LAY ENG TEO v. SUPERINTENDENT OF TAI LAM CENTRE FOR WOMEN AND ANOTHER

FAMV No. 7 of 2003

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 7 OF 2003 (CIVIL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM CACV NO. 3897 OF 2001)

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DETERMINATION

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Mr Justice Bokhary PJ:

1. By virtue of s.4 of the Fugitive Offenders Ordinance, Cap. 503, a person in Hong Kong may be arrested and surrendered to a prescribed placed if he is wanted there for prosecution, or for the imposition or enforcement of a sentence, in respect of a relevant offence against the law of that place. The conditions which must be satisfied before an offence can be regarded as a relevant offence are laid down in s.2(2). One of these is that the acts or omissions in respect of which surrender is sought amount to conduct which would constitute an offence in Hong Kong if the conduct had occurred here.

2. Whether conduct constitutes an offence and whether the bringing of a prosecution for that offence is time-barred are two entirely different questions. Nevertheless it is contended on the applicant's behalf that if a time-bar prohibits the prosecution of a person for certain conduct in Hong Kong, then he or she cannot be extradited from Hong Kong in respect of such conduct. In order to mount this argument, counsel for the applicant seeks to rely on s.10(6)(b)(iii) which lays down one of the conditions of which the court of committal must be satisfied before committing a person in respect of whom an authority to proceed has been issued. This condition is "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".

3. The question which we are invited to certify as a question of law of great and general importance and which we are invited to give leave to pursue before the Court of Final Appeal is whether s.10(6)(b)(iii) is only an evidential provision or, together with s.2(2), amounts to an additional jurisdictional constraint on the magistrate dealing with applications to commit under s.10. The applicant contends that it is at least reasonably arguably the latter. But s.10(6)(b)(iii) speaks of "the evidence" being "sufficient". And it would be odd for jurisdiction to be constrained by a side-wind rather than expressly. It might be added, although it is not really necessary to add it, that given the time that is often likely to pass before a fugitive offender can be traced, the time-bar contended for would be something of a fugitive offenders' charter ? which is not what we think s.10(6)(b)(iii) should be taken to be.

4. In our view, it is plain beyond reasonable argument to the contrary that s.10(6)(b)(iii) is only an evidential provision. Accordingly this application for a certificate and leave to appeal is dismissed.