THONGCHAI SANGUANDIKUL v. GOVERNMENT OF THE UNITED STATES OF AMERICA and Another

Headnote

Extradition proceedings - writ of habeas corpus issued to challenge legality of committal order based on "fresh evidence" available to applicant since the making of the order. Held: (1) Such evidence was not admissible unless it went to the magistrate's jurisdiction; (2) a High Court judge in habeas corpus proceedings is required to examine the legality of the detention but has no power to rehear the case or entertain an appeal from the magistrate: Schtraks v. Government of Israel [1964] AC 556 followed; (3) in any case the evidence was not "fresh". Observations on the nature of extradition proceedings.

IN THE COURT OF APPEAL

1993, No. 92
(Civil)

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J U D G M E N T

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Litton, J.A.:

1. A long time ago, on the 2 November 1991, the appellant was arrested pursuant to a request made by the Government of the United States of America for his extradition, to stand trial on charges of conspiracy to import large quantities of heroin into the United States. Pursuant to an order to proceed made by the Governor, Mr. A.R. Wright, a Magistrate sitting at the Eastern Magistracy, heard the case against the appellant.

2. On 3 March 1992, the magistrate made an order of committal under paragraph 7(1) of Schedule 1 to the Extradition Act 1989 ("the Schedule") committing the appellant to prison pending his extradition to the United States.

3. Under paragraph 8(1) of the Schedule where a magistrate commits a person to prison, that person has a right to apply for a writ of habeas corpus. 15 days are given for this purpose. The Schedule is silent as to the grounds on which an application for a writ of habeas corpus might be made, except as to one instance. Paragraph 1(2)(b) provides that a fugitive shall not be surrendered if he proves, to the satisfaction of the court before whom he is brought on habeas corpus, that the requisition has in fact been made with a view to trying or punishing him for an offence of a political character. No such consideration arises in this case.

4. The writ of habeas corpus is an ancient common-law remedy. The basis of the exercise of jurisdiction is the detention or imprisonment of the applicant without legal justification. This is clear from the form of the writ itself. When issued pursuant to Order 54 r10 of the Rules of the Supreme Court the writ commands the gaoler - in this case the Commissioner of Correctional Services - in the name of Her Majesty the Queen to bring the applicant before the Supreme Court to enable the court "then and there to examine and determine whether the detention is legal". Under para 7(1) of the Schedule, a magistrate is empowered to commit a fugitive to prison pending extradition if the evidence produced at the hearing would justify, according to Hong Kong law, the committal for trial of that person if the crime of which he is accused had been committed in Hong Kong. The Hong Kong law which justifies the committal of an accused person for trial is contained in Part III of the Magistrates Ordinance Cap. 227 and in particular s85(2) which reads:

"If in the opinion of the magistrate, after hearing such evidence as aforesaid and taking into consideration any statement of the accused, such evidence is sufficient to put the accused upon his trial for an indictable offence, or if the evidence given raises a strong or probable presumption of the guilt of the accused, then the magistrate shall order that the accused stand committed for trial at the High Court...."

5. In this case the appellant was committed by the magistrate as long ago as 3 March 1992, because the evidence produced at the hearing was sufficient to satisfy the requirement of para 7(1). Despite the two sets of habeas corpus proceedings which have been launched by the appellant since that date - one heard by Kaplan J. in May 1992 and the other heard by Jones J. in May 1993 which is the subject-matter of the present appeal - there has never been any challenge to the basic proposition that on the evidence before him the magistrate was entitled to commit the appellant to prison pending extradition to the United States.

Evidence at committal

6. The evidential basis of the magistrate's order of committal consists of two affidavits of Albert Castagnola, an accomplice in the conspiracy to import heroin from Thailand into the United States. At the time Castagnola swore his affidavits he was serving a sentence of five years' imprisonment in the United States. The evidence consisted of a first-hand account of the conspiracy which clearly implicated the appellant.

7. On what basis then could it be said that the detention of the appellant pursuant to the committal order made by the magistrate was unlawful?

Fresh evidence

8. The case as put on behalf of the appellant, on the basis of which Liu J. allowed the writ to be issued on 2 February 1993, was this: Fresh material which the solicitors for the appellant had managed to obtain from the United States since the making of the committal order demonstrates, as counsel for the appellant Mr. McCoy puts it, that Castagnola is a "liar and a perjurer"; material which impeaches Castagnola's credibility to such an extent that if the magistrate had such material at hand during the extradition hearing in March 1992, he could not, in law, have committed the appellant; or, to put it in the language of para. 7(1) of the Schedule, the evidence viewed as a whole would not have justified the committal for trial of the appellant if the crime of which he was accused had been committed in Hong Kong.

9. This material comes from the trial of another accused person in USA v. Robert F Hill in which Castagnola was a witness. The material is summarised in the solicitors' supporting affirmation dated 2 February 1993. Counsel for the respondents does not accept that the material has either been fairly or accurately summarised in the affirmation. But, as the judge disposed of the matter and dismissed the appellant's application for discharge without looking at the material itself, we are in this court confined to the solicitors' summary. The supporting documents have not been included in the appeal bundle placed before us.

10. The material falls broadly into three categories. (1) The fact that Castagnola is a heavily tainted witness. (2) Expressions of opinion of the presiding judge, US District Judge Kosik, concerning Castagnola as a witness in that trial and the judge's comments on the quality of his testimony. (3) Castagnola's admissions in the course of cross-examination which discredited him as a witness in that trial.

11. I should say right away that as far as (2) above is concerned I cannot conceive of any circumstance whereby an expression of opinion of a judge on the credibility of a witness in another trial can ever constitute "evidence", whether adduced in the course of extradition proceedings under para. 7(1) of the Schedule or in the course of committal proceedings under s85(2) of the Magistrates Ordinance.

12. As regards (1) above, the fact that Castagnola is a tainted witness with motives to implicate others is an accepted fact and nothing is gained by its repetition.

13. As to (3) above, it is unnecessary to set out all the matters summarised in the solicitors' affirmation. A few samples will give its flavour: That Castagnola had lied repeatedly, claiming he was a decorated Vietnam war hero in order to be seen as a "big man" in the community; that at the time he was allegedly negotiating drug deals with this appellant Castagnola was under the care of a psychiatrist for memory and attention problems; that he took a Wexler intelligence test under doctor's care and "scored a 78", a "borderline deficient range"; that he took a facial memory test and was able to recognise only four out of 50 faces.

Is the "evidence" admissible?

14. For my part, I totally fail to see how the material was in any way relevant or admissible in the habeas corpus proceedings. In what way could this evidence be admitted to show that the committal order of 3 March 1992 was unlawful, or, more accurately put, not justified in law? Mr. McCoy's answer, when the point was put to him in argument yesterday, was this: The appellant has a legal right to apply for a writ of habeas corpus, exercisable within 15 days of the committal order, see para. 8(1) of the Schedule; when he does apply, the court is bound to look at the situation as it stands at the date of the application, and if it can be shown at that date that there is no evidence capable of justifying the committal and detention, then the applicant must be discharged from custody. In my judgment, this argument is fundamentally wrong.

15. Assume that the appellant is brought before the magistrate, charged with an indictable offence committed in Hong Kong, and after a committal hearing under s85(2) of the Magistrates Ordinance is committed for trial. Assume further that the principal witness then retracts his evidence. Does this render the committal order unlawful? What happens if the witness resiles again? In my judgment the legality of an order of committal is not transient and ephemeral. It does not depend on how the wind blows from time to time.

16. Para 6(1) of the Schedule says that when a fugitive is brought before a magistrate, the magistrate shall hear the case and shall 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. If the legality of an order for committal for trial in Hong Kong cannot be impeached because of a shift in the state of the evidence after the committal was ordered under s85 of the Magistrates Ordinance, equally it cannot be impeached if the committal is ordered under para 7(1) of the Schedule in extradition proceedings.

Nature of habeas corpus proceedings

17. The matter can be further tested by looking at the relief sought in the notice of appeal. As drafted, it seeks an order from this court that, in allowing the appeal, the appellant be discharged from custody. But as Jones, J. decided the case on a preliminary point, and never weighed the material in the solicitors' affirmation against Castagnola's two affidavits, and as the material is not before us now in this court, that plainly cannot be an order we can make. Seeing the force of the point, Mr. McCoy sought in the final moments of the hearing yesterday to amend the notice of appeal so that, instead of ordering that the appellant be discharged from custody, we should make an order in these terms: "That a High Court Judge considers the evidence exhibited to the affirmation of Mr. Peter Hui, the appellant's solicitor, together with the evidence before the magistrate to determine whether there is a prima facie case for committal". This would mean in effect that the High Court Judge, in entertaining an application for habeas corpus, should examine all the evidence afresh and decide for himself whether upon such evidence the appellant should be committed or discharged. How is this a determination of the legality of the detention as ordered by the magistrate, which is the sole function of the judge in habeas corpus proceedings?

18. Consider the procedure at the "hearing" before the High Court judge. Order 54 r8 of the Rules of the Supreme Court says that when the person restrained is brought up in accordance with the writ his counsel shall be heard first. But in committal proceedings the applicant is the foreign government seeking the extradition of the fugitive; for the purposes of the hearing which counsel submits we should order, who is the applicant? What is proposed, as it seems to me, is to turn the habeas corpus process on its head. What Mr. McCoy seeks is an order which would have the High Court judge usurping the functions of the magistrate: functions which, as is common ground, the magistrate had lawfully performed in this case.

Extradition proceedings

19. The legal position as I see it is straight forward. By Article IX of the Extradition Treaty between the governments of the United Kingdom and the United States of America, the two sovereign powers agreed that extradition would be granted only if the evidence be found sufficient according to the law of the requested party to justify the committal for trial of the person sought, if the offence of which he is accused had been committed in the territory of the requested party. This treaty has been extended to Hong Kong by an Order-in-Council made on 15 December 1976.

20. Schedule 1 gives effect to the United Kingdom's treaty obligations, vesting the power of committal in the magistracy. If upon the evidence before the magistrate there is a sufficient case for committal that, in my judgment, is the end of the matter. The death of a vital witness, the retraction of his testimony, the discrediting of his evidence by subsequent revelations, none of these matters can affect in the least the legality of the committal order.

21. If the magistrate had based his decision to commit on evidence properly tendered, the evidence cannot be subsequently reviewed in habeas corpus proceedings. The position would of course have been different if after the committal it was shown that an affidavit used in the proceedings was not the affidavit of the purported deponent at all: for instance, that he was dead at the time he had purportedly sworn that the contents were true. In such a case the magistrate would not have acted on "evidence" in committing the fugitive to prison pending extradition. Moreover there is no obligation falling upon the requesting government to put forward its whole case in seeking a fugitive's extradition. It might for a variety of reasons, including the protection of the identity of sensitive witnesses, decide to adduce only such portions of the available evidence as it considers sufficient to obtain the committal order. If a vital witness dies or retracts his evidence, this may cause the case against the fugitive to collapse, but it may not. This has nothing whatever to do with the legality of the detention and can have no place in habeas corpus proceedings.

22. In the court below, the first point taken by Mr. Bruce, counsel for the respondents to the application - he was erroneously identified in the judgment as counsel for the Crown - was that the evidence summarised in Mr. Hui's affirmation was inadmissible because it did not go to the jurisdiction of the magistrate to commit. Upon this issue he cited Schtraks v. Government of Israel [1964] AC 556 and relied in particular upon the proposition as summarised in the headnote of that report to the effect that, in habeas corpus proceedings, the court did not rehear the case that was before the magistrate, or hear an appeal from his order; "its function, apart from considering any issue raised as to the offence charged being a political one, was to see that the prisoner was lawfully detained by his gaoler".

23. In this case, Mr. McCoy puts forward an interesting argument to this effect: Schtraks was decided in 1962 when the concept of "jurisdiction" was understood in a somewhat narrow sense; it took another six years before the House of Lords in Anisminic v. Foreign Compensation Commission [1969]2 AC 147 liberated the courts from the shackles of this restraint and gave the concept of jurisdiction of the inferior tribunals exercising statutory powers a wider meaning. For this purpose he cited Lord Diplock's opinion in O'Reilly v. Mackman [1983]2 AC 237 at 278 where he said:

"The breakthrough that the Anisminic case made was the recognition by the majority of this House that if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, i.e., one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported 'determination', not being a 'determination' within the meaning of the empowering legislation, was accordingly a nullity."

24. I fail to see the relevance of this to the circumstances of the present case. Plainly, the powers of a magistrate in extradition proceedings are limited by statute. He cannot hear the application until the governor has issued an order to proceed; the offence alleged must be an extradition crime; and the magistrate has no power to commit if the alleged offence is of a political character.

25. As to the last two matters, para 6(2) of the Schedule requires the magistrate to receive evidence when tendered to that effect. I can readily see therefore that where fresh evidence is tendered, as in Schtraks, which bears upon the magistrate's jurisdiction, it is both relevant and admissible; but in my judgment nothing short of that will do. Otherwise the High Court judge in habeas corpus proceedings would be usurping the statutory functions of the magistrate, thereby himself transgressing his own jurisdiction. The point seems to me to be overwhelming and should have concluded the matter in the respondent's favour then and there.

Hearing before the judge

26. Unfortunately the case was complicated by the fact that the habeas corpus application before Jones, J. was a second one by this appellant, the first having been disposed of by the judgment of Kaplan, J. and confirmed by this court in Civil Appeal No. 123 of 1992. Thus, inevitably, the question arose before Jones, J. as to whether the evidence sought to be adduced was "fresh evidence" in terms of s23(1) of the Supreme Court Ordinance which reads :

"Notwithstanding anything in any law or rule of court where a criminal or civil application for habeas corpus has been made by all in respect of any person no such application shall again be made to the High Court or any judge thereof by or in respect of that person on the same grounds unless fresh evidence is adduced in support of the application".

27. Much interesting argument has been put to us on the concept of "fresh evidence" and whether for its reception in habeas corpus proceedings such as these the three requirements in Ladd v. Marshall [1954]1 WLR 1489 need be met. I cannot for my part see any reason to go into this question: although I might add, in passing, that the expression "fresh evidence" in s23(1) is a simple one in the English language. I would not have thought it needed citation of copious authority to explain its meaning. "Fresh" is the opposite of "stale"; if the evidence had been available for some time and by the exercise of reasonable diligence could have been used at the first hearing then it is not "fresh".

28. Here the history was as follows. The case of USA v. Robert F. Hill ended on 20 December 1990 when the jury convicted Hill of conspiring to traffick in drugs and conspiring to launder money. This was nearly a year before the appellant was arrested. The memorandum and order of judge Kosik upon which the appellant relies as fresh evidence is dated 3 September 1991 and became publicly available since that date. The transcript of the entire proceedings in USA v. Robert F. Hill containing, among other things, the evidence of Castagnola, became publicly available since November 1991. The appellant's solicitors affirm that it was only on 1 February 1993 that they received "over six inches thick of documents pertaining to Castagnola". But no explanation is offered as to why the material was not obtained by their associates in the United States before then. The hearing before Kaplan, J. took place in May 1992. On the face of it and in the absence of any explanation the material seems to me to be stale. I agree with Jones, J. that the evidence does not amount to fresh evidence within the meaning of s23(1).

Conclusion

29. In concluding this judgment I wish to make this observation. The procedures for extradition laid down in the Schedule are straight-forward. They are there to discharge the United Kingdom government's international obligations. The provisions are reciprocal with those of other contracting states. The courts of this territory are not in any way concerned with the guilt or innocence of the alleged fugitive. He has committed no wrong against our laws. As Mr. Bruce observed in the course of the hearing yesterday, the worst that can happen to the appellant is that he is put on trial in the United States. He was indicted by a grand jury in the United States over three and a half years ago, on 16 January 1990, to stand trial on serious charges. The judges who have entertained the habeas corpus applications, Kaplan, J. and Jones, J. have acted with admirable expedition; and yet the appellant has been in prison in Hong Kong for nearly two years, since November 1991, whilst the extradition process grinds on. Such delay can seriously prejudice the fair trial of the appellant in the United States. This does not enhance our reputation for efficiency internationally. Perhaps the time has come for judges dealing with ex-parte applications for writs of habeas corpus to take a much harder look at the material put before them and not grant the applications so readily. For this purpose it may be necessary for the listing clerk to reserve more time for the judges to read the papers. Where personal liberty is involved there is an understandable tendency for judges to err on the side of freedom. But judges should remember that Order 54 r2 of the Rules of the Supreme Court gives them a number of options: Instead of ordering the writ to issue, the judge can direct that the application be made with notice to the other side. It is of course easy to be wise after the event, but the present case does seem to me to be one where the ex-parte application for the writ might well have been refused without injustice. The applicant would still have been entitled to appeal against such refusal to this court, but a few months' time would then have been saved.

30. For these reasons I would dismiss the appeal, and make an order nisi that the appellant should pay the costs of the appeal.

Sears, J.:

31. I agree that this appeal should be dismissed. Although some submissions before the judge were made with regard to the effect and meaning of s.23(1) of the Supreme Court Ordinance, the more fundamental matter, which this appeal highlights, is whether any evidence can be adduced in habeas corpus proceedings arising from an extradition committal to impugn the magistrate's finding of a prima facie case. Mr. McCoy's main submission is that the High Court judge can in some way supervise the extradition order and quash it, if evidence is placed before him which demonstrates either (1) that the magistrate on the facts should have come to a different conclusion or (2) that it is unfair to extradite the fugitive. This appeal is concerned with the first matter. It is said the evidence with regard to Castagnola demonstrates that he is unreliable and tainted, and as he is the sole and uncorroborated witness then no reasonable magistrate could have found the prima facie case. As far as the second matter, Mr. McCoy postulates the extreme example of Castagnola having died after the extradition order, and submits that it would be unfair to continue with the extradition as the United States Government would have no case.

32. The underlying fallacy of this submission is that the High Court judge in habeas corpus proceedings is only concerned with whether the applicant is lawfully detained. In order to determine that, his only task is to examine the legality of the magistrate's order. The evidence which therefore is reviewable by the judge is that placed before the magistrate. If that evidence demonstrates that the decision of the magistrate, on those facts, was 'Wednesbury' unreasonable then the judge can grant habeas corpus. He is not permitted to consider anything else. The factual decision crystallises at the time when the magistrate makes his order. Any additional matter which goes to his jurisdiction, however, can be placed before the judge.

33. Mr. McCoy's natural concern about unfairness in the event of Castagnola's death can be answered in two ways. First, the United States government may not continue with the extradition, or they may have additional evidence available. Secondly, the Governor has a residual discretion and the fugitive is entitled to petition and rely on any matter which would persuade the Governor not to extradite.

34. The principles underlying the decision in Schtraks v. Government of Israel [1964] AC 556 are founded both on the scheme of extradition and fairness to the applicant. In my judgment, this appeal can be decided on a narrow ground. The evidence which was sought to be adduced is clearly inadmissible and could not be utilised by the judge to impugn the magistrate's decision on the facts. For the reasons given by my Lord I agree that this appeal must be dismissed.

Barnett, J.:

35. For the reasons given by my Lords, I agree this appeal must be dismissed.

36. The issue, as I understood it, was whether the words "fresh evidence" contained in s23(1) of the Supreme Court Ordinance include evidence designed to impeach the finding by a magistrate that there was a prima facie case. Mr. McCoy asserted that they do. Mr. McCoy's argument was based upon the premise that there is some form of continuing supervisory role reposed in both the High Court and, if necessary, this court, when hearing an application for habeas corpus, or an appeal therefrom, by a fugitive against whom a warrant of committal has been issued and signed by a magistrate. The court will, he argued, in an appropriate case be brought up-to-date on the state of the evidence against the fugitive and asked to test whether it is still sufficient to justify a finding that a prima facie case exists. In that way, unfairness to the fugitive, whose liberty is at stake, can be ameliorated. That puts the argument somewhat baldly but I believe it to be essentially correct; and thus stated I venture to suggest that it demonstrates how untenable the argument is.

37. Extradition procedures are a compromise between the competing interests of comity of nations and the fugitive. The procedure which has been devised is of a summary form. The magistrate who hears the case is concerned with two matters. First, that certain technical requirements have been met and second, that the evidence produced by the foreign state is sufficient to establish a prima facie case, or prove, if appropriate, that the fugitive was convicted of a crime as alleged. The magistrate, being satisfied on these matters, will commit the fugitive. Subject to the exercise of the Governor's discretion there remains only the surrender of, and it must be presumed a fair trial for, the fugitive at which his guilt, and I emphasize his guilt, will be determined.

38. A challenge to the lawfulness of a fugitive's detention by habeas corpus must, I am satisfied, focus upon the state of affairs as at the time of committal. It is the propriety of that committal based on material before the magistrate that is in issue. What is open to attack, in my judgment, is the jurisdiction of the magistrate in that he either lacked jurisdiction because, for example, the offence was not an extraditable offence, or he exceeded his jurisdiction, for example he misinterpreted the evidence so that he wrongly found there to be a prima facie case. That latter consideration deals, I think at least in part, with Mr. McCoy's Anisminic point that jurisdiction is a wider concept than that envisaged by the House of Lords in the Schtraks case.

39. It is clear to me therefore that there is no room for a rehearing by a judge on the basis of evidence that was not before the magistrate. Whatever criticism the decision by the House of Lords in Schtraks may have attracted, in my judgment it was correctly decided and is binding on this court. Fresh evidence going to the question of whether there is now a prima facie case is not admissible. It is not permissible thus to seek to impeach the magistrate's decision on the facts which were before him.

40. I accept of course that in Schtraks the House of Lords was dealing with a first application for habeas corpus and did not therefore have to deal with s14(2) of the Administration of Justice Act 1960 which is the equivalent of s23(1) of the Supreme Court Ordinance. However, no argument has been advanced that convinces me that upon a subsequent application for habeas corpus the fugitive should be in any better position than he was upon his first.

41. I would add only this. I will assume that the evidence is admissible for the purpose of attacking the magistrate's finding of a prima facie case; I will assume also that the evidence upon which the appellant hopes to rely was fresh evidence within the meaning of s23; yet I cannot see that it was such evidence as would afford a basis for undermining the magistrate's finding. Despite the admitted lies and other defects upon which the appellant pins his hopes, the witness Castagnola was believed by a jury on the real matters in issue before them. If anything, I would have thought this evidence would provide comfort for the magistrate rather than the reverse.