GOVERNMENT OF THE UNITED STATES OF AMERICA v. NG HUNG YIU

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT OF THE COURT

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Macdougall, J.A.:

1. Pursuant to a request made to the Governor by the Consul General of the United States of America in Hong Kong for the surrender of six fugitives, including the applicant, accused of the commission of drug offences in the United States, the Governor made an order on 20 May 1991 for the Chief Magistrate of Hong Kong or other magistrate of the Eastern Magistracy to proceed in accordance with that order, the Extradition Act 1989 and Schedule 1 thereto, and the Treaty referred to in the United States of America (Extradition) Order 1976.

2. On 22 August the acting Governor made an amended order pursuant to a further request. This became necessary because two of the fugitives named in the original order had consented to their return to the United states and had been voluntarily extradited. The magistrate was thus ordered to proceed in relation to the other four fugitives, one of whom was the applicant, and in respect an amended statement of alleged crimes.

3. After a nearing at which all four fugitives were legally represented, the magistrate, Mr. H Brazier, found that a prima facie case had been made out against each one of them in respect of the crimes alleged in the Order to Proceed and ordered that they be detained in custody pending their removal to the United States. On 12 November, the applicant, sought and obtained an order from Leong J. for a writ of habeas corpus ad subjiciendum to issue to the Commissioner of Correctional Services commanding him to have the applicant brought before this court and to make a return to the writ.

4. On 25 November, the return date, the Commissioner duly complied with the writ, and the return thereto was formally read. Mr. Hagon, who appeared on behalf of the applicant both in this court and the court below, advanced several grounds in support of his submission that the applicant's detention is unlawful and that the magistrate's order should be set aside.

5. First, he contended that the magistrate erred in finding that "the warrant of arrest relied upon by the United States Government was good and sufficient to found the extradition proceedings [and] in particular he erred in law in finding that the warrant had been duly authenticated and issued by a judge magistrate or other competent authority."

6. The relevant provisions of the United States of America (Extradition) Order 1976 are Article VII paragraphs (3) and (5). They read as follows:

"(3)      If the request relates to an accused person, it must also be accompanied by a warrant of arrest issued by a judge, magistrate or other competent authority in the territory of the requesting Party and by such evidence as, according to the law of the requested Party, would justify his committal for trial if the offence had been committed in the territory of the requested Party, including evidence that the person requested is the person to whom the warrant of arrest refers.

 

(5)      The warrant of arrest, or the judicial document establishing the existence of the conviction, and any deposition or statement or other evidence given on oath or affirmed, or any certified copy thereof shall be received in evidence in any proceedings for extradition:

 

7. Tendered in evidence before the magistrate as exhibit B to an affidavit of Kenneth J. Vianale, an Assistant United States Attorney of the United States Attorney's Office of the Southern District of New York, was what Mr. Vianale described to be a duplicate original copy of the warrant of arrest issued against the applicant. Mr. Vianale also swore that the warrant of arrest was issued and signed by United States Magistrate Judge Barbara A. Lee, that it is a judicial document authorising the arrest of the applicant, and that a United States magistrate Judge is authorised and empowered under the laws of the United States to issue warrants of arrest.

8. Although Mr. Vianale attested that a copy indictment, which appears as exhibit A to his affidavit and which names the applicant as a defendant, is a true certified copy of the original, that it had been certified as such by the deputy clerk of the court and that the deputy clerk is an officer of the United States District Court in the Southern District of New York authorised under the laws of the United States to so certify, his affidavit is silent in these respects with regard to the warrant of arrest.

9. Mr. Hagon pointed to the fact that the signature on the copy warrant was not a manuscript signature but had been applied by means of a facsimile stamp. He frankly conceded however that he could not challenge the admissibility of the copy warrant on that basis if there was evidence that the deputy clerk had applied the stamped facsimile signature and that he was authorised to certify the warrant of arrest.

10. I do not think that there can be any doubt that where there is evidence that a particular person has certified a copy warrant to be a true copy of the original and that he or she is a competent authority in the sense that he or she was authorised to perform the certification, it is irrelevant that the signature was not applied in manuscript form but by means of a facsimile stamp (see Morton v. Copeland (1855) 16 C.B. 517 at 535; Bennett v. Brumfitt (1867) L.R. 3 C.P. 28; Blades v. Lawrence (1874) L.R. 9 Q.B. 374 and Goodman v. J. Eban Ltd. [1954] 1 Q.B. 550 per Evershed M.R. and Romer L.J.).

11. Mr. McNair, who appeared for the Attorney General on benalf of the United States Government in the court below and again in this court, accepted that as the original warrant of arrest had not been tendered in evidence before the magistrate, Mr. Vianale's sworn assertion that it had been issued and signed by the United States magistrate judge was of no avail. He also accepted that the copy warrant had not been certified by the United States magistrate judge. It was his submission nowever that the copy warrant was admissible in evidence on the basis that it had been certified as a true copy of the original by the deputy clerk whose stamped facsimile signature appeared on the copy. He further submitted that on the evidence before the magistrate "the only logical conclusion" was that the deputy clerk came within the category of "other competent authority" referred to in Article VII paragraph (5) (a). This is so, he says, because

12. Mr. McNair submitted that to find in the face of these considerations that it had not been proved that the deputy clerk was an "other competent authority" who had certified the warrant to be a true copy of the original, would be to impugh not only the good faith which underlies the Treaty but the bona fides of the United States of America and would impinge on the high degree of comity which exists between the United States and Hong Kong.

13. This argument, however, is ninil ad rem. There is not the slightest suggestion that the bona fides of the United States Government or that of any of its officers has been called into question. The issue is whether the provisions of paragraph (3) and sub paragraph (a) of paragraph (5) of Article VII have been complied with. Where the provisions of the Article require certain formalities to be observed it is no answer to say that there is a presumption of regularity. Precision is required in extradition process. As Mann L.J. said in re Farinna reported in The Times November 13 1991:

"         If it were objected that the point was a technical one .... the response was that the courts had to be vigilant to ensure that the extradition procedures were strictly observed."

 

14. It is plain from paragraph (3) that where a request for extradition relates to an accused person, it is mandatory that it be accompanied by a warrant of arrest issued by a judge, magistrate or other competent authority in the territory of the requesting Party.

15. Sub paragraph (a) clearly stipulates that for the warrant of arrest to be received in evidence in any proceedings for extradition it must be signed by a judge, magistrate or other competent authority of the requesting Party or in the case of a copy of the warrant of arrest that it be authenticated by being certified by a judge, magistrate or other competent authority to be a true copy of the original warrant of arrest. A purported signature of a judge, magistrate or other competent authority or a purported certification by any one of them that the warrant is a true copy of the original is not sufficient.

16. Moreover, sub paragraph (b) of paragraph (5) requires that where the requesting Party is the United States of America, the warrant must also be sealed with the official seal of the Department of State for the Secretary of State. This is an additional, not an alternative, requirement.

17. Can it be said that the evidence in the present case discloses that the copy warrant of arrest has been authenticated by being certified by a competent authority as contended for by Mr. McNair? In my view the answer to that question must be, No. As I have already observed, Mr. Vianale did not depose, as he did with regard to the copy of the indictment, that the copy of the warrant of arrest had been certified to be a true copy of the original by the deputy clerk of the court and that such deputy clerk is an officer of the United States District Court in the Southern District of New York authorised under the laws of the United States to make that certification in respect of warrants. The fact that Mr. Young, Mr. Thornburgn and Mr. Baker have certified the matters to which reference has already been made does not assist Mr. McNair. None of them certifies in respect of the matter in point.

18. Although not a matter raised by Mr. Hagon in the course of his submissions I think it is not without significance that while the words used in sub paragraph (a) in relation to an original warrant are "authenticated .... by being signed", those used in respect of a copy warrant are "authenticated .... by being .... certified to be a true copy of the original". A distinction is thus made between the procedure to be followed where the document is an original warrant and that to be observed where it is a true copy of the original. I adopt what was said by Watkins L.J. sitting with Nolan J. in the Divisional Court, Queens Bench Division, in the case In re Victor Espinosa, an unreported decision of 2 May 1986 concerned with an application for a writ of habeas corpus ad subjiciendum in extradition proceedings:

                 "Certification means to declare or attest by a formal or legal certificate."

19. I therefore confess to some difficulty in accepting that a mere signature, even if accompanied by a seal, constitutes a certification. If it had been intended that a signature should suffice, it is surprising that the word "signed" is not also used in relation to copy warrants. Likewise, if the intention had been to render a copy warrant admissible on its production under the seal of a court, with of without an accompanying signature, the question arises why such a provision was not included in the Article. Since, however, this matter was not argued before me I leave it to be decided at some future time.

20. Mr. Hagon's second ground was that the Magistrate erred in law in finding that the affidavit evidence of an accomplice witness identifying the applicant as a person implicated in the commission of the alleged crimes was sufficient. He submitted that the evidence of the accomplice was so tainted as to be totally devoid of weight. This submission was based on the fact that the photograph of the applicant which was attached to the accomplice's affidavit depicted him holding a blackboard on which was written, inter alia, his name in English and Chinese and the words "Offence Trafficking in DD". He also submitted that in the light of the evidence of the accomplice that he had only met the applicant on a few occasions as long ago as 1985 the identification was valueless, and that the magistrate had erred in law by engaging in a fact finding exercise by comparing the applicant's features with those of the person depicted in the photograph.

21. In my view there is no merit in these submissions. The evidence of the circumstances of the meetings between the accomplice and the applicant could by no means be described as being mere fleeting glimpses or longer observations in difficult conditions. Indeed, the evidence was that on one occasion the accomplice had stayed two days and one night with the applicant in Atlantic City. There was no necessity, as Mr. Hagon submits there was, for the accomplice to be asked to identify the applicant from a batch of a dozen photographs. Moreover, the fact that the applicant was depicted holding the blackboard with the information written on it does not vitiate the identification. Nor was it wrong of the magistrate to compare the features of the applicant with those of the person depicted in the photograph annexed to the accomplice's affidavit. On the contrary it was the magistrate's function to ensure that the person brought before him was the person to whom the request for extradition referred.

22. Mr. Hagon also sought to place reliance on the fact that the police officer who arrested the applicant in Hong Kong had confused him at a distance of 35 feet in court with another person whom he had arrested in connection with the same case and who was standing with the applicant in the dock. He suggested that this contributed to the vitiation of the identification evidence. I am unable to see now the failure of the officer to identify the applicant in the dock as the man, Ng Hung-yiu, he had arrested can be said to have had any bearing on the evidence of the accomplice or the finding of the magistrate that the applicant was the man depicted in the photograph and deposed by the accomplice to be the man, Ng Hung-yiu, who had committed the crimes alleged.

23. The third ground advanced by Mr. Hagon was that the magistrate had further erred in law in admitting into evidence the affidavit of the accomplice, having regard to the fact that there was no evidence that there had been due interpretation of the contents of the affidavit from Chinese into English or that the accomplice's knowledge of English was sufficient. The evidence was that the accomplice was of Chinese race and had resided in the United States since 1983. The mere fact that a deponent is Chinese does not give rise to the inference that his knowledge of English is insufficient to enable him to swear an affidavit in that language without the benefit of interpretation. The magistrate was entitled to take the affidavit at face value. Mr. Hagon was unable to cite any authority to the contrary.

24. During the course of this submission Mr. Hagon developed a fourth ground. This also concerned the matter of translation. He referred to paragraph 6(1) of Schedule 1 of the Extradition Act 1989 which embraces provisions deriving from the Extradition Act of 1870. It provides:

"6.    (1) When a fugitive criminal is brought before the metropolitan magistrate, the metropolitan magistrate shall hear the case in the same manner, and have the same jurisdiction and powers, as near as may be, as if the prisoner were brought before him charged with an indictable offence committed in England or wales."

 

25. Section 3 of the Extradition (Hong Kong) Ordinance, Cap. 236 provides that all powers vested in or acts required to be done under the Extradition Acts 1870 and 1873, as so extended, by the police magistrate, in relation to the surrender of a fugitive criminal, may, in respect of Hong Kong, be exercised and done by any magistrate.

26. Mr. Hagon contended that in the light of paragraph 6(1) the provisions of sec 80B of the Magistrates Ordinance, Cap. 227, applied to the proceedings before the magistrate and required the Attorney General on benalf of the United States Government to serve on the applicant, in accordance with the section, translations in Chinese of the copies of the statements of those witnesses whom it is proposed to call at his trial in the United States.

27. I am not persuaded by this argument. In respect to extradition proceedings it is the powers vested in or acts required to be done by a magistrate in England, not those of a magistrate in Hong Kong, that the law states may be exercisable and done by a magistrate in Hong Kong. There is no requirement that the Hong Kong magistrate observe the provisions of the magistrates Ordinance. Indeed, neither this court nor any of the counsel engaged in this hearing was able to recall any instance in which there has been service of translations of witness statements in accordance with section 80B of the Magistrates Ordinance in extradition proceedings in Hong Kong. But, even if I were satisfied that sec 80B applied to extradition proceedings, failure to comply with it does not prevent untranslated witness statements being handed to the court or admitted in evidence provided the magistrate is satisfied that the accused was not prejudiced thereby. In the present case the applicant was represented by counsel before the magistrate. No complaint was made that section 80B had not been complied with, nor was any request made for the provision of translations of witness statements. That being so, it is difficult to see now the magistrate could have been other than satisfied that the applicant had not been prejudiced.

28. Notwithstanding my rejection or Mr. Hagon's last three grounds However I have come to the conclusion for the reasons already given in relation to his first ground that I must allow this application and set aside the order of the magistrate that the applicant be detained in custody pending his surrender to the United States. I so order.