MAYURET TANKANCHOPHAT v. THE GOVERNMENT OF UNITED STATES OF AMERICA

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J U D G M E N T

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Kempster, JA (giving the judgment of the Court):

1. This is an appeal brought as of right under s 24 of the Supreme Court Ordinance (Cap 4) from the judgment of Nazareth J (as he then was), given on 19 June 1991 on the return to a writ of habeas corpus, declining to order the release from custody of the appellant, Mayuret Tankanchophat. She had been detained, pending extradition to the United States of America (USA), by order of Mr Anthony To, a permanent magistrate, made on 8 April by reference to two crimes; one of conspiring to traffick and the other of actual trafficking in dangerous drugs by importing them into the USA.

2. The general delay in bringing the matter before this Court was explained by the appellant's unfulfilled wish to be represented by a particular leading counsel from England and the particular delay in lodging documents as required by RSC Order 59 rule 9 by her solicitor's ignorance of civil procedure. We allowed the very necessary amendment of the Notice of Appeal, to state why the decision of the judge was impugned, on the second day of the hearing. For their part the respondents, the Government of the USA by the Attorney General, undertook to amend the order of the judge which, following the terms of his judgment, mistakenly purported to refuse the issue of a writ of habeas corpus. Belatedly, but unopposed, they also sought leave to file a respondent's notice. We allowed the application.

3. On 8 June 1972 a Treaty was concluded between HM Government of the United Kingdom and the Government of the USA for the reciprocal extradition of offenders. Pursuant to Article II(1)(a) of that Treaty, to sections 2, 17 and 21 of the Extradition Act 1870 and by the United States of America (Extradition) Order 1976 (No 2144 of 1976), the Extradition Acts 1870 to 1935 - meaning the Extradition Acts 1870 to 1932 [the Counterfeit Currency (Convention) Act 1935 s 6(4)] - "as amended or extended by any subsequent enactment", were applied as between Hong Kong and the USA and their application clarified by the Extradition (Hong Kong) Ordinance (Cap 236) and by the definition of "magistrate" in s 3 of the Interpretation and General Clauses Ordinance (Cap 1). The Extradition Acts were subsequently amended by the Criminal Justice Act 1988 s 1(9) Schedule 1 Part I

4. The Extradition Acts 1870 to 1932 were repealed by s 37(1) and Schedule 2 of the Extradition Act 1989 but s 37(3) provided that such repeal "does not affect an Order in Council made under section 2 of that Act ... ". No Order in Council has been made pursuant to s 4 of the 1989 Act but by s 1(3):

"Where an Order in Council under section 2 of the Extradition Act 1870 is in force in relation to a foreign state, Schedule 1 to this Act ... shall have effect in relation to that state, but subject to the limitations, restrictions, conditions, exceptions and qualifications, if any, contained in the Order".

5. In the instant appeal it therefore falls to consider whether or not the judge was right in concluding that the magistrate had complied with the provisions of Schedule 1 subject to the limitations, restrictions, conditions, exceptions and qualifications of the United States of America (Extradition) Order 1976. In so doing it is necessary to amplify the judgment of this Court in Law Kin Man v Government of the USA Civil Appeal No 161 of 1990 (unreported) and to determine some of the questions left unanswered in Civil Appeal No 152 of 1991; also unreported and again involving Law Kin Man.

6. Schedule 1 to the Order in Council sets out the terms of the Treaty of 8 June 1972 which, it recites, the respective governments have agreed shall apply, among other territories, to Hong Kong. It orders that the Extradition Acts "shall apply in the case of the United States of America in accordance with the said Treaty ... ". In relation to the Extradition Acts 1870 to 1935 and to s 5 of the 1870 Act in particular, Lord Diplock explained:

"The magistrate's jurisdiction and powers under the Acts are subject to such limitations, restrictions, conditions, exceptions and qualifications as may be provided for in the extradition treaty with the particular foreign state. ... it may be limited, in the case of fugitive criminals from a particular foreign state, by the terms of the extradition treaty with that state. ... such a treaty when embodied in an order in council may impose limitations, restrictions, conditions and qualifications on the provisions of the Act ... If they do so, the magistrate, in the exercise of the statutory jurisdiction conferred upon him ... must give effect to them."

Government of Denmark v Nielsen [1984] AC 606 at pp 616, 617, 620 and 621. The English Divisional Court adopted the same approach in Re Victor Espinosa 2 May 1986 (unreported). The wording of s 5 is very similar to and, it would seem, the basis of that found in the Order in Council:

"When an Order applying this Act in the case of any foreign state has been published in the London Gazette, this Act ... shall, so long as the Order remains in force, but subject to the limitations, restrictions, conditions, exceptions, and qualifications, if any, contained in the Order apply in the case of such foreign state. ... "

In our opinion like constraints are imposed upon a magistrate seeking to apply the First Schedule to the 1989 Act para 7(1) of which reads:

"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."

By para 20 " 'warrant', in the case of any foreign state, includes any judicial document authorising the arrest of a person accused of crime." In isolation the provisions of Schedule 1 just quoted are meaningless but if read in conjunction with the Treaty the significance of the words "the foreign warrant authorising the arrest of such criminal" is at once apparent. Article VII(3) reads:

"If the request" - for extradition - "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 ... "

Similarly the expression "duly authenticated" in para 7(1) is not defined in the Schedule but is in Article VII(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 States of America, by 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. 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.

8. 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.

9. 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.

10. By ground (a) the appellant contends that the requesting state failed to furnish the text of the law defining the crime of trafficking, being the second of the two crimes presently relied upon, as required by Article VII(2)(c)(i). But looking at para 6(B) of her affidavit sworn on 24 January 1991 it is apparent that Barbara Silano did comply with this provision albeit inadvertently. We would uphold the judge in this regard. It was not a matter into which the magistrate was led to inquire as he was, for example, in relation to authentication by para 7 of Schedule 1 to the 1989 Act. R v Governor of Pentonville Prison ex parte Sinclair [1991] 2 WLR 1028.

11. Turning to ground (b) of the Amended Notice of Appeal it is argued that the judge erred in law in ruling that there was sufficient evidence before the magistrate to justify the committal of the appellant for trial in relation to the first crime, conspiracy to traffick in dangerous drugs, according to the law of England and Wales; that of Hong Kong being identical. Again we would uphold the findings of the judge and, here, of the magistrate also. It is common ground that no agreement between undercover agents and the appellant can be relied upon but Hoang Ky Ly swore that in August 1990 the appellant told him that her organisation was in possession of more than 200 kilograms of heroin which had successfully been smuggled into the United States approximately four months earlier. Later he introduced her to the other undercover agents, Stephen Tse and Michelle Jong. Tse's deposition is to the effect that during September 1990 the appellant told him that she could supply 50 units of heroin to be delivered in San Francisco by her people within a week of receipt of half of the purchase monies which were to be remitted to the owners in Thailand; whose interests she had guaranteed. During the same month she told Jong that she was travelling to Palmdale, California "because it was a pre-arranged location for contact with persons who would supply heroin ... ". Despite the fact that such persons appear, from further parts of the evidence, to have failed to implement their part of the bargain we are satisfied that a committal under Hong Kong law on the basis of an agreement with persons other than the undercover agents to traffick in dangerous drugs would not have been susceptible to challenge. Our conclusion is not hindered by the possibility that certain incidents of the "contract" were subject to conditions and further terms had yet to be agreed. R v Cho Campo Juan En Kui & Ors Cr App No 503 of 1985 (unreported); R v O'Brien (1974) 59 Cr App R 221; Li Fook Shiu v AG Cr App No 3 of 1990 (unreported).

12. The omission of a cross or tick in any of the "boxes" in the documents dated January 1991, canvassed when this appeal was opened, is not relied upon in the Amended Notice of Appeal.

13. In the premises we dismiss this appeal and make an order nisi that no costs should be awarded to either of the parties.