CHEUNG YING LUN v. GOVERNMENT OF AUSTRALIA

Headnote

Extradition proceedings - habeas corpus - Fugitive Offenders (H.K.) Order 1967.

Whether uncertified translation admissible in extradition proceedings.

Test to be used in extradition proceedings - "prima facie" test.

Whether magistrate should warn himself of uncorroborated evidence.

Whether the practice in R v Brown and Medley (1867) 10 Cox CC 453 applicable.

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS

M.P. No. 455 of 1990

--------------------------------

BETWEEN

-----------------------

J U D G M E N T

-----------------------

Hon. Yang, C.J.:

BACKGROUND

1. The facts which give rise to the application for a writ of habeas corpus ad subjiciendum are as follows. On the 12th May 1989 the applicant together with two other men, Ng Yun-choi ("NYC") and Cheung Wai-man ("CWM") were arrested in Hong Kong for alleged offences under the Dangerous Drugs Ordinance, Cap. 134. On the 3rd August these men were arrested pursuant to provisional warrants of arrest under the Fugitive Offenders (Hong Kong) Order 1967. The case was adjourned pending receipt of His Excellency the Governor's Authority to Proceed, which was later signed on the 2nd October. The Authority set out two offences: conspiracy to traffic and trafficking in a dangerous drug. On the 24th October NYC and CWM were committed to custody to await their surrender to the Australian authorities, which was done subsequently, on 14th November.

2. The extradition proceedings relating to the applicant were heard before a Magistrate, Ian Carlson, Esq. The learned Magistrate on 9th February 1990 found that there was a prima facie case against the applicant and he committed the applicant to custody in respect of both offences set out in the Authority to Proceed to await his extradition to Australia.

3. On the 17th February, Sears, J. granted leave for a writ of habeas corpus to issue, and denied bail to the applicant.

CASE FOR AUSTRALIA

4. The case for the Government of Australia may be summarized as follows.

5. The applicant is a Hong Kong resident. He was at all material times a Senior Inspector with the Anti-Narcotics Division of the Customs and Excise Department of the Hong Kong Government. He is presently interdicted.

6. In the course of his duties he came to know Cheung Siu-wah ("CSW"), who was his informer.

7. In August 1988 the applicant told CSW that he wanted to ship No. 4 heroin to Australia via Vanuatu, and he asked CSW to arrange shipment of the heroin and take delivery of it in Australia. The applicant also promised to pay CSW two million Hong Kong dollars for his services. In early December of the same year whilst in Hong Kong CSW arranged with Swire Shipping Agency, Hong Kong, for the shipment of a van in a container to Vanuatu. Seventy-five units of herein were concealed in the van.

8. The container with the van and the heroin inside left Hong Kong in December. When the van arrived in Vanuatu, CSW arranged for the heroin to be taken from the van and concealed inside a freezer and water heater. The freezer and water heater were then placed in a container and shipped to Australia in April 1989.

9. In late April 1989 CSW arrived in sydney and began co-operating with the Australian Federal Police. CSW had a number of intercepted telephone conversations with his co-conspirators in Hong Kong and Australia during which they discussed the delivery of the imported heroin to buyers in Australia. In early May 1989 CSW spoke on numerous occasions with NYC (whom the applicant had earlier introduced to CSW and who was also involved in the shipment of the heroin from Hong Kong). CSW also had three telephone conversations with the applicant during the delivery of the heroin in Australia.

10. In early May the container with the heroin arrived in Australia. When the Australian Federal Police opened the freezer and water heater they found approximately 50 kg. of heroin. CSW arranged for a controlled delivery of a sample of the heroin to the buyers in Australia. After a controlled delivery was made on 11th May the buyers were arrested.

11. This was the largest known seizure of heroin in Australia. The estimated street value of the heroin was forty-five to fifty million Australian dollars.

THE ISSUE

12. Mr. McCoy, counsel for the applicant, with Miss Liza-Jane Cruden, argues that there are in this case four issues which need to be examined:

1. Whether certain uncertified translations were properly admitted into evidence by Mr. Carlson.

2. Whether the learned Magistrate was correct in ruling that the appropriate test for extradition in Hong Kong is a "prima facie" case.

3. Whether the practice permitted in R v Brown and Hedley (1867) 10 Cox CC 453 of calling a defence witness to say he would not believe a prosecution witness on data is applicable in extradition or committal proceedings.

4. Whether the learned Magistrate should have warned himself that the evidence given by CSW was accomplice evidence and needed to be corroborated.

13. In my judgment, the proper answers to these four questions are:

1. Yes.

2. Yes.

3. No.

4. The evidence of an accomplice in extradition or committal proceedings need not be corroborated.

14. I shall give my reasons below.

REASONS FOR JUDGMENT

1. Uncertified Translations

15. During the hearing before Mr. Carlson and as a part of the case for the Government of Australia, documents authenticated under Article 11 of the Fugitive Offenders (Hong Kong) Order 1967 were admitted into evidence, without objection. The documents related to (i) taped telephone conversations in the Cantonese dialect, recorded in the Chinese language by the Australian Federal Police in Australia, and translated by them into English; and (ii) a statement given by CSW in the Chinese language and later translated into English by the Australian Federal Police. The English translations placed before the Magistrate were not certified.

16. Relying principally on S. 27 and S. 29A of the Evidence Ordinance, Cap. 8, Mr. McCoy argues that certified translations must be produced and uncertified translations are inadmissible.

17. The translators gave evidence on oath before a Magistrate in Australia and confirmed and adopted their own respective translations. This comes squarely within Article 11(1) and (2) of the 1967 Order. Furthermore, as counsel for the Crown Mr. Blanchflower, assisted by Miss A. Au, submits, S. 27 and S. 29A are merely procedural provisions enacted as aides to the efficient administration of justice and are not rules of evidence: vide Ryan, J. in Wong Cheong-wai, MP No. 2246 of 1989, at p. 14, which I respectfully adopt. The evidence on the translation could well have been given by the translator in court without the production of a certified translation.

2. The Test to be Applied

18. I have consulted a number of judges of the High Court and Court of Appeal who have sat as magistrates and their experience is that the proper test is one of "prima facie" case, and that is in accord with my own experience. I have no doubt that the learned Magistrate here applied the correct test.

3. On R v Brown and Hedley

19. The test being one of prima facie case, the evidence considered in R v Brown and Hedley was a matter to be taken at trial: it becomes a jury question.

4. Corroboration

20. The Magistrate was quite right in holding that the requirement to warn himself about the dangers of acting upon the uncorroborated evidence of an accomplice is essentially a matter for the court of trial and not for him when exercising his powers under the Fugitive Offenders (Hong Kong) Order 1967. In any event he found that the telephone conversations between the applicant and the accomplice CSW were capable of corroborating the evidence of the accomplice.

21. For these reasons the application is refused.

22. Before I leave, there is one more matter on which I need to make some observations.

23. Ord. 54 r. 7, R.S.C. provides that the return to a writ of habeas corpus ad subjiciendum must be indorsed on or annexed to the writ and must state all the causes of the detainer of the person restrained. Ord. 54 r. 8 provides that when a return to a writ of habeas corpus ad subjiciendum is made, the return shall first be read, etc. On the first day of hearing before this court, when Mr. McCoy asked for the return to be read, it was discovered that there was no return, due to "an oversight" on the part of the Senior Superintendent at the Lai Chi Kok Reception Centre, the Correctional Services Department. The return was made later that day. No explanation for the "oversight" was offered. I must say I am appalled at the lack of care on the part of those responsible in a case involving the liberty of the subjects, and voice in no uncertain terms my displeasure at what had occurred.