High Court of Ireland Decisions

1. The Plaintiff's claim is for an Order directing his release pursuant to the terms of Section 50 of the Extradition Act, 1965 (as amended).

2. The Plaintiff was born in Hong Kong in 1960. He went to England in 1982. He came to Ireland on holiday in 1984. In 1985 he worked in Ireland unbeknownst to the Aliens Office. In 1986 he was resident in England. He was accused of the offence of unlawfully wounding one Chie Vien Huynh with intent to cause him grievous bodily harm on the 19th August, 1986 contrary to Section 18 of the Offences Against the Person Act, 1861. He was arrested. He was granted bail. There were no reporting obligations attached thereto. He came to Ireland and in June 1987 met one Elaine Fitzsimons. He returned to England, with her, and stood trial in Knightsbridge Crown Court in London. He avers that he was not guilty of the offence charged and asserted his innocence. On or about 16th September, 1987, during the course of his trial, which began on 14th September, 1987, he had been informed by his Solicitor and Counsel that the trial was going badly and it looked as if he would be convicted and sentenced. He was dismayed. He absconded, accompanied by Elaine Fitzsimons. It appears that on 23rd September, 1987, he was convicted of the offence and sentenced to four years imprisonment.

3. He avers there were a number of co-accused. There were translators of

4. Vietnamese and Malaysian Chinese but no Cantonese interpreter. His dialect of Chinese was Cantonese. He says his English was bad at the time.

5. In 1988 the Plaintiff and Elaine Fitzsimons began living together and married on 21st August 1990. There are three children of the marriage, born respectively 22nd February, 1991, 15th January, 1993 and 17th October, 1994. Over the period 1982-1994 the Plaintiff worked in the restaurant business and in October 1994 he began to operate his own Chinese take-away business.

6. During the period 1991-1995 the Plaintiff had a number of contacts with the Garda Siochana and the Aliens Registration Office.

7. In the year 1990 it appears an enquiry was made by a Constable Richard Greenacre of Bow Street Police Station, London to the Serious Crime Squad, Central Detective Unit, Harcourt Square, Dublin concerning the Plaintiff, but the response of Detective Superintendent Noel Conroy was negative (Counsel for the Plaintiff laid considerable stress on this communication which only came to light during the hearing of the case on 16th October, 1996).

8. On or about 29th March 1994 the Plaintiff met Garda James Diskin who was attached to the Investigations Unit and Aliens Registration Office. A specific enquiry was made of the Plaintiff. '"Are you wanted by any police force ? " to which he answered "No". The query was repeated because of a sense of nervousness and apprehension conveyed to Garda Diskin - but again the answer was in the negative. A similar exchange took place again on 5th May, 1995 to the like effect. The Plaintiff agreed in cross-examination that these were untruthful answers. Garda Diskin also interviewed Elaine Wan (nee Fitzsimons) on 31st March, 1994 who confirmed the Plaintiff's story. It was not put expressly to the Plaintiff or his wife as to whether he was wanted in the United Kingdom. This is not surprising, for I find as a fact that neither the Garda Siochana or the Aliens Registration Office were aware of the fact that the Plaintiff, Kwok Ming Wan was one and the same person as John Wan Kwok Ming or John Wan, sometimes as Eddie Wan - and if they were they did not know he was a person wanted by the police in England.

9. It was not until the 3rd November, 1994 that Police Constable Edwin Morse (of the Metropolitan Police of Charing Cross Police Station in London) who was at a District Court hearing in Dublin on an unrelated matter, recognised the Plaintiff and put in motion a train of events which led to the arrest of the Plaintiff in 1995.

10. The documentary evidence in the case was supplemented by oral evidence from Constable Morse (who produced the letter of 30th October 1990 and a photograph of the Plaintiff), Garda Diskin, Detective Garda Murray and the Plaintiff. The Plaintiff brought to Court an interpreter - but I was well satisfied that the Plaintiff's comprehension of English was quite normal - once or twice a convoluted question from Counsel caused him pause, but when transposed into colloquial speech, posed no problem. His vocabulary was reasonable. His answers were generally to the point and not diffuse. In evidence his criticism of the interpreter at the trial of 1987 was very muted - it did not go as far as the Affidavit evidence. It came to this; that the interpreter in 1987 spoke in very subdued

11. The case involves applying that the provisions of S.50 of the Extradition Act, 1965 which are relevant:

12. There has been a considerable lapse of time since the commission of the offence (over 10 years) and a like lapse of time since the conviction (over 9 years) Dr. Forde, for the Plaintiff, contended that -

13. Mr. Murray, for the Respondent contended that -

14. While it is true that the Plaintiff did not conceal his whereabouts from the Irish authorities, the authorities of the United Kingdom were unaware of his whereabouts until November 1994 when Constable Morse recognised and identified the Plaintiff in Dublin. I find as a fact that

15. In my judgment the instant case is clearly distinguishable from both the decision in Kakis -v- Government of Republic of Cypres [1978] 1 W.L.R. 779 and Union of India -v- Narang [1978] AC 247 on both of which the Plaintiff relied upon. In Desmond Ellis -v- Asst.

16. The decision of Geoghegan J. in Fusco -v- O'Dea (unreported 28th June, 1995) was also advanced in support of the Plaintiff's case. Again the material facts in the instant case are clearly distinguishable from Fasco's case; there the trial judge found as a fact that the authorities in the requesting State had made a decision not to seek extradition in respect of the offences, the subject of the warrant. In the case of the Plaintiff the facts as I find them are that the police in the United Kingdom made an abortive attempt in 1990 to locate the Plaintiff. On 3rd November, 1994 when sighted by Constable Morse the legal

17. In the instant case the Plaintiff, post his absconding in 1987, has married, founded a family (all children of tender years), purchased a home, established a business, which the wife believes she would be unable to run in his absence. All these are circumstances to be borne in mind in judgment. They are not usually in themselves, exceptional circumstances, but come within the ambit of all the circumstances referred to in S.50 (2) (bbb). In the instant case they are in my opinion exceptional circumstances. A man who believed he would be pursued would be unlikely to have acted in his personal and business life as did the Plaintiff. All his children were born before he was recognised in November, 1994. His conduct (save for his reactions in March 1994 and May 1994) was consistent with that of a free man putting down roots.

18. Any difficulties that the Plaintiff has encountered in consequence of delay in these proceedings are of his own and making. It is neither unjust, or invidious that he personally should be required to accept such consequences.

19. However, it would be "oppressive" (imposing hardship in the sense of being unduly harsh) to the Plaintiff resulting from changes in his circumstances that have occurred during the period to be taken into consideration, to extradite him. Accordingly, I direct his release.