Law Report: Extradition court cannot request evidence: Regina v Metropolitan Stipendiary Magistrate - Ex parte Lee Queen's Bench Divisional Court (Lord Justice Watkins and Mr Justice Ognall), 4 February 1993 (CORRECTED)

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CORRECTION (PUBLISHED 15 MARCH 1993) APPENDED TO THIS ARTICLE

A court hearing a committal under the Extradition Act 1989 has no right or power to request further material from the state requesting the extradition but is required to proceed on the basis of evidence furnished by the requesting state. In particular, the court has no right or power to ask the state to furnish unused prosecution material at extradition hearings.

The Divisional Court dismissed an application by Wai Kit Lee for a writ of habeas corpus and his renewed application for leave to apply for judicial review of his committal in custody to await extradition to Hong Kong on charges of kidnapping, false imprisonment and blackmail.

The applicant is alleged to have kidnapped the 13th richest man in Hong Kong in April 1990. There was a ransom demand for USdollars 60m, half of which was paid. The victim of the kidnap has not been seen since his abduction. The evidence of two accomplices formed the substance of the prosecution case against the applicant in the extradition proceedings.

Mr R O'Connor, the metropolitan stipendiary magistrate, refused to adjourn the extradition proceedings to enable the applicant to obtain documents relevant to the credibility of the accomplices and to enable expert evidence to be called on the effect on the applicant of the resumption of sovereignty by the People's Republic of China on 1 July 1997.

The applicant argued, on the basis of the prosecution's duty to furnish the defence with all unused material, that where the principal evidence on which the committal was sought was inherently suspect, the magistrate should take into account documents throwing doubt on the accomplices' evidence. He also argued that once he was under Chinese jurisdiction he could be prosecuted for murder, for which the penalty in China was death.

Michael Mansfield QC and James Montgomery (Whitelock & Storr) for the applicant; Kevin de Haan (Macfarlanes) for the Hong Kong government.

MR JUSTICE OGNALL, giving the judgment of the court, said that the conduct of extradition proceedings was entirely the creature of statute. The requesting state must be the sole arbiter of such material as it chose to place before the court in support of its application and in purported compliance with the relevant domestic extradition legislation. It alone decided what material in support of its allegations it placed before the Home Secretary and court under sections 7 and 9 of the Extradition Act 1989.

If it furnished inadequate evidence it took the risk that its request would be refused. It would then be up to the requesting state to determine whether it started fresh proceedings or not.

Neither principles of comity nor the express terms of the Act afforded the court in this country any right, still less any power, to request further material from the requesting state as a condition precedent to committal.

Committal under the Extradition Act was not part of the court's trial process. Section 9(2) provided that the court of committal should have the 'jurisdiction and powers, as nearly as may be' as a magistrates' court acting as examining justices. A defendant charged with offences in this country had no right of access to unused material at the committal stage. The duty on the Crown was to furnish such material pre-trial.

The magistrate in extradition proceedings had the limited function defined in section 9(8)(a). He had to be satisfied 'that the evidence will be sufficient to warrant his trial if the extradition crime had taken place within the jurisdiction of the court'. Those words required the magistrate to examine the evidence before him and not to embark on inquiries as to the nature of any other suggested evidence which might be before him in other circumstances.

Although the duty to disclose unused material was a well settled part of domestic criminal proceedings, extradition was very different. The law of extradition proceeded upon the fundamental assumptions that the requesting state was acting in good faith and that the fugitive would receive a fair trial in the courts of the requesting state. If it were otherwise, one might assume that our government would not bind itself by treaty to such process.

But that was not to say that it was the duty of our courts to inquire into the adequacy or otherwise of the procedural safeguards afforded to a defendant. Our courts had consistently resisted attempts to import the requirements of domestic criminal procedure into extradition proceedings. Provided there had been a compliance with the terms of the Extradition Act, fairness was not a criterion relevant to the function of the committing court. Further, nothing had been placed before the Divisional Court which demonstrated that either accomplice had ever said anything which would tend to erode their credibility. The magistrate's refusal to grant an adjournment was justified.

Turning to the 'China point', the applicant failed to show that the laws of China and its treaty position was relevant or that section 6(4) or any other part of the Act entitled the court to focus not solely on the time that the request was made, but into the future. To do so would drive a coach and horses through the principle of comity and reciprocity which underlay the basis of extradition.

The court was not entitled to look outside the framework of protection undertaken at the time of the request. That would require the court to go outside the clear terms of section 6(4).

The magistrate committed the applicant to await the decision of the Home Secretary. It might be that the 'China point' had a political dimension which deserved the attention of the Home Secretary. But the magistrate was correct to treat it as irrelevant.

CORRECTION

In R v Metropolitan Stipendiary Magistrate, Ex p Lee, the Independent, 3 March, the magistrate was J G Connor.

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