CHEN CHONG GUI v. SENIOR SUPERINTENDANT OF LAI CHI KOK RECEPTION CENTRE AND ANOTHER

1996, No.MP3789

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

H E A D N O T E

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

Extradition Law - the United Kingdom/United States of America treaty (as extended to Hong Kong)

Habeas corpus - the jurisdiction of the extradition magistrate to adjudicate upon a plea in bar of autrefois acquit or autrefois convict.

1996, No. MP3789.

IN THE HIGH COURT OF HONG KONG

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS

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

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

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

J U D G M E N T

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

1. In this matter, Mr McCoy SC moves on behalf of the Applicant, Chen Chong Gui, for a writ of habeas corpus. The writ raises the novel but important issue of the jurisdiction of a magistrate in these extradition proceedings to adjudicate upon a plea of autrefois convict.

2. In March 1996, learning that the Applicant was in Hong Kong, the Government of the United States of America requested his apprehension so that formal proceedings could be instituted against him for his extradition to the United States to face criminal charges. Those charges related to the smuggling of illegal immigrants into that country and their subsequent forceful detention for the purposes of obtaining ransom moneys. In terms of the relevant extradition statutes, what is commonly called a "provisional warrant" was issued by a magistrate in this jurisdiction and the Applicant was arrested. The formal extradition request from the Government of the United States of America was dated 3rd June 1996. After receipt of that request, the Governor of Hong Kong on 11th June issued an order to proceed, listing thirteen alleged crimes for consideration by the magistrate. This was later amended to fourteen.

3. On 16th September 1996, at the request of the Applicant, the extradition hearing before the magistrate was adjourned for approximately one month to allow the Applicant to obtain evidence from China that he had already been convicted of an offence substantially the same as those offences in respect of which his extradition was sought and that he had served a sentence in respect of that conviction.

4. When the matter came before the magistrate for hearing, it appears that the Applicant sought to call a witness, an expert in matters of Chinese law, who would place into evidence the judgment of the court that had convicted the Applicant and prove the authenticity of that judgment. The face of that document indicated that in December 1994 the Applicant had been tried in the People's Court at Changle County in the province of Fujian, China, under Article 177 of the Criminal Code for the offence of transporting persons secretly across the national border and had been duly convicted of that offence. He had been sentenced to eighteen months imprisonment which he had served (subject to partial remission upon a judicial review of his conduct in prison) and had also been fined RMB50,000.

5. At the time of the hearing before the magistrate, it was and still remains the position of the Respondents that the magistrate had no jurisdiction in extradition proceedings to hear the Applicant's plea in bar of autrefois convict. It appears from the record of proceedings that the magistrate originally acceded to that submission and ruled that he had no such jurisdiction. He then reconsidered his decision overnight and the following day reversed his ruling. By then, unfortunately, the Applicant's witness had returned to the mainland. However, it appears that agreement was reached with Applicant's then counsel that the judgment of the People's Court at Changle County would be placed into evidence as a provisional exhibit and that counsel would be able to make submissions based upon that judgment, the later need to prove its authenticity only being required if the magistrate ruled in favour of the Applicant. Having heard submissions from the Applicant's counsel on the plea in bar, the magistrate rejected those submissions. More particularly, it appears from the record of proceedings that the magistrate said the following (

"The respondent raised a plea of autrefois convict. He produced a criminal decision and a judgment from a criminal court in China. They show that he was convicted of the crime of organising people to cross the national border illegally. He was sentenced to one and a half years imprisonment and fined. The judgment shows that it was the prosecution's case that the people in question went to the USA and that money was paid and received for their illegal journey. Mr Oderberg did hid best with this material to argue that the conviction covered the same ground as the crimes set out in the amended Order to Proceed. 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."

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

7. On 3rd November 1996, the Applicant filed his application for a writ of habeas corpus. Such writs deal with the liberty of the subject and are therefore given priority by our courts. In this instance, however, a regrettable delay was occasioned by the untimely death of Jerome Chan J. who was first seized with this matter but passed away before he was able to write his judgment.

8. The writ of habeas corpus, as I read it, raises one issue only, that of the plea in bar of autrefois acquit. Put succinctly, it is the Applicant's complaint that the judgment of the People's Court at Changle County must be read in the light of the applicable principles of the criminal law of the People's Republic of China, principles which, as they do not appear from the face of the judgment, can only be explained by an expert witness. Such explanation will show that autrefois acquit is not a plea in bar "doomed to fail" as the Hong Kong magistrate, deprived of expert testimony, so ruled.

9. On the accepted basis that a plea in bar of autrefois convict is applicable in domestic criminal law even when the conviction has been secured in a foreign jurisdiction, Mr McCoy has submitted that the single preliminary issue to be decided is whether, in extradition proceedings, such a plea may be heard by the magistrate or by this Court. If this preliminary issue is decided in favour of the Applicant, then an application will be made to call expert evidence of the criminal law of the People's Republic of China, evidence which goes to jurisdiction, not simply to the sufficiency of evidence.

The relevant background facts.

10. In broad terms, the indictment returned by the grand jury in the United States of America alleges that between 1991 and 1994 the Applicant and his brother conspired together to manage a criminal enterprise in terms of which persons were smuggled from the People's Republic of China into the United States. The enterprise, however, went beyond the simple smuggling of illegal immigrants. The indictment alleges that, upon arrival in the United States, the illegal immigrants were taken forcefully and under guard to certain houses where they were held hostage and often subjected to beatings until their families paid large sums of money to secure their release. It is alleged that the Applicant managed the China end of the enterprise while his brother, Chen Chong Biao, managed affairs in the United States. Various individuals assisted in the enterprise, often as armed guards.

11. In particular, the indictment alleges that in late 1993 the Applicant recruited one hundred and five people in China who, early the next year, were transported by ship into United States waters, the vessel arriving off the New Jersey coast in March 1994. A fishing boat was rented to rendezvous with the vessel and to bring the illegal immigrants ashore. This was done in stormy weather with hired guards placed on board the fishing boat to prevent any form of resistance. Once ashore, the one hundred and five illegal immigrants were held against their will in certain houses. They were photographed and their personal particulars recorded. The alleged purpose was to ensure that, if they escaped, their families in China could still be contacted and moneys obtained from those families. These houses too were guarded, a number of the guards being supplied with firearms. Thereafter, while the illegal immigrants remained in detention, through the mechanism of an elaborate telephone system, they were forced to contact their families in China to relay the ransom demands. It is alleged that on occasions the guards themselves spoke to family members threatening to beat or even kill their captives unless moneys were paid promptly.

12. By early April, it is alleged that the families of close to fifty illegal immigrants had paid ransom moneys either to the Applicant in China or to other designated members of the criminal enterprise and had been released in New York. In that same month it appears that law enforcement officers entered a house in the State of Maryland where the remaining illegal immigrants were being held and found them in a locked and boarded cellar. Arms and ammunition, including a shotgun and semi-automatic pistols, were recovered. Handcuffs too were found.

13. On 21st November 1995, in the city of New York, a United States Magistrate issued a warrant for the arrest of the Applicant and, as I have said, a few months later, in March 1996, learning that the Applicant could be found here in Hong Kong, the Government of the United States of America made a request for his extradition.

14. On 25th May, an indictment was returned by a grand jury charging the Applicant and his brother with a series of crimes arising from the alleged conduct to which I have referred. A number of those crimes, upon conviction, carry possible terms of life imprisonment. Under United States law they are, therefore, crimes of utmost gravity.

An examination of the applicable statutes and treaty.

15. On 8th June 1972 a treaty was concluded between the Government of the United Kingdom and the Government of the United States of America for the reciprocal extradition of offenders. On 21st October 1976 the treaty was ratified and by Order In Council of that same year was brought into operation. Article 11(a) of the Treaty stated that it should apply not only to the United Kingdom and the United States but to those of the United Kingdom's overseas territories in respect of whose international relations it still bore responsibility. Such a territory was Hong Kong and the Order In Council itself (No.2144 of 1976) extended the treaty to this jurisdiction. For reasons which will shortly be stated, that treaty remained in force at all times material to these extradition proceedings.

16. Article V of the extradition treaty speaks of the principle of autrefois convict. That article 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; 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 to 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."

17. There is therefore a provision in the treaty. What then of the municipal law? The Order In Council extending the operation of the treaty to Hong Kong stated that the Extradition Acts 1870 to 1935, as amended or extended by any subsequent enactment, should apply. I have, however, been unable to find any reference to the principle of autrefois convict in those various statutes.

18. The Extradition Act of 1989 repealed the Extradition Act of 1870 and all subsequent statutes of relevance. However, section 37(3) of the 1989 Act provided that "the repeal by this Act of the Extradition Act 1870 does not affect an Order In Council made under section 2 of that Act..." In addition, section 1(3) of the 1989 Act states:

"Where an Order in Council under section 2 of the Extradition Act 1870 is in force in relation to a foreign state, Schedule 1 to this Act (the provisions of which derive from that Act and certain associated enactments) shall have effect in relation to that state, but subject to the limitations, restrictions, conditions, exceptions and qualifications, if any, contained in the Order."

19. Accordingly, as was confirmed in Law Kin-man v. the Government of the United States of America Civil Appeal No. 161 of 1990, the extradition of fugitives from Hong Kong to the United States of America then fell to be governed by the provisions of Schedule 1 of the Extradition Act 1989 and not those provisions contained in the main body of the Act. This was subject, of course, to the limitations, restrictions, exceptions and qualifications of the Order In Council of 1976 which brought the treaty into operation and subject also to the essentially clarifying provisions of our own ordinance, the Extradition (Hong Kong) Ordinance, Cap 236. I am accordingly satisfied that Schedule 1 applies to the extradition proceedings now before this Court.

20. Schedule 1 of the 1989 Extradition Act does not, however, make any direct reference to the principle of autrefois acquit. It is silent on the matter. In this regard, Schedule I is different from and may be contrasted with the main body of the Act where, in Part II (restrictions on return), section 6(3) states as follows:

"A person accused of an offence shall not be returned, or committed or kept in custody for the purposes of return, if it appears to an appropriate authority that if charged with that offence in the United Kingdom he would be entitled to be discharged under any rule of law relating to previous acquittal or conviction."

21. This section, which mirrors section 4 (2) of the Fugitive Offenders Act 1967, clearly differentiates between the duties of the three different appropriate authorities and gives to each of them the power to deal with a claim of autrefois convict. An accused person shall not, therefore, be returned, that is, surrendered, which is the province of the Executive, nor committed into custody, the province of the magistrate, nor kept in custody, the province of the High Court should a writ of habeas corpus be issued, if any of those authorities find that the accused person would be entitled to be discharged under any rule of law relating to previous conviction.

22. The silence of Schedule I means that in the case now before this Court, the only direct reference to the principle of autrefois convict lies in Article V of the extradition treaty itself.

23. Mr McCoy for the Applicant accepts that the only direct reference to a previous conviction for the same offence is to be found in the treaty but he argues that section 6 of Schedule I does by inference give to the magistrate the jurisdiction to hear the common law plea in bar of autrefois convict. Section 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."

24. It is Mr McCoy's submission that in domestic committal proceedings the magistrate has jurisdiction to entertain the plea in bar of autrefois convict, that being a fundamental common law protection to save persons from being twice convicted for the same offence. Accordingly, as the magistrate in extradition proceedings has the same jurisdiction and powers, as near as may be, as if the proceedings were domestic committal proceedings, he must in such extradition proceedings have the same jurisdiction to entertain the plea in bar.

25. The Respondents have argued that the plea in bar is unavailable in domestic committal proceedings as it is a plea which must be entered before the trial court in order to quash the indictment.

26. Having considered the submissions, I confess I am of the view that such a plea in bar would be open to an accused person in domestic committal proceedings. In this regard I am with Mr McCoy. However, for the reasons set out below, I do not believe it is necessary for me to make a reasoned finding in this regard. The question before me relates to the jurisdiction of the magistrate in extradition proceedings, these being proceedings of a very different nature. For this reason, before addressing the specific issue of jurisdiction, in my judgment it is necessary to consider the unique nature of extradition proceedings under the relevant treaty and municipal law.

The nature of extradition.

27. As Kaplan J. noted in the matter of Thongchai Sanguandikul, 1992 MP802 and 804, extradition has its roots in international comity and is not to be equated to the criminal trial process. In this regard, he cited with approval the dicta of McLachlin J. of the Supreme Court of Canada in Kindler [1991] 84 DLR (4th) 438 at page 488 -

"While the extradition process is an important part of our system of criminal justice, it would be wrong to equate it to the criminal trial process. It differs from the criminal process in purpose and procedure and, most importantly, in the factors which render it fair. Extradition procedure, unlike the criminal procedure, is founded on the concepts of reciprocity, comity and respect for differences in other jurisdictions. This unique foundation means that the law of extradition must accommodate many factors foreign to our internal criminal law. While our conceptions of what constitutes a fair criminal law are important to the process of extradition, they are necessarily tempered by other considerations." [My own italics].

28. The dicta of La Forest J. in Schmidt v. R. (1987) 33 CCC (3rd) 193 at page 208, another authority of the Supreme Court of Canada which is referred to in Kindler, is also, in my judgment, of assistance -

" Extradition is the surrender by one state to another, on request, of persons accused or convicted of committing a crime in the state seeking the surrender. This is ordinarily done pursuant to a treaty or other arrangement between these states acting in their sovereign capacity and obviously engages their honour and good faith. A surrender under these treaties is primarily an Executive act."

The functions and jurisdiction of the magistrate.

29. Schedule I of the 1989 Act contains effectively a direct transposition of sections 3(1), 8, 9 and 10 of the 1870 Extradition Act which together set out the functions of the magistrate in extradition proceedings. Section 3(1) of the 1870 Act concerns offences of an alleged political nature and has its counterpart in section 1(2) of the Schedule. Section 8 defines the functions of the magistrate in the issue of warrants of arrest and has counterpart in section 5 of the Schedule. Sections 9 and 10 concern the hearing before the magistrate and have their counterparts in sections 6 and 7 of the Schedule. Section 6 of the Schedule has been cited supra. The relevant part of section 7 reads as follows -

"(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."

30. La Forest J. in Schmidt v. R. supra, referring to section 18 of the Canadian Extradition Act, the wording of which is substantially the same and, in my judgment, aside from the lack of mention of a duly authenticated foreign warrant, bears the same meaning as section 7(1) of the Schedule, commented as follows -

"The hearing thus protects the individual in this country from being surrendered for trial for a crime in a foreign country unless prima facie evidence is produced that he or she has done something there that would constitute a crime mentioned in the treaty if committed here. It must be emphasized that this hearing is not a trial and no attempt should be made to make it one. The trial, when held, will be in a foreign country according to its laws for an alleged crime committed there, and it should require no demonstration that such a prosecution is wholly within the competence of that country. A judge [magistrate] at an extradition hearing has no jurisdiction to deal with defences that could be raised at trial unless, of course, the Act or the treaty otherwise provides."

31. The limited jurisdiction of the magistrate in extradition proceedings has been the subject of English case law too. It appears that the House of Lords decision in R. Governor of Pentonville Prison, ex p. Sinclair [1991] 2 AC 64 is the present defining authority in respect of a magistrate's jurisdiction in the extradition process, the culmination of a progression in case law which has limited the magistrate's true function to that given to him specifically in statute or treaty. Alun Jones QC, in his 1995 text book, Jones on Extradition at page 21 noted that the authority -

"extended the principle in Nielsen and McCaffery by declaring that the magistrate has no power to rule upon the question of compliance with the treaty; such monitoring is the responsibility of the Secretary of State alone. Secondly, the case upholds the rule in Atkinson by holding that the modern and developing doctrine that criminal proceedings, including committals for trial, can be stayed on the grounds of abuse of process, did not apply to the magistrate's statutory function under the 1870 Act.'

32. In Sinclair the House of Lords was asked by the Government of the United States to answer the question whether the magistrate had jurisdiction to consider whether the extradition treaty had or had not been complied with. Article V(1)(b) of the UK/USA Extradition Treaty concerns the prosecution of offences becoming barred by lapse of time according to the law of the requesting or requested party. That Article had been the subject of a lengthy hearing before the magistrate who had assumed jurisdiction to rule upon it.

33. I have already in this judgment cited Article V as it is, concerning the matter now before this Court, the only place where mention of the principle of autrefois convict is raised. Indeed, as will be seen from reading the Article in full, it appears in subsection (a) while the matter of prosecutions being barred by lapse of time appears in subsection (b), both those subsections being preceded by the words: "Extradition shall not be granted if:". This, in light of the ruling of the House of Lords concerning this Article, is, in my judgment, a matter of central relevance. In his speech (with which the other Lords of Appeal agreed) Lord Ackner said:

"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 present 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 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."

34. I confess, as concerns the magistrate's defined statutory or treaty endowed powers in an extradition hearing, that I can see no difference in substance between the protections for an accused fugitive defined in subsections (a) and (b) of Article V of the treaty even though one may, depending on the jurisdiction, arise from common law and the other from statute. Both are, however, principles of law and may, depending on the facts, involve a consideration of complex legal argument. Both require the magistrate to hear evidence of foreign law. Indeed, in the matter now before this Court Mr McCoy has made it clear that just such an application waits in the wings. In short, I am of the judgment that Sinclair, in defining the magistrate's jurisdiction in respect of Article V(b), defined it too in respect of Article V(a).

35. In respect of the dicta of Lord Ackner, Jones has said at page 64 of his textbook that the matter may now be taken as settled and that the approach of the House of Lords in Sinclair will no doubt be applied equally to general extradition arrangements. As he has commented: "The problems involved in construing treaties and arrangements have not, of course, disappeared; they have simply, in practice, been transferred to the Secretary of State."

36. The fact that the 1870 Extradition Act has been repealed does not, in my opinion, take the matter any further. All of those sections referred to by Lord Ackner have, as I have noted earlier, been directly transposed into Schedule I of the 1989 Act.

37. What then of Mr McCoy's common law argument? As I understand his argument, it is that when an accused fugitive is brought before a magistrate, that magistrate has the same jurisdiction and powers, "as near as may be", as if he was presiding over domestic committal proceedings; accordingly, he must have jurisdiction to deal with the fundamental common law defence of autrefois convict.

The common law.

38. It is, of course, not in any way disputed that the principle nemo bis in idem debet vexari, by which is meant that nobody shall twice be put in jeopardy for the same offence, is one of the fundamental principles of the common law. Nor, as I have earlier indicated, is it disputed that, in domestic criminal proceedings here in Hong Kong, if an accused is able to show that he has on the same facts already been convicted by a foreign court of competent jurisdiction, that he could thereby successfully enter a plea in bar to his prosecution. In this regard, for example, see R. v. Thomas (Keith) [1985] QBD 604. The question is simply: does a magistrate in an extradition hearing have that common law jurisdiction?

39. Mr McCoy has referred me to certain early authorities to show that it was always implicit that an accused fugitive could be heard by the magistrate in respect of any special plea in bar to prosecution. With respect, however, in light of more recent dicta in various authorities, I found them to be only of limited assistance.

40. Mr McCoy has also referred me to the dicta of Lord Reid in Atkinson v. Government of the United States of America [1971] 2 AC 197, a case in which the House of Lords, inter alia, had to decide if a magistrate had jurisdiction to consider whether extradition proceedings brought before him were an abuse of the process of the court in that they were unjust, oppressive or contrary to the principles of natural justice. Their Lordships held that in extradition proceedings at least no discretion resided in a magistrate to refuse to commit on such grounds, that such discretion resided rather in the Secretary of State. Certain of the proceedings before the magistrate charged with Atkinson's matter had earlier centred on the question of autrefois convict or acquit but that question seemingly had been resolved on a factual basis. In his speech at pages 231-233, Lord Reid, after citing section 9 of the 1870 Act, equating the powers of the magistrate to his powers in a normal domestic committal, said the following -

"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. The appellant argues that every court in England has power to refuse to allow a criminal case to proceed if it appears that justice so requires."

41. Mr McCoy has accepted that the two line dictum was obiter dicta but has argued that the force of the dictum has been accepted by the learned author of Jones On Extradition at pages 41 and 107.

42. Mr McCoy has further referred to the later case of Re Treitz, an unreported decision of the English Divisional Court handed down on 20th December 1985 in which Mustill L.J. delivered the judgment of the court in the matter of an application for a writ of heabeas corpus. One of the matters raised by the applicant was that an article in the relevant extradition treaty prohibited extradition for an offence in respect of which the accused fugitive had already been punished in the requesting country. On page 22 of the judgment it was said -

"If Article 1V were the only safeguard it might appear that the 1870 Act leaves a disconcerting gap which the executive discretion of the Secretary of State would not entirely bridge. 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... 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."

However, Mustill L.J. went on to say on page 23 -

"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."

43. That last dictum is to some extent, I believe, equivocal. It may be read as indicating that, in awareness of the different functions of the Judiciary and the Executive in matters of extradition, the magistrate, if he had no greater power, had at the very least the power to make a report to the Secretary of State to assist him in exercising his sole discretion whether to surrender the fugitive or not.

44. While both Atkinson and Treitz are authorities of great persuasive power, it must be understood that they both precede Sinclair by at least six years.

45. In Schmidt supra, the Supreme Court of Canada focused upon the very issue argued by Mr McCoy and in that 1987 decision, La Forest J. said -

"Counsel for Schmidt argued, however, that the principle of double jeopardy is so fundamental to our criminal law that in providing that an extradition hearing should be conducted 'as nearly as may be' like a preliminary hearing, Parliament must have intended to import into the extradition hearing some way of presenting defences to prevent a person from being twice prosecuted for the same offence. That, however, would seem to me to import trial procedures into the hearing, an approach that is out of keeping with extradition law generally. In domestic law, such pleas cam be made at trial. In extradition matters too, these are issues that can be raised at the trial in the foreign country. In my view, the reference to a procedure that is the same 'as nearly as may be' as a preliminary hearing is intended to accommodate the differences between the two types of proceedings, such as, for example, the provisions in the treaty and the Act for presenting evidence by depositions.

This conclusion is supportable both in principle and on practical grounds. In principle, as Hagarty J. long ago reminded us, the country seeking surrender under a treaty must be trusted with the trial of offences... it should not be forgotten either that the good faith of this country in honouring its international obligations is involved.

As well, an attempt by courts to consider defences more appropriately dealt with at trial could seriously affect the efficient working of a salutary system devised by states for the mutual surrender of suspected wrongdoers. In particular, a proper determination of pleas such as autrefois acquit and res judicata presents difficult problems requiring an in-depth knowledge of facts and law that are best dealt with at trial. This is especially so in extradition matters where it is necessary to prove the foreign law as a fact if such defences are permitted and where only sufficient facts are presented as are necessary to justify the committal of the fugitive."

46. To my understanding, there has in recent English authorities, in defining the true function and powers of the magistrate in extradition proceedings, been a clear move away from placing upon the magistrate the often onerous and time-consuming task of hearing evidence of foreign law and then making a ruling in respect of that foreign law; in short that the dicta of the La Forest J. has found support in recent English authorities.

47. Re Neilsen [1984] 1 AC 606 is, in my opinion, an important illustration. The House of Lords was here asked to consider the long-standing practice of the requesting state in all accusation cases to call expert evidence before the magistrate of its own criminal law in order to prove that what the fugitive was accused of having done was not only a crime according to its own domestic laws but was also a crime substantially similar to one or more of the crimes listed in the English language version of the extradition treaty. At page 624 Lord Diplock said -

"My Lords, I can find no justification whatever in the Act of 1870 for adducing at the hearing before the magistrate, under sections 9 and 10, evidence of foreign law..."

He continued at the foot of that same page -

"...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."

To illustrate my point, I cite again from Lord Ackner's dicta in Sinclair -

"...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."

48. If a magistrate who, in extradition hearings, derives his jurisdiction exclusively from statute, is to have the power to adjudicate upon a plea in bar of autrefois convict by reason of the fact that he must, as near as may be, conduct the proceedings as if the accused fugitive was standing before him charged with a domestic indictable offence, that must then invariably involve the magistrate in hearing evidence of foreign law and thereafter making a ruling as to the true meaning of that foreign law as it relates to the facts alleged by the requesting state; facts which have been set out by the requesting state, as La Forest J. noted, for the purposes only of justifying committal and thereafter an expeditious surrender. To answer a special plea in bar of autrefois convict that is being argued before a magistrate, the requesting state may feel bound to submit further, more detailed depositions as to the conduct alleged and those documents, of course, to be admissible into evidence, would have to be duly authenticated. That would lead to delays in the hearing before the magistrate and would then place upon the magistrate the onerous task of adjudicating upon foreign law often in the face of contested expert evidence. Following the jurisprudential logic of Neilsen and Sinclair, I am unable to accept that the legislature intended this to be part of the magistrate's function.

49. For the Executive it is different. In ensuring that the treaty provisions have been honoured before surrender is granted, it may seek assurances from the requesting state, including assurances as to the detailed nature of specified parts of the evidence of conduct alleged and those may be provided in a more expeditious and less cumbersome fashion. The Executive, of course, does not act without fear of challenge as the High Court may review the legality of its actions under the treaty.

50. In my judgment, while it is relevant to take heed of the similarities between committal and extradition proceedings, their fundamental differences cannot be ignored and must again be emphasised. Chan J. (as he then was) expressed it as follows in In Re Kan, Paul [1992] 2 HKC 331 -

" However, I do not think it can be disputed that committal proceedings and extradition proceedings are different in nature and purpose. Committal proceedings are a part of the criminal procedure aimed at deciding whether an accused person should stand trial in the local High Court. Extradition proceedings, on the other hand, are an essential step in a special procedure designed for the surrendering of a fugitive criminal to a foreign country to stand trial there. Committal proceedings are a necessary part in the administration of criminal justice whereas extradition proceedings are part of an arrangement founded on international comity and reciprocity."

And as he continued later -

" The basic presumption in extradition proceedings is that the person to be extradited will have a fair trial in the foreign country. He will have his day in the foreign court. He will have the opportunity to cross-examine the witnesses and test their credibility."

51. From this it flows, of course, that he will, when he appears before his trial court in the foreign country, have the opportunity to plead any bar to prosecution by reason of a previous conviction or acquittal.

52. As to the term "as near as may" which is contained in Section 6(1) of Schedule I of the 1989 Act, I respectfully agree with the dicta of Kaplan J. in In Re Thongchai Sanguandikul supra where, at page 17, he said -

"Reference in paragraph 6 of Schedule 1 to the extradition magistrate having the same jurisdiction and power 'as near as may be' as a magistrate hearing proceedings for an indictable offence clearly means as near as may be consistent with the extradition legislation. As an example, cross-examination of deponents in extradition cases is not permitted." [My italics]

53. For the reasons already given, I am not of the opinion that it is consistent with the relevant extradition legislation to infer from the phrase "as near as may be" that the magistrate in the matter now before me had jurisdiction to adjudicate upon the plea in bar of autrefois convict.

The power of this Court to consider autrefois convict.

54. This Court is not a court of appeal from the magistrate. It cannot retry or rehear the case. In this regard I need only refer to Fung Chuen Kan v. The Government of the United States of America [1994] 1 HKLR 163 in which our Court of Appeal cited with approval the dicta of Lloyd L.J. to that effect in R. v. Governor of Pentonville Prison ex parte Osman [1989] 3 All ER 701 at page 722. This Court does not hear the case by way of appeal so as to reverse the magistrate's decision on fact or alter a discretion properly exercised. This Court simply asks itself whether there was evidence on which a reasonable magistrate, properly directing himself in law, could commit.

55. In my judgment this court cannot assume for itself jurisdiction to hear a plea in bar when it has found the magistrate had no such jurisdiction.

Conclusion

56. In the circumstances, the application by the Applicant by way of writ of habeas corpus to quash the magistrate's warrant of committal is dismissed. There will be an order nisi for costs in favour of the Respondents.