ENG SUI HANG, JOHNNY v. GOVERNMENT OF THE UNITED STATES OF AMERICA AND ANOTHER

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

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

JUDGMENT

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

Sir Derek Cons, Ag. C.J. delivered the reasons for judgment of the court:

1. On the 29th of last month we dismissed, saying we would give our reasons later, an appeal against the refusal of Bokhary, J., upon applications by way of habeas corpus and judicial review, to set aside orders made by the Deputy Governor and the Governor under powers given to them by paragraph 4(2) of Schedule 1 to the Extradition Act 1989 ("orders to proceed") and warrants of arrest made pursuant thereto. The application of that Act, which came into force on 27th September of that year to Hong Kong is succinctly set out in the judgment of Fuad, V.P. in the recent case of Law Kin Man v. Government of the United States of America and Director of Lai Chi Kok Reception Centre, Civil Appeal 161/90, 22nd May 1991.

2. The appellant, Eng Sui Hang, also known as Johnny Eng, is wanted in the United States in respect of a number of drug offences, 21 of which are said to have been committed in the Eastern District and 4 in the Southern District of New York. He was in December 1989 committed by a magistrate to prison to await surrender to America, but was subsequently discharged, on 22nd June last year, by Jones, J. in habeas corpus proceedings on the ground that the Governor's order to proceed, which was accepted as having been made under the repealed Extradition Act 1870, was therefore invalid.

3. The appellant was immediately re-arrested upon a warrant which had been issued pursuant to an order to proceed given on 25th May last year, i.e. while the proceedings before Jones, J., which did not commence until the 29th of that month, were still pending. The offences alleged were the same. Then subsequent to the judge's decision two further orders to proceed were issued, relating respectively and separately to the offences in the Eastern and Southern Districts. Again no new offences were introduced. The object of the further orders was merely to enable separate committal proceedings to be held in respect of the two sets of offences. Further warrants were issued and the appellant further "arrested" thereon while in custody. On 9th August the appellant sought out his writ of habeas corpus, followed shortly by the two applications for judicial review.

4. The notice of appeal sets out two grounds:

5. We pause to interpose that in the present instance a further requisition had been made, but we do not think any thing turns thereon.

6. The question was answered by Lord Mackay, with whom the rest of the House agreed, at p. 963:

7. In that case the fugitive was a national of West Germany wanted by the Federal Republic for kidnapping. During the course of committal proceedings at Bow Street the Secretary of State signed and issued a second order to proceed, which was produced to the magistrate who, at the invitation of counsel for the Republic, terminated the proceedings then part heard and discharged the fugitive. The fugitive was however immediately re-arrested upon a warrant issued by the magistrate in compliance with the second order.

8. Counsel for the appellant argues that a similar course should have been adopted in the present instance. He concedes that had it been his client would be in the same position as in fact he now is, but contends that by failing

9. Before turning to the two cases mentioned it is pertinent to note with regard to the first ground that:

        (a)    counsel was unable to direct our attention to any general principle or authority which by that token alone vitiated concurrent orders. Suggestions in his written submission that by common law a power conferred by statute was exhausted by a single exercise thereof, or that by reason of s. 39(1) of the Interpretation and General Clauses Ordinance, Cap. 1, it could only be exercised if "the occasion required" were abandoned during the course of the hearing; and

        (b)    when the order was made in May 1989 it was in fact the only order under paragraph 4 (2) of the Schedule. The previous order had been made under the 1870 Act. Although the provisions of the two Acts are effectively identical, they provide nevertheless separate powers, as counsel's written submission was at pains at p. 6 to point out.

10. Rees was an appeal from the Divisional Court to the House of Lords in which many questions were certified as being points of law of general public importance. The third was: to take that course and by continuing to insist instead upon the validity of the original order to proceed, the Governor acted unlawfully and that the laws must be observed. While we unhesitatingly accept the latter contention we are unable to find anything unlawful in the Governor's actions. To do so would require us to accept counsel's submission that the intention to terminate the current proceedings was a material factor in their lordships' decision. In our view it was not. There is nothing in the speech of Lord Mackay to indicate that he viewed it as anything more than part of the narrative of fact and we note that the Secretary of State's intention was not even mentioned in the recorded argument of counsel.

11. Oskar was a case under the Fugitive Offenders Act 1967, which by s. 9 provides that where a person has been committed by a magistrate to await his return to the requesting country the Secretary of State may not make an order to that effect where the person has been charged in the United Kingdom with an offence and the offence has not then been disposed of or withdrawn. Proceedings under the Act, like those under the Extradition Act, are initiated in the host country by an order to proceed, although it is referred to therein as an authority to proceed: s. 5(1). By reason of sub-s. (3) the Secretary of State may not issue such an authority if "it appears to him that an order for the return of the person concerned could not lawfully be made, or would not in fact be made, in accordance with the provisions of" the Act. The fugitive, who was wanted in Australia on perjury charges, had been committed by the magistrate, but challenged the validity of the order to proceed on the ground that a charge of perjury had been made against him in the United Kingdom and had been ordered to lie on the file. Lord Ackner, with whom the rest of the House agreed, accepted that the charge had not been "disposed of" within the Act, but held nevertheless that the order was valid. The Secretary of State was bound to bear in mind the bars or impediments specified in s. 9, but could also take into account the fact that in particular circumstances they might be overcome.

12. We see no analogy between Oskar and the present case, where the validity of the order was dependent not upon something that might occur in the future but rather on a state of fact which already existed, i.e. the law applicable to the October and November 1989 orders to proceed, albeit that due to the nature of court process that would not be known until sometime in the future. The May 1990 order was therefore not a contingent but an alternative order. The appellant having raised doubts by his proceedings, it was sensible for the Governor to, as counsel put it, hedge his bets. Indeed, by reason of the requirements of the Act, we would respectfully suggest he was in the circumstances bound to do so.

13. This conclusion patently disposes of the suggestion that the Governor acted unreasonably in the Wednesbury sense. Nor are we persuaded that he in any way mis-used his power. This submission is founded on the suggestion that the sole or dominant purpose of the order was to detain the appellant in custody, should he be released, so that further steps could then be taken. We are unable to accept that suggestion. In our view, like that of the judge below, the dominant purpose was to return the appellant to the United States. Detaining him in custody was merely ancillary to that end.

14. As we have found the May 1990 order was valid it is not necessary to consider whether, had we found otherwise, the later orders in July were valid.

15. It was for these reasons that we dismissed the appeal, as we have earlier indicated.