THE QUEEN v. KIU KWOK KWONG, WALLACE

Headnote

Extradition - Taking into account time spent in custody - Discretion of judge.

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JUDGMENT

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Power, J.A.:

1. This is the judgment of the Court.

2. The applicant in this matter was convicted on 7th March 1991 on his own pleas of guilty of six charges of procuring the execution of a valuable security, and on a seventh charge of conspiracy to defraud. He was on 19th April sentenced to four years imprisonment on each of the seven sentences and all the sentences were ordered to run concurrently.

3. It is not necessary to go into the facts of the offences suffice it to say that he was a banking officer and, together with another similarly employed person, he deliberately defrauded his bank of something in excess of HK$5 million. Judge Filan Chua, the trial judge, further ordered restitution of $3,300,378 which had been found on the applicant at the time of his arrest by the New Zealand police and made a compensation order in the sum of HK$1,923,980 in favour of the bank. The second order has not been complied with, but neither of these orders are the subject of an appeal. The trial judge took five and a half years as the starting point when imposing sentence and this starting point is not called into question on the appeal either.

4. The only issue in this appeal was whether the trial judge was wrong to allow a discount of only six months in relation to a total of 21 months during which the applicant was detained in New Zealand before being extradited to Hong Kong. This period of 21 months ran from the time that the applicant was originally arrested on 9th February 1989 by the New Zealand police on charges which he was alleged to have committed in New Zealand. These charges were not tried until 15th August 1989. He was found not guilty thereof and discharged but was immediately arrested upon the basis of a warrant that had been issued in Hong Kong on 27th June 1989. The execution of this warrant had, it seems clear, been held up pending the resolution of the New Zealand charges.

5. After the hearing of the extradition proceedings resulting from the execution of this warrant, which were completed on 22nd December 1989, the applicant filed a writ of habeas corpus. This writ was not heard and determined until 10th October 1990. The trial judge gave the applicant a discount of only six moths which related to the period of arrest and acquittal on 15th August 1989. No discount was given for the substantial period of delay lay between the end of December 1989 and 20th August 1990 when dates were fixed for trial of the habeas corpus application. Mr. Dennis Law, counsel appearing for the applicant before us today, has submitted that there was at least six months of what he termed extraordinary delay which he submits was no fault of the applicant and as to which he says, the applicant should have been given a further discount.

6. Thorp J. who heard the application for discharge in New Zealand made this comment which appears to refer to that period of delay:

"The delay since the end of 1989 to this time in dealing with the present applications are harder to justify. I agree with Miss Gordon that they could probably have been reduced if the applicant's advisers had sought a hearing more energetically, and if their final sensible reduction of issues for determination had been made earlier than last week and thus allowed it to be seen that the argument could be heard in 2 days, and not the 4 days originally estimate. But by and large the delays appear to me to have arisen from inefficiency within the court system, and not to lie at Mr. Liu's door."

It seems clear from that passage that at least some part of the delay was occasioned by the failure of the applicant's advisers energetically to pursue their application. It must be remembered that it was their application and that the carriage of it lay with them. It appears also that there was some delay caused by the inefficiency of the court system. It is not clear exactly what this inefficiency was or whether it could have been overcome had there been an energetic pursuit of a hearing date. Despite an invitation to make submissions upon this aspect of the matter nothing has been said to us, nor indeed was anything said to the court below, which would indicate that the applicant was other than content to take advantage of the delay and, indeed, to acquiesce in it. That this was so is certainly not inconsistent with the chronology which records that on 13th August 1990 when the matter first came on for the fixing of dates before Smellie J. there was appearance by the Crown but no appearance by the legal advisers of the applicant.

7. The trial judge when refusing to take this period of delay into account said:

"Since the defendant has chosen to fight the extradition proceedings he has to take the rough with the smooth and no further discount for the rest of the time spent in New Zealand will be given."

It is the argument today of Mr. Law that, while the trial judge had a discretion in this matter, it was wrong to exercise it as she did and that she failed to show in her reasons that she gave full consideration to all of the relevant factors.

8. This was a matter for the exercise of the discretion of the trial judge. This exercise will only be upset if it be shown that she was plainly wrong or that she plainly failed to take into account matters which she should have had in her mind when exercising her discretion. This, in our view, has not been shown. The judge, we are satisfied, did have in mind all of the relevant matters. She was quite entitled to refuse to take the period of  further delay into account and nothing has been advanced that would warrant us interfering with the exercise by her of her discretion. The application will therefore be dismissed.