CHAN HOK SHEK v. SUPERINTENDENT OF LAI CHI KOK RECEPTION CENTRE AND ANOTHER

HCAL 118/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 118 OF 2009

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J U D G M E N T

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1.  The second respondent seeks the surrender of the applicant from the Hong Kong Special Administrative Region to the United States of America pursuant to the Fugitive Offenders Ordinance, Cap. 503. It made a request to the HKSAR Government: the applicant was arrested and, in due course, a committal hearing was held before a magistrate, H Mierczak, Esquire. The applicant opposed those proceedings: on 14 October 2009, he was committed to custody pending the decision of the Chief Executive as to whether he should be surrendered.

2.  On 29 October the applicant applied to this Court for a writ of habeas corpus. On that date he was granted leave to issue an originating summons for a writ of habeas corpus, which he did on 2 November with a date for hearing fixed for 30 November. Those proceedings were adjourned, due to the unavailability of the applicant's Leading Counsel of choice, to 6 January 2010.

Preliminary matters

3.  Three preliminary matters arose. First, in the original application for a writ of habeas corpus the second respondent had been reflected as a party in the applicant’s draft papers. However, Lam J, who heard the application, expressed his concern as to the propriety of that joinder: consequently, the applicant did not persist in citing the second respondent as a party. The Department of Justice, representing the second respondent, applied before me to join it as a party. It was not opposed by the applicant. I granted it.

4.  Mr McCoy SC who appeared for the applicant and Mr Walsh who appeared for both respondents each invited my attention to the decision in in re LI Yu Mui (1910) 5 HKLR 227, the first time that decision appears to have seen light of day in this jurisdiction since being made. The Chief Justice, Sir Francis Piggott, there expressed himself as being "... clearly of opinion that the Chinese government has no locus standi" in habeas corpus proceedings before Hong Kong courts. He observed, in the course of the judgment, that "... the most that can be said is that a practice has grown up of allowing the foreign government to appear, and that it is never been challenged, and therefore has never been considered by the courts.". That was a difficult observation given that he had previously considered the issue and expressed the same opinion on two occasions: see in re WONG Ka Cheong (1905) 1 HKLR 1 at 20.

5.  The decision was referred to in R v Governor of Brixton Prison ex parte Minervini [1959] 1 QB 155 where the court found it unnecessary to decide the principle observing that it "... has power in a proper case to direct that the notice of motion be served on the representative in this country of the requisitioning government so that the court can have the benefit of their views." In that matter the requisitioning government was represented by counsel and the court indicated that it would hear from him "... should the occasion arise".

6.  Whatever the position may have been a century ago, where habeas corpus proceedings are brought in respect of a person in detention pending a decision as to extradition the established practice today is for the requesting country to be joined as a respondent: the proceedings which resulted in the detention of the detained person were commenced at the instance of the requesting country; fundamental to those proceedings is the issue of a warrant of arrest in the requesting country consequent upon the assertion of the commission of offences by the detained person, justiciable in the requesting country; and both the requesting country and the detained person have a real and material interest in the requesting country being a party to the proceedings. It is a practice which, in my judgment, is sound and should continue.

7.  Secondly, the respondents correctly highlighted in their skeleton argument a "procedural confusion" which occurred but took no objection to the hearing of the substantive inter partes application. The applicant, of course, was anxious for his position to be determined. Consequently, it was accepted that, whatever route proceedings may have taken, the hearing before me was to proceed as a hearing pursuant to s. 22A(10) of the High Court Ordinance - if resolved in favour of the applicant there would be an order for his immediate release; if resolved against him the application would fall to be dismissed.

8.  Thirdly, the applicant objected to the admissibility of an affirmation dated 24 December 2009, by an Inspector of the Customs and Excise Department, Mr SZETO Chi-fai: there are two affirmations by him on the same date, that objected to appears at pages 145 to 154 of the appeal bundle. Particular objection was taken to the contents of paragraph 9 and to the inclusion of the annexures there referred to on the ground that they related to events which occurred or information which became available subsequent to the committal proceedings. The rest of the affirmation was objected to on a number of different bases which had been foreshadowed in a letter previously addressed to the court and the Department of Justice by those acting on behalf of the applicant.

9.  Mr. Walsh, on behalf of the respondents, accepted that there were difficulties in regard to paragraph 9 and the annexures on the authority of R v Governor of Brixton Prison, ex parte Schtracks (1964) AC 556 at 580, followed in in re Thongchai Sanguandikul [1994] 1 HKCLR 1 at 12. That was a realistic acceptance. However, he contended that the rest of the affirmation was simply there to explain to the court how the proceedings came before it and that to file such an affirmation has become a common practice.

10.  The contents were, per se, unexceptionable. However, the fundamental rule relating to admissibility is that that which is sought to be admitted must be relevant. Everything contained in the affirmation was already before this Court. The affirmation added nothing, was thus not relevant to these proceedings and consequently was inadmissible.

The background

11.  It is not in dispute that criminal proceedings have been instituted against the applicant in the USA by the filing of an indictment returned by a Federal Grand Jury which alleges a number of felonies by the applicant and co-conspirators: conspiracy to commit violations of the Arms Export Control Act and export smuggling; export of defence articles in violation of the Arms Export Control Act; smuggling of goods from the USA; and money laundering. The conduct which gave rise to these charges is asserted to be the purchase of, and export from, the USA by the applicant of certain items, specifically servo driven tachometers, the export of which is prohibited except by way of license or other authority. The applicant is alleged to have acquired the items through the involvement of one Desmond Dinesh Frank, a Malaysian national. The money laundering charges arise from the remittance by the applicant of money to the USA to pay for those items.

12.  The applicant accepts that there has been proper compliance with the procedural requirements of the application for his return. He challenges the decision of the magistrate on three bases: the absence of Frank from the jurisdiction of the USA; the inclusion in the material before the magistrate of hearsay material; the failure by the magistrate to give reasons for his decision.

Frank’s absence from the USA

13.  This issue has three components: the effect of Frank’s absence from the USA; an asserted lack of candour concerning that absence on the part of those acting for the respondents; and the uncorroborated nature of the evidence against the applicant.

14.  The affidavit founding the application for surrender was deposed to by an Assistant United States Attorney, a Ms Siegmann: to it were annexed three further affirmations, one by Frank and two by law enforcement officers. It is accepted that the evidence against the applicant comes solely from the affirmation of Frank, for it was only he who had had dealings directly with the applicant: although the two law enforcement officers had contact with Frank at different stages, they have never met the applicant. The second respondent does not suggest that, absent Frank's evidence, it will be able to prove the allegations against the applicant.

15.  Frank deposed to his affidavit on 18 May 2009 stating that on 16 May 2008 he had entered pleas of guilty to offences comprising conspiracy to violate the Arms Export Control Act, smuggling goods from the USA and money laundering. He was sentenced to 23 months imprisonment on 28 August 2008. He goes on to describe his dealings with the applicant. Nowhere in that affidavit does Frank specifically state that it is his intention, or that he is willing, to testify against the applicant.

16.  Ms Siegmann’s affidavit was attested on 26 May 2009, eight days after that of Frank. A request for the surrender of the applicant  was forwarded to Hong Kong, as a result of which the Chief Executive issued an Authority to Proceed on 3 July. The applicant was arrested on 25 August and brought before a magistrate the following day. Hearing of the committal proceedings was fixed for 10 September.

17.  There is nothing to suggest that at the time he deposed to his affirmation Frank was not still incarcerated: it is notable that the affidavit was attested by a notary public in the Commonwealth of Pennsylvania. There is no evidence before me, nor was there before the magistrate, as to when it was that Frank left the USA to return to Malaysia. The applicant asserts that Frank was "deported" from the USA and concludes that he would be prohibited from returning: even assuming that the applicant is correct about deportation it is not axiomatic that Frank would not be permitted to return there, more particularly so when it is plainly in the interests of the prosecuting authorities of the USA that he do so. Moreover, existing technology does not require physical presence within a particular jurisdiction in order to testify in court proceedings.

18.  Much was made of Frank’s absence from the USA before the magistrate. The second respondent submits that availability of a witness for a trial in the requesting country is not a matter relevant to the decision to be made by the magistrate. The magistrate expressed his concern about this matter but, on my reading of the record, purely at a pragmatic level rather than the absence being any bar to an order for committal being made. The magistrate appreciated that it was his function to determine whether there was a prima facie case and, if so, to commit the applicant to custody.

19.  He expressed his view that Frank's potential availability to testify was an issue which should be clarified and that his concerns in this regard should be made known to the Chief Executive who ultimately makes the decision as to surrender. That was an entirely proper and responsible approach for the magistrate to have adopted, for that may well be a factor for the Chief Executive to take into account when making his decision. Although it plays no role in my decision, for the sake of completeness I simply note that, as suggested by the magistrate, there is now written confirmation which may be placed before the Chief Executive that Frank is prepared to testify.

20.  Prior to the commencement of the committal hearing Mr. McCoy took what was termed a "preliminary point" which was, in essence, the same point that he pursued later in the committal proceedings and in this application. At the conclusion of submissions on that "preliminary point" the magistrate indicated, albeit perhaps somewhat equivocally, that he accepted the submissions of counsel for the respondents that there was no obligation on the second respondent to establish the availability or willingness of Frank to testify at a hearing. The following passage in the transcript is relevant:

"Miss Lam: My reply will be, because this Ordinance reflect the requirement in the agreement, and Hong Kong has signed an agreement with the US government, the US government is only obliged to give what is required under the agreement, which is reflected in the Ordinance.

So, if the agreement have not request this additional information which relate to the trial issue, I am concerned that we are acting beyond the agreement and beyond the provision of 10(6)(b) to ask for this additional evidence, which is not relevant for the purpose of the committal proceeding.

Court:    So you're not asking for an adjournment to attempt to get another affidavit?

…or something more concrete that the witness will attend to give evidence if this fugitive is extradited.

Miss Lam:   My concern is, your worship, under the law you should not look into that issue and such additional evidence is not necessary for the purpose of this proceeding.

Court:    Well on a strict interpretation of the section, I think I'm with you, madam.

Mr. McCoy: Well, then, sir, may I suggest that we just start and have a short day.

Court:    Yes, yes.

Mr. McCoy: Why don't we start the proceeding then,    formally?”

21.  It is evident from this exchange as well as from the magistrate's later decision that he did not regard a lack of evidence as to Frank's willingness or availability to testify as being a bar to the making of an order for committal: had he done so, he would not have ordered the committal. In this, he was correct.

22.  Subject to the provisions of s. 5 of the Fugitive Offenders Ordinance, Cap. 503, which prohibit the surrender of a person or a person being kept in custody for the purposes of surrender in certain defined circumstances, none of which applies in the present matter, the powers and duty of a magistrate sitting in committal proceedings are delineated in s. 10 in these terms, in its relevant parts:

“(6) 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; and (iv) …

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; and (Amended 71 of 1999 s. 3) (ii) if the Chief Executive decides that he shall be surrendered to that place, to await such surrender.”

23.  Thus, once a magistrate is satisfied as to the matters set forth in s. 10(6)(b) he is obliged to commit the person to custody pending the decision as to whether he should be surrendered once he is satisfied of those matters: no discretion vests in the magistrate. There was no dispute as to compliance with s.10(6)(b)(i) and (ii). It consequently remained for the magistrate to be satisfied only as to one thing, namely that there was sufficient evidence placed before him which would warrant committal for trial in domestic proceedings, that a prima facie case had been made out. There is nothing that requires the magistrate to be satisfied that evidence upon which the requesting state relies, as a matter of fact, will be available or tendered at any subsequent trial. Whether the evidence is placed before the ultimate tribunal or whether, if so placed, it is accepted by that tribunal is not a matter about which the magistrate is entitled to concern himself.

24.  Courts in Hong Kong, in England and in numerous other jurisdictions have consistently emphasised, over decades, the unique nature of extradition proceedings and the necessity to maintain the simplicity of their procedure.  This emphasis has been maintained irrespective of the particular legislative regime in effect in the respective jurisdiction at any given time, albeit that the essential nature of the proceedings has remained constant.

25.  In some respects that procedure departs substantially from many of the checks and balances which one finds in other areas of the law, particularly with developments in human rights law: three of the more striking departures are that there is no right of cross-examination, discovery is not available and there is no right to lead evidence which contradicts evidence tending to show the commission of the offence in respect of which extradition is sought. A magistrate, deriving his authority solely from statute, is not entitled to arrogate to himself a jurisdiction which is not conferred upon him (see, for example, CHEN Chong Gui v Senior Superintendent of Lai Chi Kok Reception Centre & Ano [1988] 1 HKC 522, specifically in regard to extradition and, generally, YEUNG Chun Pon v Secretary for Justice (2006) 9 HKCFAR 836 - no jurisdiction to determine a plea of autrefois convict or any equivalent in committal proceedings; CHENG Chui Ping v The Chief Executive of the HKSAR & Ano CACV138/2002 - no jurisdiction to consider a defence of  time limitation; LAY Eng Teo v Superintendent of Tai Lam Centre for Women & Ano [2002] 4HKC 384 at §§16, 25 and 30 – or defences generally; R v Governor of Pentonville Prison, ex parte Sinclair [1991] 2 AC 64; Knowles v US Government [2006 UKPC 38], [2007] 1 WLR 47 – no jurisdiction to stay extradition proceedings on the grounds of abuse of process).

26.  There are, of course, good reasons for these departures: the proceedings before the magistrate are a consequence of international agreements based upon reciprocity and comity; it may be taken, therefore, that the requesting party is acting in good faith; the magistrate’s function in determining whether there is a prima facie case for a fugitive to answer is but one step in the extradition procedure, albeit an important one; it is not the magistrate but, in Hong Kong, the Chief Executive, who decides whether a person should be surrendered; a fugitive enjoys the protection of habeas corpus proceedings; the proceedings do not determine guilt or innocence of the fugitive, which is reserved for decision in the event that he is extradited; and the necessity for a committing magistrate to be required to decide matters of foreign law is avoided.

27.  I am satisfied that, in extradition proceedings, a magistrate has generally neither the duty nor the power to take into account whether a witness will be available for trial. Of course, if the magistrate is satisfied on the evidence before him that the testimony of a particular witness will not be available at trial, that would be a factor which he would be entitled to take into account in determining whether a prima facie case is made out: that is not the position in this matter.

28.  The second aspect to this argument was what the applicant characterized as a lack of candour on the part of those representing the second respondent by not indicating their knowledge of the fact that Frank was no longer within the USA. I was referred to several authorities by the applicant, particularly that of the Court of Appeal in CHU Woan-chyi & Others v Director of Immigration [2009] 6 HKC 77, relating to the applicability of the duty of candour in public law proceedings. The essential nature of those proceedings was fundamentally different to extradition proceedings: given the special nature of extradition proceedings authorities in other fields are of limited utility. None of the authorities to which I was referred by the applicant related to extradition proceedings.

29.  The Privy Council, however, had cause to consider, specifically, the duty of candour in extradition proceedings in Knowles, above.  Lord Bingham of Cornhill said:

"34. Some doubt has arisen concerning a requesting state's duty of disclosure in extradition cases. Beginning in the judgment of the Divisional Court in R v Governor of Pentonville Prison, ex parte Lee [1993] 1 WLR 1294 Ognall J distinguished between extradition proceedings and domestic criminal proceedings, observing that "fairness is not a criterion relevant to the function of the committing court"…

35. The Board would hesitate to adopt the full breadth of Ognall J’s observation. There are many respects in which extradition proceedings must, to be lawful, be fairly conducted. But a requesting state is not under any general duty of disclosure similar to that imposed on a prosecutor in English criminal proceedings. It does, however, owe the court of the requested state a duty of candour and good faith. While it is for the requesting state to decide what evidence it will rely on to seek a committal, it must in pursuance of that duty disclose evidence which destroys or very severely undermines the evidence on which it relies. It is for the party seeking to resist an order to establish a breach of duty by the requesting state. The Board would endorse the general approach laid down by Mitting J... in Wellington v Governor of Belmarsh Prison [2004] EWHC 418 (Admin). In the present case the appellant has failed to discharge the burden lying on him."  [emphasis supplied]

30.  It must be appreciated that the Board was there speaking in the context of what might thought to be the rather wide ranging observation of Ognall J. Both Mr. McCoy and Mr. Walsh placed reliance upon this passage. Understandably so. I take it as incontrovertible that a duty of candour and good faith is owed in any proceedings before ant court, not simply in extradition proceedings. Plainly a court must not be misled, which caters for the requirement of fairness for which Mr McCoy contends pursuant to the provisions of art. 10 of the Hong Kong Bill of Rights.

31.  What is relevant, however, is the application of that principle to the facts of any given matter. It is in that regard that the parties diverge. I do not understand Mr. McCoy to submit that in all circumstances there is a continuing duty on a requesting country to keep the requested country or the court fully informed as to the potential availability of every witness but that, in the circumstances peculiar to this case, such a duty arose. At the commencement of the hearing before the committing magistrate it was made plain by Mr. McCoy on behalf of the applicant that Frank was no longer within the USA. Thus, the court was fully apprised of the true position from the outset. It is correct that that information was placed before the magistrate by counsel for the applicant but it was immediately acknowledged by the respondents’ counsel to be correct. It needs to be borne in mind that the applicant, who obviously was privy to the information even to the extent of being able to assert that Frank had been "deported", has not indicated when it was that Frank left the USA. It needs further to be borne in mind that Frank signed his affidavit when still in custody on 18 May which means that there was a relatively short time frame within which Frank would have returned to Malaysia.

32.  I accept, in principle, the contention on behalf the second respondent that there is no duty on it to keep a court apprised of the geographical whereabouts of its witnesses. Its duty is to inform the court of any factors including a witness's availability which would “destroy or very severely undermine” or “render worthless” (see Wellington,above) the evidence which it put forward in support of the request.

33.  In the context of this case, it has been the respondents’ case throughout and remains that Frank is willing and able to testify in any subsequent proceedings against the applicant, that his geographical relocation makes no difference to that fact. In my judgment the second respondent is entitled to take the view that it does: far from destroying or very severely undermining its case, the fact that Frank had left the USA is an irrelevance. In the circumstances the suggested “loss” of Frank’s evidence due to his current absence from the USA was not a factor relevant to the magistrate's decision making process.

34.  The submission was made, repeatedly, to the magistrate that there would have been a duty to have disclosed the fact that Frank had died, if that had happened, as it would then have no witness upon whom it could rely. I have no doubt that that submission is correct for, if Frank had died, the case against the appellant could properly be said to have been destroyed or that the evidence which was relied upon in the proceedings was rendered worthless, he being the sole witness. There is no suggestion, let alone evidence, that Frank is dead. Built upon that initial submission was the further, novel, submission that as Frank had left the USA "... he's not even within their clutches any longer, it's the same point". It suffices to say it is not: it is a totally different point.

35.  Even had I been persuaded that the second respondent had breached its duty of candour in my judgment, that would not have resulted in the finding that the applicant is unlawfully detained so as to justify granting this application. At best for the applicant such breach would be a matter which could be placed before the Chief Executive for consideration at the time of his determining whether to order surrender.

36.  The third aspect relied upon is the fact that the evidence against the applicant is solely the uncorroborated evidence of Frank. That statement is correct: it may be dealt with shortly by appreciating that that goes to the weight of the evidence, which is a matter for the trier of fact when it comes to determining the guilt of the applicant and not for the magistrate.

The inclusion of hearsay material

37.  The submission was made before the magistrate that the affidavit of Ms Siegmann contained hearsay material. The point is repeated in these proceedings with the additional complaint that the magistrate did not make any formal ruling on the submission. Those are valid criticisms although not ones which, in the present circumstances, are fatal to the magistrate's decision.

38.  This hearing was before an experienced professional magistrate sitting alone. Where an objection of this nature is specifically taken to the evidence it obviously would be preferable for the magistrate to make a specific finding and indicate that to the parties but as Kaplan J indicated in in re Thongchai Sanguandikul, above, itself an extradition case:

“It has been said time and time again that judges and magistrates are not juries and are well capable of distinguishing between the admissible and the inadmissible. I am frequently invited to look at material on a de bene esse basis and if I subsequently decide that the material is inadmissible I ignore it. Lawyers are trained to sift evidence..."

39.  There is nothing to suggest that the magistrate in fact relied upon the hearsay portion of Ms Siegmann’s affidavit, which in large part was simply a synopsis of the case against the applicant - a fact which would have been perfectly apparent to the magistrate. Ms Siegmann’s affidavit was in a form common to extradition proceedings, a form which has been the subject of adverse comment concerning the presence of hearsay evidence on previous occasions. Be that as it may, the remaining affidavits provided more than enough non-hearsay material for the magistrate to find that a prima facie case had been established.

The magistrate's failure to give reasons for his decision

40.  At the conclusion of all the submissions made to him on behalf of the applicant and the respondents, the magistrate adjourned to read the documents that had been placed before him and consider the submissions. It is self-evident that the issues which had been raised in the course of the submissions would have been firmly in his mind at the time.

41.  When he returned to court 50 minutes later he announced his decision in these terms:

"I have considered all of the evidence here together with the submissions made... and I find that the evidence produced in support of the charges is sufficient to justify your committal for trial in Hong Kong if the charges had been in respect of an (sic) indictable offences committed here. That is, a prima facie case has been made out."

42.  It had been admitted by the applicant that an Authority to Proceed had been issued, that the offences were related offences and that all documents had been properly produced and authenticated. The sole question remaining for the magistrate to determine was whether the evidence established a prima facie case. It may well be that the magistrate may have been able to express himself at greater length but it seems to me that he addressed that single issue with appropriate brevity.

43.  The applicant relies on Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authority [1998] 2 HKLRD 857 CFA as creating a duty on a magistrate to provide reasons in extradition proceedings. In its decision the Court of Final Appeal recognised that what constitutes adequate reasons depends on the context in which the decision maker was operating and the circumstances of the case in question.

44.  Stock J in Cosby v The Government of the USA & Others [2000] 3 HKC 662 found that whilst there was no general duty upon a magistrate to give reasons for his decision to commit, specific circumstances might give rise to such a necessity (following Rey v Government of Switzerland and Ano. [1999] 1 AC 55). I agree and respectfully adopt his reasoning.

45.  In the light of the magistrate’s ruling at the end of the hearing of the preliminary issue there was no necessity for him to address that aspect again. In this matter his assertion that he had considered all of the evidence as well as the submissions was adequate to indicate the basis upon which he had arrived at the sole conclusion that was required of him.

Conclusion

46.  The applicant was correctly committed to custody and is not unlawfully detained. This application is dismissed. There will be an order nisi, returnable within 14 days, that the applicant pay the costs of the respondents, to be taxed if not agreed.