CHEN CHONG GUI v. SENIOR SUPERINTENDENT OF LAI CHI KOK RECEPTION CENTRE

Civil Appeal No. 233 of 1997

HEADNOTE

Extradition - Schedule 1 Extradition Act 1989 as extended to Hong Kong.

Habeas corpus - jurisdiction of magistrate to hear and determine a plea in bar of autrefois acquit or autrefois convict in extradition proceedings.

Extradition Act 1989 Clause 6 Schedule 1 -

"... 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 England or Wales."

- True interpretation of "as near as may be"

Criminal Procedure Ordinance (Cap. 221) section 31:

"(1) In criminal proceedings in any court on a plea of autrefois convict or autrefois acquit the accused person may state that he has been previously convicted or acquitted, as the case may be, of the offence charged.

(2) In this section, 'court' includes the District Court and a magistrate."

- True interpretation of "criminal proceedings"

Atkinson v USA Government [1971] AC 197 per Lord Reid at 231G dicta not followed.

R v Governor of Pentonville ex p Sinclair [1991] 2 AC 64 considered.

Re Treitz, English Divisional Court, unreported, 20 December 1985 per Mustill LJ at 22F to 23B and 23D considered.

Levy v Attorney General [1987] HKLR 777 at 781A dicta per Roberts CJ not followed.

Decision of Deputy Judge Hartmann [1997]2 HKC 210 refusing a motion for writ of habeas corpus affirmed.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No. 233
(Civil)

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J U D G M E N T

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Mortimer, V.-P. :

1. This is an appeal against the dismissal on 12 November 1997 by Deputy Judge Hartmann [1997] 2 HKC 210 of a motion for a writ of habeas corpus in extradition proceedings. It raises one issue. Whether at the relevant time in extradition proceedings, the magistrate had jurisdiction to entertain and adjudicate upon a plea of autrefois convict.

2. Since the proceedings were initiated, the law has changed with the introduction of the Fugitive Offenders Ordinance (Cap. 503) and a new Treaty with the US Government has been concluded.

The facts

3. I am content to take the facts from Deputy Judge Hartmann's lucid and well reasoned judgment.

4. The applicant was apprehended in Hong Kong at the US government's request in March 1996. On 3 June 1996 it formally requested his extradition for 13 offences. A further offence was added later.

5. On 11 June 1996 the Governor issued the order to proceed and on 16 September 1996 the hearing before the magistrate was adjourned to allow the applicant to obtain evidence from Mainland China to demonstrate that he had already been convicted there of an offence and had served a sentence sufficient to establish a plea in bar of autrefois convict.

6. An expert on Chinese law attended the resumed hearing but the magistrate ruled that he had no jurisdiction to hear and determine the plea. The expert witness returned to China but overnight the magistrate reconsidered his ruling and the next day reversed it. The matter proceeded by agreement that the magistrate would consider the judgment of the People's Court with proof of its authenticity reserved should he provisionally decide in the applicant's favour. However, he ruled, that:

"It was a submission that was doomed to fail as the obvious ingredients of unlawful imprisonment, forcible detention, an intention to procure a ransom, and demands with menaces which run through the extradition crimes are absent from the ingredients of the Chinese conviction."

7. On 18 October 1996 the magistrate committed the applicant to prison pending extradition. On 3 November 1996 he filed his application for a writ of habeas corpus.

Are these proceedings academic?

8. The offence for which the applicant was convicted and punished on the Mainland was one of organising people to cross the national border illegally. The offences for which extradition is requested include offences of conspiracy, kidnapping, hostage taking, receipt of ransom, extortion and assisting illegal immigration into the United States. At first blush it appears astonishing that a plea in bar could possibly be established. However Mr McCoy SC (for the applicant) explained that the evidence of the expert in Chinese law would be to the effect that wider facts are taken into account in the Chinese proceedings than appears from a description of the offence.

9. For the purposes of this appeal only, we assume that it would be possible for a plea in bar to be established at least in relation to some of the offences.

The applicable law

10. The magistrate exercised his powers under the United States of America (Extradition) Order 1976 S.I. 1976 No. 2144 which came into force on 21 June 1977. This sets out the terms of the relevant Treaty dated 8 June 1972. This order was made under enabling provisions of the Extradition Acts 1870-1935 as amended by the time of these proceedings by the Extradition Act 1989. By s.1(3) and 4 of the 1989 Act, Schedule 1 (derived from the 1870 Act) applies but not the rest of the statute.

11. By ss. 2 and 3 of the Extradition (Hong Kong) Ordinance (Cap. 236) the powers of the Secretary of State and the Police Magistrate under the United Kingdom Acts were to be exercised in Hong Kong by the governor and any magistrate.

12. Clause 6 of Schedule 1 of the 1989 Act is directly relevant to the issue for our decision. This provides:

"Hearing of case and evidence of political character of crime

6. (1) When a fugitive criminal is brought before the metropolitan magistrate, the metropolitan 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 England or Wales.

(2) The metropolitan magistrate shall receive any evidence which may be tendered to show that the crime of which the prisoner is accused or alleged to have been convicted is an offence of a political character or is not an extradition crime."

13. There are two other provisions which deal with the admission of evidence but also make no mention of evidence relating to double jeopardy:

"Restrictions on surrender

1. (1) The following restrictions shall be observed with respect to the surrender of fugitive criminals.

(2) A fugitive criminal shall not be surrendered-

(a) if the offence in respect of which his surrender is demanded is one of a political character, or

(b) if he proves to the satisfaction of the metropolitan magistrate or the court before whom he is brought on habeas corpus, or to the Secretary of State, that the requisition for his surrender has in fact been made with a view to try or punish him for an offence of a political character."

And clause 7(1):

"Committal or discharge of prisoner

7. (1) 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 England and Wales, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England or Wales, the metropolitan magistrate shall commit him to prison, but otherwise shall order him to be discharged."

14. Article V of the Treaty

Article V of the Treaty provides:

"(1) Extradition shall not be granted if:

(a) the person sought would, if proceeded against in the territory of the requested Party for the offence for which his extradition is requested, be entitled to be discharged on the grounds of a previous acquittal or conviction in the territory of the requesting or requested party or of a third State; or

(b) the prosecution for the offence for which extradition is requested has become barred by lapse of time according to the law of the requesting or requested Party; or

(c) (i) the offence for which extradition is requested is regarded by the requested party as one of a political character; or

(ii) the person sought proves that the request for his extradition has in fact been made with a view to try or punish him for an offence of a political character.

(2) Extradition may be refused on any other ground which is specified by the law of the requested Party."

15. Mr McCoy was inclined to make submissions relying upon this provision but when the opening words "extradition shall not be granted if" were pointed out to him, he did not press the submissions further. There is a contrast between the provisions of the article and clause 1(2)(b) of Schedule 1 which reads: "if he proves to the satisfaction of the ... magistrate ...".

16. I refer to the Treaty in order to exclude it. It is not within the jurisdiction of the magistrate nor is it his function to receive evidence concerned with the obligations under the Treaty. His powers are limited to those provided in the relevant statutory provisions although Mr McCoy contends these may include common law powers if they are provided on a true construction of the statute. See R v Governor of Pentonville ex p Sinclair [1991] 2 AC 64 at 91F-92A per Lord Ackner with whom the other members of the Committee agreed. This followed the judgment in the Divisional Court of Goff LJ (as he then was) in In Re Nielsen (1983) 79 CrAppR 1 in which he decided that under the relevant legislation, the only evidence the magistrate will receive in an accusation case is:

(1) whether the crime alleged is an extradition offence - Schedule 1 clause 6(2) above;

(2) whether the offence is of a political character, or whether the requisition has been made "with a view to try him ... for such an offence". Schedule 1 clause 1(2)(b);

(3) whether the conduct complained of is criminal if committed in Hong Kong, and

(4) whether the conduct complained off would justify committal for trial if committed in Hong Kong.

Since the sea change brought about by Goff LJ's judgment above, the emphasis is upon retaining the simplicity of proceedings before the magistrate and where possible avoiding his consideration of foreign law.

17. This decision was affirmed by the House of Lords in In Re Nielsen [1984]1 AC 606.

The applicant's case

18. In summary Mr McCoy contends that it is open to the magistrate in extradition proceedings to entertain a plea of autrefois convict (or its equivalent in a summary trial) to receive evidence, and to decide the issue.

19. He relies upon clause 6(1) of Schedule 1 - in particular - the words that the magistrate 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 ... [in Hong Kong]".

20. He submits:

(1) That a double jeopardy defence is available in trials in the Magistrates Court. See Wemyss v Hopkins (1875) LR 10 QB 378 and Flatman v Light [1946]1 KB 414.

(2) That such a plea can be entered - or a defence raised - in committal proceedings for indictable offences. This is provided by s.31 of the Criminal Procedure Ordinance. The words "criminal proceedings" must include committal proceedings for indictable offences. Section 31 provides:

"31. Plea of autrefois convict or autrefois acquit

(1) In criminal proceedings in any court on a plea of autrefois convict or autrefois acquit the accused person may state that he has been previously convicted or acquitted, as the case may be, of the offence charged.

(2) In this section, 'court' includes the District Court and a magistrate."

(3) That in Atkinson v USA Government [1971] AC 197 the House of Lords accepted counsel's concession that the magistrate in extradition proceedings has power to deal with a plea in bar of autrefois convict at the hearing.

(4) Furthermore in R v The Governor of Pentonville ex p Sinclair [1991] 2 AC 64 at 77F the court confirmed this by citing the relevant passage without disapproval.

(5) The Court of Appeal in Hong Kong also accepted that a plea of autrefois convict could be heard and decided upon by the magistrate in extradition proceedings. See Levy v Attorney General [1987] HKLR 777 at 781A.

(a) Has an examining magistrate jurisdiction to hear and determine a plea in bar of autrefois convict in committal proceedings?

21. The words "as near as may be" in clause 6 of Schedule 1 have been held to mean "as near as may be consistent with the extradition legislation". See In Re Thongchai Sanguandikul [1994]1 HKCLR 1 with which I agree. It is necessary to consider whether an examining magistrate has jurisdiction to entertain and decide a plea in bar of this nature in committal proceedings.

22. Historically, a plea in bar to an indictable offence could never be raised at committal proceedings. It was a plea in bar to the indictment only and was hedged with technicality. For example, it could only be made to the indictment and had to be made in writing. However, the Administration of Criminal Justice Improvement Act 1851 s.XXVIII provided that:

"In any Plea of autrefois convict ... it shall be sufficient for any Defendant to state that he has been lawfully convicted ... of the said Offence charged in the Indictment."

This allowed an oral plea of autrefois convict for the first time but it remained a plea to the indictment. It could never be made before an examining magistrate as committal proceedings are not a trial and no indictment could be settled until after the committal. It is a plea which in the absence of statutory provision is only appropriate at trial.

23. Of course, it is a fundamental right under our law that a person should not be put in peril or punished twice for the same offence. But this is a matter which must be raised for the decision of the judge - or a magistrate in a summary case - when pleading to the offence charged at a trial. It is only at a trial that the issue can be raised by plea and a final determination of the defence made.

24. The magistrate has no jurisdiction to try indictable offences. Committal proceedings are only held for indictable offences. Committal proceedings are not a trial. No plea is taken and indeed no plea can be taken by the magistrate save as is specifically provided by s.81B of the Magistrates Ordinance (Cap. 227) to which I will refer.

25. In Hong Kong, the statutory framework for committal proceedings is provided in the Magistrates Ordinance Part III. Section 81B allows for a magistrate to accept a plea of guilty at the conclusion of committal proceedings and thereafter to commit the accused to the High Court for sentence. This provision allows the committal proceedings to be terminated with an admission of guilt. It is a specific provision without which an examining magistrate would have no such power and it does not affect the principle which I have addressed.

26. For these reasons, I would hold it is contrary to principle for an examining magistrate and outwith his jurisdiction were he to entertain and determine a plea of autrefois convict - or any equivalent plea. I would further hold for these reasons that in the absence of other statutory provision or jurisdiction recognised by legal authority the words in clause 6(2)(b) of Schedule 1 do not give the magistrate in extradition proceedings the jurisdiction contended for.

Section 31 Criminal Procedure Ordinance (Cap. 221)

27. Mr McCoy submits that s. 31 of the Criminal Procedure Ordinance (Cap. 221) clearly provides the magistrate with jurisdiction to hear and determine a plea of autrefois convict. He submits that "criminal proceedings" must include committal proceedings and that is an end of the matter.

28. I regret that I cannot accept this submission. At first sight, it appears so but a consideration of the words "it shall be sufficient for any defendant to state" and the legislative history made it clear that on their true interpretation of the words "criminal proceedings" refer to criminal trials and not to committals.

29. Section 31 is taken from section XXVIII of the Administration of Criminal Justice Improvement Act 1851. That provision was to enable pleas to be made orally. Section 31 makes the same provision. It does away with the written plea and extends this to trials which are not on indictment. This can only refer proceedings where pleas are taken and the issue raised can be decided. I would so hold.

Does relevant authority recognise the jurisdiction contended for?

30. Mr McCoy urges the Court to follow United Kingdom and Hong Kong authority which, he submits, we should accept as correct even though the passages are obiter dicta.

31. The first appears in Atkinson v USA Government [1971] AC 197 per Lord Reid at 231G when he notes:

"Then the Act provides by section 9 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 England.'

It is not disputed that at that stage the magistrate can deal with a plea in bar of autrefois acquit or autrefois convict. The question is whether, if there is evidence sufficient to justify committal, the magistrate can refuse to commit on any other ground such as that committal would be oppressive or contrary to natural justice."

32. The second is R v Governor of Pentonville ex p Sinclair [1991] 2 AC 64 at 77F where Lord Ackner with the agreement of the other members of the Committee cites a long passage from Lord Reid in Atkinson's case above which includes the part recording the relevant concession without dissent.

33. The third appears in a judgment of Mustill LJ (as he then was) in Re Treitz, English Divisional Court, unreported, 20 December 1985. The first passage is at 22F to 23B:

"In fact, however, I believe that the common law does provide a safeguard, in the shape of the fugitive's right to raise the plea of autrefois convict. It was not disputed in Atkinson v Government of USA and was accepted, ibid, by Lord Reid at page 231F that the defences of autrefois acquit and autrefois convict may be raised as pleas in bar before the extraditing magistrate and, if well founded, would require him to discharge the prisoner. It may, perhaps, be questioned whether, in a strict sense, the plea of autrefois convict can be a bar to extradition where the fact of the prisoner's having been previously convicted forms the basis of the foreign government's request. Perhaps the plea of autrefois convict does, as Mr Newman contended, embrace a case where it is the fact of previous punishment, not conviction, which is the essence of the contention that the prisoner should not be put in peril again. Or perhaps some other principle is involved. Nevertheless, whatever the form of the defence, it must surely exist: ...".

The second is at 23D:

"In my judgment, if the magistrate were satisfied that the prisoner had already served his sentence, he would be justified in refusing to commit him to custody with a view to his being sentenced again: or, at the very least, in reporting to the Secretary of State that extradition would be unjust."

34. Finally, Levy v Attorney General [1987] HKLR 777 at 781A where Roberts CJ giving the judgment of the Court said:

"In this instance it was necessary to satisfy the magistrate that the conduct was 'punishable in the United States of America by imprisonment or other form of detention for more than one year or by the death penalty' and that it constituted 'a felony under the law of the United States of America'. Otherwise the American law could not have been relevant, except to establish one of the defences afforded by Article V of the Treaty - e.g. autrefois acquit or limitation of time."

35. Statements to this effect by judges of such distinction even if obiter, must be considered with care. However, the dicta of Lord Reid in Atkinson's case arose from counsel's concession without any examination of principle. This was the basis of the dicta in the following cases with the exception of Levy's case in this Court. In Sinclair's case there was no issue on autrefois convict and the passage from Lord Reid's judgment containing the reference to autrefois convict en passant was cited in support of other propositions.

36. It was decided in Sinclair's case that in extradition proceedings, a magistrate has no jurisdiction to examine whether those proceedings were, or might be, an abuse of the process of the court. His powers are limited to those provided by the statute.

37. It was recognised - though not yet by the House of Lords - that magistrates in domestic proceedings had inherent jurisdiction to entertain abuse of process. A fortiori, therefore, absent any statutory provision giving the magistrate jurisdiction to hear and determine a defence of double jeopardy (as now appears in the Hong Kong legislation) he has no such jurisdiction. There is no relevant statutory provision.

38. In these circumstances I am driven to the view that no weight should be given to the obiter dicta relied upon by Mr McCoy and the point has been overtaken by the decision in Sinclair.

Are there other safeguards?

39. That is not to say that the legislation provides no safeguard against double jeopardy. It is such a fundamental right. As Lord Reid observed in Atkinson's case at 233:

"But the Act does provide a safeguard. The Secretary of State always has power to refuse to surrender a man committed to prison by the magistrate. It appears to me that Parliament must have intended the Secretary of State to use that power whenever in his view it would be wrong, unjust or oppressive to surrender the man. Section 10 of the Act of 1870 provides that when a magistrate commits a man to prison 'he shall forthwith send to a Secretary of State a certificate of the committal, and such report upon the case as he may think fit.' So the magistrate will report to the Secretary of State anything which has come to light in the course of proceedings before him showing or alleged to show that it would be in any way improper to surrender the man. Then the Secretary of State is answerable to Parliament, but not to the courts, for any decision he may make.

If I had thought that Parliament did not intend this safeguard to be used in this way, then I would think it necessary to infer that the magistrate has power to refuse to commit if he finds that it would be contrary to natural justice to surrender the man. But in my judgment Parliament by providing this safeguard has excluded the jurisdiction of the courts."

Further, an applicant is not deprived of access to the courts if the Treaty is not complied with. In certain circumstances he may raise non-compliance in habeas corpus proceedings. In others, it is open to him to judicially review the Executive's final decision to extradite.

40. In the circumstances I do not find it necessary to rely upon Schmidt v R [1987] 33 CCC (3rd) 193 which was cited to us and relied upon by the judge below but this decision is consistent with my finding.

41. For these reasons I agree with the decision of the judge below although I reach it by a slightly different route. I would dismiss the appeal.

Godfrey, J.A.:

42. In domestic criminal proceedings, an accused person may assert that he has already been acquitted, or convicted, of the offence with which he has now been charged. If the prosecution disputes his assertion, that issue must be determined, one way or the other. His trial cannot proceed until it is determined. But when is the issue to be determined? Can the accused person raise the issue for determination at the committal stage, or must he be left to do so at trial? Authority provides no answer to this question. If the correct answer is that the issue may be raised for determination at the committal stage of domestic criminal proceedings, then it must follow, as it seems to me, that it can equally be raised for determination at the same stage of extradition proceedings, in which (as nearly as may be) the magistrate is entitled to exercise the same jurisdiction, and powers, as are conferred on him in domestic criminal proceedings. The converse is also true; if the question cannot be raised for determination at the committal stage in domestic criminal proceedings, it must follow that it cannot be raised for determination at the committal stage of extradition proceedings (unless of course there is some express statutory provision enabling the point to be raised and determined at that stage).

43. So, in the present case, we should, as I think, first grapple with the question whether such an issue can be raised for determination in domestic committal proceedings.

44. The judge thought that it could, although he considered it unnecessary to decide the point. For my part, I think it is necessary to decide the point, and that the decision must be in the negative; i.e., that the question cannot be raised for determination at the committal stage of domestic criminal proceedings.

45. The jurisdiction, and powers, of the magistrate in committal proceedings are limited to those conferred on him by section 85 of the Magistrates Ordinance, Cap. 227. Section 85 reads as follows :

"85. Discharge or committal of accused

(1) If after hearing all the evidence offered on the part of the prosecution and the evidence, if any, of the accused and his witnesses and after taking into consideration any statement made by the accused, the magistrate is of opinion that there is not sufficient evidence to put the accused upon his trial for any indictable offence, the magistrate shall forthwith order the accused, if in custody, to be discharged as to the complaint or information then under inquiry, but such discharge shall not be a bar to any subsequent complaint or information in respect of the same facts.

(2) 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 and shall so inform the accused or cause him to be so informed."

46. I am of the opinion that, on its true construction, section 85 confers no jurisdiction or power upon a magistrate to entertain pleas in bar such as that under consideration now. His function is limited to a consideration of the evidence concerning the alleged offence.

47. Accordingly, in my judgment, the magistrate (in the absence of any express statutory provision to that effect) can have no wider jurisdiction, or power, in extradition proceedings then he has in ordinary domestic committal proceedings.

48. If that is right, the question cannot be raised for determination at the committal stage of extradition proceedings. This means, so far as extradition proceedings are concerned, that the accused person's only hope of avoiding extradition on this ground will lie in persuading the executive that it would be unjust to extradite him.

49. This may seem harsh; but it is the only conclusion consonant with what I conceive to be the most recent, and most relevant authority. I refer to R. v. Governor of Pentonville Prison, ex parte Sinclair [1991] 2 AC 64. This case establishes that a magistrate has no jurisdiction to decide, at the committal stage of extradition proceedings, a question as to whether there has been an abuse of the process of the court. I can discern no relevant distinction, for present purposes, between a preliminary issue as to whether there has been an abuse of the process of the court, and a preliminary issue as to whether the accused person has already been acquitted, or convicted, of the same offence. Just as an accused person is entitled to due process of law, so he is entitled not to be put in jeopardy a second time over the same offence. But if he is not entitled to assert the first of these fundamental rights at the committal stage of extradition proceedings, it must, I think, follow that he cannot at that stage assert the second of these fundamental rights either.

50. This conclusion is consistent not only with Sinclair's case but also with the reasoning of the Supreme Court of Canada in Schmidt v. R. (1987) 33 CCC (3rd) 193, on which the judge below relied, and with which reasoning I entirely agree. I appreciate that it is or may be inconsistent with some dicta of Lord Reid in Atkinson v. Government of the United States of America [1971] 2 AC 197 (at p.231) and of Mustill L.J. in In re Treitz, 20 December 1985, unreported. But, like the judge below, I do not think these dicta can stand with the later decision in Sinclair's case.

51. For these reasons, I too would affirm the decision of the judge below, and dismiss this appeal.

Rogers, J.A.:

The Appeal

52. The Appellant seeks to set aside an order of the High Court dismissing his application to be released pursuant to a writ of Habeas Corpus granted by Leonard J. on the 3rd November 1996.

The Facts

53. In December 1994, the appellant was convicted in the People's Court of Changle County of the offence of secretly transporting persons across the national border. He was sentenced to 18 months imprisonment, part of which was remitted but the remainder of which he served before coming to Hong Kong. In June 1996, following a provisional warrant a request was made by the Government of the United States for the appellant's extradition to the United States to face an indictment which had been returned by a Grand Jury charging the Appellant and others with a number of crimes allegedly committed in the United States including offences of demanding a ransom and false imprisonment, those offences carrying maximum terms of life imprisonment.

54. On 18th October 1996 the magistrate advised the Governor that he had committed the Applicant to prison to await the Governor's warrant for the Appellant's surrender.

55. On 3rd November the Appellant filed his application for a writ of Habeas Corpus.

56. The Appellant contends that the circumstances of his conviction in the People's Republic are such that it should be treated on the basis that all offences of which he is charged in the United States of America have been dealt with. He says that he should not be put in jeopardy of being charged and sentenced in respect of acts for which he has already been sentenced. It is said on the Appellant's behalf that because of the way the matters went before the Magistrate it was not possible to call the expert witness on Chinese law who had been available at the opening of the extradition proceedings and would have been able to provide the necessary evidence. Whether that is regarded as optimistic or wishful thinking this case has to be conducted at this stage on the basis that the appellant could prove the relevant facts.

The Law

57. As the Judge below said and as is set out by Fuad V.P. in the case of Law Kin-man v The Government of the United States of America, Civil Appeal No. 161 of 1990, the starting point of the extradition jurisdiction as regards this case is the Extradition Act 1989. The effect of Section 1(3) and Section 4 of that Act was to apply the provisions of Schedule 1 of that Act to Hong Kong because the United States of America (Extradition) Order 1976 S.I. 2144 of 1976 (which had been made, inter alia, under Section 2 of the Extradition Act 1870) had been applied to Hong Kong. Paragraph 3 of S.I. 2144 of 1976 specifically envisaged the application of further legislation and hence the 1989 Act can be regarded as falling within its purview. Section 37(3) of the 1989 Act provided that that Order was not affected by the 1989 Act.

58. Section 1(3) of the 1989 Act stated that Schedule 1 was derived from the Extradition Act 1870 and associated enactments.

59. The basis for the application of those provisions necessary for Hong Kong was provided by the Extradition (Hong Kong) Ordinance Cap. 236. By Section 3 all magistrates in Hong Kong were given the powers of the police magistrate. Whereas the 1870 Act referred to the police magistrate, Schedule 1 to the 1989 Act refers to the metropolitan magistrate. In view of the terms of Section 1(3) of the 1989 Act, nothing turns on the fact that there was no amendment to Cap. 236 to make reference the metropolitan magistrate since clearly the provisions are intended to refer to the same office.

60. For completeness, it can be mentioned that the Fugitive Offenders Ordinance Cap. 503 has now replaced the previous provisions and as I will mention later in some instances adds to the previous law. As far as the present case is concerned, however, this falls to be determined under the law as it existed before the Fugitive Offenders Ordinance.

61. The issue before this Court can be simply stated: that is whether the magistrate in exercising his functions under Schedule 1 of the Extradition Act 1989 as applied by Cap. 236 in relation to S.I. 2144 of 1976 could and in effect should have considered a plea of autrefois acquit or autrefois convict (which I shall refer to collectively as the autrefois plea) on the part of the person sought to be extradited.

62. Mr. McCoy, S.C. on behalf of the Appellant has based his case on the simple proposition that the words jurisdiction and powers contained in the paragraph 6(1) of Schedule 1 import the power and hence the duty to consider the autrefois plea. Paragraph 6 reads as follows :-

"(1) When a fugitive criminal is brought before the metropolitan magistrate, the metropolitan 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 England or Wales.

(2) The metropolitan magistrate shall receive any evidence which may be tendered to show that the crime of which the prisoner is accused or alleged to have been convicted is an offence of a political character or is not an extradition crime."

63. One of the planks of the Appellant's case is that S.31(1) of the Criminal Procedure Ordinance requires the magistrate to consider a plea of autrefois convict or acquit. Section 31 reads :-

"31(1) In criminal proceedings in any court on a plea of autrefois convict or autrefois acquit the accused person may state that he has been previously convicted or acquitted, as the case may be, of the offence charged.

(2) In this section, 'court' includes the District Court and a magistrate."

64. It is said that that provision applies as much to committal proceedings as to any other proceedings. The argument follows that the words jurisdiction and powers contained in Schedule 1 to the Act give the magistrate the same jurisdiction in extradition proceedings as if he were conducting a committal proceeding. The logical conclusion to be derived from that is said to be that the magistrate hearing the extradition proceedings is bound to consider the autrefois plea.

65. It is said that the autrefois plea is one of the important basic pleas in criminal law. It is fundamental to any system of law that there should not be abuse of the legal process. If a man is tried twice, or worse still, punished twice for the same offence that tenet would be broken. It is said that the right to avoid double jeopardy is also enshrined in the extradition system: it is provided in the relevant extradition treaty between the United Kingdom and the United States which is set out in Schedule 1 of S.I. 2144 of 1976. Article V reads as follows :-

"(1) Extradition shall not be granted if :

(a) the person sought would, if proceeded against in the territory of the requested Party for the offence for which his extradition is requested, be entitled to be discharged on the grounds of a previous acquittal or conviction in the territory of the requesting or requested Party or of a third State."

66. Moreover, Mr McCoy, S.C. relies upon statements contained in the speeches in the case of Atkinson v. U.S.A. Government [1971] A.C. 197 as well as in the Judgment in the later Hong Kong authority of Lawrence Louis Levy v. Attorney General [1987] HKLR 777.

67. It is said that the downside of not holding in favour of this argument that it would be left to the Executive and not the Judiciary to decide questions of autrefois acquit and convict. This would be undesirable because these are legal issues.

Committal proceedings

68. It is necessary first of all to consider the jurisdiction of a magistrate in committal proceedings.

69. In Hong Kong, the statutory provisions relating to committal proceedings are contained in Part III of the Magistrates Ordinance Cap. 227. The history of those provisions is somewhat obscure. What can be said is that the provisions of the Magistrates Ordinance differ remarkably little from the provisions contained in the Indictable Offences Act 1848 (also referred to as Jervis's Act). Given the difference in the nature of criminal proceedings between then and now, it could be said that the Justices of the Peace had no wider function than simply that of committing a person for trial on indictment.

70. It is important to note that in taking depositions for the purpose of committing a prisoner for trial the Magistrate is not exercising summary jurisdiction. This truism was specifically mentioned in the course of considering whether justices could state a case by Channell J in Foss v Best [1906] 2 K.B. 105 in a passage cited with approval by Lord Reid in the Atkinson case at page 234.

71. Counsel on both sides were agreed that no case could be found where a magistrate or justices had considered the question of the autrefois plea in proceedings to commit or the question of his capacity or duty to do so had been considered. The reason for that is likely to be that given by the Vice-President simply that the situation could not arise unless and until there had been an indictment and that would only happen after the proceedings to commit were complete.

72. If that be right, a jurisdiction to consider the plea during committal proceedings could only arise from statute. The jurisdiction of magistrates when conducting committal proceedings is carefully spelt out in the Ordinance to the point where every step is laid down.

73. I would mention Section 82 which makes provision for a statement by the accused :-

"(1) After the examination of all the witnesses and the admission of any statements for the prosecution has been completed, subject to the rejection of any submission made that there is no case which the accused should be called upon to answer, the magistrate shall read the charge to the accused and explain the nature thereof to him in ordinary language, and inform him that he has the right to call witnesses, and, if he so desires, to give evidence on his own behalf. After so doing the magistrate shall then-

(a) except where the offence is punishable by death, ascertain whether the accused desires to plead guilty to the charge in accordance with the provisions of section 81B; and

(b) if the offence is punishable by death or if the accused does not then plead guilty, address to him the following words or words to the like effect-

'Do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing and may be given in evidence upon your trial.'

(2) Before the accused makes any statement in answer to the charge, the magistrate shall state to him and give him clearly to understand that he has nothing to hope from any promise of favour and nothing to fear from any threat which may have been held out to him to induce him to make any admission or confession of his guilt, but that whatsoever he then says may be given in evidence on his trial notwithstanding the promise or threat.

(3) Whatever the accused says in answer to the charge shall be taken down in writing and read over to the accused and signed by the magistrate and, if the accused so desires, by him, and shall be transmitted with the depositions as hereinafter mentioned. On the trial the statement of the accused taken down as aforesaid, and whether signed by him or not, may be given in evidence without further proof thereof, unless it is proved that the magistrate purporting to sign the statement did not in fact sign it."

74. Section 85 determines what the Magistrate has to find. That reads as follows :-

"(1) If after hearing all the evidence offered on the part of the prosecution and the evidence, if any, of the accused and his witnesses and after taking into consideration any statement made by the accused, the magistrate is of opinion that there is not sufficient evidence to put the accused upon his trial for any indictable offence, the magistrate shall forthwith order the accused, if in custody, to be discharged as to the complaint or information then under inquiry, but such discharge shall not be a bar to any subsequent complaint or information in respect of the same facts.

(2) 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 and shall so inform the accused or cause him to be so informed."

75. In my view, Mr. Walsh who appeared for the Government of the United States is correct that Section 85 contains what it is the magistrate is required to do and consider. Part III of the Magistrates Ordinance gives no jurisdiction to the magistrate to consider the autrefois plea and the matter simply does not arise.

76. For completeness, I would add that the suggestion which was made in argument that reference in Section 85 of the Magistrates Ordinance to any statement by the accused was to a statement made under the provisions of S.31 of the Criminal Procedure Ordinance is, in my view, wrong. The word statement in Section 85 seems to me to refer to the statements given under the provisions of Section 82. Section 31 is a section introduced for historical reasons. It allows the autrefois plea to be raised orally and not on parchment, or at the very least in writing, as was apparently, according to the researches of Counsel, originally required. Prima facie because of the position of that Section in Part II of the Criminal Procedure Ordinance it only applies to trials and not to committals.

77. I would add that in coming to this conclusion I have not overlooked the decision of the House of Lords in the case of R. v. Horseferry Road Magistrate's Court ex parte Bennett [1994] 1 AC 42. That case involved committal proceedings and the question that arose was whether the proceedings were an abuse of the process. The House of Lords held that the magistrate, whether sitting as a committing magistrate or exercising the power of summary jurisdiction, had the power to control an abuse of process of jurisdiction but that power should be strictly confined to matters directly affecting the fairness of the trial of the particular accused. The wider responsibility for upholding the rule of law was that of the High Court and if issues as to that arose the matter should be adjourned to allow the High Court to deal with it. Translating that to extradition proceedings, the wider power to see that the provisions of the Treaty are observed and in particular the provisions relating to double jeopardy lie with, in this case, the Governor.

78. On that basis, the Appellant's appeal fails from the beginning, whether it is said that the jurisdiction and power arises from Section 31 or otherwise.

79. The Learned Judge below said that after hearing the argument he was inclined to the view that it could be raised at committal proceedings. He then went on to consider the position as to whether, if the plea could be raised in committal proceedings, it could be raised in extradition proceedings. Rightly, in my view, he came to the conclusion that even if the matter could be considered at committal proceedings, it could not be considered on extradition proceedings.

80. The jurisdiction of the magistrate in relation to extradition proceedings comes entirely from the statute namely in this case Schedule 1 of the 1989 Act. It is to be observed that although paragraph 1(2) of Schedule 1 imposes a duty on the magistrate to consider any evidence as to whether what is really sought by the extradition is the punishment of the fugitive for an offence of a political character, there is no mention in Schedule 1of any power or duty on the magistrate to consider questions relating to autrefois or double jeopardy.

81. Two matters in relation to the 1989 Act appear to me to be of relevance in interpreting its provisions. In the first place, the body of the Act itself contains some provisions which require the magistrate to consider aspects to prevent the fugitive being subject to double jeopardy. It therefore cannot have been any oversight that the Schedule contained no such provisions.

82. Secondly, under the new legislation the Court will have a limited power to prevent double actionability but that is only in relation to the law of Hong Kong. Section 5 of the Fugitive Offenders Ordinance provides a number of restrictions on surrender of offenders. Limited to those relevant to this case is the following:-

"(1) A person shall not be surrendered to a prescribed place, or committed to or kept in custody for the purposes of such surrender, if it appears to an appropriate authority-

.....

(e) that if the offence had occurred in Hong Kong, the law of Hong Kong relating to previous acquittal or conviction would preclude the prosecution, or the imposition or enforcement of a sentence, in respect of that offence."

83. Just as is in the Sinclair case, Lord Ackner found that the difference in the legislation under consideration from other legislation was a guide to the fact that there was no lacuna in the legislation, so here it is apparent that in the drafting of Schedule 1 the matter of double jeopardy could hardly have been overlooked and the new legislation now imposes a duty on the magistrate which was not there before.

84. For completeness, I would mention that the new Ordinance contains in Section 10(2)(a) similar provisions to paragraph 6(1) of Schedule 1 to the 1989 Act, thus further strengthening the conviction that in speaking of jurisdiction and powers the intention was not to refer to considering questions of autrefois acquit or convict.

85. As has been noted already, Article V of the extradition treaty between the United Kingdom and the United States prevents extradition in cases where the fugitive has been convicted or acquitted in almost any country. Nevertheless, it is clear that it is for the Secretary of State, or in the context of Hong Kong at the time of the proceedings, the Governor, to supervise the implementation of the Treaty.

86. In the case of In re Nielsen [1984] 1 A.C. 606, the duties of the magistrate under the 1870 Act were considered. In his speech at page 624, Lord Diplock stressed the derivation of the magistrate's jurisdiction from statute. He said :-

"The jurisdiction of the magistrate is derived exclusively from the statute. It arises when a person who is accused of conduct in a foreign state, which if he had committed it in England would be one described in the 1870 list (as added to and amended by later Extradition Acts), has been apprehended and brought before the magistrate under a warrant issued pursuant to an order made by the Secretary of State under section 7 or confirmed by him under the last paragraph of section 8.

At the hearing, sections 9 and 10 require that the magistrate must first be satisfied that a foreign warrant (within the definition of section 26 that I have already cited) has been issued for the accused person's arrest and is duly authenticated in a manner for which section 15 provides. Except where there is a claim that the arrest was for a political offence or the case is an exceptional accusation case, the magistrate is not concerned with what provision of foreign criminal law (if any) is stated in the warrant to be the offence which the person was suspected of having committed and in respect of which his arrest was ordered in the foreign state.

The magistrate must then hear such evidence, including evidence made admissible by sections 14 and 15, as may be produced on behalf of the requisitioning foreign government, and by the accused if he wishes to do so; and at the conclusion of the evidence the magistrate must decide whether such evidence would, according to the law of England, justify the committal for trial of the accused for an offence that is described in the 1870 list (as added to or amended by subsequent Extradition Acts) provided that such offence is also included in the extraditable crimes listed in the English language version of the extradition treaty. In making this decision it is English law alone that is relevant. The requirement that he shall make it does not give him any jurisdiction to inquire into or receive evidence of the substantive criminal law of the foreign state in which the conduct was in fact committed."

87. It is to be noted that if consideration were to be given to any submissions of autrefois and if determination were to be made as to the validity of such a plea, then foreign law would have to be considered not only of the requesting state but in all events probably of third party states as well.

88. That case was followed by the case R. v. Governor of Pentonville Prison Ex parte Sinclair [1991] 2 A.C. 64. In that case, the House of Lords was again considering the effect of the Extradition Act 1870 and the duties and powers of the magistrate in carrying out his duties under that Act. The House of Lords came to the clear and firm conclusion that there was no room for the implication of a discretion to stay proceedings for the abuse of the process of the court. It is unnecessary to set out any passages in Lord Ackner's speech save for his closing remarks at page 91 :-

"Your Lordships are concerned with the construction of an Act passed over a hundred years ago. I cannot accept that the legislature intended that it was to be part of the function of the police magistrate to preside over lengthy proceedings occupying weeks, and on occasions months, of his time hearing heavily contested evidence of foreign law directed to whether there had been due compliance with the many and varied obligations of the relevant Treaty. The inconvenience of such a procedure is well demonstrated by the current litigation. Had the challenges which the applicant wished to make been ventilated initially before the Divisional Court in habeas corpus proceedings, it is unlikely that the court would have permitted the lengthy oral evidence which the magistrate, as matters stood, felt himself obliged to hear. Certainly for the future, if your Lordships concur that the magistrate has no jurisdiction to decide either whether there has been an abuse of the process of the court, or whether the requirements of the Treaty have been satisfied, his powers being limited to those specified in sections 3(1), 8, 9 and 10, much time should be saved both in the magistrates' and in the Divisional Court."

89. In coming to his conclusions in the Sinclair case, Lord Ackner followed in great part what had been said by Lord Reid in the Atkinson case. He had said :-

"But that is not the end of the matter. It is now well recognised that the court has power to expand procedure laid down by statute if that is necessary to prevent infringement of natural justice and is not plainly contrary to the intention of Parliament. There can be cases where it would clearly be contrary to natural justice to surrender a man although there is sufficient evidence to justify committal. Extradition may be either because the man is accused of an extradition crime or because he has been convicted in the foreign country of an extradition crime. It is not unknown for convictions to be obtained in a few foreign countries by improper means, and it would be intolerable if a man so convicted had to be surrendered. Parliament can never have so intended when the 1870 Act was passed.

But the Act does not provide a safeguard. The Secretary of State always has power to refuse to surrender a man committed to prison by the magistrate. It appears to me that Parliament must have intended the Secretary of State to use that power whenever in his view it would be wrong, unjust or oppressive to surrender the man. Section 10 of the 1870 Act provides that when a magistrate commits a man to prison 'he shall forthwith send to a Secretary of State a certificate of the committal, and such report upon the case as he may think fit.' So the magistrate will report to the Secretary of State anything which has come to light in the course of proceedings before him showing or alleged to show that it would be in any way improper to surrender the man. Then the Secretary of State is answerable to Parliament, but not to the courts, for any decision he may make."

90. Earlier in his speech, Lord Reid had said :-

"It is not to be disputed that at that stage the magistrate can deal with a plea in bar of autrefois acquit or autrefois convict."

91. This was clearly a concession by counsel for the purposes of argument, it formed no part of the reasoning other than as a foil against which the House of Lords still came to its same conclusion despite the concession.

92. In the case of In the Matter of Stephen Treitz Queen's Bench Divisional Court 20th December 1985, Mustill L.J. also considered the fugitive's contention that that the Treaty prohibited extradition in cases of double jeopardy. His conclusion was that it was not in any event a case of double jeopardy. At page 22 of his judgment he referred to the Atkinson decision and whilst noting what it had said concluded by saying :-

"In my judgment, if the magistrate were satisfied that the prisoner had already served his sentence, he would be justified in refusing to commit him to custody with a view to his being sentenced again: or, at the very least, in reporting to the Secretary of State that extradition would be unjust."

93. As the Judge below pointed out that passage seems equivocal and perhaps Mustill L.J. had doubts about the accuracy of what he noted had been a concession for the purposes of argument and was not central to his own decision.

94. The only other case to which I consider it appropriate to refer is that of Lawrence Louis Levy v Attorney General [1987] HKLR 777. In that case, Roberts C.J. in giving the judgment of the Court made reference to foreign law being relevant foreign law in relation to defences provided by Article V of the Treaty and he gave the examples of autrefois acquit and limitation of time. Although that judgement cited the Nielsen decision, it was of course prior to the Sinclair decision. Again, this reference is an obiter dicta and one which would not have been made if full consideration had been given to the point in the light of that decision.

95. The jurisdiction and power of the magistrate must be looked at in the light of the fact that it is extradition proceedings which are being considered. The proceedings are different from committal proceedings. Unlike committal proceedings in extradition proceedings :

(a) There can be no cross-examination of tendered depositions;

(b) Discovery is not available;

(c) Abuse of the process of extradition as opposed to the hearing before the magistrate is not something for the Courts.

96. The jurisdiction of extradition is based on comity; see In re Kan, Paul [1992] 2 HKC 331, per Chan, J. Just as questions of guilt or innocence are left to the trial so in the case of extradition the treaty must be presumed by the Courts to have been effected in circumstances where the state is satisfied that adequate fairness of legal procedure is left to the requesting state.

97. I too would dismiss this appeal.

Mortimer, V.-P.:

98. Costs will follow the event. The respondents' costs of the appeal will be paid by the applicant. The applicant's own costs will be taxed under the Legal Aid Regulations.

[Mr McCoy, leading counsel for the applicant, applied for a certificate that the point of law:

"whether a magistrate in Hong Kong hearing extradition proceedings pursuant to Schedule 1 of the Extradition Act 1989 has jurisdiction to hear and determine a plea of autrefois convict,"

is one of great and general importance within the meaning of s.32(2) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484).]

Mortimer, V.-P.:

99. We are against you Mr McCoy on the grounds that the point is no longer one of general importance.