CHUI KIN WING v. THE GOVERNMENT OF THE UNITED STATES OF AMERICA and Another

IN THE COURT OF APPEAL

1993,No. 99
(Civil)

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J U D G M E N T

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Penlington, J.A.:

1. This is an appeal from a decision of Duffy J. on an application for habeas corpus.

2. The background of the matter is that the applicant was arrested on the 13th September 1992 in Hong Kong on a provisional warrant of arrest issued pursuant to Schedule 1 of the Extradition Act 1989. This was at the request of the Government of the United States of America for the arrest of the applicant for the purpose of extradition to United States of America on serious charges relating to a very substantial amount of heroin.

3. On the 13th September 1992 the applicant was however also charged in Hong Kong with using arms and ammunition with intent to resist arrest and with possession of arms and ammunition without a licence. These charges apparently resulted from the efforts of the police to arrest the applicant on the drugs charges. In relation to the extradition proceedings an order to proceed was signed by the Governor on the 5th November and the hearing before the magistrate was adjourned to the 11th and 12th February 1993.

4. However, on 9th December 1992, an application was made by the Attorney General before a magistrate to withdraw the two offences relating to the use and possession of firearms. It is not challenged that the Attorney General has power to make such an application and here it was consented to by the applicant and leave was granted by the magistrate to so withdraw the charges. No further proceedings have ever been taken although it is not in dispute that such proceedings could be taken at sometime in the future if the Attorney General so decided.

5. The sole point which has been argued before us turns on the decision of the magistrate to allow the charges to be withdrawn. It is not in dispute that under the Schedule to the Extradition Act, if there are domestic proceedings they take priority over the extradition. However this should be looked at in the context of the obvious reason for this provision which is that domestic criminal proceedings should have priority, if the Attorney General so desires, over extradition proceedings and subsequent trial overseas; if the Attorney General elects that the domestic proceedings shall go ahead that will happen and the extradition must wait.

6. Here, however, the Attorney General has without any doubt indicated clearly that he does not wish to proceed with those domestic charges and has withdrawn them. It is conceded that if he had entered a nolle prosequi there could be no argument but the only difference between the withdrawal of the charges and the nolle prosequi is that with one the magistrate has a discretion with the other he does not. Mr. Llewellyn for the applicant argues that the magistrate should have been seen to have exercised that discretion, to have considered the circumstances behind the application to withdraw and to have made a decision.

7. Here, however, there was a consent to the withdrawal. The Attorney General had indicated clearly that, in his discretion, he wished the extradition proceedings to go ahead and to withdraw the firearm offences. That is a decision entirely for him and we do not consider that the magistrate can in any way be seen to have failed in his functions when he made the order he did.

8. Furthermore this is an application to appeal against the subsequent order of Duffy J. when he refused habeas corpus. It is not an appeal against the magistrate's decision.

9. We are quite satisfied that there is nothing in this application, that the proceedings are perfectly in order and that the applicant cannot rely on the provisions of the Schedule of the Extradition Act in the way that he has suggested.

10. The application is refused.

Power, V.-P.:

11. The Crown is entitled to its costs.