12
However, he went further, concluding (at pp. 9-10 of his judgment):
"On this point the Court found, as a matter of principle, that these Articles 3 and 6 have no application to the function of the Court. Further the Court is not concerned with the law of the requesting state (Sinclair and Neilson) or what may happen in a trial there (Levy); it is assumed justice will be administered in accordance with our own law (Arton 1986) and any action that could be taken in this regard should be by the Executive.
In short, the Court finds that whilst Articles 3 and 6 apply to protect this fugitive whilst he is in Hong Kong they cannot have any effect directly or indirectly outside the territory nor can they affect the conduct of the proceedings or any order made by this Court. It is accepted, however, that the nature of the offence and the statutory minimum sentence in the U.S. might be an appropriate matter for the Court to bring to the attention of the Governor, before the Governor considers the fugitives [sic] surrender (if such be the case)."
The Magistrate also stated, that even if a case under the Bill of Rights had been made out, he would have not been able to grant a specially tailored remedy, since the only powers conferred upon him were to commit or discharge the fugitive. He held that he had no jurisdiction to find a case to answer and yet refuse to commit, or to extradite and to order the U.S. not to prosecute on one of the offences or to waive the statutory minimum sentence (at p. 9).
Editors' comment
The suggestion that the Bill of Rights applies to a person only when the person is in Hong Kong (see also the comment of Jones J in Osman, p. 5 above) and that it can have no indirect effect in relation to actions which may occur outside Hong Kong appears to overlook well-established jurisprudence to the contrary under the ICCPR and the European Convention. There are a number of cases decided by the Human Rights Committee under the ICCPR in which individuals outside the territory of the State concerned have been able to claim that actions of the State have infringed guaranteed rights. For an example of the way in which human rights guarantees may prevent a fugitive from being returned to requesting state (in the context of extradition from the U.K. to the U.S.A.), see Soering v 11 U.K., European Court of Human Rights, Judgment of 7 July 1989, Series A, No. 161, EHRR 439.
LIBERTY AND SECURITY OF THE PERSON: RIGHTS AGAINST SELF- INCRIMINATION (ARTICLE 5)
Theft Ordinance (cap. 210), section 33
Duty Free Shoppers HK Ltd v. Wong Kwok Pong et al, Civ App 169 of 1991, HCA No. A6091 of 1991
In this case (the facts of which appear at p. 9 above), the argument was made on an applications for a stay pending appeal from the decisions of Deputy Judge Wong and Jones J that the order to produce to the court in civil proceedings information which may
Bill of Rights Bulletin
December 1991