Re Thongchai Sanguandikul

MP No.287/93

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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J U D G M E N T

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1. This is the second application for a writ of habeas corpus by the applicant since he was arrested in Hong Kong on the 2nd November 1991 under a provisional warrant of arrest issued on the same date by a magistrate, Mr Peter Line, in accordance with the provisions of the First Schedule to the Extradition Act 1989. The request for extradition was made by the United States Government in respect of various charges of conspiracy to import large amounts of heroin into the United States.

2. On the 30th December 1991, the Governor made an order to proceed, directing a magistrate to proceed with an extradition hearing. The hearing took place before Mr A.R. Wright on the 2nd and 3rd March 1992, and after hearing the evidence he ruled that there was a prima facie case. The applicant was, therefore, remanded in custody to await the Governor's decision as to whether he should be extradited.

3. The applicant subsequently obtained leave to apply for a writ of habeas corpus and also for judicial review. Motions for both sets of relief were heard by Kaplan J. on the 4th and 5th May 1992, and in a reserved judgment delivered on the 26th May 1992, both applications were dismissed. The applicant's appeal against the judgment was dismissed by the Court of Appeal on the 17th November 1992. The Judicial Committee of the Privy Council refused the applicant's application for special leave to appeal on the 21st January 1993. On the same day, the applicant submitted a petition to the Governor seeking an order not to be extradited. However, before any decision was made, the applicant obtained an order for the present proceedings to be instituted.

4. The grand jury in the United Stated indicted the applicant principally upon the evidence of an accomplice named Albert Castagnola. Castagnola had pleaded guilty on the 15th September 1989 to the same charges that have been preferred against the applicant together with another charge and was sentenced on the 29th August 1991 to 5 years imprisonment. It is common ground that without the evidence of Castagnola, the applicant cannot be convicted.

5. On the 1st February 1993, the applicant's former solicitor, Mr Peter Hui received a number of documents relating to Castagnola which have been exhibited to an affirmation that he made on the 2nd February 1993. Although I have not read the documents, they relate to the lack of credibility of Castagnola when he gave evidence in a related case United States v Robert F. Hill. This evidence was not before the grand jury in the United States when the applicant was indicted, nor before the magistrate at the extradition hearing. It was upon this evidence that Liu J. made the order on the 2nd February 1993 for the present writ of habeas corpus to issue on the grounds that the evidence constitutes fresh evidence within s.23(1) of the Supreme Court Ordinance which reads:-

"Notwithstanding anything in any law or rule of court, where a criminal or civil application for habeas corpus has been made by or in respect of any person, no such application shall again be made to the High Court or any judge thereof by or in respect of that person on the same grounds, unless fresh evidence is adduced in support of the application."

6. It is common ground that the present proceedings are governed by the First Schedule to the Extradition Act 1989, and that s.11(4) of that Act which relates to the admissibility of additional evidence does not apply in Hong Kong. There is no corresponding provision to s.11(4) in the First Schedule.

7. Mr McCoy, counsel for the applicant, concedes that there was prima facie evidence before the magistrate to justify the applicant's committal. He also concedes that this application is on the same ground. However, he went on to submit that by virtue of the additional evidence that has been obtained, there is no longer a prima facie case for it reveals that Castagnola is an intrinsically unreliable witness. Accordingly, upon the evidence now available a jury properly directed could not convict.

8. Mr Bruce, who appeared for the Crown, submitted that the evidence is not fresh evidence and is in any event inadmissible for it does not go to the jurisdiction of the magistrate to commit. In the alternative, he argued that the evidence, if it is admissible, was available at the time of the hearing of the first habeas corpus proceedings.

9. I have proceeded to consider these submissions as preliminary issues without looking at the evidence for if I decide in favour of the Crown, the application must be dismissed.

10. Upon the issue of jurisdiction, Mr Bruce cited Schtraks v Government of Israel and Others (1964) AC 556. In that case, the applicant sought to adduce evidence to discredit the evidence placed before the magistrate upon which he had made his decision and to produce fresh evidence to the effect that the crimes charged were of a political character. The House of Lords held that additional evidence was limited to the question of the magistrate's jurisdiction at the date of the committal order. In his speech at p.596, Lord Evershed said as follows:-

"It may sometimes be a nice question whether the fresh evidence goes in truth to the magistrate's jurisdiction but your Lordships have been referred to no reported case in which fresh evidence has been received for the purpose merely of impeaching the magistrate's decision on the facts which were before him. It would therefore in my judgment be contrary to well-established principle for your Lordships to allow the receipt of such evidence in such a case as the present on the ground suggested by Mr. Foster. I add that in a case such as the present it is not to be forgotten that the man charged has the additional protection of the discretion of the Secretary of State under section 11 of the Extradition Act, 1870. Although, as I think, your Lordships have no competence to receive fresh evidence with a view to showing that the magistrate's decision might or should have been other than it was, it is no less clear that such fresh evidence may and should be weighed by the Secretary of State in whose power it is, if he thinks proper in the exercise of his discretion, to decline to order the extradition of the person charged."

Lord Evershed in another passage at p.597 had this to say:-

"It will, however, follow from what I have said that in so far as such fresh evidence is related to the alleged political character of the crimes charged, it goes not to the question of the magistrate's exercise of his discretionary powers and duties but to his jurisdiction. It follows that your Lordships are both competent and bound to receive such fresh evidence as tends to show that the crimes here charged were of a political character and therefore altogether outside the scope of the agreement between the respective Governments of the United Kingdom and Israel. To that extent, therefore, but to that extent only, I think your Lordships were entitled and bound to receive and consider the fresh evidence and rightly allowed the supplementary petition for such purpose."

Lord Reid in the same case at p.580 had this to say:-

"The accused sought to adduce further evidence before your Lordships in order to show that on the whole material now available it would be improper to commit him. In my judgment, we are not entitled to look at such evidence and we have not done so. Owing to the restricted character of habeas corpus proceedings a court is not concerned with anything that comes to light after committal. This could easily lead to injustice if the accused had no other remedy: there may well be cases when new evidence throws quite a different light on the material originally before the magistrate. But that is a matter which the Secretary of State is entitled to consider when deciding whether to grant extradition."

11. The Divisional Court in IN THE MATTER of Alistair James Ker-Lindsay, (unreported 7th March 1985), was asked to receive fresh evidence in habeas corpus proceedings that discredited the principal witness. In the judgment of the court at p.14, Watkins L.J. said:-

"... as a general rule fresh evidence is not admissible in proceedings such as these. This general rule will cover cases such as the present, where the applicant seeks to impugn the magistrate's findings of fact that there was sufficient evidence before him to justify the committal for trial of the fugitive."

At p.16, he said as follows:-

"Mr Blom-Cooper's reliance on section 14(2) (the Administration of Justice Act 1960 which is the equivalent of s.23(1) of the Supreme Court Ordinance) depends upon his being able to turn this negative and somewhat limited provision into a positive enactment that fresh evidence to cast doubt upon a magistrate's findings of facts is freely admissible, and that the statements to the contrary in Schtraks were made per incuriam. We do not think that this argument can possibly be sustained. We can find no support for it in Re Tarling (1979) 1 All E.R. 981, where section 14(2) is fully considered. Nor are we persuaded that counsel and the House of Lords in Schtraks were oblivious to its existence. We prefer to think that it received no mention in that case because it was thought not to affect this point; in other words, it did not extend the ambit of the admissibility of fresh evidence beyond the already carefully laid down perimeters."

12. Kaplan J., however, in the applicant's first habeas corpus proceedings, admitted fresh evidence of a debriefing document in which the agent of the Drug Enforcement Agency had recorded details of what had been said to him by Castagnola about the conspiracy and also adverted to the speech of Lord Reid in Schtraks at p.580 to which I have referred. As the proceedings before Kaplan J. also concerned the application for judicial review the evidence could have been admitted for that purpose. However, if the proceedings had been restricted to habeas corpus I do not consider that the document was admissible for the law in Hong Kong that applies with regard to the admissibility of fresh evidence is governed by the decision in Schtraks which is limited to evidence that goes to the jurisdiction of the magistrate. As a result, I hold that the evidence sought to be adduced by the applicant is inadmissible.

13. If I had held that the evidence was admissible, Mr Bruce submitted that it was available before the extradition hearing. In support of his submission, Mr Bruce referred to the judgment of Gibson J. in R v Governor of Pentonville Prison, Ex parte Tarling [1979] 1 WLR 1417 where at pp.1422-3 he said:-

"The true doctrine of estoppel known as res judicata does not apply to the decision of this court on an application for habeas corpus: we refer to the words of Lord Parker C.J. delivering the judgment of the court in In re Hastings (No.2) [1959] 1 Q.B. 358, 371. There is, however, a wider sense in which the doctrine of res judicata may be applicable, whereby it becomes an abuse of process to raise in subsequent proceedings matters which could, and therefore should, have been litigated in earlier proceedings: see the judgment of the Privy Council, Lord Morris, Lord Cross and Lord Kilbrandon, in Yat Tung Investment Co. Ltd. v Dao Heng Bank Ltd. [1975] A.C. 581. In our judgment, that principle is applicable to proceedings for habeas corpus, whether under the Act of 1967 or under the general jurisdiction of the court, although, no doubt, the stringency of the application of the principle may be different in cases concerning the liberty of the subject from that in cases concerning such matters as disputes upon property."

It is indeed clear from the evidence of Mr Behe, the United States attorney who prosecuted in the Hill trial that the documents sought to be adduced which consist of a ruling by the judge and transcripts of the evidence of Castagnola in that trial were available for inspection three months before the extradition hearing and five months before the first habeas corpus hearing. Mr Hui in an affirmation in support of the first habeas corpus proceedings deposes to the fact that the applicant's attorney in the United States had informed him about the evidence given by Castagnola in the Hill trial. The applicant was also in possession, at the time of the first habeas corpus proceedings, of the debriefing document to which I have already referred. I am therefore quite satisfied that this evidence was available to the applicant at the first habeas corpus proceedings so that it does not amount, in any event, to fresh evidence within s.23.

14. Although it is unnecessary for the purposes of this decision, it is appropriate that I should refer to Alves v Director of Public Prosecutions and another [1992] 4 All ER 787 which was cited to me by Mr Bruce. In that case the House of Lords held that the magistrate in committal proceedings for extradition could take into account evidence given by an accomplice of the person sought to be extradited, implicating him in the offence for which extradition was sought even though the accomplice had subsequently retracted his evidence, since what the magistrate had to consider was the reliability of that evidence in deciding whether there was sufficient evidence to justify an order for committal. Neither the fact that the evidence was retracted, nor the fact that the witness was an accomplice of the respondent, rendered that evidence ipso facto worthless.

15. The applicant may feel a sense of grievance as the court does not have an inherent jurisdiction to admit the evidence that he has sought to adduce; but he is entitled to have the evidence placed before the Governor, who will give it such weight as he thinks fit before he makes his decision whether to extradite the applicant. However, for the reasons that I have given, the application must be dismissed.