ATTORNEY GENERAL v. LUI KIN-HONG JERRY

Headnote

          Extradition - Judicial Review.

          Fugitive Criminal United States of America Extradition Order 1976 Articles VII and IX considered.

          Request by Hong Kong Government to US Government.

          The Certificate of the US Consul-General that the documents "are properly and legally authenticated so as to entitle them to be received in evidence for similar purposes by the courts in Hong Kong" is provided for use in the US courts and its true meaning and effect is for determination by the US court.

          It is not procedurally unfair to provide evidence for use in the US extradition proceedings which may be admissible in the US court but which is inadmissible in Hong Kong criminal proceedings - see Articles VII(3) and IX above.

          Order for "advisory" declaration not to be granted.

-----------------

JUDGMENT

-----------------

Mortimer JA: Lui Kin-hong, Jerry is the subject of extradition proceedings in the United States following a request by the Governor of Hong Kong dated 8 February 1996. Lui applied for judicial review on 17 May 1996 of a request following the original request of 8 February. It was put in this way:

"A further request by the Hong Kong Government for a certificate dated 15th April 1996 from the Consul-General of the USA as to the admissibility of certain evidence under Hong Kong law in support of the said request for extradition."

The application came before Sears J with great urgency. He gave an extempore judgment on 27 May granting relief by way of a declaration. The United States extradition proceedings began on the following day, 28 May 1996. The declaration was as follows:

"A declaration be granted to the Applicant that a witness statement of a deceased person, one Tommy Chui To-yan, (and any affirmation annexing such statement as an exhibit or incorporating the contents of such statement of Tommy Chui To-yan into the affirmation) are not admissible in evidence in any criminal proceedings in the Courts of Hong Kong for the purposes of any hearing on criminality in the Courts of Hong Kong relating to the Applicant on any of the charges on which the Hong Kong Government presently seeks his extradition from the United States of America."

This is an appeal by the Attorney General to set aside the judge's order and declaration.

2. On any view this application is unusual because there is no dispute that the statement of the deceased person, Tommy Chui To-yan is not admissible in Hong Kong criminal proceedings against Lui. Indeed, there really could be no dispute about that. It is trite law that the statement is hearsay and inadmissible.

The background

3. It is necessary to set out a little of the background. None of the factual background, which has been helpfully put before us by Mr Blanchflower - who appears for the Attorney General - in his written submissions is the subject of challenge by Mr Egan - who appears for Lui to resist the appeal.

4. The account begins on 12 December 1995 when a warrant was issued for the arrest of Lui in Hong Kong for one conspiracy and 9 offences of accepting bribes. Those offences relate to a sum in the order of $30 million. Pursuant to that warrant, on 20 December 1995, Lui was arrested in the United States for the purpose of extradition. There was a further warrant which amended the particulars of the offences, but on 8 February, pursuant to the Treaty between the United Kingdom and the United States which applies to Hong Kong, the Governor made a formal request to the United States for the extradition of Lui.

5. That request was accompanied by a considerable body of material in support - 10 box files of affidavits of witnesses. As was necessary, it was forwarded through the United States Consulate General who certified it under the appropriate Treaty and United States law Later, on 22 February and 22 March, further material was provided to the United States to support the extradition. But it was on 15 April 1996 that the material, the subject of these proceedings, was provided by the Hong Kong government and certified for use in the United States extradition proceedings by the Consul-General. That material simply consisted of an affirmation of Mr Gidwani of the ICAC to which was annexed as an exhibit the statement of the deceased man implicating Lui in the offences.

6. Under the Treaty the United States Consul-General certified that affirmation and the exhibited statement in the usual way. I now turn to that certificate. The relevant parts are:

I, Richard W Mueller, Consul General of the United States of America in Hong Kong, hereby certify that all documents hereunder, being:-

7. These proceedings were taken without delay on 17 May 1996. Leave was granted by the judge on 20 May. The hearing took place on 7 May. Judgment was given the same day, and that judgment and the order granting the declaration were sent to the United States. So we are told.

The judge's decision

8. I turn now to the judge's decision. The relief originally asked for included an order restraining the Attorney General from proceeding further with the request for extradition. But that was not pursued. Before Sears J counsel for Lui asked only for a declaration. It was clear that if the judge was to deal with this application before the extradition proceedings, he had to deal with it with the greatest possible urgency. He did so and paid tribute to our system that the decision could be achieved in the time available. For my part I echo that tribute. He apologised for his extempore judgment but he need not have done so. He set out his reasons with both brevity and clarity.

9. In considering the effect of the Consul-General's certificate, the judge decided that it was unfair to submit to the Consul-General evidence which was inadmissible in Hong Kong criminal proceedings. On that he said:

"The real problem I have found in this case is why this document, which in my judgment is inadmissible, was sent to America. It was sent essentially to persuade the judge or magistrate/judge that it is evidence which would justify his extradition. It does appear, therefore, to me unfair that a man who has to face a statement emanating from Hong Kong and appearing on its face to be admissible evidence, might be extradited by virtue of it, yet if he comes back to Hong Kong it cannot be used at his trial. That only needs to be stated to demonstrate that it is unfair."

He thought that the United States court, dealing with the extradition ought to know that it was inadmissible in Hong Kong and although he did not decide the meaning of the words "similar purposes in United States law". He said this on the point:

10. In short, therefore, the judge's decision was that to send this evidence to the United States as certified by the Consul-General was unfair, and that it was not lawful without disclosing to the American court that the evidence was inadmissible in Hong Kong. He concluded that declaratory relief was appropriate in these circumstances.

The appeal

11. By an amended notice of appeal, the Attorney General submits that it was not open to the judge to judicially review this matter. Alternatively, that he was plainly wrong to exercise his discretion to grant a declaration. He contends:

12. As to the declaration the Attorney General submits that it served no purpose to grant this relief and so discretion to grant it ought not to have been exercised.

The extradition

13. An appreciation of the Extradition process is necessary in order to understand the issue whether this is justiciable. The procedure is set out in the Fugitive Criminal United States of America Extradition Order 1976 which deals with the Treaty.

14. Article VII provides:

A list of necessary documents follows.

Article IX is also relevant:

          (Emphasis added.)

15. In brief, extradition proceedings are conducted in accordance with the Treaty. In circumstances such as the present where Hong Kong requests extradition of a person in the United States, those proceedings are conducted in the United States in accordance with United States law. This includes the law on the admissibility of evidence, and on the construction of documents. Further, when the United States authorities ask for further evidence under Article IX, the evidence which they request - if it is to be of any value-must be evidence which is admissible in the United States proceedings whether or not it is also admissible in the Hong Kong proceedings which may follow.

The provision of "evidence" and the Consul-General' s certificate

16. There are two matters, it seems to me, which are of the greatest importance. First, in the extradition proceedings, Hong Kong must supply to the United States evidence admissible in the United States but not necessarily admissible in Hong Kong. Secondly, the Consul-General's certificate is supplied by the United States diplomatic officer under the provisions of the Treaty and under the United States law for use in the United States courts.

17. The legal effect of that document concerning the evidence certified by it, can only determined by the United States courts and cannot usefully be the subject of proceedings in the Hong Kong courts. Because of the urgency of the matter this application may not have been argued before the judge in the depth that it has been argued before this Court. But insofar as the judge thought that it was unfair to submit evidence which may be admissible in the United States, but which is not admissible in Hong Kong, or to the extent that he interpreted the legal effect of the certificate, then I would find that he was plainly in error. The evidence of Mr Gidwani, exhibiting the deceased's statement, may be admissible in the United States proceedings. I do not know nor is it relevant for this Court to even consider that. If it is not admissible in the United States proceedings, then it will no doubt be excluded. Secondly, the effect in those proceedings of the Consul-General' s certificate will fall to be determined by the United States court for its full meaning and effect. It is certainly not for this Court nor, in my judgment, was it for the judge to indicate or decide what its effect may be in the United States proceedings. If the admissibility of the hearsay evidence in the Hong Kong court is relevant in the United States proceedings, then there will be no difficulty in establishing that matter in the United States. indeed, it is doubtful if any issue could arise. But that is not a matter for this Court either. It is only for the United States court. It is possible-but again not a matter which is necessary for this Court to consider-that the Consul-General's certificate simply means that affidavit evidence is receivable in Hong Kong courts in some circumstances. Or it may simply bear upon the authentication to which reference is made earlier in the document. I know not and nor is it relevant to inquire. If relevant these matters will be determined in the United States.

Conclusion

18. For those reasons, first I would hold that Lui has not demonstrated any infringement of right or illegality which is justiciable in the Hong Kong court. It is not unlawful under Hong Kong law to submit evidence or material which may be admissible in the United States court but not admissible in Hong Kong. Indeed, this may be required under Article of the Treaty. No doubt it is often done at the request of the United State.

19. Insofar as the judge placed any meaning or interpretation on the word "evidence" in the certificate, it seems to me that he was in error in seeking so to do.

20. Secondly, there was no procedural unfairness demonstrated. Lui is protected against the admission of inadmissible evidence by the United States courts. It is not for this Court, as I have said repeatedly. It was necessary in order to establish a right to judicial review of this decision or stance to demonstrate procedural unfairness, or one of the other recognised grounds. This was not done.

The declaration

21. Even if I am wrong and this is a justiciable matter and was procedurally unfair, it is necessary to examine whether the declaratory relief ought to have been given in the exercise of the judge's discretion. The circumstances are these. The declaration resolved no dispute. Both parties agreed that it correctly states the law as it is in Hong Kong. That was the position before the judge. Also, the declaration served no purpose. There is no reason why the court in the United States should accept the declaration. If it was relevant to an issue there, it would be necessary to call evidence. I know not whether such a declaration would prove itself. It seems to me to be very unlikely. In any event, if any question on admissibility arises, it is likely that it will be agreed.

22. The judge, who was rightly ever watchful of the rights of the individual, thought that the declaration would provide an appropriate remedy. I find myself unable to agree. This was at best an advisory declaration which served no purpose. It is settled practice that the court will not make such a declaration.

23. I am not aware of any basis upon which the judge could properly exercise his discretion to grant the declaration sought. In those circumstances, he was plainly wrong to exercise his discretion to do so. Clearly, the urgency of the matter and his concern to see that justice was done as he saw it led him to make the order.

24. For my part I would allow this appeal and set aside the order and the declaration.

Liu JA: The Certificate of the Consul General of America dated 15 April 1996 authenticated inter alia a statement of the late Tommy, Chui To-yan as part of the evidence which would probably or might justify, according to US law, his committal for trial if the offence had been committed in America. The admissibility and evaluation of that statement was a matter entirely for the US court. From a long line of cases, including one of our own, in Re an Application by Lorrain Esme Osman for leave to apply for Judicial Review, [1988] 2 HKLR 378, treaty obligations cannot be called in question in a domestic forum.

25. I do not propose to repeat here the terms of the Certificate. They are given n the judgment just delivered by my Lord, Mortimer J.A. It was not established before the judge as a fact what, according to US law and in the context of those terms, the meaning is of the words viz. "properly and legally authenticated so as to entitle [the documents authenticated] to be received in evidence for similar purposes by the courts in Hong Kong". Primarily for that reason, I am not persuaded that the appellant' s inclusion of the deceased' s statement was in any way impeachable. Before the judge, no prima facie case was shown of any reviewable conduct on the part of the appellant to invoke curial intervention in judicial review. The preparation for the Consul General' s Certificate was made in discharge of a treaty obligation. In the absence of evidence of US law on the limits, if any, on the appellant' s submission in discharge of that obligation, it was not possible to demonstrate that the inclusion of a deceased' s statement was in error or procedurally unjust. The respondent, therefore, failed to disclose anything justiciable in Hong Kong for founding his application for judicial review.

26. Sears, J. proceeded to apply Hong Kong law in his attempted interpretation of the Consul General' s Certificate which was governed by American law, not Hong Kong law. See p. 6 J-O of his judgment. No view so taken by the judge could conceivably be of any real assistance. Applying the inapt Hong Kong law, the judge virtually allowed himself to be driven to the wrong conclusion that the decision to include a deceased' s statement was amenable to judicial review. See p. 8 F-I of his judgment. The judge also seemed to have overlooked the essence of "procedural fairness" within its accepted parameters in administrative law. The real issue was clearly not whether a treaty obligation was unfair or whether in the strict discharge of that obligation the requesting party was unfair.

27. In my view, Ground 1 of the amended Notice of Appeal has been sustained. In the alternative, for the reasons set out in counsel' s submissions, the judge was wrong in the exercise of his discretion in granting the declaratory relief.

28. I, too, would allow this appeal.

Nazareth v-p: I agree that for the reasons given by my brother Mortimer JA that the appeal must be allowed. I only add the following as we are disagreeing with Sears J.

29. At the end of his judgment, the judge said this:

"What is justiciable is not the decision of the Government to extradite, but the maintained stance of the Government that it was lawful for then to send an admittedly inadmissible portion of evidence under the protection of the Consul-General's certificate for consideration by the American Court without disclosing to the American Court that it was inadmissible in Hong Kong as evidence at the applicant's trial."

No basis for saying that that stance of the Government was not lawful has emerged before us. On the contrary Mr Egan for the respondent was constrained to rely upon the urgency and speed with which the judge gave his extempore judgment. In that regard, I pause to say that the judge must be given due credit for the speed with which he did give judgment.

30. But returning to Mr Egan's submission, he submitted that not lawful, in that passage of the judgment I have just read, must be read as unfair. However, it is clear that before the judge, the respondent's case was that the evidence not admissible in the courts of Hong Kong could not be relied upon in the extradition proceedings in the United States. Be that as it may, Mr Egan moreover submits that it was a deception on the Consul-General of the United States for the Attorney General to submit to him the statement of the deceased, Tommy Chui, knowing that the Consul-General would automatically certify it, along with the other documents submitted, as "properly and legally authenticated so as to entitle them to be received in evidence for similar purposes by the courts in Hong Kong as required by the Act of Congress of August 1982". That submission cannot be accepted on the facts which my Lord Mortimer JA has already outlined. Nor can the submission of the statement of Tommy Chui to the Consul-General to be said to be unfair, for on the material before us, it is clearly for the United States courts to decide what evidence they would accept and what weight they would attach to such evidence, notwithstanding the contention that the certificate is conclusive.

31. I cannot see that the United States courts would be misled by the certificate of the Consul-General, or any such possibility that the matter could not easily and satisfactorily be dealt with by the means that are usually adopted for that purpose. It is significant in that regard that there has never been any dispute between the parties that the statement of Tommy Chui was hearsay evidence and not admissible in Hong Kong Furthermore, it is the United States authorities that sought the statement of the deceased witness from the mass of material that was provided to them, such being the obligation of the Hong Kong authorities, as the party seeking extradition. How then it could be said that the provision of the statement was unfair is difficult to see.

32. To proceed to another aspect of the matter, unfairness must be in a procedural respect for what is sought here is judicial review of the maintained stance of the Government; and as I have said, there is no evidence of procedural unfairness.

33. To turn to yet another aspect, the relief sought was a declaration that the statement of the deceased is not admissible in the courts of Hong Kong. For a declaration to be granted, even in judicial review proceedings, it must be of some value, see for example Halsbury's Laws of England, 4th edn, vol.1 Part I, para. 163. It is difficult to see what value the declaration has or what purpose it will serve. I cannot see that the American courts would be bound by it, nor is it necessary given the ordinary and readily available means of establishing the legal position in Hong Kong a position which it is not for one moment suggested is other than perfectly clear. Upon that basis, the exercise of the judge's discretion to grant the declaration was plainly wrong.

34. Clearly, the appeal must be allowed for all the reasons given.

35. The appeal is accordingly allowed and the judge's order set side.