CHOI SZE YUEN v. GOVERNMENT OF THE UNITED STATES OF AMERICA

Extradition - habeas corpus - extradition of offender sought by USA - whether warrant of arrest admissible as having been duly authenticated in accordance with Extradition Act 1989, read with the relevant Treaty - effect of s.31 of Evidence Ordinance.

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J U D G M E N T

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Fuad, V.-P.:

1. This is an appeal from the judgment of Godfrey, J. dated 11th November 1991 whereby he dismissed an application by Choi Sze Yuen ("the applicant") for a writ of habeas corpus.

2. The Government of the United States of America seeks the extradition of the applicant in respect of a number of alleged violations of Federal narcotics laws. On 12th September 1991 a magistrate (Mr. H.L. Brazier) committed him to prison to await the warrant of the Governor of Hong Kong for his surrender to the USA.

3. There is no dispute about the applicable law. By virtue of s.1(3) of the Extradition Act 1989 of the United Kingdom ("the 1989 Act") the provisions of Schedule 1 to the Act have effect in relation to the USA, "but subject to the limitations, restrictions, conditions, exceptions and qualifications" contained in The United States of America (Extradition) Order 1976 (S.I. 1976 No.2144). Schedule 1 to the Order sets out the text of a Treaty entered into between the Government of the UK and of the USA concluded on 8th June 1972 and ratified on 21st October 1986 ("the Treaty").

4. On the hearing before him, Godfrey, J. had to deal with a number of objections to the continued detention of the applicant. Three of the issues raised before the judge had been intended to be pursued by this appeal when the Notice of Appeal was filed. However, when the hearing began before us, Mr. Cheng Huan, Q.C. (who did not appear in either of the courts below) abandoned, on behalf of the applicant, all the grounds of appeal except the following:

"That the learned judge erred in concluding there was produced, before the Magistrate as required by paragraph 7 of Schedule 1 of the Extradition Act 1989, a foreign warrant duly .authenticated in accordance with Article VII (5) of the United States of America (Extradition) Order 1976."

5. Paragraph 7 of Schedule 1 of the 1989 Act is as follows:

"7. (1) In the case of a fugitive criminal accused of an extradition crime, if the foreign warrant authorising the arrest of such criminal is duly authenticated, and such evidence is produced as (subject to the provisions of this Schedule) would, according to the law of England and Wales, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England or Wales, the metropolitan magistrate shall commit him to prison, but otherwise shall order him to be discharged.

(2) .....

(3) ....."

6. It is common ground, that in the light of the requirements of s. l(3) of the 1989 Act, it is the proper interpretation and application of paragraphs (3) and (5) of Article VII of the Treaty which falls for determination in this appeal. They are in these terms:

" ARTICLE VII

(1)    .....

(2)    .....

(3) If the request relates to an accused person, it must also be accompanied by a warrant of arrest issued by a judge, magistrate or other competent authority in the territory of the requesting party and by such evidence as, according to the law of the requested Party, would justify his committal for trial if the offence had been committed in the territory of the requested Party, including evidence that the person requested is the person to whom the warrant of arrest refers.

(4) .....

(5) The warrant of arrest, or the judicial document establishing the existence of the conviction, and any deposition or statement or other evidence given on oath or affirmed, or any certified copy thereof shall be received in evidence in any proceedings for extradition:

(a) if it is authenticated in the case of a warrant by being signed, or in the case of any other original document by being certified, by a judge, magistrate or other competent authority of the requesting Party, or in the case of a copy by being so certified to be a true copy of the original; and

(b) where the requesting Party is the United Kingdom, by being sealed with the official seal of the appropriate Minister and certified by the principal diplomatic or consular officer of the United States of America in the United Kingdom; and where the requesting Party is the United States of America, be being sealed with the official seal of the Department of State for the Secretary of State; or

(c) if it is authenticated in such other manner as may be permitted by the law of the requested Party."

7. Before the magistrate there was an affidavit sworn by Mr. Kenneth J. Vianale, an Assistant United States Attorney for the Southern District of New York. This is what he said in paragraph 13 of his affidavit:

"13. It is the practice of the United States District Court for the Southern District of New York to retain the original of Indictment S 90 Cr. 602, as well as the Warrants of Arrest. I have obtained a true and accurate copy of Indictment S 90 Cr. 602 from the Office of the Clerk of the Court. The Clerk of the Court and his Deputies are officers of the Court and are authorized under the laws of the United States to certify as true and accurate the copy of Indictment S 90 Cr. 602. I have also obtained duplicate originals of the Warrants of Arrest, signed by the Honorable Barbara A. Lee, United States Magistrate Judge, Southern District of New York. I have annexed hereto as Exhibits A and B, respectively, the certified copy of Indictment S 90 Cr. 602 and the duplicate original Warrants of Arrest issued against [the applicant and others]".

8. Mr. Vianale reverts to these matters in paragraph 17 of his affidavit, where he says:

"17. The following documents are annexed to this affidavit and are incorporated by reference herein:

a. EXHIBIT A - A certified true copy of Indictment S 90 Cr. 602 captioned: ... S 90 Cr. 602 I have seen the original Indictment S 90 Cr. 602 and I attest that the attached copy is a true certified copy which has been certified as such by the Deputy Clerk of the Court who is an officer of the United States District Court in the Southern District of New York authorized under the laws of the United States to certify said copy.

b. EXHIBIT B - Duplicate original copies of the Warrants of Arrest issued against [the applicant and others]. The Warrants of Arrest, which were issued and signed by United States Magistrate Judge Barbara A. Lee of the Southern District of New York in New York, New York, United States of America, are judicial documents authorizing the arrest of [the applicant and others] for the crimes of which they are accused and which are set forth in the Warrants of Arrest and Indictment S 90 Cr. 602. A united States Magistrate Judge is authorised and empowered under the laws of the United Stapes to issue warrants of arrest."

9. The warrant of arrest with which we are concerned (and the other warrants ref erred to by Mr. Vianale are all the same in this respect) has boxes printed on it, and is filled in, as below:

10. Across the middle of the centre boxes appears the impression of a facsimile stamp of a signature. The seal of the US District Court - Southern District of New York is embossed under the signature of the deputy clerk.

11. This is how the learned judge dealt with what he called "the warrant point":

"This point arises because, in the course of the proceedings before the magistrate, what was placed before the magistrate was not a warrant for the arrest of the applicant signed by the judge personally, but a document which purports to be 'a duplicate original' of that warrant. This, says the applicant, is simply not good enough. I confess to finding some difficulty myself with the expression 'a duplicate original'. The original warrant - leaving to one side any question of duplicates - was, according to Mr. Vianale, signed by the judge. That is what one would have expected. But what was put in evidence before the magistrate was a document which does not, even on the face of it, appear to have been signed by the judge. It is signed only by a deputy clerk. If you are going to produce a duplicate of the original (as distinct from a copy of the original) it seems to me that you have to produce a document which, like the first original (if I may call it that) bears the actual signature of the person whose document it purports to be. However, the document that was placed before the magistrate, and at which I have looked myself, is impressed with the seal of the court and I have no doubt whatever that that document is authentic. Why then, I ask myself, does it matter a row of beans what it is called? The magistrate had sufficient evidence before him to satisfy himself that the warrant of arrest was duly authenticated. He found it had indeed been issued in the form of the document to which I have referred, and which was produced to him, bearing the impress of the seal of the U.S. court. I cannot hold that no reasonable magistrate could have considered that to be sufficient evidence of due authentication. So I am unable to find any substance in the warrant point."

12. As we have seen, Godfrey J. gave his judgment on 11th November 1991. On 4th December 1991 in Ng Hung Yiu v. Government of the United States of America, MP 3107 of 1991, Macdougall, J.A., sitting as an additional Judge of the High Court, gave a judgment in habeas corpus proceedings on appeal from Mr. Brazier in relation to another of the applicant's co-accused. Both Godfrey, J. and Macdougall, J.A. had to consider the same lower court judgment, and the same law and evidence upon which it had been based. Macdougall, J.A. held in favour of the alleged fugitive offender before him and set aside the relevant committal order.

13. I would mention here that I consider it unfortunate that it so happened that tow different judges heard these applications founded as they were on precisely the same evidence and law. It may have been unavoidable, but it would have been highly desirable if the parties had so arranged matters that the same judge had heard both the applications and, if possible, at the same time, since they arose out of the same extradition proceedings, so that the possibility of conflicting would have been removed.

14. Mr. Cheng Huan relies very heavily upon Macdougall, J.A.'s judgment, respectfully adopting all the reasoning it contains. The learned Justice of Appeal pointed out that although Mr. Vianale had attested that the copy indictment which appears as exhibit A to his affidavit was a true certified copy of the original; that it had been certified as such by the deputy clerk of the court and that the deputy clerk was an officer of the United States District Court in the Southern District of New York authorised under the laws of the US to so certify, his affidavit was silent on these matters with regard to the warrant of arrest.

15. Macdougall, J.A., having rejected arguments advanced by counsel then appearing for the USA Government, said:

" The issue is whether the provisions of paragraph (3) and sub paragraph (a) of paragraph (5) of Article VII have been complied with. Where the provisions of the Article require certain formalities to be observed it is no answer to say that there is a presumption of regularity. Precision is required in extradition process. As Mann L.J. said in re Farinha reported in The Times November 13 1991:

' If it were objected that the point was a technical one .... the response was that the courts had to be vigilant to ensure that the extradition procedures were strictly observed.'

It is plain from paragraph (3) that where a request for extradition relates to an accused person, it is mandatory that it be accompanied by a warrant of arrest issued by a judge, magistrate or other competent authority in the territory of the requesting Party.

Sub paragraph (a) clearly stipulates that for the warrant of arrest to be received in evidence in any proceedings for extradition it must be signed by a judge, magistrate or other competent authority of the requesting Party or in the case of a copy of the warrant of arrest that it be authenticated by being certified by a judge, magistrate or other competent authority to be a true copy of the original warrant of arrest. A purported signature of a judge, magistrate or other competent authority or a purported certification by any one of them that the warrant is a true copy of the original is not sufficient.

Moreover, sub paragraph (b) of paragraph (5) requires that where the requesting Party is the United States of America, the warrant must also be sealed with the official seal of the Department of State for the Secretary of State. This is an additional, not an alternative, requirement.

Can it be said that the evidence in the present case discloses that the copy warrant of arrest has been authenticated by being certified by a competent authority as contended for by Mr. McNair? In my view the answer to that question must be, No. As I have already observed, Mr. Vianale did not depose, as he did with regard to the copy of the indictment, that the copy of the warrant of arrest had been certified to be a true copy of the original by the deputy clerk of the court and that such deputy clerk is an officer of the United States District Court in the Southern District of New York authorised under the laws of the United States to make that certification in respect of warrants. The fact that Mr. Young, Mr. Thornburgh and Mr. Baker have certified the matters to which reference has already been made does riot assist Mr. McNair. None of them certifies in respect of the matter in point."

16. Before us, Miss Ip (who did not appear in the court below) submitted that Article VII(5) of the Treaty was satisfied if s.31 of the Evidence Ordinance, Cap. 8 is prayed in aid. Although Godfrey, J. did not mention the section in his judgment, she suggests that in view of what he said in the passage from it was likely that he had those provisions in mind. She pointed out that when Mr. Brazier had dealt with the "warrant point" in his judgment, he had concluded that part of his judgment with the following: "When reaching this conclusion I also noted the provisions of s.31 of the Evidence Ordinance, Cap. 8: in short the warrants before the Court satisfied the legal criteria."

17. Section 31 of the Evidence Ordinance makes provision as follows:

"31. All proclamations, treaties, and other acts of state of any foreign state or of any Commonwealth Country, and all judgments, decrees, orders, and other judicial proceedings of any court of justice or any consulate in any foreign state or in any Commonwealth Country, and all affidavits, pleadings, and other legal documents filed or deposited in any such court or consulate may be proved in the courts of Hong Kong either by examined copies or by copies authenticated as hereinafter mentioned: that is to say, if the document sought to be proved is a proclamation, treaty or other act of state, the authenticated copy to be admissible in evidence must purport to be sealed with the seal of the foreign state or Commonwealth Country to which the original document belongs, and if the document sought to be proved is a judgment, decree, order, or other judicial proceeding of any court of justice or any consulate in any foreign state or in any Commonwealth Country, or an affidavit, pleading, or other legal document filed or deposited in any such court or consulate, the authenticated copy to be admissible in evidence must purport either to be sealed with the seal of such court or consulate, or, in the event of such court having no seal, to be signed by the judge or, if there are more judges than one, by any one of the judges of such court, and such judge shall attach to his signature a statement in writing on the said copy that the court of justice whereof he is a judge has no seal; but if any of the aforesaid authenticated copies purport to be sealed or signed aha hereinbefore respectively directed, the same shall respectively be admitted in evidence in every case in which the original document could have been received in evidence, without any proof of the seal, where a seal is necessary, or of the signature, or of the truth of, the statement attached thereto, where such signature and statement are necessary, or of the judicial character of the person appearing to have made such signature and statement." [Emphasis supplied]

18. I have emphasised what I consider to be the relevant parts of that long and rather involved section.

19. As to the effect of s.31, Miss Ip cited Mayuret Tankanchophat v. The Government of United States of America, Civil Appeal 114 of 1991 (unreported) a decision of this Court given on 21st February 1992, where Kempster, J.A. delivered the judgment on behalf of himself, Clough, J.A. and Liu, J. After referring to the relevant provisions of the 1989 Act and of the Treaty, Kempster, J.A. had this to say:

" The only jurisdiction which existed in Hong Kong to order the detention of the appellant derived from Schedule 1 to the 1989 Act and from the Treaty. It only arose and was exercisable if the requirements of those documents were met.

By the third - (c) - of the three grounds in her Amended Notice of Appeal the appellant contends that these requirements were not met when her case came before the magistrate because the warrant or warrants of arrest dated January 1991 was or were copies not authenticated as demanded by para 7 of the Schedule and by Articles VII(3) and (5) of the Treaty. Paragraph 7 calls for due authentication and Article VII(5), similar but not identical in its terms either to s 15 of the 1870 or to s 26 of the 1989 Act, explains the obligations of the requesting state. Having regard, perhaps, to the judgment of Watkins LJ in The Matter of Victor Espinosa, it is common ground that the document relied upon by the requesting state and described as '1. ACTION COPY (Clerk of the Court Record)' and being the first of three such purported copies produced - a fourth being referred to in the 'instructions' - was appropriately sealed and purportedly signed by a magistrate. Contrary to the deposition of Barbara Silano who goes on to refer to 'original arrest warrants' - in the plural - it was not certified to be a true copy of the original. Rejecting her evidence that it was 'the practice of the Northern District of California to retain the original of the warrant for arrest) on file among the records of the court' and that she had 'obtained true and accurate copies ... from the Clerk of the Court' the magistrate found the material document to be a signed original. The judge upheld him.

Although, for reasons of consistency, we do not accept that the equivocal word 'signed' in Article VII(5)(a) cannot bear the meaning 'purportedly signed' as expressly provided by the repealed s 15 of the 1870 Act and by the, as yet, inapplicable s 26 of the 1989 Act, both enacted in order to implement the Treaty, we cannot accept that it was safe to go behind the respondents' sworn case. They still rely upon Barbara Silano's affidavit in part and Mr Drew Arena, also on their behalf as 'commissioned and qualified' by the Attorney General of the USA, certified the production of 'a certified true copy of a Warrant for Arrest issued by the United States District Court for the Northern District of California in January 1991 for the arrest of' the appellant. That being the case we would have allowed the appeal but for the invocation, for the first time in the course of this hearing, of Article VII(5)(c) and of s 31 of the Evidence Ordinance (Cap 8) which follows the wording of s 7 of the Evidence Act 1851. The material parts of the section read:

'... all orders ... of any court of justice ... in any foreign state ... may be proved in the courts of Hong Kong ... by copies authenticated as hereinafter mentioned: that is to say ... if the document sought to be proved is (an) order ... of any court of justice ... in any foreign state ... the authenticated copy to be admissible in evidence must purport ... to be sealed with the seal of such court ...'

Having scrutinised the three ostensible copies of the warrant adduced by the respondents we are satisfied that each at least purported to be impressed with the seal of the United States District Court for the Northern District of California, is therefore authenticated in a manner permitted by the law of Hong Kong, being 'the requested party', was certified under the seal of the Department of Justice of the USA and 'shall be received in evidence in any proceedings for extradition' pursuant to Article VII(5). If, as Mr Marash for the appellant postulates, our earlier ruling was wrong and the magistrate and judge were right in finding that the material document was an original, it had been adduced and certified as just described, is apparently signed by a magistrate and would, therefore, nonetheless constitute admissible evidence under the law of Hong Kong. As was held by another English Divisional Court, comprising Lord Widgery CJ, Eveleigh LJ and Kilner Brown J, a notice 'having been produced from an official source and having every appearance of authenticity ... was properly regarded as valid by ... justices ... it was an inference they could draw from the evidence provided by the document itself.' Pamplin v Gorman (1980) Cr Law R 52. These observations are equally applicable to a judge seized with an application for release from custody. To refer again to the judgment of Watkins LJ in The Matter of Victor Espinosa:

'True we are ... in the realm of technicalities but courts should beware of taking an over strict and therefore impermissible view of such provisions as we contemplate'.

Having regard to the implications for individual liberty his words are not, we are sure, to be regarded as authority for the proposition that there is power to dispense with any requirement of Schedule 1 or of the Treaty. But he may have had in mind the approval expressed by Viscount Dilhorne in Athanassiadis v Government of Greece [1971] AC 282 at p 289 of the observation of Ridley J:

'It is in my opinion undesirable to apply the writ of habeas corpus to a case of this kind - a case where a mere technicality not affecting the merits is the only point raised'.

R v Governor of Brixton Prison, Ex parte Servini [1914] 1 KB 77 at p 81. Ground (c) of the Amended Notice of Appeal fails at the last hurdle."

20. It is common ground that there was ample evidence to satisfy Article VII(3) of the Treaty: that the request was accompanied by a warrant of arrest issued by a judge or magistrate. Paragraph 7(1) of Schedule 1 to the 1989 Act requires such a warrant to be "duly authenticated". Article VII(5) of the Treaty allows the warrant to be received in evidence if certain conditions have been satisfied. -These are referred to in sub-paragraphs (a),(b) and (c) of paragraph (5). How are these provisions to be interpreted? It will have been noted that the word "and" occurs between sub-paragraphs (a) and (b) and that the word "or" is to be found between sub-paragraphs(b) and (c). Does the true construction of paragraph (5) require that sub-paragraph (a), as well as either sub-paragraphs (b) or (c) be satisfied, or is it sufficient if sub-paragraphs (a) and (b) are complied with, or in the alternative, sub-paragraph (c) alone? In my judgment it is clear, as a matter of construction, that (c) stands alone and is not an alternative to (b). It is an alternative to (a) and (b) read together.

21. As I understand Kempster, J.A.'s judgment in Mayuret Tankanchophat's case, that is how the Court of Appeal construed and applied Article VII(5) of the Treaty. Although the warrant of arrest was different in that case it was the presence of the court seal on the warrant and the application of s.31 of the Evidence Ordinance that permitted the court to hold that the warrant had been properly authenticated for the purposes of the 1989 Act and the Treaty. I think we are effectively bound by that decision (with which I respectfully agree). It is clear from Macdougall, J.A.'s judgment in Ng Hung Yiu's case that s.31 of the Evidence Ordinance was not relied upon by the Crown in argument and that the learned Justice of Appeal was interpreting and applying sub-paragraphs (a) and (b) of Article VII(5) and not sub-paragraph (c).

22. I would dismiss the appeal.

Penlington, J.A.:

23. I agree.

Nazareth, J.A.:

24. It is not necessary for me to set out the facts, the nature of the appeal and the legal provisions concerned; all those have been very clearly set out by my Lord the Vice-President, and I am able to proceed directly to the key matter to be decided.

25. That, notwithstanding that Mr. Cheng Huan relied almost entirely upon it, is not the validity or otherwise of the judgment of Macdougall J.A. in Ng Hung Yiu, which clearly is not concerned with Article VII(5)(c) of the Treaty. The key matter is the construction of Article VII(5) in regard to sub-paragraph (c), since it is that to which the Crown now unequivocally nails its colours. The text of Article VII(5) appears in my Lord the Vice President's judgment. Its format [with sequential lettering of the three sub-paragraphs and the words "and" between sub-paragraphs (a) and (b), and "or" between (b) and (c),] prima facie accords ill with any clear intention that sub-paragraph (c) on its own is to be an alternative to sub-paragraphs (a) and (b) combined. Nonetheless, on a careful reading of Article VII(5) in its context, and having regard to its object, which is obviously to provide for the authentication of warrants etc., I am satisfied that the manner of authentication in sub-paragraph (c) is intended to be alternative to that specified in sub-paragraphs (a) and (b) combined.

26. Likewise, I am satisfied that Kempster J.A., in the passage of his judgment in Mayuret Tankanchophat quoted by my Lord the Vice-President, can only have concluded that the warrant before him was required to be received in evidence pursuant to Article VII(5) in the basis that sub-paragraph (c) stands on its own.

27. I therefore agree that for the foregoing reasons, and also for the reasons given by my Lord the Vice-President, the appeal should be dismissed.

Fuad, V.-P.:

28. In handing down these judgments dismissing this appeal we make an order nisi that the applicant pay the costs of the appeal.