Cheung v. U.S.

• Decision Date: 01 August 1999
• Docket Number: Docket No. 99-2526
• Citation: 213 F.3d 82
• Parties: (2nd Cir. 2000) JOHN CHEUNG, Petitioner-Appellee, v. UNITED STATES OF AMERICA, Respondent-Appellant
• Court: U.S. Court of Appeals — Second Circuit

Page 82

213 F.3d 82 (2nd Cir. 2000)

JOHN CHEUNG, Petitioner-Appellee, v. UNITED STATES OF AMERICA, Respondent-Appellant.

Docket No. 99-2526

August Term, 1999

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: March 1, 2000

Decided: May 24, 2000

Appellant appealed from a judgment of the United States District Court for the District of Connecticut (Peter C. Dorsey, Judge) granting appellee's petition for a writ of habeas corpus and ordering his release from custody pending extradition.

Reversed and remanded.

JEFFREY A. MEYER, Assistant United States Attorney (Stephen C. Robinson, United States Attorney for the District of Connecticut, of counsel), for Appellant.

RICHARD A. REEVE, Sheehan & Reeve, New Haven, CT, for Appellee.

Before: MCLAUGHLIN, SACK, AND KATZMANN, Circuit Judges.

KATZMANN, Circuit Judge:

The United States appeals from a final judgment of the United States District Court for the District of Connecticut (Peter C. Dorsey, Judge), granting John Cheung's petition for a writ of habeas corpus and ordering his discharge from custody pursuant to a ruling by United States Magistrate Judge Joan G. Margolis granting the Government's request for extradition. For the reasons that follow, we reverse the judgment of the district court and remand with instructions to vacate the writ of habeas corpus and to enter a certification of extraditability and order of commitment.

I. BACKGROUND

We decide on appeal whether the Agreement between the Government of the United States of America and the Government of Hong Kong For the Surrender of Fugitive Offenders (the "Hong Kong Extradition Agreement" or the "Agreement"), Dec. 20, 1996, U.S.-H.K., S. Treaty Doc. No. 105-3 (1997), is a "treaty" between the United States and a "foreign government" such that the magistrate judge had jurisdiction to certify Cheung's extraditability. See 18 U.S.C. § 3184. To provide a context for understanding the opinions below and our discussion, we recount briefly the evolution of the legal status of Hong Kong, 1 the development of the extradition relationship between the United States and Hong Kong, and the procedural background of this case.

A. Legal Relationship between Hong Kong and the People's Republic of China

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. See Ming K. Chan, Hong Kong: Colonial Legacy, Transformation, and Challenge, 547 ANNALS AM. ACAD. POL. &AMP SOC. SCI. 11, 12 (1996). Under the 1860 Convention of Peking, which ended the Second Opium War, China relinquished the Kowloon Peninsula permanently. See id.; Roger Buckley, Hong Kong: The Road to 1997 2-3 (1997). 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. See Chan, supra, at 12; Buckley, supra, at 3.

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. See Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China ("Basic Law"), preamble, at ii. 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." Basic Law, preamble, at ii. 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]." Basic Law, arts. 1 & 5.

The Basic Law establishes an executive authority, see Basic Law, art. 59, 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, id., art. 13; see id., art. 62(3). It also creates a new legislature, see id., arts. 66-79 & annex II, and preserves the existing judicial system, except for the creation of a new high court, the Court of Final Appeal. See id., arts. 81 & 82. 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. Id., art. 96.

B. The Hong Kong Policy Act

In 1992, Congress enacted the United States-Hong Kong Policy Act (the "Hong Kong Policy Act" or the "Act"), 22 U.S.C. §§ 5701-5732. See Pub. L. No. 102-383, 106 Stat. 1448 (1992). Among other things, the Act expresses the support of the President and Congress for the 1984 Joint Declaration, see 22 U.S.C. § 5701 and articulates a general bilateral framework for U.S. relations with the HKSAR after June 30, 1997, see 22 U.S.C. §§ 5711-5715. The Act expresses the sense of Congress that the United States should seek to establish and expand direct bilateral agreements with the HKSAR in ten particularized areas as well as "other appropriate areas;" foreign relations is not specifically enumerated. 22 U.S.C. § 5711(2). The Act also calls for the United States to "continue to fulfill its obligations to Hong Kong under international agreements" on the basis of reciprocity, regardless of whether the PRC is a signatory to the particular international agreement, unless and until such obligations are legally modified or terminated. 22 U.S.C. § 5712(2).

C. United States-Hong Kong Extradition Relations

From 1977 to June 30, 1997, extradition relations between the United States and Hong Kong were governed by the Treaty on Extradition between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland, June 8, 1972, U.S.-U.K., 28 U.S.T. 227, made applicable to Hong Kong by an exchange of diplomatic notes on October 21, 1976, see 28 U.S.T. at 238-41, and the Extradition Supplementary Treaty Concerning the Extradition Treaty Between the United States of America and the United Kingdom of Great Britain and Northern Ireland, June 25, 1985, T.I.A.S. No. 12050 (the "Supplementary Treaty"), made applicable to Hong Kong by its terms. See Supplementary Treaty, art. 6(a) & annex; see also In re Request for Extradition of McMullen, 989 F.2d 603, 608 (2d Cir. 1993) (describing the Supplementary Treaty); United States v. Kin-Hong, 110 F.3d 103, 108 & n.5 (1st Cir.) (describing the treaties), stay denied, 520 U.S. 1206 (1997).

Anticipating the expiration of the these treaties upon the restoration of Chinese rule over Hong Kong, the United States and Hong Kong in 1996 concluded the Hong Kong Extradition Agreement as a replacement. In March 1997, the President transmitted the Agreement to the Senate for its advice and consent. With the transmittal letter, the President included a letter of submittal from the Secretary of State noting that the agreement was a "treaty" for purposes of United States law:

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.

Id. at v. The Agreement was favorably reported by the Senate Committee on Foreign Relations (the "Committee") to the full Senate on August 19, 1997. See S. Exec. Rep. No. 105-2 at 8-10 (1997). On October 23, 1997, the Agreement was ratified by a two-thirds vote of the Senate. See 143 CONG. REC. S11,165-02 (daily ed. Oct. 23, 1997).

The Agreement enumerates 36 categories of "offences" for which a fugitive shall be surrendered, including "[o]btaining property or pecuniary advantage by deception; . . . unlawful handling or receiving of property; . . . or any other offence in respect of property involving fraud[.]" Hong Kong Extradition Agreement, art.² (1)(x). Article 13 provides that the alleged offender shall be surrendered if the evidence against the fugitive satisfies the standards of the requested country for holding a defendant over for trial, or if the evidence is sufficient to find the fugitive guilty, to convict, or to sentence under the law of the requesting country. See id., art. 13. However, the Agreement prohibits extradition for alleged political offenses and creates a humanitarian exception to extradition. See id., arts. 6 and 7. Finally, the Agreement establishes procedures for requesting and surrendering a fugitive. See id., arts. 8-12, 14-19.

D. This Case

1. Procedural Background

The essential facts of this case are undisputed. In June 1998, Cheung was arrested in Connecticut to answer a complaint for extradition pursuant to the Hong Kong Extradition Agreement. The complaint charged him with 33 counts of obtaining property by deception and one count of evasion of liability by deception under Hong Kong law. See In re Extradition of Cheung, 968 F. Supp. 791, 796-97, 805-09 (D. Conn. 1997) ("Cheung I") (detailing the counts). 2 In particular, Cheung was accused of having engaged in criminal fraud during mid-1994 in connection with his ownership and operation of a chain of consumer electronics retail stores in Hong Kong. See id. at 804. The fraud involved acquiring nearly HK$ 2 million of computer goods from wholesale suppliers, for which Cheung promised to pay on an installment basis. See id. After accumulating the debt for these goods, Cheung and his family fled Hong Kong for Canada in August 1994, and eventually resettled in Connecticut, where Cheung was...