Levy (alias Dearman) v Attorney-General
| Court | Court of Appeal (Hong Kong) |
| Date | 25 March 1987 |
(Roberts CJ; Huggins V-P and Fuad J A)
Extradition Double criminality test United States requesting extradition of applicant charged with the offence of continuing criminal enterprise Whether equivalent offence in Hong Kong Whether double criminality test to be abandoned in favour of conduct test Extradition Acts 18701935 (UK) Extradition (Hong Kong) Ordinance United States of America (Extradition) Order 1976 The law of Hong Kong
Summary: The facts:The United States requested the extradition of the applicant who was to be tried in the United States for the offence of continuing criminal enterprise. In extradition proceedings the magistrate made an order committing the applicant to prison to await surrender to the United States. An application to quash the decision was dismissed and the applicant appealed. His main argument was that the magistrate had failed to apply the double criminality test, whereby it had to be shown that the offence of continuing criminal enterprise had a substantial equivalent offence under the law of Hong Kong.
Held:The appeal was dismissed.
(1) It was no longer necessary for the magistrate to decide whether the offence under the law of the requesting State was substantially similar to an offence under the law of Hong Kong. The question was whether the conduct of the applicant would, if committed in Hong Kong, constitute a crime listed in the Schedule to the Extradition Act 1870. In this case the admissible evidence put before the magistrate was sufficient to establish a prima facie case of the offences described in the Governor's order (pp. 41415).
(2) Under this new test it was not necessary to decide whether there was a prima facie case under the law of the requesting State, but whether the evidence placed before the magistrate would justify committal for trial if the conduct alleged had been committed in Hong Kong (p. 414).
(3) Evidence of foreign law defining the offence for which extradition was sought was irrelevant, except as provided in the particular extradition treaty. In this case it would not have been proper for the magistrate to receive evidence as to what constituted continuing criminal enterprise (p. 415).
The text of the judgment of the Court, delivered by Roberts CJ commences on the opposite page.
This is an appeal from an order of Mortimer, J. dated 31st December 1986, whereby he dismissed the application of the applicant for an order at certiorari to quash an order made by a magistrate on 15th October 1986, under the Extradition Acts 18701935 and the Extradition (Hong Kong) Ordinance (Cap. 236).
By his order of 15th October 1986, the magistrate had ordered that the applicant be committed to prison to await surrender to the U.S.A. for trial on offences disclosed by such evidence as was put before him.
At the conclusion of the hearing of this appeal on 6th March 1987, we dismissed the appeal and now give our reasons.
It is not necessary for us, in view of the comprehensive and compelling judgment of Mortimer, J. with which we fully agree, to do more than...
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