TNAG-2553-FCO40-3728-Hong-Kong-Bill-of-Rights-review-of-legislation-1992 — Page 35

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RIGHT TO A FAIR TRIAL IN CRIMINAL PROCEEDINGS (ARTICLES 10 AND 11)

Extradition Act 1989 (UK); United States of America (Extradition) Order 1976; Hong Kong (Legislative Powers) Order 1989; Application of English Law Ordinance (cap. 88)

United States of America v Johnny Eng, CMP No. 1237 of 1990, 9 September 1991, Mr Brazier Esq

The fugitive in this case argued that section 12 of Schedule 1 of the Extradition Act 1989 (UK), which permitted the introduction of affidavit evidence in extradition proceedings, violated the right to a "fair trial" in the "determination of any criminal charge" (article 10) and to the right to examine, or have examined, the witnesses against him" (article 11 (2)(e)).

The Magistrate held that in this case article 10 essentially added little or nothing to the specific guarantees in article 11 (2)(e).5 He expressed doubts as to whether extradition proceedings even concerned a "criminal charge" or "criminal offence" at all, but held that in any event such proceedings did not involve the determination of such a charge, because the purpose of extradition proceedings was not to determine the guilt or innocence of the fugitive.

Counsel: M. Hartmann and M.C. Blanchflower, for the Government of the USA; Gary Alderdice, for the fugitive.

The same Magistrate reiterated these conclusions in CMP 1274 of 1990, 27 September 1991.

Extradition proceedings in UK, relevance of rights under Hong Kong Bill of Rights Ordinance

In the Matter of Lorrain Esme Osman and In the matter of an Application for A Writ of Habeas Corpus Ad Subjiciendum, Queen's Bench Division, High Court of Justice (Divisional Court), London, Woolf LJ and Pill J, 14 November 1991

This was the sixth application for habeas corpus made by the applicant, whose extradition from the U.K. on various conspiracy and corruption charges has been sought by the Government of Hong Kong since 1985. The applicant has been remanded in custody for the whole of that period. In this case the applicant relied on section 11 (3)(b) of the Extradition Act 1989, which enabled the Court to discharge an applicant on an application for habeas corpus if the return of the applicant would be unjust and oppressive by reason of the passage of time. The applicant argued that his right to trial without undue delay under article 11 (2)(c) of the Bill of Rights and his right to fair trial under article 10 of the Bill of Rights had been violated. He relied, inter alia, on the delay to date, the likely delays in the future caused by the delay in extraditing a co-accused from France, a US federal district court order suppressing all evidence collected in the United States, and the delay in

5 It should be noted that this will not always be the case. It is generally accepted in relation to the corresponding provisions in the Covenant that article 10's guarantee of a fair hearing is not exhausted by the specific guarantees in article 11.

Bill of Rights Bulletin

December 1991