Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Re Suthipong Smittachartch And Anothes

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date12 October 1992
Year1992
Judgement NumberHCMP1119/1992
Subject MatterMiscellaneous Proceedings
CourtHigh Court (Hong Kong)
HCMP001119/1992 RE SUTHIPONG SMITTACHARTCH AND ANOTHES

HCMP001119/1992

Extradition - Bill of Rights - no power for Hong Kong Magistrate to order that deponents who are overseas be brought to Hong Kong to be cross-examined.

IN THE SUPREME COURT OF HONG KONG

MISCELLANEOUS PROCEEDINGS NO. 1119 OF 1992

----------------------

IN THE MATTER of an application for leave to apply for Judicial Review by SUTHIPONG SMITTACHARTCH, Lai Chi Kok Reception Centre, Businessman

-------------------------

Coram: Hon. Penlington, J.A., in Court (sitting as an additional High Court Judge)

Date of hearing: 21 and 22 September 1992

Date of delivery of judgment: 12 October 1992

----------------------

JUDGMENT

----------------------

1. This is an application for judicial review brought pursuant to leave granted on the 23rd April 1992 by Liu, J., under Order 53 rule 3(10)(a) of the Rules of the Supreme Court.

2. At the hearing of this application Mr. Michael Darwyne, for the applicant (who was not counsel below), sought an adjournment. He informed me that the decision of Kaplan, J, In re Sanguandikul MP 802 and 803 of 1992 was relevant to this application as it involved extradition and the Hong Kong Bill of Rights ("the Bill of Rights") and the decision was to be considered by the Court of Appeal on the 15th of November. The application was opposed by Mr. Andrew Bruce, Senior Assistant Crown Prosecutor, for the respondents, who said the decision was solely concerned with questions of the prosecutor's duty to disclose material and its relevance to extradition proceedings.

3. Having read the decision in Sanguandikul I decided that it was, at best, of marginal relevance to this application and refused the adjournment.

4. The applicant seeks a declaration that a decision of Mr. Peter Line, Permanent Magistrate, Eastern Magistracy, in Proceedings No. 1573 of 1991 dated the 1st April 1992 in which he refused an application for an order that three named deponents in extradition proceedings brought at the request of the Government of the United States of America ("the United States") be produced in Hong Kong to be cross-examined by the applicant was manifestly unreasonable and contrary to law. The applicant seeks certiorari to bring up and quash Mr. Line's decision or alternatively that the proceedings be stayed in order that evidence be taken from the deponents upon commission in the United States, again on the basis that Mr. Line's decision to refuse such an order was also unreasonable and contrary to law. The applicant also seeks an order for mandamas that Mr. Line be ordered to require the witnesses to attend or again alternatively that the proceedings be stayed in order that evidence be taken upon commission from these witnesses in the United States.

Background

5. The United States Government has requested the extradition of the applicant on charges relating to trafficking and conspiracy to traffic in dangerous drugs allegedly committed between 1985 and 1991 with three other persons who are now in custody in the United States. These are Ciro W. Mancuso, James Griffis and Ulf Griggolet ("the witnesses"). The applicant was arrested on the 19th November 1991 on a provisional warrant issued by a magistrate in Hong Kong at the request of the 1st respondent. He was brought before a magistrate on the 20th November and remanded to the 15th January 1992 pending receipt of necessary documents from the United States Government. On the 14th January 1992 an order to proceed signed by His Excellency the Governor was filed and on the 17th January the applicant was brought before a magistrate when the order to proceed and a copy bundle of the extradition documents, including affidavits sworn in the United States by the witnesses, were also filed. On the 29th February 1992 the applicant was 2nd respondent at the request of the 1st respondent when evidence was given by the arresting officer, who was cross-examined on behalf of the applicant. Subsequently argument was addressed to the brought before the 2nd respondent in which the applicant sought an order that the witnesses be brought before the court to give oral evidence and be subject to cross-examination. In the alternative an order was sought that proceedings be stayed pending an application that the witnesses be further examined upon commission, pursuant to s. 77E of the Evidence Ordinance, Cap. 8.

6. This application was refused and the 2nd respondent has given his reasons for that refusal in writing.

The case for the applicant

7. Mr. Darwyne acknowledged that he faced difficulty in respect of the first part of the application, that the 2nd respondent should have made an order requiring that the witnesses attend in Hong Kong to be cross-examined on behalf of the applicant. He submitted however that, despite a long line of authorities to the contrary, the passage of the Bill of Rights required that in appropriate cases an order should be made that witnesses in extradition proceedings be brought before the court to be cross-examined as to their depositions. Here he submits the three deponents are all clearly accomplices and in the case of Mancuso and Griffis each has been convicted of very serious offences and are awaiting sentence. Clearly each has much to gain by giving evidence implicating other persons if this will result in a lighter sentence.

8. So far as the second limb of the application is concerned, that there should be a stay of proceedings to enable an application to be made for evidence to be taken in the United States on commission, he relies on the recent decision of Sears, J., in Re Davies Yu Yok Wen [1991) 1 HKLR 7, who held that such an application could be made in extradition proceedings.

9. Mr. Darwyne argued that while the weight of authority was against him in relation to the question of a witness being brought from overseas to be cross-examined in extradition proceedings and it may not be right to make such an order in every case it should be done here. The evidence tended was that of accomplices only and clearly should be looked on with suspicion for that reason.

10. The relevant law relating to the extradition of fugitives to the United States from Hong Kong is the Extradition Act 1989, see In re Eng Sui Hang, Johnny [1991] 2 HKLR 502, and the treaty between the United States and the Government of Great Britain which has been extended to Hong Kong vide Order-in-Council No. 2144 of 1976. Schedule 1 to the Extradition Act 1989 ("the Schedule") provides, inter alia, as follows:

"6-(1) When a fugitive criminal is brought before the metropolitan magistrate, the metropolitan magistrate shall hear the case in the same manner and have the same jurisdiction and powers as near as may be as if the prisoner were brought before him charged with an indictable offence committed in England or Wales."

11. It is not in dispute that in the context of Hong Kong a metropolitan magistrate's powers are exercised by a permanent magistrate such as the 2nd respondent. It is the cornerstone of Mr. Darwyne's argument that, on the basis of that clause, a person who is brought before a magistrate on a request for extradition should be given the same rights as a person who is brought before him for committal to the High Court for trial. Section 82(2) of the Magistrates ordinance, Cap. 227, would then apply and this section provides that:

"82. (2) The accused or his counsel shall be...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT