CHO SHU WAH V. ATTORNEY GENERAL

1993, No. MP 2552

H E A D N O T E

Extradition - identification by photograph - whether magistrate has any discretion to exclude prejudicial but relevant evidence in extradition proceedings.

1993, No. MP 2552

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 an application by the Applicant Cho Shu Wah for a Writ of Habeas Corpus on the ground that he was being unlawfully detained by the Commissioner of Correctional Services under a Warrant of Committal.

2. At the hearing, having heard submission from Mr. Chandler for the Applicant and Mr. McMeans for the Respondent, I dismissed the application with costs and indicated that a written decision would be delivered. This I now do.

3. The background of the case had been fully and carefully set out in the skeleton submission of Mr. McMeans for which I am grateful.

4. It was alleged that the Applicant was involved in the importation into and distribution within the United States of America about 56 kilograms of heroin in 1990. The Applicant was arrested in Hong Kong in July 1992 and extradition proceeding was then instituted against him.

5. The proceedings concluded in June 1993 and the Applicant was committed on two charges, one of conspiracy to traffic in dangerous drug and one of unlawful trafficking in dangerous drug as set out in the Order of the Governor of Hong Kong dated 6th of January 1993.

6. The evidence relied on by the U.S. Government for the extradition of the Applicant included the affidavits of four accomplices, Chung Tak Chang, Stephen Mak Ming, Kwok Kuen, Joe and Sha Wai Man who all alleged that the Applicant was involved in the drug offences in question.

7. They also identified the Applicant by reference to a photograph taken of the Applicant on 29th January 1991 while the Applicant was under arrest by the police in connection with another matter.

8. Mr. Chandler did not dispute that on the evidence as admitted by the magistrate at Eastern Magistracy, Mr. Alan Wright, the Applicant was rightly committed. But he argued that the photograph of the Applicant was wrongly admitted as evidence and without such photograph, there was no evidence to link the Applicant to the two charges in question.

9. In the course of the extradition proceedings, the Applicant through his counsel had raised objection to the admissibility of the photograph in question and when Mr. Wright ruled against him, the matter was taken to the Supreme Court for a judicial review of Mr. Wright's decision in M.P. 327 of 1993.

10. Ground no. 2(ii) of the Applicant's application stated as follows:

"The photograph shown to each of the Deponents (referring to the four accomplice witnesses) for the purpose of alleged identification of the Applicant was the only material produced by way of identification of the Applicant. The writing displayed on the blackboard held by the Applicant when photographed was so prejudicial as to render the photograph inadmissible and the alleged identification inadmissible."

11. The applicant's application for judicial review was refused by Bewley J. on 26th day of April 1993.

12. While it might be argued that the issue involved in the present application had been dealt with and the Applicant should not be allowed to argue on the same point or substantially the same point again, Mr. McMeans had fairly informed the court that the Applicant was unrepresented in his application before Bewley J. and the hearing did not last for more than 20 minutes. Mr. McMeans had not taken any issue arising out of the previous application before Bewley J.

13. The function of the court in habeas corpus proceedings arising out of a committal order under the Extradition Act is well-established.

14. In R. v. Governor of Brixton Prison. ex parte Schtraks [1964] A.C. 556 Lord Reid said at p.579:

"The next point involves the question what is the proper function and jurisdiction of this House in an appeal of this kind. I understand that others of your Lordships intend to deal more fully with this question and I shall only state my views in outline. There is no appeal in the ordinary sense from the decision of a magistrate to commit. Such review as is competent can only take place in one or other of two ways. The accused can apply for a writ of habeas corpus and whether he does so or not, the Secretary of State can decide not to grant the request for extradition if in the exercise of his discretion he thinks that it is proper to take that course.

This House has no wider powers than the powers of a court. I do not find it necessary in this case to define precisely what those powers are. The court, and on appeal this House, can and must consider whether on the material before the magistrate a reasonable magistrate would have been entitled to commit the accused, but neither a court nor this House can retry that case so as to substitute its discretion for that of the magistrate."

15. The Court of Appeal in Hong Kong in the cases of Fung v. The Government of U.S. and Cho v. The Government of U.S., Civil Appeals Nos. 147 and 150 of 1992 adopted similar approach.

16. Nazareth J.A. said at p. 11:

"Function of the judge on habeas corpus.

It was submitted that the judge erred in treating the hearing of the habeas corpus application as if it were the hearing of an appeal. The legal position, we accept, is clear from the following dicta of Lloyd L.J. in ex parte Osman [1989] 3 A.E.R. 701 at p. 722d where he discussed the role of the Divisional Court on a habeas corpus application :

"The authorities are unanimous that the Divisional Court is not a Court of Appeal from the magistrate. It cannot retry or rehear the case. In Armah v. Government of Ghana [1966] 3 All E.R. 177 at 184, [1968] A.C. 192 at 230, Lord Reid said: The Court does not hear the case by way of appeal so as to reverse the magistrate's decision on fact or alter a discretion properly exercised.

In Armah's case, Lord Reid adopted a straightforward Wednesbury test (see Associated Provincial Pictures Ltd. v. Wednesbury Corp. [1947] 2 All E.R. 680) that is to say whether there was evidence upon which a reasonable magistrate, properly directing himself in law, could commit."

17. After reviewing counsel's submission as to the appropriate approach of the Divisional Court, Lloyd J. said at p. 723:

"But since the point has been raised for our decision, we would say that the correct approach is best defined in Wednesbury terms. That at least has the advantage of being well understood, as well as keeping this branch of the law in line with the task of the Divisional Court in other aspects of its jurisdiction."

18. Mr. McMeans and Mr. Chandler had no argument with the aforesaid approach.

19. It was also not in dispute that a magistrate in Hong Kong in dealing with extradition proceedings was concerned only with the question of whether the evidence was sufficient according to the law of Hong Kong to commit the accused for trial if the crime had been committed in Hong Kong.

20. Mr. Chandler argued strongly that the photograph of the Applicant should not have been admitted as evidence because of its prejudicial effect. It was prejudicial because the photograph in question depicted the Applicant holding a board on which the Applicant's name in Chinese and in English were written together with Offence Conspiracy to Traffic in D.D.

21. Mr. Chandler argued that such photograph could never have been allowed to be put before the jury and therefore it could not be admissible. Without the photograph, there was no sufficient evidence on the Applicant's identification and a reasonable magistrate would not have made an order committing the Applicant.

22. Mr. Chandler was relying heavily on one of the findings of the magistrate who stated at page 6 of the Ruling on Admissibility.

"As to the second ground of objection, it cannot be disputed that the format of the photograph is, to put it mildly, unfortunate. I must accept that in its present form it would not be allowed to go before a jury."

23. Whether the photograph in question, looking at the entirety of the evidence was prejudicial, was arguable. As Mr. McMeans had pointed out, the photograph in question was referred to in certain admissions of fact made on behalf of the Applicant (Exhibit MR2 referred to in the affidavit of Martin Richardson sworn on 13th of October 1993).

24. Under paragraph 3 thereof.

"On 29.1.1991, while under arrest in connection with another matter, a photograph was taken by police of the said Cho Shu Wah attached and marked exhibit 1 to this document is a copy of a photograph which truly and accurately depicts the appearance of the said Cho Shu Wah on 29.1.1991. Cho was released later on the same day on police bail and was released unconditionally upon the completion of enquiries by the police with no charge being laid against him."

25. It could be argued that the photograph in question considered in the light of the admitted facts might not result in any prejudice against the Applicant at all.

26. But for the purpose of the present proceedings, I am prepared to accept that the photograph in question was prejudicial.

27. Was it the duty of a magistrate in an extradiction proceedings to exclude relevant evidence because of certain prejudicial effect as suggested by Mr. Chandler?

28. The practice to admit identification by photograph in extradiction cases is a long standing one, see Rex v. Governor of Holloway Prison. Ex- parte Siletti (1902) 20 Cox c.c. 353.

29. In Re Bradshar CO/301/83, Feb. 28.1984 (unreported), Achner L.J. said in the course of the judgment:

"In English Committal proceedings, when evidence of identification is produced of the kind deposed to by the American witnesses in the present case, it takes the form of the relevant witness attending in Court to give evidence. So if any question arises about the identity of the accused person, oral evidence can be given by the witness in Court. However, in committal proceedings under the Extradiction Act evidence in the form of sworn depositions is authorized by the Act itself, in the present case, evidence in that form was also authorised by the Treaty between the Government of the United Kingdom and the Government of the United States of America. So evidence in committal proceedings under the Extradiction Act normally takes the form of sworn depositions. In such committal proceedings, it is, in my judgment, entirely appropriate for evidence of identity to take the form it took in the present case, viz. a photograph exhibited to a sworn deposition and a statement in the sworn deposition that the photograph is a true likeness of the person who extradiction is being sought."

30. In R. v. Governor of Pentonville Prison, Ex Parte Voets [1986] 1 W.L.R. 470, it was decided that the fact that a photograph may have the appearance of having come from a police file and may in that form not be appropriate to put before the jury does not render such a photograph inadmissible to establish a prima facie case of identity at an extradiction hearing.

Lloyd L.J. said at p.473:

"As a refinement of his first submission, Mr. Cockburn argued that whether or not strictly admissible the photographs would in fact have been excluded if the matter had gone for trial in England. One cannot imagine a judge allowing these photographs to go before a jury. Even though the photographs may be admissible in theory, they would have been excluded in practice. Therefore, if the matter had gone to trial on no other evidence than that which was before the magistrate, the judge at the trial would have been bound to withdraw the case from the jury on the principles stated in R. v. Galbraith [1981] 1 W.L.R. 1039.

The test which I have just mentioned provides a good working rule for deciding whether there is a sufficient prima facie case of guilt to justify committal. But the test is not intended to apply literally. It is a yardstick, by which the magistrate in an extradiction case, having decided what evidence is admissible in law, can judge whether a prima facie case has been raised. He cannot and should not attempt to foresee that the judge, in the exercise of his discretion, would exclude the photographs altogether because of their prejudicial effect, he has no such discretion himself. He cannot exclude them from his own consideration. So far as he is concerned, their prejudicial effect is zero. His sole concern is whether there is sufficient evidence of guilt to justify committal. So I would reject Mr. Cockburn's refinement of his first submission."

31. The decision in Voets' case (supra) was a complete answer to Mr. Chandler's main argument.

32. The photograph in question is clearly relevant. Whether something could be done to eradict its prejudicial effect at the trial or whether the trial judge would exclude it altogether would be a question to be decided by the trial judge. It is not a matter that a magistrate in the extradiction proceedings should be concerned with.

33. Similar observation was made in the other cases referred to by Mr. McMeans.

34. In Re John Patrick Conway (1990) 91 Cr. App. R. 143, Hutchinson J. said at page 147:

"The result of the failure to hold an identification parade was that when on November 27, the committal proceeding took place, both Mrs. Patterson and Daniel Edlin were, despite objections on the parts of the defendant's solicitor, permitted to make a dock identification of him, and they purported to do so. In allowing that to happen despite objections the justices were correct, because the evidence was tendered which was admissible evidence and there is no discretion in the justices to reject it."

35. In R. v. Horsham Justices ex p. Bukhari (1981) 74, Cr. App. R. 291, Glidewell J. said at p.296:

"I have considered firstly the function of examining magistrates in committal proceedings. Mr. Brown submits and I agree, that their duty is to accept and consider any admissible evidence which is put before them. They have no power or right to reject evidence which is legally admissible. It was conceded that the evidence of "dock identification" would be legally admissible. If it were to be rejected, that would be a matter of discretion; because its probative value was outweighed by the prejudice caused to the defendant by the admission of the evidence.

But the exercise of such discretion is not, in my view, a function of examining magistrates. The discretion to allow or reject the evidence is that of the trial judge if the defendant be committed for trial."

36. The authorities are clearly against Mr. Chandler's submission that the magistrate should exclude the evidence of the photograph because of its prejudicial effect.

37. It was perhaps unfortunate that a photograph with alleged prejudicial and certainly unnecessary information was used in connection with the identification of the Applicant. Hopefully, the same mistake would not be repeated but the learned magistrate was clearly right in his decision not to exclude such photograph as he did not have a discretion to exclude relevant and otherwise admissible evidence just because it might have prejudicial effect.

38. Mr. Chandler had vaguely mentioned about the fact that only one photograph was shown to the witnesses.

39. As it was pointed out, the identification by the witnesses was not the identification of a stranger in a fleeting glance situation. It was the recognition of some one whom they had had a number of previous dealings.

40. On the material before the learned magistrate, a reasonable magistrate would have been entitled to commit the Applicant.

41. In my view, the Applicant was rightly committed and the application by the Applicant is without merit and must be dismissed with costs.