Wang v. Masaitis, CV 03-747-CAS(RC).

• Decision Date: 27 April 2004
• Docket Number: No. CV 03-747-CAS(RC).,CV 03-747-CAS(RC).
• Citation: 316 F.Supp.2d 891
• Parties: Michael WANG, Petitioner, v. Robert MASAITIS, United States Marshal, Respondent.
• Court: U.S. District Court — Central District of California

316 F.Supp.2d 891

Michael WANG, Petitioner, v. Robert MASAITIS, United States Marshal, Respondent.

No. CV 03-747-CAS(RC).

United States District Court, C.D. California.

April 27, 2004.

Hoyt Sze, Deputy Fed. Public Defender, Santa Ana, CA, for petitioner.

Mark C. Krause, Assist. U.S. Atty., Los Angeles, CA, for respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

SNYDER, District Judge.

Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Petition and other papers along with the attached Report and Recommendation of United States Magistrate Judge Rosalyn M. Chapman, as well as petitioner's objections and respondent's response to petitioner's objections, and has made a de novo determination.

IT IS ORDERED that: (1) the Report and Recommendation is approved and adopted; (2) the Report and Recommendation is adopted as the findings of fact and conclusions of law herein; and (3) Judgment shall be entered denying the petition for writ of habeas corpus and dismissing the action with prejudice.

IT IS FURTHER ORDERED that the Clerk shall serve copies of this Order, the Magistrate Judge's Report and Recommendation and Judgment by the United States mail on the parties.

REPORT AND RECOMMENDATION OF A UNITED STATES MAGISTRATE JUDGE

CHAPMAN, United States Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Christina A. Snyder, United States District Judge, by Magistrate Judge Rosalyn M. Chapman, pursuant to the provisions of 28 U.S.C. § 636 and General Order 01-13 of the United States District Court for the Central District of California.

BACKGROUND

I

On March 12, 2003, Magistrate Bina Chainrai of the Magistrate's Court of the Hong Kong Special Administrative Region ("Hong Kong") issued a warrant for the arrest of petitioner Michael Wang for the crimes of: (1) theft, in violation of Section 9 of the Theft Ordinance, Chapter 210, Laws of Hong Kong (charges one through eighteen); and (2) dealing with property known or believed to represent proceeds of an indictable offense, in violation of Section 25(1) and (3) of the Organized and Serious Crimes Ordinance, Laws of Hong Kong (charges nineteen and twenty).¹ Petition, Exh. A. These crimes arose as the result of actions by petitioner as managing director of Pharmedic International (HK) Ltd. ("PMIL").² Krause Decl., ¶ 2, Exh. A at 169-93 (Affidavit, CHEUNG Lap-ho), 353-63 (Affidavit, LING Wai-hong).

On June 9, 2003, the Hong Kong Department of Justice submitted to the United States a formal request for the surrender of petitioner for prosecution on the eighteen counts of theft and two counts of dealing with property known or believed to represent proceeds of an indictable Offence. Krause Decl, ¶ 2, Exh A at 28-40. On June 26, 2003, the United States filed a request to extradite petitioner Michael Wang to Hong Kong. On October 9, 2003, Magistrate Judge Rosalyn M. Chapman held a hearing, and found the extradition treaty between the United States and Hong Kong was constitutional and valid and further found there is probable cause to believe petitioner committed the charged offenses and should be extradited to Hong Kong. On October 17, 2003, this Court certified it had found petitioner extraditable to Hong Kong on all charges. On October 23, 2003, District Judge Christina A. Snyder stayed petitioner's extradition pending resolution of this habeas proceeding.

II

On October 17, 2003, petitioner filed the pending habeas corpus petition under 28 U.S.C. § 2241, in which petitioner contends: (1) this Court lacked subject matter jurisdiction to certify petitioner's extradition to Hong Kong because the extradition agreement between the United States and Hong Kong is unconstitutional; and (2) probable cause to extradite petitioner on charges three to six and ten to seventeen has not been established. On December 3, 2003, respondent filed an answer, and on January 21, 2004, petitioner filed a reply.

III

A brief history of Hong Kong, its current political relationship to the People's Republic of China ("P.R.C."), and the development of the extradition treaty between the United States and Hong Kong is helpful for understanding petitioner's first claim. As the Second Circuit summarized:

Prior to the Opium Wars of the mid-19th century between China and the United Kingdom (the "U.K."), Hong Kong was an integral part of imperial China. British rule over Hong Kong was achieved in three stages. In 1842, China ceded rule over Hong Kong Island to the U.K. "in perpetuity" through the Treaty of Nanking, which settled the First Opium War. Under the 1860 Convention of Peking, which ended the Second Opium War, China relinquished the Kowloon Peninsula permanently. Finally, following China's defeat in the Sino-Japanese War of 1894-95, the U.K. secured a lease of the New Territories for 99 years, until June 30, 1997.[¶] As the lease period for the New Territories ran toward expiration, the U.K. and the People's Republic of China ("the PRC") initiated negotiations for the return of sovereignty over Hong Kong to the PRC. These talks culminated in the Joint Declaration on the Question of Hong Kong (the "Joint Declaration"), which the U.K. and the PRC signed on December 19, 1984. In 1990, China promulgated the Basic Law, a framework for the governance of Hong Kong upon reversion to Chinese rule. The Basic Law created the Hong Kong Special Administrative Region (the "HKSAR"), governed by the principle of "one country, two systems." Under this principle, Hong Kong is recognized as an "inalienable part" of the PRC, but its capitalist system is to be "unchanged for 50 years [from July 1, 1997]." [¶] The Basic Law establishes an executive authority, and enumerates its powers and functions, among them, "to conduct relevant external affairs on its own" subject to the ultimate authority of the central government of the PRC. It also creates a new legislature, and preserves the existing judicial system, except for the creation of a new high court, the Court of Final Appeal. Moreover, the Basic Law authorizes the HKSAR government to "make appropriate arrangements with foreign states for reciprocal juridical assistance" subject to the approval of the central government of the PRC.

Cheung v. United States, 213 F.3d 82, 84 (2d Cir.2000)(some citations omitted); see also Krause Decl., ¶ 3, Exh. B at 1525-60 (setting forth the Basic Law).

On October 5, 1992, Congress enacted the United States-Hong Kong Policy Act ("Act"), 22 U.S.C. §§ 5701-5732, see Pub.L. No. 102-383, 106 Stat. 1448 (1992), expressing its support for the Joint Declaration and "its wish to see full implementation of the Joint Declaration." 22 U.S.C. § 5701. The Act further expresses the intent of Congress that the United States "should actively seek to establish and expand direct bilateral ties and agreements with Hong Kong in economic, trade, financial, monetary, aviation, shipping, communication, tourism, cultural, sport, and other appropriate areas." 22 U.S.C. § 5711(2). The Act provides "[t]he United States should continue to fulfill its obligations to Hong Kong under international agreements, so long as Hong Kong reciprocates, regardless of whether the People's Republic of China is a party to the particular international agreement...." 22 U.S.C. § 5712(2). Additionally, the Act further provides:

For all purposes ... the Congress approves the continuation in force on and after July 1, 1997, of all treaties and other international agreements ... entered into before such date between the United States and Hong Kong, or entered into before such date between the United States and the United Kingdom and applied to Hong Kong, unless or until terminated in accordance with law.

22 U.S.C. § 5721(b).

On December 20, 1996, the United States entered into an "Agreement with Hong Kong for the Surrender of Fugitive Offenders" ("the Agreement").³ Krause Decl., ¶ 4, Exh C. at 1561-85. On March 3, 1997, President Clinton transmitted the Agreement to the Senate for its advice and consent. Id. at 1562. With the transmittal letter, President Clinton included a Letter of Submittal from Secretary of State Madeline Albright, stating:

Although entitled an "Agreement" to reflect Hong Kong's unique juridical status, for purposes of U.S. law, the instrument will be considered to be a treaty, and therefore I am submitting it to you for transmittal to the Senate for advice and consent to ratification. In that regard, I note that Hong Kong is entering into the Agreement with the authorization of "the sovereign government which is responsible for its foreign affairs." At present, that is the United Kingdom. However, the [People's Republic of China] has also approved the Agreement and authorized its continuation in force after July 1, 1997[,] through approval of the Sino-British Joint Liaison Group.

Id. at 1563. On October 23, 1997, the Agreement was ratified by a two-thirds vote of the Senate. 143 Cong. Rec. S11165-02 (Oct. 23, 1997).⁴

DISCUSSION

IV

Extradition is "the surrender by one nation to another of an individual accused or convicted of an offense outside of its own territory, and within the territorial jurisdiction of the other, which, being competent to try and to punish him, demands the surrender." Terlinden v. Ames, 184 U.S. 270, 289, 22 S.Ct. 484, 492, 46 L.Ed. 534 (1902). Section 3184 of Title 18, United States Code, "confers jurisdiction on `any justice or judge of the United States' or any authorized magistrate to conduct an extradition hearing under the relevant extradition treaty between the United States and the requesting nation." Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1009 (9th Cir.2000). Specifically, Section 3184 provides, in pertinent part:

Whenever there is a treaty or convention for extradition between the United States and any foreign government, ... any justice or judge of the United States, or any magistrate judge authorized so to do by a court of the United...