XCHRX HKSAR v. ROBERT HENRY COSBY

HCMP4448/99

HEADNOTE

1. Bail applications in extradition proceedings in the High Court are under the inherent jurisdiction of the Court.

2. Neither S. 10(5) of the Fugitive Offenders Ordinance nor the Criminal Procedure Ordinance apply in bail applications in extradition proceedings in High Court.

3. Extra care should be taken and a higher standard than that which applies to ordinary bail applications is required in extradition bail applications.

HCMP4448/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL JURISDICTION

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. On 14th July 1999 the United States of American made a request to the HKSAR for the provisional arrest of the Applicant pursuant to the provisions of the agreement between the HKSAR and the Government of USA for the surrender of fugitive offenders. The request was based upon a warrant for the arrest of the Applicant which had been issued in the United States District Court of Nevada on 2nd December 1998 for money laundering offences.

2. On 15th July 1999 the Hong Kong police applied for a warrant for the provisional arrest of the Applicant at Eastern Magistracy pursuant to the provisions of the Fugitive Offenders Ordinance, Cap. 503. A warrant was duly issued by Brennan Esq., a magistrate the same day.

3. On the morning of 16th July 1999 the Applicant was stopped at the Hong Kong Airport as he attempted to leave Hong Kong for Haikou, China. The warrant was executed and the Applicant was taken into custody by Hong Kong police.

4. The Applicant appeared before a Magistrate in Eastern Magistracy on 17th July 1999 and was remanded in custody. He appeared again on 22nd July 1999 when an application for bail was made but refused.

5. He now applies for bail before me.

TITLE & PARTIES

6. Mr McCoy SC for the Applicant submits that in all applications for bail in extradition cases the parties should be:

(1) Fugitive v Requesting Country. The HKSAR is not a party to the proceedings at all; and

(2) the proceedings are not brought under S. 9J of the Criminal Procedure Ordinance, Cap. 221.

7. As a matter of proper practice, the proper intitulement in the Court of First Instance should be

"In the matter of [Extradition Case Number]
under the Fugitive Offenders Ordinance, Cap. 503

and

In the matter of the inherent jurisdiction of
the Court of First Instance

Between

	(Name of Fugitive)	Applicant
	and
	Requesting Country	Respondent"

8. Whist I agree that this application is under the inherent jurisdiction of the Court of First Instance for reasons set out hereinafter, I do not agree that the Requesting Country should be the Respondent. The Applicant was arrested by the Hong Kong police albeit at the request of the requesting country, the application is made as a result of the arrest by the Hong Kong police. Hence the HKSAR is the proper Respondent.

WHETHER S. 10(5) of the Fugitive Offenders Ordinance and S. 9 of the Criminal Procedure, Cap. 221 apply in bail applications in respect of fugitives in the Court of First Instance.

9. In MP No. 3426 of 1997, Gall J after referring to the relevant provisions in S. 9 of the Criminal Procedure Ordinance and S. 10(5) of the Fugitive Offenders Ordinance said:

"What this amounts to is that there is an entitlement to bail, unless there is very good reason why I should not admit the applicant to bail. It is my view that one of the reasons that I can take into account is the stricture upon the magistrate under section 10(5) of the Fugitive Offenders Ordinance. In my view, the threshold for a fugitive offender to be admitted to bail at this stage and pursuant to section 9D must be at a higher level and along the same lines as that restraint upon the court of committal, and unless there are special circumstances justifying a remand on bail, bail should not be allowed."

10. In MP 4996/98 Saied J refused bail on the basis that there were no special circumstances. In the concluding paragraphs of his judgment, he said:

"Quite clearly, under our relevant provision, special circumstances must be those which appear to a magistrate, so special and exceptional as to justify bail. The applicant says that his wife and daughter are not keeping well. I do not think that that constitutes a special circumstance.

Considering everything, I do not see any special circumstances made out in this application to justify grant of bail to the applicant. The bail application is refused. Dismissed. Thank you."

11. In MP 4492/98 Nguyen J adopted a different approach. At p.5 last paragraph of his judgment he said:

"In my view, s. 10(5) of Cap. 503 which sets out the requirement for special circumstances has no application to the High Court and only applies to a court of committal as that is defined in s. 2 of that Ordinance. In my view, when the High Court entertains an application for a review of a magistrate's decision under s. 9J, the High Court judge only has to consider the provisions of Part IA of the Criminal Procedure Ordinance. Under those provisions, an accused person or fugitive offender has a right to be admitted to bail. But under s. 9G, that person need not be admitted to bail if it appears to the court that there are substantial grounds for believing that the accused person might either fail to surrender to custody, or commit an offence while on bail, or interfere with a witness or pervert the course of justice."

12. S. 2 of the Fugitive Offenders Ordinance, the "Court of Committal" is defined as "any magistrate before whom is brought a person arrested pursuant to a warrant under S. 7(1) whether in the first instance or subsequently".

13. S. 10(5) of Cap. 503 states:

"Notwithstanding any other law of Hong Kong, the Court of Committal shall not remand in bail the person arrested unless it is satisfied that there are special circumstances justifying such remand."

Since the Court of First Instance is not a Court of Committal, therefore, S. 10(5) of the Fugitive Offenders Ordinance has no application. I tend to agree with Nguyen J on this point.

14. The next point I have to consider is whether S. 9 of the Criminal Procedure Ordinance applies. This Ordinance governs the domestic law in respect of criminal proceedings. Extradition matters are not part of domestic law. In fact in Re Kau Paul [1992] 2 HKC 331 at 342 I, P Chan J as he then was said:

"It is also quite clear that S. 32 of the Criminal Procedure Ordinance applies only to domestic criminal proceedings and has no application in extradition proceedings." (my emphasis)

15. For reasons above I rule that the Criminal Procedure Ordinance has no application in extradition proceedings and I do not agree with Nguyen J that bail in surrender proceedings should be on the same footing as bail in domestic proceedings. Hence the heading should not be "In the matter of an application for Bail under S. 9J of the Criminal Procedure Ordinance" but "In the matter of the inherent jurisdiction of the Court of First Instance."

INHERENT JURISDICTION

16. The Court of First Instance being a superior court of unlimited jurisdiction always has inherent jurisdiction to grant bail. In R v Spilsbury [1898] 2 QB 615 at 620 per Lord Russell of Killowan CJ:

"This Court has, independently of statute, by Common Law, jurisdiction to admit to bail."

17. In Re Wang Tai [1911] 6 HKLR 67 at 69, the Chief Justice said:

"This court has inherent jurisdiction in the matter of bail; and for this court it is also a matter of discretion."

18. Since this Court has unfettered discretion what then are the relevant factors in exercising that discretion in respect of extradition cases?

19. In R v Phillips [1922] All ER 275 at 277 per Lord Hewart J:

"... this country has entered into an agreement with a foreign country under the comity of nations and has deliberately taken it upon itself the obligation, upon a charge properly made, to hand over to that foreign country a person in this country who is charged with the commission of an offence in that country. That is an obligation which this country has entered into, and the scrupulousness of conduct with which that obligation is regarded and performed is not measured by any particular tenderness shown to that foreign country, but is measured by the duty which, having entered into an obligation of that kind, we conceive to be owing to ourselves. It becomes a point of honour when a treaty of that kind has been made that special care should be taken to fulfil it. That does not mean, nor did the learned Attorney-General so contend, that in no case under the Extradition Acts is the question of bail to be considered. What it does mean is that where a case is under the Extradition Acts there is, in addition to the normal considerations which apply to a question of bail, an added ingredient due to the fact that a treaty has been made with a foreign country."

This court is, therefore, entitled to take into consideration the fact that the proceedings are surrender proceedings and should take special care to fulfil the obligation under the treaty in addition to the normal circumstances which this court should consider in bail applications. Following R v Phillips, supra, I am of the view that bail in extradition proceedings should be on a higher standard than that which applies to ordinary bail applications.

20. Since this court has unfettered discretion whether the presiding judge would take into account the stricture upon granting bail contained in S. 10(5) of the Fugitive Offenders Ordinance is, therefore, a matter entirely for the presiding judge.

21. I do not think it is incumbent on my part to consider whether there are special circumstances as this court is not a Court of Committal. I will however bear in mind that this is an extradition proceeding and take special care and follow R v Phillips in deciding whether the Applicant should be granted bail.