Re Chong Bing Keung (No 2)
| Jurisdiction | Hong Kong |
| Date | 23 February 2000 |
| Court | Court of Appeal (Hong Kong) |
(Godfrey V-P; Rogers and Ribeiro JJA)
Treaties Extradition treaty Hong Kong United States of America Agreement for the Surrender of Fugitive Offenders, 1996 Fugitive Offenders Ordinance Fugitive Offenders (United States of America) Order Ordinance applying between Hong Kong Special Administrative Region (HKSAR) and United States subject to terms of Agreement Order incorporating Agreement as part of municipal law of HKSAR Validity of Agreement Whether justiciable in municipal courts of HKSAR Relevance of foreign law The law of the Hong Kong Special Administrative Region
Summary: The facts:The Hong KongUnited States of America Agreement for the Surrender of Fugitive Offenders (the Agreement) was signed on 20 December 1996.2 The Fugitive Offenders Ordinance (the Ordinance), which laid down the jurisdictional and procedural rules governing extradition to and from the Hong Kong Special Administrative Region (HKSAR), came into force on 25 April 1997. By virtue of the Fugitive Offenders (United States of America) Order (the Order), promulgated on 21 January 1998, the Ordinance applied between the HKSAR and the United States subject to the terms of the Agreement, which thus became incorporated as part of the municipal law of the HKSAR.3
In response to a request by the United States of America to surrender the appellant, the HKSAR commenced extradition proceedings pursuant to the Fugitive Offenders Ordinance. The appellant was committed to custody to await the Chief Executive's decision on surrender. Following the dismissal of the appellant's first application for habeas corpus, a United States District Court rendered the John Cheung judgment in which it dismissed an extradition application by the HKSAR on the ground that a treaty with the Government of the HKSAR did not confer the requisite jurisdiction.4 It found that the Government of the HKSAR, as the government of a region, did not fulfil the requirement of a United States statute5 that extradition treaties be concluded between the United States and a foreign government. On the basis of that judgment the appellant made a second application for habeas corpus which was also dismissed. He appealed.
Held:The appeal was dismissed.
(1) The municipal courts of Hong Kong were not competent to adjudicate upon treaty obligations on the plane of international law. Article 19 of the Basic Law of the HKSAR maintained this constitutional position which had long been taken by English courts and which had been adopted by Hong Kong as part of the common law. As such the Court could not rule that the international treaty constituted by the Agreement had effectively been abrogated by the United States as a result of a United States statute (pp. 61213).
(2) Conclusive evidence of the status of an extradition treaty was to be found in the Order promulgated by the Chief Executive under Section 3 of the Ordinance. The validity of the Agreement was thus not justiciable in Hong Kong municipal courts (pp. 61415).
(3) The scheme of the Ordinance precluded attempts to challenge the validity of extradition treaties in the courts by the introduction of evidence of foreign law. This was both constitutionally essential and a matter of practical common sense. That the Chief Executive bad the power to disapply the Ordinance or to refuse to surrender the person in question provided a safeguard enabling the Executive to respond to material developments in foreign relations (pp. 61518).
Per Godfrey V-P (concurring): (1) It was not within the jurisdiction of a municipal court of the HKSAR to declare, in effect, that the Government of the United States was not bound by an international treaty obligation into which it had purported to enter (p. 618).
(2) It was for the Executive to decide whether a treaty obligation existed and to act accordingly (pp. 61819).
The following is the text of the judgments delivered in the Court:
On 22 July 1998, pursuant to a request for the surrender of the appellant received by the Hong Kong Special Administrative Region (HKSAR) from the United States of America (USA), the Chief Executive issued an authority to proceed under Pt.II of die Fugitive Offenders Ordinance (Cap.503) (the Ordinance). The authority to proceed identified the offences for which the appellant was wanted for prosecution in the United States as conspiracy to murder, conspiracy to commit offences against the law relating to dangerous drugs, arson and criminal intimidation respectively (all these being offences listed in Sched.l to the Ordinance).
The next day, a warrant for the appellant's arrest was issued by a magistrate pursuant to s.7(1)(a) of the Ordinance and when, on 25 July 1998, the appellant entered Hong Kong from Taiwan, he was arrested at the airport.
After a hearing, the Magistrate made an Order on 2 February 1999 under s.l0(6)(b) of the Ordinance committing the appellant to custody in respect of the four offences mentioned above, to await the Chief Executive's decision as to his surrender to the United States in respect of one or more of those offences.
On 13 February 1999, the appellant made his first application for habeas corpus on grounds which are not material to this appeal. Stock J dismissed that application on 24 February 1999 and his appeal from that decision was dismissed by the Court of Appeal on 5 October 1999.
In the meantime, a development had occurred in the United States which formed the basis of the appellant's second application for habeas corpus, leading to the present appeal. That development was the judgment of Judge Dorsey, a Judge of the United States District Court for the District of Connecticut, given on 1 September 1999, dismissing an application by the HKSAR for the extradition of one John Cheung (Cheung) from the United States for trial here. I shall refer to that judgment as the John Cheung judgment.
Judge Dorsey held that certain provisions of a statute of the United States Congress, namely, Title 18, Chapter 209, 3181 and 3184, precluded the extradition of Cheung to the HKSAR since they required treaties for extradition to be concluded only as between the United States and a foreign government which he construed to mean the government of a foreign country (which he apparently equated with the government of a sovereign state). This statutory requirement, Judge Dorsey held, was not satisfied in the case of the HKSAR since the Government of the Region is not a sovereign government but, as he put it, has only a sub-sovereign status (at p.4).
In consequence, Judge Dorsey accepted Cheung's argument which was to the following effect: Because HKSAR is not a foreign country, a treaty with the Government of the HKSAR does not confer jurisdiction to extradite petitioner [ie, Cheung] under the terms of 3184 (at p.3).
On 14 September 1999, the United States Government filed an appeal against the John Cheung judgment and we were informed by Counsel that such appeal is due to be heard on 1 March 2000.
On the basis of the John Cheung judgment, the appellant made his second application for a writ of habeas corpus on 12 October 1999, contending that the Magistrate lacked jurisdiction to make his order of committal. This came on for hearing inter partes on 26 October 1999, once more before Stock J and, on the same day, his application was dismissed. The appellant now appeals from such dismissal.
To appreciate the argument deployed on the appellant's behalf (by Mr Anthony Scrivener QC appearing with Mr Philip Dykes SC and Ms Annie Fung), it is necessary first to consider the provisions of the Ordinance and the Order made thereunder which, on their face, establish the jurisdiction and procedure for extradition between the HKSAR and the USA.
The Hong Kong statutory provisions have always operated only in cases where relevant extradition treaties have been in place. As the recent history of such international agreements has been eventful, it may be helpful to set it out, with particular reference to the treaty involving the USA, as follows.
Prior to 25 April 1997, when the current Ordinance came into force, the statutory basis for extradition between Hong Kong and the United States was a United Kingdom Order in Council. The position, dating back to 1972, is succinctly summarised in the judgment of Deputy Judge Hartmann (as he then was) in Chen Chong Gui v Senior Superintendent of Lai Chi Kok Reception Centre & Another [1997] 3 HKC 210 at p.217, as follows:
On 8 June 1972, a treaty was concluded between the Government of the United Kingdom and the Government of the United States of America for the reciprocal extradition of offenders. On 21 October 1976, the treaty was ratified and by Order in Council of that same year was brought into operation [United States of America (Extradition) Order 1976]. Article 11(a) of the treaty stated that it should apply not only to the United Kingdom and die United States but to those of the United Kingdom's overseas territories in respect of whose international relations it still bore responsibility. Such a territory was Hong Kong and the Order in Council itself (No 2144 of 1976) extended the treaty to this jurisdiction.
A few years after that Order in Council came into force, negotiations commenced between the Governments of the United Kingdom and the People's Republic of China (PRC) concerning the future of Hong Kong, leading to publication of the Sino-British Joint Declaration in 1984 (the Joint Declaration). As Stock J has pointed out, the two sovereign powers specifically agreed in the Joint Declaration that after resumption of sovereignty over Hong Kong by the PRC, the HKSAR would be authorised to deal...
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