THANAT PHAKTIPHAT v. CHIEF SUPERINTENDENT OF LAI CHI KOK RECEPTION CENTRE and Another

IN THE COURT OF APPEAL

1995, No. 5
(Civil)

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J U D G M E N T

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Godfrey, J.A. :

1. This is an appeal from Mayo, J. who on 24 November 1994 refused to grant relief under a writ of habeas corpus to Thanat Phaktiphat ("the appellant"), presently detained in custody by the Chief Superintendent of the Lai Chi Kok Reception Centre ("the respondent").

2. The appellant alleges that his detention by the respondent is unlawful. The respondent answers that his detention of the appellant is justified by an order of a magistrate committing the appellant into his custody to await a decision of H.E. the Governor as to the appellant's extradition to the United States of America to face drug trafficking charges there. The appellant replies that the hearing before the magistrate, at the conclusion of which he was so committed, was an "unfair hearing" within the meaning of that expression as used in Article 10 of the Hong Kong Bill of Rights (see the Hong Kong Bill of Rights Ordinance, Cap. 383).

3. It is common ground that if the hearing were indeed "unfair" the appellant's detention would be unlawful; the only issue is whether the appellant did or did not receive a fair hearing before the magistrate.

4. The reason why the appellant says he did not receive a fair hearing is that the magistrate, whose duty (and whose only duty) it was to decide whether there was sufficient evidence before him to justify the appellant's committal into custody, should have excluded, but did not exclude, from his consideration of the matter, evidence of 31 telephone calls, made in the U.S.A., and tending to incriminate the appellant. The evidence was obtained by means of a wire tap carried out by the U.S.A. law enforcement authorities under the authority of an order of a United States district judge. It was not argued before Mayo, J. that this material had been unlawfully obtained in the U.S.A. Clearly, it would be admissible in any criminal proceedings against the appellant in the U.S.A.

5. The magistrate, accepting (correctly) that the evidence was relevant evidence, declined the appellant's invitation to exclude it, holding that he had no "jurisdiction" (by which I take him to mean no power or discretion) to do so.

6. The respondent says that the magistrate was right so to hold. Mayo, J. agreed with the magistrate, and therefore refused the appellant the relief for which he had asked. We now have to consider the point for ourselves.

7. For my part, I agree with Mayo, J. that the magistrate was right.

8. These were extradition proceedings. In Kindler v. Canada (Ministry of Justice) (1991) 84 DLR (4th) 438, McLachlin, J. in giving the majority of the Supreme Court of Canada in the case, said this (at p.488):

"While the extradition process is an important part of our system of criminal justice, it would be wrong to equate it to the criminal trial process. It differs from the criminal process in purpose and procedure and, most importantly, in the factors which render it fair. Extradition procedure, unlike the criminal procedure, is founded on the concepts of reciprocity, comity and respect for differences in other jurisdictions".

9. In Thong Chai Sanguan Dikul v. Government of the United States, 26 May 1992, unreported, Kaplan, J., then a judge of the High Court of Hong Kong, said this of the passage just cited:

"This passage is helpful in that it underscores the very special nature of extradition proceedings having its roots in international comity. To supplement the local legislation, which give effect to treaty obligations by imposing doctrines of fairness applicable to domestic proceedings is to run a real risk of interfering with such treaty obligations".

10. When the local case came before the Judicial Committee of the Privy Council, Lord Griffiths observed to counsel for the applicant, in the course of argument, that although the duty to disclose unused material was a well-settled part of domestic criminal proceedings, extradition was "very different indeed". We are not concerned here with the duty to disclose unused material; we are concerned with the question as to whether evidence allegedly unlawfully obtained ought to be excluded from consideration in extradition proceedings. But, in my judgment, that makes no difference. In R. v. Governor of Pentonville Prison, ex parte Lee [1993] 3 All ER 504, Ognall, J., in the Divisional Court, agreeing with the observation of Lord Griffiths added this at pp.509, 510:

"It is of course right to observe that the law of extradition proceeds upon the fundamental assumption that the requesting state is acting in good faith and that the fugitive will receive a fair trial in the courts of the requesting state. If it were otherwise, one may assume that our government would not bind itself by treaty to such process. But that is not to say that it is the duty of our courts to enquire into the adequacy or otherwise of the procedural safeguard afforded to a defendant before those courts. Our courts have consistently resisted attempts to import the requirements of domestic criminal procedure into extradition proceedings. Provided that there has been a compliance with the terms of the 1989 [Extradition] Act, fairness is not a criterion relevant to the function of the committing court."

11. In my judgment, the Hong Kong magistrate, hearing an application for extradition by a requesting state, and faced with evidence that was lawfully obtained in and under the law of that state, cannot possibly be entitled to exclude it from his consideration on the ground (the only ground urged on behalf of the appellant here) that the court would have had a discretion to exclude it from consideration in committal proceedings in Hong Kong on the ground that it had been obtained unlawfully, even if that ground were made out.

12. The reasons for this are many; it is sufficient to refer to two.

13. In the first place, we are concerned, not with committal proceedings in Hong Kong, but with extradition proceedings in Hong Kong; to which, as just demonstrated, entirely different considerations apply from those which apply in committal proceedings. I would hold that, in extradition proceedings, questions relevant to the fairness or otherwise of receiving evidence are questions for the court of trial, not for the magistrate hearing the extradition proceedings.

14. In the second place, even if we had been concerned with committal proceedings, the position in Hong Kong (as at common law : see e.g. R. v. Khan (Sultan) [1994] 4 All ER 426) is that the magistrate has no discretion to exclude relevant and therefore admissible evidence from his consideration, even if it be alleged that it was unlawfully obtained.

15. In England and Wales, he does now have such a discretion. By s.78 of the Police and Criminal Evidence Act 1984, it is provided as follows:

"78(1) In any proceedings, the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it ...."

16. But it has been decided, in relation to s.78(1) of the Police and Criminal Evidence Act 1984, that, although the sub-section does apply to committal proceedings the magistrates should exercise their discretion under it to exclude admissible evidence only in the clearest case and in exceptional circumstances, i.e. where they are satisfied that the admission of the evidence at trial would be so obviously unfair that no judge properly directing himself could admit it: see R. v. King's Lynn Justices, ex parte Holland (1993) 96 Crim. App. Rep. 74. Even if, as I am prepared for present purposes to assume, a Hong Kong magistrate in extradition proceedings now has, by virtue of Article 10 of the Bill of Rights, the same right or even duty to exclude such evidence as a magistrate in England and Wales would have under s.78 of the Police and Criminal Evidence Act 1984, the suggestion that evidence of these telephone calls, lawfully obtained in the U.S.A., would not be admitted at a trial in the U.S.A., because it would be so obviously unfair that no judge properly directing himself could admit it (in my judgment, clearly the correct test), is obviously quite unsustainable. It seems to me to be nothing to the point that, maybe, the admission of this evidence at a trial in Hong Kong might properly be objected to, a trial in Hong Kong being governed by Hong Kong law as to what evidence ought or ought not to be excluded. In the result, the only matter of which the appellant can complain here is that he was deprived by the decision of the magistrate of an opportunity to argue the unarguable; and that does not begin to entitle him to complain that, before the magistrate, he received an unfair hearing, however generous an interpretation is placed on those words. It follows that the detention of the appellant by the respondent is not unlawful.

17. For these short reasons, I would dismiss this appeal. It is not necessary, in order to dispose of the appeal, to say anything about the many other points which were the subject of the interesting argument before us, and I do not think it desirable that we should do so.

Mortimer, J.A. :

18. I agree.

Power, V.-P. :

19. I also agree.