In re Chong Bing Keung Peter

HCAL19/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ADMINISTRATIVE LAW LIST NO. 19 OF 1999

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J U D G M E N T

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1. This is a habeas corpus application. It is the preliminary ex parte application under section 22A of the High Court Ordinance and under O.54, r.2 of the Rules of the High Court. It was originally placed before me as an application for leave to issue a writ for habeas corpus, and it seems that I was then expected to consider matters on the papers. But that was to confuse the procedure appropriate to habeas corpus on the one hand with the procedure for applications for leave to apply for judicial review on the other. So the matter comes before me in open court for oral argument at this preliminary stage and Mr Harris represents the applicant.

2. Given that I have decided to refuse the application even at this stage, I shall provide short reasons.

3. The applicant is wanted by the United States and the magistrate has committed him to await the order of the Chief Executive for his surrender. The authority to proceed issued to the magistrate reads as follows :

" A request for surrender having been received from the United States of America for the surrender of Peter CHONG, also known as CHONG Bing-Keung, also known as 'Uncle', who is wanted in the said place for prosecution in respect of the following offences :

1. Conspiracy to murder;

2. Conspiracy to commit offences against the law relating to dangerous drugs;

3. Arson;

4. Criminal intimidation :

I hereby order that the said person be dealt with under Part II of the Fugitive Offenders Ordinance, Cap. 503, Laws of Hong Kong."

I also have before me a lengthy affirmation deposed to by one Wayne Kwong, which was before the magistrate. Kwong is an accomplice and, in consequence of testifying for the purposes of these proceedings, has been awarded a substantial reduction in sentence, and is now at liberty although he is part of a witness protection programme. It is a lengthy affirmation which speaks in some considerable detail about the applicant's alleged involvement in organised criminal activities in the United States. I have read it in full.

4. In determining whether to make an order under section 22A(5) of the Ordinance or O.54, r.2 of the Rules, the applicant need not convince me of the merits of his case but should raise an arguable case which deserves further consideration, for which proposition, see The Law of Habeas Corpus, 2nd Edition by Sharpe at page 219. Put in the terms of that which is required by section 22A of the High Court Ordinance, I must ask if the application has substance.

5. There are advanced the following grounds in support of the suggestion that the Order for Committal was unlawful.

6. It is said, and of course I accept, that counsel for the applicant applied to the magistrate to adjourn the committal hearing to allow his lawyers to :

"(f) ... make an application to a judge of the Court of First Instance pursuant to section 77 of the Evidence Ordinance, Cap. 8 Laws of Hong Kong for an order that a Letter of Request issue to the courts of the United States of America to facilitate the taking of evidence upon commission from, inter alia, Wayne Kwong on the basis that his evidence is so manifestly unreliable and he is such a tainted witness that no reasonable court could possibly act upon his testimony or that of various other alleged accomplices. In short, my counsel outlined to the learned magistrate the extraordinarily bad character of the accomplice witnesses, substantial and significant contradictions in the prior testimony of Wayne Kwong in a related trial and the almost unprecedented favourable terms of arrangements entered into between the accomplices and the District Attorney in relation to sentences to be served by them. This is apparent in Wayne Kwong's affidavit exhibited hereto.

(g) The learned magistrate, having heard submissions from counsel acting for me and counsel for the United States Government, ruled against me.

...

(4) ...

(a) When rejecting my counsel's application for an adjournment, which was not considered on its merits, the learned magistrate erred in ruling as a matter of law that in extradition cases there is no power in a judge of the Court of First Instance to order that a Letter of Request issue to a foreign court. I am told by my counsel that this ruling is wholly inconsistent with at least one earlier decision of the High Court."

7. It was not at all clear to me from that affirmation to what end the letter of request was sought. But I was told by Mr Harris this morning that the intention was that a letter of request should issue to permit examination, on commission, of the accomplice and of other persons, and that that examination would take place by lawyers representing the applicant, and that the evidence thus obtained would then be placed before the magistrate hearing the extradition proceedings in order to persuade the magistrate that the evidence of the accomplice which was placed before him by the requesting government was manifestly unreliable and should not form the basis of a committal order.

8. That, with respect, in my judgment, is to misconstrue the purpose of extradition proceedings before a magistrate, the purpose of which is succinctly summarised in the Canadian case Re State of Wisconsin and Armstrong (1973) 10 CCC (2d) 271 referred to in a judgment which has been before me this morning : Re Suthipong Smittachartch (1992) 2 HKPLR 249. The passage from Armstrong reads as follows :

"... The hearing is a mere inquiry and what the extradition Judge has to determine is not the guilt or innocence of the fugitive but the question whether the evidence produced would justify his committal for trial. The fugitive is entitled to be made aware by the reading of the affidavits presented, of the case against him, upon which his extradition for trial may be ordered, but he is not required to answer that case and even if he elects to do so, by evidence or otherwise, the Judge's function remains the same. He is not empowered to decide the merits of guilt or innocence or to pass upon the credibility of witnesses but simply to determine whether there is a sufficient case against the fugitive to justify his committal. The trial and determination of the fugitive's rights with respect to the charge are left to the trial Court."

Then later in the same judgment, referring to Canadian statutory provisions which I apprehend are not unlike the scheme with which the courts in this territory have to contend, Thurlow J. in Armstrong said :

"Section 16 of the Extradition Act ... provide for the admission of documentary evidence without cross-examination. Section 468(1)(a) of the Code gives an accused the right to cross-examine witnesses called by the prosecution at a preliminary hearing. If the demanding State calls witnesses at the extradition hearing, there would clearly be a right ... to cross-examine the witnesses. I see no reason, however, why the right of cross-examination in [the Code] should be extended to documentary evidence tendered at an extradition hearing, particularly when both the Extradition Act and the treaty provide for its admission without cross-examination. ..."

9. If a witness is produced to give oral evidence at extradition proceedings, then no doubt the fugitive may cross-examine but, in my judgment, he has no such blanket right to call for the production of witnesses to be cross-examined : in support of this proposition, see Ken Ha Khanh Phong v. Senior Superintendent of Lai Chi Kok Reception Centre (1996) 6 HKPLR 401. Nor is a wanted person entitled to have the application adjourned in order to look for evidence in the requesting State which would undermine the prosecution's case (see The Law of Extradition in the United Kingdom by Michael Forde at page 69 in his reference and summary of the effect of the case of Reg. v. Governor of Pentonville Prison, Ex p. Lee [1993] 1 WLR 1294).

10. Mr Harris has today drawn to my attention the judgment of Sears J. in In re Davies, Yu Yok Wen [1991] 1 HKLR 7. In that case, Sears J. held that s.77E of the Evidence Ordinance applies to extradition proceedings in Hong Kong so that under that section, the court had a discretion to request that evidence, including evidence by cross-examination, be obtained abroad for use in extradition proceedings in Hong Kong. The way in which Sears J. arrived at that decision is readily evident from the meat of the judgment at page 9 where the learned judge said :

" First of all, do I have jurisdiction to make an order for cross-examination under s.77E? Although the application by virtue of s.77E(3) is 'ex parte', I have heard argument from Counsel for the United States as this is apparently the first time such an application has been made.

There are a number of matters which must be satisfied before the Court can make an order.

First, there must be a criminal proceedings - it is conceded that an extradition hearing is such a criminal proceedings."

So the learned judge proceeded upon a concession which had then been made by those appearing on behalf of the requesting government. That is a concession which, in my judgment, ought not to have been made and is, in my judgment, clearly and unarguably an erroneous interpretation of the statutory provision.

11. In the case of Lee to which I have made reference, a case before the Divisional Court in England, Ognall J. said at page 1298G of the judgment : "... Committal under the Extradition Act is in no sense part of this court's trial process." It is evident to me that section 77E of the Evidence Ordinance relates to the trial process in this jurisdiction and I should add that the accuracy of the concession made to Sears J. is also doubted by Penlington JA in the judgment in Smittachartch at page 259. I invite attention also to the comments of Seagroatt J. in Ken Ha Khanh Phong (supra) in particular at page 405I, where he said :

"... I do not consider that 'criminal proceedings have been instituted (ie begun) in Hong Kong.' The applicant has not allegedly committed a criminal offence in Hong Kong; therefore he cannot be charged with any such offence in Hong Kong. The criminal proceedings have been instituted in Australia by reason of the request for extradition from the Government of the Commonwealth of Australia."

In my judgment, there is nothing of substance in the first ground.

12. The second ground advanced by Mr Harris which appears in the affirmation of the applicant runs as follows :

"The evidence relied upon by the Government of the United States of America was so unsatisfactory that no reasonable court could properly convict me of the matters alleged against me and thus the learned magistrate should have declined to commit."

This is a bland submission entirely without merit and unsupported by any particulars. It cannot suffice to get an application of this kind off the ground simply to make an allegation of that kind when on the evidence which was before the magistrate, there appears to the court hearing such an application for a writ of habeas corpus self-evidently enough to warrant a committal order made by any magistrate.

13. I pass to the third ground which is that "the magistrate erred in rejecting my counsel's submission that there are grounds for believing that I might be prejudiced at my trial by reason of my race". I should start by emphasizing as Seagroatt J. pointed out in the case of Ken Ha Khanh Phong that this court is not a court of appeal in the sense that it reverses findings of fact or a discretion properly exercised. The question for this court at any stage is whether it is shown that there is an arguable case that the magistrate has erred in law.

14. Section 5(1)(d) of the Fugitive Offenders Ordinance provides as follows :

"A person shall not be surrendered to a prescribed place and committed to or kept in custody for the purposes of such surrender if it appears to an appropriate authority -

...

(d) that he might, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, origin, nationality or political opinion."

15. In support of the argument advanced on behalf of the applicant, reference is made to "the oral evidence of Mr Stuart Hanlon, a practicing trial lawyer in San Francisco, a transcript of which will be produced when available". Mr Hanlon, I am told quite rightly by Mr Harris today, is an attorney who acts for the applicant and would act for him in proceedings in the United States should he be extradited to that country. On its face, the assertion which I have on the affirmation is with respect not good enough. If the transcript cannot be produced, then there ought at least in the affirmation be something which summarises the evidence or gives me its flavour to show, if it can be shown, that the decision reached by the magistrate was one which he could not reasonably have reached, and that, I emphasise, is the test. But Mr Harris tells me today, and I proceed on this assumption, that the effect of the evidence of Mr Stuart Hanlon was about a trend for persons of Chinese race to be disadvantaged in criminal trials following upon political statements and widespread press coverage which was largely anti-Chinese in the context of allegations of gang related crime. I shall turn shortly to the nature of that press coverage and these political statements, which were also before the magistrate.

16. There is not before me, with respect, anything of substance to demonstrate that a magistrate, properly directing himself, could not reasonably say that it did not appear to him that the applicant might be prejudiced at his trial on account of his race. There is nothing of substance, in my judgment, to demonstrate that he misapplied himself to the correct test. The magistrate was not bound to accept the evidence of Mr Hanlon even if it was uncontradicted. It was not independent evidence. The magistrate was entitled to use his common sense and, in particular, to look at the balance of the documentation which was before him and to which I shall shortly turn. It is not in other words shown, even on a prima facie basis, that there is substance in the allegation that the magistrate in this regard erred in law.

17. I turn now to the balance of that evidence which was before the magistrate and which is relied upon by the applicant as showing that he might be prejudiced at his trial by reason of his race.

18. The applicant affirms that the error is shown by the transcript of his own testimony before the Senate of the United States. I have read that testimony. That transcript shows questions being put to the applicant to ascertain whether he can assist or give evidence about "Asian organised crime in the United States". The applicant exercised his right not to answer questions. The fact that there is or was an investigation into organised crime by certain Asians in the United States does not begin to mean that an Asian in the United States is not going to receive a fair trial because he is an Asian.

19. I am also shown, in the affirmation, a transcript of a "60 Minute Plus" programme; this, too, in support of the contention that he might be prejudiced at his trial by reason of his race. The transcript evidences an FBI agent saying that ethnic Chinese control a substantial proportion of the heroin market in the United States. It reports on triad organisations, and their size in Hong Kong, it refers to the applicant being an alleged triad and makes allegations seriously adverse to the applicant himself in connection with alleged organised crime. References are made to organised crime in China Town in San Francisco. Now, it may be argued that the information or programme, if it came to the attention of a jury, would or might be unacceptably prejudicial to this applicant, but that is because of the direct references in the programme to the applicant. It does not begin to establish that a defendant in the United States, who happens to be Chinese or Asian on charges such as the present, will or might suffer prejudice on account of his race, let alone that the magistrate was evidently wrong in holding against the applicant on this ground.

20. Then there is a 1993 document which is a report of a Senate statement or statement by a Senator introducing a bill designed to secure co-operation by other jurisdictions with efforts by the United States authorities against organised crime. The statement refers to the activities of "Asian crime groups" and not, be it noted, to the activities of "Asians". And the distinction which I emphasise has been made more forcefully in the same statement or speech by the Senator himself who says :

"As I have stated repeatedly throughout our hearings on the subject, the vast majority of Asians are hardworking and law abiding."

21. Finally, I am shown newspaper cuttings, no doubt, part of the widespread press coverage to which Mr Hanlon was referring in his evidence. Now these press cuttings refer to racketeering cases involving Asians, particularly a case involving one of the applicant's alleged cohorts. They refer to the problem of tackling organised crime by certain Asian criminal groups. But yet again, one of the articles stresses that an investigative body of the Senate noted that only a small fraction of Asian Americans are involved in organised crime. That of course means that the vast majority are not. How can it then be said that this material demonstrates that Asians cannot obtain a fair trial is difficult to see, still less, as I say, is it difficult to see how it can be argued that the magistrate came to an obviously flawed conclusion.

22. The evidence presented is that there is concern broadcast in the United States about increased activity in that country in organised crime by a small fraction of the Asian community. But there is also evidence which was before the magistrate, side by side with the evidence from Mr Hanlon, praising the vast majority of the Asian community. There is evidence of antipathy against organised crime by some Asians, by Asian gangs. But that is a far cry from evidence suggesting that Asians cannot obtain a fair or unprejudiced trial in the United States. And in my judgment, there is simply no substance in the complaint, even at this stage, that the magistrate erred in law in not finding otherwise.

23. It follows that, in my judgment, there is no substance in this application for a writ of habeas corpus. I have explained why in some detail. But the mere fact, if it be a fact in any particular case, that there are a number of points, or even a host of points, asserted in the application which require to be covered, and that their rejection might require some detailed explanation, is not a fact which converts points bereft of merit into points of merit. However long an application may be in its presentation, it is the substance of the application which must be examined, and courts should not be driven to allow the process to continue to the inter partes stage merely because the package looks bulky and is wrapped.

24. This application for the issue of a writ fails.