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

CACV 3897/2001

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:

1. On 29 July 2002, this court, differently constituted, handed down its decision dismissing the applicant's appeal against the judgment of Hartmann J refusing her application for a writ of habeas corpus.

2. On 7 August 2002 while acting in person, the applicant filed a Notice of Intended Application for leave to appeal to the Court of Final Appeal. On 5 December 2002 the applicant's solicitors filed "an Amended Notice of Motion" for leave to appeal to the Court of Final Appeal on the basis that a point of law of great and general importance is involved in the earlier judgment of this court.

3. The point of law of great and general public importance is framed in the following terms:

"whether the provisions of Section 10(6)(b)(iii) and (9) of the Fugitive Offenders Ordinance, Cap. 503 preclude a person's committal for the purpose of extradition where the evidence in relation to the relevant offence would, if relied upon at a committal for trial according to the laws of Hong Kong for an offence within the jurisdiction of the magistrate or any other court, not be within the magistrate's jurisdiction or the jurisdiction of any other court because of a statutory time bar arising under the laws of Hong Kong."

4. The applicant was ordered to be surrendered to the Government of USA on 6 offences 2 of which relate to protection of intellectual property, copyrights, patents or trademarks.

5. At the hearing before Hartmann J it was suggested that the 2 offences would be time-barred under s 120A of the Copyright Ordinance and hence the magistrate was obliged to examine the issue to decide if they were time-barred. The contention was that if the offences were time-barred in Hong Kong, they would not be extraditable offences under the Fugitive Offenders Ordinance Cap. 503 (the Ordinance).

6. Section 4 of the Ordinance provides that "a person in Hong Kong who is wanted in a prescribed place for prosecution....in respect of a relevant offence against the law of that place may be arrested and surrendered" and

7. Section 2(2) of the Ordinance defines a "relevant offence" as:

"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 theperson'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."

8. Section 5 of the Ordinance sets out the exceptions to the class of extraditable offences.

9. Clearly the offences in question are "relevant offences" under the Ordinance and are not exempted under section 5. Prima facie the applicant is liable to be extradited.

10. However s 10(6)(b)(iii) of the Ordinance further provides that committal of a person shall take place only if the following condition is also fulfilled, namely:

"Where-

(c) an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied-

(iii) where the person is wanted for the 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."

11. Mr Philip Dykes SC, on behalf of the applicant suggests that if the conduct complained of is outside the time limit for the conduct to be prosecutable in Hong Kong, then such conduct is not within the jurisdiction of a Hong Kong court and cannot constitute an offence committed within the jurisdiction of that court of any other court. Mr Dykes SC suggests in such case, a magistrate cannot commit because when there is a failure to comply with a time limit for lay the information, it "removes from the courts their jurisdiction" to try the offence.

12. Ms Sit, on behalf of the respondent resists the application on the ground that there is really no question here. She suggests that the judgment is plainly right and there can be no question about it.

13. Section 10(6)(b)(iii) obliges the examining magistrate to make a committal order if the offence is a "relevant offence" and if the committal is not prohibited by "any other provision of this Ordinance".

14. I have considered the draft judgment of Stock JA and I agree with his conclusion on the effect of s 10(6)(b)(iii) of the Ordinance.

15. Section 120A of the Copyright Ordinance prohibits the prosecution of "an offence" after the expiration of 3 years.

16. But in extradition cases, what is in issue is whether "the acts or omissions would constitute an offence" and not whether the offence is prosecutable.

17. I do not agree with the submission of Mr Dykes SC. The point raised by him is not arguable

18. There is no valid basis for the discretion to be exercised in favour of the applicant and I therefore decline to grant leave to appeal.

Hon Stock JA:

19. The Question posed is perhaps oddly phrased. It presupposes a committal for trial 'for an offence within the jurisdiction of [the courts of Hong Kong]' but 'where the evidence in relation to the relevant offence would ... not be within the magistrate's [or any other court's] jurisdiction'. I do not understand how 'evidence' comes to fall within or outwith a court's jurisdiction; and it may be that the word 'evidence' has subconsciously, in the mind of the draftsman, been thus allied to 'jurisdiction' in order to circumvent the problem which is at the root of the underlying argument which the applicant would wish to advance before the Court of Final Appeal. Yet it exposes the weakness of the argument.

20. The true question raised is whether section 10(6)(b)(iii) and section 10(9) of the Fugitive Offenders Ordinance preclude the making of an order under section 10(6) for the committal of the arrested person if prosecution in Hong Kong for the offence for which surrender was requested would be precluded by a Hong Kong statutory time bar.

21. The point raised cannot in my opinion be said to be reasonably arguable. For that reason I would refuse to grant leave on the question as posed or as amended along the lines I have suggested.

22. The Court of Appeal, differently constituted, has already delivered itself of a judgment in this matter so that this is not the occasion for any detailed exposé. However, since I say that the point is not reasonably arguable, and since I would respectfully suggest that the passage from Cheng Chui Ping upon which the Court of Appeal in part relied was not quite to the point there raised, I would state my reasons briefly:

(1) a local time bar cannot of itself deprive an offence of its characteristic as a relevant offence, as that term is defined under section 2(2) of the Fugitive Offenders Ordinance. That section looks to the nature of the conduct; and whether that conduct comes within the scheduled description.

(2) a local time bar is not included in any of the restrictions on surrender prescribed by section 5 of the Ordinance.

(3) section 10(6)(b)(iii), to which the proposed question is directed, is expressly addressed to the sufficiency of evidence. Indeed, the sole test which it addresses is widely known as the test of sufficient evidence. See Jones 'Extradition and Mutual Assistance', 2001, para 12-068 et seq; and 'Extradition Law and Practice' Stanbrook, 2nd ed. para 8.170. A plea to the court's jurisdiction to hear or try an issue is a different animal entirely. All that the sub-section requires the magistrate to do is to consider the evidence to see whether that evidence is such that upon it a reasonable jury properly directed could convict. See R v Governor of Pentonville Ex p Osman [1990] 1 WLR 277, 298 and 300. The rationale is to ensure that extradition does not take place where there is no evidence that the offence has been committed.

(4) Mr Dykes rests his argument on the words in section 10(6)(b)(iii) 'if the offence had been committed within the jurisdiction of [a Hong Kong] court' as meaning that the magistrate has to decide whether the Hong Kong Court would have jurisdiction to try the case were it prosecuted in Hong Kong. This is to ignore:

(a) the fact that the section requires the magistrate, in applying section 10(6)(b)(iii), to assume for the purpose of his evidential assessment that a Hong Kong Court would have jurisdiction ('...if the offence had been ... within the jurisdiction'); and

(b) the fact that the local jurisdictional premise or protection is to be found not in section 10(6)(b)(iii)but in the definition of 'relevant offence' in section 2(2) which requires no more than that the conduct alleged, had it occurred in Hong Kong, would constitute an offence in Hong Kong; and not, be it noted, whether at a given moment prosecution for that offence would be time barred. Section 10(6)(b)(i) directs the magistrate to this test, that is the section 2(2) test; section 10(6)(b)(iii) to quite another.

23. Other questions such as whether 'within the jurisdiction' in the subsection imports questions such as time bars, or has in mind only territorial and extra-territorial jurisdiction, need not be determined. The decision in Re Al-Fawwaz [2002] 1 All ER 545, upon which Mr Dykes relies, is not to the point of this case. The issue there was different altogether. What was construed was the definition of 'fugitive criminal' under the Extradition Act 1989, that is, a person accused of a crime 'within the jurisdiction of any foreign state'. The issue was whether those words were limited to crimes committed within the territory, the geographical confines, of the requesting state, or whether they also embraced the requesting state's extra-territorial jurisdiction.

24. The issue posed by the Question put before us is, in my judgment, beyond reasonable argument and I would refuse leave.

Hon Suffiad J:

25. I have had the privilege of reading the judgments in draft of both Stock JA and Yeung JA and I agree with both their judgments.

Hon Stock JA:

26. It follows that the application for leave is refused.