offence. Section 2(2) says that an offence by a person against the law of a prescribed place is a relevant offence against that law if, amongst other attributes, it is punishable under that law with imprisonment for more than 12 months. But, says Mr McCoy, an offence cannot be prosecuted if it is time-barred; and if it cannot be prosecuted, it is not punishable; and if it is not punishable, it is not a relevant offence. So, the magistrate, according to this argument, has to ascertain whether it is punishable; and in order to do so, he has to ascertain if it can be prosecuted; and to do that he must ascertain whether prosecution is time-barred; and to do that he must take evidence of foreign law; and so on.

The contention is untenable. Section 2(2)(a) self-evidently addresses what punishment is available in the event that a person is convicted of a transgression of that particular law. The magistrate asks himself a question along these lines: Were a person - any person - in the foreign jurisdiction to be convicted of such an offence, could he there be punished by imprisonment for more than 12 months? The magistrate does not ask whether the particular person then appearing before him in committal proceedings will or will not be convicted. He does not ask whether, for example, the courts of the requesting country have the jurisdiction to try him (see, for example, Alves v DPP [1992] 4 All ER 787 at p.794); and, by the same token, s.2(2) does not require the magistrate to ask if a plea in bar of any other kind, including a limitation point, is available, let alone whether it will succeed. What s.2(2)(a) is concerned with is the specified statutory or common law offence in the foreign jurisdiction, and the penalty provided by the law of that jurisdiction for such an offence in the event of a conviction for that offence. To this end alone, evidence of foreign law is permitted and, indeed, required. And in this case that evidence was provided and not contested."

 

The money laundering issue

31. The final offence listed in the authority to proceed is described in the following terms :

"conspiracy to commit offences relating to the laundering of proceeds obtained from the commission of the above offences (a) to (d)."

32. That offence is drawn from section 25(1) of the Organized and Serious Crime Ordinance, Chapter 455, which provides that :

"Subject to section 25A, a person commits an offence if, knowing or having reasonable grounds to believe that any property in whole or in part directly or indirectly represents any person's proceeds of an indictable offence, he deals with that property."

33. Mr McLanachan has pointed to the fact that conspiracy to commit that offence was not made an offence in Hong Kong until after March 1995. He has then pointed to Count Six of the United States indictment which charges the applicant with conspiracy to launder monetary instruments between about March 1995 and September of last year. With reference to the terms of that indictment he has submitted that, in part at least, the applicant has been committed to await her surrender in respect of criminal conduct which was not at the time criminal conduct in Hong Kong.

34. But, to repeat what I have said earlier in this judgment, the magistrate was under no obligation to consider the United States indictment; his responsibility was to look to the conduct of the applicant in respect of the offence contained in the authority to proceed. That offence is not constrained by time limits.

35. In Hong Kong, if the offence described in Count One of the United States indictment came for prosecution, it would be open to the prosecuting authorities to amend the indictment to ensure that the conduct considered at trial was conduct which fell subject to criminal sanction. But, as Mr McLanachan has pointed out, it is not for the magistrate to attempt, through orders given here, to amend the United States indictment. That, of course, is correct and is one reason why the legislature has given the magistrate no responsibility to consider the indictment issued in the United States.

36. In any event, and no doubt in part to meet challenges of the kind raised by Mr McLanachan, the Fugitive Offenders (United States of America) Order (L.N. 203 of 1997) ('the Order') provides in article 2(3) that :

"For the purpose of this Article, in determining whether an offence is an offence against the law of the requested Party, the conduct of the person shall be examined by reference to the totality of the acts or omissions alleged against the person without reference to the elements of the offence prescribed by the law of the requesting Party."

37. By virtue of section 3(1) of the Ordinance, the provisions of the Order are to be read in conjunction with the Ordinance. Indeed, article 2 of the Order reads :

" In relation to the arrangements for the surrender of fugitive offenders which are-

(a) applicable to the Government of Hong Kong and the Government of the United States of America; ....

(b) ....

It is hereby directed that the procedures in the Ordinance shall apply as between Hong Kong and the United States of America subject to the limitations, restrictions, exceptions and qualifications contained in those arrangements as so recited."

38. It is therefore incumbent on the magistrate to examine the totality of the acts alleged against the applicant without reference to the conduct as particularized in the United States indictment and without reference to the elements of the offence prescribed under United States law. This was done. The magistrate's obligations went no further.

39. Article 2 of the Order sets out a description of the offences for which surrender may be granted. That article commences :

"(1) Surrender of fugitive offenders shall be granted for an offence coming within any of the following descriptions of offences in so far as it is according to the laws of both Parties punishable by imprisonment or other form of detention for more than one year, or by a more severe penalty:

....

(viii) Offences relating to possession or laundering of proceeds obtained from the commission of any offence for which surrender may be granted under this Agreement;

...."

40. In my judgment, in discharging his responsibilities in the manner I have described, the magistrate did not breach the double criminality test averred to in article 2 of the Order. When the conduct was viewed in its totality, without reference to the time frame imposed in the United States indictment, the magistrate was entitled lawfully to find that the offence listed in the authority to proceed came within the description of offences in article 2(1)(viii) of the Order and was an offence according to the laws of both the United States and Hong Kong punishable by imprisonment for more than one year.

'Importing' infringing works of copyright or unmanifested cargo

41. The counterfeit software which it is alleged the applicant shipped to the United States was either taken personally into the United States by the persons with whom the applicant dealt or was sent by commercial courier. There is no suggestion that the applicant herself transported the offending items (or any portion of them) into the United States. At all times she was physically outside of the jurisdiction of the United States. It therefore follows that, if the offending items had been shipped to Hong Kong, the applicant herself would always have been outside of the jurisdiction when the acts constituting that shipment were carried out.

42. As such, said Mr McLanachan, the applicant would not fall subject to the jurisdiction of the courts of Hong Kong.

43. But, with respect, that is not the law. The courts of Hong Kong will assume jurisdiction where the only acts within their jurisdiction are those of an agent, even an innocent agent. In Attorney General v. Yeung Sun Shun and Another [1987] 2 HKC 92, the Court of Appeal dealt with this very point. In giving the judgment of the court, Roberts CJ cited with approval the Australian authority of White v. Ridley (1978) 140 CLR 342 in which the appellant had shipped a box containing cannabis to Australia via an innocent agent, an airline. In finding that the appellant had been rightly convicted of importing a prohibited article, the Australian court said :

"The applicant did not himself bring the cannabis into Australia, it was brought in by the airline. However it is well settled at common law that a person who commits a crime by the use of an innocent agent is himself liable as a principal offender. That is so not only where the agent lacks criminal responsibility, as, for example, when he is insane or too young to know what he is doing, but also where the agent, although of a sound mind and full understanding, is ignorant of the true facts and believes that what he is doing is lawful. Thus if A sends out B with a forged bank note for the purpose of passing it, and B does so, being ignorant that it was forged, A is guilty of uttering and publishing the note as true, since 'where an innocent person is employed for a criminal purpose, the employer must be answerable'...."

44. As Roberts CJ commented :

".... As a matter of public policy, it would surely be outrageous if, a conspiracy having been hatched abroad, a conspirator could not be tried because the only acts within the jurisdiction were committed by an innocent agent."

45. It is to be remembered that the word 'import' in both the Copyright Ordinance, Chapter 528, and the Import and Export Ordinance, Chapter 60, is defined as meaning "to bring, or cause to be brought, into Hong Kong any article". In my judgment, it does not in any way offend the plain reading of the English to find that a person who remains outside of the jurisdiction may still 'cause' offending goods to be brought into Hong Kong.

Conclusion

46. In my judgment, the order of committal to custody which the magistrate made in this case is a lawful order. It follows that the applicant's present detention is also lawful. Accordingly, the application for the issue of a writ of habeas corpus is dismissed. There will be an order nisi that costs of this application will be paid to the respondents, that order to be made final if not challenged within 30 days of the date of handing down this judgment.