Kin-Hong v. U.S.
| Decision Date | 07 January 1997 |
| Docket Number | Civ. A. No. 96-10849-JLT. |
| Citation | 957 F.Supp. 1280 |
| Parties | Lui KIN-HONG, a/k/a Jerry Lui, Petitioner/Relator, v. The UNITED STATES of America, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
Andrew Good, Harvey A. Silverglate, Silverglate & Good, Boston, MA, for Lui Kin-Hong.
Alex Whiting, Susan C. Hanson-Philbrick, United States Attorney's Office, Michael Surgalla, United States Department of Justice, Office of International Affairs, Boston, MA, for United States.
Andrew Y. Au, Greenbelt, MD, for Alliance Of Hong Kong Chinese, Amicus Curiae.
Michael Posner, Lawyers' Committee for Human Rights, New York City, for Lawyers' Committee for Human Rights, Amicus Curiae.
John Reinstein, Civil Liberties Union of Massachusetts, Boston, MA, for American Civil Liberties Union of Massachusetts, Amicus Curiae.
Before the court is a petition for a writ of habeas corpus seeking the unconditional release of Petitioner Lui Kin-Hong ("Lui"), who has been in the custody of the United States since his arrest in Boston on December 20, 1995. That arrest was precipitated by an extradition request of the United Kingdom on behalf of the Crown Colony of Hong Kong ("Hong Kong").
On August 29, 1996, Magistrate Judge Zachary Karol issued an opinion authorizing the surrender of Lui to Hong Kong. In response, Lui filed the pending petition.
The complex legal issues involved in this petition and the underlying extradition request must be examined in the context of the unique colonial relationship between the United Kingdom and Hong Kong. That relationship originated in 1898 when the United Kingdom leased the New Territories of Hong Kong from China for a term of ninety-nine years. Convention of Beijing, June 9, 1898, in 1 Treaties and Agreements with and Concerning China, 1894-1919, 130, No. 1898/11 (1921). The remaining Hong Kong territory was subsequently ceded to the United Kingdom. See Comment, The Reversion of Hong Kong to China: Legal and Practical Questions, 21 Willamette L.Rev. 327 (1985).
Accordingly, extradition to Hong Kong from the United States has been governed by the Extradition Treaty between the Government of the United States of America and the United Kingdom of Great Britain and Northern Ireland (the "Treaty"). U.S.-U.K., 28 U.S.T. 227, June 8, 1972. The reach of the Treaty was officially extended to Hong Kong by an exchange of notes in Washington, D.C. on October 21, 1976. The Treaty was subsequently modified by the Supplementary Treaty Concerning the Extradition Treaty Between the Government of the United States of America and the Government of the United Kingdom of Great Britain and Northern Ireland (the "Supplementary Treaty") on December 23, 1986. S. Treaty Doc. No. 99-8, 99th Cong., 1st Sess., 132 Cong. Rec. 16557 (1986).1
Central to the issues underlying this petition are the facts that, on July 1, 1997, Hong Kong will revert to the sovereignty of the People's Republic of China ("China"),2 and that the United States does not have an extradition treaty with China. See 18 U.S.C.A. § 3181 (West 1985 & Supp.1996) (listing countries with whom the United States has an extradition treaty).
Lui, a citizen of both Hong Kong and Canada, was employed by Brown & Williamson Tobacco Corporation ("B & W") from August 1988 to May 1993. B & W is a wholly-owned subsidiary of British-American Tobacco Industries PLC ("BAT PLC"). On January 1, 1992, Lui, while still employed by B & W, became Export Director at the British American Tobacco Corporation in Hong Kong ("BAT-HK"), also a wholly-owned subsidiary of BAT PLC. At the time, BAT-HK had exclusive rights to distribute cigarettes in several Asian countries, and Lui was allegedly responsible for allocating cigarettes to selected Hong Kong trading companies.
In its extradition request, the Crown Colony of Hong Kong claims that Lui, in conjunction with other BAT-HK executives, solicited and accepted bribes in excess of three million American dollars from one trading company in particular, Giant Island Ltd. ("GIL"), and certain GIL affiliates, namely Wing Wah Company ("Wing Wah") and Pasto Company Ltd. GIL allegedly paid the bribes to secure a monopoly over the export of BAT-HK cigarettes.
While Lui admits to having received the money, he contends that it was legitimate business income, paid to him in exchange for his assistance in establishing GIL's profitable trading relationships. In support of his position Lui points to the undisputed fact that it was not until several years after 1988 — when GIL made the first payment to him — that he had or knew he would have any influence over BAT-HK's cigarette allocations.
In Hong Kong, Lui faces one charge of bribery conspiracy and nine substantive bribery charges.
Sometime prior to 1993, Lui began preparations to open a business in the Philippines. He became a partner of the Subic International Cargo Center, Inc. ("SICCI"), which was incorporated in May 1993 and is involved in the warehousing and shipping of cigarettes into Asia. Lui is a primary partner of SICCI. He owns approximately 35% of the issued stock and, until his arrest, managed its day to day operations.
Hong Kong, through the Independent Commission Against Corruption (the "ICAC"), began an investigation of Lui's business activities. ICAC attempted to arrest Lui on April 26, 1994, about one year after his business in the Philippines had been established. He was then out of the country on an overseas business trip.
Although Lui apparently has not returned to Hong Kong since the spring of 1994, ICAC agents were invited to meet with him in the Philippines. For some unknown reason, the meeting never occurred, even though the agents did go to the Philippines.
A Hong Kong magistrate issued a warrant for Lui's arrest on January 23, 1995. Another warrant was issued on December 12, 1995.
Prior to his arrest, Lui and his family had spent the summer of 1995 in Canada. They had purchased a house in Toronto in 1991, and became citizens in June 1994. The purpose of their December 1995 trip to Boston was to visit a hospitalized friend. It was on their arrival at Boston's Logan Airport that Lui was arrested.
On December 19, 1995, the United States Attorney's office filed an extradition complaint in the District Court pursuant to 18 U.S.C.A. § 3184 (West Supp.1996).3 The complaint set forth the United Kingdom's request for the extradition of Lui on behalf of Hong Kong. A provisional warrant was issued, and Lui was arrested upon his arrival at Logan Airport in Boston, Massachusetts on December 20, 1995.
At Lui's initial appearance before Magistrate Judge Karol on December 21, 1995, the Government moved to detain him for the duration of the extradition proceedings. On February 2, 1996, after hearings, Magistrate Judge Karol issued an order allowing the Government's detention motion.
On April 3, 1996, Lui first appeared before this court in order to challenge the Magistrate Judge's detention order.4 In an April 25, 1996 opinion, this court concluded that "special circumstances" overrode the presumption against bail in extradition cases and that Lui's proffered conditions of release would reasonably assure his presence at future proceedings. The court, therefore, ordered Lui's release from Plymouth County Correctional Center. Kin-Hong v. United States, 926 F.Supp. 1180 (D.Mass.1996).
The Court of Appeals reversed this court's bail decision on May 14, 1996, holding that no special circumstances existed sufficient to override the presumption against bail. United States v. Kin-Hong, 83 F.3d 523 (1st Cir.1996) (per curiam). Lui, therefore, has been detained in United States custody for more than one year, since December 20, 1995.
On May 28, 1996, Magistrate Judge Karol began a three day hearing to consider Lui's extraditability. Three months later, on August 29, 1996, he issued his opinion in which he found the evidence against Lui sufficient to sustain the bribery conspiracy charge and eight of the nine substantive bribery charges. The Magistrate Judge, thereafter, certified Lui's extraditability to Hong Kong.
Here, in his September 3, 1996 Amended Petition for a Writ of Habeas Corpus,5 Lui alleges, in part, that the Treaty does not permit his extradition because he cannot be tried and punished by the requesting sovereign, the Crown Colony of Hong Kong, prior to its reversion to China. For the reasons set forth below, this court agrees.6
Central to the pending habeas corpus petition and the related extradition request is the fact that the Crown Colony of Hong Kong reverts to Chinese control in less than six months, on July 1, 1997. This raises the threshold factual issue as to whether the Crown Colony of Hong Kong will be able to try and to punish Lui prior to that reversion date.
Magistrate Judge Karol did not reach the question of which sovereign, the Crown Colony of Hong Kong or China, would be the one to try and to punish Lui if he is extradited. He did speculate that Lui might not be tried by either Hong Kong or China, because he might be released after a pre-trial procedure known as a "committal hearing." Given the enormous amount of resources the Government has devoted to the task of extraditing Lui, this court rejects the unsubstantiated notion that Hong Kong would drop the charges against him upon his return.
In any event, Magistrate Karol's surmise is not relevant to the controlling issue under the Treaty: whether it is possible for the Crown Colony of Hong Kong to try and to punish Lui before reversion, should they choose to do so.7
The uncontradicted evidence before the court establishes conclusively that Hong Kong will be unable to try and to punish Lui before reversion.
In an affidavit, former Hong Kong Senior Assistant Crown Prosecutor Kevin Barry Egan8 asserts...
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