England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Crown Office List

		Royal Courts of Justice
		4th February 1993

LORD JUSTICE WATKINS: I will ask Ognall J to give the first judgment.

MR JUSTICE OGNALL: This matter comes before us in two forms:

first, by way of application for a writ of habeas corpus under the Extradition Act 1989; second, by way of a renewed application to apply for leave to seek judicial review after refusal by Rose J. Both applications stand or fall together.

On 18th May 1992 Mr R O'Connor, a Metropolitan Stipendiary Magistrate, committed the applicant in custody to await the decision of the Secretary of State in respect of three charges of kidnapping, false imprisonment and blackmail, allegedly committed by the applicant in Hong Kong. At the outset of those proceedings, the magistrate was requested to adjourn the proceedings for three purposes:

(a) to enable lawyers in Hong Kong acting for the applicant to cross-examine the two accomplices who formed the substance of the Prosecution case against the applicant. Those accomplices are by name Hui Sui Hung (Hung) and Yan Sui Hing (Hing);

(b) to enable documents to be sought and obtained in Hong Kong which the applicant's advisers believed might be relevant to the credibility of those accomplices;

(c) to enable the applicant to call expert evidence as to the effect on the applicant, if by then in custody in Hong Kong, of the resumption of sovereignty by the People's Republic of China on 1st July 1997. This is the so called "China Point".

The learned magistrate refused the request. He also rejected a submission that the evidence laid before him was insufficient in any event to warrant the applicant's committal on the charge of blackmail. All those matters form the basis of the applications now before us. We will deal with them in the order in which they were advanced.

Mr Mansfield, on the applicant's behalf, did not pursue the criticism that the magistrate should have granted an adjournment so as to afford an opportunity to the applicant's lawyers to cross-examine the accomplices in Hong Kong. It is, therefore, unnecessary to say more about that point, save perhaps that its abandonment was no more than a realistic appraisal of its hopelessness.

We turn to the submission that the Court should have allowed an adjournment to enable efforts to be made to obtain any documents throwing doubt on the accomplices' evidence.

Each of the accomplices made written Affirmations before a magistrate in Hong Kong on 8th October 1990. They were before the magistrate here. Mr Mansfield submits that in both cases it is probable, if not certain, that other documents exist which may throw light on the reliability and truthfulness of those Affirmations. Either Hung and Hing have made other statements, or there will be records of interviews with the police. If such documents do exist, and if their effect was destructive of the evidence contained in the Affirmations implicating the applicant, then the magistrate had a duty to receive such evidence, and to take it into account before deciding whether to commit the applicant.

Mr Mansfield has been unable to draw to our attention any authority in support of his submissions. He acknowledges that he could not maintain this argument as a matter of general applicability to all extradition hearings. But he submits that where the principal evidence upon which committal is sought is inherently suspect, then the magistrate is under a duty to take into account material of the kind for which the adjournment was sought in this case.

Essentially, he develops his argument on the basis of the duty of the prosecution in our courts to furnish the defence with all unused material. That is, of course, a principle of long standing in our domestic criminal courts. It was given emphasis in the Attorney General's Guidelines (1981) 74 Cr App R 302. It has received its most recent and wide-ranging exposition in the case of Judith Ward (The Times, 8th June 1992) .

Section 9(8) of the Extradition Act 1989 requires a Court to be satisfied that ".... the evidence would be sufficient to warrant his trial if the extradition crime had taken place within the jurisdiction of the court". It is submitted that to deny the applicant the opportunity to place material of that character before the Court is inherently unfair. It is unfair, because it deprives the magistrate of the capacity to do that which is his duty — namely, to consider whether there is sufficient evidence. If he deprives himself of the opportunity to receive such material which might render the Affirmations evidentially worthless, then it is submitted that he is no longer judicially assessing the sufficiency of the evidence. He is (to use Mr Mansfield's phrase) no more than a "rubber stamp" of the extradition request and the Secretary of State's Authority to Proceed under section 7 of the Act.

Mr Mansfield further submits that, in any event, it should be the duty of the requesting state in an appropriate case to furnish the magistrate upon request and in an appropriate case with the unused material so that he or she may take it into account.

We note that on 22nd February 1991 the applicant's solicitors wrote to the solicitors acting for the Government of Hong Kong requesting copies of any other statements made by Hung or Hing. By reply, dated 10th April 1992, they were told:

"As soon as Lee Wai Kit is returned to Hong Kong .... we will supply you with all of the material to which you are entitled by law."

Mr De Haan (on behalf of the respondents) has told us that the Attorney General's Guidelines are applied in the criminal jurisdiction of Hong Kong, and argument has proceeded before us upon the basis that the letter to which we have referred means that, if and when the applicant is extradited to Hong Kong, the Prosecution will comply with those guidelines as part of the trial process. We mention this as a matter of record, though it has to be said that whether or not that is the case has not dictated our conclusions.

It is important to remember that the conduct of extradition proceedings is entirely the creature of statute. This has a number of consequences:

(1) The requesting State must be the sole arbiter of such material as it chooses to place before the court in support of its application and in purported compliance with the relevant domestic extradition legislation. It alone will decide what material in support of its allegations it places before the Secretary of State and the court under sections 7 and 9 of the 1989 Act. If it furnishes inadequate evidence, then it takes the risk that its request will be refused; in which event, it will be up to the requesting state to determine whether it starts fresh proceedings or not. Neither principles of comity nor the express terms of the Act afford the Court in this country any right — still less power — to request further material from the requesting state as a condition precedent to committal. For that reason, the submission that the magistrate should, at the very least, have requested of the Hong Kong Government a sight of any unused material is of no substance, and we reject it.

(2) Committal under the Extradition Act is in no sense part of this Court's trial process. Section 9(2) of the Act reads:

"For the purposes of proceedings under this section a court of committal in England and Wales shall have the like jurisdiction and powers, as nearly as may be, including power to remand in custody or on bail, as a magistrates' court acting as examining justices."

No authority has been cited to us which affords a defendant charged with offences in this country right of access to unused material at the committal stage. It has generally been understood as a duty on the Crown to furnish such material pre-trial. But whether or not that is correct, it is clear from the words of section 9(2) that a committal under the Extradition Act is only akin to a domestic committal for trial "as nearly as may be". Those words must be taken to mean as nearly as may be consistent with the terms and purpose of the extradition legislation. Proper regard must also be had to the limited function of the magistrate in extradition proceedings. That function is defined in section 9(8)(a) of the Act. That requires the magistrate to be satisfied ".... that the evidence would be sufficient to warrant his trial if the extradition crime had taken place within the jurisdiction of the court". In our judgment, and for reasons which will appear hereafter, those words must be taken to require the magistrate to examine the evidence presently before him, and not to embark upon enquiries as to the nature of any other suggested evidence which might be before him in other circumstances.

A number of cases both here and abroad have remarked upon the distinction to be drawn between the character of the court exercising its extradition function as opposed to its function in the domestic proceedings forming part of our trial process.

Mr De Haan has reminded us that in all but the rarest of cases the court acting in extradition proceedings considers the evidence on paper. To suggest that even if available the court should weigh paper against paper of itself demonstrates the inherent unsoundness of the applicant's argument. We were referred to In Re Alves in which the House of Lords gave its reasons on 29th October 1992. There, it is quite clear that their Lordships were of the opinion that, even where the author of an affirmation before the committing magistrate later gave oral evidence before him repudiating the contents of his affirmation, the magistrate was still justified in committing the applicant on the basis of the affirmation. If that is so, the respondent submits, that demonstrates the fallacy in the applicant's argument as to the unused material.

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, a decision of the Supreme Court of Hong Kong, in which judgment was delivered on 26th May 1992. 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 21st 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 (1991) 84 DLR (4th) 438. In the course of giving that judgment McLachlan J 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."

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 assumptions 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 safeguards 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 Extradition Act, fairness is not a criterion relevant to the function of the committing court.

For this reason alone we consider that the magistrate was correct to decline the request for an adjournment to secure unused material. But there is a second reason and it is this. There is really no material in this case which would warrant us in concluding that unused material of the kind spoken to exists. No doubt Hung and Hing were interviewed.

We know also that Hung was seen by an officer of the Hong Kong police on one occasion, when he identified a photograph of the applicant as one of those involved in these crimes. We also know, incidentally, that Hung gave evidence for the Crown at the trial of two accomplices named Chung and Mak who were convicted at a trial in late 1991 in Hong Kong. But nothing has been placed before us which demonstrates that either man has ever said anything to anybody in authority or otherwise which would tend to erode their credibility or reliability in implicating this applicant. Therefore, the purpose of the adjournment was in any event designed to afford no more than a "fishing expedition" on behalf of the applicant. On that pragmatic basis alone, any refusal to grant an adjournment was fully justified. It was assuredly not unreasonable.

We turn to the next basis on which an adjournment was requested and refused. That was to enable the applicant to call expert evidence "concerning the peculiar position of Hong Kong in international law and Chinese sovereignty" after 1st July 1997 (the so-called "China point"). The magistrate rejected it, on the basis that such evidence was irrelevant to the proceedings before him.

The applicant's argument here runs as follows. That, if extradited for these offences, he would be in custody in Hong Kong on 1st July 1997, when the People's Republic of China resumes sovereignty over what will then be known as The Special Administrative Region of Hong Kong. That the agreement between Her Majesty's Government and the People's Republic is silent on the question of the continuing rights of the applicant under the terms of the undertaking given by the Government of Hong Kong in this case. That undertaking is dated 11th March 1992. It complies precisely with the undertakings required of a requesting state by virtue of section 6(4) of the Extradition Act 1989. But it is submitted that in this case the applicant may well not enjoy the protection of that undertaking once the People's Republic resumes sovereignty. The victim of this kidnap has not been seen since his abduction in April 1990. He is almost certainly dead. He will in any event be presumed dead under Hong Kong law by April 1997. Therefore, there is no reason why, once the applicant is under Chinese jurisdiction, he should not be prosecuted for, and convicted of, murder. In China, we are told, the penalty for murder is death and the sentence is invariably carried out. Effectively, it is therefore submitted that the so-called specialty protection that would otherwise be enjoyed by the applicant may well be forfeit, and with the direst consequences.

In order to persuade the magistrate (or now this court) that the laws of China and its treaty position was relevant to the application of the specialty protection, Mr Mansfield would have to demonstrate that section 6(4) of the Act, or any other part of the Act, entitled the court to focus not solely upon the time that the request was made and the undertaking given, but into the future. In our judgment, he clearly fails to achieve that purpose, however certain that future (as he would contend) may be.

There are two reasons that lead us to that conclusion. First, it would drive a coach and horses through the principle of comity and reciprocity which underlies the basis of extradition. As the respondent correctly, in our judgment, put it in their skeleton argument, "all such arrangements are written in sand". Specialty protection must be seen in the light of the possibility of change in the complexion of the requesting sovereign power, whether democratic or otherwise. But that cannot mean that the court is entitled to look outside the framework of the protection undertaken at the time of the request. To do so would be to act in defiance of the treaty with the requesting state. Secondly, and equally importantly, it would require the court to go outside the clear terms of section 6(4).

In Re Osman (No 3) (22nd May 1991) this point was raised and dealt with. The point there taken in an application for writ of habeas corpus was essentially the "China point" taken by the applicant here. Giving the judgment of the Court, Russell LJ said this:

"Mr Nicholls and Miss Montgomery then made submissions upon the proper construction of section 6(4). Fundamental to those submissions is the proposition that the section deals with two existing juridical countries. In this case Hong Kong, through its government, is the requesting country for extradition, and the United Kingdom, through its government, is the requested country. The section is not concerned with any other governments nor with territories in a geographical sense. The Act contains reciprocal provisions binding upon the United Kingdom government in the event of a person being returned to the United Kingdom (see sections 18 and 19). Thus, it is submitted, the statute is very much geared to situations which prevail not in the future but at the time when the reciprocal provisions bear upon the requests as between the existing governments for extradition. Section 6(4) requires of a requesting State that there should be a specialty protection in that State. No State can give an undertaking beyond its own sovereign powers nor can the United Kingdom require a State to give an undertaking to bind a different State. The section cannot and does not contemplate anything more than a specialty protection such as was offered in this case by the Hong Kong government in respect of the Colony of Hong Kong. Giving the words their natural meaning 'be dealt with there' in subsection (4) must mean 'be dealt with in the colony and by the colony'.

In our judgment the construction submitted on behalf of the Hong Kong Government and the Governor of the Prison is right. In order to give effect to section 6(4) it is not necessary, in our view, to look beyond the requesting State, and indeed we take the view that to do so would not only be unnecessary but would be to embark upon an exercise which would be wholly inappropriate when the Court is construing the 1989 Act."

For the reasons we have indicated, we would of our own motion have interpreted section 6(4) in this way. But, in any event, the decision in Re Osman (No 3) is binding upon us, and it is clear that it is fatal to this submission on behalf of the applicant.

It should be remembered that the magistrate commits the applicant to await the decision of the Secretary of State. It may very well be that the "China point" has a political dimension to it which deserves the attention of the Secretary of State. But the magistrate was correct to treat it as irrelevant to his decision.

We can deal with the two remaining points quite shortly. Mr Mansfield submits that the specialty protection afforded by the Government's undertaking in this case, whilst a compliance with that required by section 6(4) of the Act, is less generous than that afforded under the like provision in Hong Kong. The Fugitive Offenders (Hong Kong) Order 1967, section 14(2) reads:

"A person to whom this section applies shall not, during the period described in subsection (3) of this section, be dealt with in Hong Kong for or in respect of any offence committed before he was returned to Hong Kong other than: ....

(b) any lesser offence proved by the facts proved for the purposes of securing his return."

Mr Mansfield contrasts "lesser offence" with the equivalent provision in section 6(4) of the 1989 Act, which does not include the adjective "lesser". He therefore characterises the relevant English legislation as being less generous in the undertaking required of the requesting state than that required by Hong Kong's own domestic legislation. He submits that it is unfair for our courts to accept an undertaking which is less generous than the undertaking required by Hong Kong's own ordinance.

There is nothing in this point. The governing provision is section 6(4). Providing its minimum requirements have been complied with, then the Court not only need not, but cannot, look further. These requirements have been complied with; there is a conclusive certificate to that effect under section 6(7) of the Act.

Lastly, it is submitted that the magistrate was wrong to commit the applicant for the offence of blackmail. It is submitted that even though there may be a prima facie case that the applicant lent himself to the kidnapping and false imprisonment, there was no prima facie evidence that the applicant knew that the purpose of the kidnap was to raise ransom, as opposed to some other (unspecified) purpose.

The victim was said to be the 13th richest man in Hong Kong. There was in fact a ransom demand for $US 60 million, half of which was paid. The evidence before the magistrate cast the applicant in the central role of quartermaster or armourer to those effecting the kidnap. The magistrate gave a carefully reasoned judgment where, in effect, he concluded that although there was no evidence directly linking the applicant with the subsequent ransom demands, his central position in the kidnapping raised a clear prima facie inference that he was a party to it for the purpose which subsequently emerged, namely ransom.

We cannot fault his reasoning. In this context we are not a court of appeal. Our task is to ask ourselves whether the magistrate acting reasonably and directing himself properly as to the relevant law could have arrived at this conclusion. In our judgment, the magistrate clearly was justified in drawing the inferences that he did, and in committing the applicant in custody for this offence among others.

It follows that the Secretary of State may proceed to issue his warrant under section 12 of the Extradition Act 1989. The application for a writ of habeas corpus is refused, as are the renewed applications for judicial review.

LORD JUSTICE WATKINS: I agree.

MISS SHIPPEY: On behalf of the applicant, consideration has been given by my learned friend, Mr Mansfield, as to whether a question might be certified in this matter for the House of Lords. I am also instructed to apply for leave for a period of 28 days, if that can be done.

LORD JUSTICE WATKINS: You are asking for an extension of time?

MISS SHIPPEY: I am, my Lords.

LORD JUSTICE WATKINS: Why do you need all that time?

MISS SHIPPEY: My Lords, as I understand it, Mr Mansfield is extremely busy, and involved in several other matters at the moment. I think the normal period would be 14 days.

LORD JUSTICE WATKINS: That is right.

MISS SHIPPEY: My Lords, there is, as I say, a request for 28 days because of his schedule.

LORD JUSTICE WATKINS: What do you have to say, Mr Hines?

MR HINES: I have no observations, my Lords.

LORD JUSTICE WATKINS: You have no objection?

MR HINES: No, my Lords.

(Their Lordships conferred)

LORD JUSTICE WATKINS: Very well, then; you may have 28 days in which to make further applications to the court.

MISS SHIPPEY: My Lords, Mr Lee has been legally aided throughout these proceedings and I apply also for legal aid taxation of his costs. In particular, I wonder whether I might seek the court's indulgence in asking for some assistance. A man called Professor Ghai was instructed by my instructing solicitors, and an affidavit was prepared, which was found, I think, in the back of bundle D — quite a lengthy and complex affidavit regarding Chinese law. Your Lordships are not able, obviously to make any firm order or direction, but an indication that those disbursements for his attendance at court and for the affidavit itself were proper disbursements would, I think, be of some assistance.

LORD JUSTICE WATKINS: In which court did he appear?

MISS SHIPPEY: He appeared in this court, my Lords. He was, I think, referred to by Mr Mansfield as available to give evidence.

LORD JUSTICE WATKINS: Yes, he was.

MISS SHIPPEY: The affidavit itself was referred to by Mr Mansfield during the course of this application.

LORD JUSTICE WATKINS: What are you asking us to do?

MISS SHIPPEY: Simply, my Lords, to give an indication or to make a recommendation that that evidence was properly obtained by those who instruct me as being of assistance to the court. It would not bind those who finally come to tax the bill of costs. As I say, it may be of assistance to them.

(Their Lordships conferred)

LORD JUSTICE WATKINS: We prefer to leave it to the Taxing Master. The point can be argued there.