RE LORRAIN ESME OSMAN

Administrative and constitutional law - extradition - Fugitive Offenders Act 1967 of the U.K. and Fugitive offenders (Hong Kong) Order 1967 - whether request of Governor for return of fugitive from U.K. to Hong Kong in excess of jurisdiction, unlawful or ultra vires - whether Hong Kong law of specialty satisfies requirements of s.4(3) of the U.K. Act - Whether Court should deal with situation otherwise than by applying the existing law - whether application for review made without undue delay.

Observations upon question whether Governor's request was subject to judicial review, and if it were, whether it would be proper to grant the relief sought having regard to proceedings taken, and not finally resolved, in the English Courts.

Decision of High Court upheld.

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J U D G M E N T

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Fuad, V.-P.:

1. This is an appeal by Mr. Lorrain Esme Osman from the decision of Mayo J., given on 12th January this year refusing him leave to apply for judicial review.

2. The history of the matter is as follows. On a precise date not apparent from the papers before us, but during November 1985, the Governor of Hong Kong forwarded a request to the Secretary of State in London for the return of Mr. Osman to Hong Kong to stand trial for a number of offences allegedly committed within this jurisdiction. The 42 offences were conspiracy to defraud, conspiracy to steal, contraventions of the Prevention of Bribery Ordinance, Cap.201, and false accounting, all of which were said to have arisen out of a series of huge loans made by Buminputra Malaysian Finance Ltd., Hong Kong deposit-taking company.

3. The Secretary of State duly issued orders giving authority to proceed with the matter in accordance with the Fugitive Offenders Act 1967 of the United Kingdom in relation to all the alleged offences. The orders, which were dated 24th January and 13th May 1986, were addressed to the Chief Metropolitan Stipendiary Magistrate. The Secretary of State acted under s.5 of the Act.

4. It is common ground that all the alleged offences are "relevant offences" within the meaning of s.3 of the Act read with Schedule 1.

5. The Chief Metropolitan Magistrate conducted the appropriate proceedings for committal and made an order on 1st June 1987 under s.7(4) of the Act committing Mr. Osman to custody to await his return to Hong Kong.

6. As he was permitted to do under s.8 of the Act, Mr. Osman made an application for habeas corpus and an application for judicial review. The matter came before the High Court and then the Divisional Court of the Queen's Bench Division which refused to set aside the Chief Magistrate's Order. The Divisional Court (Lloyd L .J. and French J.) gave judgment on 30th March 1988.

7. As Mayo J.'s judgment explains, an application for leave to apply for judicial review was first made to him on behalf of Mr. Osman in July 1987. Mayo J. refused leave. An appeal was filed to the Court of Appeal but in the judge's words "prior to the substantive hearing the Applicant decided that additional documentation was required and the appeal was abandoned and a decision made to make a further application for leave."

8. It is that further application with which we are concerned. It was filed on 16th December 1987 and I will shortly recite the grounds on which it was made. But before I do so, it is necessary to refer to the statutory provisions which govern the return of fugitive offenders to Hong Kong. There is first, of course, the United Kingdom Act of 1967. Then, under enabling provisions contained in ss.17 and 20 of the Act, Her Majesty in Council has made the Fugitive Offenders (Hong Kong) Order 1967 (S.I.1967 No.1911). The Order in Council came into operation on 1st January 1968. Most of the provisions of the Act were extended to Hong Kong, modified and adapted in the manner set out in the Schedule 1 to the Order. 'The 1967 Order in Council has been amended in respect of detail unimportant to the case before us by two Orders in 1968 and one Order in 1975.

9. I will now read certain statutory provisions which are relevant. Section 4(3) of the U.K. Act of 1967 is in the following terms:

"(3) A person shall not be returned under this Act to any country, or committed to or kept in custody for the purposes of such return, unless provision is made by the the law that country, or by an arrangement made with that country, for securing that he will not, unless he has first been restored or had an opportunity of returning to the United Kingdom, be dealt with in that country for or in respect of any offence committed before his return under this Act other than -

(a) the offence in respect of which his return under this Act requested;

(b) any lesser offence proved by the facts proved before the court of committal; or

(c) any other offence being a relevant offence in respect of which the Secretary of State may consent to his being so dealt with."

10. Section 19 of the Act includes the following definition:

"'dealt with' means tried or returned or surrendered to any country or detained with a view to trial or with a view to such return or surrender;"

11. In Schedule l to the-Hong Kong Order we find the following:

"14.(1) This section applies to any person accused or convicted of an offence under the law of Hong Kong who is returned to Hong Kong

(a) from the United Kingdom, under the Act;

(b) .....

(c) .....

    (2) A person to whom this section applies shall not, during the period described in subsection (3) of this section, be dealt with in Hong Kong for or in respect of any offence committed before he was returned to Hong Kong other than

(a) the offence in respect of which he was returned;

(b) any lesser offence proved by the facts proved for the purposes of securing his return; or

(c) any other offence in respect of which the Government of the country or Governor of the dependency from which he was returned may consent to his being dealt with.

    (3)The period referred to in subsection (2) of this section in relation to a person to whom this section applies is the period beginning with the day of his arrival in Hong Kong on his return as mentioned in subsection (1) of this section and ending forty-five days after the first subsequent day on which he has the opportunity to leave Hong Kong."

12. In the statement supporting the application it was asserted that provision as required by s.4(3) of the U.K. Act had not been made by the law of Hong Kong because s.14 of the Act as extended to Hong Kong would allow Mr. Osman to be dealt with for any other offence in respect of which the Secretary of State may consent, whereas s.4(3)(c) of the U.K. Act, it was said, "only allows the Applicant to be dealt with for any other offence being a relevant offence in respect of which the Secretary of State may consent And it was pointed out that no arrangement has been made with Hong Kong of the kind referred to in s.4(3) of the U. K. Act which would satisfy the requirements of that section.

13. This ground was not relied upon before us by Mr. Martin Thomas who now appears for Mr. Osman. In my respectful view he was right to abandon the point but I will say something about it. As I read s.4 of the U.K. Act of 1967 as a whole it is clear that whatever may be the position with regard to a "lesser offence" mentioned in s.4(3)(b), paragraph (c) of that subsection has the effect that the Secretary of State may not consent to Mr. Osman being dealt with for any other offence unless it is a "relevant offence" within the meaning of s:3 of the Act. Since Mr. Osman cannot, by virtue of s.14(2)(c) the Act as applied to Hong Kong, be dealt with for "any other offence" except with the consent of the Government of the United Kingdom (obviously signified by the Secretary of State) the law of Hong Kong clearly complies with the requirements of s.4(3) of the U.K. Act

14. I note that the English Parliament enacted provisions precisely similar to our s.14(2) by s.14(2) of the 1967 Act. It has never been suggested, I think, that s.14(2) of the Act in force in the U.K. does not comply with what has come to be known as the specialty rule.

15. I will now read the other grounds relied upon by Mr. Osman, in the terms used in the statement supporting his application:

"9. Further, or alternatively, by Section 1(1) of the Hong Kong Act 1985, as from 1st July 1987, the Queen shall no longer have sovereignty or jurisdiction over any part of Hong Kong, in which premises the 1963 Order will cease to be the or any part of the Law of Hong Kong as from 1st July 1987.

10. No provision was at the date of the request mentioned in paragraph 4 hereof or is made under the Law of Hong Kong or otherwise to secure that

(i) the Applicant will not be convicted; or

(ii) if convicted, the Applicant will not receive a custodial sentence; or

(iii) if convicted and sentenced to a custodial sentence, the Applicant will not be imprisoned beyond 30th June 1997.

    In the premises, no provision made under the Law of Hong Kong to secure that the Applicant will not unless he has first been restored or had an opportunity of returning to the United Kingdom, be dealt with in Hong Kong for or in respect of any offence committed before his extradition other than the excepted offences as provided by section 4(3) of the 1967 Act.

11. Further, or alternatively by Section 19 of the Schedule to the 1967 Order the expression 'dealt with' includes 'surrendered to any country'. The Applicant repeats paragraphs 10(i), (II) and (iii) hereof. In the premises by virtue of the Hong Kong Act 1985 no provision is made under the Law of Hong Kong to ensure that the Applicant is not de facto and de jure surrendered to another country that is to say the Peoples Republic of China.

12. By reason of the matters aforesaid, the return of the Applicant to Hong Kong will be unlawful and will be in breach of Section 14 of the Schedule to the 1967 Order and 4(3) of the 1967 Act. In the same premises, the said request by the Governor of Hong Kong for the return of the Applicant was made without or in excess of his jurisdiction, or alternatively ultra vires, and was unlawful."

16. The following relief was sought by Mr. Osman:

"(a) A declaration that the said request for the return of the Applicant to Hong Kong was made without or in excess of the jurisdiction of the Governor of Hong Kong alternatively ultra vires, and was unlawful;

(b) An order of certiorari to quash the said request;

(c) An order that the Governor of Hong Kong do forthwith recall, revoke or otherwise rescind the said request;

(d) Damages;

(e) And that all necessary and consequential directions be given."

17. In his supporting affirmation made on 31st December 1987, Mr. Osman states that in respect of many of the offences for which his surrender was sought, he was jointly charged with a Mr. Mohammed Shamsudin who had pleaded guilty to two counts of conspiracy to defraud and two counts of accepting advantages for which he was sentenced to a total of 4 years' imprisonment. On the application of the Attorney General (as allowed by the law of Hong Kong) the Court of Appeal enhanced the sentences to a total of 10 years' imprisonment, commenting, apparently, that Mr. Shamsudin's sentences should have been consecutive sentences of 5 years' imprisonment on each count.

Mr. Osman continued:

"In the circumstances, I verily believe that if returned to Hong Kong and if tried and convicted, I will with little doubt be facing a term of imprisonment at least as long as my said Co-Defendant, and in all probability a significantly longer sentence, which means I will be imprisoned beyond 1st July 1997. It also means that the protection afforded to me by Section 14 of the Schedule to the 1967 Order as required by Section 4(3) of the 1967 Act will cease to be effective."

18. We allowed another affirmation by Mr. Osman to be read before us. I mention here that the judge held that the application had not been made "timeously" for reasons that he gave and to which I will return. Mr. Osman's affirmation gives the reasons for delay, reasons which it appears were put before the judge through his counsel at the hearing.

19. Mr. Osman explains that when he first sought advice, the return of Hong Kong to the Sovereignty of the People's Republic of China had been 11 years away. He had been advised that if he were to be convicted on the charges in respect of which his surrender had been requested, the maximum sentence he could expect to receive was 7 years' imprisonment. Thus, as he put it, "the question of my effectively being remitted to the People's Republic of China did not arise". He was still worried, however, because, as he said, "I thought it possible in theory for the Court to impose consecutive sentences which would in total go beyond 1st July 1997."

20. He had thought more about it and instructed new solicitors in February 1987. The advice of Leading Counsel from Hong Kong had been sought, and the view maintained, that he could expect a sentence of no more than 7 years' imprisonment.

21. Mr. Osman then speaks of the Shamsudin case and recites what happened on the Review of his sentence by the Court of Appeal. This was on 23rd April 1987. Since the charges to which Mr. Shamsudin had pleaded guilty were of a lesser degree to the ones he might have to face, said Mr. Osman, from that moment his belief that he might be sentenced for more than 7 yeas's imprisonment was confirmed.

22. He therefore gave instructions for proceedings to be instituted in Hong Kong.  The Originating Summons taken out on his behalf was dismissed on 6th July 1987. These proceedings had been filed only nine weeks after he had heard of the decision of the Court of Appeal in the Shamsudin case. And then a Notice of Appeal had been filed. The appeal came on for hearing on 20th November 1987 and the same was subsequently withdrawn on the Crown agreeing that a fresh application for leave be made and further agreeing to take no point on further delay after 2nd July 1987.

23. I now address the way the learned judge dealt with the application before him. In his judgment he briefly reviewed the background and held that the Governors request was amenable to judicial review. I will have to return to this matter presently. He then said that all that Mr. Osman had to do was to establish that he had an arguable case.

24. The judge then stated that it was not a legitimate exercise for the Court to speculate upon what the law may be at some future date. It was clear that Hong Kong law as it was at present met all the criteria of the relevant legislation. No one knew what the future would hold. It might well be the case that the requirements of speciality would be complied with when sovereignty pass to the People's Republic of China. Even if this did not transpire, there was every reason to suppose that the present Hong Kong administration would be mindful of its moral obligations in the light of assertions made in letters of request in extradition proceedings. He emphasised that all these matters were within the realms of speculation and fell outside the scope of matters properly coming within the parameters of a judicial reivew.

25. The judge then said that he had somewhat reluctantly come to the conclusion that it was not even arguable that the Governor was acting "illegally" as defined by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1935] 1 A.C. 374 when he issued the letter of request and made the assertions he did.

26. The judge went on to say that the issue had already been determined in England. When the extradition proceedings had been heard by the Stipendiary Magistrate in London, it was evident that the question of the propriety of the letter of request had been considered. It would appear that whatever arguments were advanced did not find much favour. He saw considerable force and validity in the submissions put forward on behalf of the Crown to the effect that it would be highly undesirable and unsatisfactory to have a situation where on essentially the same point the Courts in England had come to one conclusion and the Courts in Hong Kong to a diametrically opposite one. He had no doubt that it was more satisfactory that the issues which had been canvassed before him should form part of the extradition proceedings and should not be dealt with as a separate issue in Hong Kong.

27. The judge then turned to consider the delay in making the application he was hearing. As mentioned earlier, he concluded that the application had not been made timeously. He reviewed the submissions said to account for the delay that had been advanced and said that he did not find them in any way convincing. He rejected. The proposition that an application of this kind could be treated merely as a matter of expediency. There was no acceptable reason why Mr. Osman should not have made his application within a reasonable time of the Governor's request being made known to him in or around December 1985. The delay of 18 months was, in the context of this litigation, undue delay and for that reason alone leave should not be granted.

28. Mr. Thomas is quite right when he says that there is no Respondent's Notice about whether or not the Governor's request was subject to judicial review. However I feel it be desirable to deal with the point. I think it is extremely doubtful that the Governor's request addressed to the Secretary of State in London is subject to judicial review in Hong Kong. I propose to deal with the appeal on its merits but I do not wish to be understood, by omission, that I am accepting the contrary proposition which found favour with the learned judge.

29. A fugitive offender will not usually know of this diplomatic exchange until he is served with the papers in the country where he has taken refuge. He will only be so served when the Secretary of State (to take the English Act of 1967) has given authority to proceed under s.5(1) of the Act. The Secretary of State may refuse to issue his authority in the circumstances outlined in s.5(3). By that time it seems to me that unless and until the fugitive offender is returned to the requesting country, all matters relating to his return are properly the province of the Courts of the requested country.

30. If the Secretary of State decides to issue his authority to proceed, that decision is subject to review: see In Re trees [1986] A.C. 937 per Lord Mackay of Clashfern at p.963E by the Courts in the requested country, of course. That was a case under the U.K. Extradition Act 1870, s.7, but the same principle must apply to the exercise of the Secretary of State's discretion under s.5 of the U.K. Act of 1967. I do not see how the procedure set in train to have an alleged offender returned can be questioned at any earlier stage.

31. Moreover when one examines the scheme of the 1967 Act and of its mirror image provisions applied to Hong Kong, one can see that while a fugitive offender certainly is given rights under ss.14 and 15 of both sets of provisions in the country to which he is surrendered, most of the safeguards of the scheme are built into provisions which apply before he has been surrendered, and those rights are only enforceable in the requested country.

32. I will attempt to summarise those safeguards:

(a) the Secretary of State has the discretion I have already mentioned in s.5(3);

(b) the power of the Secretary of State to cancel a provisional warrant of arrest under s.6(3);

(c) the fact that a fugitive offender must not be returned to the requesting country if it appears to the Secretary of State, or to the Court of Committal or to the High Court that the offence in respect of which the request has been made is of a political character or that the purpose of the request is to prosecute or punish him on account of his race, religion, political opinions etc., under ss.4 and 7, and on the other grounds set out in s.4(1);

(d) the restrictions regarding previous acquittal or conviction under s.4(2);

(e) the restrictions set out in s.4(3); the matters of which the Committal Court must be satisfied before ordering committal to await surrender under s.7(4);

(f) the right to apply to the High Court for habeas corpus under s.8(1) and the additional grounds upon which the High Court can discharge the offender from custody under s.8(3);

(g) the further rights of appeal granted to the offender by the ordinary procedure;

(i) the discretion given to the Secretary of State by s.9 to decline to order the return after all the court procedures have been exhausted;

(j) the power of the High Court to discharge an offender committed into custody and to quash the warrant for his return on grounds of delay under s.10.

33. Whatever may be the position under other extradition arrangements, so far as the Commonwealth Scheme is concerned, as I have said, I have grave doubts whether the Courts of Hong Kong can properly entertain the application which was before Mayo J. Not only had the Secretary of State given his authority to proceed, but the Metropolitan Chief Magistrate had decided the matter against Mr. Osman. By the time the case came before us, the High Court and the Divisional Court of the Queen's Bench Division had upheld the Magistrate's order. We are told that Mr. Osman is likely to take his case to the House of Lords.

34. However, if the Court here did have jurisdiction to examine and if necessary quash the Governor's original request, I cannot imagine circumstances in which it would ever be right as a matter of discretion to grant any of the reliefs prayed for. The English Courts have interpreted English legislation. What would be the position if there were conflicting decisions in the two jurisdictions concerned on the same legislation? It seems to me that all the protection that Mr. Osman can reasonably ask for is provided for in the English legislation as applied by the English Courts and by the residual discretion of the Secretary of State; and it must be emphasised by whatever rights Mr. Osman may have in the Courts here if and when he is returned.

35. It must be noted that by virtue of s.5 of the U.K. Act of 1967 the Governor's request must be accompanied by the documents specified in paragraphs (a), and (b) of subsection (2) of that section as well as "with particulars .... of the facts upon which and the law under which he is accused... and evidence sufficient to justify the issue of an warrant for his arrest under section 6 of this Act." If the Governor's request is subject to judicial review it must follow that the Courts here, if due application is made, are free to review the sufficiency of the evidence. Surely this is properly the task first of the Secretary of State (for the purpose of deciding whether or not to issue his authority to proceed under s.5(3)) then of the Magistrate (to decide whether or not to issue a warrant of arrest under s.6(2)) and then of the Magistrate again (when he conducts the committal proceedings in accordance with s.7) and finally of the Courts concerned with the habeas corpus proceedings if application is made under s.9.

36. I would add that in my judgment it is most unlikely that the Act of 1967 and the Hong Kong Order intended that any of these matters should be gone into by the Courts of Hong Kong, when the Governor has requested the return of a fugitive offender. The 1967 Act as extended to Hong Kong and the mirror provisions of the Act itself make no mention of the Governor's or the Secretary of States request except as triggering the provisions of s.5 and so laying the foundation for the order to proceed.

37. I now return to the merits of the case before us. In my judgment the Courts are bound to apply the law as we find it today. It need hardly be said that the statutory law is subject to amendment at any time in the ordinary course of events.

38.   In the light of the concession made by Mr. Thomas, it cannot be said that the Governor's assertion about s.14 of the Act as extended to Hong Kong by the Order in Council was in any way misleading. (By a slip that section was referred to as "s.4"). Mr. Thomas submits that no assurance could be given by the Governor that would bind or effect the successor Government in 1997, and no arrangements had yet been made about extradition, or the treatment of persons serving sentences in prison after extradition from other countries in July 1997. All this is true, but the present law is plain enough and, as the judge said, no one knows what the future will hold. Mr Osman, if he is ultimately surrendered and is convicted, may be sentenced to imprisonment for a term or terms which might see him still in prison on 1st July 1997. But this does not mean that under the existing law the Governor's request was unlawful as has been suggested. What made it unlawful? In respect of what power was it ultra vires? I refer to the terms of the declaration sought. The Governor can only be constrained by the law as it stands. I think it would be quite wrong, and a wholly improper incursion by the Court into matters which lie in the political and diplomatic sphere is we were to hold that no fugitive offender may now be surrendered from the United Kingdom unless and until new arrangements are made with the Government with the Peoples Republic of China, if his sentence on conviction might extend beyond July 1997. If it is decided to make new arrangements both in the U.K. and for Hong Kong about fugitive offenders, no doubt the law will be changed. Until it is we must apply it in its present form.

39. Mr. Thomas accepts that if his arguments have validity, it would mean that any person convicted of a crime in Hong Kong and who absconded to the United Kingdom could not be returned here to complete a sentence of imprisonment if that sentence might extend beyond the date upon which sovereignty is resumed by the People's Republic of China. That cannot be right.

40. With every respect to the careful and courteous arguments addressed to us by Mr. Thomas on behalf of Mr. Osman, in my judgment, the judge was right to refuse leave on the merits of the application, for it had no chance of success.

41. Although it is not necessary to decide the question of delay, I will merely say that if I had felt that the grounds of the application were arguable, I would not have been inclined to disturb the judge's conclusion that undue delay was itself a ground for refusing leave.

42. As regards the appeal on costs which were awarded by the learned judge against Mr. Osman, Mr. Thomas says that the judge erred because it was not an inter partes application. He said that in order to save time and avoid extensive litigation, Mr. Osman had agreed not to oppose the Crown's application to be heard. He asserts that had it been disclosed that the Crown would even apply for costs were the application to fail, Mr. Osman would not have consented to the Crown's application. In my judgment, this was a matter entirely within the discretion of the judge who heard the application for leave. It was perfectly proper and convenient for him to hear the Crown at that stage and, no doubt, he felt that the arguments advanced had assisted him in reaching his decision. In those circumstance, I think the award of costs must stand.

43. I would dismiss this appeal.

Hunter, J.A.:

44. I agree that this appeal fails and should be dismissed for the reasons given by my Lord. It seems to me that this Applicant fails to overcome three obstacles. First, he came to the Court too late. The interests of good administration, in my view, preclude the grant of any extension of time.

45. Secondly, I share my Lord's, very considerable doubts as to whether any reviewable decision has been made in Hong Kong at all. This request was directed to the Secretary of State in England. He granted authority to proceed, and the matter then was dealt with by the English Courts. It has already been investigated fully at two levels and may yet be investigated by the House of Lords. The matters under investigation by the English Courts include the "Provision" made in Hong Kong for the purposes of s.4(3) of the 1967 Act, that is the Hong Kong law of speciality. This application attacks the sufficiency of that very law.

46. As I say I have grave doubts whether there is any reviewable decision here, but if I am wrong about this, I have no hesitation at all in saying that this is not a case where the Court should exercise discretion in favour of the Applicant. It seems to me quite inappropriate for the Hong Kong Court to open up a possible avenue of conflict with the English Courts, and possibly the House of Lord, on the construction of an English statute and an English Order in Council.

47. Thirdly, I can see no substance in the application at all. There is nothing illegal or unlawful in this request. I do not understand the suggestion that assertion 5 in the Governor's letter, in some way, was improper. Assertion 5, as I read it, is a perfectly accurate paraphrase of existing Hong Kong law. I accept that that law is a product of an English Order in Council, and I accept that that cannot subsist beyond July 1997. I accept, therefore, that this will require replacement. But that fact does not make any existing request unlawful. It does not show that the existing law is, in any way, insufficient. This Court must deal with the situation under the existing law as it stands. The whole of this application is founded upon the premise that this Court must assume that the future legislation which must be passed here, will not pay proper regard to the position of persons who have been brought back to Hone Kong under the existing legislation; that in some way the legislature will totally ignore any obligations that the Territory may owe to such persons.

48. For my part, I find that suggestion wholly offensive and totally unacceptable.

Macdougall, J.:

49. I agree entirely with what my Lords have said. There is nothing that I can usefully add to the comprehensive judgments they have delivered. I, too, would dismiss this appeal.