Re Chuen Sau-Kam
| Date | 29 August 1989 |
| Court | High Court (Hong Kong) |
(Mayo J)
Extradition Procedure and evidence Importance of compliance with technical and procedural requirements of extradition treaty Time-limits Court entitled to look to substance rather than strict formality Evidence Prima facie case Photographic evidence United Kingdom-United States Extradition Treaty, 1972 The law of Hong Kong
Summary: The facts:The applicant was apprehended in Hong Kong, pursuant to an extradition request by the United States authorities for alleged drug-related offences. She applied for a writ of habeas corpus, claiming that there had been a failure to comply with the requirements of the United Kingdom-United States Extradition Treaty, 1972. She maintained that the 60-day time-limit imposed upon the lapse of time between the date of arrest and the date of the request for extradition had not been adhered to as required under the Extradition Act 1870. The applicant also contended that the magistrate had been wrong in admitting for the purpose of identification the presentation of a single photograph bearing her name to the identifying person.
Held:The application was refused.
(1) It was necessary to ensure meticulous compliance with the procedural and technical requirements for extradition. Nevertheless, in ascertaining whether the procedure had been correctly followed, it was necessary to look to the substance of what was actually done, rather than to strict formalities. In the present action there had not been any failure to comply with the time-limits (pp. 3226).
(2) The photographic evidence had not played a significant part in the proceedings. The applicant was well known to individuals involved in the proceedings in the United States and, even without the use of the photograph, there would still have been sufficient evidence to establish a prima facie case for her extradition to the United States (p. 328).
The following is the text of the judgment of the Court:
The applicant is seeking an Order that a writ of habeas corpus should issue.
By a diplomatic note issued in January 1989 the American consul-general requested the arrest of the applicant. The request was made pursuant to the provisions of the Extradition Treaty between the United States of America and the United Kingdom of 8th June 1982. [sic] The treaty was extended to Hong Kong by virtue of the United States of America (Extradition Order) 1976.
The applicant appears to have been resident in Taiwan. However she arrived in Hong Kong on 19th January 1989. On her arrival in Hong Kong she was arrested in connection with alleged bribery offences. I do not need to comment upon these charges as they were not proceeded with.
While the applicant was still in the custody of the Independent Commission Against Corruption, a provisional warrant of arrest was issued by Mr. Burrell, a magistrate. This was issued under the Extradition Act 1870. It was issued as a result of Chief Inspector Blythe of the Royal Hong Kong Police Force producing the diplomatic note I have referred to and swearing the necessary information.
It was alleged that in March and April 1986 the applicant and another person had arranged for the delivery of 33 kilograms of heroin from Hong Kong to New York.
The grounds of the application are as follows:
1. The learned trial magistrate erred in refusing an application to set the applicant at liberty pursuant to Article VIII(2) of the Extradition Treaty between U.K. and U.S.A. in that:
(a) the learned magistrate was wrong in omitting and/or refusing to make a finding of fact, viz., whether there was a receipt of the request within 60 days after the arrest of the applicant under a provisional warrant;
(b) the learned magistrate was wrong in refusing to determine the point, viz., by commenting to the applicant's counsel if you are correct (in saying there is no receipt of the request within 60 days), how does that effect this proceedings? This is not a habeas corpus application.
2. The learned magistrate erred in refusing an application to set the applicant free pursuant to s. 8(2) of the Extradition Act 1870 in that:
(a) the learned Magistrate wrongly ruled that when a Court remanded (the applicant) to a date, it satisfied Mr. Burrell's (the Magistrate who issued the provisional warrant) duty to fix a date (under s. 8(2) of Extradition Act 1870).
3. The learned magistrate erred in ruling that the evidence of the identification of the applicant was admissible when the said evidence was to the effect that only one photograph bearing the picture and name of the applicant was shown to various persons for die purpose of an identification by photograph.
There was an additional ground that the certificate of 13th March was a nullity by virtue of the failure of the Attorney General of the United States of America to ensure the Seal of the Department of Justice was affixed to the document with his name duly attested thereon. This ground was not proceeded with as it transpired at the hearing that the necessary formalities had in fact been complied with.
It may perhaps be helpful for me to set out what I understand to be the correct framework for applications of this nature.
I accept the validity of Mr. Thomas' contention on behalf of the applicant that it is essential that all technical requirements are rigidly adhered to. His authority for this was Re EpinosaUNK [1986] Crim LR 684.
I also accept that while the Extradition Act 1870 to 1935 lays down a code for extradition the relevant treaty is paramount. I do not think that Mr. Cahill for the Crown contested this.
What I will now consider is whether the requirements of the Act and the treaty have been strictly complied with.
Mr. Thomas submitted that they had not. I will first consider die time limit point.
Safeguards against unduly lengthy detention are contained in both the Act and the treaty.
Section 8 of the Act provides:
8. A warrant for die apprehension of a fugitive criminal, whether accused or convicted of crime, who is in or suspected of being in the United Kingdom, may be issued-
(1) By a police...
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