England and Wales High Court (Administrative Court) Decisions

1. LORD JUSTICE SIMON BROWN: The applicant, Ewan Quayle Launder, is wanted in Hong Kong. He stands charged there upon fourteen counts of accepting bribes totalling HK$46 million (the equivalent of some £4.5 million) between October 1980 and June 1982. For some years now he has been the subject of extradition proceedings in this country to remove him to Hong Kong. This is his third legal challenge in those proceedings. It comes before us by way both of an application for habeas corpus and an application for judicial review. Essentially, however, the same issues arise under both and I shall not for the most part distinguish between them.

2. Those issues all concern in one way or another the question of specialty protection and in particular the question whether or not, now that the sovereignty over Hong Kong has been transferred to the People's Republic of China (PRC), the applicant upon return there would be protected against the risk of resurrender to mainland China.

3. I shall assume for the purposes of this judgment that any interested reader is fully familiar with the speech of Lord Hope of Craighead in R v Secretary of State for the Home Department ex parte Launder [1997] 1 WLR 839, the single reasoned speech given in the House of Lords when the applicant's second challenge failed there on 21st May 1997, just weeks before the handover of Hong Kong with effect from 1st July 1997. That challenge had been directed principally against the Secretary of State's decision under s.12 of the Extradition Act 1989, taken on 1st July 1995 and reaffirmed after reconsideration on 21st December 1995, to order the applicant's return to Hong Kong. It had been essentially an irrationality challenge based on the contention that the PRC could not be relied upon to honour its Treaty obligations. In the course of it, however, the question of specialty protection was raised and this issue was dealt with at pages 859-863 of Lord Hope's speech. The House of Lords was, of course, having to look forward to the period following handover and, after reviewing the steps then being taken to make future arrangements for the specialty protection required by s.6(4) of the 1989 Act, and most particularly the negotiation between the two countries of a fresh agreement (the Agreement) eventually to be enacted into Hong Kong law, Lord Hope's conclusion on the point was this:

4. In the event this forecast proved over-optimistic: the Agreement is still not finally in force, although an undertaking, intended to provide the same protection, now is. The decision of the House of Lords, however, merely sets the scene for this, Mr Launder's third, legal challenge. What is now at issue is very different. The present question is whether the requirements of s.6(4) are, or at the likely date of the applicant's return will be, satisfied.

5. Let me, therefore, at this early stage set out s.6(4), amended as it is by The Hong Kong (Extradition) Order 1997 to include the words italicised:

6. The first important question to arise under that provision is whether at this stage, that is to say before the applicant is actually returned to Hong Kong, specialty protection is required to be in place under the law of HKSAR or by an arrangement with that Region.

7. It is the respondents' submission that it is not. The applicant is presently on bail, as indeed he has been throughout almost the entirety of these long extradition proceedings, and, say the respondents, the restriction imposed by s.6(4) has no application to someone in his position. He is not yet being returned and neither is he "being committed or kept in custody." Specialty provision will be required only when it is proposed to return him or at any rate to remand into custody for that purpose.

8. In my judgment this is an impossible argument. True, there are a number of provisions in the 1989 Act which draw a clear distinction between custody and bail - sub-sections 2, 8 and 10 of s.9 (the section dealing with committal proceedings) prominent amongst them - and s.6(4) is by contrast silent as to those on bail. That, however, to my mind is explained by the legislative history of these provisions. S.6(4) has its immediate origins in s.4(3) of the Fugitive Offenders' Act 1967 when, by virtue of s.7(5) of that Act, the committal court had no power to grant bail; once satisfied of the relevant matters:

9. Committal would have been prohibited by s.4(3) unless specialty protection was already in place. It cannot be supposed that Parliament in 1989, when reenacting the specialty provision (the omission of the word "to" from the sub-clause "or committed to or kept in custody for the purposes of such return" in s.4(3) I regard as no more than a stylistic change, the surrounding punctuation remaining unaltered) intended that upon all future committal proceedings it would simply be irrelevant, whenever the fugitive was on bail, to investigate specialty protection or indeed any other of the important restrictions upon return comprised within the various sub-sections of s.6, all of which share the rubric "shall not be returned, or committed or kept in custody for the purposes of return, ...". Nor am I persuaded of the construction for which Mr Lewis contends, namely that the bar operates against (a) return, (b) committal under s.9(8) whether in custody or on bail, and (c) keeping the fugitive in custody for the purposes of return following a s.12 order for return. That seems to me to overlook the punctuation, to involve a curious order of prohibitions, and to lack any evident rationale.

10. It would seem illogical too to put those who are bailed, those therefore less likely to abscond, in a worse position than those having to be kept in custody lest they abscond - worse in the sense that the s.6 protections would be available to the latter throughout the whole course of the extradition proceedings but to the former only at the point of return. It is no answer to that to say that, until the specialty protection is in place, the fugitive can always be bailed and so put in like position to one already bailed. To what end, one asks. Bail conditions may themselves be onerous: there may be a curfew or even a requirement to reside in a bail hostel. What is to happen if a fugitive breaches those conditions or, indeed, absconds? On the respondents' argument he could still not be placed in custody until the specialty protection, ex hypothesi lost at some point between committal and return, is again provided.

11. It is well recognised in the context of habeas corpus proceedings generally that an applicant on bail is to be treated as if in custody. As Viscount Caldecote CJ said In re Amand [1941] 2KB 239 at 249:

12. I recognise that the present issue is a different one. It seems to me nevertheless of some significance that it too arises in a habeas corpus context.

13. The consequence of the construction I would put upon s.6(4) is, I acknowledge, that if, following committal, the specialty provision has for any reason ceased to be satisfied, the fugitive is entitled on application to immediate and absolute discharge from the extradition process (although, of course, the requesting state could make a fresh request). In the circumstances of the present case that would have been the position had the applicant come before the court at any time between 1st July 1997 when the previous specialty provision ceased on handover, and 12th December 1997 when a fresh specialty undertaking was given by Mr Tung Chee Hwa, the Chief Executive of HKSAR (hereafter the Undertaking). Given, however, that the applicant failed to take advantage of that window of opportunity to seek his discharge, Mr Nicholls QC on his behalf accepts that the lack of specialty provision during those months cannot now avail him.

14. These considerations, however, prompted what seemed to me perhaps the best of the respondents' arguments, namely that some hiatus in the arrangements with Hong Kong at the moment of handover was always a possibility, perhaps even an inevitability: the sub-section as amended provided for a fresh arrangement with HKSAR and Lord Hope's speech, although supposing that "it is likely that express protection against re-surrender will be in place by [1st July 1997]", expressly envisaged that the arrangements might not be in place until "shortly thereafter" - see page 862 D. It clearly was not then envisaged by anyone (least of all the draftsmen of the amending legislation) that such a hiatus would create an opportunity for those in Mr Launder's position to seek discharge. I decline, however, simply in order to accommodate such difficulties as may arise from the handover of Hong Kong, to give s.6(4) a meaning different from that which I think it has borne consistently down the years. In my judgment it requires specialty protection to be in place at all times between committal and return irrespective of whether the fugitive is in custody or on bail.

15. Before turning to the next substantive issue - the effectiveness or otherwise of the Undertaking - I should first just note the respondents' concession that s.6(4) does indeed require the protection of the fugitive against resurrender to another jurisdiction; he cannot "be dealt with there" (i.e. in HKSAR) for or in respect of any pre-return offending save only for certain specified offences, and, it is acknowledged, for the HKSAR to resurrender him to a third country for that country to deal with him for any non-specified offences would breach that prohibition. That said, it is worth noting too that the section provides no protection whatever against what the applicant acknowledges to be his true fear, namely that the HKSAR will send him to China either to be tried there for these very extradition offences, or to serve there any sentence which may eventually be imposed upon him. Neither s.6(4) (nor indeed the Undertaking) bars HKSAR from sending the applicant to China or anywhere else for the extradition offences. They must not, however, be permitted to resurrender him for any other past offending. The fact that there is realistically no threat of their doing any such thing, nor indeed any suggestion that the applicant ever committed any offences other than those upon which his return is sought, least of all in mainland China, is nothing to the point. The respondents recognise that the theoretical risk is sufficient to require the specialty protection to be in place.

16. That concession, however, is made subject to Mr Lewis' argument on behalf of HKSAR that the relevant s.6(4) "provision is made" by their existing law in the sense that there is no operative legal basis for the surrender of fugitives from HKSAR to the PRC in any event. As Lord Hope observed, despite Professor Yash Gai's expressed concern about the risk of informal surrender:

17. As I understand it, however, Lord Hope was not relying exclusively upon this stated policy, but in addition upon Article 18(1) of the proposed new Agreement, when he concluded that specialty protection would be in place after handover. Certainly for my part I would reject the contention that a mere absence of express legal provision for resurrender constitutes the making of provision within the meaning of s.6(4). True, even an express present bar can always be changed so as to deny a surrendered fugitive the specialty protection he understood he was obtaining. But he would seem to me at greater risk if the existing law is merely silent. And that certainly seems to be the assumption underlying not merely the proposed fresh agreement on the point but also all previous arrangements between the two countries. Why else would these have been needed?

18. The Chief Executive's Undertaking of 12th December 1997 relates specifically to the requested surrender of this applicant and was directed to the Foreign Secretary. It was, we are told and Mr Nicholls accepts, specifically sought by the UK Government and they have accepted it. Nevertheless, submits Mr Nicholls, it cannot properly be regarded as "an arrangement with the HKSAR for securing" the applicant's protection as required by s.6(4) because, even though given, as also he accepts, in good faith, the Chief Executive had neither the power nor the authority to give it. Essentially what is said is that the Chief Executive requires the authority of the CPG to make any such arrangement with regard to extradition and not least for specialty protection. Express authorisation was duly given to the Chief Executive to conclude the Agreement between the HKSAR and the UK (the Agreement which Lord Hope expected to be in force by 1st July 1997, which was eventually signed on 5th November 1997, and which is now expected finally to come into force in the second half of March 1998). No such authority, however, was given for the Undertaking and, submits Mr Nicholls, it is in any event inconsistent with HKSAR's existing extradition law.

19. Not only did we hear very extensive arguments from the applicant and both respondents on this issue, but we also had the advantage of several lengthy affirmations from Professor Yash Ghai, and two affidavits from Mr Wayne Walsh, Acting Deputy Principal Government Counsel in the HKSAR. It would take a long judgment indeed to deal with all the many points canvassed, and I propose to deal with the issue altogether more shortly.

20. The first matter to consider is what should be the Court's approach to a challenge such as this to the authority of the Chief Executive to give an undertaking of this character. Tempting though it is to decline absolutely any inquiry into the whole question on the footing that municipal courts will not adjudicate upon the transactions of foreign states, that I am satisfied would not be the correct approach. This case does not fall within the general principle established in Buttes Gas v Hammer [1982] AC 888. Nor is the challenge of the same nature as was advanced in R v Governor of Brixton Prison ex parte Kotronis [1971] AC 250 where to the suggestion that the Greek Government would act contrary to the specialty protection given by the relevant extradition Treaty Lord Reid at p.278 observed:

21. The challenge here, I repeat, is not to the good faith of HKSAR but rather to the validity of the Chief Executive's Undertaking under HKSAR law. The analogy here, therefore, is rather with Re Alice Woodall [1888] CLC 478 where the court readily investigated the relevant foreign law to see whether it provided the specialty protection then required under s.3(2) of the Extradition Act 1870.

22. There is this too to be said: the Chief Executive's Undertaking is in striking contrast to that given by Mr Christopher Patten as Governor of Hong Kong on 7th October 1993 in respect of this self-same extradition request. Mr Patten's power to give such an undertaking as between a Crown Colony and the United Kingdom could hardly have been challenged on grounds of sovereignty or authority. No less importantly, s.6(7) of the Act enables the Secretary of State to issue a certificate confirming the existence of an arrangement with a Commonwealth country or colony, that certificate being conclusive evidence of the matters confirmed. Yet whereas such a certificate was issued by Mr Michael Howard with regard to Mr Patten's undertaking, no such certificate has been or could be issued with regard to the Chief Executive's undertaking, s.6(7) remaining unamended in this respect. It seems to me, therefore, implicit in the legislative scheme that whether or not a s.6(4) arrangement exists with HKSAR is a proper matter for investigation and, indeed, that it is no more offensive to the relevant foreign state to inquire into this than to investigate whether the offence in question is "of a political character" under s.6(1)(a), or whether if returned the fugitive might be prejudiced by reasons of race, religion or the like under s.6(1)(d), or whether under s.11(3)(c) it appears that "the accusation against [the fugitive] is not made in good faith in the interest of justice."

23. All that said, the court should not shut its mind entirely to considerations of comity: a degree of judicial restraint at least is called for and we should tread with some delicacy in the field of HKSAR constitutional law which we are invited to enter.

24. With these thoughts in mind I come to the grounds upon which it is suggested that the Chief Executive needed authority to give this Undertaking beyond that implicit in his office as head of the Region. I begin by noting that there are provisions in the Basic Law available to both sides which, taken in isolation, plausibly support arguments in either direction. One can debate at length whether the giving of such an undertaking is properly to be regarded as "relevant external affairs", which under Articles 13 and 48(9) the Region and Chief Executive can conduct on their own, or whether it necessarily falls within the description of "appropriate arrangements with foreign states for reciprocal juridical assistance" for which the CPG's "assistance or authorisation" is required under Article 96. Certainly the Agreement itself comes within the scope of Article 96 and, as stated, one finds the Chief Executive there expressing himself in terms to be "acting under the authorisation of the Central People's Government". It is one thing, however, to recognise that the actual Agreement, the Treaty dealing with all aspects of extradition law and procedure between the two countries, falls within that provision; quite another to conclude that so too did a single assurance as to how one fugitive, were he to be returned, would then be treated within the Region. After all, if the Chief Executive is authorised under Article 48(12) "to pardon persons convicted of criminal offences or commute the penalties", it is a little difficult to see why he should not be permitted to give an undertaking like the present of substantially less radical effect.

25. Even, however, were one to assume that under the Basic Law the Chief Executive did require authority to give this undertaking, why should he not be found implicitly to have had it once he was authorised to enter into the Agreement itself? I shall have to come later to the question whether even under the Agreement this particular applicant would be protected against re-surrender to mainland China. Of one thing, however, I am certain. Even if upon the true construction of the Hong Kong Ordinance No 23 of 1997 made on 26th March 1997, known as the Fugitive Offenders Ordinance (the FOO) -- under s.3 of which the Agreement will ultimately take effect -- the applicant will not enjoy this protection, that can never have been the understanding or intention of the CPG in authorising the Agreement. Rather I have no doubt that it was the intention and belief of all concerned, not least the CPG, that the Agreement would extend to this applicant. As Lord Hope noted:

26. Article 18(1) of the Agreement was, indeed, expressly designed to plug the gap which Professor Yash Gai had identified in the proposed arrangements for the return of this very applicant - the gap in s.17(2) of the FOO resulting from the omission of the PRC from the FOO's definition of "prescribed place". Article 18(1), and the Undertaking which is in identical terms, purports to plug it by barring surrender "to any other jurisdiction."

27. That being the case, it cannot realistically be asserted that the Chief Executive did not have implicit authority to accelerate the grant of the protection required to facilitate his return. Mr Nicholls at one point in his argument submitted that the CPG must be understood to have intended to treat those they wish surrendered by the UK differently depending upon whether or not the request for their extradition was made before or after handover. That, however, seems absurd. There can be no possible logic in such an approach, least of all when inevitably it would forestall the very surrender desired in this case.

28. As for Mr Nicholls' contention that the Undertaking whether or not authorised, is ineffective under HKSAR law, this depends upon a particular clause in s.27(3) of the FOO, the section lying at the heart of the argument about whether, even after the Agreement comes into force, this applicant will be protected by Article 18(1) against resurrender as assumed by Lord Hope. It is convenient at this stage to set out s.27(3) in full:

29. I shall return later to the question whether or not the Agreement, assuming it comes into force before the applicant's return, will avail him. What Mr Nicholls argues with regard to the Undertaking is that it cannot override the express provision in s.27(3) that surrendered persons are to be dealt with according to the Ordinance "notwithstanding any other law of Hong Kong." Application of the Ordinance without more, of course, would leave open the gap in s.17(2).

30. This I regard as an impossible argument. S.27(3) cannot be read as prohibiting the giving of an undertaking which widens the scope of the protection afforded by the FOO. The Undertaking is not in my judgment "any other law of Hong Kong" and thereby in effect deemed overridden by the "provisions of this Ordinance."

31. I should mention briefly at this point two other authorities cited by Mr Nicholls in connection with the Undertaking although I do so only to dismiss them as being of no real assistance in the case. The House of Lords in R v Governor of Brixton Prison ex parte Armah [1968] AC 192 (A) was concerned in part with whether it would be unjust or oppressive to return the applicant under s.10 of the Fugitive Offenders Act 1881. Certain of the speeches addressed the desirability or otherwise of the court taking into consideration in that regard undertakings given to the court by the foreign requesting government through counsel at the hearing with a view to improving their case under s.10 for the fugitive's return. At pages 235-236 Lord Reid said this:

32. The present case is entirely different. The Undertaking was given not to the court but to the UK Government. There is no question here of the Chief Executive disapplying provisions of HKSAR's domestic law. Any surrender to mainland China could only ever have resulted from executive action and that is all that the Chief Executive is promising not to do. Once in principle it is accepted, as Mr Nicholls does accept, as has frequently been recognised down the years, and as Lord Reid certainly did not rule out, that an undertaking can properly constitute an arrangement for the purposes of affording specialty protection, the views expressed by their Lordships in Armah (not in any event uniform) about undertakings offered for other purposes cease to bear on the present issue.

33. Mr Nicholls' other authority, HKSAR v Ma and Others [1997] 2HKC 315 seems less helpful still. It decided no more than that upon a true construction of the Basic Law the laws previously in force in Hong Kong, including the common law, became laws of HKSAR on 1st July 1997. True, under Article 48(8) of the Basic Law the Chief Executive is obliged to implement directives issued by the CPG in respect of relevant matters and this obligation would no doubt override any inconsistent principle of common law. But to argue that the Undertaking is therefore to be thought worthless because ultimately it may be reversed by directive is to deny any possibility of a valid arrangement with HKSAR, despite explicit provision for this in s.6(4). In short, the argument proves too much.

34. That brings me to a further aspect of this part of the case, the question of abuse of process. Given that the common law applies in HKSAR and that essentially it mirrors the UK's common law, it is, as the respondents submit, in reality inconceivable that HKSAR would attempt to go behind this Undertaking or, if they did, that such conduct would successfully withstand legal challenge there. Any action sought to be taken contrary to the Undertaking would amount to the clearest possible abuse of power or abuse of process. It must be borne in mind that the Undertaking was in the clearest terms, publicly made, requested and given in the knowledge that it would be used to persuade an English Court and the Secretary of State that it is safe to return this applicant, and clearly intended to bind HKSAR. Even if theoretically grounds exist for disputing its vires, in reality it is effective to secure the applicant's position as required by s.6(4). If authority were needed for the proposition that the HKSAR courts would inevitably hold the authorities to this Undertaking, to my mind it is to be found in R v Bloomfield [1997] 1 CAR 135. For good measure I would note too the dictum of the Hong Kong Court of Appeal in Chu Piu-wing v Attorney General [1984] HKLR 411 at 417-418 (cited with approval in Bloomfield):

35. Mr Nicholls submits that S.6(4) requires more specific protection in law or under "an arrangement" merely than that the fugitive on return is assured of a strong case against re-surrender based on arguments of abuse of process. That, however, begs the question at issue: it is to assume that there is no "arrangement ... for securing" protection in the first place. When judging the effectiveness of an undertaking such as that given here I see no reason to ignore its likely practical effect in the jurisdiction on whose behalf it was purportedly given.

36. For all these reasons I would hold that the Chief Executive's undertaking constitutes an "arrangement" within s.6(4) such as satisfies in full the applicant's present and future requirements for specialty protection.

37. It therefore becomes strictly immaterial to consider whether or not the Agreement once in force will itself provide the necessary protection. No doubt it was anticipated that the Agreement would supersede the Undertaking in the sense of making it redundant. That is not to say, however, and indeed no one has suggested, that the Undertaking (assuming presently it is effective) will in fact cease to operate to the advantage of this applicant once the Agreement has taken effect.

38. Nevertheless, given that we heard full argument on the point and given that there are said to be three others in the same position as this applicant - two whose surrender like his was requested before handover, and a third whose surrender was requested after handover - I propose briefly to indicate my conclusion upon it.

39. Before doing so, however, I should just notice an argument advanced by Mr Eadie to the effect that even though the Agreement is not yet operative and so not yet capable of offering the protection required, it can nevertheless itself be regarded as a s.6(4) arrangement. This argument stresses (a) the future tense in the sub-section's requirement that the returned fugitive "will not ... be dealt with" in the proscribed way, and (b) the virtual certainty that, given there are now no points of principle outstanding, the remaining, largely formal, procedures will be completed before this applicant is actually returned. Mr Eadie, indeed, has instructions from the Secretary of State to undertake if necessary not to return the applicant until the Agreement comes into force. For my part I would reject this argument. If, as I would hold, s.6(4) requires either that existing foreign law or that an already binding "arrangement" provides the fugitive's necessary future protection, that is not achieved by a prospective Treaty Agreement however well advanced it may be.

40. What, then, will be the effect of the Agreement, once in force? There is no doubt or dispute as to the plain meaning of Article 18(1). What is in issue is whether the benefit of the Agreement will attach to those like the applicant whose surrender was requested before it took effect. That depends upon the true construction and application of the FOO and in particular of s.27(3) which I have already set out in full.

41. S.27 as a whole is a long section concerned with transitional arrangements. Sub-sections (1) and (2) deal with those whose surrender is sought from Hong Kong, sub-section (3) and (4) with those whose surrender is sought by Hong Kong. Sub-section (4) postulates that "the relevant arrangements cease, by virtue of an order under s.3(1) coming into operation in respect of the relevant place, to be arrangements pursuant to which any new proceedings may be instituted". That was the position with regard to six particular countries with whom, as Lord Hope pointed out, Hong Kong had already signed new agreements before the relevant arrangements ceased on handover. S.3(1) of the FOO, I should observe, provides for an order by the Chief Executive in Council, once fresh arrangements are made, directing that the procedures in the Ordinance shall apply subject to those fresh arrangements. Fugitives whose surrender had been requested from any of these six countries, therefore, undoubtedly enjoyed the benefit of their government's Treaty Agreement. S.27(4) makes that plain. That had been anticipated to be the position also with regard to the UK but it proved not to be.

42. The applicant's case falls instead to be considered under s.27(3), the relevant arrangements between HKSAR and the UK having ceased by means "other than by virtue of an order under s.3(1)", namely by reason merely of the handover. In these circumstances the applicant argues that on the clear language of the sub-section he will be treated under the provisions of the FOO and thus entitled only to the limited protection afforded by s.17(2), namely not to be surrendered "to any other prescribed place", a description which omits the PRC. The Agreement will not avail him.

43. I am persuaded that on the most literal construction of s.27(3) this indeed would be the position. It seems that the draftsmen must simply have overlooked the position of those like this applicant whose return was requested before, but in fact (let us suppose) occurs after, new bilateral arrangements have become operative under a s.3 Order. S.27(3) appears rather to have had in mind the return of a fugitive without there being any such Treaty Agreement in force. On this construction, however, one would have the absurd position of a s.3 Order having already incorporated the provisions of the Agreement into HKSAR law, and yet this applicant, because strictly falling to be considered under the transitional provisions, being dealt with under the basic FOO for all the world as if no Treaty had been made.

44. I describe this as absurd because, as I have earlier suggested, there can be no logical basis for such a result and it cannot possibly have been intended.

45. For this reason I would be disposed to give s.27(3) the purposive construction for which the respondents contend, a construction to my mind best achieved by reading the word "modifications" in paragraph (i) of s.27(3) as including (despite the deeming provision in paragraph (ii)) the effect of the s.3 Order upon the provisions of the FOO. I repeat, however, that, given the independent validity of the Undertaking in the present case, this conclusion is strictly unnecessary and so obiter.

46. It follows from all this that in my judgment both these applications fail and must be dismissed.

47. MR JUSTICE MANCE: I agree that these applications fail. I add some observations of my own on certain aspects of the points argued before us. In other respects I agree with the reasons given by Simon Brown L.J.

48. I have found this a more troublesome point than my Lord, although I reach the same conclusion. The problem arises from the very clear distinction drawn in other parts of the Extradition Act 1989 between custody and bail, a distinction which is also familiar in the general law (cf e.g. Magistrates Court Act 1980 s.150 and Bail Act 1976). The 1989 Act is a consolidation with amendments of, inter alia, the Extradition Acts 1870 to 1935 and the Fugitive Offenders Act 1967. The draftsman was careful to eliminate references to custody where they were no longer appropriate. For example, "committed to custody" in s.8(1) and (2) of the 1967 Act becomes simply "committed" in s.11(1) and (2) of the 1989 Act; and "discharged from custody" in s.8(3) of the 1967 Act becomes simply "discharged" in s.11(3). In s.9(8) of the 1989 Act, as Simon Brown L.J. has pointed out, the draftsman has also amended "commit him to custody" to read "commit him to custody or on bail", so as to allow bail at the post-committal stage, which, it appears, was not previously permitted at that stage under either the 1967 Act or the Extradition Act 1870 (cf s.10).

49. In s.6(1), (2) and (3) itself, the draftsman has deleted the word "to" which appeared after the word "committed" in s.4(1), (2) and (3) of the 1967 Act. In the 1967 Act, the relevant wording ran "A person shall not be returned under this Act to [a designated Commonwealth country/any country], or committed to or kept in custody for the purposes of such return ....". The modern wording provides: "A person shall not be returned, or committed or kept in custody for the purposes of such return ....". I view this as more than a stylistic change. The wording formerly addressed a person "committed to .... custody for the purposes of such return"; now it simply addresses a person "committed .... for the purposes of such return." It was a necessary change to ensure that the protections in s.6 applied not merely when magistrates committed to custody, but also when they committed on bail (as now allowed) under s.9(8), whether to await the Secretary of State's decision as to return or to await return after the Secretary of State had (as in the present case) decided upon, and by warrant ordered, return. This makes it all the more noticeable that the draftsman did not alter the next phrase "kept in custody" to reflect the possibility of bail, perhaps by simply adding the words "or on bail".

50. Looking back at the previous legislation, in the Extradition Act 1870 there was no express reference to bail at any stage, although the conferral on the committing magistrate of the same "jurisdiction and powers" as a magistrate before whom a prisoner was brought charged with an indictable offence (cf s.9) would probably have embraced such a power during the committal process. If the warrant was duly authenticated before the magistrate, he had to commit to prison (s.10). The Act then gave the "fugitive criminal" a right to apply for a writ of habeas corpus. Under the 1967 Act, the committing magistrate had an express right to remand in custody or on bail during the committal process (s.7(2) and (3)), but any committal had to be to custody to await return (s.7(5)). Again, there was a right to apply for habeas corpus after any such committal to custody to await return (s.8(1)). On such an application, the High Court could under s.8(3) order discharge from custody if it appeared unjust or oppressive to return the person committed on any of three specified grounds (trivial nature of offence, passage of time or absence of good faith of accusation - grounds now reflected in s.11(3) of the 1989 Act). S.8(4) of the 1967 Act also provided that on any application for habeas corpus, the court might "receive additional evidence relevant to the exercise of its jurisdiction under section 4 of this Act ....". S.4, as I have already pointed out, contained the provisions which have now become, with alterations, s.6(1),(3) and (4). S.4(1) expressly covered three separate stages at which, and authorities to which, the matters mentioned might appear in the phrase: "if it appears to the Secretary of State, to the court of committal or the High Court of Justice or High Court of Judiciary on an application for habeas corpus or for review of the order of committal". Where s.4(1), (2) or (3) comes into play, a person is not to be "returned ...., committed to or kept in custody for the purposes of such return". The words "kept in custody" were, it seems to me, included to address the situation where habeas corpus or similar relief was sought from a court, as contemplated by s.4(1) and s.8(4).

51. Likewise, under the 1989 Act, the scheme under s.11 is that, where a person is committed under s.9 (and that may now be to custody or on bail), he may apply for habeas corpus. On such an application, the court may order his discharge (whether he is in custody or on bail) if one of the three grounds specified in s.11(3) applies or if one of the restrictions on return provided by s.6(1), (2), (3) and (4) applies. S.11(4) provides that on any application for habeas corpus "the court may receive additional evidence relevant to the exercise of its jurisdiction under section 6 above or subsection 3 above". The reference to "an appropriate authority" in s.6(1), (2) and (3) embraces the court: see s.6(9)(c). Habeas corpus addresses in origin the situation of persons wrongly detained in another's custody, and the prescribed forms for use in habeas corpus cases still refer to the respondent "having the custody or body of the applicant" and to the body of the applicant being "taken and detained under your custody" (cf prescribed forms 87-90 in section A of Part 2 of the Supreme Court Practice). Nevertheless, in the context of extradition at least, it is clear that habeas corpus will lie, although the person being sought to be extradited has been committed on bail, rather than in custody. In other contexts, too, as Simon Brown L.J. has pointed out, there is authority that the bailing of a person seeking habeas corpus is no bar to the issue of the writ, although it seems likely in Re Amand [1941] 2 K.B. 239 that the grant of bail occurred after the application for habeas corpus so that the case is not directly comparable with the present. In the present statutory context, however, it does seems to me that the words "kept in custody" in s.6 must be regarded as a reflection of the historical and conceptual origin of habeas corpus, still reflected in the prescribed forms, but that the continued use of such words cannot affect the reality, viz. that the Act contemplates applications for habeas corpus by any person committed (whether to custody or on bail) to enable him to challenge the legitimacy of his detention under s.11(3) or s.6(1), (2), (3) and/or (4).

52. In summary, the temporary, procedural remand to custody or on bail which may be granted by a court of committal either during the committal process or, now, upon committal to await the Secretary of State's decision or, after a decision in favour of return, to await such return, does not alter the fact that, for more fundamental extradition purposes, including the right to apply for habeas corpus, the applicant is effectively in and to be treated as in custody. The use of the concept of custody in these different senses is confusing, but any alternative view undermines the scheme of the Act.

53. I add a word about another subsection where a reference to discharge from custody has been retained without addition of words to cover the prospect of bail. That is s.8(4), dealing with the situation after issue of a provisional warrant, not followed by any authority to proceed from the Secretary of State. One possible explanation is that a provisional warrant does lead to arrest and custody. S.8 deals with arrest for the purposes of committal. It is s.9 which deals with the committal of a person so arrested. However, it would appear possible (indeed, in the light of the words "as soon as practicable" in s.9(1), it may be quite likely) for a person arrested under a provisional warrant to be brought before a court of committal and granted bail during the committal process, before the Secretary of State has decided whether or not to issue an authority to proceed. In such a case, if the Secretary of State decides not to issue such an authority and by order cancels the warrant, the words "and if that person has been arrested under it, discharge him from custody" would have, it seems to me, to be read in the same expanded sense as in the context of habeas corpus, and as wide enough to provide for the applicant's discharge although he was benefiting from the procedural bail granted him by the court of committal.

54. The question here is whether Hong Kong law already offers sufficient protection against re-surrender to China, quite apart from the Chief Executive's undertaking of 12th December 1997 and apart from any potential protection that may be afforded in future when and if the agreement between the United Kingdom and the Government of the Hong Kong Special Administrative Region made 5th November 1997 but not yet implemented as part of the law of either party comes into effect.

55. Although covered by the fourth and fifth affirmations of Professor Ghai (paras. 27-28 and 17-18 respectively) and the affidavits of Mr Walsh (paras. 17-18 and 33-35 respectively) counsel did not initially raise this as a separate point before us, until Mr Lewis for the Hong Kong Government relied on it in his oral submissions. The point is one which might, it seems to me, have benefited from fuller consideration in the evidence. Professor Ghai asserts that Mr Launder would, if returned to Hong Kong, be "an immigrant within the terms of the Immigration Ordinance (chap. 115) and as such have no protection against removal or deportation from the HKSAR to a destination chosen by the Department of Immigration (ss.19, 20 and 25 of the Immigration Ordinance)", though Professor Ghai does not produce any of these provisions except for, in his fifth affirmation, s.20. He combines this with an assertion that the right of freedom of movement under article 31 of the Basic Law is "effectively restricted to "permanent residents", i.e. those with the right of abode". In this latter respect, he seems, on the face of it, wrong. Article 31, part of Chapter III of the Basic Law, provides:

56. Article 41, not mentioned by Professor Ghai but also part of Chapter III, provides:

57. Mr Walsh in his affidavit sworn 16th January 1998 responding to Professor Ghai says, cryptically, that Professor Ghai's observations to the effect that "Mr Launder would be subject to the Immigration Ordinance, Cap. 115 and as such have no protection against removal or deportation from the HKSAR to a destination chosen by the Director of Immigration .... are not pertinent to the case of Mr Launder". He goes on:

58. Professor Ghai in reply, in addition to suggesting that the Central Government of the People's Republic of China might at any time demand the surrender of Mr Launder and that "there does not appear to be any provision under which Mr Tung would be able to resist the demand", also sets out the text of section 20 of the Immigration Ordinance, which provides:

59. I am not impressed by Professor Ghai's suggestion that, if the Central People's Government were simply to demand surrender of Mr Launder, the Chief Executive would not be able to resist the demand - a suggestion which, incidentally, would, if accepted, seem to preclude any possibility of Hong Kong law ever providing the relevant specialty protection. In support of it, Professor Ghai refers to articles 43 and 48(8) of the Basic Law as relevant, apparently on the basis that the matter would be one of foreign or external affairs, in relation to which the Chief Executive would be subject to the Central People's Government's directives. However, the treatment accorded to a person once he is within Hong Kong is an internal Hong Kong matter, regulated by the law of Hong Kong. The specific provisions of article 95 of the Basic Law, to which reference is made below, are also hard to reconcile with Professor Ghai's apparent view that the Central People's Government could simply require the Chief Executive to hand over anyone it wanted.

60. On the face of article 31 of the Basic Law, any person in Hong Kong is entitled to the freedom of movement and travel provided by article 41. While in custody or on bail pending trial, such a person would be subject to lawful restraint. But, in the absence of any extradition arrangements with the rest of China. there would be no basis on which either the courts or the executive could surrender or deport him to China. Any attempt to surrender or deport him would appear, on the material before us, to be unlawful and contrary to article 41, and to be liable to be restrained by habeas corpus or judicial review. If acquitted, Mr Launder would have the unrestricted right to travel where he wished under article 41. If convicted, without any order being made for his deportation, he would have the same right once he had served any sentence. If convicted and ordered to be deported, s.20(5), on its face, does no more than impose an obligation on him to leave Hong Kong, which would not by itself appear inconsistent with him retaining the right to choose where to go. However, the tenor of Mr Walsh's affidavit of 16th January 1998 suggests that any such deportation would be effected by, and to a place chosen by, the Secretary for Security, although Mr Launder would be able to make representations about the place and, if grounds existed, to seek judicial review. If this is the position under the law of Hong Kong, then it seems to me that there is at that stage a gap in the specialty protection afforded to a person in Mr Launder's position, to which it is now open to him to point under s.6(4) of the Extradition Act 1989. But for this gap, it seems to me that there would have existed a considerable argument for regarding the Basic Law of Hong Kong as containing appropriate provision for securing that Mr Launder would not be dealt with in Hong Kong (including not surrendered to the rest of China) without having had an opportunity to leave to a country of his own choice. It is true that article 95 of the Basic Law provides that:

61. The evidence indicates that at some future date this will enable and lead to the negotiation of a form of domestic extradition arrangement between the two jurisdictions. But nothing has as yet been negotiated, and there is no reason to think that any agreement which was negotiated would not contain appropriate specialty protection such as required by s.6(4) of the Extradition Act 1989. In any event, of course, the possibility that a country may in future alter its domestic law does not mean that its present law does not currently provide the required specialty protection.

62. For my part, I would like to reserve the general question to what extent express specialty provision is necessary in order to satisfy the requirement of s.6(4) of the Extradition Act 1989 that "provision is made by the relevant law" for securing speciality protection. The typical case which that requirement is surely designed to meet is where the foreign country has extradition arrangements with other countries, so that once the wanted person arrives in the first requesting country, he may be vulnerable to requests for onward extradition emanating from other countries. In the present unusual circumstances, there appears to be no basis on which any onward surrender could take place from Hong Kong to the rest of China, other than by way of deportation after completion in Hong Kong of a sentence combined with an order for deportation. Further, article 41 appears to contain very positive protection. Both forms of protection would no doubt be enforced by habeas corpus or judicial review if there were any contrary action.

63. Article 43 of the Basic Law provides that the Chief Executive

64. Article 62 provides that the Government of the Hong Kong Special Administrative Region shall exercise inter alia the power and function:

65. By article 48(9) the Chief Executive was authorized:

66. By article 48(4) and (12) he had power

67. The treatment to be accorded to Mr Launder within Hong Kong appears pre-eminently a matter for the Hong Kong Government represented by Mr Tung as its Chief Executive. In the absence of any provision under Hong Kong law for Mr Launder to be surrendered to the rest of China, any risk of such surrender could only arise from governmental action of some sort or another, whether under the Immigration Ordinance in the context of a deportation order or by the introduction of a change in the law. However, the giving of the undertaking means that the present situation also has an external element.

68. Article 13, after stating that the Central People's Government shall be responsible for the foreign affairs relating to the Hong Kong Special Administrative Region, ends with the following specific delegation of authority:

69. The question is whether the undertaking can be regarded as a "relevant external matter in accordance with this Law". It seems to me that it can and should be. The Chief Executive's undertaking to the United Kingdom Government, an external affair, arises from the desire to pursue proceedings against Mr Launder within Hong Kong and relates solely to the treatment to be accorded to Mr Launder within Hong Kong after extradition to Hong Kong, matters of government policy relating to internal Hong Kong affairs. It is consequential and collateral. That it should be regarded as a foreign affair relevant and ancillary to the pursuit and conduct of the Hong Kong proceedings is to my mind also reinforced by the submissions presented to us on article 96 of the Basic Law.

70. The undertaking was, in terms of s.6(4) of the Extradition Act 1989, as amended by The Hong Kong (Extradition) Order, "an arrangement made with .... the Hong Kong Special Administrative Region". But that does not make it an arrangement "for reciprocal juridical assistance" within the meaning of article 96. Article 96 reads:

71. The commitment to assist a foreign legal system involved in a reciprocal arrangement doubtless explains why article 96 contemplates that the Chief Executive will act "with the assistance or authorization of the Central People's Government" when making any reciprocal arrangement. The present case concerns the simpler and less problematic case of a unilateral undertaking as to how the Government of Hong Kong will conduct itself internally. The fact that article 96 does not refer to undertakings of this kind cannot mean that thenceforth they were not to be given. The obvious inference is that a unilateral undertaking relevant to internal affairs of this kind is a matter for the Hong Kong Special Administrative Region, through its Chief Executive, requiring neither assistance nor authorization of the Central People's Government.

72. Extradition touches not merely the sovereignty of the requested state, but also the liberty and well-being of individuals within the requested state. For these reasons extradition legislation contains numerous safeguards, which involve examination as to matters, particularly the political character of the offence and the purpose of the foreign state in seeking extradition and the good faith in the interests of justice of the foreign accusation, with which a foreign domestic court would not otherwise find itself engaged. The present issue may be said to arise at a different level. It concerns the authority to act of the Chief Executive, who represents the Hong Kong Special Administrative Region, which is the entity with which any arrangement must be made under s.6(4) of the Extradition Act 1989. The situation is not comparable to a domestic court considering the authority to act of a town clerk within its domestic jurisdiction. Nor is the position of this court, a foreign domestic court, analogous to that of a court in Hong Kong, if Mr Launder were to seek there to challenge the undertaking as a false and unauthorized friend, leaving him exposed in Hong Kong if he were to be returned pursuant to it. Further, Hong Kong would on the face of it appear to be an available jurisdiction in which to raise the point sought to be raised before us. Any submission as to lack of sovereignty on Hong Kong's part also misses the point, since it is well established that entities or bodies which are neither sovereign nor states may have status in international law; the Basic Law, the inter-governmental agreement dated 5th November 1997 and the amendments to the Extradition Act made by The Hong Kong (Extradition) Order all proceed on the basis that the entity with which the United Kingdom has to make any relevant arrangement is the Hong Kong Special Administrative Region.

73. The House of Lords in Buttes Gas also identified a potentially broader, but more flexible doctrine of non-justiciability in respect of the sovereign acts of foreign states, particularly in their international relations with one another. On the facts of Buttes Gas it was the difficult, sensitive and highly contentious nature of the issues affecting international relations between the states of Sharjah and Umm al Qaiwain, including the absence of any "judicial or manageable standards" by which to judge such issues, that led the House of Lords to conclude that these were not justiciable in an English court. The present case presents a much less dramatic and extreme situation than that in Buttes Gas . Examination of the internal authority of the Chief Executive of the Hong Kong Special Executive Region, involving consideration of his relations with the Central People's Government, might, in some situations, mean entering sensitive and difficult areas, involving the unusual relationship between a foreign sovereign and an entity authorized to conduct its own external relations through its Chief Executive. But the limited issue which arises in the present case does not seem likely to give rise to any difficulties or embarrassment of this nature. Counsel for the Hong Kong Special Administrative Region did not draw our attention to any particular problems of that nature in this case, and that there is nothing to suggest that the Central People's Government is concerned, although it is at best inference that it is aware of the present litigation at all.

74. In any event, it is not easy to see how one could apply the principle in Buttes Gas in a context such as the present. It is a principle of non-justiciability or judicial restraint. If the issue whether the Chief Executive had authority under the Basic Law to give the undertaking which he did is not justiciable, what would that mean for the present parties? Would the undertaking be wholly disregarded, since the question of authority to give it could not be determined? Or would it have to be treated as validly authorized and given?

75. For these reasons, although it is unnecessary for me to express any concluded view on the point, I consider that, had article 96 been relevant, the court would, in the present extradition context, have had to consider whether or not the Chief Executive had given the undertaking with the assistance or authorization of the Central People's Government. It seems to me that there would then be at least a presumption that, in so far as he did need such assistance or authorization, all was in that respect in order.

76. In the light of the conclusions reached that the applicant is being "kept in custody", and that specialty protection is already in place, within s.6(4) of the Extradition Act 1989, it is unnecessary to consider whether this agreement would provide such protection, if the applicant was to be returned to Hong Kong after its coming into force either internationally or in Hong Kong. However, I too will say a few words on the subject, in view of the detailed arguments put before us and because the proposed position seems less than satisfactorily clear.

77. This agreement will under article 20 enter into force between the parties 30 days after the later of the notifications exchanged between them. The Government of the Hong Kong Special Administrative Region has already given its notification to the United Kingdom Government on 15th January 1998, but there has been as yet no reciprocal notification. Once there has been, the agreement will, as it seems to me, constitute an arrangement with the Hong Kong Special Administrative Region within s.6(4) of the Extradition Act 1989. The intention is also to incorporate its terms into Hong Kong law, by order in council made by the Chief Executive under s.3 of the Fugitive Offenders Ordinance (23 of 1997) but not yet operative, which has been exhibited by Mr Walsh to his affidavit sworn 16th January 1998. The agreement will then also constitute a provision made by Hong Kong law within s.6(4). Whichever way it is viewed, the question arises whether it makes arrangement or provision "for securing that [Mr Launder] will not, unless he has first had an opportunity to leave [Hong Kong], be dealt with there for or in respect of any offence committed before his return" other than such as specified in s.6.

78. Most of the argument before us focused on the difficulty of concluding that this would be its effect, viewing it as a part of Hong Kong law, and having regard to (a) the framework of Hong Kong law into which it will fit (viz. the Fugitive Offenders Ordinance (23 of 1997)) and (b) in particular, s.27(3) of that Ordinance. Viewing the agreement in terms of s.6(4) simply as an arrangement between the United Kingdom and Hong Kong, it might be suggested that any domestic difficulty in Hong Kong in accommodating the agreement will be irrelevant once the agreement is in force as an agreement binding in international law between its two parties. The language of s.6(4) seems to assume that such an arrangement will by itself suffice, no doubt because it can be assumed that any party to an international agreement will comply with it and will ensure that its domestic law is, so far as necessary, brought into harmony with it. The contrary argument is, as I understand it, that an international arrangement cannot be an arrangement "for securing that he will not, unless he has first had an opportunity to leave [Hong Kong], be dealt with there for or in respect of any offence committed before his return", unless it does indeed secure this under the relevant foreign law. This appears to me to strain the words and to make otiose the reference to an arrangement made with the relevant foreign state or entity.

79. Viewing the agreement simply as an international arrangement, it must, however, be material to consider whether the specialty and re-surrender provisions in its articles 17 and 18 are capable of covering a person such as Mr Launder, if surrendered after they come into force under Hong Kong law, bearing in mind that proceedings for his surrender were instituted in the United Kingdom under the old, pre-handover arrangements. There may be an argument that the agreement as a matter of construction only applies to persons whose extradition was both requested and obtained after its coming into force. On the other hand, articles 17 and 18 are not in terms so restricted. Viewing the agreement as part of Hong Kong law pursuant to an order in council incorporating it under s.3 of the Ordinance, this argument may not apply, in particular if s.27(3) can be read as referring to the specialty protection provisions of any prescribed arrangements which happen to be brought into force with the United Kingdom before Mr Launder's surrender.

80. Attention before us focused, as I have said, on the position as it will be under Hong Kong law, as and when the Chief Executive makes the proposed order in council under s.3 of the 1997 Ordinance. The submission is that, since the previous arrangements between the United Kingdom and Hong Kong ceased on hand-over on 1st July 1997, s.27(3) of the 1997 Ordinance presently applies to regulate the treatment which Mr Launder will receive if and when surrendered to Hong Kong. That much is common ground. The further submission is that it follows from the terms of s.27(3) that Mr Launder will not and cannot benefit from any more favourable specialty protection which might otherwise be provided by the order in council, if and when it comes into force.

81. The purpose of s.27(3) is to provide continuity: by subsections (1) and (2) in relation to proceedings instituted for surrender of a person from Hong Kong; by subsections (3) and (4), as regards specialty protection, in relation to persons surrendered after the old arrangements pursuant to which they are surrendered have ceased to be arrangements pursuant to which any new proceedings may be instituted for the surrender of a person to Hong Kong from the relevant place; and by subsections (5) and (6), again as regards specialty protection, in relation to persons surrendered in circumstances where, on or after the day of their surrender, the old arrangements pursuant to which they were surrendered cease to be arrangements pursuant to which any new proceedings may be instituted for the surrender of a person to Hong Kong from the relevant place. Only two possibilities are envisaged in each case, one that the old arrangements cease by virtue of an order under s.3(1) coming into operation in respect of the relevant place, the other that they cease for some other reason. In the present case, it is common ground that they ceased on handover as at 1st July 1997. They therefore ceased for some other reason than an order under s.3, so s.27(3) applies. Under s.27(3), the consequence is that

82. That refers to s.17, which does not contain protection against re-surrender to the rest of China. Mr Nicholls submits that, in these circumstances, it is irrelevant what specialty protection may be afforded by the agreement or by any order in council. S.27(3) makes clear, he contends, that the - and the only - specialty protection available to someone for whose surrender proceedings were instituted under arrangements which ceased on handover (rather than by being superseded by arrangements under s.3) is protection along the lines of s.17. Any subsequent agreement incorporated into the law of Hong Kong under s.3 cannot, he submits, afford any wider protection. He contrasts those provisions in s.27 which do expressly provide for a person surrendered to benefit by the specialty protection contained in arrangements under s.3, which are, as he says, limited to cases where the old arrangements cease by virtue of the s.3 arrangements coming into force.

83. I agree with Simon Brown L.J. that the result which would be achieved by Mr Nicholls' submissions would seem most unlikely to have been intended by the draftsman of the Ordinance. But the literal language certainly presents problems for any other interpretation. It is true that, after the passage already quoted, s.27(3) continues:

84. However, the word "accordingly" and the words in paragraph (ii) suggest that paragraph (i) is dealing with minor amendments necessary to enable s.17 to be read as applicable in circumstances where it would not according to the letter of its wording apply. Paragraph (i) would be an odd and muted way of catering for the situation, if it was positively envisaged as catering for the possibility of a s.3 arrangement coming into force between the date of cessation of the old arrangements and surrender. The draftsman appears in reality to have failed to have envisaged this possibility, and to have focused only upon the immediate consequences of cessation of the old arrangements. By the same token, however, it seems to me that the language used does not positively exclude from relevance any new s.3 arrangements which might be made at a later date between the cessation of the old arrangements and the surrender of the person wanted. The concern was to avoid a gap in specialty protection following the cessation of the old arrangements, not to preclude or exclude from consideration any subsequent arrangements prior to surrender. The words "for the purposes of the treatment to be accorded the relevant person on and after the day, if any, on which he is so surrendered" look forward from the date of cessation of the old arrangements to the date of surrender, and will provide continuous protection up to that date, unless some other provision is made. But they do not positively provide that no other provision for specialty protection may be introduced prior to surrender. There is also no reason why they should. Any s.3 arrangements must under s.3(9) be substantially in conformity with provisions of the Ordinance. Further, if the existing specialty protection were diminished, it would impact on the likelihood of there being any surrender at all. If, on the other hand, such protection were improved, there would be no reason for not affording the benefit of the improved protection to the person surrendered.

85. S.3 provides that the Chief Executive may by order in council

86. The agreement, when and if incorporated into the law of Hong Kong by the proposed order in council, will provide greater specialty protection than s.17 of the Ordinance, since it will protect against re-surrender to the rest of China. In the language of the Ordinance, it would appear that the specialty protection provided by s.17 falls to be regarded as one of the "procedures" of the Ordinance, to which s.3 refers; and that specialty protection may therefore be applied in relation to the United Kingdom subject to any "qualifications" contained in the relevant order in council. The expansion of the specialty protection afforded by articles 17 and 18 of the agreement may be viewed as such a qualification.

87. The agreement when incorporated by order in council will constitute "prescribed arrangements" (defined by s.2 of the Ordinance as "arrangements for the surrender of fugitive offenders which are the subject of an order under section 3(1) which is in force"); and it will relate to a "prescribed place" (the United Kingdom). So long as no actual prescribed arrangements exist in relation to the United Kingdom, the reference in s.27 to "the provisions of this Ordinance applicable to the surrender of a person to Hong Kong from a prescribed place pursuant to prescribed arrangements" can only be to the general provisions of s.17. But, once there are in force actual prescribed arrangements in relation to the United Kingdom giving more expanded protection than s.17, a choice would appear to arise. Since some choice has then to be made, it seems to me that it may be possible to read the reference in s.27(3) as being thereafter to the actual arrangements.

88. For these reasons, I see the force of the view that, if and when the agreement is incorporated into Hong Kong law by order in council, it will constitute a provision for securing the full speciality protection required by s.6(4) of the Extradition Act 1989. It cannot, however, be said either that the drafting position under the Ordinance is at all happy or that I feel confident in the views that I have expressed obiter on this point. Fortunately, this application falls to be decided on other grounds.

89. LORD JUSTICE SIMON BROWN: For the reasons contained in the judgment which has already been handed down these two applications fail and are dismissed.

90. MR EADIE: My Lord, there is a matter concerning page 8 of your Lordship's judgment. It is in the line about seven or eight lines down, "imposed upon him" on page 8. It is the sentence directly after that: "Neither s 6(4) (nor indeed the Undertaking) ..." Having spoken to my learned friends Mr Nicholls and Mr Lewis about that, all parties are in agreement that the undertaking would bar HKSAR from sending the applicant to China, even in relation to the extradition offences. So the proposed alteration would simply be to delete the word "neither" and delete the words in brackets, "(nor indeed the Undertaking)", so it simply then reads: "s.6(4) does not bar ..."

91. LORD JUSTICE SIMON BROWN: Start the sentence "s.6(4)", cross out the parenthesis----

92. MR EADIE: Insert the words "does not" before "bars" and take the "s" off bars. So that the point is simply restricted to a point of statutory construction.

93. LORD JUSTICE SIMON BROWN: I see. Everybody is agreeable that that represents the position, are they?

94. LORD JUSTICE SIMON BROWN: It is not a determinative sentence in the judgment.

95. MR NICHOLLS: I do have an application, and it is an application for leave to appeal to the House of Lords in respect of the finding on habeas corpus. I make no application in respect of the application for judicial review. My Lords, the reason that I make the application is that in my submission this is an important issue of Hong Kong law, in particular, as well as it affects the approach of the courts to an issue of this kind. The matter on which your Lordships have given judgment is a matter which is certainly relevant to another three cases, as your Lordships heard during the course of argument. So the views of the House of Lords on these issues are bound to assist in such other cases.

96. My Lords, of course I am aware of the fact that your Lordships do not normally grant leave to appeal in circumstances such as this or, should I say, at a time such as this. My Lord, in the case of this applicant there are certainly exceptional circumstances, because if this applicant is left in a position where he has to apply to the House of Lords for leave to appeal, effectively he will be denied a remedy ultimately, because, as we now know, on 19th March, we have been told, the new agreement will come into effect. A new agreement coming into effect on 19th March would mean fresh extradition proceedings will be brought against him under the new agreement.

97. LORD JUSTICE SIMON BROWN: If their Lordships want to hear it they are very much on top of the background and no doubt they will accelerate their consideration on the matter. That is your application, Mr Nicholls?

98. MR NICHOLLS: My Lord, that is my application. I appreciate of course that their Lordships can accelerate the matter, but there is still a period of time before which this matter can be placed before the House of Lords for the purposes of their granting leave. It really would create an impossible time scale.

99. My Lord, may I add this? Your Lordships have come clearly to the same conclusion but to a certain extent via different routes, and it is also clear from your Lordships' decision (I hope I can properly say this) that the issues which your Lordships have had to decide were difficult issues and issues or decisions which were not easily come to. I would submit that the nature of the issues and the great deal of consideration that had to be given in deciding those issues is an indication that this is a matter which is really fit for appeal and a matter which your Lordships could consider as fit for appeal at this stage.

100. May I just indicate three matters that I have particularly in mind in this respect? Firstly, the issue (and of course it relates almost entirely to the issue of the undertaking) as to whether the question of the undertaking was an external or internal matter, whether it required the authority of the Chinese Republic or not. Secondly, that if it did require authority the fact that that authority was implicit and as to what that implicit authority was to be derived from in respect of my Lord, Lord Justice Simon Brown, it was the new agreement; in respect of my Lord, Mr Justice Mance, it was from the undertaking itself. But perhaps overall the issue that is the most complex is the interpretation of section 27(3). As your Lordships will recall, my argument was, on behalf of the applicant, that the terms of section 27(3) excluded any modification of those terms either by a new agreement, but, more particularly, by an undertaking. That was an argument which my Lord, Lord Justice Simon Brown, indicated as -- I cannot remember whether it was impossible or absurd, but certainly as difficult a argument from my point of view. Certainly so far as my Lord, Mr Justice Mance, was concerned, the interpretation of section 27(3) was a very difficult matter upon which to make a decision and a matter where my Lord, Mr Justice Mance, said that it was obiter, but it was not a happy decision to make.

101. My Lord, the difficulty which is indicated, in my submission, arising in the interpretation of these matters indicates that here is a very live, very real, complex issue, one that is fit to be considered by the House of Lords and, so far as this applicant is concerned, it really means that if on 19th March new arrangements are to come into effect insofar as these proceedings are concerned this applicant would be denied his remedy, because if leave is not granted now the time scale to put in an application for leave, put in a petition----

102. LORD JUSTICE SIMON BROWN: You have made that point already, Mr Nicholls.

103. MR NICHOLLS: My Lord, I repeat it against the background of the difficulties which I have mentioned.

104. MR JUSTICE MANCE: Whatever happens after 19th March, will your client not be vulnerable to whatever fresh proceedings can be taken under the new agreement?

105. MR NICHOLLS: My Lord, after 19th March, yes, he would be. To have a remedy he has to have a decision of the House of Lords and he has to have a breathing space in which to leave the country. So he would need that much time.

106. LORD JUSTICE SIMON BROWN: No, Mr Nicholls, we do not think this is an appropriate case for this court to grant leave. Only very, very rarely is it appropriate for this court to dictate their Lordships' list and, despite your submissions, we do not consider that this is such a case. Are there any other matters?

107. MR EADIE: My Lord, we would apply for costs.

108. MR LEWIS: We would also ask for our costs.

109. MR NICHOLLS: My Lord, there is nothing I have to say on that.

110. LORD JUSTICE SIMON BROWN: Very well, the unsuccessful applicant to pay both respondents' costs.