Somchai Liangsiriprasert v United States of America

JurisdictionHong Kong
Date11 October 1989
CourtCourt of Appeal (Hong Kong)
Hong Kong, Court of Appeal.

(Yang CJ; Fuad VP; Hunter JA)

Somchai Liangsiriprasert
and
Government of the United States of America

Jurisdiction — Territorial — Conspiracy — Agreement concluded outside territorial jurisdiction — Continuation of agreement within territory — Acts within territory in furtherance of conspiracy — Acts of innocent agent — Conspiracy aimed at State asserting jurisdiction — Whether sufficient to confer jurisdiction even where no acts take place within the territory of that State — Presumption against extraterritorial effect of legislation — When rebutted — The law of Hong Kong

Summary: The facts:—Mr Liangsiriprasert, a Thai national, was held in Hong Kong pending extradition to the United States on drugs-related charges. He was arrested in Hong Kong after he had been approached in Thailand by an agent of the Drug Enforcement Administration of the United States (‘DEA’). The agent had allegedly attempted to find a co-conspirator with whom to import drugs into the United States. The drugs in question were carried into the United States by another DEA agent, also purporting to be involved in the illegal drugs trade. As part of the agreement, Mr Liangsiriprasert travelled to Hong Kong, where he was arrested.

The request for Mr Liangsiriprasert's extradition was made pursuant to the United Kingdom Extradition Acts which applied in Hong Kong by virtue of the Extradition Treaty concluded between the United Kingdom and the United States in 1972 (‘the Treaty’). The warrant from the United States authorities alleged that he had conspired to import heroin into the United States. It was also claimed that he had imported heroin into the United States and had distributed heroin in Thailand.

Mr Liangsiriprasert submitted that he could not be indicted in Hong Kong and therefore could not be surrendered to the United States authorities. The magistrate held that there was sufficient evidence to establish a prima facie case on all four charges, and therefore to surrender Mr Liangsiriprasert for extradition.

Mr Liangsiriprasert made an unsuccessful application for a writ of habeas corpus. He appealed, claiming that he could not be surrendered to the United States, because the Hong Kong courts lacked jurisdiction on the ground that the acts relevant to the charges against him were performed in Thailand. He maintained that jurisdiction could not be exercised over an alien for a conspiracy to perform an illegal act which was formed abroad, unless acts in furtherance of that conspiracy had been performed in Hong Kong. In addition, he submitted that the relevant Hong Kong legislation, the Dangerous Drugs Ordinance, did not have extraterritorial effect, especially where the act complained of was performed by an alien. He contended that the participation of the DEA agents precluded the mens rea and actus reus of the alleged offences from having been established. He also maintained that surrender to the United States authorities and the exercise of jurisdiction by the United States courts was not permissible on the basis that he had not performed any act in furtherance of the conspiracy in the United States.

Held:—The appeal was dismissed. The Hong Kong courts had jurisdiction.

(1) Courts had jurisdiction to try those charged with a conspiracy formed outside the territorial jurisdiction if any act in furtherance of that conspiracy was performed within the territorial jurisdiction. Jurisdiction was not affected by whether the act was performed by an innocent or a guilty agent, or if none of the conspirators had carried out any such act within the territorial jurisdiction. Nor was jurisdiction affected if none of the conspirators entered the territory until the conspiracy was completed. Conspirators were subject to the jurisdiction even where the object of their conspiracy was not achieved. Mr Liangsiriprasert had come to Hong Kong in furtherance of the conspiracy, and was therefore subject to the jurisdiction of the Hong Kong courts.

The importation of drugs into the United States was an act performed by an individual believed by Mr Liangsiriprasert to be his agent. Therefore, it was as if he himself had carried the drugs. The fact that the importation was actually effected by DEA agents did not render the importation of the drugs legal or permissible (pp. 65–72).

(2) The territorial basis for jurisdiction was increasingly anachronistic. In certain cases, it was more appropriate for jurisdiction to be based on the conspiracy being aimed at, and intended to bring about a breach of the peace in, the State seeking to exercise jurisdiction. This was confirmed by the rules of comity under which, because the conspiracy was not aimed at the country in which it was formulated, that country could not object to the exercise of jurisdiction by another interested State (pp. 72–3).

(3) Effectively all the relevant acts relating to the charges against Mr Liangsiriprasert were performed in Thailand. In assessing whether legislation was to have extraterritorial effect, it was to be noted that traditionally there was a presumption against Hong Kong legislation having such effect, especially where the acts at issue were committed by foreigners abroad. It was also necessary to consider whether the legislation at issue was intra vires and related to matters which were properly the business of the Hong Kong Legislature. Comity would permit the courts of Hong Kong to exercise jurisdiction over acts which, although committed abroad, had harmful effects in Hong Kong. As a result of the potential threat of the drugs trade to the colony, the extraterritorial application of the Hong Kong Dangerous Drugs legislation was in the interests of ‘order and good government’. It was therefore properly the business of the Legislature. The Hong Kong Legislature had intended the Dangerous Drugs legislation to have extraterritorial effect, and had been acting within its powers when it gave effect to that intention (pp. 72–3).

The following is the text of the judgment of the Court of Appeal, delivered by Fuad VP:

This is an appeal from the order of Sears, J. dated 3rd May 1989 whereby he dismissed an application by Somchai Liangsiriprasert (‘the applicant’) for a writ of habeas corpus. At the conclusion of the hearing we dismissed the appeal and now give our reasons.

The applicant is a Thai national whose extradition is sought by the Government of the United States of America. After a two-day hearing, the magistrate (Mr. M.P. Burrell) on 20th January 1989 committed the applicant to prison to await the warrant of the Governor of Hong Kong for his surrender to the USA.

The magistrate exercised jurisdiction under the Extradition Act 1870 of the United Kingdom as amended, and as modified in its application to Hong Kong. By an Order in Council made under the enabling provisions of the Act, the Extradition Acts 1870 to 1935, as amended or extended, were directed to apply, inter alia, to Hong Kong in accordance with the Treaty dated 8th June 1972 entered into between the Governments of the United Kingdom and of the United States of America (‘the Treaty’). This is the United States of America (Extradition) Order 1976, S.I. 1976 No. 2144 which came into operation on 21st January 1977. The text of the Treaty is set out in Schedule 1 to the Order. The Extradition (Hong Kong) Ordinance (Cap. 236), provides by ss. 2 and 3 that the powers etc. given to the Secretary of State and the police magistrate in UK by the Extradition Acts may be exercised, respectively, by the Governor of Hong Kong and by any magistrate.

We mention here that another Thai national, Sutham Chokvanitphong, was committed to prison by the magistrate in the same proceedings to await the Governor's warrant for surrender. He made no application to the High Court in respect of the magistrate's order. For convenience we refer to him as ‘S.C’.

The ‘extradition crimes’ alleged by the Government of the USA against the applicant and S.C. which founded the requisition are fully explained and defined in the affidavit of Catherine E. Palmer, an Assistant US Attorney, which was before the magistrate. The warrants of arrest issued by the United States' District Court on 14th November 1988 for the Eastern District of New York, give the relevant statutory references (to the United States Code) and describe them as follows:

‘Conspiracy to import into the U.S. in excess of 1 kilogram of heroin.

Importation into U.S. of in excess of 1 kilogram of heroin.

Distribution in Bangkok, Thailand of in excess of 1 kilogram of heroin.’

Ms. Palmer also exhibits a copy of the indictment against the applicant and S.C. preferred by the Grand Jury.

Article III, para. (1) of the Treaty provides that ‘extradition shall be granted for an act or omission the facts of which disclose an offence within any of the descriptions listed in the Schedule …’ Item 12 of the Schedule reads: ‘Any offence against the law relating to narcotic drugs, cannabis sativa L, hallucinogenic drugs, cocaine and its derivatives, and other dangerous drugs.’ Article III para. (2) allows extradition for conspiracy to commit an offence listed in the Schedule. Article III(l) permits extradition for other offences if certain conditions are satisfied, and for the purposes of para. (l)(a) and (c), and para. (2), of Article III of die Treaty, Ms. Palmer certifies that the alleged offences are all felonies and each is punishable by imprisonment for a term exceeding one year.

Ms. Palmer also certifies, for the purposes of para. (l)(b) of Article V, that since the indictment alleges offences occurring between 1st and 27th September 1988, prosecution is not barred by the statutory 5-year limitation period. Ms. Palmer's evidence (and, indeed, all the evidence put before the magistrate in the proceedings before him) was not controverted or challenged in any way.

Under the Extradition Acts, the following are included in the list of ‘extradition crimes’ in the First...

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