LAY ENG TEO v. SUPERINTENDENT OF TAI LAM CENTRE FOR WOMEN AND ANOTHER

CACV 3897/01

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 3897 OF 2001

(ON APPEAL FROM HCAL 540 OF 2001)

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J U D G M E N T

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Hon Yeung JA (giving the judgment of the court):-

1. This is an appeal against the judgment of Hartmann J refusing an application for a writ of habeas corpus.

2. The appellant, Lay Eng Teo, is a national of Singapore and was at all material time residing in Singapore. She came to Hong Kong in October 2000 and was arrested on 23 October 2000 at the request of the United States Customs Service.

3. It was alleged against the appellant by the Government of USA that between March 1995 and October 2000, she had shipped counterfeit computer software to USA and/or had conspired with persons in USA for such purpose. It was also alleged that she conspired with others to launder the proceeds from the disposal of the counterfeit software.

4. On 15 December 2000, the Hon. Tung Chee Hwa, Chief Executive of the Hong Kong Special Administrative Region ordered, under an Authority to Proceed, that the appellant be dealt with under Part II of the Fugitive Offenders Ordinance, Cap. 503 (the Ordinance). The order was made pursuant to the request for surrender by the Government of USA against the appellant for the following offences (the offences), namely:

(a) offences against the law relating to protection of intellectual property, copyrights, patents or trademarks;

(b) conspiracy to commit offences against the law relating to protection of intellectual property, copyrights, patents or trademarks;

(c) offences against the law relating to the control of exportation or importation of goods;

(d) conspiracy to commit offences against the law relating to the control of exportation or importation of goods;

(e) conspiracy to commit offences relating to the laundering of proceeds obtained from the commission of the above offences (a) to (d).

5. The hearing before the magistrate under section 10(6)(b) of the Ordinance to decide if the appellant should be committed to custody pending the decision of the Chief Executive whether to surrender her to the Government of USA took place on 5 and 6 March 2001.

6. The magistrate, Eddie Yip Esq., ruled that there was sufficient evidence to establish a prima facie case in respect of the offences and that the appellant be committed to prison to await the warrant from the Chief Executive for her surrender to USA. The magistrate also made a Disposal Order pertaining to the exhibits seized from the appellant upon her arrest. He gave no reason for his decisions.

7. On 28 March 2001, the appellant applied for a writ of habeas corpus alleging that her detention was unlawful. There were ex parte hearings on 29 May 2001 and 11 June 2001. The full hearing went before Hartmann J on 31 October 2001.

8. Counsel for the appellant raised the following issues at the hearing:

(1) The failure of the magistrate to give reasons:

It was suggested that the failure to give reason offended the rule of natural justice as in the absence of reason, it was not possible to say how the magistrate had reached his decision.

(2) The time bar issue:

It was suggested that the first two offences listed in the authority to proceed might be time-barred under section 120A of the Copyright Ordinance and hence the magistrate was obliged to examine the issue to decide if they were time-barred. The suggestion was that if the offence detailed in the authority to proceed would be time-barred in Hong Kong, then it would not constitute a "relevant offence".

(3) The money laundering issue:

In connection with offence (e), the allegation against the appellant was that she conspired with others to launder monetary instruments between March 1995 and September 2000. It was pointed out that conspiracy of such nature was not made an offence in Hong Kong until after March 1995. It was therefore suggested that the appellant was surrendered for criminal conduct, which was not at the time criminal conduct in Hong Kong.

(4) "Importing" infringing works of copyright or unmanifested cargo issue:

Offences (c) and (d) suggested that the appellant was involved in the import of unmanifested counterfeited software into USA. It was suggested that at all material time, the appellant was outside USA and would not therefore be subject to the jurisdiction of the courts in USA.

9. Hartmann J dealt with the points raised by the appellant in great detail. He rejected all of them.

10. In this appeal, the appellant, acting in person, again raised issues 2 and 4.

11. The appellant repeated the suggestion that the evidence adduced by USA Government against her showed that the transactions constituting the offences all took place in Singapore and/or Malaysia, places outside the territorial control of USA. She suggested, in the circumstances, that the alleged unlawful conduct on her part could not be offences against the law of a prescribed place (USA), and therefore would not be relevant offences under the Fugitive Offenders Ordinance Cap. 503 (the Ordinance).

12. It was the appellant's case that section 2(3) of the Ordinance had not been complied with.

13. The Ordinance provides that "a person in Hong Kong. ...wanted in a prescribed place for prosecution... in respect of a relevant offence against the law of that place" may be extradited.

14. Section 2(2) of the Ordinance defines a "relevant offence" in the following terms:

"For the purposes of this Ordinance, an offence by a person against the law of a prescribed place is a relevant offence against that law if-

(a) the offence is punishable under that law with imprisonment for more than 12 months, or any greater punishment; and

(b) the acts or omissions constituting the conduct in respect of which the person's surrender to that place is sought amount to conduct which, if the conduct had occurred in Hong Kong, would constitute an offence-

(i) coming within any of the descriptions specified in Schedule 1; and

(ii) punishable in Hong Kong with imprisonment for more than 12 months, or any greater punishment."

15. In extradition proceedings, the important issue for the domestic forum is whether the conduct complained of constitutes an offence in Hong Kong and not whether such conduct in fact constitutes an offence in the prescribed place; as to the latter consideration, the magistrate takes at face-value such information as to foreign law as is placed before him.

16. A magistrate who is asked to make an order for committal in an extradition case is concerned only with whether the evidence before him would support committal for trial in Hong Kong if the conduct complained of had taken place in Hong Kong.

17. There is no requirement that the magistrate has to examine if the conduct in question constitutes an offence in the prescribed place.

18. Section 2(3) of the Ordinance is meant to extend rather than limit the operation of section 2(2). It does not import the requirement that the acts complained of must be acts committed in the prescribed place before an order for surrender can be made.

19. The only relevance of the law in the prescribed place is that under that law, the offence is punishable with imprisonment of not less than 12 months.

20. In the present case, there was clear evidence before the magistrate that the offences carried maximum terms of imprisonment exceeding 12 months imprisonment in USA.

21. Hartmann J had dealt with the issue in an impeccable manner in paragraphs 25 to 27 of his judgment, and it is not necessary for us to repeat them.

22. The appellant was not in USA at the material time. But that did not mean she could not be guilty of offences relating to the import of unmanifested cargo. In both the committal hearing and the application before Hartmann J, there was clear evidence that the appellant shipped or arranged to ship counterfeit software from Singapore and Malaysia to USA via courier service.

23. Again Hartmann J had dealt with the issue in detail and we need only repeated paragraph 45 of his judgment:

"It is to be remembered that the word 'import' in both the Copyright Ordinance, Chapter 528, and the Import and Export Ordinance, Chapter 60, is defined as meaning 'to bring, or cause to be brought, into Hong Kong any article'. In my judgment, it does not in any way offend the plain reading of the English to find that a person who remains outside of the jurisdiction may still 'cause' offending goods to be brought into Hong Kong."

We agreed with the aforesaid conclusion.

24. On the time bar issue: Firstly this issue only related to some of the offences and not to all them. Secondly, section 120A of the Copyright Ordinance only provides a defence to the offences under the Copyright Ordinance, and time only starts to run after the expiration of 3 years from the date of the commission of the offence or 1 year from the date of discovery of the offence by the prosecutor, whichever is earlier.

25. In extradition proceedings, the examining magistrate only needs to decide if a prima facie case has been established. He cannot and should not attempt to foresee what, if any, defence will be raised and whether such defence will be successful.

26. The time bar issue was also raised in Cheng Chui Ping v Superintendent of Tai Tam Centre for Women and Another [2000] 3 HKLRD 695, the relevant ratio of which was set out in full in the judgment of Hartmann as follow:

".... Mr. McCoy's next point is novel. It is this: that if prosecution for an offence is time-barred, it is for the purpose of the Ordinance not an offence at all. One remembers that to make an order under s.10 (6)(b) of the Ordinance, the magistrate must be satisfied that the offence to which the authority to proceed relates is a relevant offence. Section 2(2) says that an offence by a person against the law of a prescribed place is a relevant offence against that law if, amongst other attributes, it is punishable under that law with imprisonment for more than 12 months. But, says Mr McCoy, an offence cannot be prosecuted if it is time-barred; and if it is not punishable, it is not a relevant offence. So, the magistrate, according to this argument, has to ascertain whether is punishable; and in order to do so, he has to ascertain if it can be prosecuted; and to do that he must ascertain whether prosecution is time-barred; and to do that he must take evidence of foreign law; and so on.

The contention is untenable. Section 2(2)(a) self-evidently addresses what punishment is available in the event that a person is convicted of a transgression of that particular law. The magistrate asks himself a question along these lines: Were a person- any person- in the foreign jurisdiction to be convicted of such an offence, could he there be punished by imprisonment for more than 12 months? The magistrate does not ask whether the particular person then appearing before him in committal proceedings will or will not be convicted. He does not ask whether, for example, the courts of the requesting country have the jurisdiction to try him (see, for example, Alves v DPP [1992] 4 All ER 787 at p.794); and, by the same token, s.2 (2) does not require the magistrate to ask if a plea in bar of any other kind, including a limitation point, is available, let alone whether it will succeed. What s.2 (2)(a) is concerned with is the specified statutory or common offence in the foreign jurisdiction, and the penalty provided by the law of that jurisdiction for such an offence in the event of a conviction for that offence. To this end alone, evidence of foreign law is permitted and, indeed, required. And in this case that evidence was provided and not contested."

27. The above dictum is a complete answer to the points raised by the appellant. The appellant was not right in her submission that Cheng Chui Ping's case (supra) only dealt with "a foreign time bar issue and not a local time bar issue."

28. Section 5 of the Ordinance sets out a list of restrictions limiting the surrender of a fugitive under the Ordinance and the offence being time-barred is not one of them.

29. Hartmann J made the following observation in Cheng Chui Ping v Chief Executive of HKSAR and Another HCAL 1366 of 2001 at page 16:

"Section 5 of the Ordinance does not prohibit surrender if, according to Hong Kong law or the law of the requesting state, the offences for which surrender is sought are determined to be time-barred. By contrast, it is to be noted that under subsection (1)(e) there is such a prohibition in respect of defences of autrefois acquit or autrefois convict."

30. In deciding if an order for committal should be made, the magistrate should not and cannot consider the possible defence of limitation period at all.

31. In her written submission, the appellant invited the court to consider canceling or revising the Disposal Order made by the magistrate on 6 March 2001 pertaining to exhibits seized from the appellant. She suggested that the continuation of the Disposal Order constituted an abuse even if her appeal was unsuccessful.

32. The magistrate had full power to make the order as he did. The subject matters of the Disposal Order are clearly material to the offences in question. The appellant was rightly committed and it must be right that those relevant exhibits be sent to USA to facilitate the prosecution of the appellant by the USA authority.

33. Hartmann J was right in refusing her application for a writ of habeas corpus.

34. The appeal has no merit and must be dismissed, with costs to be taxed if not agreed. The order nisi on costs will be made absolute 14 days after the handing down of this decision.