Kin-Hong v. US

• Decision Date: 25 April 1996
• Docket Number: No. CA 96-10849-JLT.,CA 96-10849-JLT.
• Citation: 926 F. Supp. 1180
• Parties: Lui KIN-HONG, a/k/a Jerry Lui, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Massachusetts

926 F. Supp. 1180

Lui KIN-HONG, a/k/a Jerry Lui, Petitioner, v. UNITED STATES of America, Respondent.

No. CA 96-10849-JLT.

United States District Court, D. Massachusetts.

April 25, 1996.

Harvey A. Silverglate, Andrew Good, Silverglate & Good, Boston, MA, for Lui Kin-Hong aka Jerry Lui.

Alex Whiting, Susan C. Hanson-Philbrick, United States Attorney's Office, Boston, MA, for U.S.

MEMORANDUM

TAURO, Chief Judge.

I. INTRODUCTION

The Crown Colony of Hong Kong seeks Petitioner Jerry Lui's extradition to have him stand trial on charges of bribery. At the request of the United Kingdom, acting on behalf of Hong Kong, the Government of the United States apprehended Lui in Boston, Massachusetts on December 20, 1995. He has been detained in the Plymouth County Correctional Center since December 20, 1995. At issue here, is Lui's challenge to Magistrate Judge Zachary Karol's decision denying him bail.

II. BACKGROUND

A. Political and Legal Background

This case is set against the backdrop of significant political and legal changes occurring in Hong Kong. Extradition to Hong Kong is presently governed by 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 "Treaty").¹

In 1898, the United Kingdom leased the New Territories of Hong Kong from China for a period 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 parts of Hong Kong were also ceded to the United Kingdom. See Comment, The Reversion of Hong Kong to China: Legal and Practical Questions, 21 Willamette L.Rev. 327 (1985). On July 1, 1997, all of Hong Kong will revert to the People's Republic of China ("the PRC"), pursuant to the Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People's Republic of China on the Question of Hong Kong with Annexes, Beijing, December 19, 1984, ratified and entered into force May 27, 1985, T.S. No. 26 (1985), Cmnd. 9543.

Hong Kong's extradition relationships with other states has rested exclusively with the United Kingdom. See Janice Brabyn, Hong Kong Transfer of Sovereignty: Extradition and the Hong Kong Special Administrative Region, 20 Case W. Res. J. Int'l L. 169, 173 (1988). Hong Kong's present extradition powers are dependant on its colonial status with the United Kingdom. Id. When reversion occurs, Hong Kong will cease to have the authority to request extradition based on the extradition treaty between the United States and the United Kingdom. Id.

At present, there is no extradition treaty between the PRC and the United States. See 18 U.S.C.A. § 3181 (West 1996) (listing countries with whom the United States has an extradition treaty). Consequently, any person held pursuant to an extradition request from Hong Kong in the United States after the date of reversion will have to be released. Although the Government does not contest that eventuality, it does proffer the possibility of an extradition treaty between the United States and the PRC being finalized within the next fourteen months. Based on the information in the record and in the public domain, this court concludes that it is highly improbable that such a treaty will be signed by the United States and the PRC, and then ratified by two-thirds of the Senate, within the next fourteen months.

B. Procedural Background

On December 19, 1995, the United States Attorney filed a complaint, pursuant to 18 U.S.C.A. § 3184 (West 1996),² in the United States District Court for the District of Massachusetts against Lui, seeking a warrant for his arrest for the purpose of extraditing him to the Crown Colony of Hong Kong. The complaint stated that Hong Kong had issued a warrant for the arrest of Lui for allegedly violating Section 9(1)(a) of Hong Kong's Prevention of Bribery Ordinance. It further stated that the Government of the United Kingdom, after learning that Lui planned to arrive at Logan Airport in Boston, Massachusetts on December 20, 1995, requested that the United States arrest Lui for the purpose of extraditing him to Hong Kong. Magistrate Judge Karol issued the warrant, and members of the Federal Bureau of Investigation arrested Lui at Logan Airport on December 20, 1995.

On December 21, 1995, Lui appeared before Magistrate Judge Karol. The Government requested that Lui be detained pending the completion of the extradition proceedings. Magistrate Judge Karol ordered Lui temporarily detained, pending a full hearing on the Government's motion. On January 4, 1996, Lui filed a cross-motion to be released on conditions. On January 10, 1996, Magistrate Judge Karol heard arguments on the motions.³ The parties were granted leave to file additional papers on or before January 17, 1996.⁴

In an order issued on February 2, 1996, Magistrate Judge Karol allowed the Government's motion for detention and denied Lui's request to be released on conditions. In his memorandum in support of the order, the Magistrate Judge found that Lui posed a high risk of flight and that there existed no set of conditions of release that would assure his presence at future proceedings. The Magistrate Judge also found that there were no "special circumstances" warranting Lui's release on bail.

On February 12, 1996, Lui filed a notice of appeal and a motion for reconsideration. On February 26, 1996, Magistrate Judge Karol denied Lui's motion for reconsideration. This court held hearings on Lui's appeal on April 3, 1996 and on April 22, 1996.

C. Factual Predicate Alleged for Lui's Arrest

Hong Kong authorities allege that in 1991 Lui was promoted to the position of Commercial Director of the British American Tobacco Co. (HK) Ltd. ("BAT"), in Hong Kong. (Aff. Godfrey ¶ 8). BAT had exclusive rights to distribute cigarettes in several Asian countries. (Aff. Godfrey ¶ 6). As Commercial Director, Lui had the responsibility of allocating a share of the cigarettes to selected Hong Kong trading companies. (Aff. Godfrey ¶ 7). Lui, along with other BAT executives, allegedly solicited and accepted bribes in excess of several million dollars from Giant Island Ltd. ("GIL"), a Hong Kong export company. (Aff. Godfrey ¶¶ 4-11). GIL allegedly paid these sums in order to secure a monopoly over the export of certain brands of cigarettes. (Aff. Godfrey ¶¶ 4-11). Lui allegedly received approximately $3,000,000 in bribes. (Aff. Godfrey ¶ 11). Lui does not deny receiving this money, but asserts that it represented legitimate business income. Transcript of April 22, 1996 hearing at 31.

III. JURISDICTION

Lui initially appealed Magistrate Judge Karol's detention order under D.Mass.Loc. Mag.R. 16(a), which provides:

A decision or order by a magistrate, which, if made by a judge of the district court, could be appealed by the government or defendant under any provision of law, shall be subject to an appeal to a judge of the district court.

Rule 10 defines the scope of Rule 16(a) appeals:

These rules Rule 10 to Rule 16 govern the procedure and practice for the conduct of misdemeanor cases, including petty offenses or infractions, before United States magistrates under 18 U.S.C. § 3401, and or appeal in such cases to judges of the district court.

D.Mass.Loc.Mag.R. 10(a). Because Rule 16 is limited to misdemeanors and petty infractions, it does not apply to bail determinations in extradition cases. Moreover, 28 U.S.C.A. § 1291 (West 1995), which permits appeals of "final decision of the district courts," does not apply to the decisions of judicial officers sitting in extradition matters. In re Extradition of Howard, 996 F.2d 1320, 1325 (1st Cir.1993).

At its April 3, 1996 hearing, this court advised the parties of its conclusion that bail decisions in an extradition proceeding could only be challenged by a writ of habeas corpus, citing to Koskotas v. Roche, 740 F.Supp. 904, 918 (D.Mass.1990), aff'd, 931 F.2d 169 (1st Cir.1991). At that hearing, the parties agreed that this court should proceed under the premise that Lui challenges Magistrate Judge Karol's decision through a writ of habeas corpus. And so, the court has converted Lui's Rule 16(a) appeal into a writ of habeas corpus, pursuant to 28 U.S.C.A. § 2241 (West 1995). See, e.g., Argro v. United States, 505 F.2d 1374, 1378 (2nd Cir.1974) (where parolee challenged revocation proceeding and sought admission to bail, appeal treated as habeas petition); Caporali v. Whelan, 582 F.Supp. 217, 219 (D.Mass.1984) (complaint seeking review of Immigration Naturalization Service's decision to detain deportee without bail construed as a petition for habeas corpus).

IV. STANDARD OF REVIEW

A. "Reasonable Grounds" Review

The standard of review of a Magistrate Judge's bail determination in extradition cases is narrow. This court's inquiry is limited to the issue of whether or not there were reasonable grounds for the Magistrate Judge's denial of bail. Koskotas, 740 F.Supp. at 918. See also Matter of Extradition of Russell, 805 F.2d 1215, 1216 (5th Cir.1986) (district court properly applied the "reasonable grounds" standard to review the magistrate's bail decision in extradition case); In re Extradition of Siegmund, 887 F.Supp. 1383, 1385 (D.Nev.1995) (applying "reasonable grounds" standard to evaluate magistrates' findings regarding bail in extradition case). In applying this standard, the court defers to the Magistrate Judge's factual findings, unless they are unsupported by the record, but reviews the Magistrate Judge's legal determinations de novo. See, e.g., Siegmund, 887 F.Supp. at 1386 (evaluating de novo magistrate's finding that no special circumstances existed to grant bail in extradition case); Duca v. United States, No. CV 95-713 (DGT), 1995 WL 428636 at *16 (E.D.N.Y.1995) (same).

B. Introduction of New Evidence

At the April 3, 1996 hearing, and through additional written...