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Wong Kam Chung v Republic - judgment [2003] KIHC 25; Civil Review 05 of 2002 (31 January 2003)

IN THE HIGH COURT OF KIRIBATI
CIVIL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Civil Review 5 of 2002

Between:

WONG KAM CHUNG
Applicant

And:

THE REPUBLIC
Respondent

For the Applicant: Ms Emma Hibling
For the Respondent: Ms Pole Tebao, A/Director of Public Prosecutions

Date of Hearing: 22 January 2003

JUDGMENT

Applications for certiorari and for habeas corpus.

The applicant, Wong Kam Chung, has been in gaol here for some time. His sentence expired on 22^nd November last year when he was due for release. On 18^th November HE the Beretitenti had authorised proceedings for his extradition to Fiji as requested by the Government of Fiji. Wong was arrested pending the outcome of the extradition application and has been in custody ever since.

He has been charged in Fiji:-

(a) Importation of certain dangerous substances contrary to Section 16, 41(1)(a) and 41(a) of the Dangerous Drugs Act, Chapter 114.

Particulars: Wong Kam Chung together with others between
19^th day of November 1999 and 19^th day of April 2000 at Suva in the Central Division, imported into Fiji a dangerous substance, namely Diacetylmorphine otherwise known as Heroin, weighing approximately 357.1875 kilograms, without lawful authority.

(b) Found in possession of dangerous drugs contrary to Sections 22 and 41(2) of the Dangerous Drugs Act, Chapter 114.

Particulars: Wong Kam Chung together with others between
13^th day of April 2000 and the 19^th day of April 2000 in the Central Division, was found in possession of a quantity of certain dangerous drugs, namely Diacetylmorphine otherwise known as Heroin, weighing approximately net 357.1875 kilograms, without lawful authority.

Pursuant to section 12(1) of the Extradition Act the applicant was brought before a Single Magistrate. The Magistrate gave his decision on 10^th December 2002 committing the applicant in custody to await his extradition. The present applications to the High Court arise from the Magistrate's committal.

Section 12(4):-

Where an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied, after hearing any evidence tendered in support of the request for the extradition of that person or on behalf of that person, that the offence to which the authority relates is an extradition offence and is further satisfied –

(a) where the person is accused of the offence- that the evidence would be sufficient to warrant his trial for that offence it is had been committed within the jurisdiction of the court; ....

In support of the request for extradition a folder of affidavits, sworn (all but one) either in Fiji or in Australia, and other documents was tendered to the Single Magistrate.

The volume of the material is daunting. Perhaps to make it seem less daunting the authorities in Fiji provided, at the beginning of the folder, a Summary of Facts prepared by Sgt Rajas Swamy of the Fiji Police, the Investigating Officer.

The Summary is not in affidavit form. It contains a good deal of hearsay.

Placed before the Summary of Facts in the folder, is a certificate under seal of the Minister for Foreign Affairs and External Trade of the Republic of the Fiji Islands. The first paragraph:-

I, Kaliopate Tavola, Minster for Foreign Affairs and External Trade of the Republic of the Fiji Islands, certify that the documents hereunto annexed are fully authenticated under the seal of the Government of the Republic of the Fiji Islands, and fully accord with the relevant provisions of the Fiji Laws, and

IT IS THEREFORE requested that WONG KAM CHUNG aka WONG KAM CHONG aka PETER LAM aka PETER LIM aka LEE SANG HUAT be extradited to the Republic of the Fiji Islands to answer the charges preferred against him.

I suppose the authentication includes the Summary of Facts. What does "fully authenticated" mean?

Kiribati Extradition Act:-

16. (1) In any proceedings under this Act, including proceedings on an application for the review of the order in respect of a person in custody under this Act, a document, duly authenticated –

(a) which purports to set out evidence given on oath in a treaty State or a designated Commonwealth country in admissible as evidence of the matters stated therein; ........

I note that the expression in our Act is "duly authenticated" not the expression "fully authenticated" used by the Minister. It makes no difference.

The Summary of Facts does not "purport to set out evidence given on oath". Some of the material in it is also in the affidavits and may be regarded as "evidence given on oath" but not all. The Summary may not be used as if it were evidence. Authentication either due or full, does not make admissible what is inadmissible. The Summary had no probative value in the Magistrates Court and it has none in the High Court.

The Single Magistrate has quoted the Summary extensively to set out the facts on which the two charges are based. This was unwise and has led him into error. The only material in the folder on which he should have relied are the sworn affidavits and the exhibits to them.

I take some of the facts from the Summary. Lest I be thought to have fallen into the same error as the Single Magistrate Ms Emma Hibling for the applicant has conceded them and all are supported in the affidavits.

Two containers arrived in Fiji aboard the vessel "Columbia Star" on 19^th November 1999. They were put in a warehouse awaiting customs clearance. The applicant, originally from Hong Kong and travelling on a British Overseas Passport (he also had in his possession when arrested in Kiribati a Singaporean passport under another name and said to be a fake) arrived in Fiji in April 2000. The applicant arranged for the clearance of the containers through Customs and made all due payments. The containers were declared to have clothing in them. They had come from Myanmar. Having been cleared the applicant arranged for the containers to be taken to premises at Pacific Harbour. From the affidavit of Josese Lako, a Fijian police officer, (paragraph 21) the address was "Villa 224 at Mac Place". They were delivered by Davendra Nath Sharma at the request of Subhag Chand. Subhag Chand in company with his wife Roshni Devi was there at delivery.

Roshni Devi deposes (paragraph 12):-

That my husband made a telephone call from our mobile 974149 and Peter arrived by taxi. It was getting dark and I showed Peter the locks and the seals on both containers to show that they were secure.

Whether Customs had opened the containers to check the Customs Declaration is not shewn. I conclude from paragraph 12 of Roshni Devi's affidavit that no one else had. There is no evidence of what was in the containers except for the Bill of Lading, "Short-pant 100% cotton 400 ctns 8992 doz".

Ms Hibling concedes that the applicant had imported the two containers, contents unproven.

Some days later, having failed to contact the applicant, Subhag Chand and his wife went back to the address at Pacific Harbour. They found the containers empty and arranged for Davendra Nath Sharma to recover them.

The evidence then moves forward six months to a house occupied by Bill Hao and his family and Wong Kam Hong, at 52 Panapasa Road in Tamavua and the adjoining premises, 50 Panapasa Road. On 28 October 2000 the police found drugs the subject of the charges in cartons at 50 Panapasa Road. How they got there is not explained. Paragraph 22 of the affidavit of Josese Lako, refers to 50 Panapasa Road:-

That I clearly saw tyre marks which seemed old going towards the back of the house and the vehicle had stopped about one (1) metre from the house. If any thing was loaded or unloaded from that location, it would not be seen by anyone. Bill Hao then showed the place where the two containers were offloaded. He also stated that the cartons that were taken to 50 Panapasa Road were kept inside the villa on that night.....

The two containers are not identified as the containers earlier at Villa 224 Mac Place. That there were two containers could at most raise a suspicion against the applicant. In any case what Bill Hao said to the deponent is hearsay, inadmissible against the applicant.

Paragraphs 9 and 10 of the affidavit of Naomi Rokoloma, the housemaid for the Hao family at 52 Panapasa Road:-

9. That apart from the close family visitors I used to see a Chinese man driving in a blue van frequenting the home. According to the children (Eric and Conan) he was Bill Hao's best friend. In a week he may visit the home two to three times. He drove the van himself.
   
10. That I have noticed also that the same Chinese man (blue van driver) not only visits home, I also saw him going and inspecting the house next door (50 Panapasa Road) the empty two storey flat several times this year or about three occasions. Once I saw him with Bill Hao checking the flat. On this day, I was asked by Bill Hao to pass him the rope as the blue van got stuck. I cannot remember exactly the dates but it all happened this year. I always thought that the Chinese man (blue van) was interested in renting the house. I was surprised that this same place (flat) that the two men (Bill Hao & blue van driver) visited, appeared on television where Police found drugs on Saturday 28/10/2000.
    

Naomi Rokoloma also, from the second photo board of 12 photographs (annexed to her affidavit) purported (paragraph 17 of her affidavit) to identify the man, the blue van driver, as the one in photo 4. The reproduction of all the photographs in the folder is so poor as to make recognition difficult if not impossible. All I can say is that, being familiar with the appearance of the applicant, photo 4 looks to me to be nothing like him. Whether it is the man she saw, I don't know. Apart from that I remember what courts have said of the unreliability of photograph identification, the danger of relying on it. (I make these comments acknowledging that assessment of evidence, if any, is not a matter for this court. The High Court is concerned only as to whether there is any evidence at all).

Even if the Chinese man were the applicant, what this lady saw could raise no more than a suspicion against him. He may have been at the premises for all sorts of reasons: (for example, Naomi Rokoloma thought he was interested in renting). Even if her identification were correct, it does not amount to evidence sufficient for a jury, properly directed, or a judge sitting alone, to find the applicant guilty beyond reasonable doubt of either charge.

Apart from what I have set out I can find no evidence in the affidavits which could even possibly link the applicant, the importer of the goods whatever they were in the two containers, with the heroin found in the cartons at 50 Panapasa Road.

The second charge is "found in possession of dangerous drugs". Even if he were in possession of them there is not even a suggestion that he was ever "found" in possession. I suppose it would be argued that this was a joint enterprise: Wong Kam Hong had been found in possession (although not between the dates alleged in the Particulars): as a matter of law that possession extended to the applicant. I say nothing about the likely success of the argument. Literally, Wong Kam Chung was not found in possession of anything incriminating.

That is the crux of Ms Hibling's case: there is no evidence to link her client with the heroin: he would have no case to answer in Kiribati, as required by Section 12(4)(a) of the Extradition Act before there may be extradition.

Upon what then did the Single Magistrate base his decision?

He has relied on the Summary of Facts. He set out several paragraphs of it in his judgment.

Paragraph 2:-

After clearing the containers from Customs they were taken to a rented villa at Pacific Harbor where they were taken (out) of the cartons. The villa was rented by Wong Kam Chung and he paid Ashok Kumar Singh the deposit for rent. The containers were transported to Pacific Harbour by Subhag Chand and Wong Kam Chung had paid him to do so. Subhag Chand later went to see the containers and found that they were empty and there was no sign of Wong Kam Chung. Subhag Chand then called Cargo Brokers to come and take the containers back to the container yard......

Those facts are proved in various affidavits. The paragraph continues:-

The Drugs which were in cartons had been transported to 50 Panapasa Road by Wong Kam Hong and Bill Hao which they both admitted when they pleaded guilty to charges during their trial before the High Court in Suva, Fiji. Certain of the cartons had blue pen markings on them to indicate that they contained heroin.

Those that contained heroin together with a few others were taken from there to a flat at 50 Panapasa Road, Namadi Heights, Suva for storage.....

Those facts are not supported by affidavit evidence. Even if they were they could not be used as evidence against the applicant: they are hearsay: admissions made by Wong Kam Hong not admissible against Wong Kam Chung.

Paragraph 5:-

After his apprehension in Suva on 28 October 2000, Wong Kam Hong (the first accused and brother of Wong Kam Chung) participated in a record of interview with Police. In brief summary he told police the following matters. He said that his "boss" in Hong Kong, Mr Lee, had sent him to Fiji in April. His instructions were to arrange for the clearance from Customs of the two containers. Wong Kam Hong asked his brother, Wong Kam Chung, to assist him.

By the time Wong Kam Hong arrived in Fiji from Hong Kong his brother Wong Kam Chung had already arranged for an agent to clear the containers. Wong Kam Chung also arranged for the containers to be taken to the villa at Pacific Harbour. This is where Wong Kam Hong first saw the containers. He cut the seals, opened the containers and identified 28 to 30 cartons containing heroin by certain blue pen markings on them......

Even if in affidavit form what Wong Kam Hong told the police could not be used against the applicant: it is hearsay.

In coming to his decision the Single Magistrate has used material in the Summary which is not in the affidavits. That was an error.

So far as I can see from reading the affidavits in the folder there is nothing more than suspicion against the applicant. I have mentioned some suspicions. The Single Magistrate adds another: "The strange or unusual conduct of the accused is the use of a different identity by the name of Peter Lim in the course of this event".

In relying on the Summary the Single Magistrate has made an error of law. His decision may be set aside (1 Halsbury (4^th ed) para 63).

Ms Hibling referred me to a recent decision on extradition, Re Proulx, R v Bow Street Magistrates' Court et anor, ex parte Proulx ((2001) 1 All ER 57). It was an application for extradition from the United Kingdom to Canada. Proulx had been trapped by police agents provocateur into making a confession. It was argued that in the exercise of his discretion the magistrate hearing the application for extradition should have excluded evidence of the confession. Mance LJ wrote the judgment of the Divisional Court. At pages 71-73, he cites with approval a passage, set out in part below, from R v Governor of Pentonville Prison, ex parte Osman ((1989) 3 All ER 701 @ 722-723):

If in a particular case there was no credible evidence to support committal on a charge, no reasonable magistrate would commit on that charge unless he had made some error of law, e.g. by misunderstanding the nature of the offence. In such a case one could say that the court was justified in interfering either because there was no evidence to support the committal or because no reasonable magistrate would commit on that evidence or because the magistrate must have been guilty of an error of law.

The Single Magistrate relied on inadmissible material when "there was no credible evidence to support committal". The Magistrate made an error of law. The High Court is justified in interfering with his decision to commit.

I shall hear the parties as to the orders I should make.

Dated the 31^ST day of January 2003

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE