KEN HA KHANH PHONG v. ATTORNEY GENERAL OF HONG KONG

IN THE COURT OF APPEAL

1996, No. 246
(Civil)

________________

________________

________________

J U D G M E N T

________________

Litton, V.-P.:

1. This appeal concerns an order made by a magistrate on 30 July 1996, pursuant to his powers under The Fugitive Offenders (Hong Kong) Order, 1967, that the appellant be committed to custody to await extradition to Australia. The charges on which the appellant was committed were (i) importation of heroin into Australia and (ii) counselling and procuring the importation.

2. The magistrate proceeded on the basis of an affidavit from a self-confessed drug trafficker Simon Leduc which, on its face, puts the appellant at the heart of an international drug trafficking ring. In this affidavit Leduc spoke of his own involvement with drug trafficking starting around March 1994 which led him to Australia and, more particularly, to a meeting with the appellant in late September 1995. It is clear from this affidavit that, if the contents be true, the appellant was the "boss" of the criminal enterprise.

3. The affidavit was made on 13 June 1996 and was put before the magistrate together with other material, such as transcripts of tape recording, bank statements etc.

4. At the hearing before the magistrate, counsel for the appellant sought an adjournment which, so far as can be ascertained from the nebulous submissions put forward, were for these reasons: (i) to enable the appellant to obtain a copy of a statement made by Leduc which, it was averred, contained matters inconsistent with the facts stated by him on affidavit; (ii) to enable an application to be made for the witness to be cross-examined in Australia under s77E of the Evidence Ordinance or alternatively for Leduc to be brought to Hong Kong for the purpose of cross-examination; and (iii) for counsel acting for the Australian Government to particularize more precisely where and when Leduc was said to have met the appellant in Bangkok, to enable the appellant to put up an alibi defence. Not surprisingly in view of the facts as disclosed in Leduc's affidavit this last point has since been abandoned and we need to say no more about it.

5. The magistrate refused the adjournment and the matter before him proceeded. The appellant did not testify at the hearing and, as I have said earlier, the appellant was committed on 30 July last year pending his extradition to Australia.

6. The appellant then took out an application for a writ of habeas corpus, coupled with an application for leave to apply for judicial review and the matter eventually went before Seagroatt J. in October last year.

7. Stripped of the irrelevant matters - and there was, alas, much of that - counsel's complaint before the judge was, in essence, that the magistrate ought to have granted the appellant an adjournment: By implication, counsel was submitting that the failure to grant the adjournment was, in the circumstances, so unfair that it went well beyond the normal wide discretion reposed in magistrates and in effect impeached due process, rendering the committal order liable to be set aside by the judge. I say "by implication" because that was not in fact how it was put by counsel. The submissions were in somewhat more shadowy terms. The judge said that the submissions betrayed "a complete misconception of the nature and purpose of extradition proceedings" (p3 of his judgment). Having heard counsel's submissions this morning, I do not think that this statement is too harsh.

8. The principle upon which Seagroatt J relied to guide his exercise of judgment in entertaining the two applications before him can be summarised by reference to an extract from Lloyd LJ's judgment in R. v. Governor of Pentonville Prison, ex parte Osman [1989] 3 AER 701 at 721, as set out in Seagroatt J's judgment. It is to this effect: The magistrate was not concerned with inconsistencies or contradictions in the witness's evidence, unless they were such as to justify rejecting or eliminating his evidence altogether. This plainly was the correct approach in law.

9. Before the magistrate, counsel was of course unable to say that the notes of interview, which he said then existed, had the effect of totally destroying Leduc's evidence: He was not able to say that because he had not then seen the notes. The matter existed upon a basis of pure hypothesis and surmise. Not surprisingly the magistrate was not too impressed: In effect counsel was telling him that if an adjournment were granted, and if Leduc were somehow to be cross-examined (either by being brought to Hong Kong for the purpose or upon an order being made under s77E of the Evidence Ordinance for cross-examination in Australia) then maybe Leduc's credibility might be dented or destroyed. To have allowed an adjournment on such vague grounds would, in my judgment, have been to deny due process.

10. The judge had the opportunity of examining the notes of interview, as we have. These were notes of an interview conducted on 8 December 1995, shortly after Leduc was taken into custody by the Australian police. Not surprisingly the statements he made, in answer to questions put to him, were in places extremely vague. At one point there was this exchange:

"Q288 When he refers to the boss, who does he mean?

A I only know he's the boss. I don't know who he is. I have never seen him before.

Q289 Has he spoken to the boss while he's been in Australia?

A Oh no, the boss is the boss. Never seen him before. Don't know what his face looks like.

Q290 When he refers to the boss, what is he the boss of?

A Well, when I met this TRAN guy I told him I was a waiter and so I assume the boss, this boss is probably a boss of a restaurant, the owner of a restaurant.

Q291 Do you refer to any other person as boss?

A No. All I know is the boss is the boss.

Q292 So the terminology 'boss' is not one that you would normally use?

A If you are a worker and you are waiting to find work or somebody who look for work for you, you call him the boss.

Q293 But you have never spoken to the boss or referred to anyone as the boss in Australia?

A No."

11. From the whole of the 70 pages of transcript of interview, this was the strongest point counsel could make, to say that the statement destroyed Leduc's credibility. In my judgment, it did nothing of the kind. Had the notes of interview been before the magistrate, I cannot see how the magistrate could properly have made any order other than the one he did make: that is to say, to deny the adjournment and to make the committal order upon the evidence before him.

12. In my judgment the judge plainly had come to the right conclusion in dismissing the two applications before him. The appeal is wholly without substance. The only effect of the appeal is to have delayed the appellant's extradition to Australia by about 6 months.

13. The appeal must be dismissed.

Godfrey, J.A. :

14. The refusal of the magistrate to allow the adjournment for which the appellant had asked would have resulted in a substantial injustice to the appellant if it had subsequently turned out that the material which the appellant's counsel wanted time to read and consider had been such as wholly to destroy the value of the evidence on which the magistrate in fact relied in committing the appellant. But this material, which Seagroatt, J., and now the members of this court have seen, comes nowhere near doing that.

15. For this reason, I, too, would dismiss this appeal.

Ching, J.A. :

16. I agree that this appeal must be dismissed. I would only add that there seems to me to have been an undue emphasis on what happened in the Magistrates' Court. Whatever defects there may have been in the procedure in that Court were clearly cured upon the application to the Judge below in that the transcript of the taped interview was before the Judge and showed that it could not have made any difference to the result.