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19319/92
"(a)
(b)
(c)
The
the offences in respect of which his return is ordered;
an offence other than an offence in relation to which an order for his return could not lawfully be made, which is disclosed by the facts in respect of which his return is ordered; or
any other offence being an extradition crime, other than an offence in relation to which it appears to Her Majesty's Principal Secretary of State for the Home Department, an order for his return could not lawfully be made or would not in fact be made, in respect of which Her Majesty's Principal Secretary of State may consent to his being dealt with.
K
applicant submitted to the Divisional Court that the undertaking cannot provide him with adequate specialty protection in view of the undisputed fact that, if he is returned to Hong Kong and convicted, he will serve a sentence which will not have expired on 1 July 1997 when the People's Republic of China takes over Hong Kong. The United Kingdom has no extradition arrangement with China and the Hong Kong Basic Law contains no provision on this point. However, the Divisional Court held that section 6 (4) of the Extradition Act 1989 "cannot and does not contemplate anything more than a specialty protection such as was offered in this case", as "no State can give an undertaking beyond its own sovereign powers, nor can the United Kingdom require a State to give an undertaking to bind a different State". Leave to appeal against this decision was refused by the House of Lords on 25 July 1991.
The next stage of the extradition procedure concerned the Secretary of State's decision of 15 June 1992 to surrender the applicant to the Hong Kong authorities. The applicant had made written representations on 12 June 1992 to the Secretary of State, enclosing, inter alia, his application to the Commission and setting out his submissions why in his view his surrender would be unlawful and in breach of the Convention. In particular he contended that the absence of specialty protection is contrary to the standard imposed by public international law recognised in the practice of European States and safeguarded by Article 5 para. 1 (f) of the Convention which prohibits unlawful extradition. A personal letter was submitted to the Secretary of State on the early afternoon of 15 June 1992 but the Secretary of State decided to surrender the applicant and cancelled a meeting he was to have had with a delegation of Members of Parliament making representations on the applicant's behalf the following day.
The applicant lodged a further habeas corpus application and a judicial review application on the grounds, inter alia,
inter alia, that the Secretary of State had acted pre-emptorily by acting too quickly without reading the applicant's personnal representations or hearing those on his behalf to be made by the delegation of Members of Parliament, particularly in view of the pending application before the Commission. The habeas corpus application apparently concerned the continued refusal of the Hong Kong authorities to make full disclosure of documents upon which some of the allegations against the applicant are made. It also involved the alleged unlawfulness of the Secretary of State's decision.