RE LORRAIN ESME OSMAN

M.P. 1987, No.2663

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. This is an application for leave to judicially Review the Decision of His Excellency the Governor to issue a Request for the Extradition of the Applicant from the United Kingdom to face various charges here in Hong Kong. An application for leave was first made to me in July 1987 and I declined to grant leave. This decision was the subject of an appeal to the Court of Appeal. Prior to the substantive hearing the Applicant decided that additional documentation was required and the appeal was abandoned and a decision was made to make a further application for leave. For his part, Mr. Findlay for the Crown agreed with the Applicant that he would not take issue on the subject of delay from July 1987 to the present time.

2. In simple terms the problem which arises is as follows.

3. If the Applicant is returned to Hong Kong and faces trial it is quite likely that if found guilty, he will face being sentenced to a term of imprisonment which will mean that he is still in custody in Hong Kong on 1st July 1997.

4. By the Hong Kong Act 1985 it has been provided that sovereignty in Hong Kong will pass to the People's Republic of China on 1st July 1997. Mr. Thomas for the Applicant has submitted that it is at least arguable that His Excellency's request for extradition was illegal. The basis for this is that various assertions are made in the Letter of Request.

5. Amongst the assertions made is Assertion 5 which reads as follows:

6. Mr. Thomas argues that His Excellency was in no position to make this assertion in view of the transfer of sovereignty I have above referred to.

7. Put another way although it would appear from the correspondence which was exhibited with the papers that the British Government will use its best endeavous to negotiate satisfactory transitional provisions with China for prisoners who have been extradicted and who are still serving sentences there can be no defirite assurance that such efforts will be fruitful.

8. This being the case the doctrine of speciality which was an important and integral part of the extradition legislation could not satisfactorily be complied with.

9. Mr. Thomas considered it was particularly significant that the Hong Kong Government had not seen fit to issue a certificate under section 4(4) of the 1967 Act to the effect that all the conditions referred to would be complied with.

10. Mr. Thomas referred to CCSU v. Minister for Civil Service⁽¹⁾ and Home Restaurant v. AG⁽²⁾ as providing authority for His Excellency's request being amenable to Judicial Review. I accept that it is. I also accept that the yardstick which I myself referred to in Home Restaurant for determining whether leave should be granted is correct. This being the case I am satisfied that all that the Applicant has to do is to establish that he has an arguable case. I do not think that he has succeeded in this for the following reasons.

1.             The most basic and fundamental reason as was pointed out by Mr. Findlay is that the Courts must have regard to the law as it is. It is not a legitimate exercise for the Court to speculate upon what the law may be at some future date.

11. It is entirely clear that Hong Kong law as it is at present does meet all the criteria of the relevant legislation. We do not know what the future will hold. It may well be the case that the requirements of speciality will be complied with when sovereignty passes to the People's Republic of China. Even if this does not transpire there is every reason to suppose that the present Hong Kong administration would be mindful of its moral obligations in the light of assertions made in Letters of Request in extradition proceedings. I would however emphasise that all these matters are within the realms of speculation and fall outside the scope of matters properly coming within the parameters of a Judicial Review.

12. I have somewhat reluctantly come to the conclusion that it is not even arguable that His Excellency was acting "illegally" as defined by Lord Diplock in the Civil Service case, when he issued the Letter of Request and made the assertions he did.

2.             The issue has already been determined in England. When the extradition proceedings were heard by the Stipendiary Magistrate in London, it is evident that the question of the propriety of the Letter of Request was considered. It would appear that whatever arguments were advanced did not find much favour. I see considerable force and validity in the submissions which were put forward by Mr. Findlay to the effect that it would be highly undesirable and unsatisfactory to have a situation where on essentially the same point the Courts in England came to one conclusion and the Courts in Hong Kong came to a diametrically opposite decision.

13. I have no doubt that it is more satisfactory that the issues which were canvassed before me by Mr. Thomas should logically form part of the extradition proceedings and should not be dealt with as a separate issue in Hong Kong.

3.             Has the application been made timeously? The answer to this must be a resounding No. The Letter of Request was issued in November 1985. The Applicant must have known about it in December 1985. He did not seek to make an application for Judicial Review until July 1987, that is 18 months later.

14. The excuse put forward by Mr. Thomas was that it was only in July 1987 that the Applicant and those advising him came to realise that there was a possibility that if the Applicant is convicted of the offences he is charged with he may still be serving a sentence of imprisonment after July 1997.

15. This was on account of the Court of Appeal increasing the sentence of 4½ years imprisonment imposed upon the Applicants Co Defendant Mohammed Hashim Shamsudin to 10 years. Mr. Thomas advised me that he had sought the views of various parties in Hong Kong including a Hong Kong Silk.

16. There appeared to be an almost unanimous view that it was inconceivable that even if the Applicant was convicted as charged, he would be sentenced to a term of imprisonment in excess of 7 years.

17. I regret that I do not find this excuse in any way convincing. I reject the proposition that an application of this nature can be treated merely as a matter of expediency. There was no acceptable reason why the Applicant should not seek to judicially review His Excellency's request within a reasonable time of the terms of it being made known to him in or around December 1985. The period of delay of 18 months is in the context of this litigation undue delay and for this reason alone leave should not be granted.

18. For the reasons I have given this application for leave to apply for Judicial Review is dismissed. I will hear the parties on costs.

(1)    [1985] 1AC 375

(2)    [1987] HKLR 237