LAW KIN MAN v. GOVERNMENT OF THE UNITED STATES OF AMERICA AND ANOTHER

BETWEEN

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JUDGMENT

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Fuad, V.-P. (giving the judgment of the Court):

1. This is an appeal from the order of Jones, J. dated 25th September 1990 whereby he dismissed an application by Law Kin Man ("the applicant") for a writ of habeas corpus. At the conclusion of the hearing, without calling upon Mr. Hartmann for the respondents, we dismissed the appeal and said we would hand down later the reasons for our decision, which we now do.

2. The extradition of the applicant is sought by the Government of the United States of America. On 4th April 1990 a magistrate (Mr. G. Andre-Wiltens) committed the applicant to prison to await the warrant of the Governor of Hong Kong for his surrender to the USA. We are not concerned with the other man and the two women who were the subject of committal warrants made the same time.

3. The magistrate exercised jurisdiction under the Extradition Act 1989 of the United Kingdom ("the 1989 Act") most of the provisions of which came into force on 27th September 1989. Before that date, the law which applied was the Extradition Act 1870 of the UK as amended, and as modified in its application to Hong Kong. By an Order in Council made under the enabling provisions of the Act, the Extradition Acts 1870 to 1935, as amended or extended, were directed to apply, inter alia, to Hong Kong in accordance with the Treaty dated 8th June 1972 entered into between the Governments of the United Kingdom and of the USA ("the Treaty") and ratified oh 21st October 1976. This is the United States of America (Extradition) Order 1976, S. I. 1976 No. 2144 which came into operation on 21st January 1977. The text of the Treaty is set out in Schedule 1 to the Order. The Extradition (Hong Kong) Ordinance, Cap. 236, provides by ss. 2 and 3 that the powers etc. given to the Secretary of State and the police magistrate in the UK by the Extradition Acts may be exercised, respectively, by the Governor of Hong Kong and by any magistrate.

4. The Extradition Act 1870 was repealed by the 1989 Act. The provisions of the latter Act which apply to this case are those set out in Schedule 1 to the Act because the 1976 Order in Council in relation to the USA is still in force, no applicable Order in Council having been made under the 1989 Act (see ss. 1(3) and 4 of the 1989 Act).Section 1(3) explains that the provisions in Schedule 1 derive from the 1870 Act and certain associated enactments. Therefore, unless and until new extradition arrangements are made by Order in Council in relation to the USA, very substantially the previous law, but in the form set out in Schedule 1, continues to apply.

5. The Governor's order to proceed, directed to the magistrate, was dated 22nd March 1990. He issued a supplemental order on 28th March. The two orders specified the crimes (all of which related to dangerous drugs) in respect of which the magistrate was required to issue his warrant for the apprehension of the applicant and the others involved.

6. In the first order, Crime 1 charged that the applicant, between October 1986 and February 1988, had conspired with 6 named persons and with others to traffic in a dangerous drug contrary to the Dangerous Drugs Ordinance, Cap. 134. Also in the first order, there were 5 other Crimes specified against him. In respect of the Crime in Column I in the table below, on the dates mentioned in Column II, it was averred that the applicant had in his possession for the purposes of unlawful trafficking therein, the quantity of heroin set out in Column III, contrary to ss. 7(1) and (2) of the Dangerous Drugs Ordinance.

7. In the second order, 5 Crimes were specified, identified in parenthesis in the table below. In respect of the Crime in Column I, on the dates mentioned in Column II, it was alleged that the applicant had unlawfully trafficked in the quantity of heroin shown in Column III, contrary to ss. 4(1)(a) and (3) of the Dangerous Drugs Ordinance.

8. The relevant parts of ss. 4 and 7 of the Dangerous Drugs Ordinance are in these terms:

9. These definitions, in s.2 of the Ordinance are relevant:

10. There was no dispute before Jones, J., or on this appeal, that each offence for which the applicant is wanted in the USA is an "extradition crime" for the purposes of paragraph 7(1) of Schedule 1 to the 1989 Act (set out below) by reference to:

Where expert evidence was necessary to satisfy any of the provisions just mentioned, it is to be found in the affidavit sworn on 4th January 1990 by Ms. Catherine E. Palmer, an Assistant US Attorney for the Eastern District of New York. Her affidavit also fully explains and defines the crimes alleged against the applicant which founded the requisition.

11. The complaints about the magistrate's decision to commit the applicant to prison to await surrender have nothing to do with procedural matters. They all relate to the sufficiency of the evidence upon which the magistrate acted.

12. The law to be applied by the magistrate when deciding whether or not to issue his warrant for committal is to be found, in familiar terms, in paragraph 7(1) of Schedule 1 to the 1989 Act:

13. That provision is echoed in Article VII(3) of the Treaty, read with Article IX(1):

14. We mention here that by s.85(2) of the Magistrates Ordinance, Cap. 227, a magistrate is obliged to commit the accused for trial if he is of the opinion that the evidence before him "is sufficient to put the accused upon his trial…"

15. The first ground in the Notice of Appeal is that the judge erred in concluding that the magistrate had adopted the correct test of whether there was sufficient evidence to justify the committal for extradition of the applicant.

16. This is how the magistrate described the test he had to apply in reaching his decision:"

17. In relation to the conspiracy crime this is what the magistrate said:

18. The proper test has so often been stated that we content ourselves with citing a short passage from the speech of Lord Reid in Schtracks v. Government of Israel [1964] AC 556, at p.580, where he said:

19. Mr. Llewellyn, for the applicant, submitted that the magistrate's approach had been "lax" and that he had misdirected himself so that his error had invalidated his decision. Reading his judgment as a whole, we are not persuaded that this experienced magistrate applied the wrong test. In our view he demonstrated by what he said that he fully appreciated his proper function. It would not be right to insist upon any particular form of words for describing the test to be applied at the committal stage. There is nothing in the point raised.

20. The next ground of appeal was that the judge erred in finding that statements in the affidavits of Yuen Ho Yin and Cheung Wai Kan to the effect that they had been told by Wong Kwong Kit that he had delivered "the merchandise" to Kin Wan Law (sic) were admissible against the applicant as being statements made in furtherance of a common design and that there was, therefore, sufficient evidence to justify the applicant's committal for extradition in respect of Crime No.4 in the Governor's first order [and Crime No. 3 in the second]. It will be recalled that those Crimes charged the applicant with possessing 69 kilos of heroin for the purpose of unlawful trafficking (Crime 4) and with trafficking in that quantity of heroin (Crime 3).

21. Yuen Ho Yin implicated the applicant in his 49 page affidavit sworn in New York on 3rd January 1990. When he made the affidavit he was in custody in the MA for a number of drug-related offences and had pleaded guilty to a heroin trafficking offence which carries a mandatory minimum of 10 years' imprisonment, the maximum being life imprisonment. He is a Hong Kong citizen and frankly admitted that he had been "involved in heroin trafficking for several years". He said he had known the applicant since about December 1986.

22. In paragraph 105 of his affidavit he stated that the applicant contacted him in about late September - early October 1987 and said that he wanted 99 units. (Yuen had earlier stated that in this trade a "unit" meant a compressed block of heroin weighing approximately 700 grams). They had agreed to meet at a particular restaurant in New York. Together with Cheung Wai Kam, he had placed 99 units of heroin into several travel bags and a suitcase. Another associate, Wong Kwong Kit, had then taken the travel bags and the suitcase containing the heroin and left ostensibly to meet the applicant at the restaurant. Wong Kwong Kit had later returned without the heroin and said that he had delivered the "merchandise" to the applicant. He had added that the applicant would pay him directly for the "merchandise". He had understood (and this again was clear, he said, from the context of their conversation) that Wong Kwong Kit had been using the term "merchandise" to refer to heroin.

23. This evidence was supported in part by what appears in paragraph 39 of the affidavit, also sworn on 3rd January 1990, by Cheung Wai Kam, an alleged accomplice. He is also a Hong Kong citizen. He said that in late September/early October 1987 Yuen had told him of the applicant's request for 99 units of heroin. They had together packed the heroin in several travel bags and a suitcase; given them to Wong; Wong had returned without them; and had said that the applicant had promised to pay him.

24. Cheung swore that he had been involved in trafficking in heroin for several years. He acknowledged that he had pleaded guilty to a drugs offence in New York, punishable by a mandatory minimum sentence of 5 years' imprisonment, and a maximum 40 years' imprisonment.

25. Both Yeun and Cheung swore that throughout the conversations and meetings they recounted and mentioned in their affidavits, it was clear to them that whenever words such as "units", "stuff", "merchandise" and "shipment" were used by all those involved they were references to dealings in heroin.

26. Mr. Llewellyn accepted the proposition, as stated in Archbold, 43rd Edition, p.1290, that as a general principle, the acts and declarations of a conspirator in furtherance of the common design are admissible in evidence against any other conspirator, and that this principle applies when the charge is one of a crime committed in pursuance of a conspiracy, whether the indictment contains a Count for conspiracy or not. However, he pointed out that no conspiracy between Wong and the applicant had been charged and the hearsay evidence that the applicant had received a delivery of drugs from Wong could not further a conspiracy between the applicant and the 6 other persons mentioned in Crime 1, who were not connected with such an  alleged transaction.

27. It seems to us that in the light of the evidence (which was not hearsay) that indicated that the applicant was a party to a common design to traffic, by asking Yuen to deliver heroin to him at a particular restaurant, and the evidence that heroin was put together and packed for this very purpose, and then handed to a confederate, Wong, the statement by Wong that he had given the heroin to the applicant could be said to be a declaration made in furtherance of the conspiracy. The definition of the word "trafficking" in s.2 of the Ordinance (set out above) must be borne in mind, and the fact that payment would be made, and who would receive the money, was relevant and admissible as a declaration made in furtherance of the common design.The co-conspirators would naturally be very concerned about, and interested in, this aspect of the matter.

28. The evidence against the applicant about these Crimes can fairly be said to be weaker than the evidence supporting the other alleged Crimes, but we are satisfied that a prima facie case in respect of them had been made out.

29. Complaint is also made that the judge was wrong in concluding that the magistrate had correctly held that there was admissible evidence that what Yuen and Cheung called "units", "merchandise" and "stuff" and which they purported to recognise as heroin was in fact heroin.

30. It seems to us that the prima facie evidence from which a fury would be asked to infer, in the absence of any evidence to the contrary, that the substance Yuen and Cheung had dealt with was indeed heroin, would be:

31. In R. v. Chatwood and Others [1980] 1 WLR 874, Forbes, J. giving the judgment of the Court of Appeal approved the law as stated by Lord Widgery, C. J. in Bird v. Adams [1972] Crim LR 174. We will cite only part of the passage cited with approval by Forbes, J.:

32. Mr. Llewellyn contended that Yuen and Cheung had not been shown to have proper qualifications to express a valid opinion on what were the substances allegedly handled - nor was it apparent upon what primary facts they had formed their opinion that they were handling heroin and nothing else.

33. About the Bird v. Adams and Chatwood cases, he submitted that they were not applicable to the present circumstances since in each of those cases, the admission relied upon had come from the accused person, and was used against him. But it is not simply as an admission of guilt that such evidence can be considered. It may be taken as prima facie evidence of the nature of the substance.

34. There can be no doubt that if Yuen and Cheung are to be believed, they had plenty of experience about the nature of heroin. At any future trial, of course, they will (if the point is raised) be cross -examined as to the basis upon which they felt able to assert that what was involved in the case was in fact heroin, and it will be a matter for the jury to decide what weight, if any, they should give to such assertions in the light of all the evidence. It would not be necessary to prove what proportion of heroin was contained in the substances supplied and traded.

35. In our view, as the evidence stands, at present unchallenged, there was sufficient prima facie evidence of the nature of the drugs mentioned in the Crimes in the Governor's orders.

36. Mr. Llewellyn has also submitted that the judge erred in finding that the photos alleged to be likenesses of the applicant and purporting to form part of the affidavits of Yuen and Cheung were properly authenticated. The judge was therefore wrong, he said, to hold that there was admissible evidence that the applicant was the person named in the USA Warrant and Request for Extradition. This is what the magistrate said about the photographs (in para. 6 of his judgment):

37. The following provisions of Schedule l to the 1989 Act and of the Treaty appear to be relevant. In paragraph 12 of Schedule l we finds:

38. Article VII(2)(a) of the Treaty requires the request to be accompanied by "a description of the person sought ... and any other information which would help establish his identity". Article VII(5), in so far as it is relevant is in these terms:

The photograph of a man is the first exhibit annexed to the affidavit and is marked "YUEN EXHIBIT 1". The exhibit follows immediately after the signature of the affiant and the authenticating certificate of the US magistrate.

39. Cheung, in paragraph 6 of his affidavit, uses the same formula about the photograph of the applicant, and "CHEUNG EXHIBIT 1" is obviously of the same man. It is to be observed that the applicant did not choose to give or call evidence to the effect that he was not the Kin man Law depicted in the two photographs.

40. Apart from the certifications at the end of both affidavits (immediately before the exhibited photographs) by the US magistrate, the two affidavits are among the documents, all tied together and sealed, which have been certified by Mr. Rex L. Young, Deputy Director of the Office of International Affairs, Criminal Division, US Department of Justice by his certificate dated 5th January 1990. That certificate states that among the documents his certificate covers are:

41. If any authority were needed for the proposition that the convenience of photographs can be used to prove identification in extradition cases, it can be found, for example, in the decision of the Divisional Court in Paul Bradshar dated 28th February 1984 (unreported, transcript No. CO/301/83) where, Goff, L. J. (as he then was) said at p.9 of the transcript:

42. In our judgment there can be no real doubt that there was ample prima facie evidence, unchallenged as it was, to justify the magistrate's finding we have set out above. The applicant's identity was very clearly established by documents duly authenticated in accordance with the provisions of Schedule 1 to the 1989 Act, read with the requirements of the Treaty.

43. There is nothing whatever in the point that the papers refer to the applicant's name in an unorthodox order: Kin Man Law.

44. The final ground of appeal is that the judge erred in law in finding that the magistrate had sufficient admissible evidence before him to justify the committal for extradition of the applicant in respect of the conspiracy offence which is Crime l in the Governor's first order to proceed.

45. We think it is convenient here to set out precisely how that Crime is worded in the order:

                "Crime 1:

46. The evidence, if true, indicated a conspiracy involving the applicant, the 6 named men and women, Wong Kwong Kit and the two accomplices who swore affidavits - Yuen and Cheung. Their evidence was to the effect that they had worked for Wong Kwong Kit and, in effect, acted as his representatives in New York in connection with the various heroin shipments he arranged to have smuggled into New York. As his representatives in these various heroin transactions, Yuen and Cneung received the heroin in New York, delivered the heroin to the buyers, and collected the proceeds. Thus, they met and dealt with each of the persons named in the conspiracy charge while concerned with various heroin trafficking activities.

47. I take the facts and circumstances showing the alleged involvement of the applicant in the conspiracy charged in Crime 1 from the very fair and accurate summary of the affidavit evidence which appears in Ms. Palmer's own affidavit (some of this evidence has been previously mentioned) :

48. As Mr. Llewellyn's arguments developed, it was clear that he was not so much contending that there was insufficient evidence of a drugs operation conspiracy, but that there was no evidence whim connected the applicant's activities with any of the 6 persons named in the particulars of Crime 1. He relied on the following which appears in paragraph 28-25, pp. 2673-4 of Archbold, 43rd Edition:

49. It seems to us that the two affiants and Wong Kwong Kit would come within the expression "other persons" as used in the particulars of Crime 1. What the magistrate had to consider was the sufficiency of the evidence and not the way the particulars of a charge happened to be formulated. The particulars of Crime 1 could have been amended to include the three men we have mentioned by their names. The fact that no amendment was made cannot, in our view, affect the validity of the magistrate's decision. There was, we are satisfied, ample prima facie evidence, on the uncontroverted testimony, of the conspiracy averred and of the part the applicant played in it.

50. We reached the conclusion that the magistrate's handling of the extradition proceedings could not be faulted and that the judge was right to refuse the remedy sought from him.

51. It was for these reasons that we dismissed the appeal. We make an order nisi that the applicant shall pay the costs of the appeal.