You can therefore see that the premise upon which the Divisional Court
based its decision is no longer in fact correct.
We would therefore
draw attention to the following facts material to this issue: -
on the
1) When the documents were sought from BBMB by the Hong Kong
Government by way of a Court Order in Malaysia, it did so
basis of a sworn statement from its legal representative that such
documents were relevant to the extradition proceedings and it was
"essential and crucial in the interest of justice" that such
documents be produced.
2)
In
compliance
with the Court Order, BBMB then produced the
documents which it believed to be relevant. BBMB, at that time,
was only prepared to allow a representative of
of the Hong Kong
Government to inspect the documents and he, alone, was allowed to
determine which of the documents were relevant to the committal
proceedings. Accordingly, the Hong Kong Government alone, and not
Mr. Osman, had had sight of all the documents in question,
including the now missing documents.
3)
As neither Mr. Osman nor his representatives had seen the contents
of the missing documents, the most he could do was demonstrate (as
he did by the said affirmation) that the missing documents may well
be highly relevant to his defence. The Hong Kong Government, which
has read all the documents, did not file any affidavit to rebut Mr.
Osman's evidence in his said affirmation, although it had had ample
opportunity to do so.
4) In our submission, therefore, Mr. Osman has made out a sufficient
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