RE SUTHIPONG SMITTACHARTCH AND ANOTHES

    Extradition - Bill of Rights - no power for Hong Kong Magistrate to order that deponents who are overseas be brought to Hong Kong to be cross-examined.

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS NO. 1119 OF 1992

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JUDGMENT

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1. This is an application for judicial review brought pursuant to leave granted on the 23rd April 1992 by Liu, J., under Order 53 rule 3(10)(a) of the Rules of the Supreme Court.

2. At the hearing of this application Mr. Michael Darwyne, for the applicant (who was not counsel below), sought an adjournment. He informed me that the decision of Kaplan, J, In re Sanguandikul MP 802 and 803 of 1992 was relevant to this application as it involved extradition and the Hong Kong Bill of Rights ("the Bill of Rights") and the decision was to be considered by the Court of Appeal on the 15th of November. The application was opposed by Mr. Andrew Bruce, Senior Assistant Crown Prosecutor, for the respondents, who said the decision was solely concerned with questions of the prosecutor's duty to disclose material and its relevance to extradition proceedings.

3. Having read the decision in Sanguandikul I decided that it was, at best, of marginal relevance to this application and refused the adjournment.

4. The applicant seeks a declaration that a decision of Mr. Peter Line, Permanent Magistrate, Eastern Magistracy, in Proceedings No. 1573 of 1991 dated the 1st April 1992 in which he refused an application for an order that three named deponents in extradition proceedings brought at the request of the Government of the United States of America ("the United States") be produced in Hong Kong to be cross-examined by the applicant was manifestly unreasonable and contrary to law. The applicant seeks certiorari to bring up and quash Mr. Line's decision or alternatively that the proceedings be stayed in order that evidence be taken from the deponents upon commission in the United States, again on the basis that Mr. Line's decision to refuse such an order was also unreasonable and contrary to law. The applicant also seeks an order for mandamas that Mr. Line be ordered to require the witnesses to attend or again alternatively that the proceedings be stayed in order that evidence be taken upon commission from these witnesses in the United States.

Background

5. The United States Government has requested the extradition of the applicant on charges relating to trafficking and conspiracy to traffic in dangerous drugs allegedly committed between 1985 and 1991 with three other persons who are now in custody in the United States. These are Ciro W. Mancuso, James Griffis and Ulf Griggolet ("the witnesses"). The applicant was arrested on the 19th November 1991 on a provisional warrant issued by a magistrate in Hong Kong at the request of the 1st respondent. He was brought before a magistrate on the 20th November and remanded to the 15th January 1992 pending receipt of necessary documents from the United States Government. On the 14th January 1992 an order to proceed signed by His Excellency the Governor was filed and on the 17th January the applicant was brought before a magistrate when the order to proceed and a copy bundle of the extradition documents, including affidavits sworn in the United States by the witnesses, were also filed. On the 29th February 1992 the applicant was 2nd respondent at the request of the 1st respondent when evidence was given by the arresting officer, who was cross-examined on behalf of the applicant. Subsequently argument was addressed to the brought before the 2nd respondent in which the applicant sought an order that the witnesses be brought before the court to give oral evidence and be subject to cross-examination. In the alternative an order was sought that proceedings be stayed pending an application that the witnesses be further examined upon commission, pursuant to s. 77E of the Evidence Ordinance, Cap. 8.

6. This application was refused and the 2nd respondent has given his reasons for that refusal in writing.

The case for the applicant

7. Mr. Darwyne acknowledged that he faced difficulty in respect of the first part of the application, that the 2nd respondent should have made an order requiring that the witnesses attend in Hong Kong to be cross-examined on behalf of the applicant. He submitted however that, despite a long line of authorities to the contrary, the passage of the Bill of Rights required that in appropriate cases an order should be made that witnesses in extradition proceedings be brought before the court to be cross-examined as to their depositions. Here he submits the three deponents are all clearly accomplices and in the case of Mancuso and Griffis each has been convicted of very serious offences and are awaiting sentence. Clearly each has much to gain by giving evidence implicating other persons if this will result in a lighter sentence.

8. So far as the second limb of the application is concerned, that there should be a stay of proceedings to enable an application to be made for evidence to be taken in the United States on commission, he relies on the recent decision of Sears, J., in Re Davies Yu Yok Wen [1991) 1 HKLR 7, who held that such an application could be made in extradition proceedings.

9. Mr. Darwyne argued that while the weight of authority was against him in relation to the question of a witness being brought from overseas to be cross-examined in extradition proceedings and it may not be right to make such an order in every case it should be done here. The evidence tended was that of accomplices only and clearly should be looked on with suspicion for that reason.

10. The relevant law relating to the extradition of fugitives to the United States from Hong Kong is the Extradition Act 1989, see In re Eng Sui Hang, Johnny [1991] 2 HKLR 502, and the treaty between the United States and the Government of Great Britain which has been extended to Hong Kong vide Order-in-Council No. 2144 of 1976. Schedule 1 to the Extradition Act 1989 ("the Schedule") provides, inter alia, as follows:

"6-(1) When a fugitive criminal is brought before the metropolitan magistrate, the metropolitan magistrate shall hear the case in the same manner and have the same jurisdiction and powers as near as may be as if the prisoner were brought before him charged with an indictable offence committed in England or Wales."

11. It is not in dispute that in the context of Hong Kong a metropolitan magistrate's powers are exercised by a permanent magistrate such as the 2nd respondent. It is the cornerstone of Mr. Darwyne's argument that, on the basis of that clause, a person who is brought before a magistrate on a request for extradition should be given the same rights as a person who is brought before him for committal to the High Court for trial. Section 82(2) of the Magistrates ordinance, Cap. 227, would then apply and this section provides that:

"82. (2) The accused or his counsel shall be at liberty to put questions to any witnesses produced against him ..."

12. Mr. Darwyne conceded that it was always the basis ofextradition proceedings that the accused person would if so extradited, be given a fair trial in the country to which he is to be sent. However if there was to be a fair trial why should there be objection to producing the witnesses at the extradition proceedings so that the accused person was given a chance to test the evidence beforehand. He submitted that the argument against such a procedure was based on practical difficulties. There would obviously be penalty to be paid in cost and time but if it was in the interest of justice that this should be done there was ample authority for the proposition that expediency should bow to the interests of justice.

13. Mr. Darwyne also relied on Article 10 of the Bill of Rights which provides that all persons shall be equal before the courts and tribunals. on this basis he said a person who is to be extradited should be treated in the same way as a person who is to be committed for trial. Article 11(2) also provides that "in the determination of any criminal charge" against a person charged with a criminal offence he shall be entitled to examine or have examined the witnesses against him. It is Mr. Darwyne's argument that although this is not the trial of the offence the applicant is a person charged with a criminal offence and that the extradition proceedings are part of "the determination of any criminal charge".

14. Support was also sought from Article 22 relating to equality before the law although this had not been referred to in the grounds for application as filed. This was opposed by Mr. Bruce who said that he may require an adjournment if further material was to be considered. I nevertheless allow this point to be argued on the basis that Mr. Bruce could seek an adjournment if he thought it necessary. In the event he did not need to so apply.

15. Article 22 provides that all persons shall be equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect there shall be no discrimination on the basis of various factors such as race, colour, sex, etc. including birth or "other status". Mr. Darwyne sought to argue that to distinguish between a person who is to be committed for trial in Hong Kong and one who is to be extradited for trial in a foreign country is to differentiate between them on the basis of different status. Such a difference of status did not exist and in each case the person was to be either extradited or committed for trial on the basis of depositions which in the opinion of the magistrate provided a prima facie case. If one was to be given the right to cross-examine the deponents then so should the other.

16. On the second limb of his argument Mr. Darwyne says that Sears, J., was quite correct in.holding that in extradition proceedings application can be made pursuant to s. 77E of the Evidence Ordinance on the basis that the proceedings have been instituted in Hong Kong and, bearing in mind that methods of communication and travel between nations are now much better than they were, he should exercise his discretion in that case to make an order. Similarly here there is no great practical difficulty in ordering that further evidence be taken from the deponents on commission in the United States.

17. It was also, argued by Mr. Darwyne that if any provision of the Extradition Act 1989 was inconsistent with the Bill of Rights it must be deemed to be repealed to the extent of that inconsistency, notwithstanding that it was an Imperial Act. He cites as authority for that the Hong Kong (Legislative Powers) Order 1989, No. 153, which provides that the Governor of Hong Kong, with the advice and consent of Legislative Council, may, to the extent required, in order to give effect to an international agreement which applies to Hong Kong and for any connected purpose, repeal or amend any enactment so far as it is part of the law of Hong Kong. Here it is submitted as the Bill of Rights was passed to provide for the incorporation into the Law of Hong Kong of the provisions of the International Covenant on Civil and Political Rights, if the Imperial Act does conflict with the Bill of Rights it shall be deemed to be repealed to the extent of that inconsistency.

The case for the respondents

18. Mr. Bruce argued that there was simply no power for any magistrate or other judicial officer in Hong Kong to make an order that witnesses overseas be brought to Hong Kong for the purpose of being cross-examined in extradition proceedings. He also relied on the words in Clause 6 of 1st Schedule "as near as may be". This he submitted showed clearly that extradition was not to be regarded in the same light as committal proceedings and there was a very long line of authorities in support of that proposition. These were in particular Re Counhaye (1873) LR 8 QB 410, R. v. Zossenheim (1903) 20 TLR 121 and R.v. Governor of Brixton Prison ex parte Caldough [1961] 1 WLR 464, where Lord Parker rejected a submission to exclude depositions in extradition proceedings where no opportunity had been given to cross-examine the deponents. He followed the earlier New Zealand decision in Re Campbell [1935] NZLR 352.

19. Reliance is also placed by Mr. Bruce on the Canadian case of Re United States of America v. Smith (1984) 10 CCC 540. There Houlden, J.A., considered this particular question in the light of the Canadian Charter of Rights and Freedoms which it was argued had altered the rule that affidavits were admissible in extradition proceedings even though no opportunity had been afforded for cross examination of the deponents; Re Insull (1934) 61 CCC 336. Reference was made to Re State of Wisconsin and Armstrong (1973) 10 CCC 271 where it had been argued that the enactment of the Bill of Rights in Canada in 1960 changed that law. That proposition was, however, unanimously rejected in Armstrong. Thurlow, J., said:

"While the Extradition Act provides that the procedure is to follow that of a preliminary inquiry it is to do so only  as nearly as may be and the use in such proceedings of affidavits in proof of the alleged crime is specifically provided for. If the proceedings were in the nature of a trial on the subject of guilt or innocence the absence of a right or opportunity to test the evidence of the applicants by cross-examination might well be a serious objection to the fairness and justice of such a rule but, as already pointed out, that is not the situation. The hearing is a mere inquiry and what the extradition judge has to determine is not the guilt or innocence of the fugitive but the question whether the evidence produced would justify his committal for trial. The fugitive is entitled to be made aware by the reading of the affidavits presented of the case against him upon which his extradition for trial may be ordered but he is not required to answer that case and even if he elects to do so by evidence or otherwise the judge's function remains the same. He is not empowered to decide the merits of guilt or innocence or to pass upon the credibility of witnesses but simply to determine whether there is a sufficient case against the fugitive to justify his committal. The trial and determination of the fugitive's rights with respect to the charge are left to the trial court."

20. In Re United States of America v. Smith Houlden, J.A., said he had considered the arguments put forward on precisely this ground but held that the refusal to permit cross-examination on affidavits produced in extradition proceedings is not a violation of s. 7 of the Canadian Charter. He said:

"Section 16 of the Extradition Act and, Article 10(2) of the Treaty, as has been pointed out, provide for the admission of documentary evidence without cross-examination. Section 468 (1) (a) of the Code gives an accused the right to cross-examine witnesses called by the prosecution at a preliminary hearing. If the demanding state calls witnesses at the extradition hearing there would clearly be a right under s. 13 of the Extradition Act and s. 468(1)(a) of the Code to cross-examine the witnesses. I see no reason however why the right of cross-examination in s. 468(1)(a) should be extended to documentary evidence tendered at an extradition hearing, particularly when both the Extradition Act and the Treaty provide for its admission without cross-examination. The words in s. 13 of the Extradition Act as nearly as may be in my opinion contemplate this difference in procedure."

Section 468(1)(a) of the Canadian Criminal Code appear to correspond to s. 81 of the Hong Kong Magistrates Ordinance.

21. Houlden, J.A., also referred to the decision of Dickson, J., in Vardy v. Scott [1977] 28 CCC 164. He also held that the refusal to permit cross-examination on affidavit evidence was not a denial of a fair hearing as contemplated by s. 2(e) of the Canadian Bill of Rights.

22. Mr. Bruce relied principally on the line of authorities to which I have already referred which hold that in extradition proceedings there was no provision for the cross-examination of witnesses who were outside the jurisdiction. He submitted that there was nothing in the Bill of Rights which directly or by implication was to the contrary. Extradition proceedings was not a trial but simply a procedure to see if there was sufficient evidence which would justify the fugitive being committed to prison to await the Governor's decision was to whether he Should in fact be extradited. The words "as pearly as may be" in Clause 6 of the Schedule clearly envisage that there would be a difference between extradition proceedings and committal proceedings. That difference was the very obvious one of there being witnesses overseas who it may well be very difficult to bring to Hong Kong to give evidence. There would be very substantial practical difficulties in this particular case due to the status of the witnesses if they did come to Hong Kong.

23. Both Article 10 and Article 11 of the Bill of Rights refer to "the determination of any criminal charge". These proceedings are not for the determination of any charge but as Thurlow, J., said in Armstrong "the trial and determination of the fugitive's rights with respect to the charge are left to the trial court". Similarly Article 22 which refers to equality before the law and prohibits discrimination on the ground of any status is not relevant. A person who is before the court in committal proceedings is in fact in a different situation to one who is being proceeded against for extradition. There is no question of any difference being made between them on a basis of status which offends against Article 22. There can be no doubt that if the witnesses in an extradition proceeding were in Hong Kong and evidence was taken from them, as here it was from the arresting officer, the applicant would have the right to cross-examine in the same way as in a committal proceeding. That does not apply to witnesses who are overseas but whose. depositions are duly authenticated and properly produced.

Decision

24. I am satisfied beyond any doubt that the magistrate had no power to make the order sought that the witnesses in this case be ordered to come to Hong Kong for the purposes, of cross-examination.

25. There is no need for me to recite again the authorities which are clear that in extradition proceedings the depositions of witnesses overseas, if properly authenticated, may be produced and acted upon. The magistrate makes no determination as to guilt or innocence but simply decides if there is sufficient evidence as justifies the fugitive being committed to prison to await the decision of the Governor as to whether or not he should be extradited. I do not see that Articles 10 and 11 of the Bill of Rights have made any change to the existing law or conferred any additional rights in addition to those existing before its passage. In particular I am satisfied that these proceedings are not for "the determination of any criminal charge".

26. I am also satisfied that Article 22 is also of no assistance to the applicant. The words "as near as may be" in Clause 6(1) of the Schedule make it clear that extradition, for obvious reasons, is not the same as committal and a person whose extradition is sought does not have the same status as regards the right to cross-examine witnesses as one who is to be committed for trial except in respect of witnesses who are in Hong Kong and who give evidence at the hearing.

27. Turning to the second part of the application that proceedings be stayed pending application being made under s. 77E of the Evidence Ordinance for evidence to be taken on commission in the United States I entirely agree with Mr. Bruce that the applicant has had ample opportunity to make such application since this matter first came before the courts in April of this year. He has not done so. I have considered the decision of Sears, J., in Re Davies Yu Yok Wen. Mr. Bruce informed me that in the hearing of that case Crown counsel, somewhat surprisingly, conceded that an extradition request is a "criminal proceeding instituted in Hong Kong" and he thought he could not go back on that concession here. Nevertheless he submitted that Part VIIIA of the Evidence Ordinance related to criminal trials which will be held in Hong Kong. That was not the case here.

28. Without going further into this matter I am satisfied that, as no application has in fact been made by the applicant pursuant to s. 77E of the Evidence Ordinance. I should not stay the proceedings pending such application being made.

29. For these reasons I am satisfied that this application must be dismissed.