CHENG CHUI PING v. SUPERINTENDENT OF TAI LAM CENTRE FOR WOMEN AND ANOTHER

HCAL1985/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.1985 OF 2000

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J U D G M E N T

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1. This is an application for the issue of a writ of habeas corpus. The applicant is in detention as the result of a committal order made by a magistrate pursuant to the provisions of section 10(6)(b) of the Fugitive Offenders Ordinance, Cap.503 ("the Ordinance"). It is said that the making of that order was unlawful, and that therefore the applicant's detention is unlawful.

Procedure in this court

2. The matter came on for hearing yesterday for the first time. Procedurally, the chronology of events was unusual in that normally, within my experience, there is an initial ex parte hearing after which, if the court takes the view that there is substance in the application, the matter is adjourned so that the argument can be heard inter partes (see O.54, r.2). But there was no such initial hearing and the matter came on for the first time yesterday inter partes. The papers have been before the court for a while but, as I say, no initial ex parte hearing. Clearly, the applicant's advisers asked for a date and notified the respondents of it, and both sides arrived yesterday prepared for the substantive argument. Until I realised that both sides would appear and saw the skeleton argument for the respondents, I am not sure that I appreciated that this was what was intended, but that is beside the point. In the event, Mr McCoy, quite properly, drew to my attention the provisions of section 22A of the High Court Ordinance. Section 22A(5) provides as follows :

"(5) On considering the application, the Court of First Instance must, if satisfied that the application has substance, do either of the following -

(a) order the issue of a writ of habeas corpus directing the person having custody of the applicant to have the applicant brought before the Court at a specified time on a specified date and to certify to the Court the grounds for the applicant's detention;

(b) order the person having custody of the applicant to appear before the Court in order to justify the lawfulness of the applicant's detention."

3. So what I was invited to do was to say, if I could, that I was satisfied that there was substance in the application with a view to the hearing progressing at once with the respondents represented and with an understanding from the Commissioner to file a return in the course of the hearing. In the event I did not at the time think that that was strictly appropriate. I had, before the hearing, read the papers and the skeleton arguments, as well as some of the authorities to which reference had been made, and I could not, I felt, properly say at that stage that I was satisfied that the application had substance as that term is intended by section 22A(5). Mr Walsh also wished to contend that it had no substance. Therefore, the terms of the High Court Ordinance which Mr McCoy pressed required that issue to be decided first.

4. The test has been put in this way : that the applicant need not convince the court of the merits of his case but should raise an arguable case which deserves further consideration (see The Law of Habeas Corpus, 2nd Ed. by Sharpe at page 219, referred to by me in Chong Bing Keung, HCAL19/1999 (24 February 1999, unreported). Keith JA in Chong Bing Keung [2000] 1 HKC 257 at 259 cites from the same text :

"It is probably enough that a doubt be raised in the mind of the judge regarding the validity of the detention and an arguable case be shown which deserves further consideration."

5. I have actually heard full argument from Mr McCoy. He addressed me the whole of yesterday morning and part of yesterday afternoon, and he has taken me to the authorities in detail, and has developed his argument as if this were a full substantive hearing. At the end of yesterday afternoon, Mr Walsh began his address. I have considered the question overnight. Although I still have nurtured doubts whether one can say that the points raised are arguable, it would, it seems to me, be unrealistic, in the light of the full argument I have entertained and the fact that I called on Mr Walsh, to say that the application itself was not deserving of further consideration. Accordingly, and after discussion with counsel, what I have done therefore is to make an order under section 22A(5)(b) that the person having the custody of the applicant appear in order to justify the lawfulness of the applicant's detention. The effect of that order has in the event already been met. The Commissioner has appeared and the applicant has been in court, and it has been agreed to treat the matter as if argument has proceeded on that footing.

Background

6. The applicant is wanted for trial in the United States of America. An indictment was issued in December 1994 and a warrant issued for her arrest. The applicant was, before that date, apparently, ordinarily resident in New York, and it is said that in 1994 she left the United States in order to avoid prosecution. On 6 June 2000, the Grand Jury in the United States issued a further or superceding indictment, as it is there called, which contains all the charges of the original indictment with a few additional counts. This superceding indictment contains seven counts, and they allege a conspiracy to import aliens into the United States unlawfully; the dates of the alleged conspiracy being between 1984 and April 2000; unlawful detention of 130 aliens in September 1992 with a view to securing a ransom for their release; a third count that she unlawfully detained a further number of 30 persons in about April 1993 for the same purpose; the transfer of money in March 1991 from the United States to a place outside the United States to promote the smuggling of aliens into the United States, and similar offences in December 1992, September 1993 and March 1994.

7. On 17 April 2000, the applicant was arrested in Hong Kong and the Chief Executive has issued an Authority to Proceed dated 15 June 2000 which states :

"A request for surrender having been received from the United States of America for the surrender of CHENG Chui-ping, also known as 'Sister Ping', who is wanted in the said place for prosecution in respect of offences of :

1. arranging or facilitating for financial gain the illegal entry of persons into a jurisdiction, and

2. false imprisonment

I hereby order that the said person be dealt with under Part II of the Fugitive Offenders Ordinance, Cap.503, Laws of Hong Kong."

8. The committal proceedings were heard by the magistrate on 21 and 22 August and the magistrate decided to commit the applicant to custody to await the decision of the Chief Executive as to her surrender. The committal order is in the following terms :

"Pursuant to section 10(6)(b) of the Fugitive Offenders Ordinance, Chapter 503, I hereby order CHENG Chui-ping be committed to custody -

(a) in respect of the following offences -

(i) CHENG Chui-ping, between 1 July 1984 and 30 June 1985, conspired with others to arrange or assist the passage of unauthorised entrants, namely WENG Yu-hui and other persons; being an offence of arranging or facilitating for financial gain the illegal entry of persons into a jurisdiction;

(ii) CHENG Chui-ping, on days unknown between 1 January 1985 and 30 June 1985, together with other persons, by force detained WENG Yu-hui against her will, with intent to procure a ransom for her liberation; being an offence of false imprisonment;

(iii) CHENG Chui-ping, in or about March 1991, did an act preparatory to or for the purpose of arranging or assisting the passage of unauthorised entrants, namely did transmit the sum of US$30,000 to Thailand on behalf of WENG Yu-hui; being an offence of arranging or facilitating for financial gain the illegal entry of persons into a jurisdiction;

(iv) CHENG Chui-ping, between 1 January 1992 and 31 December 1992, conspired with others to arrange or assist the passage of 130 unauthorised entrants; being an offence of arranging or facilitating for financial gain the illegal entry of persons into a jurisdiction;

(v) CHENG Chui-ping, in or about September 1992, together with other persons, by force detained 130 unauthorised entrants against their will, with intent to procure a ransom for their liberation; being an offence of false imprisonment;

(vi) CHENG Chui-ping, between 1 September 1991 and 1 July 1993, conspired with others to arrange or assist the passage of 300 unauthorised entrants; being an offence of arranging or facilitating for financial gain the illegal entry of persons into a jurisdiction;

(vii) CHENG Chui-ping, in or about October or November 1992, did an act preparatory to or for the purpose of arranging or assisting the passage of unauthorised entrants, namely did transmit the sum of US$300,000 to Thailand on behalf of GUO Liang Qi; being an offence of arranging or facilitating for financial gain the illegal entry of persons into a jurisdiction;

(viii) CHENG Chui-ping, in or about March and April 1994, did aid and abet other persons in the forcible detention of 105 unauthorised entrants against their will, with intent to procure a ransom for their liberation; being an offence of false imprisonment;

(b) to await the Chief Executive's decision as to her surrender, in respect of these offences, to the United States of America by which the request for surrender in respect of CHENG Chui-ping was made; and

(c) if the Chief Executive decides that she shall be surrendered to the United States of America, to await such surrender."

The allegations

9. There was before the magistrate a duly authenticated bundle of evidence in the form of a number of affidavits. They included an affidavit from Mr Michael McGovern, an Assistant United States Attorney, who is assigned to the Organized Crime and Terrorism Unit of the United States Attorney's Office.

10. Put very broadly indeed, the nature of the evidence against the applicant is that she conducted extensive smuggling operations whereby she imported into the United States illegal immigrants from the Mainland of China. She did so according to these allegations in return for very large sums of money and employed crime gangs to assist her. Once the illegal immigrants were on USA soil, she then saw to it, it is alleged, that they were unlawfully detained, the object and duration of the detention being to ensure payment of the smuggling fees by their relatives abroad. In one transport, which is the subject of the US indictment, she is said to have smuggled 130 persons from Fujien province, undertaking to pay a gang USD750,000 for their assistance in bringing the immigrants in from a boat off shore. It is said that they were detained in an apartment in New York until the smuggling fees had been received. There is evidence about other smuggling operations, one including the smuggling of 300 persons from the Mainland of China into the United States of America and another in which it is said that in March 1994, she was involved in smuggling 105 persons into the United States abroad a Thai freighter. Also produced to the magistrate were affirmations made by alleged co-conspirators.

The limitation point

11. The issue pressed before the magistrate by counsel acting on behalf of the applicant was that the offences for which the applicant was wanted in the United States, or some of them at least, were time-barred and as he put it, if they were time-barred, then offences were not offences at all for the purposes of the Fugitive Offenders Ordinance. The magistrate was then invited to receive evidence of the law of the requesting state, namely United States law, and it is instructive to see why it was that counsel invited the court to receive such evidence. He said :

"In our submission, sir, you are entitled to receive evidence of the law of the requesting party, the law of the prescribed place, the law of the United States of America, and you are entitled so to receive it for the limited purpose of ascertaining whether or not this court has jurisdiction to commit the fugitive for a relevant offence. We will be submitting a bit further down the track that in order to for you so to do you would be entitled to receive, and indeed we say you should receive, both expert evidence as to the meaning and construction of the substantive foreign law - in this case the law of the United States - in particular on the question of time bar, and also to receive evidence of fact in relation to issues attendant upon the limitation of the time point."

12. Mr Walsh, who then appeared for the requesting jurisdiction as he has before me, resisted that application, saying that the only matter of foreign law with which the court was concerned was to see whether the offences carry minimum terms of 12 months' imprisonment in the United States.

13. The magistrate made a ruling, in which he said :

"I rule that I have no jurisdiction to deal with the issue in respect of time bar. For this issue I rule in favour of the applicant."

It is in this regard that it is said in these proceedings before me that the magistrate went wrong. It is said by Mr McCoy, who appears for this applicant, that the magistrate ought to have received evidence of United States law on the time limitation aspect and that, had he done so, he would or might then have refused to commit, for he says it is clear beyond peradventure that some of these offences are time-barred, and that had evidence of the applicant and others been received, it would have been established that all the offences were time-barred from prosecution.

14. The time limitation point arises in the first instance in this way Mr McGovern attests to the fact that :

"Title 18, United States Code, Section 3282, sets forth the statute of limitations that governs prosecutions of the offenses charged in the Indictment. This Section provides :

'Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for an offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.' "

He accepts there that some of the charges on the superceding indictment allege crimes committed by the applicant more than five years before the filing of that indictment; but he points out that section 3290 of the same statutory provisions stipulates that "... [n]o statute of limitations shall extend to any person fleeing from justice," and that the courts of the United States have interpreted that provision to mean that the running of an applicable statutory limitation period for the prosecution of an offence is suspended or tolled (as he calls it) during the period of the suspect's flight, whether or not charges have yet been filed. His evidence is that this applicant left the United States in late 1994 after charges against many of her co-conspirators had been brought, and that although she had re-entered the United States since then, she has done so clandestinely. He goes on

"... Accordingly, it is clear that she has been 'fleeing from justice' ever since her departure from the United States in or about late 1994, and that the statute of limitations has been tolled during the period of her flight. Accordingly, prosecution of the charges contained in the Superseding Indictment is not barred by the statute of limitations. Moreover, to the extent that the Superseding Indictment includes conduct that was charged in the earlier Indictment, prosecution of that conduct is not barred by the statute of limitations for the additional reason that the Indictment was filed in December 1994, less than five years after the conduct charged therein. Finally, to the extent the Superseding Indictment includes conduct occurring within the last five years, prosecution of such conduct clearly is within the statute of limitations."

The Ordinance

15. Section 10(6)(b) of the Ordinance prescribes the circumstances in which a magistrate is bound, and I emphasize the word "bound", to make a committal order. It says this :

"(6) Where -

...

(b) an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied -

(i) that the offence to which the authority relates is a relevant offence;

(ii) that the supporting documents in relation to the offence -

(A) have been produced; and

(B) are duly authenticated;

(iii) where the person is wanted for prosecution in respect of the offence, that the evidence in relation to the offence would be sufficient to warrant the person's committal for trial according to the law of Hong Kong if the offence had been committed within the jurisdiction of that court or any other court; and

...

the court shall (unless the person's committal is prohibited by any other provision of this Ordinance) by order commit him to custody -

(i) to await the Governor's decision as to his surrender to the prescribed place by which the request for surrender concerned was made; and

(ii) if the Governor decides that he shall be surrendered to that place, to await such surrender."

16. A "relevant offence" is defined by section 2(2) of the Ordinance :

"(2) For the purposes of this Ordinance, an offence by a person against the law of a prescribed place is a relevant offence against that law if -

(a) the offence is punishable under that law with imprisonment for more than 12 months, or any greater punishment; and

(b) the acts or omissions constituting the conduct in respect of which the person's surrender to that place is sought amount to conduct which, if the conduct had occurred in Hong Kong, would constitute an offence

(i) coming within any of the descriptions specified in Schedule 1; and

(ii) punishable in Hong Kong with imprisonment for more than 12 months, or any greater punishment."

There is no question in this case but that all these offences carry maximum terms of imprisonment in the United States exceeding 12 months. There was evidence before the magistrate to that effect. There is also no question but that the acts and omissions constituting the conduct in respect of which this applicant's surrender is sought is conduct which, if it had occurred in Hong Kong, comes within a description found in the Schedule and is punishable with imprisonment for more than 12 months.

17. A "prescribed place" means, according to section 2(1), "a place outside Hong Kong to or from which a person may be surrendered pursuant to prescribed arrangements;" and "prescribed arrangements" means, according to the same subsection, "arrangements for the surrender of fugitive offenders which are the subject of an order under section 3(1) which is in force;".

18. Section 5 of the Ordinance contains a list of restrictions upon surrender. It stipulates that surrender shall not be granted if the offence appears to the surrendering authority to be a political offence; or if the offence was prosecuted in his absence and the fugitive has had no opportunity of defending himself; or if he is to be prosecuted on account of his race, religion, nationality or political opinion; or prejudiced by reason of such attributes; or if the pleas in bar of autrefois acquit or convict would apply if the offence had been committed in Hong Kong. There is also section 5(2), the specialty provision by which a person is not to be surrendered unless provision is made by the law of the requesting jurisdiction that he will not be dealt with for any offence other than that for which his surrender has been granted.

19. These are the restrictions placed by the Ordinance upon surrender. Nothing whatsoever is said, be it noted, about time limits for prosecution in the requesting country.

The USA - Hong Kong Agreement

20. An order has been made under section 3 of the Ordinance directing that the procedures in the Ordinance shall apply as between the United States and Hong Kong subject to such limitations, restrictions, exceptions and qualifications as are contained in the arrangements made between those two jurisdictions, and the arrangement referred to is the agreement between Hong Kong, duly authorised by the Central Government of the PRC, and the USA, in 1998, which appears in the Schedule to the section 3 order.

21. Article 2 of the Agreement provides for surrender for offences of kidnapping, and offences of arranging for financial gain the illegal entry of persons into the jurisdiction of the requesting country, as well as for conspiracy to commit such offences.

22. There are some articles which preclude surrender in specified circumstances. For example, if the offence of which the person has been accused or convicted is a political offence (Article 6), or where the person has previously been acquitted or convicted of the offence in the requested jurisdiction (Article 5). But there is no bar on surrender where it is suggested that the offence is time-barred in the requesting jurisdiction. All we see about time bars is contained in Article 8 which specifies the documents that shall accompany a request :

"ARTICLE 8

Required Documents

(1) Requests for the surrender of a fugitive offender shall be made in writing by and to the appropriate authorities of the Parties as may be notified between them from time to time.

(2) All requests shall be accompanied by:

(a) a description of the person sought, together with any other information which would help to establish his identity and nationality including, if known, his whereabouts;

(b) information describing the facts of the offence and the procedural history of the case; and

(c) a statement of the provisions of the law describing the offence for which surrender is requested and a statement of the punishment which can be imposed therefor and a specification of any time limit which is imposed on the institution of proceedings.

... "

The issue

23. The issue in this case falls within a narrow compass. It is whether the magistrate ought to have determined whether prosecution of the offences in respect of which the applicant's surrender was requested in the United States was there time-barred, and whether the magistrate was under an obligation to receive evidence about United States law in relation to the limitation period and its applicability to these offences.

24. Mr McCoy says that in relation to the first two charges in the committal order, the offences are clearly out of time or, put more correctly, prosecution for the offences are out of time. But even the third to eighth offences specified in the order cannot be prosecuted in the United States because, he says, contrary to the contention of the United States authorities in the evidence filed, the applicant had not in fact decamped from the United States. So, he says the magistrate should have allowed the applicant to adduce evidence at the committal proceedings : first, expert evidence to cover the law of the United States about time limitation; secondly, evidence by the applicant and others - I know not how many - to show that she had not fled the jurisdiction, thereby to prove that the suspension of time provisions, or toll provisions, did not apply. I suppose it must follow from this, if he is right, that the magistrate would then have been obliged to hear contrary expert evidence on behalf of the requesting authority and, not only that, but to hear and determine evidence of witnesses on the respondents' behalf to show that the applicant had in fact fled the United States, and to show that she had in fact entered clandestinely and under assumed names; and that then the magistrate would have had to determine who to believe, and to come to a conclusion about US law on time limitation, and to apply that law to the facts which he found. Merely to postulate such a proposition suggests that nothing of the kind could ever have been intended for extradition proceedings for a magistrate in the requested jurisdiction where the key issue is whether there has been sufficient evidence to show the committal of an offence contrary to Hong Kong law. But there we are. Let us now examine the basis upon which this contention is advanced.

The exceptional accusation point

25. The argument of Mr McCoy has a number of limbs. The first point he takes is that this is, he says, an 'exceptional accusation' case and that therefore the magistrate has the right, indeed the obligation, to concern himself with the provisions of the United States - Hong Kong Agreement, and that that in turn leads to a requirement to hear evidence of USA law.

26. The point arises, it seems, in this way : that Article 8(2) of the agreement provides that requests shall be accompanied by a statement of the law describing the offence for which surrender is requested and shall specify any time limit that is imposed for the institution of proceedings. It is said by Mr McCoy that that is a limit on the power to surrender and he seeks to use a passage from the speech of Lord Diplock in In re Nielsen [1984] 1 AC 606 at 621, to carry his point further.

27. Nielsen was a case under the Extradition Act 1870 where the magistrate received expert evidence of Danish criminal law adduced to show that the offences in Denmark represented by the fugitive's conduct were not substantially similar in concept in the two jurisdictions, and the magistrate refused to make a committal order. The House of Lords held that he should not have refused, indeed he should not have entertained the evidence of foreign law at all, that he had no jurisdiction to make any findings in that case as to substantive Danish law, or to receive expert evidence about it. His sole function was to ascertain, as he was required to do by the statute, whether the foreign warrant was duly authenticated and whether the evidence produced of the conduct in respect of which the applicant was wanted was sufficient according to the law of England to justify the fugitive criminal being committed for trial for a scheduled offence had the conduct described in the evidence been committed in England. Lord Diplock went on to say at p.621 :

"Whether in an accusation case the police magistrate has any jurisdiction to make findings as to the substantive criminal law of the foreign state by which the requisition for surrender of a fugitive criminal is made will depend upon the terms of the arrangement made in the extradition treaty with that state. Some treaties may contain provisions that limit surrender to persons accused of conduct that constitutes a crime of a particular kind (for example, one that attracts specified minimum penalties) in both England and the foreign state. Accusation cases arising under extradition treaties that contain this kind of limitation I shall call 'exceptional accusation cases'. In an exceptional accusation case it will be necessary for the police magistrate to hear expert evidence of the substantive criminal law of that foreign state and make his own findings of fact about it."

28. As Mr Alun Jones, QC, points out in his text on extradition - Jones on Extradition (at para.2-047) :

"This general and considered guidance may be considered obiter because Lord Diplock excluded the circumstances of Nielsen's case from 'exceptional accusation cases'."

29. In Regina v. Governor of Pentonville Prison, ex parte Sinclair [1991] 2 AC 64, the House of Lords was required to determine whether the magistrate had jurisdiction to consider whether or not the extradition treaty relied upon had been complied with, and their Lordships held that he did not and in doing so disapproved the obiter dicta of Lord Diplock in Nielsen. Lord Ackner there said at (pp.91-92) :

"... The straight issue as to whether the magistrate had jurisdiction to consider whether the requirements of the Treaty had been satisfied never arose for consideration until the Nielsen case [1984] A.C. 606.

Your Lordships are concerned with the construction of an Act passed over a hundred years ago. I cannot accept that the legislature intended that it was to be part of the function of the police magistrate to preside over lengthy proceedings occupying weeks, and on occasions months, of his time hearing heavily contested evidence of foreign law directed to whether there had been due compliance with the many and varied obligations of the relevant Treaty. The inconvenience of such a procedure is well demonstrated by the current litigation. Had the challenges which the applicant wished to make been ventilated initially before the Divisional Court in habeas corpus proceedings, it is unlikely that the court would have permitted the lengthy oral evidence which the magistrate, as matters stood, felt himself obliged to hear. Certainly for the future, if your Lordships concur that the magistrate has no jurisdiction to decide either whether there has been an abuse of the process of the court, or whether the requirements of the Treaty have been satisfied, his powers being limited to those specified in sections 3(1), 8, 9 and 10, much time should be saved both in the magistrates' and in the Divisional Court."

Mr Jones suggests that the effect of this judgment (which can hardly, in Sinclair's case I would add, be said to be obiter) is that there was no such thing as an exceptional accusation case. As to the current state of the law, he has this to say (at para.2-057) :

"The rule in Sinclair was followed by the House of Lords in R. v. Governor of Pentonville Prison, ex p. Alves, a case dealing primarily with the law relating to sufficiency of evidence at committal.

The matter may now be taken as settled. The approach of the Divisional Court in Nielsen and the House of Lords in Sinclair will no doubt be applied equally to general extradition arrangements. The problems involved in construing treaties and arrangements have not, of course, disappeared; they have simply, in practice, been transferred to the Secretary of State. ..."

30. The Court of Appeal in Hong Kong has come to the same conclusion in Chen Chong Gui v. Senior Superintendent of Lai Chi Kok Reception Centre & Anor. [1998] 1 HKC 522 where at p.528, Mortimer V-P said :

"... It is not within the jurisdiction of the magistrate nor is it his function to receive evidence concerned with the obligations under the treaty. His powers are limited to those provided in the relevant statutory provisions..."

31. But Mr McCoy says that all that was before the introduction of the Ordinance, and that the question has been reopened by the Court of Appeal in Chong Bing Keung Peter v. United States of America (No.2) [2000] 2 HKC 137 where, at pp.150-151, the judgment of Ribeiro JA (as he then was) referred to the exceptional accusation case comments of Lord Diplock, apparently as representing the present state of the law. For reasons I shall shortly state, it is not necessary for me to be drawn into an analysis of that case save to point out that the question of exceptional accusation cases was not there the issue. The comments are, as the editors of the reports suggest by the headnote, obiter. The issue in the case was whether municipal courts were competent to adjudicate upon the capacity of a foreign government to enter upon an international arrangement; and I note, too, that although the Court of Appeal referred to the first instance decision of Chen Chong Gui, no reference was made to the Court of Appeal's decision in Chen Chong Gui to which I have just referred.

32. I say that I need not further analyse the Court of Appeal's decision in Chong Bing Keung because the point in Nielsen, and the point in Sinclair, and the discussion of Mr Jones' book, as to the present status of exceptional accusation cases does not, in the context of the arrangement with which I am concerned, arise. Even supposing that a magistrate were entitled to look at this arrangement to see what limit there was to surrender, so that he could then act upon such a limit, the limit for which Mr McCoy would contend is simply not there. The arrangement does not bar surrender where a prosecution for an offence in the United States is time-barred. We have seen that in Article 6, there is a provision reflected in the Ordinance that a fugitive offender shall not be surrendered if the offence of which the person is accused is an offence of a political character. We have seen that there is a bar in relation to the surrender for an offence where the person sought has been convicted or acquitted in the jurisdiction of the requested party. But there is no prohibition against surrender for offences the prosecution of which is time-barred. There used to be; and that is significant. In the extradition treaty between the United States and the United Kingdom applied to Hong Kong before the entry into force of the present agreement, no doubt before July 1997, Article 5 expressly stipulated that extradition would not be granted if prosecution for the offence for which extradition was requested had become barred by lapse of time according to the law of either the requesting or the requested party. The absence of such a term in this agreement, and the wording of the provision itself - that is the wording of Article 8, its purport and context - all are fatal to any argument which is based upon the exceptional offence proposition, even assuming, for present purposes only, that such a proposition was sound. Article 8 has to do with formal requirements, the documents that the requesting jurisdiction has to forward; and one of those documents is a statement about time limits for prosecution for the offences for which the fugitive is sought. If a magistrate were presented with a statement provided pursuant to Article 8, and if it was then suggested that the offences were time-barred, or may be, what then would he do? Upon what authority would he then say, even after full inquiry as to foreign law and perhaps after taking copious evidence - upon what authority would he then say that he refused to commit? Upon the authority of the agreement? But the agreement does not give him that authority. Is he to exercise some discretion about it when all matters of discretion are clearly for the Executive? The magistrate's authority to refuse a committal order must rest, and rest exclusively, upon the terms of the Ordinance. Mr McCoy would then, I gather, say that there is by the Ordinance imported the prohibition to be found in the agreement. He takes me to section 3(1) of the Ordinance which reads as follows :

"(1) Subject to subsection (9), the Chief Executive in Council may, in relation to any arrangements for the surrender of fugitive offenders, by order -

(a) reciting or embodying the terms of the arrangements;

(b) specifying the extent, if any, to which any relevant enactment specified in the order is to be repealed or amended,

direct that the procedures in this Ordinance shall apply as between Hong Kong and the place outside Hong Kong to which the arrangements relate, subject to the limitations, restrictions, exceptions and qualifications, if any, contained in the order."

33. Now, there is nothing new in such a provision (see, for example, section 5 of the Extradition Act 1870, and section 4 of the Extradition Act 1989), so that suggestions by Mr McCoy that we have here in section 3 some new instrument or vehicle by which the law is all changed, and which is the "in" to obliging magistrates to consider whether the requirements of a treaty have been satisfied is not a good point. But yet again, whatever section 3 means, it can be of no possible avail to this applicant, for all it would do is to return a magistrate, lured by such a submission, to Article 8 and to the fact that Article 8 contains no prohibition against surrender on the basis of a time bar. What the magistrate would see is that Article 8 requires a statement by the requesting jurisdiction specifying any time limit. And he would ask, if he decided to travel such a route, whether there was such a statement, and he would be told that there was; and that would, as far as he is concerned, be the end of the matter.

34. Mr McCoy asks what then is the relevance of Article 8 with its reference to the time bar? That is not a question that needs to be answered, beyond the answer that it is not a matter for the magistrate. In the case of Robert Henry Cosby v. Chief Executive of the HKSAR, HCAL118/99 (13 October 1999, unreported), I alluded to a possible reason. I said at pp.25-26 :

"As for the question of the limitation period for prosecution in the requesting jurisdiction, there is nothing in the Ordinance which requires the Chief Executive or the magistrate to ask whether the Hong Kong offence or the conduct which constitutes the Hong Kong offence is time barred in the requesting jurisdiction. What the Chief Executive must address is whether it appears to him that an order for surrender could not lawfully be made. By reason of Article 8(2) of the Agreement, the attention of the Chief Executive will be directed to such time limit as may exist for the institution of proceedings for the actual offence for which surrender is requested, and section 2(2)(a) of the Ordinance obviously contemplates prosecution in the requesting jurisdiction for a specific offence against the law of that jurisdiction. If, therefore, it is apparent that the foreign offence for which prosecution will take place is time barred, that may be evidence upon which the Chief Executive might conclude that the request is bogus or misrepresented and that the fugitive might be prosecuted for conduct quite different from that upon which the extradition proceedings are grounded. ..."

It is a matter for the Executive alone. Subject to consideration of the terms of section 2(2) to which I shall shortly turn, and to which Mr McCoy invited me, there is nothing in the Ordinance at all that restricts surrender where an offence is time-barred in the requesting jurisdiction. In addressing those few sections of the Ordinance which are relevant to this application, I have referred to section 5 and the express restrictions there contained upon surrender. Of course they are restrictions which must concern the magistrate, and he must address them if the occasion arises. But one notes that there is no restriction there, indeed no mention there, relating to time limits.

The section 2 point

35. Mr McCoy's next point is novel. It is this : that if prosecution for an offence is time-barred, it is for the purpose of the Ordinance not an offence at all. One remembers that to make an order under section 10(6)(b) of the Ordinance, the magistrate must be satisfied that the offence to which the authority to proceed relates is a relevant offence. Section 2(2) says that an offence by a person against the law of a prescribed place is a relevant offence against that law if, amongst other attributes, it is punishable under that law with imprisonment for more than 12 months. But, says Mr McCoy, an offence cannot be prosecuted if it is time-barred; and if it cannot be prosecuted, it is not punishable; and if it is not punishable, it is not a relevant offence. So, the magistrate, according to this argument, has to ascertain whether it is punishable; and in order to do so, he has to ascertain if it can be prosecuted; and to do that he must ascertain whether prosecution is time-barred; and to do that he must take evidence of foreign law; and so on.

36. The contention is untenable. Section 2(2)(a) self-evidently addresses what punishment is available in the event that a person is convicted of a transgression of that particular law. The magistrate asks himself a question along these lines : Were a person - any person - in the foreign jurisdiction to be convicted of such an offence, could he there be punished by imprisonment for more than 12 months? The magistrate does not ask whether the particular person then appearing before him in committal proceedings will or will not be convicted. He does not ask whether, for example, the courts of the requesting country have the jurisdiction to try him (see, for example, Alves v. Director of Public Prosecutions and Anor. [1992] 4 All ER 787 at p.794); and, by the same token, section 2(2) does not require the magistrate to ask if a plea in bar of any other kind, including a limitation point, is available, let alone whether it will succeed. What section 2(2)(a) is concerned with is the specified statutory or common law offence in the foreign jurisdiction, and the penalty provided by the law of that jurisdiction for such an offence in the event of a conviction for that offence. To this end alone, evidence of foreign law is permitted and, indeed, required. And in this case that evidence was provided and not contested.

Other points

37. There was some suggestion in the skeleton argument that there is authority for the proposition that in determining whether an offence is or is not a relevant offence, the magistrate was, in some blanket way, entitled to examine such evidence as the applicant wished to place before him. The authority for this proposition was said to be Tiongco v. The Government of the Republic of the Philippines & Another [1998] 2 HKLRD 282. As I understand it, the point is no longer advanced. What I said in Tiongco (at p.304) was this :

"In the circumstances, I conclude that in determining whether an offence is a relevant offence, a magistrate is entitled to that end to examine the totality of the evidence which is placed before him. He is not restricted to an examination of the conduct as revealed or particularised in the warrant or information issued by the requesting jurisdiction or in the authority to proceed."

38. As I say, I do not understand Mr McCoy to press the point, accepting the context in which that comment was made, and very properly drawing to my attention also the provisions of section 23(4) of the Ordinance which places significant restrictions on the evidence that might be adduced by a person whose surrender is sought.

39. There was also some suggestion in the application as originally framed that the magistrate ought to have given reasons for the ruling he made that he had no jurisdiction to deal with the time bar point. Mr McCoy accepts that the failure by the magistrate to be more specific than he was cannot render the committal order unlawful. I need only say that in the circumstances which had then presented themselves, I do not think that the magistrate needed to say more than he did. The magistrate in fact gave a reason for his decision : it was that he had no jurisdiction to deal with the time bar issue, and in that conclusion he was correct.

Conclusion

40. In this case, the requirements of section 10(6) were fulfilled. The applicant's committal was not prohibited by any other provisions of the Ordinance. In the circumstances, the magistrate was duty bound to make the committal order he made. The order was lawful and so is the applicant's detention as a result of that order. Accordingly, the application for the issue of a writ of habeas corpus is dismissed.

[Submissions on costs]

41. Mr Walsh makes an application for costs on behalf of the 1st respondent but makes none in relation to the 2nd respondent. Accordingly, there will be an order that the applicant pay to the 1st respondent her costs of and occasioned by this application.