RE ENG SUI HANG

M.P. Nos. 2426, 2469 & 2641 of 1990

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HEADNOTE

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THERE BEING A REASONABLE BASIS FOR CONSIDERING SUCH COURSE NECESSARY, NO VEXATION OR OPPRESSION ARISING, AND THE INTENTION OF THOSE PURSUING SUCH COURSE BEING TO ACT IN CONFORMITY WITH THE LAW AS THE COURT DECLARED IT, THE COURT UPHELD AN ORDER TO PROCEED AND A RESULTING WARRANT OF APPREHENSION WHICH HAD BEEN MADE AND ISSUED RESPECTIVELY DURING THE PENDENCY OF HABEAS CORPUS PROCEEDINGS CHALLENGING A COMMITTAL MADE IN EXTRADITION PROCEEDINGS UNDER AN EARLIER ORDER TO PROCEED, EVEN THOUGH SUCH COURSE WAS CONTINGENT INASMUCH AS THERE WOULD BE NO NEED TO PROCEED FURTHER UNDER THE LATER ORDER OR TO EXECUTE THE WARRANT UNLESS THE FUGITIVE'S APPLICATION FOR HABEAS CORPUS SUCCEEDED.

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JUDGMENT

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1. There are three sets of proceedings before me. Habeas corpus is sought in one. Certiorari is sought in the other two, which are proceedings by way of judicial review. In each instance the applicant is one Eng Sui Hang. At present he is being detained at the Lai Chi Kok Reception Centre. He is being detained there pending committal proceedings for his extradition to the United States of America on 25 dangerous drugs counts or, if he succeeds before me, his release.

2. Such committal proceedings would not be the first attempt to commit the applicant for extradition on those counts - 21 of which relate to the Eastern District of New York and 4 of which relate to the Southern District of that city.

3. He was first arrested with a view to such extradition on August 17, 1989. That arrest was effected under a provisional warrant issued two days earlier. The chapter which opened thus - and which includes his committal on December 21, 1989 - closed on June 22, 1990. On that day Jones J. ordered the applicant's release by way of habeas corpus. The basis of Jones J.'s decision was that the whole of the extradition proceedings were null and void by reason of their having been purportedly brought under the Extradition Act 1870 after its repeal on September 28, 1989, by the Extradition Act 1989. No order to proceed had been made prior to such repeal; and Jones J. rejected the United States Government's argument that the extradition proceedings had commenced when, prior to such repeal, information was laid for the provisional warrant or, at the latest, when, still prior to such repeal, the applicant was arrested.

4. On June 22, 1990, the day on which Jones J. gave judgment, the applicant was re-arrested after he had emerged from the holding cells area in this building and as he was seeking to leave the building by the covered driveway which gives on to the public highway.

5. Such re-arrest was effected under a warrant of apprehension which had been issued by a magistrate on May 29, 1990, pursuant to an order to proceed made by the Deputy Governor on the 25th of that month. That order was made - as were each of the other orders to proceed with which this case is concerned - upon a requisition of the United States Government through the diplomatic channel under the relevant treaty.

6. The habeas corpus proceedings in which Jones J. gave judgment on June 22, 1990, were heard from May 29 to 31, 1990, having been launched some 4 months earlier. Therefore, the May order had been made while those habeas corpus proceedings were pending, and the May warrant had been issued while they were being heard.

7. The May order was obtained so that if the applicant were released - as it was felt that he might be - he could be re-arrested at once under a warrant issued pursuant thereto; and the May warrant is the one which was so issued.

8. What was feared - reasonably in my view - was this: If he were released and left at liberty the applicant would lose no time in leaving Hong Kong, and would have done so by the time any warrant of apprehension could be obtained pursuant to an order to proceed sought only after such release.

9. The next thing that happened was this: On July 26, 1990 - and therefore well after Jones J.'s judgment - while the applicant was in custody on remand following his re-arrest on June 22, 1990, under the May warrant, two further orders to proceed were sought and made. They were made by the Governor upon a new requisition made two days earlier. One of the July orders is in respect of the 21 Eastern District counts, while the other one is in respect of the 4 Southern District counts.

10. The July orders were sought not because of any qualms over the timing of the May order, but rather because some doubt was felt in regard to its wording, and also because seperate committal hearings for the Eastern District counts, on the one hand, and the Southern District counts, on the other hand, were intended.

11. On August 3, 1990, two further warrants of apprehension - one in respect of the Eastern District counts and the other in respect of the Southern District counts - were issued pursuant to the July orders.

12. On August 6, 1990, the applicant was arrested at the Lai Chi Kok Reception Centre under the August warrants. On the following day he was brought before a magistrate; and he was then remanded in custody.

13. Following that, the present habeas corpus and judicial review proceedings were launched; and the committal proceedings have remained in abeyance since.

14. In the habeas corpus proceedings before me, the applicant challenges the lawfulness of his detention, making it necessary for those seeking to justify it to demonstrate - to the high degree of probability required where a restraint upon liberty is to be justified - that it is lawful.

15. Shortly stated, the applicant's principal contentions are these: First, all the warrants which have been issued for his apprehension are irrational and purportedly issued in the absence of any power to issue them or by an abuse of the process of the court issuing them.   Secondly, all the orders to proceed to which they were issued are irrational and purportedly made in the absence of any power to make them or by a misuse of the power to make them.

16. Those contentions are also made in the two sets of judicial review proceedings before me - one in respect of the May order and the May warrant and the other in respect of the July orders and the July warrants - in which the applicant seeks the quashing of all those orders and warrants by way of certiorari.

17. At the heart of the applicant's case lies the argument that the May order could not lawfully be made prior to Jones J. giving judgment without at least intending to abandon the extradition proceedings challenged before him as soon as there was in hand a warrant issued pursuant to such order on which warrant a re-arrest could be effected. The argument has a number of limbs or - to borrow an analogy used in one of the cases cited to me - quills. Nevertheless, it is I think possible to deal with them globally.

18. In the case of In Re Rees [1986] l AC 937 the Secretary of State, having made an order to proceed, made a further order to proceed while a committal hearing under the first order was part-heard. The intention was to invite the magistrate to terminate the hearing part-heard, discharge Rees and issue a fresh warrant for his immediate re-arrest. That was done. The magistrate acceeded to the invitation; and Rees was immediately re-arrested. In judicial review proceedings brought by Rees, the Divisional Court and ultimately the House of Lords upheld the course taken by the Secretary of State and the magistrate. One of the certified questions before the House of Lords raised the issue whether the Secretary of State can lawfully issue an order to proceed during the currency of an existing order to proceed. As to that, Lord Mackay of Clashfern, with whose speech all the other memebers of the House of Lords sitting to hear the appeal agreed, said, at p.963 B-D, that the Secretary of State "... is not precluded from making an order following on a requisition merely because he has made an earlier order following on the same requisition, and ... where a person has been set at liberty following upon proceedings under an earlier order he may be apprehended under a later order ...".

19. The applicant argues that this is only so where, as happened in that case, the later order was made with a view to the termination of the committal hearing under the earlier order and the re-arrest of the fugitive only after his discharge. I do not accept that argument. Nothing said by Lord Mackay suggests that he rested any part of his decision on the element of termination and discharge. It is true that that element was in fact present in the case before him. And it is likewise true that judicial pronouncements are to be read in the context of the factual background against which they are made. Nevertheless, I am unable to believe that Lord Mackay would not have said so in terms if that element was pivotal.

20. The making of the May order and the issuance of the May warrant did indeed, as the applicant says, carry with them an element of contingency beyond the control of those seeking, making and issuing them. That is so because there would be no basis for executing the warrant or proceeding further under the order unless and until Jones J. held - as he eventually did - that the earlier extradition proceedings were a nullity.

21. But two things stand out. The first is this: It was plain throughout that if Jones J.'s decision went in favour of the applicant he would be holding really no more than that the proper way to proceed against the applicant was under the 1989 Act. That is precisely what the May order and the May warrant entails. So there is nothing in what was done which offends against one's sense of fairness or which savours of vexation, oppression or the like. Secondly, there is nothing - whether by reference to those considerations or any principle or precedent - to suggest that contingency is of itself inevitably objectionable where orders to proceed or their equivalent are concerned. Indeed, in the cases of Oskar v. The Government of Australia [1988]l AC 367 the House of Lords upheld the giving by the Secretary of State of his authority to proceed even though there was in existence at the time when he did so a statutory impediment to the fugitive offender's return, and it was uncertain and out of the Secretary of State's control whether the impediment would be overcome. Oskar was wanted for perjury in Australia. As it happened, a charge of perjury in England against him had been ordered by the Central Criminal Court to lie on the file. So there was an impediment to his return, namely, the bar under section 9 of the Fugitive Offenders Act 1967 to the return as a fugitive offender of a person who happens also to have been charged with an offence in the United Kingdom until such charge had been disposed of - the House of Lords holding that a charge ordered to lie on the file is not one which has been "disposed of" within the meaning of the section. Nevertheless, their Lordships held that the Secretary of State was entitled to give his authority to proceed. In a speech with which all the rest of their Lordships agreed, Lord Ackner said this at pp. 374H to 375C:

"[Counsel] for the appellant has submitted ....that the Secretary of State when considering whether he is entitled to issue an authority to proceed under section 5(3), must have in mind the bars or impediments specified in section 9 to the ultimate order for the return of the fugitive to the country by which the request for his return was made. I agree, but this does not oblige the Secretary of State to withhold his authority to proceed, whenever a bar or impediment exists. The bar or impediment may be of a character which enables it to be overcome by, for example, the passage of time - the fugitive (as in this case) may be due to be released from prison in the United Kingdom in a matter of days, or by the passage of time combined with, some action. An application, following the dismissal of an appeal or the expiration of time for appeal, can always be made for a charge lying on the file to be disposed of and could have been made in this case to the Central Criminal Court. In such circumstances it can quite properly appear to the minister that the authority can be lawfully issued under section 5. I accordingly agree with the Divisional Court that the mere fact that the charge had not, when the authority to proceed was issued, been disposed of, did not invalidate the issue of that authority."

That was held to be the position in law notwithstanding section 5(3) of the Act, which reads:

"On receipt of such a request the Secretary of State may issue an authority to proceed unless it appears to him that an order for the return of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of this Act."

22. So, as I have indicated, I do not accept that the May order or the May warrant are open to any of the objections made against them by the applicant. because they are supplemental to the May order and the May warrant breaks down even if they are indeed supplemental.

23. I would add only this: Mr Alun Jones - on behalf of the Attorney General who represents the Governor, the Deputy Governor and the Director of the Lai Chi Kok Reception Centre as well as the United States Government - says that although the Governor intended that the July orders replace the May order they have not actually done so. Since Mr Nicholls for the applicant agrees - and avers - that the July orders have not replaced the May order, I will proceed on the basis that they have not. Mr Alun Jones submits that, even though they have not replaced the May order, the July orders are independent of it so that they would not fall with it if it were to fall. With some hesitation, I agree. They are by their nature and terms self-contained; and they were of course made after Jones J.'s judgment. So I think that they are free standing, so to speak, to the extent that they would not fall with the May order if it were to fall by reason of the objections advanced by the applicant. Nor, at the same time, do I think that they duplicate jurisdiction merely by reason of their existence or the use to which it is intended to put them, namely, separate committal hearings for the Eastern District counts and the Southern District counts.

24. The applicant's submission that the making of the May order was for a collateral purpose can be dealt with quite shortly - as can his submission that it is Wednesbury unreasonable. Its fundamental objective was extradition proceedings under the 1989 Act if this Court held that it was under that Act rather then the 1870 Act that such proceedings should be brought. That is neither collateral nor unreasonable. It also had the allied objective of protecting the right to resort to such proceedings in conformity with the opinion of this Court from what lawyers would term being rendered nugatory - and laymen might characterise as being reduced to a farce - by the fugitive's flight from the jurisdiction. That objective too is neither collateral nor unreasonable. Not even Hamlet without the Prince could, after all, be more pointless than extradition proceedings without the fugitive.

25. What I have already said also disposes of the applicant's point on section 5 of the Habeas Corpus Act 1679 which restricts the re-arrest of a person released by way of habeas corpus to re-arrest by the legal order or process of the court. Here the May warrant was in my view legal. The return in the habeas corpus proceedings before me is different from the one in the habeas corpus proceedings before Jones J.; and the release in the earlier habeas corpus proceedings was on procedural grounds and did not turn on the merits.

26. Of course, that is not to say for one moment that arguments in support of a complaint of infringement of the liberty of the individual are listened to less carefully where they are procedural or technical rather than substantive.

27. In the result, I am of the view that the applicant's detention is demonstrably lawful and that nothing about any of the orders or warrants under attack is open to any of the objections to them made by the applicant. I so hold. All the applications are dismissed.

28. Before inviting them to address me on costs or any other ancillary matter which may arise, I wish to express my great indebtedness to counsel on both sides for their assistance.

[Counsel address on costs]

29. Mr Alun Jones seeking costs and Mr. Nicholls feeling unable to resist them, I order costs in favour of the respondents.