CHONG BING KEUNG, PETER v. THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND ANOTHER

CACV 343/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 343 OF 1999

(ON APPEAL FROM HCAL 127 OF 1999)

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J U D G M E N T

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Hon Ribeiro JA:

1. On 22 July 1998, pursuant to a request for the surrender of the Appellant received by the Hong Kong Special Administrative Region ("HKSAR") from the United States of America ("USA"), the Chief Executive issued an authority to proceed under Part II of the Fugitive Offenders Ordinance, Cap 503 ("the Ordinance"). The authority to proceed identified the offences for which the Appellant was wanted for prosecution in the United States as conspiracy to murder, conspiracy to commit offences against the law relating to dangerous drugs, arson and criminal intimidation respectively (all these being offences listed in Schedule 1 to the Ordinance).

2. The next day, a warrant for the Appellant's arrest was issued by a magistrate pursuant to section 7(1)(a) of the Ordinance and when, on 25 July 1998, the Appellant entered Hong Kong from Taiwan, he was arrested at the airport.

3. After a hearing, the magistrate made an Order on 2 February 1999 under section 10(6)(b) of the Ordinance committing the Appellant to custody in respect of the four offences mentioned above, to await the Chief Executive's decision as to his surrender to the United States in respect of one or more of those offences.

4. On 13 February 1999, the Appellant made his first application for habeas corpus on grounds which are not material to this appeal. Stock J dismissed that application on 24 February 1999 and his appeal from that decision was dismissed by the Court of Appeal on 5 October 1999.

5. In the meantime, a development had occurred in the United States which formed the basis of the Appellant's second application for habeas corpus, leading to the present Appeal. That development was the judgment of Judge Dorsey, a Judge of the United States District Court for the District of Connecticut, given on 1 September 1999, dismissing an application by the HKSAR for the extradition of one John Cheung ("Cheung") from the United States for trial here. I shall refer to that judgment as "the John Cheung judgment".

6. Judge Dorsey held that certain provisions of a statute of the United States Congress, namely, Title 18, Chapter 209, §§3181 and 3184, precluded the extradition of Cheung to the HKSAR since they required treaties for extradition to be concluded only as between the United States and a "foreign government" which he construed to mean the "government of a foreign country" (which he apparently equated with the government of a sovereign state) . This statutory requirement, Judge Dorsey held, was not satisfied in the case of the HKSAR since the government of the Region is not a sovereign government but, as he put it, has only a "sub-sovereign status" (at p 4).

7. In consequence, Judge Dorsey accepted Cheung's argument which was to the following effect: "Because HKSAR is not a foreign country, a treaty with the government of the HKSAR does not confer jurisdiction to extradite petitioner [i.e., Cheung] under the terms of §3184" (at p 3).

8. On 14 September 1999, the United States Government filed an appeal against the John Cheung judgment and we were informed by counsel that such appeal is due to be heard on 1 March 2000.

9. On the basis of the John Cheung judgment, the Appellant made his second application for a writ of habeas corpus on 12 October 1999, contending that the magistrate lacked jurisdiction to make his order of committal. This came on for hearing inter partes on 26 October 1999, once more before Stock J and, on the same day, his application was dismissed. The Appellant now appeals from such dismissal.

10. To appreciate the argument deployed on the Appellant's behalf (by Mr Anthony Scrivener QC appearing with Mr Philip Dykes SC and Miss Annie Fung), it is necessary first to consider the provisions of the Ordinance and the Order made thereunder which, on their face, establish the jurisdiction and procedure for extradition between the HKSAR and the USA.

The genesis of the relevant international agreement

11. The Hong Kong statutory provisions have always operated only in cases where relevant extradition treaties have been in place. As the recent history of such international agreements has been eventful, it may be helpful to set it out, with particular reference to the treaty involving the USA, as follows.

12. Prior to 25 April 1997, when the current Ordinance came into force, the statutory basis for extradition between Hong Kong and the United States was a United Kingdom Order in Council. The position, dating back to 1972, is succinctly summarised in the judgment of Deputy Judge Hartmann (as he then was) in Chen Chong Gui v Senior Superintendent of Lai Chi Kok Reception Centre [1997] 3 HKC 210 at 217, as follows:-

"On 8 June 1972 a treaty was concluded between the Government of the United Kingdom and the Government of the United States of America for the reciprocal extradition of offenders. On 21 October 1976 the treaty was ratified and by Order in Council of that same year was brought into operation [United States of America (Extradition) Order 1976]. Article 11(a) of the treaty stated that it should apply not only to the United Kingdom and the United States but to those of the United Kingdom's overseas territories in respect of whose international relations it still bore responsibility. Such a territory was Hong Kong and the Order in Council itself (No 2144 of 1976) extended the treaty to this jurisdiction."

13. A few years after that Order in Council came into force, negotiations commenced between the governments of the United Kingdom and the People's Republic of China ("PRC") concerning the future of Hong Kong, leading to publication of the Sino-British Joint Declaration in 1984 ("the Joint Declaration"). As Stock J has pointed out, the two sovereign powers specifically agreed in the Joint Declaration that after resumption of sovereignty over Hong Kong by the PRC, the HKSAR would be authorized to deal with appropriate international agreements, as follows:-

"...... The Hong Kong Special Administrative Region may on its own using the name 'Hong Kong, China' maintain and develop relations and conclude and implement agreements with other states, regions and international organizations in the appropriate fields, including the economic, trade, financial and monetary, shipping, communications, touristic, cultural and sporting fields.

...... The application to the Hong Kong Special Administrative Region of international agreements to which the People's Republic of China is or becomes a party shall be decided by the Central People's Government, in accordance with the circumstances and needs of the Hong Kong Special Administrative Region, and after seeking the views of the Hong Kong Special Administrative Region Government. International agreements to which the People's Republic of China is not a party but which are implemented in Hong Kong may remain implemented in the Hong Kong Special Administrative Region. The Central People's Government shall, as necessary, authorize or assist the Hong Kong Special Administrative Region Government to make appropriate arrangements for the application to the Hong Kong Special Administrative Region of other relevant international agreements." (Annex 1, §XI, Joint Declaration).

14. The Sino-British Joint Liaison Group, set up by Annex II of the Joint Declaration, was expressly charged (by §4(b) of that Annex) with considering :-

" ....... action to be taken by the two Governments to ensure the continued application of international rights and obligations affecting Hong Kong."

15. On 4 April 1990, the National People's Congress of the PRC adopted and promulgated the Basic Law of the HKSAR as the Region's constitution. By Articles 8 and 18, it preserved in force in the HKSAR, inter alia the laws previously in force in Hong Kong, including ordinances and subsidiary legislation, subject to amendment by the HKSAR legislature. The Chapter on External Affairs in the Basic Law includes Articles 151 and 153 which essentially reproduce the extracts from Annex 1, §XI of the Joint Declaration set out above.

16. In line with the developments mentioned above, and with the support and authority of the United Kingdom government, the Hong Kong government proceeded to negotiate bilateral agreements with other governments, including the government of the United States, to replace arrangements for Hong Kong that had been put in place under the aegis of international agreements entered into by the United Kingdom. It seems clear that it was part of the policy of the USA that it should maintain and develop international agreements with Hong Kong after the anticipated transfer of sovereignty. Thus, as appears from Judge Dorsey's judgment (at p 5), in 1992, the United States Congress passed the Hong Kong Policy Act 1992, 22 USC §§5701-32 "in anticipation of the transfer of Hong Kong sovereignty to the PRC", showing that it was the intention of Congress that :-

"the United States should continue to fulfill its obligations to Hong Kong under international agreement, so long as Hong Kong reciprocates, regardless of whether the People's Republic of China is a party to the particular international agreement, unless and until such obligations are modified or terminated in accordance with law." (22 USC §5712(2))

On 20 December 1996, an extradition agreement, known as the agreement for the Surrender of Fugitive Offenders ("the Agreement") was signed in Hong Kong between the United States Government and the Government of Hong Kong (acting with the authority of the United Kingdom Government).

17. In the final run up to the transfer of sovereignty, diplomatic notes were exchanged between the governments of the PRC and the USA on 31 March 1997 and 23 May 1997 respectively, mutually confirming that the Agreement would continue to apply.

18. It was against this diplomatic background (and after sovereignty over Hong Kong had been resumed by the People's Republic of China on 1 July 1997) that the United States Senate ratified the Agreement on 23 October 1997, bringing it into effect on 28 July 1998.

The provisions of the Ordinance

19. As I have indicated above, the Ordinance in its present form initially came into force on 25 April 1997. Its scheme is to lay down jurisdictional and procedural rules pursuant to which persons may be extradited to or from the HKSAR. However, it does not automatically operate in relation to any particular foreign country or place. Before the Ordinance applies, the Chief Executive in Council must promulgate an Order triggering its operation in relation to the specified place in accordance with section 3(1), as follows:-

"(1) Subject to subsection (9), the Chief Executive in Council may, in relation to any arrangements for the surrender of fugitive offenders, by order-

(a) reciting or embodying the terms of the arrangements;

(b) .......

direct that the procedures in this Ordinance shall apply as between Hong Kong and the place outside Hong Kong to which the arrangements relate, subject to the limitations, restrictions, exceptions and qualifications, if any, contained in the order."

One may note in passing that such an Order must be laid on the table of the Legislative Council and is subject to repeal by it (section 3(2)-(7)). Moreover, section 3(9) provides that the Chief Executive in Council shall not make an Order applying the Ordinance to the foreign place :-

"unless the arrangements for the surrender of fugitive offenders to which the order relates are substantially in conformity with the provisions of this Ordinance."

However, by section 3(12), the Ordinance provides that:-

"A copy of an order under subsection (1) shall be conclusive evidence that-

(a) the arrangements for the surrender of fugitive offenders to which the order relates are substantially in conformity with the provisions of this Ordinance; and

(b) the procedures in this Ordinance apply in the case of any place outside Hong Kong to which the order relates."

Section 3(14) authorizes the Chief Executive to deal with changes to extradition arrangements as follows:-

"Where any arrangements for the surrender of fugitive offenders cease to relate to, or become related to, a place outside Hong Kong, the Chief Executive may, by notice in the Gazette, amend the order under subsection (1) which relates to those arrangements to specify-

(a) that those arrangements have ceased to relate to, or have become related to, as the case may be, that place; and

(b) the date on which the event referred to in paragraph (a) occurred."

The effect of section 3 is therefore that the Ordinance makes itself applicable as between the HKSAR and any particular place outside the HKSAR only if the Chief Executive in Council makes an Order (which takes effect as subsidiary legislation) directing that it should so apply, subject to such limitations, restrictions, exceptions or qualifications as may be set out in the Order. Since all Orders made must recite or embody the terms of the relevant extradition arrangement, the committing magistrate (or anyone else inspecting the published Laws of Hong Kong) is informed as to the places in respect of which the Chief Executive in Council has activated the Ordinance and the terms of each applicable extradition arrangement. By virtue of section 3(12), subject to the arguments put forward by Mr Scrivener and dealt with below, a copy of an Order made under section 3 is conclusive evidence that the Ordinance applies in respect of the place named in the Order.

20. Where an Order has been made under section 3 and remains in force, the arrangements for the surrender of fugitive offenders which are the subject of such Order are termed "prescribed arrangements" and the place to which a person may be surrendered pursuant to such arrangements is termed the "prescribed place".

21. In this context, section 4 of the Ordinance confers the jurisdiction to extradite, as follows :-

"A person in Hong Kong who is wanted in a prescribed place for prosecution, or for the imposition or enforcement of a sentence, in respect of a relevant offence against the law of that place may be arrested and surrendered to that place in accordance with the provisions of this Ordinance."

22. Section 5 places restrictions on surrender including cases where the offence is of a political character, where the request is made on account of a person's race, religion, nationality or political opinions, and so on.

23. Sections 6 to 16 then prescribe the various procedural steps (duly followed in the present case) which may be summarised as follows. First, there must be a request for surrender from a diplomatic, consular or other person approved and recognized by the appropriate PRC Foreign Ministry authorities [s 6(1), and Cap. 1, Sch. 8]. Such recognition is established conclusively by certificate from such authority [s 6(3)]. On receipt of such a request, the Chief Executive has a discretion to issue an "authority to proceed" as occurred in the present case [s 6(2)]. This authorizes a magistrate to issue a warrant for arrest of the person in question and gives various ancillary powers to the executing officer [ss 7-9]. Upon arrest, a person must be brought before a magistrate as soon as possible to deal with the remand of the arrested person either in custody or on bail [s 10].

24. The magistrate's role and duties at the committal hearing are dealt with by section 10(6)(b) as follows :-

"Where ....... an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied-

(i) that the offence to which the authority relates is a relevant offence;

(ii) that the supporting documents in relation to the offence-

(A) have been produced; and

(B) are duly authenticated;

(iii) where the person is wanted for prosecution in respect of the offence, 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; .......

the court shall (unless the person's committal is prohibited by any other provision of this Ordinance) by order commit him to custody-

(i) to await the Chief Executive decision as to his surrender to the prescribed place by which the request for surrender concerned was made; and

(ii) if the Chief Executive decides that he shall be surrendered to that place, to await such surrender."

25. By section 12, a person who is committed under section 10 is expressly to be informed of his right to apply for habeas corpus, with ancillary provision made, for example, for additional evidence to be receivable by the Court of First Instance on the habeas corpus application if such evidence is "relevant to the exercise of its jurisdiction under section 5" ( which relates to the restrictions on committal).

26. It is clear from section 13 that even where the person is committed under section 10 and habeas corpus is finally refused, the Chief Executive retains a discretion as to whether to surrender him to the prescribed place and if so, to decide whether he should be surrendered on all or only on one or some of the offences in respect of which the request was made.

The Fugitive Offenders (United States of America) Order ("The Order")

27. Pursuant to section 3 of the Ordinance, on 21 January 1998, the Chief Executive made the abovementioned Order thereby directing the Ordinance to apply as between the HKSAR and the USA subject to the terms of the Agreement which, as I have stated above, was entered into between the Hong Kong Government and the Government of the USA on 20 December 1996. By making the Order, the Agreement became incorporated as part of the domestic law of the HKSAR, treaties not being self-executing under our law.

28. By Article 1 of the Agreement, the parties :-

"agree to surrender to each other, subject to the provisions laid down in this Agreement any person who is found in the jurisdiction of the requested Party and who is wanted by the requesting Party for prosecution or for the imposition or enforcement of a sentence in respect of [a relevant] offence ......."

29. The remaining Articles need not detain us. They include the specification of extraditable offences, reservations as to the surrender of nationals in certain cases, as well as reservations in respect of capital offences, political offences, and so forth.

The Appellant's argument

30. The fundamental argument advanced by Mr Scrivener may be summarised in the following propositions:-

(1) The evidence clearly establishes that under United States law, limitations (in Title 18 §§ 3181 and 3184) have been placed by Congress on the power of the United States executive (with the advice and consent of the United States Senate) to conclude extradition treaties.

(2) Judge Dorsey, in the John Cheung judgment, has authoritatively established that such limitations apply so as to preclude such treaties being entered into between the USA and entities other than governments of sovereign states.

(3) That judgment also establishes that the Agreement (relied upon for the extradition of both Cheung from the USA and the Appellant in the present case to the USA) is a treaty purportedly entered into by the US Government with the HKSAR which is an entity having only a "sub-sovereign" status.

(4) It follows that as a matter of United States law, as declared by Judge Dorsey, the US Government was deprived by an Act of Congress of capacity to enter into that Agreement so that it must be treated as a nullity. It also follows that the USA cannot now honour its commitments thereunder.

(5) The magistrate did not have the benefit of the John Cheung judgment since it was delivered after his decision to commit. However, Stock J had a duty to take this fresh evidence into account and ought to have been compelled by it to conclude that the Agreement had effectively been abrogated or frustrated by the Act of Congress.

(6) In consequence, he should have recognized that the substratum for the USA's request for the Appellant's surrender, the Chief Executive's authority to proceed and the magistrate's order of committal had disappeared since they were all premised on the continuing validity of the Agreement embodied in the Order.

(7) Moreover, he should have concluded that without a valid international agreement, concepts used by the Ordinance (such as "the prescribed place") were deprived of meaning and that reciprocity in the arrangement as well as various statutory safeguards (such as those prescribed by section 5) could no longer be achieved, rendering the whole extradition scheme with the USA unworkable.

(8) Accordingly, Stock J should have held that there was in substance no treaty in place between the HKSAR and the USA, consequently, that the magistrate lacked jurisdiction to order the Appellant's committal and that habeas corpus should accordingly have issued.

Conclusions

31. In my judgment, the Appellant's argument faces at least three insurmountable hurdles and cannot be sustained.

32. In the first place, it involves the Appellant inviting the court to rule that the international treaty constituted by the Agreement has effectively been abrogated by the USA as a result of Congress rendering it incapable of performing its obligations thereunder. This is an invitation which the court must decline as it is clearly established that the municipal courts of Hong Kong are not competent to adjudicate upon treaty obligations on the plane of international law.

33. This principle reflects the adoption in Hong Kong, as part of the common law, of the constitutional position which has long been taken by the English Courts. In J H Rayner (Mincing Lane) Limited v Department of Trade and Industry and Others and Related Appeals [1990] 2 AC 418, Lord Templeman formulated the principle as follows:-

"A treaty is a contract between the governments of two or more sovereign states. International law regulates the relations between sovereign states and determines the validity, the interpretation and the enforcement of treaties. A treaty to which Her Majesty's Government is a party does not alter the laws of the United Kingdom. A treaty may be incorporated into and alter the laws of the United Kingdom by means of legislation. Except to the extent that a treaty becomes incorporated into the laws of the United Kingdom by statute, the courts of the United Kingdom have no power to enforce treaty rights and obligations at the behest of a sovereign government or at the behest of a private individual." (at p 476-7)

In the same case, Lord Oliver explained the principle as follows (at pp 499-500):-

"It is axiomatic that municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising o nut of transactions entered into by independent sovereign states between themselves on the plane of international law. That was firmly established by this House in Cook v. Sprigg [1899] A.C. 572, 578, and was succinctly and convincingly expressed in the opinion of the Privy Council delivered by Lord Kingsdown in Secretary of State in Council of India v. Kamachee Boye Sahaba (1859) 13 Moo. P.C.C. 22, 75:

'The transactions of independent states between each other are governed by other laws than those which municipal courts administer: such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make.'

On the domestic plane, the power of the Crown to conclude treaties with other sovereign states is an exercise of the Royal Prerogative, the validity of which cannot be challenged in municipal law: see Blackburn v. Attorney-General [1971] 1 W.L.R. 1037. The Sovereign acts

'throughout the making of the treaty and in relation to each and every of its stipulations in her sovereign character, and by her own inherent authority; and, as in making the treaty, so in performing the treaty, she is beyond the control of municipal law, and her acts are not to be examined in her own courts:' Rustomjee v. The Queen (1876) 2 Q.B.D. 69, 74, per Lord Coleridge C.J."

That position has been maintained by Article 19 of the Basic Law, in the following terms :-

" ....... The courts of the Hong Kong Special Administrative Region shall have jurisdiction over all cases in the Region, except that the restrictions on their jurisdiction imposed by the legal system and principles previously in force in Hong Kong shall be maintained.

The courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as defence and foreign affairs. The courts of the Region shall obtain a certificate from the Chief Executive on questions of fact concerning acts of state such as defence and foreign affairs whenever such questions arise in the adjudication of cases. This certificate shall be binding on the courts. Before issuing such a certificate, the Chief Executive shall obtain a certifying document from the Central People's Government."

A recent example of this approach being adopted in Hong Kong may be found in Yang Chan Chun Robert v Government of the United States of America [1997] 3 HKC 338.

34. The second insuperable hurdle faced by the Appellant is posed by section 3(12)(b) of the Ordinance. This states in terms that a copy of an Order made under section 3(1) shall be "conclusive evidence" that "the procedures in this Ordinance apply in the case of any place outside Hong Kong to which the order relates." This is modelled on section 4(3) of the Extradition Act 1989 in the United Kingdom which makes an Order in Council directing that Act to apply in a particular context "conclusive evidence" of its application.

35. In my view, section 3(12)(b) means what it says. As we have seen, the Order involves the Chief Executive's direction that the Ordinance should apply to a particular place in respect of which the international arrangement contained in the Order was made. This confers the necessary jurisdiction for extradition orders in relation to that place. Production of a true copy of the Order containing the Chief Executive's direction conclusively precludes any argument that, for some extraneous reason, the Ordinance does not apply.

36. Mr Scrivener submitted that this conclusive evidence provision must give way to the principle in Anisminic Limited v The Foreign Compensation Commission [1969] 2 AC 147. He relied in particular on Lord Diplock's formulation of that principle in O'Reilly v Mackman [1983] 2 AC 237 at 278 as follows:-

" ....... the Foreign Compensation Commission, [was] a statutory body established under the Foreign Compensation Act 1950, which Act provided by section 4(4) an express provision: 'The determination by the commission of any application made to them under this Act shall not be called in question in any court of law.' It was this provision that provided the occasion for the landmark decision of this House in Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 A.C. 147, and particularly the leading speech of Lord Reid, which has liberated English public law from the fetters that the courts had theretofore imposed upon themselves so far as determinations of inferior courts and statutory tribunals were concerned, by drawing esoteric distinctions between errors of law committed by such tribunals that went to their jurisdiction, and errors of law committed by them within their jurisdiction. The breakthrough that the Anisminic case made was the recognition by the majority of this House that if a tribunal whose jurisdiction was limited by statute or subordinate legislation mistook the law applicable to the facts as it had found them, it must have asked itself the wrong question, i.e., one into which it was not empowered to inquire and so had no jurisdiction to determine. Its purported 'determination,' not being a 'determination' within the meaning of the empowering legislation, was accordingly a nullity."

I confess to being unable to see how this principle can be said to operate in the present context. The conclusive evidence provision is not a measure seeking to oust the jurisdiction of the courts to review judicially an inferior tribunal. On the contrary, the Ordinance, in conjunction with the section 3 Orders made thereunder, sets up a comprehensive machinery for extradition cases including machinery for applications to be made to the High Court to review the legality of a committing magistrate's decision by way of habeas corpus. It has also been held that judicial review may be available in appropriate cases to challenge a decision of the Chief Executive, in addition to relief by way of habeas corpus: e.g., R v Governor of Pentonville Prison, ex p Sinclair [1991] 2 AC 64 at 81 and Re Thongchai Sanguandikul and the Government of the United States of America (No 2) (1993) 4 HKPLR 768. Section 3(12) is part of the overall scheme and provides legislative machinery enabling the court to ascertain conclusively the current status, from the HKSAR's point of view, of an extradition treaty. In so doing, it undoubtedly precludes the court from contradicting the executive's determination of the status of the treaty as promulgated in the Order. However, as discussed above, such a limitation on the court's power is in line with the constitutional position established both before and after 1997. Section 3(12) is accordingly, in my view, not in any way affected by the Anisminic principle.

37. In any event, even if any such argument based on Anisminic were potentially applicable, it must rest (like all the other arguments raised by Mr Scrivener) on the premise that the Agreement has been abrogated, so as to deprive the Chief Executive of a lawful basis for making an Order under section 3. It follows that it is an argument based on the rejected premise that the validity of the Agreement is justiciable in our municipal courts and so must equally fail on that basis.

38. The third hurdle that the argument faces is the well-established rule that in extradition proceedings, evidence of foreign law is only admissible in respect of the specific and narrow issues expressly made relevant by the Ordinance itself or by the international arrangement in question.

39. Thus, for instance, in In re Nielsen [1984] 1 AC 606, the House of Lords made it clear that the English court was not concerned with evidence as to the extent to which under the foreign law (in that case the law of Denmark), the extraditable offences were or were not substantially similar in concept to the scheduled offences in English law. Any lack of reciprocity resulting from any such lack of conceptual similarity was purely a matter for the Secretary of State and not for the courts. Lord Diplock put it as follows :-

"The Acts of 1870 to 1932 do not themselves provide that an arrangement made with a foreign state under section 2 of the Act of 1870 for the surrender by the United Kingdom to that foreign state of fugitive criminals accused or convicted of criminal conduct committed within its jurisdiction must provide for reciprocity of surrender by the foreign state to the United Kingdom of persons accused or convicted of similar criminal conduct committed in this country. In practice, extradition treaties do provide for a substantial degree of reciprocity, but the surrender by a foreign state of a fugitive criminal from the United Kingdom who is found in the territory of that foreign state is not governed by English law at all, but solely by the law of the foreign state that is party to the treaty. If the foreign state fails to comply with its treaty obligations as respects surrender this is a matter for the Secretary of State; it has nothing to do with the English magistrate." ( at p 617)

40. Foreign law is admissible in connection with matters made expressly relevant by the Ordinance, for example, as to whether for the purposes of section 5, the offence in question is under the foreign law political in nature, whether it carries the death penalty, etc. Such evidence may also be admissible in respect of what Lord Diplock called "exceptional accusation cases", which he explained as follows:-

"Whether in an accusation case the police magistrate has any jurisdiction to make findings as to the substantive criminal law of the foreign state by which the requisition for surrender of a fugitive criminal is made will depend upon the terms of the arrangement made in the extradition treaty with that state. Some treaties may contain provisions that limit surrender to persons accused of conduct that constitutes a crime of a particular kind (for example, one that attracts specified minimum penalties) in both England and the foreign state. Accusation cases arising under extradition treaties that contain this kind of limitation I shall call 'exceptional accusation cases'. In an exceptional accusation case it will be necessary for the police magistrate to hear expert evidence of the substantive criminal law of that foreign state and make his own findings of fact about it." (at p 621)

However, as Lord Diplock stated in Nielsen, beyond such limits, the magistrate lacks jurisdiction to entertain evidence of foreign law:-

"In my opinion, therefore, there being no claim that any political offence was involved and no dispute as to the authenticity of the Danish warrant for Nielsen's arrest, the magistrate in the instant case, which was not an exceptional accusation case, had no jurisdiction to enter upon any question of Danish criminal law. The evidence of Danish law, adduced though it was on behalf of the Danish Government in accordance with the long prevailing practice, was irrelevant. It should not have been admitted by the magistrate." (at p 625)

41. The limits of such evidence were also stressed by Lord Ackner in R v Governor of Pentonville Prison, ex p Sinclair [1991] 2 AC 64 at 91 and by the Supreme Court of Canada in United States of America v McVey II 77 C.C.C. (3d) 1 at 19-20, per La Forest J. Hong Kong courts have also consistently followed this approach: see, e.g., Chen Chong Gui v Senior Superintendent of Lai Chi Kok Reception Centre [1997] 3 HKC 210 and In re Paul Kan [1993] 2 HKLR 342 at 348-9.

42. In my judgment, the scheme of the Ordinance precluding attempts to challenge the validity of extradition treaties in the Courts by the introduction of evidence of foreign law is not only constitutionally essential, but a matter of practical common sense. The state of foreign relations at any particular time between the HKSAR and some other state or international entity may be subject to ambiguity, inconsistency and on-going diplomatic discussions. It is not conducive to legal scrutiny by the courts. This case presents a good illustration of the difficulties.

43. Even on the limited evidence which has been filed, it is apparent that the picture is, to say the least, equivocal and uncertain. At the moment, Judge Dorsey's decision is in place but one does not know what the decision of the US Court of Appeals for the 2nd Circuit will be after the hearing due to take place on 1 March. Even when that decision is known, one presumes that there remains the possibility of a further appeal to the US Supreme Court. What if, pending a decision binding on all Federal Districts, a conflicting judgment should be delivered in a different District? What is the Hong Kong judge or magistrate to make of the position then? The United States Government has filed evidence in the present case stating that its own position is that, notwithstanding Judge Dorsey's judgment (which is under appeal and which, we are told, is strictly binding only in Connecticut) the Agreement continues in full force and effect. Is the Hong Kong court to give this weight?

44. Given the equivocality of such considerations, it is in my view good sense and good law that the Hong Kong courts must regard the Orders promulgated under section 3 as providing the conclusive basis for determining whether a treaty binding on the HKSAR remains in force and whether the Ordinance applies to the request for extradition in question. Whether developments have in fact progressed to a point involving abrogation of the treaty by the other contracting party is a question to be determined by the Chief Executive in accordance with Article 19 of the Basic Law. If he concludes that this has occurred, section 3(14) provides a ready procedure for disapplying the Ordinance in respect of requests by the other contracting party. Indeed, the Chief Executive can, and in such circumstances no doubt would, simply refuse to surrender the person in question, where, for instance, there has not been time to disapply the Ordinance and the courts have proceeded on the basis that they are bound in law to treat the treaty as remaining in full force and effect. As stated above, the ultimate decision on whether or not to surrender a person remains in every case within the discretion of the Chief Executive, providing a safeguard enabling the executive to respond to material developments in foreign relations.

45. For the reasons given above, I have come to the conclusion that Stock J's decision to refuse habeas corpus was entirely correct and that the appeal must be dismissed.

Hon Rogers JA:

46. I agree with the judgments of Ribeiro JA and Godfrey VP and have nothing further to add.

Hon Godfrey VP:

47. I have had the advantage of reading in draft the judgment of Ribeiro JA. I agree with it, and for the reasons he gives, I too would dismiss this appeal.

48. I would only add this; that, as I see it, what this court has been asked to do is, in effect, to declare that the government of the United States of America is not bound by an international treaty obligation into which it has purported to enter. I cannot conceive that it lies within the jurisdiction of a municipal court of the Hong Kong Special Administrative Region to do this. Not even a decision of the Supreme Court of the United States of America to the effect stated would justify the assumption of such jurisdiction by our own local courts. It must be for the executive arm of our government here to consider whether such a treaty obligation does or does not subsist and, if it decides that it does not, to act (or refuse to act) accordingly.

49. Since Rogers JA also agrees with the judgment of Ribeiro JA (and with my judgment), this court will dismiss the appeal and will order (subject to the provisions of Order 42 rule 5B(6) of the Rules of the High Court) that the costs of the respondent of the appeal be taxed (if not agreed) and paid by the appellant to the respondent.