LUI KIN HONG, JERRY v. ATTORNEY GENERAL

1996, No.MP1598

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H E A D N O T E

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The Governor made a request of the U.S. Government to extradite Lui Kin Hong, and sent authenticated evidence to justify the extradition.

A month later further "evidence" was sent. This was a statement by a murdered man to an I.C.A.C. officer. The certificate from the U.S. Consul-General certified that it was entitled to be received in evidence "for similar purposes by the courts in Hong Kong".

On an application for judicial review:

Held : (i) The maintained stance of the Hong Kong Government that the statement was lawfully sent under the certificate without disclosing to the American Court that it was inadmissible under Hong Kong Law was justiciable.

(ii) Although the Court could not interfere in the American process and the admissibility of any evidence was a matter for the U.S. Court, a declaration could be made as to the admissibility of the statement under Hong Kong Law.

(iii) Such a declaration would notify the U.S. Court as to any ambiguity in the U.S. Consul-General's certificate. What weight should be given, or use made of such a declaration was a matter for the U.S. Court.

1996, No.MP1598

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. This is a most unusual application for judicial review, for two main reasons. First, the applicant is not here, he is at the moment in custody in Boston, and extradition proceedings are to take place tomorrow seeking to extradite him to Hong Kong. The Governor has requested his extradition and his return to Hong Kong to face a number of very serious charges.

2. The first relating to a conspiracy with regard to the acceptance of substantial bribes when employed by the British American Tobacco Company, and nine other charges dealing with accepting money, which totals some $23 million, and accepting loans, which total some $10 million, as an inducement to ensure the sale and supply of cigarettes to a company, one of which was called Giant Island Ltd. which, according to the prosecution, was involved in substantial smuggling operations into China.

3. A director of Giant Island, Chui To Yan, Tommy, was interviewed by an officer of the ICAC in 1994. He gave a lengthy statement implicating this applicant in corruption. It is not necessary in the course of this application to deal with it in any detail. He, unfortunately, is dead. It is accepted that he has been murdered. Trials are to take place in Hong Kong with regard to that and the least I say about that aspect, the better.

4. His statement, which is now that of a dead man, could not in normal circumstances be used in proceedings in Hong Kong against this applicant. It is hearsay. The applicant is not here. He has a flat here and a wife and child and was a Hong Kong resident, it may be he is a Canadian citizen as well, and he is in America. What he was doing there, I know not. He is not on trial here. Therefore, in normal circumstances a person would not have sufficient interest to come to court to seek the court's supervisory power over the government. However, I am prepared to accept that he does have sufficient interest to bring this application by virtue of him being a Hong Kong resident, having assets here, and the fact that he would face charges here.

5. The second unusual feature of this case is that I gave leave last Tuesday, and here we are less than a week later having a full hearing. I am grateful to Mr Bruce Q.C. and his team for their speedy attendance and provision of information to the court, which has been substantial, as one would expect, and not seeking to take any technical point, because normally 56 days would be given to put in affidavits. It is also, I think, some measure of the efficiency and modern approach of the Hong Kong judicial system that it can hear an important matter such as this within days. The administrators are to be congratulated for ensuring that a judge is available at short notice to take this sort of case. It demonstrates that the Hong Kong judicial system is as efficient as any in the world.

6. What has happened here is that the Governor on 8th February made a request to the United States Government to have this applicant extradited. His request was accompanied by a number of documents certified by the U.S. Consul-General which have been duly authenticated and they set out the particulars of the offence and all the evidence. But, for reasons which are not very clear to me, further evidence, namely, the statement of Tommy Chui which has been authenticated by the Governor and by the Magistrate and also certified by the Consul-General of America, was sent out to the United States in April.

7. An extradition hearing is due to be heard tomorrow. For that reason I am giving this "extempore" judgment for which I apologise in advance if it is not grammatically set out, nor deals with all the points. Nor have I been given the opportunity for substantial consideration of important matters, although I have thought about this case over the weekend.

8. The complaint from Mr Huggins Q.C. is that at the extradition proceedings to take place tomorrow, lawyers for the applicant wish to argue that the statement of Tommy Chui is inadmissible because it is hearsay evidence. The problem appears to stem from decisions in America, with which I am not very familiar, but some have been set out, which would indicate that the certificate of the Consul-General in Hong Kong, this being the requesting country, is virtually conclusive that this is evidence admissible in Hong Kong. The certificate certifies that those documents are authenticated "so as to entitle them to be received in evidence for similar purposes by the courts in Hong Kong". Substantial debate has taken place over what the words "similar purposes" means. Does it mean for the purposes of an extradition hearing, or does it mean for the purposes of establishing criminality?

9. The statement of Tommy Chui, who has been killed, is, in my judgment, inadmissible in Hong Kong for the purposes of a criminal trial here. With one small exception, the Attorney-General, representing here the government, accepts that. It is suggested that counsel might put a question about arrest. I disregard that as too fanciful really to be properly considered. In normal circumstances, therefore, this document could not be used by the prosecutors if and when the applicant was prosecuted in Hong Kong. Why then should it be sent to the United States?

10. I have been referred to the law, for which I am grateful to counsel. The extradition order between the countries is the United States of America Extradition Order 1976, and Article 7 provides that the request, which is the Governor's request here, must be accompanied by such evidence as according to the law of the requested party would justify a committal for trial. That is a matter of American law. I am not in a position to embark upon American law. I do not know, therefore, whether or not this is admissible in a trial in America. I have been given authority from the Supreme Court which would indicate that it is not. However, Mr Bruce submits that is neither here nor there. All that has to be shown by authentication is the reception of these documents, and it is a matter for argument in America whether any part of the evidence is admissible.

11. There are therefore a number of difficult problems. First, insofar as extradition is concerned, it is not a trial. It does not seek to establish the guilt or innocence of the person, but merely establishes whether or not the evidence produced is such as to justify extradition, and that would appear to be the same in Hong Kong as it is in the United States. (See for example, Ng Hung Yui v. Government of the U.S.A. (No.2007 of 1992) citingOEN Yin Choy v. Robinson (1988) 858 Federal Reporter U.S. Courts of Appeal (9th Circuit)). Guilt or innocence is established by a trial, therefore Mr Bruce submits it does not matter, because the applicant can still take these points, insofar as admissibility is concerned, at a trial.

12. The real problem I have found in this case is why this document, which in my judgment is inadmissible, was sent to America. It was sent essentially to persuade the judge or magistrate/judge that it is evidence which would justify his extradition. It does appear, therefore, to me unfair that a man who has to face a statement emanating from Hong Kong and appearing on its face to be admissible evidence, might be extradited by virtue of it, yet if he comes back to Hong Kong it cannot be used at his trial. That only needs to be stated to demonstrate that it is unfair. However, I must be careful not to interfere in any shape or form with extradition proceedings in America. I do not have jurisdiction over them. I do not have any jurisdiction to interfere with the American process.

13. Mr Huggins submits that all he seeks is a declaration from the court that this document which has been sent is inadmissible. I have been referred to Reg. v. Governor of Pentonville, ex parte Kirby [1979] 1 WLR 541 at 544 where Croom-Johnson J. said :

"Counsel for the Canadian government submitted that this section meant that evidence taken in Canada and transmitted to the committing magistrate became admissible in the committal proceedings even if it infringed English rules of evidence. In my view this cannot be right. It would mean that in a deposition or an affidavit the most blatant and unconfirmed hearsay would have to be allowed in. It could not be, as was submitted, that it would first be admitted under section 11 and then promptly disregarded by the committing magistrate as having no weight.

What section 11 is dealing with is the way of presenting evidence to the committing court. Since witnesses in proceedings of this type cannot be expected to travel all the way from a foreign country to the place of committal, and documentary evidence of what they would say and exhibit is therefore to be allowed, safeguards have to be imposed to make sure that only authenticated evidence as provided for by section 11 is to be allowed in and not documents or exhibits in any form. This section is dealing with procedure and method but not with admissibility.

The right view of the expression at the end, for example, of section 11(1)(a) that the documents shall be admissible as evidence of the matters stated therein is that this is an enabling provision allowing documents with due authentication to be put before the magistrate so that he may receive them knowing that they are vouched for by the country from which they purport to come, and he may therefore have regard to them for the purposes of the committal proceedings. But it does not mean that anything which is in that document, regardless of whether or not it complies with the ordinary rules of evidence which would be applied in the committing court, shall be considered by the magistrate."

In my judgment, when I examine the words "regardless of whether or not it complies with the ordinary rules of evidence", I do not understand why the American court should not know whether it does comply with the ordinary rules of evidence of Hong Kong. At the moment the certificate of the Consul-General indicates that it is entitled to be received in evidence for "similar purposes". Whether that means for similar purposes of extradition, or similar purposes of criminality, in my judgment does not matter because what is certified is that it is evidence. It is not only receivable, but receivable in evidence at some later time.

14. This is not so. In Hong Kong, such a hearsay statement would be inadmissible in a trial and in extradition proceedings, and whilst I accept that the Consul-General has not been deliberately misinformed, he having no obligation to inquire into these matters, it would appear at the moment that the applicant is caught in an unusual situation. On the one hand he is told there is a certificate and you cannot go behind it in extradition proceedings. On the other hand, he wishes to submit that the certificate cannot mean what it says.

15. Having considered this matter as best I may, and recognising the difficulty of a Hong Kong judge appearing to interfere in extradition process, I do not in any way interfere with it. However, I do consider it my duty that this applicant, albeit facing very serious charges, is entitled to have the extradition process, by which I mean the procedure initiated by the Hong Kong Government, dealt with in a fair manner. At the moment it appears to me to be unfair.

16. Although I accept from Mr Bruce that questions of admissibility are only for the extraditing court to determine in accordance with their law, which I do not know what it is, I consider that the government here are faced with this position. Either they will undertake to me to notify the judge and/or their lawyers in America by tomorrow morning that the document which they have sent is inadmissible in Hong Kong law for the purposes of a trial, or if they do not give me that undertaking, I will make an appropriate declaration so that it is drawn to the attention of the United States court.

17. This does not interfere with the extradition process. What it does is to correct an unusual position that has arisen of the applicant facing extradition and not being permitted, by virtue of the certificate, to go behind it. I am not in any way seeking to blame the Consul-General, nor am I seeking in any way to attribute any bad faith to the government. At the end of the day in these very unusual circumstances which have arisen, as this document was sent out some time after the original request, the only conclusion I can come to, the only inference I can properly draw, is that it was sent out for the purposes of influencing the judge in America.

18. That may be perfectly proper. It may be that the lawyers in America can persuade the judge there that it is admissible in America. If that is so, that is a matter for them and the judge will decide. All I am being asked, in essence, is to isolate a point which is ambiguous in the certificate because, what do the words, "entitled to be received in evidence for similar purposes" mean? All I am being asked is to notify the American authorities of what the position in Hong Kong is. As a judge in Hong Kong I can do that and, of course, I can only limit my judgment to what would occur in Hong Kong.

19. What is justiciable is not the decision of the Governor to extradite, but the maintained stance of the Government that it was lawful for them to send an admittedly inadmissible portion of evidence under the protection of the Consul-General's certificate for consideration by the American Court without disclosing to the American Court that it was inadmissible in Hong Kong as evidence at the applicant's trial.

20. Such action, in my judgment, permits declaratory relief to be given. (See four decisions of the House of Lords - the latest beingR. v. Secretary of State for Employment Exp E.O.C. [1995] 1 AC 1 - set out in a recent decision of mine in Wharf Cable Limited v. The Attorney General and Hong Kong Telephone Company Limited - 25th March 1996.)

21. No undertaking being given, I make a declaration.

(R.A.W. Sears)

22. Judge of the High Court