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collecting evidence in Malaysia. The history of the application was considered by the Court, which eventually dismissed the application on the ground that it was an abuse of process.
It was held that the delay, though disturbing, was deliberately brought about by the applicant himself who had exploited the legal machinery to prevent his return to Hong Kong. In relation to the Bill of Rights, it was held that:
(a) arguments in relation to the Bill of Rights could have been raised in earlier application for habeas corpus;
(b) the passage of the Bill of Rights, which raised the standards of procedure and fairness with regard to trial in Hong Kong, could not make the return of the applicant for trial in Hong Kong unjust or oppressive;
(c) the expert evidence before the Court did not suggest that there could be no question of the applicant being tried in Hong Kong. At best this evidence only showed that it was likely that the courts of Hong Kong would, in view of the Bill of Rights, decide that the applicant should not be subject to trial; and
(d) in any event, the appropriate forum to decide on the Bill of Rights issues would be the Hong Kong court, who would have access to all the material matters which were not available to the London court.
Woolf LJ expressed the view that "it is deeply disturbing that after this period of time, after Mr. Osman has been in custody in prison in this country for far too long, it should still be uncertain whether he is to be returned to Hong Kong."(at p. 28) The court also dismissed a cross-application by the Government of Hong Kong to the effect that all future applications of the applicant should be subject to a special requirement of leave. Instead, it was held that all future applications should be directed to the same bench and would normally be heard within seven days.
Counsel: Anthony Scrivener QC and Johnny Mok (instructed by Eversheds), for the applicant; Clive Nicholls QC and Graham Grant (instructed by Clifford Chance), for the Government of Hong Kong; J. Lewis, (instructed by the Crown Prosecution Service), for the Governor of Brixton Prison.
Evidence Ordinance (cap. 8), section 77E
Attorney General v Lorrain Osman, (1991) HCt, MP 2793 of 1985, Jones J, 28 October 1991
This was an application to set aside an order of Master Betts dated 11 December 1985 in relation to the issue of a letter of request to the High Court of Malaya for the purpose of obtaining evidence in Malaysia to be used in extradition proceedings against the applicant in London. The background to this application is summarized in In the Matter of Lorrain Osman (see p. 16 above). A preliminary issue as to locus standi was raised. It was argued that the Bill of Rights Ordinance gave a person under suspicion locus standi to challenge the making of an order under section 77E of the Evidence Ordinance when criminal proceedings have already been commenced against that person. It was further argued that article 10 of the Bill of Rights included a right of access to a court during the early stages of the criminal process. As the applicant was denied his right to contest the subpoenas prior to the depositions and to participate and cross examine witnesses in their depositions, there was a violation of articles 10 and 11 of the Bill of Rights.
Bill of Rights Bulletin
December 1991