England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		20/01/2009

Sir Anthony May (President of Queen's Bench Division):

1. This is the Judgment of the Court.

Introduction

2. The appellants, Shyam and Anjali Raichandani, both of good character, have been living at various addresses in London since about April 2000. They had left Hong Kong, separately and in a hurry, in December 1998, when their company, Suzika Electronics Co. Ltd, collapsed. The company, of which they were director and manager respectively, manufactured electronic goods and shipped them to overseas customers. The company's day to day operations were in their hands. It collapsed in circumstances in which, as was to be established in subsequent criminal proceedings in Hong Kong (not against these appellants), it had been engaged in widespread fraud.
3. The nature of the fraud, in which the appellants are alleged in the present extradition proceedings to have been centrally complicit, was that the company participated, with a shipping company called Intermodal Freight Services Ltd, in the creation of bogus bills of lading for goods which were never shipped. Intermodal provided Suzika with fake bills of lading for a fee of $75 each. Using these bogus bills of lading, Suzika obtained credit from banks. The company collapsed when the fraud was (or was about to be) discovered. Mr Leung was a General Manager of Intermodal, and it was he who was convicted of fraud at his criminal trial in 2002. For the purposes of the present proceedings, the respondents have scheduled 144 bogus bills of lading. Mrs Raichandani's signature appears on many of them.
4. The Government of the Hong Kong Special Administrative Region of the People's Republic of China (whom we shall refer to as "Hong Kong") seek the appellants' extradition in relation to charges of fraud and conspiracy to defraud. The fraud is said to have involved some HK $40million. These are category 2 proceedings under the Extradition Act 2003. The main basis on which the appellants say that they should not be extradited relies on the passage of time from the date of the alleged offences in 1998 to the date of their challenge to extradition, which was in proceedings before Senior District Judge Workman, at City of Westminster Magistrates Court. Those proceedings began in late 2007, so that the time period is about nine years.
5. The Senior District Judge gave his decision to send the case to the Secretary of State for a decision whether the appellants should be extradited on 10 April 2008. It is against that decision that the appellants appeal under section 103 of the 2003 Act.
6. The respondents are obliged under the 2003 Act to establish in these proceedings that there is a prima facie case against each appellant. It was conceded before the Senior District Judge that there is a prima facie case against each of them, and that remains so, on this appeal.
7. Passage of time is the subject of section 82 of the 2003 Act, which provides that:

"A person's extradition to a Category 2 Territory is barred by reason of passage of time if (and only if) it appears that it would be unjust or oppressive to extradite him by reason of the passage of time since he is alleged to have committed the extradition offence."

Section 87 requires the court to decide whether the person's extradition would be compatible with their Convention rights within the meaning of the Human Rights Act 1998; and to order the person's discharge if the judge decides that it is not.

Mr Edmund Lawson QC, for the appellants, accepted that in this case questions which might be framed with reference to Article 8 of the Convention are subsumed in questions which arise under section 82.

Facts and the Senior District Judge's decision

8. The appellants left Hong Kong separately and apparently precipitately in December 1998. Mr Raichandani left for Thailand in early December 1998. His wife left a few days later with the children, not for Thailand, but for Singapore. On 14 December 1998, they both arrived in India, for which Mrs Raichandani had obtained a visa, where their furniture and belongings had been shipped on 11 December 1998. There is something of an issue as to whether the furniture and belongings belonged to the appellants or a sister-in-law, but we are told that the shipping manifest listed some of them at least against the name of Mrs Raichandani. The appellants travelled together to the United States on 17 December 1998. They then moved to St Martin on 22 December 1998. They left St Martin and came to the United Kingdom in about April 2000. Since then, they appear to have lived at five different addresses in West London. They also appear to have travelled on occasions to India, USA and Africa. But their case is that, at least since they came to London in 2000, they have lived openly here with their children, now aged 17 and 20, without any attempt to conceal their whereabouts. They have produced numerous documents, including passports, driving licences, identity cards, employment records, council tax documents, and so forth, all of which have been applied for or bear their own names.
9. The appellants each gave oral evidence before the Senior District Judge. Their case was that they left Hong Kong in 1998, not in flight from and fear of imminent criminal process, but because of the shame and loss of face they felt at the collapse of their company and fear for the manner in which their creditors would seek to recoup their losses. Mrs Raichandani said that she had been threatened by a triad gang. They left on the understanding that Mr Raichandani's brother, Ravi Raichandani, would wind down the company and resolve all outstanding matters relating to it. Mrs Raichandani gave evidence before the Senior District Judge that they left temporarily for a cooling off period and that she had every intention of returning. She and her husband have never done so, and it appears that they have made no attempt to address debts which the company incurred to banks and others. Mr Raichandani also gave evidence that, when he left Hong Kong, he was not aware of any allegations of fraud and he had every intention of returning.
10. The Senior District judge did not believe the appellants' evidence that they left Hong Kong intending soon to return and that they knew nothing of the allegations of fraud. He was satisfied that by the time she left, Mrs Raichandani was aware that the company was involved in financial irregularities and, in the light of the facts that their household goods were shipped to India and that they have never returned to Hong Kong in the intervening 10 years, it was highly unlikely that there was an intention to leave temporarily for a "cooling off" period. It had not been established that their subsequent travels around the world had been made using false passports. But the Senior District Judge was satisfied that their extensive and frequent travelling, without ever returning to Hong Kong, resulted in the inevitable conclusion that there was in fact no intention to do so. He was also satisfied that the frequency and extent of the appellants' travel was a factor significantly contributing to any delay in the case. He rejected Mr Raichandani's evidence that when he left Hong Kong he was not aware of the allegations of fraud. His evidence that he had intended to return and his explanations for not in fact doing so were incompatible with the fact that his departure from Hong Kong was so sudden and that the company was closed on 15 December 1998, three days after his wife had left Hong Kong.
11. The Senior District Judge was satisfied that, when they left Hong Kong, the appellants were fully aware of the financial difficulties of the company. Their involvement with the company was such that they would have known and understood the importance of documentary evidence needed to deal with financial irregularities. They chose to leave Hong Kong without securing relevant documentary evidence. If documents are not now available, the fault lies with them.
12. Within the ensuing criminal investigation, Mr Raichandani was suspected of the offences as early as January 1999; and Mrs Raichandani was suspected by September 1999. Meanwhile, Mr Leung was charged with conspiracy to defraud and was convicted on 8 January 2002.
13. The appellants were arrested in London on 4 October 2006. On 23 November 2006, Hong Kong made a formal request for their extradition. The hearing before the Senior District Judge began in December 2007 after a number of adjournments.
14. It is the appellants' case that the passage of time between 1998 and 2007 would make it unjust or oppressive to extradite them. They say that the passage of time since April 2000 at least, while they have been living openly in London, has been the fault or responsibility of Hong Kong in that (a) Hong Kong had not succeeded in investigating and preparing a case against them until 2006; and (b) Hong Kong made no sufficient effort to find them. They were living openly, and it would not have been difficult to trace them, and, since they were living openly, they were not in flight from justice.
15. The Senior District Judge held that Hong Kong made enquiries to try to trace the appellants throughout 2003 in London, New Delhi and Washington. The inquiries continued throughout 2004 and 2005 and until October 2006 when both appellants were arrested in London. The Chronology of Events of their investigations prepared for these proceedings, which has 68 entries between December 1998 and November 2006, shows that most of the inquiries were addressed to Interpol who responded with largely negative information. There was an unconfirmed report of January 2003 that the appellants might be living in London; and a report of 2 April 2003 providing a UK address which had been made known to the Hong Kong Police and a request to Interpol to conduct discreet inquiries to ascertain if the appellants in fact lived there. A voters' register appeared to confirm that they did; but no direct contact was made at the address in the absence of an official request for extradition. Over a year later, in July 2004 the Voters' Register did not show them at this address. As we have said, credit search information produced in this court by the appellants appears to show that they had five different addresses in London. Hong Kong continued investigations through Interpol to try to find the appellants in India and Washington. The schedule gives the impression that Hong Kong's investigations through Interpol were not conducted with keen urgency; and Miss Malcolm QC for Hong Kong accepted that vigorous, but fairly routine, investigations in London would probably have located the appellants, assuming they were there. On the other hand, there was a degree of hindsight in this. It is clear that, whatever might have been, Hong Kong did not in fact know where the appellants were until the latter part of 2006. They did not in fact know that they were in London for all or most of the time since April 2000.
16. As to whether the prosecution investigation and preparation was not sufficiently complete for the appellants to be charged before 2006, the Senior District Judge was satisfied that the prosecution could have been pursued before 2005, as it had been for Mr Leung, but for the fact that the appellants could not be traced. He was satisfied that the primary cause of the delay was the appellants' hasty departure from Hong Kong and their frequent movements through many countries. He noted that the household goods were not despatched to India in the appellants' names and that inquiries of the address to which they were despatched revealed no information as to their whereabouts.
17. The Senior District Judge considered whether the delay would result in injustice. The defence at any trial would be that the appellants knew nothing of any fraud and did not participate in it. Counsel then acting for the appellants had drawn attention to documents indicating that in certain instances payments had been made, which supported an argument that some transactions at least were not fraudulent. Miss Malcolm told us that in some instances where there is evidence of payment, the transactions in question are not the subject of charges, in others, the 'payments' appear to be made by drawing the trade accounts or credit line, or against a later bill of lading. However that may be, counsel for the appellants had acknowledged that there was a prima facie case.
18. The defence would also say that a number of important documents were missing. Mrs Raichandani had been unable to trace some of the company's former customers. The Senior District Judge said that the names and addresses of the customers to whom the goods were said to have been shipped were available from documents which were disclosed. Provided these names and addresses were not fictitious, he would not expect a delay of nine years to make tracing these witnesses impossible. It was further said that there would be injustice from the absence of correspondence and other documents surrounding the transactions. The Senior District Judge said of this that the appellants left Hong Kong at very short notice doing nothing to safeguard the financial documentation of the company, even though they knew of the financial irregularities alleged. They did nothing until 2006 to preserve documents. If documents were no longer available, the fault lay with them. This was not a case where the evidence was solely based on eye witness evidence where memories fade. The Senior District Judge was satisfied that such delay as had occurred did not make it unjust to return the defendants for trial.
19. It was submitted that it would now be oppressive for the appellants to be returned. The two children, aged 17 and 20, were in further education, lived at home with the appellants and were financially dependent upon them. Unusually both parents would be required to leave their children. That would be oppressive both to them and their parents. The Senior District Judge acknowledged that the extradition of the appellants might cause distress and hardship; but he did not regard the circumstances as amounting to oppression. No separate human rights issues had been raised.

The Law

20. As is well known, the leading case on whether extradition would be unjust or oppressive by reason of the passage of time is the House of Lords decision in Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, where Lord Diplock said at p.782:

" "Unjust" I regard as directed primarily to the risk of prejudice to the accused in the conduct of the trial itself, "oppressive" as directed to hardship to the accused, resulting in changes to his circumstances which have occurred during the period to be taken into consideration; but there is room for overlapping, and between them they would cover all cases where to return him would not be fair."

Mr Lawson emphasised Lord Diplock's use of the phrase "risk of prejudice". This passage in Lord Diplock's opinion is immediately followed by the following:

"Delay in the commencement or conduct of extradition proceedings which is brought about by the accused himself by fleeing the country, concealing his whereabouts or evading arrest, cannot, in my view, be relied upon as a ground for holding it to be either unjust or oppressive to return him. Any difficulties that he may encounter in the conduct of his defence in consequence of the delay due to such causes are of his own choice and making. Save in the most exceptional circumstances, it would be neither unjust nor oppressive that he should be required to accept them. "

21. No substantial issue arises in this appeal between the parties arising from this passage. But it is necessary to take short note of a difference of judicial opinion between different divisions of this court as to its effect.
22. In Goodyer and Gomes v Government of Trinidad and Tobago [2007] EWHC 2012 (Admin), the court held that deliberate flight was only one element to be put into the balance in assessing whether it would be unjust to return a defendant to a requesting State. The court relied on passages in the judgment of Woolf LJ in Osman (No. 4) [1992] 1 All ER 579 at 587 and of Laws LJ in La Torre v Italy [2007] EWHC 1370 at paragraphs 36-37. In Goodyer there was delay because the requesting State had lost the file for three years, and Sedley LJ said that the respective faults should be treated as merged at the point where it was no longer reasonable for the requesting State not to have located the offender.
23. In the recent decision of Krzyzowski v Poland [2007] EWHC 2754 (Admin), a different division of this Court (Longmore LJ and Mitting J) considered that the conclusion in Goodyer was contrary to the speech of Lord Diplock, with whom the majority of the House of Lords had agreed, in Kakis. Longmore LJ held at paragraph 19 that deliberate flight concluded the matter unless it could be said that the circumstances of the case were most exceptional. Mitting J at paragraph 28 had no difficulty with the concept that the chain of causation may be attenuated in a case in which the extraditee flees justice and goes into hiding, but his whereabouts subsequently become known to the requesting State. Culpable delay thereafter on the part of the requesting State can be taken into account as happened in Kakis; but where the whereabouts of the extraditee remain unknown to the requesting State, Mitting J did not see how delay on its part could properly be taken into account, save in exceptional circumstances.
24. The Court in Krzyzowski also held that it was for the requesting State to prove beyond reasonable doubt, that is to the criminal standard, that the defendant did deliberately flee the country – Longmore LJ at paragraph 16, Mitting J at paragraph 31.
25. In the present case, it was not suggested that a finding of deliberate flight from justice by the appellants would alone conclude the issue under section 82 of the 2003 Act against them. The Senior District Judge did not decide the case against them on that basis. Rather he considered all the circumstances. Miss Malcolm told us that the case was presented, and the Senior District Judge made his decision, on the basis that the Goodyer approach then represented understood law and practice. The Senior District Judge's findings that the appellants did deliberately leave Hong Kong in flight from justice are not in the main expressed in terms of the criminal standard of proof. As far as we are aware, it was not suggested to him that he should apply that standard. He did, however, reject Mrs Raichandani's reason for leaving Hong Kong as "highly unlikely"; and his finding that the appellants in fact had no intention of returning to Hong Kong as "the inevitable conclusion".
26. We were told that the disagreement between the judgments in Goodyer and Krzyzowski may be the subject of an appeal to the House of Lords. However, the appeal before us was conducted largely on the uncontentious basis that we should consider the appeal on the basis of law upon which the Senior District Judge approached the case, that is as if the approach in Goodyer is correct. It is, with one gloss, more favourable to the appellants to do so; andMiss Malcolm was prepared to proceed in this way, although she had some concern about this court's approach to the standard of proof in the light of Krzyzowski.
27. In these circumstances, we propose pragmatically to address this appeal on the Goodyer approach, since that was the approach of the Senior District Judge; but to assume, without deciding, that Krzyzowski is correct as to the standard of proof for deliberate flight.

Ground of Appeal

28. The composite surviving ground of appeal is that the Senior District Judge ought to have decided the passage of time question differently when assessing both the injustice and oppression arising from nine years or so delay after the offences alleged are said to have been committed.
29. The appellants and their present solicitors have assembled a body of additional documents and some statements to bolster the case which was presented to the Senior District Judge. This was said to be admissible under section 105 of the 2003 Act, notwithstanding the fact that many of the documents bore dates earlier than that of the hearing before the Senior District Judge and no real attempt was made to explain why they were not included in the evidence before him. We deprecated, as courts have so often done, a practice which appears to assume (wrongly) that the court on an appeal such as this will readily entertain additional material of this kind. Mr Lawson QC, however, showed us the more significant parts of this material, acknowledging as he did so, that it did not add to or alter significantly the nature or scope of the material which the Senior District Judge had and took into account. We have taken into account the additional material which we were shown.
30. It is submitted that the Senior District Judge failed to analyse sufficiently the evidence and submissions advanced by and on behalf of the appellants in a complex and unusual case. We were directed to lengthy written submissions by counsel for the appellants before the Senior District Judge. It is said that the Senior District Judge made wrong findings of fact. It was submitted in writing that the Senior District Judge unfairly disbelieved the appellants about the timing of and reasons for their departure from Hong Kong, drawing inferences which were not open to him on the available evidence. It is submitted that the Senior District Judge failed adequately to consider the extent of and responsibility for the delay by the Hong Kong authorities in locating and charging the appellants, who were living openly in London from April 2000.
31. Mr Lawson was constrained to acknowledge difficulties in any submission that the Senior District Judge was wrong to find, as in substance he did, that the appellants left Hong Kong in December 1998 precipitately in flight from and in fear of criminal processes. The Senior District Judge saw the appellants, heard their evidence and disbelieved them. This court has not heard their evidence; and Mr Lawson accepts that the additional material does not significantly change or add to the nature or scope of the evidence before the Senior District Judge. Mr Lawson also rightly disavowed orally a submission made in writing to the effect that the Senior District Judge's conclusion was circular, because it wrongly assumed the very matter for which the appellants have yet to be tried, that is that they knew of and participated in the fraud. Of course this has yet to be proved. But it is accepted that Hong Kong have presented a prima facie case; and Mr Lawson accepted that the proper question was whether it was established that the appellants left in flight from justice in circumstances that there is a prima facie case that they were complicit in the fraud.
32. In our judgment, the Senior District Judge's finding that they left Hong Kong precipitately in flight from, and fear of criminal process is not open to challenge. In so far as there is a question whether he applied the criminal standard of proof (on an assumption that he should have), we are sure that the evidence which we have summarised sustained this finding to that standard. The evidence was, we think, in this respect overwhelming and led to an "inevitable conclusion" in this respect. In so far as the evidence of their involvement in the fraud is inferential, it is for present purposes an overwhelming inference.
33. We further consider that the evidence justified a sure conclusion that the appellants were concealing their whereabouts or evading arrest from the time they left Hong Kong in December 1998 to the time when they arrived in the United Kingdom in about April 2000. Mr Lawson did not submit otherwise, concentrating as he did on the period after they arrived in the United Kingdom.
34. As to the risk of injustice, it was submitted on behalf of the appellants as follows:

a) the delay, at least since April 2000, has been the responsibility of Hong Kong. The appellants have lived openly in London. The Hong Kong authorities made insufficient effort to find them, and in fact came upon their address in April 2003. Hong Kong was not ready to prosecute them until 2006 – an unacceptable delay.

b) as a result of the delay, there is obvious prejudice because the appellants will have to defend a charge of fraud where the issue will depend on recollection of events nine or more years ago. They will be prejudiced because many of the company's documents are no longer available and a number of potential witnesses from within the company or who worked for organisations which traded with it can no longer be traced, or they can no longer themselves produce documents relating to their transactions with the company. The company's lost documents include internal company records and correspondence with customers and manufacturers with whom the company did business. The appellants will be prejudiced for want of material needed to establish that some at least of the allegedly fraudulent transactions were in fact genuine. These evidential problems are to be seen in the context of the prosecution case which relies on inference to seek to establish that the appellants knew of the fraud and were complicit in it. The evidence available from employees of the company is limited to three former employees who provide no specific evidence indicating that the appellants were complicit in fraud. The respondents do not have an overwhelming case, and the court must examine the appellants' ability to defend themselves and consider whether the defence will be unfairly prejudiced.

35. As to the risk of oppression, it is submitted that there will be great hardship if the family is disrupted by the extradition of both parents when their young, but adult, children are both in full time education. Nine years is a very long time to be living openly before facing extradition and it will have engendered a false sense of security. There is a danger, as Henry LJ said in Ex parte Patel (1995) 7 Admin LR 56 at 72, that those who have spent a life time in the law become inured to delay.
36. We have held that the Senior District Judge was surely entitled to find that the appellants left Hong Kong in December 1998 in precipitate flight from and fear of criminal process; and that they were concealing their whereabouts or evading arrest up to the time when they arrived in London in April 2000. Thereafter, they were living openly in the sense that they were not attempting to conceal their identities. But they appear to have had five different addresses in London and, importantly, they did not at any time return to Hong Kong. They were not actively hiding, but they were, we think, throughout the period evading arrest, albeit in a fairly passive way. An argument in these circumstances based on risk of prejudice in the conduct of the trial is difficult in the light of Lord Diplock's observations in Kakis, adopting the Goodyer approach. The argument as to the responsibility for delay gains some, but not much, force from the conduct of the Hong Kong authorities. The Interpol investigations on the face of it were pedestrian and in total covered some five or six years; and there was a lead in London in April 2003 which later went cold. There appears to be some force in the suggestion that Hong Kong were not fully ready to prosecute the case in the earlier years. But they did successfully mount a prosecution against Mr Leung between January 1999 and early 2002, and we are confident that the appellants would have been prosecuted within that kind of time scale, if they have been there to be prosecuted. If more vigorous searching in London would have located the appellants earlier, that is set against the clear facts that the appellants had fled and that the Hong Kong authorities did not in fact know where they were until 2006. In these circumstances, by far the larger part of any responsibility for the delay lies with the appellants, and the Senior District Judge was, in our judgment, in substance entitled to hold as he did in this respect.
37. Any risk of prejudice from lack of documents or witnesses is overlain by the appellants' larger responsibility for the delay. In addition, however, risk of prejudice for these reasons is intrinsically unpersuasive in this case for two reasons. First, the appellants left Hong Kong precipitately knowing at the very least that the company was in financial difficulties and they cannot properly complain if they did so without securing the documents and witnesses which might be relevant to claims or charges which might arise. It is not immediately obvious why the company's documents may not now be available when the Hong Kong Police were investigating the company very soon after the appellants left. Second, we understand, and Mr Lawson confirmed, that the appellants' main defence will be that they did not know that fraud had been committed. Although submissions were made to the Senior District Judge to demonstrate the possibility of chipping round the edges to show that some individual bills of lading may have been genuine, we do not understand that the fact of the main body of the alleged fraud is really open to challenge. Evidence from customers or shippers does not appear to be central to a defence of lack of knowledge. And, although no doubt reference to individual documents may help, the main issue will be the appellants' knowledge or lack of it: that is, the state of their minds.
38. For these reasons, in our judgment, the Senior District Judge was fully entitled to decide the issue of risk of prejudice in the conduct of the trial against the appellants, and his decision is not amenable to appeal.
39. As to oppression in the form of hardship resulting from the appellants' change of circumstances, there will of course be hardship from the disruption and dislocation of the family, not least for the two children. Without underestimating the individual human effect of this, the children, though still dependent, are for practical purposes grown up and no doubt better able to manage for themselves, if they have to, than they would have been at younger ages. But the main point is that, given that this is an extradition case, there are no striking or unusual features of this case to make it disproportionate to extradite the appellants to face their trial – see Jaso v Central Criminal Court No. 2 Madrid [2007] EWHC 2983 (Admin). The fact that both parents may be separated from near grown-up children does not make it so. In our view, the Senior District Judge was fully entitled to hold that any distress and hardship did not amount to oppression.
40. For these reasons, we dismiss this appeal.