19.
Subsequently Mr. Osman made
an affirmation dated 29th October 1990
bringing this matter to the attention of the Divisional Court for the
substantive hearing of the 4th Habeas Corpus Application.
A copy of
20.
this affirmation is appended hereto as Appendix F.
Leading counsel for Mr. Osman submitted that the missing documents, as
demonstrated by, in particular, paragraphs 37-47 of the said
affirmation, are highly relevant to Mr. Osman's defence in Hong Kong and
that it would be unfair to return him to Hong Kong when such a large
quantity of relevant documents are missing.
21.
The Divisional Court, however, declined to act on such submissions
holding that: -
1)
Mr. Osman had only shown that those documents may be relevant to
his defence but not that they were in fact relevant; and
2)
Mr. Osman had not shown that such documents will not eventually be
found by Bank Bumiputra Malaysia Berhad ("BBMB"), the Malaysian
bank which previously had possession of the documents.
1
A copy
of the relevant portion of the Court's judgment is appended
hereto as Appendix G.
22.
By a letter dated 5th February 1991, BBMB confirmed that it had made
extensive searches for the missing documents but had been unable to
locate them. BBMB further confirmed that it did not think the documents
could ever be found and it considered the documents to be "lost/missing/
destroyed". A copy of this letter is appended hereto as Appendix H.