NG HUNG YIU v. GOVERNMENT OF THE UNITED STATES OF AMERICA

MP No. 2007 of 1992

H E A D N O T E

Habeas Corpus - Extradition - Second arrest after earlier release - Right to cross-examine in magistrate's court - Bill of Rights.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS No. 2007 OF 1992

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J U D G M E N T

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1. On December 9th 1991, Macdougall J.A. ordered that a writ of 'habeas corpus' be granted to the applicant and he was released from custody. The judge found that Article VII para. 3 of the United States of America (Extradition) Order 1976 had not been complied with and the warrant of arrest had not been duly authenticated. A number of other grounds in support of the grant of 'habeas corpus' were also argued; these were rejected by the judge.

2. The applicant, when released, left Hong Kong and returned, he says, on several occasions. On December 6th 1991, that is three days before the judge delivered his judgment, the Consul General of the United States of America requested the arrest of the applicant pursuant to Article VIII of the UK/USA Extradition Treaty of June 1972. Pursuant to a Warrant of Arrest under the 1989 Extradition Act, the applicant was arrested on January 7th 1992. It has been accepted by Mr. Bruce that the applicant should not have been released from custody, as he was liable to be re-arrested immediately.

3. Pursuant to an Order to Proceed, signed by the Governor dated the 14th January 1992, an extradition hearing was conducted on April 30th before Mr. Wright at Eastern Magistracy.

4. Duly authenticated bundles of documents containing affidavits of various witnesses were received into evidence and having heard submissions, he signed a Warrant of Committal on May 1st.

5. It is against that warrant that the applicant now applies for habeas corpus. Mr. Ho, for the applicant, takes a number of different points which were not canvassed before Macdougall J.A. It is, in my judgment, wrong for a multiplicity of habeas corpus proceedings to occur. Some of the points now argued could have been taken earlier; nevertheless as there was a new request and fresh extradition proceedings occurred, it is only right that I should now consider them all.

6. The brief facts were that there was in respect of other persons an ongoing conspiracy to import into the United States large quantities of heroin. On October 7th 1985 at the Yung Ki Restaurant in Hong Kong, a meeting of some of these conspirators occurred; the applicant nicknamed 'Cowboy' was introduced by a lady called Chuen Sau Kam ("Chuen") and to Kwan Wing Hong ("Kwan"), as was introduced also Ho Lai Keung nicknamed 'Big Brother'. It is clear from the evidence that Kwan and Chuen were important members of the conspiracy. The only evidence against the applicant is provided by Kwan who is now co-operating with the American authorities having pleaded guilty to distributing heroin into the United States. He says on October 7th, the applicant sat at the table and a discussion took place with regard to drugs, Big Brother told Chuen that there were over 10 units of heroin available, and asked whether she would be interested in it. Chuen said that she would be interested in all of it. She then asked Big Brother to give Kwan a sample of it Kwan was to take the sample back to the United States and give it to Andrew Wu. She handed Kwan a plastic medicine vial under the table and asked him to hold on to it. The vial contained no. 4 heroin. After that was handed over, he and the applicant left.

7. It is accepted that the applicant said and did nothing at this meeting, nor that he saw that a plastic vial had been handed to Kwan. At the beginning of November 1985, the applicant had travelled to the United States contacted Kwan by his bleeper. He was called back and the applicant said he had now arrived in the United States, and it was suggested that they should meet at the parking lot the Blue Bay Diner near Exit 26 of the Long Island Expressway. When Kwan arrived at the parking lot, the applicant told him that a heroin shipment had reached New York and that the heroin would be available the next day. He told him that he would arrange for it to be in a car, and that he should contact him on his bleeper to set up the delivery. They met later again at the parking lot of the Blue Bay Diner. The car was pointed out and the applicant said it contained the heroin, inside the trunk and that he had placed the key of the car on top of the side tyre. He asked Kwan to take the heroin out of the trunk using the key that had been left on the top of the tyre, and he told Kwan that there were 19 units of heroin inside a bag in the trunk. Kwan took the key, opened the car and drove it and the heroin back to his apartment. He counted the number of units and there were, indeed, 19 (13.3 kg.). He contacted other members of the conspirators to bring the heroin to them. Later, he gave a large sum of money, "tens of thousands of dollars" to the applicant. The applicant left America by plane, but was intercepted. by Customs officials at New York Airport. He was attempting to board a Pan Am flight for Tokyo. He had two carry on travel bags and he was found to have in his possession US$287,000.00 in cash. It was concealed in Christmas wrapping paper in a gift box underneath a shirt. The applicant was questioned at JFK Airport about the ownership of the currency. He stated that the money was his then he said it belonged to his company and then he said he owed some tax in Hong Kong and it would help him alleviate his tax position. He was not prosecuted, but the USS287,000.00 was seized and was later turned over to the United States Treasury. (It is an offence in the United States to export a large sum of dollars without the consent of the government.)

8. From that evidence, an indictment was preferred to the Grand Jury in New York charging a large number of offences carried out by the conspirators. The matter came as I said earlier, before Macdougall J.A., with a slightly different list of crimes in that there were other persons involved, but as far as this hearing is concerned, the notice to proceed contains a list of four crimes which are said to have been committed by the applicant.

9. First, it is said that he together with five named persons and other persons on the 7th October 1985 conspired to traffick in dangerous drugs. Secondly, with other named persons between the 1st November to 28th November he conspired to traffick in dangerous drugs. Crimes 3 and 4 are trafficking in dangerous drugs and being in possession of dangerous drugs. Crimes 2, 3 and 4 are alternative to each other.

10. It will be noted that the second crime charged is a separate conspiracy from that in the first crime. It can be appreciated therefore that what occurred in November 1985 in long Island is not suggested to be an act in furtherance of the earlier conspiracy in October 1985. The only evidence, therefore, on crime 1 is the meeting in the restaurant on July 7th. The magistrate was of the opinion that a jury properly directed could draw the inference "that the Respondent was part of the conspiracy". With respect, I disagree.

11. First, there was an ongoing conspiracy to deal in drugs to which the applicant was not a party. It is said, however, that he joined by attending the meeting on July 7th. When in the restaurant, he said and did nothing. While there is obviously suspicion, mere presence is insufficient. The prosecution can point to no overt acts in furtherance of the conspiracy, and there is no evidence that the applicant saw the vial of heroin being passsed under the table. Mr. Bruce fairly concedes that the evidence is thin. In my judgment, there is no prima facie case disclosed that the applicant joined the conspiracy and the magistrate was wrong to commit on it.

12. As I have said, before, crimes 2, 3 and 4 are in the alternative. Mr. Ho makes a general ^submission that the only evidence is that of an accomplice, and that his statement relates to events some years earlier.

13. These are matters which may go to the weight to be attached to his evidence, but I am in no doubt that there is a 'prima facie' case on crimes 3 and 4.

14. Crime 2 depends on whether or not it is a conclusion which a jury could properly draw from the facts that the applicant knew that a shipment of heroin had reached New York and had arranged a delivery with Kwan. There were 19 units of heroin in the car and, as I have said, Kwan drove it back to his apartment.

15. One conclusion which a jury might reach is that a large shipment of heroin requires a market for sale, Kwan was providing that market and the inference then is that the applicant and Kwan had agreed beforehand that they would deal together in drugs.

16. Further, the applicant was the supplier and Kwan was disposing of the heroin. In my judgment, the conclusion would follow that the applicant and Kwan had agreed to deal in drugs. The word 'trafficking in the ordinance has a wide meaning.

17. After the transaction, Kwan handed the applicant tens of thousands of dollars, and in my judgment, there is a 'prima facie' case on crime 2.

18. Mr. Ho makes three further points. First, he says, the crimes charged are time-barred. An indictment was filed in New York on September 18th 1990. Title 18, United States Code, Section 3282 sets forth the Statute of Limitations which governs prosecutions of offences. It provides:-

"Except as otherwise expressly provided by law^, no person ^shall be prosecuted tried, or punished for any offence, not capital, unless the indictment is found or the information is instituted within five years next after such offence shall have been committed.

The offences charged, from crimes 2 to 4 occur from 1st November 1985. The indictment was filed on September 18th; that is a few weeks before the expiry of the five years. Mr. Ho says the court should give some indulgence to the applicant as it was filed so late. In my judgment, if there is a statutory provision governing these matters, all the court has to look at is that provision. The matter becomes somewhat complicated because it was decided to add to that original indictment which was against a number of persons, a claim for forfeiture of property which either had been seized or would be liable for seizure, against some of them. There was, therefore, a superseding indictment, which was preferred and handed down by the Grand Jury, on 21st February 1991. It can be seen therefore, from that indictment that more than five years had passed. By virtue of Article V(1)(b) of the Treaty between the United Kingdom and the United States of America, extradition shall not be granted if "the prosecution of the offence for which extradition is, requested has become barred by lapse of time according to the law of the requesting party." The position, therefore, is that if the original indictment is the relevant one, the crimes charged are not time-barred. If, however, it is the indictment of February 1991, then the crimes are time-barred and the magistrate would not be permitted to commit for those offences. The only evidence on this an affidavit by Mr. Kenneth lawyer; he holds the degree of Doctor of law, he has practised in a law firm for many years, and since July 1988, he has been the Assistant States Attorney in the Criminal Division of the United States Attorney's office. He has been involved in the prosecution and investigation of this particular case. He says the original indictment is in all respects the same as the superseding indictment apart from the forfeiture claim and he attests that it is filed within the period of five years and is not time-barred. He is an expert witness and there is no evidence to the contrary. In my judgment, the amendment which has been made does not cause the original indictment to be post-dated to the date of the amendment 1990, and these crimes are not time-barred.

19. The second matter is, as Mr. Ho submits, that it is a breach of natural justice for the applicant to be put in peril twice for the same offence.

20. The scheme of the extradition process is well recognized. It is not a trial and no pronouncement of guilt or innocence is made. In this case, there was a new request and a new hearing. The applicant's rights as to appeal have been preserved - his application before me today is such a recognition. In the speech of Lord Mackay L.C. in In re Rees (1986) 1 A.C. 937 at p. 963 it was stated that the Secretary of State "is not precluded from making an order following on a requisition merely because he has made an earlier order following on the same requisition and ... where a person has been set at liberty following upon proceedings under an earlier order he may be apprehended under a later order..."

21. In my judgment, the applicant has not been denied natural justice by his subsequent arrest.

22. However, s.5 of the Habeas Corpus Act 1679 does provide certain safeguards against re-arrest. This Act is still in force in Hong Kong.

23. The Privy Council considered this section in A-G for Hong Kong v. Kwok-A-Sing (1873) Vol. 5 Privy Council Appeals 179.

24. A French vessel sailed from Macau (then in China) bound for Peru with 310 coolie emigrants. A mutiny occurred and the captain and several crew were murdered Kwok-A-Sing was arrested in Hong Kong and the Chinese government sought his extradition He was released by 'habeas corpus' on a charge of murder, but re-arrested on a charge of privacy and again released.: The Privy Council held that although not the principal object of the section, s.5 may apply where a prisoner is discharged unconditionally upon the ground that the warrant shows no valid cause for his detention. "They think, however, it can only apply when the second arrest is substantially for the same cause as the first, so that the return to the second writ of 'habeas corpus' raises for the opinion of the Court the same question with reference to the validity of the grounds of detention as the first."

25. As far as the facts of this case are concerned, there is a different warrant and a different return, from the first hearing. There was no decision by Macdougall J.A. on the merits of the case. The point argued before him was on the basis that there had been a failure to comply with certain provisions which persuaded him that the warrant had not been properly authenticated. I am of the view that that today a court may well hold that, if in 'habeas corpus' proceedings, a prisoner has been discharged on the merits, that is, no 'prima facie' case has been demonstrated by the evidence submitted, then a subsequent arrest for the same cause would be struck down by s.5.

26. The third point is whether or not this applicant has a right to require the attendance of the accomplice witness to give evidence so that he can be cross-examined. I can well understand a defendant's opinion that where he is going to be extradited to the United States to face serious charges relating to dangerous drugs, that he should be given some opportunity to deal with the evidence of the accomplice witness to demonstrate to the magistrate that that witness' evidence is unreliable. However, there is in my judgment no doubt that before the Bill of Rights, there is no such right to have the witness attend for cross-examination. Although paragraph 6 of Schedule I to the 1989 Act states 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 or Wales", that means as near as may be in the context of an extradition hearing.

27. By virtue of para. 12 of Schedule I, depositions and documentary evidence may be received in evidence Further Article VII (5) of the Extradition Treaty between U.K. and U.S.A. (as extended to Hong Kong by the U.S.A. (Extradition) Order 1976) provides that duly Certified depositions and documents "shall be received in evidence in any proceedings for extradition", so the magistrate must consider the evidence if given by affidavit. I can find no power given to a magistrate, whose jurisdiction is local_, to order the attendance of an overseas witness.

28. Courts over the years have held that refusal. To allow Cross-examination of a deponent is not a breach of natural or fundamental justice- see e. g. R. v. Counhave (1873) LR 8 QB 410, R. v. Governor of Brixton Prison ex P. Caldough (1961) 1 WLR 464.

29. In more recent times, the U.S. Courts of Appeal (9th Circuit) in OEN Yin-Choy v. Robinson (1988), 858 Federal Reporter 2nd Series at p.1406, when dealing with an extradition from the U.S.A. to Hong Kong, rejected a submission that the applicant's due process rights were violated when he was not permitted to Cross-examine a deponent. The Court followed a line of appeal decisions that "an extradition hearing is not the occasion for an adjudication of guilt or innocence."

30. Further, the European Commission in App. 10479/83 (from the United Kingdom) Vol. 6 EHRR 375 at p. 386 held that Committal proceedings for extradition did not form part of or Constitute the determination of a Criminal Charge within the meaning of Article 6 of the Convention; therefore the standards of fairness afforded by Article 6 were not infringed by an inability to cross-examine a deponent.

31. Has the Bill of Rights of Hong Kong now given a right to those facing extradition to have witnesses called and to cross-examine them?

32. Article 11 deals with the rights of persons charged with or convicted of criminal offences. Article 11(2):"In the determination of my criminal charge against him, everyone shall. be entitled (e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him." Persons cannot be tried on pieces of paper on which they have no opportunity to cross-examine. This applicant has been. extradited on the basis of a bundle of documents and he says "My basic rights under the Bill of Rights have been infringed and I am entitled to have this witness brought over from America." Whilst one understands such a point of view, in my judgment it fails to recognize the distinction which there is between criminal trials and extradition hearings. As I have said, an extradition hearing does not determine guilt or innocence; all that the magistrate has to do is to decide, whether or not, there is a 'prima facie' case disclosed on the documents, such as to justify him committing the fugitive back to the country which has made the request.

33. Article 11 is dealing with the trial of a criminal charge, and does not apply to extradition proceedings.

34. Furthermore, the Hong Kong Bill of Rights Ordinance is only entitled to repeal inconsistent legislation "that can be amended by an Ordinance." (see s.2(1)) The 1989 Act and the order in Council extending the United Kingdom Treaty to Hong Kong are Imperial Enactments (see s 3 Interpretation and General Clauses Ordinance). They cannot then be amended by a Hong Kong ordinance, and so s.3 (2) of the Bill of Rights Ordinance cannot repeal any provision of the Extradition Act. Article 6 of the European Convention is in similar terms to Article 11(2) of the Bill of Rights and the European Commission, in application 10479/83 (supra), held that an extradition hearing is not a determination of a criminal charge under Article 6. I, therefore, hold that the Bill of Rights has given no additional rights to the applicant.

35. I refuse to grant the writ of 'habeas corpus', but I quash crime 1 set out in the magistrate's Warrant of Committal, so that the applicant shall only be committed to the United States to stand his trial on crimes 2, 3 and 4.