CHONG BING KEUNG PETER v. THE GOVERNMENT OF THE UNITED STATES OF AMERICA

CACV 73/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 73 OF 1999

(ON APPEAL FROM HCAL NO.19 OF 1999)

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J U D G M E N T

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Keith J.A. (giving the first judgment at the invitation of Godfrey J.A.):

Introduction

1. The U.S. is seeking the extradition of the Appellant, Peter Chong. The offences which he is alleged to have committed are conspiracy to murder, conspiracy to commit offences against the law relating to dangerous drugs, arson, and criminal intimidation. In July 1998, the Chief Executive issued an authority to proceed under Part II of the Fugitive Offenders Ordinance (Cap. 503) ("the Ordinance"), and within a few days the Appellant was arrested when he arrived in Hong Kong from Taiwan.

2. In due course, the Appellant appeared at the Eastern Magistracy. On 2nd February 1999, the magistrate ordered him to be detained, pursuant to section 10(6)(b) of the Ordinance, pending the Chief Executive's decision whether to order his surrender to the U.S. The Appellant then applied to the Court of First Instance for a writ of habeas corpus to secure his release from detention. That application was heard ex parte by Stock J. on 24th February. He refused that application. From that refusal, the Appellant now appeals.

The nature of the application

3. Applications for a writ of habeas corpus are governed by section 22A of the High Court Ordinance (Cap. 4) and Ord. 54 of the Rules of the High Court. They contemplate a preliminary determination, which may be made ex parte, as to whether the application should proceed to a full hearing. It was said in Sharpe, "The Law of Habeas Corpus", 2nd. ed., pp.218-219:

"The strength of the case which is to be made out to take the applicant beyond the first stage of the proceedings has never been defined with precision.... It is probably enough that a doubt be raised in the mind of the judge regarding the validity of the detention and an arguable case be shown which deserves further consideration."

That, I believe, is what is encompassed by the reference in section 22A(5) of the High Court Ordinance to the court being "satisfied that the application has substance".

4. In the present case, the judge considered in some detail whether the application did indeed have substance. In doing that, he was acting consistently with the suggestion made by Litton J.A. (as he then was) in Thongchai Sanguandikul v. Government of the United States of America [1993] 2 HKLR 475 at p.482:

"Perhaps the time has come for judges dealing with ex parte applications for writs of habeas corpus to take a much harder look at the material put before them and not grant the applications [i.e. to direct that the application proceeds to a full hearing] too readily."

The grounds of the appeal

5. Although the Appellant was represented by counsel at the hearing before the judge, he has not been represented before us today. Two grounds of appeal were set out in his Notice of Appeal, which was drafted by counsel who had hitherto appeared on his behalf, though today the Appellant has departed from them in one respect. I propose to deal with each ground in turn.

Letters of request

6. The magistrate had to decide whether the evidence in relation to the offences for which the Appellant's extradition was sought would have been sufficient to warrant the Appellant's committal for trial in Hong Kong if the offences had been committed in Hong Kong. For that purpose, he was provided with a lengthy affidavit which had been sworn by Wayne Kwong. Kwong was alleged to have been an accomplice of the Appellant and had pleaded guilty in the U.S. to a number of offences. As a result of the information which he had given, and of his agreement to testify against the Appellant, he had received a substantially reduced sentence. That sentence had been served, and he was then at liberty, though part of a witness protection programme.

7. The magistrate was asked to adjourn the hearing so that an application could be made to the Court of First Instance, pursuant to the relevant provisions of the Evidence Ordinance (Cap. 8), for an order that a letter of request be issued to the courts of the U.S. to facilitate the taking of evidence on commission from Kwong and others. What the Appellant's lawyers wanted to do was to place the evidence obtained by that route before the magistrate, in order to show that Kwong was so unreliable and tainted a witness that no court could reasonably act upon his evidence. The magistrate refused to adjourn the hearing. He did so because in his view the Court of First Instance did not have the power in extradition cases to order that a letter of request be issued to a foreign court. It was contended in the Notice of Appeal that it was arguable that the magistrate was wrong in law, and that the judge should therefore have allowed the application for a writ of habeas corpus to proceed to a full hearing.

8. In my opinion, it is unnecessary to decide whether it is arguable that the Court of First Instance has the power in extradition cases to order that a letter of request be issued. That is because, even if the court has the power, such an order would have served no relevant purpose in the present case. The court's function in extradition proceedings does not normally include assessing the reliability of witnesses. Although its function is to determine whether the evidence would have been sufficient to warrant the fugitive's committal for trial if he was being tried in Hong Kong, that sufficiency is not normally dependent on an assessment of whether the evidence is true or accurate. The truth and accuracy of the evidence is normally assumed. Rather, the sufficiency of the evidence depends on whether the facts which the evidence tends to prove would amount to the offences for which the fugitive's extradition is sought. Since the reliability of Kwong's evidence was not something which it would normally have been appropriate for the magistrate to assess, the issue of a letter of request to enable him to be cross-examined in the U.S. with a view to casting doubts on the reliability of his evidence would have served no relevant purpose.

9. I have not overlooked the principle that, if the evidence is subject to such inconsistencies or contradictions that it cannot safely be relied upon, the court would be justified in rejecting the evidence altogether: see R. v. Govenor of Pentonville Prison ex p. Osman [1990] 1 WLR 277 at p.300A. Kwong's evidence is not subject to internal inconsistencies or contradictions of that kind. There is a very significant difference between rejecting the evidence because it is riddled with inconsistencies and contradictions, and rejecting the evidence because the witness who gives it has his own interests to serve. An inquiry of the latter kind could not be embarked upon without the witness giving evidence in Hong Kong. If Kwong were to be ordered to be cross-examined in the U.S. simply for the purpose of eliciting evidence which was intended to cast doubt on his reliability, the court in Hong Kong would still be left with having to assess his reliability as a witness on paper, which would in my opinion be a usurpation of the function of the trial court.

10. In the interests of completeness, I should add that Mr. Wayne Walsh for the Respondent drew our attention to section 23(4) of the Ordinance, which provides:

".... in any proceedings under this Ordinance, any evidence which contradicts an allegation that a person sought to be surrendered under this Ordinance to a prescribed place has engaged in conduct which constitutes a relevant offence for which such surrender is sought is inadmissible and, accordingly-

(a) that person is not entitled to adduce such evidence; and

(b) any court is not entitled to receive such evidence."

In my opinion, this provision would not have prevented any evidence adduced from Kwong in cross-examination from being admissible in extradition proceedings when that evidence related not to the truth or accuracy of his evidence but simply to his reliability as a witness - if his reliability as a witness had been a matter which the court was entitled to assess.

11. Since this view of the court's function in extradition proceedings is sufficient to dispose of the magistrate's refusal to adjourn the hearing, I would prefer to leave to another occasion the arguability of the correctness of the magistrate's view that the Court of First Instance does not have the power in extradition cases to order that a letter of request be issued to a foreign court. Ultimately, that argument is a highly technical one. Section 77E(1) of the Evidence Ordinance provides:

"Where it appears to the Court of First Instance that any criminal proceedings-

(a) have been instituted in Hong Kong; or

(b) are likely to be instituted in Hong Kong if evidence is obtained for the purposes of those criminal proceedings by virtue of an order made under this section,

the Court of First Instance may order that a letter of request shall be issued ...."

Thus, the power of the Court of First Instance to order that a letter of request be issued to a foreign court relates to criminal proceedings instituted in Hong Kong. It does not apply to criminal proceedings instituted elsewhere, nor does it apply to proceedings in Hong Kong which are not criminal proceedings. The question is whether extradition proceedings in Hong Kong are criminal proceedings. On that issue, the courts in Hong Kong have not spoken with one voice. In Re Davies, Yu Yok Wen [1991] 1 HKLR 7, Sears J. held that extradition proceedings in Hong Kong were criminal proceedings, but he gave no reasons for that view. He was proceeding entirely on a concession which had been made to him to that effect. For his part, Stock J. in the present case expressed the view that this concession was wrong and ought not to have been made. He regarded the concession as not easy to reconcile with subsequent dicta in R. v. Governor of Pentonville Prison ex p. Lee [1993] 1 WLR 1294 and Ken Ha Khanh Phong v. Senior Superintendent of Lai Chi Kok Reception Centre (1996) 6 HKPLR 401. However, since the resolution of this debate is in my view not necessary for the purpose of this appeal, I propose to say no more about it.

The sufficiency of the evidence

12. It is here that I should add that the Appellant has today contended that the evidence before the magistrate was not in fact sufficient to warrant his committal for trial had he been tried in Hong Kong. That contention was rejected by the magistrate. It was renewed before the judge who also rejected it. It was not included in the Appellant's Notice of Appeal, but it has today been resurrected by the Appellant. It is, I think, sufficient for me to state that, having read the affidavit of Kwong with care, I am satisfied that it was open to the magistrate to conclude that the evidence would have been sufficient to warrant the Appellant's committal for trial in Hong Kong, in that the facts which Kwong's affidavit tends to prove would indeed amount to the commission of the offences for which the Appellant's extradition is sought.

Prejudice on racial grounds

13. Section 5(1)(d) of the Ordinance provides:

"A person shall not be surrendered to a prescribed place, or 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, religion, nationality or political opinions."

It was argued before the magistrate that there were grounds for believing that the Appellant would be prejudiced at his trial because of his race. Evidence was placed before the magistrate which, it was suggested, tended to show that Asians in general, and Chinese in particular, might be at a disadvantage if tried in the U.S. on charges associated with organised crime. The magistrate rejected that argument. It was contended in the Notice of Appeal that it was arguable that the magistrate erred in law in rejecting that argument, and that the judge should therefore have allowed the application for a writ of habeas corpus to proceed to a full hearing on that ground.

14. A number of documents had been placed before the magistrate in support of the argument. They included (a) the transcript of the Appellant's own testimony to a committee of the U.S. Senate at a hearing on "Asian Organised Crime", (b) the transcript of a national television programme which suggested that ethnic Chinese control a substantial proportion of the heroin market in the U.S., (c) the speeches in the U.S. Congress by the senator who introduced legislation to curb the activities of "Asia crime groups", and (d) various newspaper cuttings which referred to the involvement of Asian elements in organised crime. The judge analysed these materials with considerable care. It is unnecessary for me to spell out what the judge said. It is, I think, sufficient for me to say that the judge convincingly demonstrated that the documents did not begin to show that a Chinese or Asian in the U.S. might not get a fair trial in the U.S. because of his race.

15. I note that the judge did not have all the evidence which was placed before the magistrate: he did not have a transcript of the evidence which had been given to the magistrate by a trial lawyer practising in San Francisco who was the Appellant's attorney in the U.S. But from what the judge was told about the effect of that evidence, it is, I think, plain that the magistrate was still entitled to conclude, on all the evidence before him, that the fact that the Appellant is Chinese was not going to prevent him from getting a fair trial in the U.S. As Stock J. said in his judgment:

"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 [the Appellant's attorney], 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."

I agree.

Conclusion

16. For these reasons, therefore, I would dismiss this appeal.

Rogers J.A. :

17. I agree that this appeal must be dismissed.

18. I wish only to say this that I do not find any difficulty in the construction of section 77E of the Evidence Ordinance. In my view, the learned Judge below was correct in his approach. Section 77E does not apply to extradition proceedings. Section 77E reads as follows :-

"(1) Where it appears to the Court of First Instance that any criminal proceedings -

(a) have been instituted in Hong Kong; or

(b) are likely to be instituted in Hong Kong if evidence is obtained for the purposes of those criminal proceedings by virtue of an order made under this section,

the Court of First Instance may order that a letter of request shall be issued and transmitted in such manner as the Court of First Instance may direct to a court or tribunal specified in the order and exercising jurisdiction in a place outside Hong Kong, requesting such court or tribunal to assist in obtaining evidence for the purposes of those criminal proceedings."

19. The short point, as it seems to me, is the criminal proceedings insofar as they exist, or will exist, will be criminal proceedings in the United States of America and not criminal proceedings in Hong Kong. The point was made by Seagroatt, J. in the case of Ken Ha Khanh Phong v. Senior Superintendent of Lai Chi Kok Reception Centre (1996) 6 HKPLR 401 at p.405I, the Judge 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."

20. The same point seems to have arisen with slightly different legislation in the case of R. v. Governor of Pentonville Prison, ex p Lee [1993] 1 WLR 1294. The authority which is said to be against it, was, as has been pointed out, not a decision after argument but a statement based on a concession by counsel. In those circumstances, it is perhaps understandable that the point might have been overlooked.

21. With that difference, I too would dismiss this appeal.

Godfrey J.A. :

22. I, too, would dismiss this appeal. I agree with the views expressed by Rogers, J.A. on the matter of the court's lack of power to order letters of request to issue to a foreign court in extradition (as distinct from criminal) proceedings. I would add only a few further words of my own.

23. Extradition proceedings are different from other proceedings, whether civil or criminal, in which the court requires the party initiating the proceedings to prove its case by evidence open to challenge by the party against whom the proceedings are brought.

24. In extradition proceedings, the court is required, in my judgment, to consider only whether the evidence is credible, i.e. capable of belief. Whether it is in fact to be believed is a matter for the court of trial, not for the court considering the extradition proceedings. This approach to the matter is, I think, supported by the following passage in the judgment of the court in R. v. Governor of Pentonville Prison and another, ex p Osman [1990] 1 WLR 277 at pp. 299,300 :-

"In our judgment, it was the magistrate's duty to consider the evidence as a whole and to reject any evidence which he considered worthless. In that sense it was his duty to weigh up the evidence. But it was not his duty to weigh the evidence. He was neither entitled nor obliged to determine the amount of weight to be attached to any evidence or to compare one witness with another. That would be for the jury at the trial."

25. It was, in my opinion, open to the magistrate in the present case to conclude as he did that there was sufficient credible evidence before him to justify him in making the order which he had been asked to make.

26. Accordingly, this appeal will be dismissed.