XCHRX IN RE CHONG BING KEUNG, PETER

HCMP4492/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 4492 OF 1998

----------------------

-----------------------

-----------------------

J U D G M E N T

-----------------------

1. On 20th July 1998, the United States of America requested the surrender of the Applicant pursuant to the agreement between the HKSAR and USA for the surrender of fugitive offenders. On 22nd July 1998, the Chief Executive issued an authority to proceed under Part II of the Fugitive Offenders Ordinances, Cap.503 for the offences of conspiracy to murder, conspiracy against the laws relating to dangerous drugs, arson and criminal intimidation. On 23rd July 1998, Mr J. Brennan, at Eastern Magistracy, issued a warrant of arrest against the Applicant under the Fugitive Offenders Ordinance in respect of the offences name in the Authority to Proceed.

2. On 25th July 1998, the Applicant was arrested as he re-entered Hong Kong from Taiwan. On 27th July 1998, the Applicant appeared in the Eastern Magistracy and the case was adjourned to 19th August 1998 to allow the Applicant time to review the materials supplied in support of the Request for Surrender and for him to consider whether to waive extradition proceedings. On 19th August 1998, the Applicant appeared at the Eastern Magistracy and indicated that he intended to oppose the extradition proceedings and a committal hearing date was fixed for 29th and 30th October 1998. The Applicant also applied for bail but the application was rejected by Mr G. Tallentire. On 8th September 1998, the Applicant appeared before Stock J. on the application for bail and the application was adjourned at the request of the Applicant to enable evidence to be obtained from the United States. On 19th October 1998, the Applicant appeared at the Eastern Magistracy and applied to have the committal date fixed for 29th and 30th October to be adjourned. The reason for the adjournment was to obtain evidence from the United States for use at the Committal Hearing. The Court re-fixed the Committal Hearing for 1st and 2nd February 1999.

3. On 15th December 1998, the Applicant appeared before me to make his application for bail and he was represented by Leading Counsel Mr Gary Plowman. The matter was part-heard until 19th December 1998 when the hearing for the application for bail was completed.

The Law

4. It is common ground between the Prosecution and the Applicant that the application for bail which was made initially to Stock J., and subsequently adjourned to me, was by way of a review of the refusal of bail by Mr Tallentire on 19th August 1998. The application is therefore made under s.9J of the Criminal Procedure Ordinance, Cap.221 which states :

"Where a district judge or magistrate has refused to admit a person to bail or has so admitted a person subject to any condition, that person may in the case of a refusal, apply to a judge to be admitted to bail or in the case of an admission to bail subject to any condition, apply to a judge to be admitted to bail without bail being subject to that condition."

Subsection (2) says :

"On the hearing of an application under subsection (1), a judge may by order confirm, revoke or vary the decision of the district judge or magistrate, and may make such other order in the matter including an order as to costs as he thinks just."

5. All the provisions in Part IA of the Criminal Procedure Ordinance relate to the question of bail which is what Part IA is entitled. The provisions in Part IA are sections 9C - 9Q inclusive. Section 9D is headed "Right of accused person to be admitted to bail" and subsection (1) states :

"Subject to this section and section 9G, a court shall order an accused person to be admitted to bail, whether he has been committed for trial or not, when-

a) he appears or is brought before a court in the course of or in connection with proceedings for the offence of which he is accused; or

b) he applies to the court before which he is accused to be admitted to bail; or

c) he applies to a judge under section 9J to be admitted to bail."

Therefore, on an application under s.9J for a review of a district judge or a magistrate's decision to refuse bail, an accused person has the same right to bail as he would if he were making application to a court pending his trial of the offence of which he is accused. Under s.9G(1), the court need not admit an accused person to bail if it appears to the court that there are substantial grounds for believing that the accused person would-

a) fail to surrender to custody as the court may appoint; or

b) commit an offence while on bail; or

c) interfere with a witness or pervert or obstruct the course of justice.

6. Under subsection (2) of s.9G, the court in forming an opinion under subsection (1) may have regard to a number of matters which include the nature and seriousness of the alleged offence, and in the event of conviction, the manner in which the accused person is likely to be dealt with, and matters like the behaviour, demeanour and conduct of the accused person, and other matters relating to the accused person. Subsection (h) of subsection (2) mentions :

"Any other thing that appears to the court to be relevant."

as one of the matters that the court may have regard to.

7. Under the Fugitive Offenders Ordinance, Cap.503, s.10(5), the court of committal, which is defined in s.2 of the same Ordinance as any magistrate before whom is brought a person arrested pursuant to a warrant under s.7(1), whether in the first instance or subsequently, shall not remand on bail the person arrested unless it is satisfied that there are special circumstances justifying such remand. Mr Plowman has submitted that this section in the Fugitive Offenders Ordinance has no application to an application for bail pending extradition made to the High Court, and that on any such application, the court should only have regard to the provisions of s.9C to 9Q, inclusive, of the Criminal Procedure Ordinance, Cap.221.

8. Mr Walsh for the Prosecution, whilst agreeing that the application before me was made under s.9J of Cap.221, submits that the High Court also has inherent jurisdiction to entertain any such applications and where it exercises its inherent jurisdiction to entertain such an application, it is not strictly governed by the provisions of Part IA of Cap.221 and therefore, it can require that there should be special circumstances justifying a remand of the person concerned on bail. Mr Walsh submits that s.10(5) of Cap.503 is applicable to the High Court and that the provisions in Part IA of the Criminal Procedure Ordinance are not designed for extradition cases, but only to domestic cases. He submits that the requirement of special circumstances in Cap.503 is a matter which can be considered by me in determining this application. He relies on the decision by Gall J. in the case of Tiongco v. Secretary for Justice (MP No.3426 of 1997). In that case, Gall J. had held that one matter the High Court can take into account is the stricture upon the magistrate under s.10(5) of the Fugitive Offenders Ordinance and he held therefore that the threshold for a fugitive offender to be admitted to bail pursuant to s.9D must be at a higher level and along the same lines as that restraint upon the court of committal and unless there are special circumstances justifying a remand on bail, bail should not be allowed. Mr Walsh also submits that even if s.10(5) of Cap.503 has no application, under s.9G(2)(h) of Cap.221, I can take into account any other thing that appears to me to be relevant.

9. In relation to that last submission, Mr Plowman submits that having regard to the previous subsections (a) to (g) of s.9G(2), if the ejusdem generis rule were to be applied, then subsection (h) must be a matter which pertains to the offence or to the accused person. I agree with that submission.

10. In my view, s.10(5) ofCap.503 which sets out the requirement for special circumstances has no application to the High Court and only applies to a court of committal as that is defined in s.2 of that Ordinance. In my view, when the High Court entertains an application for a review of a magistrate's decision under s.9J, the High Court judge only has to consider the provisions of Part IA of the Criminal Procedure Ordinance. Under those provisions, an accused person or a fugitive offender has a right to be admitted to bail. But under s.9G, that person need not be admitted to bail if it appears to the court that there are substantial grounds for believing that the accused person might either fail to surrender to custody, or commit an offence while on bail, or interfere with a witness or pervert the course of justice. In the instant case, the Prosecution relies on the first of those three limbs, namely, that the Applicant would, or might fail to surrender to custody if admitted to bail.

11. In coming to an opinion whether to admit a person to bail, the court may have regard to the nature and seriousness of the alleged offence.

The nature and seriousness of the alleged offences

12. As has been mentioned above, the Applicant is wanted in the United States so that he may be tried for offences of conspiracy to murder, conspiracy to traffick in dangerous drugs, arson and criminal intimidation. Of those alleged offences, quite clearly the conspiracy to murder is the most serious offence. The Prosecution in the extradition application will be relying on the affidavit evidence of two alleged accomplices in the offences and the Prosecution will be hoping to persuade the court of committal that in relation to the offences for which the Applicant is wanted, there is a prima facie case. Mr William Schaefer, the Assistant United States Attorney in the Organized Crime Strike Force, United States Attorney's Office for the Northern District of California, United States' Department of Justice, has sworn an affidavit in which he claims that the Applicant is, in his belief, a major flight risk, who would, if released on bail, fail to voluntarily return to the United States to answer the charges currently pending in the Northern District of California. He also says that the charges in the present pending indictment are major felonies, carrying, upon conviction, sentences of up to life imprisonment.

13. Mr Plowman has attacked the character of these two accomplice witnesses and has attacked the weight of the evidence that they have given by way of affidavit against the Applicant.

14. I do not think that it would be right for me to put myself into the shoes of an American jury and decide at this stage whether the affidavit evidence of these two accomplices carries sufficient weight to justify keeping this Applicant in custody pending the extradition hearing. I do, however, have regard to the seriousness of the alleged offences and the manner in which the Applicant is likely to be dealt with in the event of convictions. I also have regard to the fact that if he were convicted, and imprisoned in the United States, he will be serving imprisonment in a foreign country away from his immediate family and the friends that he has in his usual place of abode, namely, Hong Kong. In my view, the Applicant is a flight risk and the circumstances of this case are such that I cannot say that this Applicant should be admitted to bail pending the extradition hearing and if that hearing were to be successful, pending the extradition of him to the United States. The application for bail is therefore refused. Alternatively I confirm the decision of Mr G. Tallentire made on 19th August 1998.