RE WONG CHEONG WAI

M.P. 2246 of 1989

Headnote

Writ of Habeas Corpus challenging extradition order.

Conspiracy to traffic in a dangerous drug - an extradition offence in Hong Kong.

Duty of Magistrate to decide issues of admissibility of evidence.

Admissibility of tape recording and/or transcript - matters of practice not substantive law.

Credibility of witnesses not a matter for Magistrate - still entitled to rule inadmissible evidence found to be worthless or inherently incredible.

Acts and declarations of co-conspirator - need for independent evidence that applicant a party to the conspiracy.

M.P. 2246 of 1989

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. The Applicant WONG Cheong-wai also known as Kenny Wong is seeking an order that a Writ of Habeas Corpus should issue. He is challenging an extradition order made against him by Mr. Warner Banks, a Magistrate, on the 17th of August, 1989.

2. The United States Government requested Hong Kong to extradite the Applicant on two charges of conspiracy to traffic in dangerous drugs. The Governor of Hong Kong pursuant to this request ordered the Chief Magistrate of Hong Kong to proceed in accordance with the Extradition Acts. When the hearing of the extradition proceedings came before Mr. Banks the prosecution elected to proceed on only one of the two charges

3. In 1987 Simon Au Yeung, an F.B.I. agent, made contact with WOO Kok-leung, also known as Peter Woo, a resident of New York. Both in person and in telephone conversations, Woo offered to supply Au Yeuny with heroin which Woo said he could obtain from Hong Kong or Singapore. On the 8th of December, 1987, Woo and an associate Kwong Chock Chiu also known as David Kwong sold Au Yeung one pound of herion for US$35,000.00.

4. Following the December transaction Woo told Au Yeung on several occasions that he could provide Au Yeung with a continuous supply of heroin. On 26th January 1988, Woo advised Au Yeung that his Hong Kong source would be arriving in New York from Hong Kong on Northwest Airlines. On the 28th of January, 1988 Patrick J. L Lavin, an F.B.I. agent, saw Woo meet two young Asian males at JFK Airport, they having arrived on Northwest Orient Airlines Flight No. 18 from Hong Kong. The two males identified themselves to Lavin as the Applicant and Wong Cheung Yiu, also known as Danny Wong, the Applicant's brother. The Applicant told Lavin they had been met by their uncle Mr. Ng.

5. In March 1988 Woo informed Au Yeung that he was going to Canada to meet his source. Depositions from Sgt. T.V. Towns and Larry Ching Yi Chan both employed by the Royal Canadian Mounted Police were admitted into evidence by the Magistrate. Towns purported to identify the Applicant as one of three persons who met with Woo at Calgary and Ching purported to identify the Applicants voice on certain surveillance tapes. The Crown conceded before me that the two depositions were wrongly admitted and that the Crown did not now rely on them. It was further argued before me on behalf of the applicant that the depositions, having been sworn in Canada before a Provincial Court Judge, were not authenticated with the official seal of the Minister of Justice or some other Canadian Minister of State as required by Section 15 of the Extradition Act 1870, or alternatively that not having been taken in a foreign State (Canada being a Commonwealth Country) the depositions could not be received under the provisions of section 14 of the Extradition Act 1870. The Crown having already conceded that the depositions were not admissible on other grounds, while not conceding the point, did not wish to seek time in which to argue it. For the purposes of this application, it is not therefore necessary for me to decide the point.

6. Shortly after the 22th day of March 1988, Woo told Au Yeung that he and his source had been followed at the airport in Canada and that his source had therefore refused to complete the heroin transaction.

7. In May, 1988, Au Yeung met Woo in New York to discuss why Woo had not been able to deliver the promised heroin. Woo again explained that when he went to Canada, the source from Hong Kong detected they were being followed and aborted the transaction.

8. In June, 1988, Woo told Au Yeung he intended to go to Hong Kong and Singapore to meet his heroin suppliers. On 1st of July, 1988 Woo met with Au Yeung in Hong Kong, in the presence of another undercover agent James Tze. They discussed the shipment of heroin in March, 1988, and Woo confirmed that his source had refused to complete the deal because he detected they were under surveillance. In respect of future deals, Woo agreed to supply heroin at $70,000 per unit (700 grams). Woo also told them he had met with his Hong Kong source and had paid him for a previous shipment of heroin. The further supply of heroin was discussed.

9. Between May 11, 1988, and June 10, 1988, F.B.I. officers in New York had on ten occasions taped Woo's telephone conversations. In conversations 1, 2, 6 and 8 between Woo and a person Ah Wai, who is alleged to be the applicant, money owed by Woo to the applicant was discussed.

10. On the 2nd of July 1988 Woo told Au Yeung it would be several days before he could get any specific information from his source as to heroin shipments.

11. On the 2nd of July 1988 DPC Lung Ka Lun of the Royal Hong Kong Police Force saw Woo go to a restaruant in Tsim Sha Tsui where he met three males and two females. The group left the restaurant and rent to a club. Woo was seen to leave the club alone and travel to Mongkok where he met the applicant. They talked and then went to the President Restaurant where they sat with two other males. Later Woo left the restaurant.

12. On the 4th of July 1988 Woo met Au Yeung in Hong Kong and told him he had met his source on the 2nd day of July 1988 but that the source did not have any specific information concerning heroin supply.

13. On the 22nd of February, 1989 S.I. Chan Kin Hung arrested the applicant and spent the next five hours with him. He spoke to the applicant over this period, the total time in conversation being estimated at 45 minutes. The ten taped conversations I have referred to had been put onto a consolidated tape. S.I. Chan listened to a copy of this on the 20th of June, 1989, and it is his evidence that, based on his time in conversation with the applicant on the 22nd of February 1989, he could identify the voice of the applicant on the tape in conversation with Woo. Is conspiracy to traffic in a dangerous drug an extradition crime in Hong Kong

14. S. 26 of the Extradition Act 1870 defines "extradition crime" as "a crime which if committed in England or within English jurisdiction would be one of the crimes described in the first schedule to this act".

15. It is the submission on behalf of the applicant that conspiracy to traffic in a dangerous drug is not an extradition offence in Hong Kong. The power to make an extradition order in Hong Kong is governed by the Extradition Act 1870 and its amendments. The Act of 1870 did not include drug offences in the schedule of offences which were defined as extradition offences. The Extradition Act 1932 included in the Schedule to the Principal Act any enactment for the time being in force relating to dangerous drugs and the Misuse of Drugs Act 1971 added conspiracy to commit any offence against any such enactment to the list.

16. Mantell J. in In re an application by the Attorney General for Judicial Review by way of Declaration (1985) HKLR 381 considered the exact point now raised and held that the Extradition Acts apply to Hong Kong by virtue of section 17 of the Extradition Act 1870, local legislation not therefore being necessary to give effect in Hong Kong to amendments made to the Acts from time to time, including the Misuse of Drugs Act 1971.

17. By Section 1 of the Extradition Act, 1870:-

"Where an arrangement has been made with any foreign state with respect to the surrender to such state of any fugitive criminals, Her Majesty may, by Order in Council, direct that this Act shall apply in case of such foreign state."

18. Section 17 of the Act provides that:-

"This Act, when applied by Order in Council, shall extend to every British possession in the same manner as if throughout this Act the British possessions were substituted for the United Kingdom or England as the case may require but with the following modifications."

19. Then certain procedural differences which are to apply to British possessions are set out.

20. Mr. Tang, for the applicant, submits that. In re an application by the Attorney General for Review (1) was wrongly decided in that the learned judge did not consider the implications of Section 4 of the Application of English Law Ordinance Cap 88 which provides:-

"4(1) Subject to the provisions of this section and of any other Ordinance the law of England as set out in the following Acts shall be in force in Hong Kong, that is to say -

(a) the Acts specified in the second and third columns of the Schedule to the extent specified in the fourth column thereof subject to such modifications thereto as the circumstances of Hong Kong may require;

(b) any other Act which applies to Hong Kong by virtue of -

(i) any order in Council;

(ii) any express provision in the enactment, or by necessary implication; or

(iii) any Ordinance."

(2) Any enactment as is mentioned in subsection (1) as being in force in Hong Kong shall, in its application to Hong Kong; be subject to such amendment as may have been or may hereafter be made thereto by -

(a) Order in Council which applies to Hong Kong; or

(b) any Act which applies to Hong Kong; or

(c) any Ordinance."

21. It is Mr. Tang's argument that as the Misuse of Drugs Act 1971 does not come within the ambit of Section 4(2)(a), (b) or (c) the amendment made to the Extradition Act 1870 by the Misuse of Drugs Act 1971 cannot apply to Hong Kong. As I read Section 4(2) it provides that if there is a provision coming within S.4(2)(a), (b) or (c) which amends the principal act then in its application to Hong Kong the principal act will be read subject to that amendment.

22. No amendments relevant to this case have been made to the Extradition Acts by any of the provisions set out in Section 4(2)(a), (b) or (c). The schedule to the Extradition Act 1870 as amended sets out the schedule of extradition offences which included conspiracy to traffic in dangerous drugs. As the schedule has not been amended in its application to Hong Kong by any provision coming within Section 4(2)(a), (b) or (c), the offence remains potentially an Extradition offence in Hong Kong. The United States of America (Extradition Order 1976) makes it a crime for which extradition to the United States will be granted. Hong Kong is included within the terms of its operation.

23. With respect I am satisfied that In re the application by the Attorney General for Review (1) was rightly decided and that a Magistrate in Hong Kong does have the jurisdiction to grant the request made for the return of the applicant to the United States of America for the offence of conspiracy to traffic in dangerous drugs.

24. The Magistrate has to consider the conduct of the applicant in relation to the evidence of the offenses under Hong Kong law and whether the acts complained of amounted to an offence both in Hong Kong and the United States. (see the speech of Lord Diplock In re Nielsen (1984) 1AC 606).

25. It is the duty of the Magistrate to decide what evidence is admissible or inadmissible at the extradition hearing. Objection was taken at that hearing before the Magistrate to the admissibility off a good deal of the evidence but he rejected the submissions and admitted all of the evidence adduced. As I have already mentioned the Crown concede, he was wrong to do so in respect of the depositions of Towns and Larry Ching.

Admissibility of the tape recording

26. The Magistrate had before him the depositions of nine U.S. Government law enforcement officers who were involved in intercepting Woo's telephone conversations and recording these on tapes.

27. Officers Calman, Hegarty and Suey deposed to having placed blank tapes into the machine at the beginning of the day, removing these at the end of the day and of sealing the tapes. The ten tapes relevant to the proceedings were recorded between 11th of May 1988 and 17th of June 1988. On the 11th of April, 1989 Detective Charles Butera copied the intercepted tapes, identified by date, time, and telephone number, onto a single tape, a copy of which was produced at the hearing. It is not in dispute that some of the telephone numbers are incorrectly recorded in the depositions.

28. It is the applicants submission that as there was no evidence as to the history of the ten tapes from the time they were sealed up to the 11th of April 1989, when the single tape was made, the tape recording is inadmissible. The applicant relies on the authority of R V Choi Kit Kau [1980] HKLR 433 in which Roberts CJ in considering the admissibility of a tale recording said at Pg 438:-

"(d) Was the tape satisfactorily proved. The conditions which must be satisfied before a tape is produced in evidence were considered in R.V. Robson and Harris (1972) 2 ALL ER 699.

Shaw J. was of the view that it was necessary for the Court to be satisfied on the balance of probabilities that the recording was authentic by evidence of the history of the recording up to its production in Court.

The best method of proving that a tape recording produced in a Court is authentic is to show that it has been since the time it was recorded continuously in the custody of persons who assent that it was not tampered with. This is the course which should be followed if the authenticity of a tape is challenged and is desirable even if it is not."

29. The approach which a Magistrate should take to the admissibity of evidence in extradition proceedings was considered in R V Governor of Gloucester Prison ex parte Miller (1989) 1 WLR 537 where a witness in Australia had been permitted to refresh her memory from statements which were in no sense contemporaneous. Lord Widgery CJ stated at Pg 539:-

"The central question in this case - and I go straight to it because it seems to me unnecessary to confuse this matter with further detail - is that when an English stipendiary Magistrate is considering an application for extradition under Section 7 of the Fugitive Offenders Act 1967, if he fails to recognise the English practice whereby statements would not be used for memory refreshing, in those circumstances does he thereby invalidate the committal order which comes later from his hand.

The argument put forward by Mr. Nicholls is that, although stipendiary Magistrates when dealing with these applications are required generally and basically to follow the law of England, it is submitted that they are not required to follow this country in matters which are mere practice and not substantive law."

and again at pg 540:-

"It is of course correct that under the Fugitive Offenders Act, 1967, the standard of proof required for the stipendiary Magistrate to make an order is the standard of proof required in England to commit a man for trial in our domestic Courts. In considering whether that minimum standard of proof has been achieved the stipendiary Magistrate will use the English rules of law, but if Mr. Nicholls is right, he is not required to apply English practice as well.

For my part I think Mr. Nicholls is right. He has not been able to find any authority specifically on this point, and I think it is time there was such authority, and maybe this case will survive and become authority.

But, be that as it may, I think Mr. Nicholls submission is right. I think that this is a case in which the stipendiary Magistrate was not bound to follow the English practice with regard to the question of memory. Consequently the fact that he did not do so to a greater or lesser degree seems to be wholly immaterial to the validity of the order which he made."

30. With respect, the same principles apply to a Magistrate in Hong Kong in determining under S.10 of the Extradition Act 1870 whether there is a prima facie case against the applicant. In applying this test it seems to me that Roberts CJ in Choi Kit Kau (2) was stating a rule of practice to be followed in Hong Kong proceedings. He referred to "the best method of proving the tape" not the only method of doing so and he dismissed the appeal before him even though in some minor respects the procedure he had laid down had not been followed.

31. In R V Governor Pentonville Prison ex parte Voets [1986] 1 WLR 470, where photographs had not been strictly proved, the Court considered this to be a formality which did not have to be strictly complied with in extradition proceedings.

32. I am satisfied that the Magistrate acted properly in the extradition proceedings when he admitted the tape recording. The continuity of possession and the explanations for the errors in recording the telephone numbers will be a matter of weight for the jury to consider.

Admissibility of the transcript of the tape recording

33. At the hearing before the Magistrate a transcript of the tape in the Chinese language was not produced, the conversations recorded having been in a Chinese dialect. The admissibility of transcripts was also considered by Roberts CJ in Choi Kit Kau (2) Pg 436:

"Nor is there any doubt that a transcript of a tape recording is admissible by virtue of Section 29A of the Evidence Ordinance as is a document containing a translation of a document which has been admitted into evidence, by virtue of Section 27 of the Ordinance.

These sections provide that if the appropriate formalities are fulfilled (and there is no suggestion that they were not in this case) the documents are presumed to be an accurate transcript of the tape recording in its original language and an accurate translation of the other document as the case may be. Each such document is to be admitted into evidence upon its production without further proof."

34. S.29A and S.27 are procedural provisions designed to make easier the production of transcripts in Court proceedings. They set out rules of practice and do not in my view preclude the Magistrate at the extradition hearing from admitting the English transcript, provided he was satisfied that it accurately represented the contents of the tape. The Magistrate heard evidence from his interpreter to this effect and in the extradition proceedings that was sufficient. The fact that the requesting country had not strictly complied with S.29A and S.27 does not, as Mr. Sedgwick, for the applicant, suggests make the transcript in English inadmissible. The Magistrate was right to admit it.

Evidence of voice identification

35. I have referred earlier to the identification by Inspector Chan of the voice of Ah Wai on the tape as being that of the applicant. Mr. Sedgwick referred to the Divisional Court decision in the case of Lorrain Osmond (Times April 13, 1988). Lloyd CJ at Pg 55 stated when considering the proper approach of the Magistrate;

"If there is any evidence at the conclusion of the prosecution case on which a jury properly directed, could reasonably convict, in other words if there is any evidence which is not inherently incredible to establish all the elements of the charge ..........

and at Pg 57:

"In our judgment, it is the Magistrates duty to consider the evidence as a whole, and to reject any evidence which he considered worthless."

36. It is Mr. Sedgwick's submission that a study of Inspector Chan's evidence could only lead a reasonable Magistrate to the view that his evidence was worthless and inherently incredible. The Magistrate correctly directed himself that questions of credibility and weight were not for him to determine. This did not, of course, preclude him from excluding the evidence of Inspector Chan if he considered it inherently incredible or worthless. Clearly he did not. Was his decision to admit it within the range of views that a reasonable Magistrate directing himself properly and in accordance with the law could reach. In my view it was.

The conspiracy

37. The approach to be adopted in considering the admissibility of hearsay evidence of a fellow conspirator was considered in the Lorrain Osmond (3) case.

The judgment at Pg 89 states.

"Next there is an issue as to admissibility of some of the evidence tendered to prove that Osmond was a party to certain of the conspiracies. Mr. Ross Munro accepted, of course, the general principle that acts and declarations are admissible against a fellow conspirator to prove the nature and scope of the conspiracy. But first there must, he submits, be independant evidence to show that Osmond was a party to the conspiracy otherwise the argument is circular."

and at Pg 89:

"Mr. Nicholls relied also on R V Donat to which we have already referred, where Lord Lane CJ described the present problem as never an easy one to solve. But as we read the judgment at page 179 Lord Lane was agreeing with the observations in Cross on Evidence 6th Edition, page 527, that there must always be some evidence other than the heresay evidence of a fellow conspirator to prove that a particular defendant is party to a conspiracy. Provided there is some other evidence, it does not matter in what order the evidence is adduced. Donat therefore appears to support Mr. Ross Munro's submission under this head. We would reject Mr. Nicholl's argument to the contrary."

38. In R V Au Hang and others No. 399/1987 CA Mr. Justice Penlington delivering the judgment of the Court, said at Pg 7:

"We were also referred to the New Zealand decision of Buckton [1985] 2 NZLR heard before a very strong Court of Woodhouse P and Cooke, Richardson, McMahon and Sommers JJ. In applying the earlier decision in R V Humphries [1982] 1 NZLR 353 it was held that there must be reasonable evidence of the existence of a common intention of the type referred to in the indictment"

(per Sommers J at 263)

"It was also field that the existence of the requisite common intention must be established on the balance of probabilities i.e. it must be more than a mere possibility.

Applying that test here, was there other evidence, apart from the notebook, against each applicant showing that on a balance of probabilities he was a member of a conspiracy to Defraud."

39. It was necessary for the Magistrate to find that there was some reasonable evidence other than the hearsay evidence of Woo's acts and declarations, to prove that the applicant was a party to a conspiracy to traffic in dangerous drug into the United States of America, this being the conspiracy alleged against him. If such evidence was not available then the hearsay evidence was not admissible against the applicant.

40. The evidence relevant to this point was :

i) the meeting as at JFK Airport, New York between Woo and the applicant and his brother,

ii) the meeting in Hong Kong between Woo and the applicant, Woo having on that evening also met with several other persons,

iii) the transcript of the tape recording of the intercepted telephone conversations between Woo and the applicant, the latter's voice having been identified by Inspector Chan.

41. The two meetings show that Woo knew the applicant but nothing more. There is no evidence of the conversations between the two men on these two occasions.

42. The content of the taped conversations, not surprisingly, make no reference to drugs or drug trafficking. The reference in the first recording of Woo "being followed by someone last time" makes no sense without the evidence of the two Canadian policemen, which was inadmissible. The remained of the conversations principally concern a debt owing by Woo to the applicant, and the dire consequences which might follow for the applicant if he didn't get his money. These conversations do not of themselves show the existence of the conspiracy alleged.

43. If the proper test is applied to the "other evidence" to which I have referred, that evidence does not supply reasonable evidence of the applicant being a party to a conspiracy with Woo to traffic in dangerous drugs. That being so the evidence of Au Yeung as it relates to the acts and declarations of Woo, said to implicate the applicant, were inadmissible. In fairness to the Magistrate this does not appear to have been an argument advanced in any depth before him.

44. Without Au Yeung's evidence as to Woo's acts and declaration a prima facie case cannot be made out and the extradition order should not have been made.

45. There will therefore be an order in terms of the Notion. I will hear counsel as to costs.