ROBERT YANG CHANG CHUN v. THE GOVERNMENT OF THE UNITED STATES OF AMERICA

HEADNOTE

[ (1) The effect of section 27(1) of the Fugitive Offenders Ordinance (No. 23 of 1997) is to permit extradition requests made under an extradition regime which existed up to 30^th June 1997 to continue to be governed by that regime on or after 1^st July 1997, even if a new extradition regime is not in place, provided that the extradition proceedings commenced before 1^st July 1997.

(2) Provided that the domestic law of Hong Kong provides for the extradition from Hong Kong of fugitive offenders, the absence of reciprocal arrangements with the country requesting the surrender of the fugitive is not a matter which the courts can take into account. It is a matter exclusively for the Chief Executive.]

1997 A.L. No. 23

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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J U D G M E N T

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INTRODUCTION

1. On 23^rd April, a warrant of committal was issued by a magistrate to detain the Applicant, Dr. Robert Yang Jr., pending his extradition to the U.S. He is currently detained in Lai Chi Kok Reception Centre. He now applies for the warrant of committal to be set aside, and for leave to issue a writ of habeas corpus to secure his release from detention.

2. Dr. Yang is unrepresented. At the beginning of June, he withdrew his instructions from the firm of solicitors who were then acting on his behalf. On 15th June, the Court declared that his solicitors had ceased to act for him. Dr. Yang then applied for legal aid. The Director of Legal Aid refused to grant him legal aid, and an appeal against that refusal has recently been dismissed. None of that is all that surprising. The evidence filed by the U.S. Department of State, which the magistrate who issued the warrant of committal considered, was sent to the Director of Legal Aid. I have read that evidence myself. I can discern no evidential basis on which it would be proper to set aside the warrant of committal.

THE CESSATION OF THE PREVIOUS EXTRADITION TREATIES

3. The only ground on which it was originally said that Dr. Yang's continued detention is unlawful was set out in a letter dated 1st July which Dr. Yang wrote to the Court. The material passages in the letter read:

"1. Extradition arrangements between Hong Kong and U.S.A.
will be void after July 1. The new arrangements will not be ratified in time for extradition.

2. As I was arrested and detained using the arrangements
between Britain and U.S.A. which expire[d] for use in Hong Kong on July 1, I am being detained illegally after July 1 1997."

This argument was developed by Dr. Yang in subsequent letters to the Court and in submissions to me.

4. This argument is of no avail to Dr. Yang. The extradition proceedings which Dr. Yang faced were under the provisions of the Extradition Treaty made in 1976 between the Governments of the U.S. and the U.K. (as applied to Hong Kong) and the provisions of Schedule 1 to the Extradition Act 1989. On 20^th December 1996, the Government of Hong Kong signed a new agreement with the Government of the U.S. relating to the surrender of fugitive offenders on or after 1^st July 1997. An order was gazetted on 9^th May 1997, giving effect to this new agreement in the domestic law of Hong Kong.

5. The new agreement is not yet in operation because it has not yet been ratified by the U.S. Senate. However, the Fugitive Offenders Ordinance (No. 23 of 1997) came into effect on 25^th April 1997. It contained various transitional provisions, the relevant provision for present purposes being section 27(1). The effect of section 27(1) is to permit requests made under a previous extradition regime to continue to be governed by that regime on or after 1^st July 1997, even if a new extradition regime is not in operation, provided that the extradition proceedings were instituted prior to 1^st July 1997. That is the situation here. It follows that the domestic law of Hong Kong permits Dr. Yang's extradition to the U.S.

THE ABSENCE OF RECIPROCAL ARRANGEMENTS

6. However, a new argument emerged in subsequent submissions which Dr. Yang made. Until the new extradition agreement has been ratified by the U.S. Senate, fugitive offenders cannot be extradited to Hong Kong from the U.S. That was graphically illustrated by the recent case of John Cheung. That is because the U.S. has not enacted domestic legislation similar to the transitional provisions enacted in Hong Kong. Accordingly, extradition between Hong Kong and the U.S. is at present one-way traffic. If reciprocity is a condition precedent to extradition, the fact that reciprocal arrangements are not currently in place would prevent Dr. Yang's extradition to the U.S. for the time being.

7. I cannot accept this argument. Although no reciprocal arrangements in fact exist, the Court is required by section 27(1) to assume that they do exist. Section 27(1) achieves that by creating a legal fiction whereby a fully operational and reciprocal treaty is deemed to exist (namely, the arrangements in place when the extradition proceedings relating to Dr. Yang were commenced), even though no reciprocal arrangements currently exist. It is to be noted that when enacting the transitional provisions in section 27(1), the legislature chose not to make the extradition arrangements which were deemed to continue subject to any continuing reciprocity requirement in the country with whom the original extradition arrangements were made.

8. However, even if reciprocal arrangements were not deemed to be in place, the absence of such arrangements would not, in my view, be a matter for the Court. There is a precedent for extradition treaties to provide for one-way extradition: for example, the Treaty of Tientsin, concluded in 1858 between the U.K. and China, under which the U.K. agreed to surrender to China fugitives who had taken refuge in Hong Kong. That Treaty was incorporated into the domestic law of Hong Kong by the Chinese Extradition Ordinance (Cap. 235) enacted in 1898. That said, reciprocal arrangements are invariably an essential feature of modern extradition treaties. The real point is that it is well-settled that the courts have no power to monitor the performance by parties to extradition treaties of their obligations under those treaties: R. v. The Governor of Pentonville Prison ex p. Sinclair [1991] 2 AC 64 at p.89E. That is because treaty obligations are of a political character which, in the absence of statutory intervention, are the exclusive province of the Executive: see U.S.A. v. McVey (1992) 77 C.C.C. (3d) 1 at pp.14h-15e. Thus, it has been held that the absence of any reciprocal arrangements, not merely the failure of a party to comply with existing reciprocal arrangements, is not a matter which the courts can take into account, though the absence of reciprocal arrangments will be a highly relevant matter for the Executive to consider: see Re Socialist Federal Republic of Yugoslavia and Radovic (No. 3) (1981) 62 C.C.C. (2d) 544 at p.556, and Re Federal Republic of Germany and Rauca (1982) 70 C.C.C. (2d) 416 at pp.425-426.

9. In the absence of legal representations on behalf of Dr. Yang, Mr. Wayne Walsh for the Government of the U.S. drew my attention to a passage in Sinclair which suggests that the Court has power to take into account non-compliance with treaty obligations. At p.81D-E, Lord Ackner said:

"It is for the Secretary of State to determine... whether, upon the material which has been submitted to him, the Treaty has been complied with. Accordingly any challenge to his order... requiring the magistrate to issue his warrant for the apprehension of the fugitive criminal, on the ground that the Treaty has not been complied with, must be made to the Divisional Court in habeas corpus or, if appropriate, judicial review proceedings."

However, Dr. Yang's point goes not to treaty compliance, but to whether the fact that reciprocal arrangements are not in place is a factor which the courts are entitled to take into account. I do not think that that is a matter for the Court. It would involve the Court expressing a view as to the wisdom of the Executive in deciding to enter extradition arrangements without sufficient reciprocity, and the wisdom of the legislature in incorporating such treaty obligations into domestic law.

10. It follows that the absence of reciprocity between Hong Kong and the U.S. in respect of extradition proceedings commenced but not completed by 30^th June 1997 does not affect the legality of Dr. Yang's detention. It is something which the Chief Executive will have to consider when he decides whether to order Dr. Yang's surrender to the U.S. authorities. Dr. Yang will be entitled at that stage of the proceedings to make such representations on the topic as he chooses, and any decision taken by the Chief Executive adverse to Dr. Yang is susceptible to review by the Court.

CONCLUSION

11. The fact of the matter is that the role which the courts play in extradition proceedings, though an important one, is limited. Their role is to satisfy themselves that the foreign warrant authorising the arrest of the fugitive has been duly authenticated, and to determine whether the evidence produced by the requesting state would justify the committal of the fugitive for trial. Since there is no challenge to the authenticity of the arrest warrant, or to the sufficiency of the evidence produced to the magistrate, it follows that Dr. Yang's application for the warrant of committal to be set aside, and for leave to issue a writ of habeas corpus to secure his release from detention, must be refused.