RE GREGORY JAMES RICHARDSON

IN THE SUPREPME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDEMENT

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1. Gregory James RICHARDSON ("the Applicant") has been arrested and is being kept in custody awaiting his return to Australia under a warrant of committal issued by a permanent magistrate under the Fugitive Offenders Act 1967 ("the Act"). He is applying for a writ of Habeas Corpus ad subjiciendum .

2. By the provisions of the Act which apply here pursuant to the Fugitive Offenders (Hong Kong) Order 1967 his arrest and detention for the purpose of his return to Australia are lawful if he is "accused of a relevant offence" in Australia and proceedings culminating in his committal to custody for that purpose have been taken in conformity with the provisions of the Act (s. 1).

 

S.3(1) of the Act defines "relevant offence" as follows:-

"....an offence of which a persons is accused ....is a relevant offence if--

3. Proceedings under the Act begin with a request for a person's return made to the Governor of Hong Kong by or on behalf of the requesting government. The request must be accompanied by the warrant for the person's arrest issued in the requesting country together with his particulars, the facts upon which and the law under which he is accused, and evidence sufficient to justify the issue of warrant for his arrest here. Evidence is sufficient for that purpose if it would authorise the issue of a warrant for the arrest of a person accused of committing a "corresponding offence" here (ss. 5, 6).

4. On receipt of the request the Governor is empowered to issue an authority to proceed Without which no committal proceedings under the Act are authorised (s. 5). For the purposes of such proceedings the court must be constituted by a permanent magistrate who is given, by the Act, the like jurisdiction and powers, as nearly as may be, as a magistrate has under Part III of the Magistrates Ordinance (s. 7(2)).

5. If the magistrate is satisfied, after hearing any evidence tendered (whether in support of the request for return or on behalf of the person whose return is sought) that the offence to which the authority to proceed relates is a relevant offence and that the evidence would be sufficient to warrant his trial for that offence if it had been committed within the jurisdiction of the magistrate, then he must commit him to custody to await his return under the Act unless his committal is otherwise prohibited by the Act. If, however, "the court is not so satisfied or if the committal is so prohibited, the court [must] discharge him from custody" (s. 7(4)).

6. S. 4(3) provides as follows:-

7. The proceedings which led to the Applicant's committal were authorised by an authority to proceed under the hand of the Governor. The Applicant does not challenge the validity of that authority. He contends that the evidence could not satisfy a magistrate that the offence to which the authority to proceed relates was a relevant offence, nor could it satisfy him in relation to at least one offence set out in the authority that it was sufficient to warrant his trial for that offence if it had been committed here. He also contends that, since there was no evidence that there was provision in Australian law securing him the rights referred to in s. 4(3) of the Act, the magistrate should not have committed him under the Act. He also complains that the Act was not complied with during the proceedings because the magistrate did not observe certain provisions of Part III of the Magistrates Ordinance.

8. The offences to which the authority to proceed relates are set out in that document as follows:-

9. There was evidence before the magistrate from an expert in Australian law that the three offences of which the Applicant is accused in Australia are offences against an Australian law relating to dangerous drugs and that each is punishable with a term of imprisonment of at least twelve months. In addition, the Applicant's solicitor at the committal proceedings made an admission pursuant to s. 65C of the Criminal Procedure Ordinance to the same effect. That was an admission, not on a matter of law, but on a matter of fact regarding Australian law. It was a matter which could properly be admitted under that section. There was, therefore, conclusive evidence that the offences of which the Applicant is accused in Australia are offences against an Australian law relating to dangerous drugs and that each is punishable with a term of imprisonment of at least twelve months. Since it is obvious to any magistrate that the acts which constitute each of those offences would constitute an offence against our law if they took place here no magistrate could be other than satisfied by the evidence that each of the offences to which the authority relates is a relevant offence.

10. Mr. Hampton's submission on behalf of the Applicant was that one had to look at the warrants issued in Australia in order to see the ingredients of the offences of which he is accused in Australia. In support of this proposition he relies on the requirement in the Act that the warrants must be furnished with the request for return and on R. v. Governor of Brixton Prison, ex parte Gardner⁽¹⁾.

11. In Gardner the Government of New Zealand requested the return from the United Kingdom of a person accused in New Zealand of an offence of obtaining by false pretences. The request was made before the passing of the Theft Act 1968. United Kingdom law at that time did not recognize any offence based on an allegation of a representation as to a future event. The Divisional Court held that --

"the words 'act or omission constituting the offence' in section 3(1)(c) referred to the act or omission constituting the offence of which the person was accused in the Commonwealth country concerned, and the authority to proceed related to that offence; that in [Gardner's] case the offences to which the authority to proceed related must be taken to be the offences of which he was accused in New Zealand as disclosed in the warrants; and that, since the acts constituting those offences as so disclosed would not constitute offences against the law of the United Kingdom, the authority to proceed did not relate to relevant offences within section 3(1)".

12. That case is not, however, authority for a proposition that the court of committal is obliged to look at the requesting country's warrants of arrest. They had to be looked at in Gardner's Case because the offences to which the authority related were not spelt out in the authority itself. At pp. 415-6 Lord Parker, C. J., said:-

13. At p. 416, Edmund Davies, L.J., said:-

14. At p. 417, Widgery, J., said:-

".... the primary question for determination by the magistrate is whether the offence to which the authority relates is a relevant offence ...... it would be a mistake to say that his primary duty is to see whether the offence charged in the Warrants is a relevant offence. However, in this case, having regard to the terms of the authority .... and having regard to the fact that the warrants were sent to the magistrate with that authority, it seems to me quite clear that in this case the offences to which the authority related were identical with those charged in the warrants."

15. In this case the only further particulars needed to describe "the manner or means" by which the offences were committed are the date, place and names of co-conspirators in the conspiracy offences and date, place and quantity of cannabis in the trafficking offence. The addition of those particulars would be of no help in determining whether the 'act or omission' would constitute an offence here. There was sufficient detail in the authority to proceed to enable the magistrate to decide the 'relevant offence' issue.

16. Mr. Blanchflower, counsel representing the Australian Government, submitted that Gardner must be taken to have been wrongly decided since the House of lords decision in Government of Denmark v. Nielsen ⁽²⁾. That was a case under the Extradition Act 1870 but the procedure provided for by both Acts is substantially similar. In particular, s. 10 of the earlier Act provides as follows:-

"In the case of a fugitive criminal accused of an extradition crime, if ....such evidence is adduced as .... would, according to the law of England, justify the committal for trial of the prisoner if the crime of which he is accused had been committed in England, the police magistrate shall commit him to prison, but otherwise shall order him to be discharged."

17. Lord Diplock in his speech (with which all other members of the House agreed) said, at p. 20:-

"The expression 'the crime of which he is accused' in section 10 thus means the crime specified in an order by the Secretary of State to the magistrate to proceed."

18. It is difficult to see why the House would not similarly interpret "an offence of which a person is accused" in s. 3(1) of the Act as the offence specified in the Governor's authority to proceed. There is, therefore, considerable force in Mr. Blanchflower's submission that Gardner may no longer be "good law".

19. Whether it is or not, there is no need for a magistrate to look at the warrants of arrest issued by a requesting country if the material available in the authority to proceed gives sufficient detail of the conduct alleged against the wanted person to enable the court to determine whether it amounts to a relevant offence. In this case the authority did supply sufficient detail to support a finding on the evidence that each offence to which the authority relates is a relevant offence.

20. The magistrate had before him admissible, uncontradicted and unchallenged evidence to support the following findings :-

21. There was conclusive evidence by way of facts admitted pursuant to s. 65C of the Criminal Procedure Ordinance that the Applicant between December 1985 and May 1986 had a residence in Hong Kong with a telephone number 5-405063.

22. The magistrate had before him a tape recording of a conversation between a man and a woman in Sydney from which a jury could conclude that they were discussing the matters referred to in (a), (b) and (c) above, that the man admitted in the course of that conversation that he was one of the conspirators referred to in (a) and (c) and was the person who arranged the importation referred to in (b).

23. There was evidence that the Applicant was known to the woman with whom the conversation took place, that he was present in the building where the woman was at the time the conversation took place, that he had left his passport with that woman, that reference was made during the conversation to the man's passport being in her custody and a statement by the man during the conversation that his telephone number in Hong Kong was 5-405063.

24. The magistrate was, therefore, justified in concluding that the evidence would be sufficient to warrant the Applicant's trial for each of the offences to which the authority relates if each had been committed here.

25. The written statement of admitted facts already mentioned also contained an admission in the following form:-

"The restrictions on return in s. 4 of the Fugitive Offenders Act 1967 are not applicable to those proceedings."

26. Whether Australian law makes provision for the matters set out in s. 4 of the Act is a question of fact. The Applicant's solicitor could, therefore, properly admit that fact. As I read the document that is the admission which he did make. I can, therefore, see no merit in the submission that the magistrate could not have been satisfied that the Applicant's rights were secured as required by s. 4.

27. The Act does not require a magistrate to follow the procedure laid down in Part III of the Magistrates Ordinance. It merely confers a like jurisdiction and grants like powers, "as nearly as may be", to the jurisdiction and powers conferred and granted by Part III. I am unable to agree with Mr. Hampton's submission that the magistrate's failure to comply with ss. 82 and 85 of that Ordinance invalidated the proceedings. It would have been inappropriate for the magistrate to tell the Applicant, as required by s. 82(2), that whatever he said could be given in evidence at his trial notwithstanding any previous promise or threat which may have been made to him and there is no scope for applying s. 85 of the Ordinance when s. 7 of the Act impliedly excludes from the magistrate's consideration any statement made from the dock.

28. In my view, the Applicant is in custody under a warrant of committal lawfully issued under the hand of a permanent magistrate pursuant to the Act. This application therefore fails.

(1)    [1968] 2 QB 399

(2)    (1984) 79 Cr. App. R. 15