Re Thanat Phaktiphat

MP No. 2904 of 1994

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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D E C I S I O N

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1. The Applicant has applied for a Writ of Habeas Corpus. He is a Thai subject. He was arrested at Kai Tak Airport on the 8th December 1993 pursuant to a provisional warrant of arrest issued by a magistrate under schedule 1 to the Extradition Act 1989. The Government of the United States seeks the extradition of the Applicant to answer charges of conspiracy to import dangerous drugs to the U.S.A. and traffic in them.

2. There was an extradition hearing before Mr. Tong Man and he committed the Applicant to remain in custody to await His Excellency's decision that he be extradited. It was at this stage that the present proceedings were commenced.

3. Leonard, J. directed that the writ be returnable and the hearing was adjourned for the present hearing.

4. For the purposes of this application there was agreement between Mr. McCoy for Applicant and Mr. McMeans for the respondent that the Outline of Facts prepared by Mr. McMeans in his written submissions correctly stated the position: -

"B. A Brief Outline of the Facts

5. This outline excludes the evidence objected to by the applicant.

6. The Order to Proceed sets out the extradition crimes of conspiracy to traffic and two counts of trafficking in a dangerous drug. The evidence that was before the magistrate disclose that a man called Van de Ven was acting as an agent of the US Government in meeting with a heroin trafficker named Michael Wu in Thailand, ostensibly for the purpose of arranging a delivery of heroin to the United States. Wu introduced THANAT to Van de Ven, and at a meeting with Wu, THANAT, and Van de Ven, THANAT told Van de Ven that if he was going into the heroin business to go in big. Van de Ven negotiated with Wu both in Thailand and the US for the sale and delivery by Wu of heroin. An agreement was reached whereby Wu was to deliver 10 units (or 7 kg) of heroin to Van de Ven in the US state of Oregon, but which required Van de Ven to make an initial payment of USD 20,000 before the heroin would be delivered. THANAT accepted delivery of this money from a courier in Bangkok, and then spoke to Wu and Van de Ven by telephone to confirm that he had met with the courier.

7. After the money was delivered to THANAT, a courier was dispatched from Thailand with 10 units of heroin. The 10 units of heroin imported into the United States in a controlled delivery and were delivered to Wu, in Oregon, who then turned them over to Van de Ven and a second DEA agent, posing as a purchaser.

8. Following further discussions in Oregon between Van de Ven, Wu and the other undercover DEA agent, it was agreed that another 30 units of heroin would be delivered to Van de Ven from Thailand. This plan called for THANAT to fly to Hong Kong on December 8, 1993, to receive the cash payment for the heroin of $4 million US. THANAT agreed to do so in telephone conversations 2.12.1994 and 5.12.1994 with Van de Ven. THANAT was arrested on his arrival in Hong Kong on 8.12.1994.

9. The evidence which is objected to by the applicant is 31 telephone calls intercepted by the US Government from telephones used by Michael Wu in Oregon. Some of these telephone calls are between Michael Wu and Thanat, and some are between Michael Wu and other co-conspirators in Thailand."

5. There was also agreement that pursuant to s. 6(1) of the Extradition Act 1989 a magistrate: -

"Shall hear the case in the same manner and have the same jurisdiction and powers, as near as may be, if the prisoner were brought before him charged with an indictable offence in (Hong Kong)".

6. As a matter of convenience Mr. McCoy proposed, with the agreement of Mr. McMeans, that I should determine as a preliminary issue the extent to which a magistrate conducting a committal under Part III of the Magistrates Ordinance C.227 has jurisdiction to rule on the admissibility of evidence. In making this determination it would also be necessary to consider the extent to which, if any, there is a difference in the exercise of this jurisdiction between committal proceedings and extradition proceedings.

7. I agreed to this course being adopted.

8. Mr. McCoy presented his submissions on the basis of considering the various cases concerning admissibility of evidence in committal proceedings and extradition proceedings. Not surprisingly he emphasised the similarities in the approaches which had been adopted. He placed particular reliance upon the passage in the judgment of Huggins, J.A. as he then was at p. 192 of R. v. Ho Siu Fei 1976 HKLR 190: -

"The two counsel appearing for the various Defendants contend that the magistrate should not have admitted the statements of these police of ricers in evidence when he knew that the Defendants alleged that the confessions were not voluntary but should have insisted on their giving oral evidence. They rightly point out that the rules as to the admission of evidence are the same in the magistrate's court upon a preliminary enquiry into an indictable offence as in any criminal trial. If the Defendants had wished they could at the preliminary enquiry have challenged the admissibility of the police officers' evidence relating to the alleged confessions and, had they done so, the magistrate would have had to hear such evidence as might be adduced on either side and to decide whether he was satisfied that the confessions were voluntary."

9. He argued that if the rules of evidence were similar in a committal to any criminal trial it would naturally follow that the same situation would prevail for extradition proceedings.

10. I regret that I do not accept the validity of this contention. Mr. McCoy accepted that the said passage was obiter dicta and I am satisfied that the view expressed should not be relied upon save in the particular circumstances of that case.

11. However even more important than this I do not accept the validity of the approach of considering the rules of evidence in committals in the same way as for extradition proceedings. This is not the right approach.

12. The correct approach is the one adopted by Kaplan, J. in Re Thongchai Sanguandikul 1994 1 HKCLR 1 at 15: -

" Very recently, the Supreme Court of Canada had cause to comment on the very special nature of extradition proceedings. In Re Kindler and Minister of Justice (1992) 84 DLR (4th) 438, the court was faced with an appellant who had been convicted in the United States of murder and the death penalty had been recommended by the jury. Before sentence, he managed to escape to Canada where the United States of America sought his extradition. This was resisted on the grounds that to return him would be in violation of s. 12 of the Canadian Charter of Rights and Freedoms which give a right not to be subjected to any cruel and unusual treatment or punishment. A majority of the court dismissed Kindler's appeal and in so doing, and speaking for the majority, McLachlin, J. drew a distinction between the extradition process and the criminal trial process. At page 488 she said:

"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.

This unique foundation means that the law of extradition must accommodate many factors foreign to our internal criminal law. While our conceptions of what constitutes a fair criminal law are important to the process of extradition, they are necessarily tempered by other considerations.

Most importantly, our extradition process, while premised on our conceptions of what is fundamentally just, must accommodate differences between our system of criminal justice and the systems in place in reciprocating states. The simple fact is that if we were to insist on strict conformity with our own system, there would be virtually no state in the world with which we could reciprocate. Canada, unable to obtain extradition of persons who commit crimes here and flee elsewhere, would be the loser. For this reason, we require a limited but not absolute degree of similarity between our laws and those of the reciprocating state. We will not extradite for acts which are not offences in this country. We sign treaties only with states which can assure us that their systems of criminal justice are fair and offer sufficient procedural protections to accused persons. We permit our Minister to demand assurances relating to penalties where the Minister considers such a demand appropriate. But beyond these basic conditions precedent of reciprocity, much diversity is, of necessity, tolerated.

Thus this court, per La Forest, J., recognised in R. v. Schmidt (1987) 33 CCC (3d) 193 at pp. 214-5, 39 DLR (4th) 18, [1987] 1 SCR 500, that our extradition process does not require conformity with Canadian norms and standards. The foreign judicial system will not necessarily be considered fundamentally unjust because it operates without, for example, the presumption of innocence and other legal safeguards we demand in our own system of criminal justice."

This passage is, in my judgment, helpful in that it underscores the very special nature of extradition proceedings having its roots in international comity. To supplement the local legislation, which gives 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. I do not rule out the application of the principle of fairness to extradition proceedings, but I would reserve them for the most exceptional situation which in my judgment the present case is not.

As I am satisfied that there is, in this case, no lack of good faith nor representations made by the United States of America which would place upon them any additional duty, it follows that the submission based on unfairness must be rejected."

13. Kaplan, J.'s approach was cited with approval in R. v. Governor of Pentonville Prison, Ex parte Lee, 1993 3 A11 ER 504 at page 509: -

"It may be that that argument by the respondent of itself affords a sufficient, albeit narrow, basis for rejecting this application. But there is highly persuasive authority to be found in the decision of Kaplan J in Thong Chai Sanguan Dikul v. Government of United States (1992) 26 May, unreported. It is highly persuasive because the judgment was a subject of a petition for special leave to appeal to the Privy Council. It was heard by the Judicial Committee on 21 January of this year, and refused. It was founded on facts very closely analogous to those in the present case, and was the precursor of Mr. Mansfield's present arguments on unused material, most especially unfairness. Kaplan J referred with approval to the majority judgment of the Supreme Court of Canada in Kindler v. Canada (Minister of Justice) (1991) 84 DLR (4th) 438. In the course of giving that judgment McLachlin J said (at 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.'

Subsequently, in his judgment Kaplan J said (of this and other observations to like effect):

'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.'

Before the Judicial Committee, 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 respectfully agree. 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 Act, fairness is not a criterion relevant to the function of the committing court."

14. I am satisfied that it is necessary to have regard to the particular circumstances of extradition proceedings and to assume that a Defendant will receive a fair hearing in the Requesting jurisdiction. So far as the extradition hearing is concerned the scope of a magistrate hearing an application to exclude evidence is severely circumscribed.

15. A good illustration of this can be seen from the judgment of Deputy Judge Yeung at page 7 of Cho Shu Wah v. Attorney General unreported being Miscellaneous Proceedings 2552 of 1993: -

" Was it the duty of a magistrate in an extradition proceedings to exclude relevant evidence because of certain prejudicial effect as suggested by Mr. Chandler?

The practice to admit identification by photograph in extradition cases is a long standing one, see Rex v. Governor of Holloway Prison. Ex-parte Siletti (1902) 20 Cox c.c. 353.

In Re Bradshar CO/301/83, Feb. 28.1984 (unreported), Achner L.J. said in the course of the judgment:

"In English Committal proceedings, when evidence of identification is produced of the kind deposed to by the American witnesses in the present case, it takes the form of the relevant witness attending in Court to give evidence. So if any question arises about the identity of the accused person, oral evidence can be given by the witness in Court. However, in committal proceedings under the Extradiction Act evidence in the form of sworn depositions is authorized by the Act itself, in the present case, evidence in that form was also authorised by the Treaty between the Government of the United Kingdom and the Government of the United States of America. So evidence in committal proceedings under the Extradiction Act normally takes the form of sworn depositions. In such committal proceedings, it is, in my judgment, entirely appropriate for evidence of identify to take the form it took in the present case, viz. a photograph exhibited to a sworn deposition and a statement in the sworn deposition that the photograph is a true likeness of the person who extradiction is being sought.:"

In R. v. Governor of Pentonville Prison. Ex Parte Voets [1986] 1 W.L.R. 470, it was decided that the fact that a photograph may have the appearance of having come from a police file and may in that form not be appropriate to put before the jury does not render such a photograph inadmissible to establish a prima facie case of identity at an extradiction hearing.

Lloyd L.J. said at p. 473:

"As a refinement of his first submission, Mr. Cockburn argued that whether or not strictly admissible the photographs would in fact have been excluded if the matter had gone for trial in England. One cannot imagine a judge allowing these photographs to go before a jury. Even though the photographs may be admissible in theory, they would have been excluded in practice. Therefore, if the matter had gone to trial on no other evidence than that which was before the magistrate, the judge at the trial would have been bound to withdraw the case from the jury on the principles stated in R. v. Galbraith [1981] 1 W.L.R. 1039.

The test which I have just mentioned provides a good working rule for deciding whether there is a sufficient prima facie case of guilt to justify committal. But the test is not intended to apply literally. It is a yardstick, by which the magistrate in an extradiction case, having decided what evidence is admissible in law, can judge whether a prima facie case has been raised. He cannot and should not attempt to foresee that the judge, in the exercise of his discretion, would exclude the photographs altogether because of their prejudicial effect, he has no such discretion himself. He cannot exclude them from his own consideration. so far as he is concerned, their prejudicial effect is zero. His sole concern is whether there is sufficient evidence of guilt to justify committal. So I would reject Mr. Cockburn's refinement of his first submission."

The decision in Voet's case (supra) was a complete answer to Mr. Chandler's main argument."

16. However Mr. McCoy submitted that this was no longer the law. He contended that the enactment of the Bill of Rights Ordinance Cap. 383 must have had at least as great an impact upon the law relating to the exclusion of admissible evidence as s. 78 of The Police and Criminal Evidence Act 1984 in the United Kingdom: -

"S. 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 ..."

17. Mr. McCoy argued that s. 6 of Bill of Rights Ordinance was framed more widely than s. 78: -

"6. Remedies for contravention of Bill of Rights

(1) A court or tribunal -

(a) in proceedings within its jurisdiction in an action for breach of this Ordinance; and

(b) in other proceedings within its jurisdiction in which a violation or threatened violation of the Bill of Rights is relevant, may grant such remedy or relief, or make such order, in respect of such a breach, violation or threatened violation as it has power to grant or make in those proceedings and as it considers appropriate and just in the circumstances.

(2) No proceedings shall be held to be outside the jurisdiction of any court or tribunal on the ground that they relate to the Bill of Rights."

18. In the context of the present application s. 6 had to be read in conjunction with Article 10 of the Bill: -

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

[cf. ICCPR Art. 14. 1]"

19. Article 10 applies to all proceedings. It required that everyone was entitled to a fair hearing and this would presuppose that inadmissible evidence should be excluded.

20. S. 6 should be interpreted in a purposive manner. His authority for this was a passage from the judgment Cooke P at 417 of R. v. Butcher and Burgess 1991 7 CRNZ 401: -

" The New Zealand rights affirmed in general terms by the 1990 statute cannot be hard-and-fast in their operation. As indicated in Kirifi, there may be circumstances in a particular case where, despite some degree of transgression of the rights, it is fair and right to admit a confession in evidence. For example there might be circumstances falling within or analogous to the concept embodied in s. 5 -- "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society". Or the breach of the Act might be trivial or inconsequential. The Bill of Rights Act has to be applied in our society in a realistic way. Prima facie, however, a violation of rights should result in the ruling out of evidence obtained thereby. The prosecution should bear the onus of satisfying the Court that there is good reason for admitting the evidence despite the violation. In the present cases there are no circumstances which could justify overriding or setting aside the rights or holding that the violations were immaterial. The prima facie principle should be applied."

21. As can be seen from this passage if s. 6 is applicable the burden shifts and it becomes incumbent on a magistrate to exclude inadmissible evidence unless the prosecution can demonstrate that there is sufficient justification to waive any irregularity which may have occurred.

22. On the facts of the present application it is noted that the alleged breach of the Bill of Rights namely the telephone tapping did not occur in Hong Kong. It is accordingly necessary to consider whether the Bill of Rights Ordinance has any extra territorial application. This question was considered by the British Columbia Court of Appeal in R. v. Harrer 1994 89 CCC 276 in the context of the Canadian Charter Gibbs J.A. said at 284: -

" 20 The applicability of s. 24(2) of the Charter is the first focus of the appeal because it confers the Charter power exercised by the trial judge to exclude the second and third statements. But s. 24(1) also requires consideration since s. 24(2) can only be invoked by a person who is one of the "anyone" class described in s. 24(1). This is the full text of s. 24:

24. (1)	Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2)	Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

21 In the process of deciding whether s.24(2) applies to the facts of this case the court is compelled to answer a more fundamental, underlying question: does the Charter have extra territorial reach? Counsel advised that there are no reported appellate level judgments where a court has had to decide the question to dispose of a case. There are, therefore, no unequivocal precedents to follow. The recent decision of the Supreme Court of Canada in R. v. Finta, March 24, 1994, not yet reported, is not definitive on the point. There is, however, a passage at p. 847 of Kindler v. Minister of Justice, [1991], 2 S.C.R. 779, an extradition case, which leaves little doubt about the consensus in that court:

This Court has in the past refused to apply Charter guarantees to defects in proceedings outside the country. In Schmidt, supra, the majority, per La Forest, J., rejected the argument that s. 11 rights could serve as an independent ground of Charter review, since the fugitive had not been charged with a crime in Canada. La Forest J. examined the opening words of s. 11, which grant the various rights contained within it to "[a]ny person charged with an offence". In his view, the rights under s. 11 apply only to criminal proceedings conducted by the governments referred to in s. 32 of the Charter, i.e., Parliament and the provincial legislatures. To go beyond this would be to give the section extraterritorial effect:

Schmidt, supra, at pp. 518-19. See also Spencer v. The Queen, [1985] 2 S.C.R. 278.

(Emphasis added.)

22. In the context of this case, support for the exclusion of Charter tests may also be found in the discussion starting at p. 598 of Retail, Wholesale and Department Store Union, Local 580 v. Dolphin Delivery (1986), 2 S.C.R. 573, particularly the description at the bottom of the page of the effect of s. 32:

It is my view that s. 32 of the Charter specifies the actors to whom the Charter will apply. They are the legislative, executive and administrative branches of the government.

23. To apply the Charter to this case would imply that the United States law enforcement officers were subject to the authority of one of the branches of the government of Canada when carrying out their duties. Clearly they were not."

23. I consider this to be an accurate statement of the law and I can see no reason why these principles should not have equal application to our Bill of Rights.

24. This view of the matter is supported by the passage appearing on page 621 of Somchai Liangsiriprasert v. Government of the United States of America and Another 1990 3 WLR 606:-

" When approaching the construction of a statute, particularly a criminal statute there is a strong presumption that it is not intended to have extraterritorial effect and clear and specific words are required to show the contrary: see Air-India v. Wiggins [1980] 1 W.L.R. 815 and Holmes v. Bangladesh Biman Corporation [1989] A.C. 1112. This presumption arises from the assumption that the legislature does not intend to intrude upon the affairs of other countries which should be left to order affairs within their own boundaries by their own laws."

25. I have no doubt that notwithstanding the extra territorial element it is inappropriate to apply the provisions of the Bill of Rights Ordinance to extradition proceedings. This is implicit from the nature of the proceedings. I would with respect adopt the reasoning of Penlington, J.A. who was sitting as a High Court Judge in Re Suthipong Smittachartch 1991 1 HKLR 93 at 99: -

" Mr. Bruce relied principally on the line of authorities to which I have already referred which hold that in extradition proceedings there was no provision for the cross-examination of witnesses who were outside the jurisdiction. He submitted that there was nothing in the Bill of Rights which directly or by implication was to the contrary. Extradition proceedings was not a trial but simply a procedure to see if there was sufficient evidence which would justify the fugitive being committed to prison to await the Governor's decision as to whether he should in fact be extradited. The words "as nearly as may be" in Clause 6 of the Schedule clearly envisage that there would be a difference between extradition proceedings and committal proceedings. That difference was the very obvious one of there being witnesses overseas who it may well be very difficult to bring to Hong Kong to give evidence. There would be very substantial practical difficulties in this particular case due to the status of the witnesses if they did come to Hong Kong.

Both Article 10 and Article 11 of the Bill of Rights refer to "the determination of any criminal charge".

These proceedings are not for the determination of any charge but as Thurlow, J., said in Armstrong "the trial and determination of the fugitive's rights with respect to the charge are left to the trial court". Similarly Article 22 which refers to equality before the law and prohibits discrimination on the ground of any status is not relevant. A person who is before the court in committal proceedings is in fact in a different situation to one who is being proceeded against for extradition. There is no question of any difference being made between them on a basis of status which offends against Article 22. There can be no doubt that if the witnesses in an extradition proceeding were in Hong Kong and evidence was taken from them, as here it was from the arresting officer, the applicant would have the right to cross-examine in the same way as in a committal proceeding. That does not apply to witnesses who are overseas but whose depositions are duly authenticated and properly produced."

" I am also satisfied that Article 22 is also of no assistance to the applicant. The words "as near as may be" in Clause 6(1) of the Schedule make it clear that extradition, for obvious reasons, is not the same as committal and a person whose extradition is sought does not have the same status as regards the right to cross- examine witnesses as one who is to be committed for trial except in respect of witnesses who are in Hong Kong and who give evidence at the hearing."

26. The conclusion which I have reached is that the learned magistrate did not have jurisdiction to exclude the evidence which is complained of.

27. At the conclusion of his submission Mr. McCoy indicated that he may not wish to proceed further with these proceedings even if, as I do, I find against him on the preliminary issues he raised. I will however afford him an opportunity to reconsider this. I am much indebted to both counsel for the assistance they have given me.