THE QUEEN v. THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND ANOTHER

______________

___________

JUDGMENT

___________

1. Before I begin my judgment I want to just say two things. The first is this that I acknowledge my indebtedness to counsel for their very careful and learned arguments in this case which, as everybody acknowledges, is not without its difficulty. Secondly, if it ever becomes necessary to correct my judgment where possible I shall amend references in the Weekly Law Reports to the Appeal cases. At the end of my judgment I shall hear counsel as to whether relief of any kind is appropriate in the case, although I have dismissed the applications. That is not to indicate that there is any substantial relief available.

2. There is before me an application for leave to issue a writ of habeas corpus and miscellaneous applications for judicial review on behalf of Lawrence Louis Levy, the applicant. He was committed to prison on the 15th October 1986 on the order of the Magistrate, Mr. Gardiner, to await surrender to the United States in the course of extradition proceedings taken by the government of the United States of America who allege a series of dangerous drugs offences against him committed in the United States.

3. The proceedings before me concern only that part of the extradition proceedings which relate to a drugs offence alleged to have been committed in the United States; known there as Continuing Criminal Enterprise. There is no exactly equivalent offence in the law of Hong Kong.

4. The history of the proceedings is that the United States Consul-General here in Hong Kong made a requisition to the Acting Governor for the surrender of the applicant. He is charged in the District Court of Colorado with the drugs offences listed in the requisition.

5. On the 5th June 1986, a provisional warrant for the applicant's arrest was issued. He was arrested consequently on the 6th June, 1986 and on the 21st July the Acting Governor made an Order to Proceed in accordance with Section 7 of the Extradition Act, 1970, directed to the Chief Magistrate in Hong Kong listing 17 Hong Kong offences for his consideration. The Chief Magistrate heard the case and gave his decision on the 15th October and made his Order the same day. Annexed to this Order is a list of both Hong Kong and United States offences upon which the Magistrate committed him on the evidence tendered.

6. As I have indicated the applicant seeks various relief. First,leave to issue a writ of habeas corpus; second, an order of certiorari to quash the Magistrate's judgment and Order of the 15th of October; third, he seeks a Declaration that the offence of Continuing Criminal Enterprise alleged against the applicant is not an extradition crime proved by the facts upon which the surrender is grounded; and fourth, he seeks an Order for certiorari to quash those parts of the Acting Governor's Order to Proceed on Crimes 13 to 17 expressed to be derived from Count 36 - that is the Continuing Criminal Enterprise in the United States' Indictment.

7. Leave to apply for certiorari and declarations was granted by Hooper J. on the 22nd December 1986 with consequential orders. The statement under Order 53, rule 3(2) was amended with my leave in the course of these proceedings. It is now a re-re-amended order with necessary consequential orders with the Attorney General's consent. He represents all necessary parties between whom, in these particular proceedings, there is no conflict.

8. With the consent of the parties all these applications were heard together. There is overlapping of the relief sought and I am satisfied that there were good procedural and substantive grounds for the variety of the relief sought about which it is unnecessary for me to comment.

9. The case advanced by the government of the United States against the applicant is that between about 1980 and the 1st of January, 1983, he was trafficking, importing, possessing and conspiring with others to possess and traffic in cocaine. In relation to the offence of Continuing Criminal Enterprise, the Acting Governor specified 5 Hong Kong offences in his Order to Proceed. Those were for the Magistrate's consideration. They were as follows :

10. In respect of those alleged offences in the Order to Proceed evidence was adduced and relied upon by the Magistrate in his decision that there was a prima facie case. The nature of the evidence was that there were not only several substantive offences, which he had committed, but also that the applicant conspired with and acted with more than five others; that he was in a position of management in the organization which imported, stored and distributed cocaine wholesale; that part of that organization was to purchase businesses through which to launder the money; and that he enriched himself substantially or at least had available substantial funds from this activity. One witness deposed to him asking him to hold six million dollars U.S. If this evidence were accepted in due course by any court on a trial, it is a most serious case of importation and distribution of the dangerous drug. If my memory serves me, I think probably the second most serious case of its kind that I have met in 30 years.

11. The learned Magistrate considered the evidence, heard submissions and in a carefully reasoned judgment he committed the applicant on these crimes.

12. The Hong Kong Law of Extradition as in England and Wales is exclusively the creature of statute. It is governed by the Extradition Act 1970 and later supplemental and amending Acts. For present purposes first, by the Extradition Act of 1873, which made foreign depositions admissible, and included a Consul-General as a diplomatic representative for the purposes of the Acts. Second, the Extradition Act of 1932 which included any enactment for the time being in force relating to dangerous drugs in the list of crimes in the First Schedule of the Principal Act. And finally, the Misuse of Drugs Act 1971 which added to that list conspiracy to commit any offence against any such enactment.

13. Section 2 of the 1870 Act provides that where an arrangement has been made with any foreign state with respect to the surrender to such state of any fugitive criminal, Her Majesty may, by Order in Council, direct that the 1870 Act shall apply in the case of such foreign state. An arrangement was made with the United States in a treaty between the United Kingdom and the United States government on the 8th June, 1972, and by an Order in Council applicable to Hong Kong on the 21st January, 1977, the Extradition Acts 1870 to 1935 were made applicable in the case of the United States in accordance with the Treaty. The terms of the Treaty are incorporated in the Order in Council.

14. By Section 5 of the Principal Act, therefore, it applies in the case of the United States subject to any limitations, restrictions, conditions, exceptions and qualifications in the Order in Council.

15. Under Section 2 of the Extradition (Hong Kong) Ordinance, Chapter 236, the powers of, and the acts required to be done by, the Secretary of State in the Extradition Acts may be exercised by the Governor in Hong Kong, and under Section 3 any Magistrate in Hong Kong may exercise the powers of the Police Magistrate described in the Act. This was given effect as if incorporated in the 1970 Act by Order in Council of the 20th March, 1977, in pursuance of Section 18 of the Principal Act.

16. Under the Statutory Provisions the following steps must be taken in extradition proceedings in Hong Kong. First a warrant must have been issued (so far as this case is concerned in the United States) accusing the fugitive offender of an extradition crime; (Section 10 of the Principal Act). Secondly, the fugitive criminal must be in or suspected of being in Hong Kong; (Section 17(1) of the Act). Third, a requisition for the surrender of the fugitive criminal must have been made by the United States Consul-General to the Governor; (Section 17(1) of the Act), and that requisition must comply with Article VII of the Treaty.

17. That means, so far as this case is concerned, the requisition must be accompanied by a description of the person sought enough to establish his identity; a statement of the facts of the offence for which the extradition is requested; and the text of the law defining the offence prescribing the maximum punishment for that offence and imposing any time limit on the institution of proceedings for it. Also there must be a statement that the offence is a felony in United States law. In the case of an accused person, the request, must also be accompanied by a warrant of arrest issued by a judge, magistrate or other competent authority in the requesting state, 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.

18. Armed with the information supplied in the requisition, the Governor (Acting Governor in this case) may issue an Order to Proceed by signifying to the Magistrate that the requisition has been made and require him to issue his warrant for the arrest of the fugitive criminal; (Section 7 of the Act). The Governor has a general discretion whether or not to make the Order to proceed, and in particular, (not relevant in any way to this case) the Governor may refuse such an order if the offences are of a political character. If he issues his Order to Proceed, he may, and in practice he does, use the form in the Second Schedule to the Act in which he specifies the offences.

19. The Governor must describe in that form the crime in terms of a crime, according to the laws of Hong Kong, as being the crime for which the Magistrate is required to issue his warrant for the apprehension of the fugitive criminal. See In re Nielsen [1984] ¹ AC 606 at 619 A to C.

20. On receipt of the Order to Proceed the Magistrate may issue a warrant for the apprehension of the fugitive criminal on such evidence, as would in his opinion, justify the issue if the crime had been committed in Hong Kong. When the prisoner is brought before the Magistrate he hears the case in the same manner and having the same jurisdiction and powers as near as maybe as if the prisoner were brought before him charged with an indictable crime committed in Hong Kong, and he shall receive any evidence which may be tendered to show that the crime of which the prisoner is accused is an offence of a political character, (not this case) or is not an extradition crime, which is in issue in this case; (Section 9 of the Act).

21. The Magistrate then acts under Section 10 of the Act. I refer to that section without reading out is provisions.* If he issues his warrant and commits

________

*Section 10 of Extradition Act 1870 :-

him to prison as a fugitive criminal on the evidence that he has heard, then he sends the Secretary of State in England, but the Governor in Hong Kong, a certificate of the committal and he may annexe such report upon the case as he may think fit; also under Section 10. He has to inform the criminal that he will not be surrendered until after 15 days have elapsed since he has a right to apply for habeas corpus. After the expiration of those 15 days, if a writ of Habeas Corpus is not issued then the Governor may by warrant order the fugitive criminal to be surrendered to the requesting state.

22. An extradition crime (the definition of which is fundamental to these proceedings) is defined in Section 26 of the Act. This relates to Hong Kong. It provides that an extradition crime is a crime which if committed in Hong Kong would be a crime described in the First Schedule of the Act. The Magistrate, having heard the evidence, and having found that the evidence justified the committal of the prisoner on crimes 13 to 17, and that they were extradition crimes had to rely upon that definition and the Schedule to the Act as amended. The Schedule describes the offence or crime as offences against any enactment for the time being in force relating to dangerous drugs and conspiracy to commit any offence against any enactment for the time being in force relating to dangerous drugs.

23. There is a similar provision, slightly differently worded but not materially different for the purposes of this case, in the Treaty annexed to the Order in Council. There the description of the offence is an offence against the law relating to narcotic drugs, cannabis sativa L, hallucinogenic drugs, cocaine and its derivative and other dangerous drugs. Having found that the evidence justified  the committal of the prisoner on Crimes 13 - 17 Hong Kong offences, the Magistrate also made a finding that the evidence was sufficient to support prima facie a committal on Continuing Criminal Enterprise and he made the order, as I have already indicated, specifying both the Hong Kong and the United States offences.

24. The applicant challenges the Acting Governor's Order to Proceed under Section 7. He submits that it is the Governor's task to translate the United States' offence of Continuing Criminal Enterprise into an equivalent local crime so as to bring it within the necessary definition of extradition crime, and he submits that this was not possible so far as Continuing Criminal Enterprise is concerned because there is no such equivalent local crime and therefore these proceedings ought to fail in limine. Also he submits that insofar as the Magistrate decided that an extradition crime had been proved by the evidence before him, he was wrong in law in that the Continuing Criminal Enterprise is not an offence, which it is possible to commit in Hong Kong. Secondly, he says that in any event the relevant part of the Magistrate's decision should be quashed in relation to Continuing Criminal Enterprise because he rejected as inadmissible and failed to consider two experts on United States law who were tendered before the magistrate, that is the evidence of Michael Canges and Steven Bernholz. He submitted that that evidence was relevant and admissible on the nature of the American offence of Continuing Criminal Enterprise, especially when the Magistrate had before him and had considered the evidence of Joseph Urbaniak, also an expert on United states law, upon the ingredients of Continuing Criminal Enterprise. It was paragraph 20 in particular with which issue was taken in Mr. Urbaniak's deposition.

25. There is overlapping in the arguments relating to the Acting Governor's discretion and the hearing before the Magistrate. I will attempt to summarize them.

26. First the argument is that Continuing Criminal Enterprise is a crime sui generis, unique to United States legislation, for which there is no equivalent offence or offence substantially similar in concept. Secondly, that for Continuing Criminal Enterprise to be an extradition crime it must satisfy the double criminality test in that it mist be found by the Magistrate and this court to be a crime substantially similar in concept to a Hong Kong crime or Hong Kong crimes set out as its equivalent in the Acting Governor's Order to Proceed. Reliance is placed upon the judgment of the Divisional Court in R. V Governor of Pentonville Prison, ex parte Budlong and another [1980] 1 All ER 701, per Griffiths J. (as he then was) at 712G where he summarized the decision on this matter. He said :

"I therefore summarize by saying that double criminality in our law of extradition is satisfied if it is shown : (1) that the crime for which extradition is demanded would be recognised as substantially similar in both countries, and (2) that there is a prima facie case that the conduct of the accused amounted to the commission of the crime according to English law."

27. A reading of the judgment demonstrates that by the words "substantially similar" he means substantially similar in concept, if that amounts to a qualification. Also Mr. KEANE relies upon the Australian decision Riley v. Commonwealth of Australia and others (1986) 62 Australian LR 497. On the basis that the majority, if the matter had not been governed by statute, would not have allowed the extradition of the prisoner from Australia to the United States on Continuing Criminal Enterprise because the double criminality test would not have been satisfied. He relies upon that judgment, not binding on this court, as persuasive authority.

28. Then Mr. KEANE says that in order to consider the nature of Continuing Criminal Enterprise the Magistrate considered the evidence of the United States government expert, but refused to consider that of the applicant. If that is material that would be fatal to the Magistrate's decision for, if so, he failed to hear admissible evidence upon a matter which was material to his decision.

29. Next, Mr. KEANE submits that the decisions in the House of Lords In re Nielsen ⁽¹⁾; Government of the United States of America and others v. McCaffery ⁽²⁾; and In re Rees ⁽³⁾ decide that in extradition proceedings only the Magistrate has no jurisdiction to consider any challenge to the Order to Proceed or to enquire into or receive evidence of the criminal law in a foreign state so as to determine whether the Crown is substantially similar in both countries. Further, he submits that Nielsen's case ⁽¹⁾ and McCaffery's case ⁽²⁾ do not overrule Budlong⁽⁴⁾. They do not disapprove of the double criminality test as such, he submits, because if they rejected the double criminality test, then they would have done so in express terms as its application in the law of England (and, I presume, the law of Hong Kong) in extradition proceedings was of such long standing.

30. Therefore, Mr. KEANE submits, it is for this court to apply the test and in applying it the court can consider the evidence of substantive United States law and the witnesses who were rejected as inadmissible in the Magistrate's court.

31. As to the Governor's Order to Proceed, he points out that In re Rees ⁽³⁾ it was decided that this court has power to review the Governor's discretion under Section 7. See Lord Mackay at 1040 H to 1041 A. Mr. KEANE prays in aid a consideration of the terms of the Act and the Treaty. He submits that Continuing Criminal Enterprise cannot be an extradition crime because of the terms of Section 10 and of Section 26. Nor he says could the Governor comply with Section 20 and the Second Schedule at all because it is not possible.

32. I repeat those submissions because he points out that In re Rees ⁽³⁾ at 1038F Lord Mackay (with whom all the other members of the Committee agreed), said :

"The decided cases show that in practice a first examination of the requisition and supporting evidence may not result in a full account of the crimes of which the person in question is accused or has been convicted. The requisition and supporting evidence will relate to allegations of crime under the law of the requesting state and for the purposes of the narrative in the Secretary of State's order"

33. It is submitted that those words mean that there must be an equivalent crime under the law of Hong Kong for the Governor to specify properly and make his Order to Proceed.

34. Mr. KEANE also submits that the terms in which the Treaty is expressed, in particular Article III, indicate that the words "the offence punishable under the laws of both Parties" can only be appropriate if there is a substantially similar or equivalent offence under the law of both contracting parties. He makes similar submissions in relation to other similar expressions in the Treaty.

35. In his reply Mr. KEANE extended his argument, perhaps encouraged by the assistance I had sought from the Attorney General as to the effect of Section 3(2) of the Act. He submitted that the provisions of that section further support his argument. He said if Section 3(2) is to provide the prisoner with any protection as suggested by Lord Diplock In re Nielsen ⁽¹⁾ at page 625 C to F, there must be a substantially similar local offence for the Magistrate to consider, otherwise, (the submission goes) in composite offences such as Continuing Criminal Enterprise, it would be necessary only to establish one of the many ingredients in order to obtain the surrender of the prisoner to the United States and his prosecution for Continuing Criminal Enterprise. Certainly at one stage of the argument the Government of the United States appeared to agree that this would be the effect. Of course, if this is truly the effect of Section 3(2) that would defeat the clear intention of that section and the protection to the prisoner would truly be illusory.

36. Developing this argument Mr. KEANE said this court should find that there was no "arrangement" within the meaning of Section 3(2) because Article XII of the Treaty was worded differently and the United States Government had indicated that if returned the applicant would be charged with Continuing Criminal Enterprise. He submitted that Section 3(2), if not complied with, would mean that the prisoner should not be surrendered at all. On that matter he is undoubtedly correct - that is if Section 3(2) is not complied with.

37. The Attorney General on behalf of the United States Government and the Acting Governor submits that the considerations which are urged upon me by the applicant are simply wrong. That the first consideration in these, as in all extradition proceedings, is the conduct alleged against the applicant not what offence abroad is alleged in the requesting state, and that the only decision necessary is whether that conduct if committed in Hong Kong would amount to an extradition crime within the meaning of Section 26.

38. He submits that it was open to the Acting Governor to specify in his Order to Proceed more than one Hong Kong offence to enable all the facts alleged and necessary to establish Continuing Criminal Enterprise to be admissible and relevant in the Magistrate's committal proceedings, especially if one offence is not sufficient for this purpose. He points out that In re Nielsen ⁽¹⁾ a number of offences were specified without any objection or comment by the court.

39. He further submits that in extradition committal proceedings the practice of considering the conduct in relation to both the underlying foreign crime with expert assistance and the specified local offences in order to decide whether there is a prima facie case in relation to both, and whether the local and foreign offences were substantially similar in concept (the double criminality test) although time-halloed as a long standing practice both at Bow Street and in Hong Kong, was erroneous. He relied upon the authority of Nielsen ⁽¹⁾, McCaffery ⁽²⁾ and Rees ⁽³⁾; submitting that the only duty and the only jurisdiction of the Magistrate was to act upon the Order to Proceed and to decide first, whether there was a prima facie case in relation to the local specified offences, and second, whether they were extradition crimes so as to satisfy Section 26. In extraordinary accusation cases, he may also consider whether the particular factors required by the Treaty were fulfilled, here Article III(1)(a), that the offence in the United States was punishable by more than one year or by the death penalty, and III(1)(c) that the offence constituted a felony there. I add in paranthesis that a similar argument if relevant would apply to Article V in relation to any time bar.

40. He further submits that apart from matters raised in Article III (1)(a) and (c) and Article V other expert evidence on foreign law about the underlying foreign offence is not admissible and that the Magistrate was therefore correct not to admit further evidence from experts; the matters concerning Article (1)(a) and (c) being not in issue.

41. He also says that the decision in Budlong ⁽⁴⁾ has been overruled by the House of Lords in relation to the double criminality test and that test it is no longer part of our extradition law. Therefore, comparison of equivalent offences and offences similar in concept are neither appropriate nor necessary because the prisoner's protection, as specified by Lord Diplock, is provided by Section 3(2) and the Treaty restricting the prosecution after surrender to facts upon which the extradition is grounded. But, he submits, Section 3(2) is entirely a matter for the Governor or his delegate and not subject to review by the court; and, if there are any unusual features of the case then a report by the Magistrate under Section 10 would be appropriate.

42. He points out with force that the arguments advanced by the applicant in this case were advanced by Mr. John Mathew, Q.C., for the prisoner in Nielsen's case⁽¹⁾. Those arguments were considered and rejected both by the Divisional Court and by the House of Lords. In these circumstances, he submits, the Order to Proceed is unimpeachable; the conduct complained of amounted to offences 13 to 17 if committed in Hong Kong; the Magistrate's decision on that matter was correct; those offences were extradition offences within the meaning of Section 26 of the Act; those acts amounted to an offence against the law relating to cocaine and its derivatives in the Treaty and was a felony in the states; there was no issue as to Article III(1) (a) and (c); that he was correct in rejecting the other evidence; and, therefore, his decision to commit was correct.

43. In my judgment the Acting Governor's Order to Proceed is unimpeachable in this case. It was open to him and it was his duty under the Act to consider the conduct alleged in the evidence and to specify in his order the Hong Kong offences which would have been committed if the prisoner had been guilty of this conduct in Hong Kong. These crimes were all of the genus of crimes within the Schedule to the Act and the Treaty.

44. As Lord Diplock said In re Nielsen ⁽¹⁾ at 619E :

"Under the principal treaty, the documents accompanying the requisition for the surrender of a fugitive criminal in an accusation case will state the"acts" on account of which the fugitive is demanded by the Danish government. It is for the secretary of State to make up his mind what crime those acts would have amounted to according to the English law in force at the time they were committed if they had been committed in England. In the instant case, this meant identifying the offences which those acts would have amounted to under the relevant criminal statute in force in England at the relevant date"

 

45. Also in my judgment the Magistrate's jurisdiction was limited to considering the applicant's conduct in relation to the evidence of the specified offences under Hong Kong law and whether the acts complained of in the United States amounted to an offence both in Hong Kong and United States carrying a maximum of 12 months and that the US offence was a felony.

46. The authority for this is In re Nielsen ⁽¹⁾, speech of Lord Diplock, at 624H :

"The magistrate must then hear such evidence, including evidence made admissible by sections 14 and 15, as may be produced on behalf of the requisitioning foreign government, and by the accused if he wishes to do so; and at the conclusion of the evidence the magistrate must decide whether such evidence would, according to the law of England, justify the committal for trial of the accused for an offence that is described in the 1870 list (as added to or amended by subsequent Extradition Acts) provided that such offence is also included in the extraditable crimes listed in the English language version of the extradition treaty. In making this decision it is English law alone that is relevant. The requirement that he shall make it does not give him any jurisdiction to inquire into or receive evidence of the substantive criminal law of the foreign state in which the conduct was in fact committed."

47. The necessary ingredients of Continuing Criminal Enterprise in the States were, therefore, not matters he had to consider, when he did so, this consideration was not material to his decision to commit and it was not open to him to consider the double criminality test or to apply it, nor to compare Continuing Criminal Enterprise with the Hong Kong offences, to determine whether they were substantially similar in concept.

48. That part of the decision in Budlong's Case ⁽⁴⁾ relating to double criminality, and the "substantially similar in concept" test was overruled by the House of Lords in Nielsen's case ⁽¹⁾ at 624 B to E and in the United States Government v. McCaffery ⁽²⁾ at 869E and 873B. Also it is relevant to note, as submitted by the Attorney General, that Mr. John Mathew, Q.C.'s closely reasoned argument was rejected by the House of Lords and the Divisional Court. That argument is set out In re Nielsen ⁽¹⁾, at 608F to 611A and at 613G to 614B.

49. Further I reject the argument that In re Rees ⁽³⁾, Lord Mackay's reference, at page 1038 to which I have already referred, in any way modifies the clear decisions that were made in Nielsen and McCaffery when he says in his speech that it is necessary that the equivalent crime under English law should be specified. He is not inviting any consideration of the double criminality test to be applied as in Budlong's case⁽⁴⁾ nor is he saying that the court or the Governor should apply any other test than is set out in those cases. He is certainly not indicating that the test in Budlong's case ⁽⁴⁾ should be applied.

50. It was argued that in considering this case even if the Magistrate is not entitled to consider the double criminality test, then this court is so entitled. I do not accept that argument. If authority is required it is to be found also In re Nielsen ⁽¹⁾ at 618E, when Lord Diplock referring to the Danish Criminal Code said :

"The terms of the article are set out in the judgment of the Divisional Court but I see no reason for referring to them because, for reasons which will appear, I do not think that, upon the true construction of the Acts of 1870 to 1932, they had any relevance to any question that the magistrate or the Divisional Court had jurisdiction to decide."

 

Also see McCaffery's case ⁽²⁾ at 869H.

51. In my judgment even in an exceptional accusation case such as this, the Magistrate has no jurisdiction to hear expert evidence as to the nature of the Continuing Criminal Enterprise or of any offence committed in the requesting state save to prove those matters required under Article III and Article V. Authority can be found in McCaffery's case ⁽²⁾ at 870A to 871A and also In re Herbage ⁽⁵⁾ (not binding on this court but I respectfully adopt the reasoning of Lord Justice Stephen Brown found between page 20G and 24F.

52. It is on those grounds that I reject those applications, but having regard to some of the submissions I have received I permit myself some general observations. The reason is because as is well-known and demonstrated by the argument which Mr. John Mathew presented, the decisions in Nielsen ⁽¹⁾ and McCaffery ⁽²⁾ overturned or varied long-established procedure which had been adopted in the Magistrate's court for many years going back to before 1896. As Lord Diplock said in an earlier case, (Sotiriadis,) ⁽⁶⁾ "communis confusio legem facere non potest".

53. It is convenient to approach the Extradition Acts and procedure with a consideration of Section 3(2) of the Act, described as the prisoner's protection by Lord Diplock in Nielson's case ⁽¹⁾. This Section, has an underlying relationship (but only underlying) with the double criminality concept. For no person can be extradited unless there is an arrangement with the requesting state preventing his detention and trial on extradition for any crime other than the extradition crime proved by the facts on which the surrender is grounded.

54. Now contrary to submissions made by the United States Government, the facts on which the surrender is grounded are in my judgment those facts established by relevant and admissible evidence before the Magistrate's court upon the Hong Kong crimes specified in the Order to Proceed. Not the facts which are set out in the requisition, and not, if the Magistrate decides otherwise, all the facts in the evidence and depositions. Also, contrary to the submission made by the applicant, it is not open to this court or the Magistrate's court to consider the effectiveness or the sufficiency of any "arrangement" made with the requesting state and certainly not the effectiveness or sufficiency of this Treaty with the United States. The authority for this is clear. It is in the statute itself. It is provided in Section 5 that an Order in Council shall be conclusive evidence that the arrangement, therein referred to, complies with the requisitions of this Act and that this Act applies in the case of the foreign state mentioned in the Order, and that the validity of such Order shall not be questioned in any legal proceedings whatever.

55. It follows when the Governor considers the conduct and stet local offences to be specified in the Order to Proceed that unless offences can be specified which enables evidence relevant to those offences to be adduced which also proves all the facts necessary to establish the crime committed in the requesting state, it will be difficult for the requesting state, in accordance with the arrangement, to detain or try the prisoner on the extradition crime.

56. Of course, if it is impossible then extradition in relation to that crime has no purpose unless, (as will be the usual situation) he can be prosecuted for another offence proved by the facts before the Magistrate on which the surrender was grounded. I mention this because the Order to Proceed is in exceptional circumstances subject to review by the court. The authority is In re Rees ⁽³⁾ at 1040H to 1041A.

57. I express no view upon the circumstances when such review would be justified because they do not arise in this case. But, if a local offence or local offences were specified which did not permit the necessary facts in relation to the extradition crime to be proved by relevant evidence, and if the Magistrate's proceedings were pointless this could be a matter for the court's review and decision. It could be necessary in such circumstances to consider the requisition and possibly for the Governor, when surrendering the prisoner, to impose conditions. It could even be necessary for him to terminate the proceedings before they reach the Magistrate's court.

58. Obviously, if political offences were specified, that would be a circumstance which would fall to be considered, but I am not dealing with that circumstance now.

59. It remains the duty of the Magistrate to decide what evidence in front of him is admissible or inadmissible in relation to these specified offences. This is nothing new. This is a matter which has been argued before Magistrates in these proceedings over the years. It is necessary for him to consider any such submissions and to rule upon them because those submissions may, in certain circumstances, regulate the facts upon which the extradition is eventually grounded.

60. Of course, it is open to the Magistrate to refuse to commit if the evidence is not sufficient upon all or some of the offences which are before him.

61. It is pertinent to note in the instant case that I have been informed of the necessary ingredients in Continuing Criminal Enterprise. In considering the offences 13 to 17, evidence was admitted by the Magistrate (in my judgment rightly) that showed that there was more than one drugs offences; that there was involvement by the prisoner with more than five others; that he was in the position of manager of an organization; and that he profited substantially. In a conspiracy charge in Hong Kong there would be nothing remarkable about those matters being proved. The evidence concerning those matters would be unquestionably admissible and relevant to show the nature of the conspiracy and to show the acts done in pursuance of it; and to show the part played by the prisoner in the conspiracy. Those matters required to be proved to establish Continuing Criminal Enterprise are all factors which, if proved in Hong Kong, would be relevant and would demonstrate the gravity of the offence. (If these matters were established in a court in Hong Kong in an appropriate offence and such behaviour attracted minimum of ten years such sentence would be considered lenient.)

62. Although this is the first time, I am told, that extradition has been granted in Hong Kong or in England for Continuing Criminal Enterprise I see in this offence nothing extraordinary. It is simply a different way of expressing well-recognized features of a serious drugs case.

63. I have digressed to consider some of the submissions which were made before me. They are not necessary to my decision. I will in a moment hear counsel as to whether the reasons I have given entitle the applicant to relief of any kind in relation to the Magistrate's decision.

64. Before I leave the case I would like to pay tribute to the Magistrate. He was presented with a very difficult task. He tried the case with considerable care and, if there are criticisms of him for dealing with some matters which were not germane to his consideration, they must, in the end, be minor. They were only upon matters which were not material. The material part of his decision, in my judgment, was entirely correct.

SUBMISSION HEARD

65. Various applications refused.

66. Costs of these proceedings against the applicant including those costs of appearance before Hooper J.

67. The Acting Governor undertakes not to issue a warrant for his surrender provided that a Notice of Appeal is filed within next 14 days until the applicant has exhausted such rights as he seeks before the Court.