RE CHOI SZE YUEN

[When a person in custody institutes habeas corpus proceedings, the effective hearing of those proceedings should take place at the earliest possible date, even if the applicant is, on the face of it, held in lawful custody].

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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JUDGMENT

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1. This is an application to release Choi Sze Yuen ("the applicant") from custody. The applicant was granted leave to issue a writ of habeas corpus by Keith J. on 18th October 1991. The proceedings now come before me together with a return to the writ made on 21st October 1991 by the Senior Superintendent of Laichikok Reception Centre on the face of which it appears that the applicant is in lawful custody.

2. The applicant has been in custody since 3rd April 1991. The facts are these.

3. The United States had requested the arrest of a person said to be the applicant under Article VIII of the relevant treaty with the United States of America. He was accused of trafficking in drugs. On 3rd April 1991 the warrant for the apprehension of the applicant was issued by the magistrate. On that very day, the applicant was arrested. On 4th April 1991, the applicant appeared before the magistrate. He asked for bail but bail was refused. On 16th May 1991 a formal request was made for the applicant's extradition. On 18th May 1991, 2nd September 1991 was fixed as the hearing date for that application and 21st May 1991 was fixed as the return date. On 21st May 1991, return was duly made and from 2nd September 1991 to 6th September 1991 the matter was heard. On 10th September 1991 judgment was given and on 12th September 1991 a warrant for the committal of the applicant was signed. On 26th September 1991 these proceedings commenced. On 3rd October 1991 counsel for the applicant appeared before Keith J. applying for the issue of a writ of habeas corpus. On that ex-parte application the matter was adjourned for service of the proceedings on the Commissioner for Correctional Services and the Attorney General.

4. On 18th October 1991 (as I have already said) the application for the writ of habeas corpus was granted by Keith J. The writ was directed to be returnable on a date to be fixed. On 21st October 1991 the writ was issued and served. 1st November 1991, today, was the date fixed as the return date. The matter now comes before me. But the respondents ask for an adjournment to prepare their case.

5. The applicant has been brought up from custody and is present in court. He is represented by counsel, Mr Geoffrey Watson and Mr Alexander Lau. Counsel have indicated to me that they have a challenge to jurisdiction. They summarised their grounds of complaint in this way. First, the United States has got the wrong man (or, at any rate, there is not sufficient evidence that he is the right man). This is a question of identity. Second, they say that no warrant, or proper copy of the warrant; as required by the Treaty was produced to the magistrate and that, although something was produced, it was insufficient to justify the applicant's committal to custody. Third, they say that the offences with which the applicant is intended to be charged are time-barred under the laws of the United States of America. These are substantial and serious points and will take a little time to argue. Both sides agree that a reasonable estimate for the length of the hearing would be 1 day.

6. No application for bail has been made to me and in any event I would be disinclined (so long as an effective hearing of the place could take place quickly) to entertain any such application. The offences with which the applicant would be charged if he were extradited (although I need not go into them) are very serious offences.

7. As I have already said, his detention is on the face of it lawful. That does not necessarily mean that it can go on for as long as those who have him in custody think they need to prepare their case. The case must come on at the earliest possible time so that the merits or otherwise of the applicant's contentions can be properly investigated in these proceedings.

8. What is the earliest possible time does not depend on me but on the listing authorities. However, I will indicate that in my view the matter should come on within a matter of days, that being quite sufficient for the respondents to prepare their case. Certainly, a matter .of a few weeks would be much too long. I have been told of other cases in which it seems a longer delay than that has been tolerated. In my view that is wholly unsatisfactory. Habeas corpus proceedings involve the liberty of the subject and however serious the apparent offences may be the applicant is entitled to an early determination of the question whether he is held in lawful custody or not. The custody being prima facie lawful, there is no need to deprive the respondent of a proper opportunity to prepare its case . But an adjournment for that purpose of longer than a few days would seem to me to be quite unnecessary.

9. I therefore propose to adjourn this present application to a date to be fixed through the usual channels. This will entail an approach to the listing authorities by both parties to fix a date. I repeat that, in my view, the date so fixed should be the earliest possible date (a phase with which I understand counsel for the respondent to take no objection). I am unable to deal with the matter today simply because to do so would be to deprive the respondents an opportunity which they say they need to prepare their case.

10. There is therefore nothing further I can do with the case today save to adjourn it for the reasons I have indicated.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Godfrey J.; 8th, 11th November 1991

[On an application for habeas corpus by a person held in custody pursuant to a warrant of committal issued by a magistrate in extradition proceedings, relief will not be granted, if the magistrate has concluded that there was sufficient evidence before him to justify the issue of the warrant, unless his conclusion was one to which no magistrate, acting reasonably and correctly instructing himself as to the relevant law, could properly have come. But the magistrate must have sufficient evidence before him of the identity of the person sought to be extradited and of the commission by that person of an extradition crime.

As to sufficient evidence of identity, sworn evidence identifying the applicant as the person sought to be extradited by reference to a photocopy of a photograph, coupled with a comparison made by the magistrate between (1) the photocopy photograph (2) the man appearing before the magistrate and alleged to be the person identified, is sufficient evidence.

As to sufficient evidence of an extradition crime, the magistrate is entitled and bound to accept the sworn evidence of a duly qualified person as to the criminal law of the requesting stage. He should generally refuse to entertain argument from the applicant on the substance and effect of that law so long as there is sufficient evidence before him of the commission of an extradition crime]

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JUDGMENT

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11. These are habeas corpus proceedings. The applicant is in the custody of the Commissioner of Correctional Services ("the Commissioner") who holds him pursuant to a warrant of committal, issued under the hand and seal of a magistrate, Mr H.L. Brazier, on 12th September 1991, pursuant to the provisions of the Extradition Act 1989 as applied to Hong Kong. The warrant recites that on the 2nd, 3rd, 4th, 5th, 6th and 10th days of September 1991, the applicant and others were brought before the magistrate "to show cause why they should not be surrendered" in pursuance of the Extradition Act 1989 on the ground of the commission of crimes (set forth in the list attached to the warrant) within the jurisdiction of the United States.

12. On the face of it, the warrant does justify the fact that the applicant was taken into the custody of the Commissioner and the custody is accordingly lawful custody unless the applicant has good grounds for impeaching the validity of the warrant, or the proceedings which led to its issue.

13. The crimes alleged against the applicant and the others may be described compendiously as crimes related to trafficking in dangerous drugs.

14. In the warrant of committal the applicant is described by his name "Choi Sze-yuen"; the person to be committed is also described as "Uncle Choi".

15. Two objections are raised on behalf of the applicant to his being taken into custody and kept there pursuant to this warrant.

16. The first point taken is that the warrant, on the face of it, shows that the magistrate placed upon the applicant the burden of showing cause why he should not be surrendered into custody. This, the applicant says, is wrong. The burden lay the other way; that is to say, it was for the requesting State to show cause why he should be surrendered and not the other way round. In my judgment, there is nothing in this point, because in fact the magistrate did not fall into the error assigned against him. The magistrate was required to consider the evidence before him and decide whether a sufficient case was made out for the committal with a view to his extradition to the requesting State of the person to whom the application related: see R. v. D.P.P. ex parte Sinclair (H.L.)11th April 1991. Once a sufficient case was made out on the evidence, it was indeed for the person whose extradition was sought to show cause why he should not be surrendered. And while, therefore, it seems to me that a warrant in this form (although it follows that prescribed by the Extradition Act 1870) is not particularly happily phrased, there is no justification, in my judgment, for confusing the shadow with the substance and assuming that the magistrate - when he heard these proceedings - must have treated the present applicant as guilty until he proved himself innocent. That is not the impression which the words of the warrant make upon my mind. In any case I have no reason to think that the magistrate (whose decision I have read) in fact required the applicant to satisfy him that he ought not to be extradited without requiring first that the requesting State make out a sufficient case for his extradition. As I read the magistrate's decision he approached the matter quite correctly.

17. The second point taken by the applicant was this. On the hearing of an application for extradition, it is the duty of the magistrate to inform the person whose extradition is sought, on his committal to custody, that he will not be surrendered until after the expiration of 15 days and that he has a right to apply for a writ of habeas corpus. It is common ground that in the present case the magistrate did inform the applicant accordingly. The matter is important because upon the expiration of the 15 days (or any extension of it) but not before, the executive may by warrant order the surrender of the person whose extradition is sought (see the Extradition Act 1989, Schedule 1, paragraph 8).

18. The complaint made here is that the warrant makes no reference to these matters. But there is no requirement anywhere that such a warrant ought to make reference to those matters. Accordingly, I have to find that there is nothing in this point either. The suggestion, if I understood it correctly, was that without such references in the warrant, those who held the applicant in custody would not know what their duty was and might surrender the applicant before the expiration of the 15 days in which he had the right to apply for a writ of habeas corpus. I have no reason to think that the Commissioner is so ignorant of these matters as to require that sort of information to be given to him on the face of the warrant. What the warrant has to do is to authorise the Commissioner's taking the person sought to be extradited into his custody. No more and no less.

19. I turn from those points, which were based on errors which were said to appear on the face of the warrant, to the other points taken before me on behalf of the applicant. They are, in substance, three. I shall describe them as the "identity" point, the "warrant" point and the "time-bar" point. In dealing with them I bear in mind that this is not an appeal from the magistrate, nor a re-trial. The only question is whether one or more of them justifies releasing the applicant from prima facie lawful custody.

20. As to the identity point, the applicant says that although he is indeed named Choi Sze-yuen, he is not the "Uncle Choi" referred to in the evidence before the magistrate. This evidence treats Choi Sze-yuen and Uncle Choi as being one and the same person. But, says the applicant, he is not that person. The nature of the evidence which is required as to identity in cases of this sort has been considered by a Divisional Court of the Queen's Bench Division in England: see In re Bradshar, 28th February 1984, unreported. It is plain from Bradshar's case that evidence of identity in the form of a photograph exhibited to a sworn deposition, and a statement in the sworn deposition that the photograph is a true likeness of the person whose extradition is being sought, is appropriate and sufficient. It had been argued in that case that the necessary evidence of identification had to take the form of calling a witness before the court to whom the application for extradition is made to give oral evidence about the identity of the accused person. But the court rejected that argument.

21. The question for me really is whether the sworn depositions in the present case are so unsatisfactory as to make it impossible for a reasonable magistrate to have concluded that he had sufficient evidence of identity upon which to commit the applicant.

22. In the present case, the main evidence is that of a Mr Kennith Vianale, who is a citizen of the United States. Mr Vianale has, since July 1988, been an Assistant United States Attorney in the Criminal Division of the United States Attorney's Office for the Southern District of New York. He is currently assigned to the Securities and Commodities Fraud Unit of the United States Attorney's Office but had previously been assigned to the Narcotics Unit of that office. His duties include the investigation and prosecution of persons charged with violating the criminal laws of the United States. He has participated in the investigation and/or trial of numerous cases involving alleged violations of the criminal laws of the United States and based upon his training and experience, he has deposed that he is fully knowledgeable as to the criminal and extraditional laws and procedures of his district and of the United States.

23. But the crucial evidence upon the identity point is the evidence of a Mr Kwan Wing Hong who deposes to having met a man called Choi Sze-yuen (who is also known as "Uncle Choi") on a number of occasions and who identifies a photocopy (not the original) of a photograph as a likeness of the man he met. The magistrate, who had the applicant before him and had the opportunity of weighing the evidence about identification, including the photocopy of the photograph, came to the conclusion that the man before him, and the man a photocopy of whose photograph he was looking at, was one and the same man, and that the evidence was sufficient to justify a conclusion that the applicant was indeed "Uncle Choi" whose extradition was being sought by the United States.

24. The evidence has been criticised before me as being flimsy and vague, but the fact is that the magistrate accepted it. The applicant has to satisfy me that the magistrate's conclusion was a conclusion to which no reasonable magistrate could have come. I find myself quite unable to take that view. It is not a proper matter for debate before me how strong the evidence was; that is only a matter of concern in this court if the evidence was so weak as to vitiate the decision of the magistrate on what have been described as Wednesbury principles. For these reasons, I reject the argument of the applicant based on the identity point.

25. I turn to the warrant point.

26. This point arises because, in the course of the proceedings before the magistrate, what was placed before the magistrate was not a warrant for the arrest of the applicant signed by the judge personally, but a document which purports to be "a duplicate original" of that warrant. This, says the applicant, is simply not good enough. I confess to finding some difficulty myself with the expresson "a duplicate original". The original warrant - leaving to one side any question of duplicates - was, according to Mr Vianale, signed by the judge. That is what one would have expected. But what was put in evidence before the magistrate was a document which does not, even on the face of it, appear to have been signed by the judge. It is signed only by a deputy clerk. If you are going to produce a duplicate of the original (as distinct from a copy of the original) it seems to me that you have to produce a document which, like the first original (if I may call it that) bears the actual signature of the person whose document it purports to be. However, the document that was placed before the magistrate, and at which I have looked myself, is impressed with the seal of the court and I have no doubt whatever that that document is authentic. Why then, I ask myself, does it matter a row of beans what it is called? The magistrate had sufficient evidence before him to satisify himself that the warrant of arrest was duly authenticated. He found it had indeed been issued in the form of the document to which I have referred, and which was produced to him, bearing the impress of the seal of the U.S. court. I cannot hold that no reasonable magistrate could have considered that to be sufficient evidence of due authentication. So I am unable to find any substance in the warrant point.

27. I turn to the time-bar point.

28. Mr Vianale in his evidence deposed that the offences to answer which it was sought to extradite the applicant were not time-barred under the law of the United States. The applicant seeks to contest that, not on evidence, but in the face of the record of the United States proceedings.

29. The United States of America (Extradition) Order 1976, Article 5, contains a provision to the effect that extradition shall not be granted if the prosecution for the offence for which extradition is requested has become barred by lapse of time according to the law of the requesting or requested party. There is no suggestion that the offences here have become barred by lapse of time according to the law of the requested party, that is to say, Hong Kong. As to the law of the requesting party, that is to say, the United States, the rule in Hong Kong, as in England, is that such matters are not matters which are justiciable by the court. It would be most undesirable if on every extradition hearing this court was expected to go into the substantive criminal law of the requesting party, when the magistrate is duty-bound to grant the application for committal of the applicant if there is a relevant treaty in force with the requesting party (provided of course that the elements set out in the treaty are satisfied). The magistrate was entitled and in my opinion bound to accept Mr Vianale's evidence on this point, which will be open to the applicant (if it has any merit) in the United States.

30. I would add that, apart from anything else, no evidence has been put before me on behalf of the applicant to suggest that as a matter of fact - and foreign law is always a matter of fact - Mr Vianale got it wrong when he deposed that the offences are not time-barred. Even if such evidence had been tendered I doubt whether it would have been the duty of the magistrate to consider it: see Sinclair's case (cited above).

31. In those circumstances it seems to me that the time-bar point is without substance as well.

32. Having dealt with these arguments about what is to be found on the face of the warrant and the other three substantive points (the identity point, the warrant point and the time-bar point) I turn to see if there is any other ground on which the applicant makes out his case.

33. In his affirmation, he described his case as a contest to the validity of the jurisdiction of the magistrate. He took the identity point and the warrant point and the time-bar point. I have already dealt with each of these; but he goes on in his affirmation to say that (as he submitted at the hearing before the magistrate) there was no evidence of a prima facie case against him. He said (a) that the alleged crimes were not supported by evidence that a drug or other controlled substance was traded or trafficked; (b) that such alleged crimes were committed solely within the jurisdiction of Hong Kong and are extraterritorial to the United States; and (c) that the conspiracy alleged did not extend to the United States.

34. I have given consideration to these three additional points. But in my judgment, neither separately nor together, do they amount to anything which would justify the conclusion that the magistrate acted without sufficient evidence.

35. It was not necessary for the United States to prove the commission of the alleged crimes. It was sufficient for the United States to satisfy the magistrate of the existence of a case that the alleged crimes had been committed; that the applicant was guilty of them; and that he ought to stand his trial in the United States accordingly. That is the forum where these charges will fall to be investigated and where these points can be taken by the applicant.

36. The strength or weakness of the case for the United States does not fall to be tested before me. The only thing I have to consider is whether the evidence is of so weak a standard that no reasonable magistrate, having considered it, could possibly have come to the conclusion that the United States had made out its case for the committal of the applicant with a view to his surrender and extradition.

37. As I have said, I cannot come to that conclusion. I find that none of the points urged on me on behalf of the applicant are of any substance. For these reasons, I refuse this application.

Representation:

Mr Geoffrey Watson & Mr Alexander Lau, inst'd. by M/s Lau Wong & Chan for the Applicant

Mr Bruce McNair, S.C.C. and Ms M. Datwani, S.C.C., for the Respondent