ALFREDO GOMEZ TIONGCO v. THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES and Another

HCAL 12/98

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H E A D N O T E

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Fugitive Offender - new Hong Kong legislation -"relevant offence" - whether to be determined by reference to particulars in foreign information or to totality of evidence - authority to proceed - requirement that it "relates to a relevant offence" - whether requirement may be satisfied where authority itself gives no particulars of the offence nor specifies the foreign offence - order of committal - whether Hong Kong or foreign offence to be stated - authentication of documents - whether necessary for each document to be authenticated individually - evidence that requesting jurisdiction may proceed in respect of further offences - whether relevant to legality of magistrate's order of committal.

The Government of the Republic of the Philippines made a request for the return of the applicant who was wanted there for drug and firearm offences, and who had been arrested in Hong Kong upon a provisional warrant. In October 1997, the Chief Executive of the Hong Kong Special Administrative Region issued to the magistrate an authority to proceed which described the offences for which the applicant was wanted as 'an offence against the laws relating to firearms and an offence against the laws relating to drugs,' and ordered the magistrate to deal with the applicant in accordance with Part II of the Fugitive Offenders Ordinance. The authority to proceed was placed before the magistrate as were the foreign informations and warrants and a bundle of evidence. The foreign information and warrant issued in relation to the applicant's alleged drug activities specified one drugs charge. The magistrate conducted proceedings and in due course made an order committing the applicant to custody to await the decision of the Chief Executive as to surrender.

The applicant brought habeas corpus proceedings by which he challenged the legality of the magistrate's order of committal.

Held :

(1) In determining whether 'the acts or omissions constituting the conduct in respect of which the person's surrender ... is sought ..." came within the scheduled description of offences and was punishable in Hong Kong with imprisonment for the prescribed minimum period, a magistrate is to examine the totality of the evidence placed before him, and was not under the new legislation restricted to an analysis of conduct or facts particularised in the foreign information or warrant. Government of Canada v. Aronson [1990] 1 AC 579 distinguished.

(2) The authority to proceed was not defective for its broad description of the offences upon which the magistrate was to proceed and, in particular, where the Ordinance required the magistrate to be satisfied that 'the offence to which the authority to proceed relates is a relevant offence,' it was not by a study of what was on the face of the authority alone that that assessment was to be made. The condition was satisfied if, looking at the terms of the authority to proceed, and other documents accompanying it, the magistrate could properly draw the conclusion that the authority related to the warrants, information, and evidence placed before him and that they disclosed a relevant offence.

(3) An order of committal which particularised Hong Kong offences disclosed by the evidence was not only acceptable practice, and accorded with the form prescribed by subsidiary legislation, but to suggest that the order should particularise the foreign offence disclosed was to ask a magistrate to apply an expertise which he did not purport to possess, and which the Ordinance did not expect him to possess.

(4) Following Oskar v. Government of Australia [1988] AC 366, it was not necessary that each individual document and statement should be certified. A global certificate which referred to identified statements sufficed.

(5) Evidence that the requesting jurisdiction was joining the applicant in further criminal proceedings in respect of offences other than those for which the request for surrender was made was a matter irrelevant to the habeas corpus proceedings, which were only concerned with the legality of the magistrate's order. Such evidence could be drawn by the applicant to the attention of the Executive.

1998, No.HCAL12

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST

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J U D G M E N T

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1. This is an application for the issue of a writ of habeas corpus to be directed to the Commissioner of Correctional Services who has the applicant in his custody pursuant to the order of a magistrate in extradition proceedings.

Background

2. The applicant is a national of the Philippines and he is wanted there for trial in relation to two separate matters : the first is the alleged unlawful possession by him in July 1997 of firearms; and the other relates to the illegal importation in December 1993 into the Philippines on a boat allegedly belonging to him of methamphetamine hydrochloride, known in Hong Kong as "ice" and in the Philippines as "shabu", in a quantity said to exceed 80 kilograms.

3. According to the papers before me, the applicant left the Philippines on 12th July 1997 and came to Hong Kong. A raid took place upon a home of his in Quezon at which he and his family resided. There is said by the evidence to have been a gun battle between the authorities and security personnel at the premises, and that on the ground floor inside the car park or garage of the premises, on top of a plant box, there was found an assault rifle which was not licensed.

4. On 1st August 1997, an information was laid in the Regional Trial Court, Quezon City, and on the same day a warrant was issued for the arrest of the applicant for unlawful possession of the assault rifle.

5. On 16th September 1997, the applicant was arrested in Hong Kong pursuant to the issue by a magistrate here of a provisional warrant for his arrest, issued after a request for his arrest was made by the Philippines Government on the firearms charge.

6. It is said that in 1993, the applicant was the owner of a number of fishing vessels in the Philippines including two vessels named the "Karen Ann" and the "Pamela Blezette" and he was in the business of importing very large quantities of dangerous drugs into the Philippines. On 23rd December 1993, so the evidence goes, the vessel "Pamela Blezette" was intercepted in Philippines coastal waters on its way to the Navotas fishing port. The suggestion is that it had picked up bags of drugs from its sister ship, the "Karen Ann", which in turn had taken delivery of the drugs from a foreign ship whose captain had released the goods upon the passing of a code word or number arranged between the applicant and his Hong Kong counterpart, through the offices of an accomplice whose evidence under immunity is central to the case deployed against the applicant.

7. Upon interception of the "Pamela Blezette" by the Philippines coast guard, the crew of the "Pamela Blezette" abandoned ship and none was caught. But drugs were seized and taken for analysis. It is said that the drugs were methamphetamine hydrochloride in a huge quantity.

8. On 9th October 1997, an information was laid before the Regional Trial Court in Metro Manila alleging that on or about 23rd December 1993, the applicant and a number of other named individuals "... whilst conspiring confederating and helping one another did then and there [i.e. in the municipality of Navotas] ... transfer, transport, carry, dispatch and bring into the Philippines eighty kilos and five hundred and fifteen grams of methamphetamine hydrochloride, a regulated drug without any permit, authority, licence or consent from the Government".

9. On 10th October 1997, a warrant was issued in the Philippines for the arrest of the applicant charged before the judge with crimes itemised in the warrant by reference to certain statutory provisions relating to drugs. A further request to Hong Kong for provisional arrest was then issued by the Philippines Government.

10. On 29th October 1997, the Chief Executive of the Government of the Hong Kong Special Administrative Region signed an authority to proceed, to be presented to the magistrate in Hong Kong. The authority to proceed reads as follows :

" AUTHORITY TO PROCEED

A request for surrender having been received from the Republic of the Philippines for the surrender of Alfredo G. Tiongco @ Alfredo Co @ Fred Payat who is wanted in the said place for prosecution in respect of an offence against the laws relating to firearms and an offence against laws relating to drugs :

I hereby order that the said person be dealt with under Part II of the Fugitive Offenders Ordinance (23 of 1997).

Dated this 29th day of October, 1997.

[Signed by the Chief Executive]"

11. I am told that on 30th October 1997, the Authority to Proceed was put before the magistrate together with other documents including the foreign informations laid, the foreign warrants and a bundle of evidence.

12. Proceedings were in due course conducted before the magistrate in Hong Kong, and on 18th February 1998, he ordered the applicant to be committed into custody to await the order of the Chief Executive for his surrender to the Philippines. The Order of Committal is in the following terms :

" ORDER OF COMMITTAL

To each and all of the authorized officers of Hong Kong and to the Commissioner of Correctional Services.

Pursuant to section 10(6)(b) of the Fugitive Offenders Ordinance (23 of 1997), I hereby order Mr Alfredo G. TIONGCO @ Alfredo Co @ Fred Payat to be committed to custody

(a) in respect of the following offences :

I. that between 1 December 1993 and 24 December 1993, he conspired with others to traffic in a dangerous drug, namely methamphetamine hydrochloride, being an offence against the laws relating to drugs;

II. that on or about 23 December 1993, he trafficked in a dangerous drug, namely methamphetamine hydrochloride, being an offence against the laws relating to drug; and

III. that on or about 13 July 1997, he had in his possession a firearm without a licence, being an offence against the laws relating to firearms.

(b) to await the Chief Executive's decision as to his surrender, in respect of one or more of those offences, to the prescribed place by which the request for surrender of such person was made; and

(c) if the Chief Executive decides that he shall be surrendered to that place, to await such surrender.

Dated this day of February 1998.

 

_____________________
Court of Committal"

13. There are deployed in the case a number of grounds of complaint against the legality of the order of committal made by the magistrate. Before I summarise the import of those grounds, it would be helpful first to examine the statutory scheme which lies at the centre of the arguments.

Statutory Background

14. In order to provide a statutory framework within which to regulate the return of fugitive offenders from Hong Kong to requesting jurisdictions after 1st July 1997, it was necessary to enact before that date domestic legislation to that end. Previously, applications for the return of accused or convicted persons from Hong Kong to other jurisdictions were, broadly speaking, made under the umbrella of UK legislation applied to Hong Kong. The Extradition Act 1870 was an imperial enactment which applied to requests from foreign states with whom the Government of the United Kingdom had entered upon extradition treaties and to which states the Act was, by Orders in Council, directed to apply. Where the Act was applied to a foreign state by an Order in Council, it was extended to British possessions and where the British possession made its own legislative provision, the Act provided that the Queen might by Order in Council direct that the legislative provisions shall have effect in that possession as if it were part of the 1870 Act, and that is what happened in the case of Hong Kong. For present purposes, it suffices to say that the provisions of the 1870 Act applied in this territory.

15. Procedures for extradition between British Commonwealth countries and the United Kingdom and dependent territories were governed by the Fugitive Offenders Act 1967 extended to Hong Kong. That statutory framework was not allied to individual international agreements, but was the consequence of a 1966 agreement by Commonwealth Law Officers known as the Scheme Relating to the Rendition of Fugitive Offenders within the Commonwealth.

16. Then there was enacted the Extradition Act 1989. Its purpose was to consolidate enactments relating to extradition and to make certain amendments to give effect to recommendations of the Law Reform Commission in the United Kingdom. By that Act, the 1870 and 1967 Acts were repealed. The new Act also envisaged the application of the legislation by Order in Council to international arrangements. I am advised that the provisions of the Act were applied to Hong Kong.

17. The change in the exercise of sovereignty on 1st July 1997 meant that international arrangements previously extended in their operation to Hong Kong would, in so far as they had been extended to Hong Kong, lapse by that date and, further, that U.K. legislation could not, after that date, any longer have effect within Hong Kong. Two consequences flowed. The first was that there had to be put in place a fresh legislative framework within which extradition procedures could be conducted; and secondly, if it was intended, as it was, that that framework would continue to be allied to specific international agreements, fresh agreements had to be made with appropriate authorisation by the sovereign power responsible for Hong Kong's foreign affairs. In that setting, Hong Kong entered upon specific agreements with other jurisdictions and shortly before the change in the exercise of sovereignty, domestic legislation to complete the framework was enacted. That legislation is the Fugitive Offenders Ordinance which came into effect on 25th April 1997.

The Scheme of the Ordinance

18. The key provisions of the Fugitive Offenders Ordinance are these :

19. Section 4:

"4. Persons liable to be surrendered

A person in Hong Kong who is wanted in a prescribed place for prosecution, or for the imposition or enforcement of a sentence, in respect of a relevant offence against the law of that place may be arrested and surrendered to that place in accordance with the provisions of this Ordinance."

20. A "prescribed place" is a place outside Hong Kong to which a person may be surrendered pursuant to prescribed arrangements, which are arrangements for the surrender of fugitive offenders to which the [Governor-in-Council] (now to be read as the Chief Executive in Council) has by order directed that the procedures in the Ordinance shall apply : see sections 2 and 3(1). Such an order was made in relation to arrangements between the Government of Hong Kong and the Government of the Philippines. The order is the Fugitive Offenders (Philippines) Order which came into operation on 25th April 1997. The agreement was made in 1995.

21. Of prime importance in this case is the definition of "a relevant offence", for it is at the heart of the applicant's submissions. It is defined by section 2(2) which reads :

"(2) For the purposes of this Ordinance, an offence by a person against the law of a prescribed place is a relevant offence against that law if -

(a) the offence is punishable under that law with imprisonment for more than 12 months, or any greater punishment; and

(b) the acts or omissions constituting the conduct in respect of which the person's surrender to that place is sought amount to conduct which, if the conduct had occurred in Hong Kong, would constitute an offence-

(i) coming within any of the descriptions specified in Schedule 1; and

(ii) punishable in Hong Kong with imprisonment for more than 12 months, or any greater punishment."

22. Amongst the descriptions of offences in Schedule 1 are the following which are germane to this application :

"8. Offences against the law relating to dangerous drugs including narcotics, psychotropic substances, precursors and essential chemicals used in the illegal manufacture of narcotics and psychotropic substances; offences relating to the proceeds of drug trafficking.

.....

19. Offences against the law relating to firearms."

23. The first step to engage the magistrate under this statutory scheme is the issue of a warrant for the arrest of the fugitive offender (see section 7). That warrant may be issued in one of two circumstances. The first is upon receipt from the Chief Executive of an authority to proceed, but such an authority cannot be issued unless the Chief Executive has first received a request from the prescribed place for the surrender of the fugitive offender. More often than not, a fugitive offender arrives in a foreign jurisdiction before the formal request is made. In those circumstances, application is made (at the behest of the prescribed place, probably through Interpol, and this is normally provided for, as it is in this case, by the relevant international arrangement), to a magistrate for the issue of a provisional warrant of arrest (see section 7(2)). This is the second vehicle for arrest. If a provisional warrant is issued, the magistrate is required forthwith to notify the Chief Executive of that fact. Then the Chief Executive decides either to issue an authority to proceed (assuming that he receives a request for surrender in proper form), or cancels the warrant. If no authority to proceed is received by the magistrate within a given period (not relevant for present purposes), the person arrested will be discharged from custody. If an authority to proceed is issued, the court will hold a hearing and, subject to the fulfillment of certain conditions to which I shall later return, the court shall commit the fugitive offender to custody to await the order of the Chief Executive as to his surrender to the prescribed place.

24. Section 5 of the Ordinance imposes restrictions on the surrender of persons to a prescribed place and upon the retention of persons in custody for the purpose of such a surrender. These restrictions are directed at political offences, surrender for offences in respect of which such a person has already been convicted in his absence, and section 5(2) provides that a person shall not be surrendered unless the law of the prescribed place or the arrangements in question ensure that he is not dealt with for an offence other than the one for which his surrender is ordered.

25. The matter then lies in the hands of the Executive. The Chief Executive is empowered, despite the order of committal, not in the event to surrender the fugitive offender to the prescribed place. If the Chief Executive decides to order surrender, he is required by section 13 of the Ordinance to specify in his order for surrender the offence or offences in respect of which surrender is ordered. This is important because typically, arrangements between jurisdictions for the surrender of fugitive offenders will contain prohibitions against trial of those surrendered for offences other than the offences for which surrender has been made. Section 13 stipulates a number of circumstances in which the Chief Executive might decide not to order surrender.

26. There are two stages at which the legality of extradition procedures tend to be under attack by habeas corpus proceedings, namely, the stage at or after which the magistrate orders committal to await surrender and/or the stage at or after which the Executive orders surrender. I am concerned, in this case, with the first of those stages.

27. Section 10(6) of the Ordinance stipulates :

"(6) Where-

(a) ......

(b) an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied -

(i) that the offence to which the authority relates is a relevant offence;

(ii) that the supporting documents in relation to the offence -

(A) have been produced; and

(B) are duly authenticated;

(iii) where the person is wanted for prosecution in respect of the offence, that the evidence in relation to the offence would be sufficient to warrant the person's committal for trial according to the law of Hong Kong if the offence had been committed within the jurisdiction of that court or any other court; and

(iv) where the person has been prosecuted for the offence, a conviction obtained and -

(A) no sentence has been imposed, that there is an intention to impose a sentence;

(B) a sentence of imprisonment has been imposed, that either-

(I) the sentence has not been carried out; or

(II) in the case of a term of imprisonment, not less than 6 months of the term remain to be served,

the court shall (unless the person's committal is prohibited by any other provision of this Ordinance) by order commit him to custody-

(i) to await the Governor's decision as to his surrender to the prescribed place by which the request for surrender concerned was made; and

(ii) if the Governor decides that he shall be surrendered to that place, to await such surrender."

28. The supporting documents to which the section refers are a warrant of arrest issued in the prescribed place and other documents which provide evidence of the offence, the penalty which may be imposed for it and the conduct constituting the offence (see section 2).

29. A document is deemed to be duly authenticated if it purports to be signed or certified by a judge, magistrate or officer of the prescribed place and purports to be sealed with the official or public seal of a competent authority of that place (see section 23(2)).

The Fugitive Offenders (Philippines) Order

30. Section 3(1) of the Ordinance provides that the Governor-in-Council (for which now read "the Chief Executive in Council") may by order direct that "the procedures in this Ordinance shall apply as between Hong Kong and a place outside Hong Kong to which the arrangements relate subject to the limitations, restrictions, exceptions and qualifications, if any, contained in the order".

31. Paragraph 2 of the Order in this case provides that :

" It is hereby directed that the procedures in the Ordinance shall apply as between Hong Kong and the Republic of the Philippines subject to those limitations restrictions exceptions and qualifications contained in those arrangements as so recited."

So, in so far as the arrangements are more limited than, or qualify the Ordinance, the specifications in the arrangements prevail.

32. In so far as is relevant to these proceedings, the arrangements provide as follows :

" The Government of Hong Kong, having been duly authorized to conclude this Agreement by the sovereign government which is responsible for its foreign affairs, and the Government of the Republic of the Philippines;

.....

Have agreed as follow :

.......

ARTICLE 2

OFFENCES

(1) Surrender shall be granted for an offence coming within any of the following descriptions of offences insofar as it is according to the laws of both Parties punishable by imprisonment or other form of detention for more than one year, or by a more severe penalty;

....

(x) offences against laws relating to drugs, including narcotics and psychotropic substances;

.....

(xxi) offences against the laws relating to firearms, ammunition or explosives;

.....

(3) For the purpose of this Article, in determining whether an offence is an offence punishable under the laws of both Parties; the totality of the acts or omissions alleged against the person whose surrender is sought shall be taken into account, without reference to the elements of the offence prescribed by the law of the requesting Party.

(4) For the purpose of paragraph (1) of this Article, an offence shall be an offence according to the laws of both Parties if the conduct constituting the offence was an offence against the law of the requesting Party at the time it was committed and an offence against the law of the requested Party at the time the request for surrender is received.

.......

ARTICLE 4

BASIS FOR SURRENDER

A person shall be surrendered only if the evidence be found sufficient according to the law of the requested Party either to justify the committal for trial of the person sought if the offence of which that person is accused had been committed in the territory of the requested Party or to prove that the person sought is the person convicted by the courts of the requesting Party.

......

ARTICLE 8

THE REQUEST AND SUPPORTING DOCUMENTS

(1) Requests for the surrender and related documents shall be conveyed through the appropriate authority as may be notified from time to time by one Party to the other.

(2) The request shall be accompanied by :

(a) as accurate a description as possible of the person sought, together with any other information which would help to establish that person's identity, nationality and location;

(b) a statement of each offence for which surrender is sought and a statement of the acts and omissions which are alleged against the person in respect of each offence; and

(c) the text of the legal provisions, if any, creating the offence, and a statement of the punishment which can be imposed therefor and any time limit on the institution of proceedings, or on the execution of any punishment for that offence.

(3) If the request relates to an accused person it shall also be accompanied by a copy of the warrant of arrest issued by a judge, magistrate or other competent authority of the requesting Party and by such evidence as, according to the law of the requested Party, would justify committal for trial if the offence had been committed within the jurisdiction of the requested Party.

......

ARTICLE 9

AUTHENTICATION

(1) Any document that, in accordance with Article 8 of this Agreement, accompanies a request for surrender shall be admitted in evidence, if authenticated, in any proceedings in the jurisdiction of the requested Party.

(2) A document is authenticated for the purposes of this Agreement if :

(a) it purports to be signed or certified by a judge, magistrate or other officer authorized by the requesting Party; and

(b) it purports to be sealed with an official or public seal of the requesting Party or of an officer of the requesting Party.

......

ARTICLE 17

RULE OF SPECIALTY

(1) A person who has been surrendered shall not be proceeded against, sentenced or detained with a view to the carrying out of any sentence for any offence committed prior to surrender other than :

(a) the offence in respect of which return is ordered;

(b) any lesser offence, however described, disclosed by the facts in respect of which return was ordered, provided such an offence is an offence for which the person sought can be returned under this Agreement;

(c) any other offence being an offence for which surrender may be granted under this Agreement in respect of which the requested Party consents to the person being dealt with;

unless that person has first had an opportunity to leave the Republic of the Philippines or Hong Kong, as the case may be, and has not done so within forty-five days of having been free to leave or has returned after having left.

....."

1 July 1997

33. Upon the transfer to the People's Republic of China of the exercise of sovereignty over Hong Kong, the Basic Law then took effect and by Article 8, it was provided :

" The laws previously in force in Hong Kong, that is, the common law, rules of equity, ordinances, subordinate legislation and customary law shall be maintained, except for any that contravene this Law, and subject to any amendment by the legislature of the Hong Kong Special Administrative Region."

None of the laws disallowed by the National People's Congress include the Fugitive Offenders Ordinance or any Order made under it, so both the Fugitive Offenders Ordinance and the Order remain in force.

34. I turn now to the grounds advanced in support to of this application.

The Grounds

35. I think it fair to say that there has been some shift from the grounds originally advanced in the Amended Grounds of Application or at least in their emphasis, and at least one ground which deals with a question of diplomatic recognition of those who can transmit requests has not been pursued for the purpose of the application. Mr Mok who, as usual, argues the case thoroughly and with consummate skill, has placed before me two skeleton arguments and it is on these, or at least particularly on the second, that he asks me to concentrate.

1. Relevant Offence: the test to apply

36. Mr Mok's main argument is that the term "relevant offence" which is at the heart of the case has been misapplied and that as a result of that misapplication, a number of defective procedures have followed which rendered the order of committal by the magistrate bad, and that being so, it must follow, he says, that the applicant's detention is unlawful.

37. A person cannot be surrendered other than for a relevant offence and he cannot be committed by the magistrate other than in respect of such an offence. A "relevant offence" is defined by section 2(2) of the Ordinance, and the definition bears repeating :

"(2) For the purposes of this Ordinance, an offence by a person against the law of a prescribed place is a relevant offence against that law if-

(a) the offence is punishable under that law with imprisonment for more than 12 months, or any greater punishment; and

(b) the acts or omissions constituting the conduct in respect of which the person's surrender to that place is sought amount to conduct which, if the conduct had occurred in Hong Kong, would constitute an offence-

(i) coming within any of the descriptions specified in Schedule 1; and

(ii) punishable in Hong Kong with imprisonment for more than 12 months, or any greater punishment."

Three possible approaches

38. In deciding what are "the acts or omissions constituting the conduct", says Mr Mok, there are one of three approaches which might be taken, only one of which can be correct :

(1) By the first approach, the court would look merely at the criminal code of the foreign country, ascertain whether the elements of the offence there required to constitute the offence specified in the foreign warrant constitutes an offence in Hong Kong which carries the requisite minimum term and only if there is that match of elements is the offence a "relevant offence". He does not invite that interpretation.

(2) The second approach enjoins the court to examine the totality of the evidence upon which the requesting country relies to prove the offence for which the alleged offender's return is requested, and it is the conduct disclosed by that evidence which is the conduct to which section 2(2)(b) of the Ordinance refers. This is the approach which the magistrate adopted in the present case, and for which interpretation the respondent government contends. Mr Mok says it is the wrong approach.

(3) The third and correct approach, he argues, is that which examines no more than the conduct to which the particulars of the foreign charge, as revealed in the foreign warrant or information or request for surrender, refer. And he says that this is the test which the magistrate should apply, or should have applied, in deciding whether a "relevant offence" has been made out. Further, that it is this set of particulars to which the authority to proceed must expressly refer in order to enable the magistrate lawfully to carry out the task entrusted to him by the legislation. This third and correct approach, he says, is also properly called a 'conduct' approach, but it is not conduct described or ascertained from the totality of the evidence. It is conduct revealed by the particulars of the foreign offence as described in the foreign warrant or information or request for surrender.

Alleged consequences of the third construction

39. I shall turn shortly to the arguments he canvassed in support of the third interpretation, but he invited me first to the consequences of that construction of "relevant offence" which he says, if correct, are manifold :

(1) In this particular case the magistrate did not decide whether this was a Hong Kong offence meeting the requirements of section 2(2)(b) by reference to such particulars of the offence but rather, he decided the issue by reference to the evidence as a whole. That being so, the committal order is bad.

(2) Before the magistrate may lawfully commit the fugitive to custody to await surrender, he, the magistrate, must first be satisfied that the authority to proceed relates to a relevant offence : see section 10(6). Since the authority to proceed must be shown to relate to a relevant offence, the authority to proceed must therefore contain, or directly refer, to particulars of the foreign offence. In this case, the argument runs, the authority to proceed did not refer to any such particulars for which reason the magistrate could not have been satisfied that it related to a relevant offence. That being so, he could not lawfully make an order of committal to custody.

(3) Since the authority to proceed can only properly be issued if it particularises the conduct alleged in the foreign jurisdiction, and since section 11 of the Ordinance envisages, Mr Mok says, that the order of committal made by the magistrate, if made, can only be an order "in respect of the offence to which the authority to proceed relates", it follows that the order of committal must itself particularise the foreign conduct thus alleged, and not instead state the Hong Kong offence. In this particular case, the order of committal particularised a number of Hong Kong offences allegedly disclosed by the evidence, and that renders the order of committal unlawful.

(4) In any event the request for the applicant's surrender and the authority to proceed and the foreign documents behind them (the informations and the warrants of arrest) specified but two offences, one drugs offence and one firearms offence; yet the applicant has been committed to await surrender in respect to three charges - one firearms offence and two drugs offences, a step which Mr Mok says was outwith the power of the magistrate to take.

Indicia in the Ordinance

40. In order to determine the proper construction of the subsection and to determine the required content of the authority to proceed, Mr Mok argues that assistance is derived from the fact that there is contained within the Ordinance a series of indicia, characteristics, which demonstrate that the relevant offence is the foreign offence and not the Hong Kong offence; that the emphasis throughout the Ordinance is the offence for which the fugitive is wanted in the requesting jurisdiction, and it is in that light that the subsection should be construed.

41. I had understood from the submissions made on the first morning of argument that Mr Mok's case in relation to the construction of section 2(2)(b) rested heavily on that interpretation of the corresponding provision of the Fugitive Offenders Act 1967 espoused by the House of Lords in Government of Canada v. Aronson [1990]1 AC 579. As I shall quite soon explain, the statutory provision with which Aronson dealt, namely, section 3(1) of the Fugitive Offenders Act was markedly different, in my judgment, from the effect of section 2(2)(b) of the Fugitive Offenders Ordinance, and it was upon that difference that Mr Walsh for the respondents concentrated in a supplementary written submission presented the following day.

42. In the event, although my attention is still invited by Mr Mok to Aronson, I am told that the applicant does not rely upon it as his prime prop. The prime support is rather to be found, as indeed one would expect, in the Ordinance itself and, if I understand the argument correctly, that support is to be found in the multitude of indicia by which it is said the Ordinance demands concentration on the foreign offence - so that the conclusion to be drawn is that the relevant offence is the foreign offence for which the surrender of the arrested person is sought, and that "the acts or omissions constituting the conduct in respect of which the person's surrender is sought" must mean and be read as "conduct alleged in the request or the warrant or information constituting the offence for which the fugitive's surrender is sought". That is because it is clear from these indicia that the relevant offence is the foreign offence; it is the offence for which he is wanted; and that the offence for which he is wanted is to be found in the request for surrender, and that, therefore, in ascertaining whether conduct constitutes the relevant offence, it is the conduct shown by the request or similar document which one examines.

43. It is with no disrespect to the argument that I do not turn to each indicative section to which I was taken by Mr Mok. I shall deal with but a few:

(i) Section 2(2). It is self evident, says counsel for the applicant, that "relevant offence" is there equated and means law of the requesting jurisdiction, for the introductory words of section 2(2) contain the phrase "an offence by a person against the law of a prescribed place is a relevant offence".

(ii) Reference in section 2(2)(a) to "the offence ... punishable under that law with imprisonment for more than 12 months ..." must, it is said, be a reference to the relevant offence, and since furthermore section 2(2)(b) in addressing conduct which might constitute an offence in Hong Kong does not refer to "the offence", it is clear that "relevant offence" is to be equated with the foreign offence.

(iii) Section 13(5)(a) speaks, he suggests, of a relevant offence as being a law of the prescribed place. Section 13(5) reads as follows :

"(5) Where-

(a) a person is wanted in a prescribed place for prosecution, or for the imposition or enforcement of a sentence, in respect of a relevant offence against the law of that place; and

(b) that offence is punishable with death,

then an order for surrender may only be made in the case of that person if that place gives an assurance which satisfies the Governor that that punishment will not be imposed on that person or, if so imposed, not carried out."

(iv) Section 7(1)(b) deals with the power of a magistrate to issue a provisional warrant of arrest and does so by reference to an information on oath that the person "is wanted in a prescribed place in respect of a relevant offence".

(v) Then there are references to which he takes me (see section 15, for example), which speak of someone wanted in or serving a sentence in "a prescribed place... in respect of an offence to which the request relates"; part of the pattern which suggests that the relevant offence is the offence for which he is wanted in the requesting jurisdiction.

Aronson

44. Now, in so far as Mr Mok seems to suggest that his proposition is not quite the Aronson proposition, it is a disavowal with which I have some difficulty. Aronson concerned a request by the Canadian Government to the Secretary of State for the United Kingdom for the return of the applicant to Canada. The schedule to the authority to proceed contained details of a large number of offences of dishonesty allegedly committed in Canada. The magistrate, in determining whether the offence was a relevant offence, heard evidence submitted to him by the Canadian authorities. The House of Lords, affirming the decision of the Divisional Court, decided that in determining whether under section 3 of the Fugitive Offenders Act 1967, the act constituting the Canadian offence would also constitute an offence under United Kingdom law had the act taken places in United Kingdom, the question was whether the ingredients of the Canadian offence, as disclosed by the particulars in the Canadian warrant, would, if proved against the fugitive, establish guilt of a corresponding offence in the United Kingdom.

45. Section 3(1) of the Fugitive Offenders Act stipulated that :

"Relevant offences

3. (1) For the purposes of this Act an offence of which a person is accused or has been convicted in a designated Commonwealth country or United Kingdom dependency is a relevant offence if -

(a) in the case of an offence against the law of a designated Commonwealth country, it is an offence which, however described in that law, falls within any of the descriptions set out in Schedule 1 to this Act, and is punishable under that law with imprisonment for a term of twelve months or any greater punishment;

(b) in the case of an offence against the law of a United Kingdom dependency, it is punishable under that law, on conviction by or before a superior court, with imprisonment for a term of twelve months or any greater punishment; and

(c) in any case, the act or omission constituting the offence, or the equivalent act or omission, would constitute an offence against the law of the United Kingdom if it took place within the United Kingdom or, in the case of an extra-territorial offence, in corresponding circumstances outside the United Kingdom."

46. It is not without significance that the opening sentence of the first speech delivered by those in the majority in the House of Lords in Aronson began as follows :

"My Lords, this appeal turns upon the construction of section 3(1)(c) of the Fugitive Offenders Act 1967." per Lord Bridge at page 589

The speech of Lord Elwyn-Jones makes precisely the same express point, as does that of Lord Lowry, at pages 600-601 :

"...What is meant by the words 'the act or omission constituting the offence?' The Government of Canada and the Governor of Her Majesty's Prison at Pentonville contend that the words mean the criminal conduct of the fugitive constituting an offence against the law of the United Kingdom, as demonstrated by the evidence before the magistrate, even if the ingredients which go to make up that criminal conduct do not always correspond with the ingredients of the criminal conduct alleged in the Commonwealth country's warrant. The applicant, on the other hand, says that 'the offence' means the offence of which the fugitive is accused in the Commonwealth country and accordingly that 'the act or omission constituting the offence' means the criminal conduct specifically alleged against him in the Commonwealth country's warrant. Thus, he argues, the magistrate cannot commit the fugitive unless the Commonwealth offence charged against him would also constitute an offence against the law of the United Kingdom and unless the evidence before the magistrate would be sufficient to warrant the fugitive's trial for that offence if it had been committed within the jurisdiction of the court." (Emphasis added).

47. Now it appears to me that in the present case Mr Mok is inviting precisely the interpretation of section 2(2)(b) as was attributed by the House of Lords in Aronson to section 3(1) of the 1967 Act. In Aronson, too, what the court was - successfully in that case - invited to do was to look at conduct revealed by particulars of the foreign offence, as opposed to conduct revealed by the totality of the evidence.

Analysis

48. Though not conclusive of the point, it will readily be evident that the wording of the two sections are quite different. The point in Aronson is one of construction of the particular section and so it is in this case too, a question of construction of section 2(2). Section 2(2) refers only to conduct in respect of which surrender is sought, and that means what it says. And if the requesting jurisdiction supplies details of that conduct, and does so in the form of evidence as opposed to, or in addition to, particulars of a charge, I see nothing in section 2 which precludes the magistrate from looking at any of the supporting documents, including the evidence produced, in order to ascertain what is the conduct for which the fugitive's return is sought. If the section limited relevance of offence to conduct which constituted the offence with which the fugitive had been charged, that might be a different matter. But it does not. It talks only of conduct for which his surrender is sought.

49. It seems to me self-evident that the drafting of section 2(2) had its eye on the limitations which the drafting of section 3 of the Fugitive Offenders Act had imposed; practical limitations to which Lord Griffiths in his dissenting judgment in Aronson (at 593 C-G) referred :

" The question is what is meant by the words "the act or omission constituting the offence." Do these words refer to the conduct of the accused so that section 3(1)(c) is satisfied if what he did would constitute a crime if committed in this country? Or do the words refer to the ingredients of the Canadian offence so that section 3(1)(c) is only satisfied if the definition of the offence in the Canadian Criminal Code contains all the ingredients in the definition of a corresponding English offence. The Divisional Court would have adopted the former construction but reluctantly felt constrained by the decision of the Divisional Court in Reg. v. Governor of Pentonville Prison, Ex parte Myers (unreported), 6 December 1972, to adopt the latter construction with the result that the man against whom there is evidence that he committed 69 offences of dishonesty for which he could be tried in this country cannot be tried in Canada on any of them.

I have no hesitation in construing the words "act or omission constituting the offence" as a reference to the conduct of the accused. I cannot reconcile the alternative construction with section 3(1)(a) which by its language shows that what is required is broad similarity, not exact correspondence, of offence : a factor emphasised by section 3(2) which directs that questions of special intent or state of mind or aggravating circumstances shall be disregarded when considering whether an offence in a Commonwealth country is within a description of crime contained in Schedule 1. To adopt the alternative construction is to look for exact correspondence between the definition of the crimes in the two countries and no scheme of extradition based on such a premise will ever be workable as has been recognised since the early days of the operation of extradition laws."

The majority were against the construction for which Lord Griffiths opted, but that said, the difficulties which he posed provide some motivation for a construction which is not unnecessarily narrow - where such a construction is permissible. As Mr Walsh, counsel in this case for the respondent government, emphasises, the Commonwealth scheme catered for regimes with similar legal systems. The Fugitive Offenders Ordinance can have no such comfort in mind, for it was enacted shortly before the transfer in the exercise of sovereignty when Hong Kong, under suitable authority, entered upon international agreements with those countries with whom Hong Kong was most likely to engage in mutual requests for assistance in the rendition of fugitive offenders, and most of those countries were, and are likely to be, in the region of the Pacific rim, a region whose legal systems are as disparate as can be. It is noteworthy that section 2(2) begins with the same words as those found in section 3 of the Fugitive Offenders Act ("the acts or omissions constituting..."), and it can have been no accident that the subsequent words then used are quite different, and in my view much wider.

50. Mr Mok argues that he is not seeking an interpretation which compares offence ingredients, but merely one which limits the specification and assessment of conduct to particulars of the offence in the warrant or the information, rather than in the evidence. But there is no difference in true effect between that distinction and the one which faced the court in Aronson.

51. Nor, with respect, do I think that the various sections to which Mr Mok took me contain indicia which detract from the interpretation which I have placed upon, and which I draw from, section 2(2) itself. A relevant offence within the meaning of the Ordinance is not just on offence against the law of the requesting jurisdiction and no more. Section 2(2) draws a clear distinction between "the law of a prescribed place" on the one hand, and on the other "a relevant offence against that law", and the two are not the same creature. The law of the prescribed place is the law of the requesting jurisdiction, but a relevant offence against that law for the purpose of the Ordinance imports considerations not only of the law of the prescribed place, but other considerations too. Where section 2(2)(a) requires that "the offence is punishable under that law with imprisonment for more than 12 months or any greater punishment", "the offence" there referred to is the offence of the prescribed place. If therefore it be shown that there is an offence against the law of the requesting jurisdiction which carries that minimum term, that is but part of the equation. It is part only of the definition of "relevant offence". The offence can only be a "relevant offence" if in addition "the acts or omissions constituting the conduct in respect of which the fugitive's surrender ... is sought" is conduct which is an offence coming within the description specified in the schedule and is a Hong Kong offence too, punishable by the stipulated minimum term. Section 2(2) does not require the acts or omissions to constitute an offence against the prescribed place. It follows, in my judgment, that to read "relevant offence" whether in the section or elsewhere in the Ordinance as meaning or restricting itself to or describing only the foreign offence is to misconstrue the section.

52. I am, I believe, supported in this approach by the terms of Article 2(3) of the Fugitive Offenders (Philippines) Order which reads :

"(3) For the purpose of this Article, in determining whether an offence is an offence punishable under the laws of both Parties: the totality of the acts or omissions alleged against the person whose surrender is sought shall be taken into account, without reference to the elements of the offence prescribed by the law of the requesting Party."

It is an agreement which by virtue of the provisions of section 3(1) of the Ordinance must be read in conjunction with the Ordinance, in the application of the Ordinance to any proceedings before a magistrate. Applying the provisions of that order, the magistrate is bound to satisfy himself that the scheduled offence is one punishable in both jurisdictions by imprisonment for at least 12 months - no different from the requirement in section 2(2). Yet the contracting parties have taken the trouble to provide that rather than look to the elements of the offence which a mere statement of particulars in an information would inevitably encourage, the requested party is to look at the totality of the acts or omissions alleged against the person whose surrender is sought.

53. The agreement which is encompassed by the Order is in the form of a model agreement which Hong Kong has been authorised to use in its negotiations with other jurisdictions. Whilst that does not mean that the model will be adopted in the same form in every case of a concluded agreement, nonetheless it would be odd indeed if the legislation contemplated an approach narrower than that envisaged by the agreement.

Conclusion

54. In the circumstances, I conclude that in determining whether an offence is a relevant offence, a magistrate is entitled to that end to examine the totality of the evidence which is placed before him. He is not restricted to an examination of the conduct as revealed or particularised in the warrant or information issued by the requesting jurisdiction or in the authority to proceed.

2. The Authority to Proceed

55. Before the magistrate may lawfully commit the wanted person to custody to await the surrender order, he has first to be satisfied that, inter alia, "the offence to which the authority to proceed relates is a relevant offence".

56. In the present case, the description in the authority to proceed of the offence is very broad, devoid of any particulars, and bereft of any reference to any other document or to the evidence. How then can it be that the magistrate could be satisfied that the offence to which the authority related was a relevant offence? Mr Mok says that the authority to proceed ought to have specified the offence in the sense of providing particulars of it; and, of course, it follows from his arguments in general that it is the foreign offences which, he says, it ought to have specified.

57. I note that there is nothing in the Ordinance which requires in terms that the authority to proceed should specify any offence. That fact stands in clear contrast to the 1989 Act which by section 7(5) provided that :

"An authority to proceed shall specify the offence or offences under the law of the United Kingdom which it appears to the Secretary of State would be constituted by equivalent conduct in the United Kingdom".

58. It is not surprising that the 1989 Act included that requirement, for the power to commit can under that Act, in many circumstances, be exercised without any prior assessment as to whether the evidence would be sufficient to warrant committal for trial in the United Kingdom.

59. The practice under the Fugitive Offenders Act and under the Extradition Act 1870 was the subject of discussion in R. v. Governor of Pentonville Prison, ex parte Osman [1989]3 All ER 701. Lloyd LJ in Osman at 723-724 pointed out that :

"...There is nothing in the 1967 Act, or in the Extradition Act 1870, which requires the Secretary of State to annexe to the authority to proceed either the foreign warrant itself or the charges which the accused will face if he is returned to the requesting country. All that the requesting country must do is to furnish particulars of the person ...

The practice in extradition cases has been that the English 'offences' are stated in the authority to proceed in very general terms....

Nobody suggests that this long continued practice in extradition cases, as opposed to cases under the Fugitive Offenders Act 1967, is unfair to the accused. Indeed, it might be suggested that it would be unfair to the prosecution, and inconsistent with the underlying scheme of extradition, if the prosecution were rigidly bound by the form of the foreign warrant. In the case of some foreign countries with which we have extradition treaties, our form of charge would be unfamiliar. We cannot expect that foreign warrants of arrest will comply with our procedure, or that the language in which they are framed will correspond precisely to language in which the conduct would be charged as an offence in England.

But the practice in cases under the 1967 Act has taken a different course since the decision in R v Governor of Brixton Prison, ex p Gardner [1968]1 All ER 636, [1968]2 QB 399. Instead of the authority to proceed referring to the offences in general terms and leaving it to a later stage to draft the charges disclosed by the evidence, the authority to proceed itself incorporates the foreign charges..... No doubt the reason why a different practice has grown up is because offences under the 1967 Act are likely to correspond more closely to offences under English law. ... But there is nothing in the 1967 Act which requires the charges to be annexed, and nothing which would justify a different practice from that followed in extradition cases."

60. I would comment in passing that one finds in those passages cogent considerations which militate against the suggestion that the order for committal should set out the foreign offence rather than the Hong Kong offence disclosed by the evidence.

61. But that apart, whilst the Extradition Act 1870 did not require as a condition precedent to a committal order that the magistrate be satisfied that the authority to proceed relates to a relevant offence or its equivalent, the 1967 Act did; yet still the Divisional Court was of the view that there was nonetheless nothing in the 1967 Act which required that the authority to proceed should set out the specific charges. The Extradition Act practice, which was to state English offences in very general terms, was thought sufficient. (See also In re Naghdi [1990]1 WLR 317, per Woolf LJ (as he then was) at pages 322D-323B.)

62. It seems to me that the true intent of section 10(6)(b)(i) is not to insist that in the authority to proceed there must be express reference to a specified offence or to particulars constituting the offence, but rather that the emphasis of the subsection is that the magistrate must address his mind to the question of relevant offence. Nowhere else in section 10(6) is there reference to the relevant offence, the sine qua non of any order a magistrate might make for committal to await surrender. It is not, in my opinion, by a study of what is on the face of the authority alone that the magistrate is to make the decision. If I am correct in my construction of the purport of section 2(2) of the Ordinance, then before the magistrate can decide whether a relevant offence has been disclosed, he would examine the totality of the evidence presented to him to determine, amongst other matters, whether the conduct disclosed by that evidence would be an offence in Hong Kong. It cannot have been intended that the authority to proceed would set out the evidence.

63. The subsection does not say that the authority must specify the offence, nor indeed does it say that it must refer to it. What it says in its effect is that the magistrate must be satisfied that the offence to which it relates is a relevant offence, and if it be shown that looking at the terms of the authority itself, and the circumstances in which the authority came to be before him, and the other documents accompanying it, the magistrate can properly draw the conclusion that the authority related to the warrants, informations and evidence placed before him and that they disclose a relevant offence, then that is good enough. The intent is that the magistrate should on the basis of all the material before him be satisfied that he does not make an order for committal other than in respect of a relevant offence as that is defined by the Ordinance and, of course, he should not do so other than under an authority to proceed which relates to the matter in respect of which he intends to make that order.

64. I am informed that in this case there was presented to the magistrate, at the same time as the authority to proceed, the warrants, informations and a bundle of evidence. Supplementary bundles were filed later. The authority to proceed in its terms utilised the very general description of the offences which is to be found in paragraphs 8 and 19 of the schedule to the Ordinance. That accords with the apparent requirement of the form prescribed for the authority to proceed by the Fugitive Offenders (Forms) Regulations made under section 23 of the Ordinance, though I do not rely on it for my construction of the subsection. Accompanying the authority to proceed, the magistrate had before him a full affidavit of law which addressed the offences for which the applicant was and is wanted in the Philippines - a firearms and a drugs offence. The affidavit contained a summary of facts - full particulars, in other words, of the conduct which was said to constitute the two offences in respect of which he was charged, the applicable law and the prescribed penalty. The description of those offences was tied to the applicant as the same person arrested in Hong Kong under the provisional warrant of arrest on 16th September 1997; and the magistrate had before him the informations and warrants which related to, and only to, the two categories of offence to which the authority to proceed referred, and full evidence presented in support of the charges. I am satisfied that if the material was sufficient to disclose a relevant offence, as that is defined, the magistrate had ample ground upon which to conclude that it was the relevant offence or offences to which the authority to proceed related.

3. The Order of Committal

65. Mr Mok advances a number of arguments directed at the terms of the order of committal.

Specifying the Hong Kong offence

66. The first is that it should not, as it does, relate to Hong Kong offences but rather that it should particularise the foreign offence. The argument originally stemmed from the proposition which I have rejected, that the relevant offence was the foreign offence and that the authority to proceed should specify the foreign offence. But in any event, the practice adopted in this case of specifying the Hong Kong rather than the foreign offence accords with previous practice under the Extradition Acts. It also accords with the requirement of the form prescribed by the regulations to which I have already made reference. That form requires on its face that the magistrate should "identify the offences by reference to the Hong Kong offences falling within the description of offences specified in Schedule 1 to the Ordinance". It might be said that the offences described in the order of committal are put much more specifically than in the schedule. That cannot be to the disadvantage of the applicant.

67. But that apart, the suggestion which Mr Mok makes, if it were implemented, would pose practical difficulty. Whilst it is true that the magistrate has for the purpose of determining whether the requirement of section 2(2)(a) has been met - that is, that the offence for which the arrested person is wanted is one against the law of the prescribed place punishable with imprisonment for more than 12 months - and that he has, for that purpose, to have evidence of the foreign law, to ask the magistrate to specify and draft the offence under foreign law for which the order for committal is made is to ask him to apply an expertise which he does not purport to possess, and which the Ordinance does not expect him to possess.

68. It is said that the matter has considerable implications for the speciality rule by which the requesting jurisdiction may not prosecute for any offence other than that in respect of which return is ordered (see Article 17 of the Fugitive Offenders (Philippines) Order and section 5(2) of the Ordinance). Of course, surrender is not ordered by the magistrate, but by the executive, but in that regard, it is pointed out that the prescribed form of the order for surrender presupposes that the offences in the committal order be recited. I cannot see that if the surrender order were to recite the offences set out in the committal order by reference also to the offences for which the request was made, or also by reference to the foreign warrants for arrest, that that would invalidate the surrender order. But we are not at the surrender stage. I am being asked to determine whether the order for committal itself is unlawful and I see nothing thus far, in the making of the order or its terms, which is unlawful. As to its terms, it names offences the description of which are clear and relate to the request and can readily be correlated with the foreign warrants and which are specific. In my judgment, it stretches realism to say that the committal order made permits prosecution for some other offence than that contained in the request for surrender or in the foreign warrants or information.

Two drug offences, rather than one

69. Mr Mok then contends that the committal order is defective in that the magistrate has committed the applicant to custody for two drugs offences rather than one, and that only one was the subject of the authority to proceed. The fallacy of the argument which I perceive is, I suggest, evident from the way in which it is summarised in the skeleton argument, namely that "... [the magistrate] was permitted to deal with only one drug offence under the authority to proceed". The authority to proceed recited very broadly indeed and in terms of scheduled descriptions for what it was the applicant's return was requested and required the magistrate to deal with the applicant in accordance with the requirements of the Ordinance. In my judgment, the committal order specified and was entitled to specify Hong Kong offences falling within the schedule's description and to which the authority to proceed related. Submitted with the authority to proceed was an information which described the drugs offence to which the accompanying foreign warrant in evidence related as follows :

" That on or about December 23, 1993 in the Municipality of Navotas, Metro Manila and within the jurisdiction of this Honourable Court, above-named accused while conspiring, confederating and helping one another did then and there, knowingly, maliciously, unlawfully, feloniously, with the use of a vessel, transfer, transport, carry, dispatch and bring into the Philippines eighty kilos and five hundred fifteen (80.515) grams of methamphetamine hydrochloride (shabu), a regulated drug, without any permit, authority, license or consent from the government.

CONTRARY TO LAW"

There is included in those particulars of offence an allegation of conspiracy as well as an allegation of a substantive offence. No doubt, that is the way that these matters are acceptably drawn under Philippines law. It is not the way such charges are framed under Hong Kong law; and the Hong Kong magistrate was entitled to say that the authority to proceed related to these two drug offences and that the evidence was sufficient to warrant committal to custody upon them.

A wider conspiracy?

70. But Mr Mok says that the conspiracy charge is much broader than that in the information in so far as the information refers to a conspiracy "on or about 23 December 1993" whereas the order of committal refers to a conspiracy between 1st and 23rd December 1993. Now "on or about" means what it says, and in my judgment, the use of the phrase which instead embraces two dates does not sit uncomfortably either with the information or with the evidence, not least because the evidence does not suggest any other conspiracy but one in that month. It does not render the applicant liable for surrender for any conduct other than that for which his return is requested.

4. The Drugs Charge

71. The drugs charge or the charges relating to drugs in respect of which the committal order has been made ought not, it is submitted, in any event, to have been the subject of an order for committal. The contention goes like this : an order of committal cannot lawfully be made other than in respect of a relevant offence. To establish a relevant offence, it must be shown that the offence against the law of the prescribed place is one which is punishable by imprisonment for more than 12 months. The foreign information contends that the applicant unlawfully "... transported and ... [brought] into the Philippines eighty kilos and five hundred grams of methamphetamine hydrochloride (shabu), a regulated drug ...."

72. It is said by Mr Mok that the expert evidence as to the law of the Philippines establishes that a penalty in excess of the prescribed term is imposable only in respect of 200 or more grams of methamphetamine hydrochloride, and that the evidence before the magistrate did not establish trafficking in a quantity larger than that. The certificate of the forensic chemist says only that he has received :

" .....eighty kilos and five hundred fifteen grams (80.515 Kg) gross weight of white crystalline substance contained in ten nylon bags with printed 'Chinese characters' on each bag, altogether contained in two separate black travelling bags, each bag containing five bags. This was turned over to the Bureau by Lt. Ramon Ochoco of the Philippine Coast Guard, Port Area Manila on this date at 12:15 p.m. This was seized by Coast Guard operatives found inside a fishing vessel F/B Pamela Blezette.

Examinations conducted on representative samples taken from the above-mentioned specimen gave POSITIVE RESULTS to the tests for METHAMPHETAMINE HYDROCHLORIDE, a regulated drug.

Final report to follow."

So it is said it is not established that there were more than 200 grams.

73. Mr Walsh has this morning taken me through the expert evidence and it seems to me that the expert evidence is that the section upon which Mr Mok relies does not assist him, because in the first place, the provision upon which he thus relies was not applicable to the offence allegedly committed by the applicant, for it is encompassed in an amending piece of legislation which came into effect after the alleged commission of the relevant offence; and that in any event, the maximum term of imprisonment for which possession of less than 200 grams rendered the possessor liable was still life imprisonment. Faced with this analysis, Mr Mok says that even so, there is no evidence at all about the concentration of methamphetamine hydrochloride. One might, as far as the evidence shows, he says, be dealing with a minuscule amount for which no prosecution lies.

74. Let me make a number of assumptions. Assuming for the moment that the 200 grams point was valid and that less than 200 grams carries less than 12 months imprisonment; and assuming for the purpose of the current point, that in ascertaining whether the requirement of section 2(2)(a) has been met - namely, whether it is shown that the offence against the law of the prescribed place carries such a minimum term - the test is what the evidence shows, rather than whether the offence charged in the foreign jurisdiction carries more than that minimum term, I still take the view that there is no merit in the point. The result of analyses by forensic chemists cannot be expected to be framed or couched in the same terms in every jurisdiction. In Hong Kong, we are used to reports differently particularised. The expert in Philippines law says in his affidavit that :

"Laboratory examination made on the white crystalline substance contained 10 packs yielded positive results for methamphetamine hydrochloride (shabu), a regulated drug and registered a total weight of 80.515 kilograms."

The certificate to which Mr Mok drew my attention promised in its reference to "final report to follow" a further report, and we see one dated 27th December 1993 (page 59 of the bundle). It is clear that the reference there to "a specimen" is a reference to all the white crystalline substance handed in - the substance taken from the vessel which the evidence suggests belonged to the applicant. The gross weight of the specimen is given in the findings as 80.515 kilograms and "laboratory examinations conducted on the specimen gave positive results for methamphetamine hydrochloride".

75. The evidence presented to the magistrate was that a vessel belonging to the applicant was intercepted and on it were found travelling bags with this white crystalline substance. There is evidence from one Rolando Tablante who provides details of discussions with the applicant about this very consignment of goods :

"... I was informed by the applicant that [the ships] would meet a foreign ship in the sea and this foreign ship would transfer a cargo of shabu to the Karen Ann and the Karen Ann would transfer the cargo of shabu to the Pamela Blezette."

And he then describes the events thereafter leading to the delivery of that very cargo, and its loss to the authorities, and discussions which he had with the applicant thereafter. There is, in my judgment, overwhelming evidence from which to either conclude or infer that the quantity of drugs disclosed by the evidence was enormously in excess of 200 grams.

5. The Firearms Charge

76. This contention is that there is no evidence that the applicant knew of the firearm, the assault rifle, which was found at and seized from his premises in July 1997. That is said to be relevant because the foreign information laid against him alleges that he knowingly had in his possession the assault rifle. There can be no question, and I do not think Mr Mok suggests otherwise, but that the evidence presented to the magistrate satisfies the requirement of section 2(2)(b) of the Ordinance, namely, that it is shown that the conduct displayed by the evidence is conduct which would constitute an offence of possession of firearms if that conduct had occurred in Hong Kong. The evidence is that the firearm was found in the applicant's premises, in the garage of his house, premises where he and his family lived and that there were present at the material time armed men employed by him with whom the official raiding party were engaged in a gun battle.

77. It seems to me that the magistrate, having found that the evidence was sufficient to constitute a Hong Kong offence, and that there was enough which would warrant a committal for trial in Hong Kong, was required then to do no more than satisfy himself that the foreign offence carried more than a minimum of 12 months' imprisonment. If I am right about that, it disposes of the point.

78. But even if I am not, it seems to me that in any event there was evidence that the weapon in question was knowingly in the possession of the applicant's agents who were engaged to protect his premises with firearms and that an inference could be drawn that the applicant had actual or constructive knowledge of the fact and of the existence of this weapon. The state of the evidence is such upon which a magistrate properly directing himself could commit, and that is all that needs to be shown.

6. Authentication

79. Then there is the authentication point. It was not one developed or even pursued in argument but left there on the table, as it were, for me to deal with. It was not one of the points which I understand to have been abandoned, so I shall deal with it.

80. One of the matters which is a condition precedent to the lawful making of a committal order is that the court has to be satisfied that "the supporting documents in relation to the offence ... are duly authenticated" (see section 10(6)(ii)(B)).

81. Section 23 of the Ordinance stipulates as follows :

"23. Admissibility of evidence, etc.

(1) Any supporting document or other document which is duly authenticated is admissible in evidence in any proceedings under this Ordinance without further proof.

(2) Any supporting document or other document shall be deemed to be duly authenticate if it-

(a) purports to be signed or certified by a judge, magistrate or officer of the prescribed place concerned; and

(b) purports to be sealed with the official or public seal of a competent authority of that place."

Article 9 of the Philippines Order is very much to the same effect.

82. Mr Mok says that there was only one document presented to the magistrate which would satisfy these criteria which was a certificate of authentication, but that no other individual document presented purported in itself to be sealed with the official seal of such officers.

83. The point does not, in my view, have merit. All the affidavits had been signed by a judge or magistrate or officer of the Philippines and there is a global certificate of authentication to which the affidavits were attached. A similar argument was deployed in Oskar v. Government of Australia [1988]1 AC 366 in relation to a similar section of the Fugitive Offenders Act, and in that case there was one official seal affixed to a tape binding together annexed documents. Lord Ackner said at 377C :

" I agree with the Divisional Court that the section does not require each statement to carry on its face a certificate from the magistrate. Such a requirement would be highly artificial. The section is complied with if there is a separate certificate, which sufficiently identifies all the statements which it certifies, as in the instant case, where they are all tied together."

It is not suggested in this case that the certificate does not refer to the relevant affidavits and documents.

7. The new investigation or charges

84. The final point which I am asked to consider - another one left on the table and not abandoned, though not argued - emerges from evidence which has been filed, purely for the purpose of this habeas corpus application, by the applicant's solicitor, Mr Boase, to the effect that the Philippines authorities have joined or intend to join the applicant as a defendant in other criminal proceedings in the Philippines.

85. I fail to see what this is to do with the legality of the order of committal made by the magistrate. If the applicant or those advising him are concerned that the requesting jurisdiction may not honour its specialty obligation, that is a matter which they are entitled to draw to the attention of the Chief Executive, for him to address in deciding whether or not to make an order for surrender. It is not a matter for me in the context of this application.

86. This exhausts, I believe, the grounds of complaint. One or two in the original grounds are no longer pursued, either at all or as relevant to this particular application.

Conclusion

87. In my judgment, the order of committal to custody which the magistrate made in this case and pursuant to which the applicant is held by the Superintendent of Lai Chi Kok Reception Centre is a lawful order, and his detention is therefore also lawful. Accordingly, the application for the issue of a writ of habeas corpus is dismissed. Costs of this application will be paid to the Respondents.