Matter of Extradition of Lui, M.B.D. No. 95-M1072-ZRK.

• Decision Date: 02 February 1996
• Docket Number: M.B.D. No. 95-M1072-ZRK.
• Citation: 913 F. Supp. 50
• Parties: In the Matter of the EXTRADITION OF LUI Kin-Hong, a/k/a Jerry Lui.
• Court: U.S. District Court — District of Massachusetts

913 F. Supp. 50

In the Matter of the EXTRADITION OF LUI Kin-Hong, a/k/a Jerry Lui.

M.B.D. No. 95-M1072-ZRK.

United States District Court, D. Massachusetts.

February 2, 1996.

Andrew Good, Silverglate & Good, Boston, MA, for Defendant.

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

ORDER REGARDING DETENTION

KAROL, United States Magistrate Judge.

In a complaint filed in this court on December 19, 1995, pursuant to 18 U.S.C. 3184 (1994), Assistant United States Attorney Susan Hanson-Philbrick, on behalf of United States Attorney Donald K. Stern, stated under oath that she had been advised that the Crown Colony of Hong Kong had issued a warrant for the arrest of Lui Kin-hong, a/k/a Jerry Lui ("Lui"), for allegedly violating Section 9(1)(a) of Hong Kong's Prevention of Bribery Ordinance, Cap. 201. She further stated that Lui was expected to arrive at Logan Airport in East Boston on December 20, 1995, and that the Government of the United Kingdom, on instructions from the Crown Colony of Hong Kong, had requested that Lui be provisionally arrested for the purpose of extraditing him to Hong Kong. On the basis of these allegations, the government sought a warrant for Lui's arrest.

The court issued the warrant, and Lui was arrested at Logan Airport on December 20. He was brought before the court for an initial appearance on December 21, 1995, at which time the government moved that Lui be detained pending the completion of extradition proceedings pursuant to the extradition treaty in force between the United States and the United Kingdom. See Extradition Treaty 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, 28 U.S.T. 227, made applicable to Hong Kong by an exchange of notes in Washington, D.C. on October 21, 1976, and 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, Signed at London on 8 June 1972, June 25, 1985, S. Treaty Doc. No. 99-8, 99th Cong., 1st Sess. (entered into force Dec. 23, 1986), all reprinted in 2 Extradition Laws and Treaties, United States 920.1 to 920.30 (compiled by Igor I. Kavass & Adolf Sprudzs, 1980 & Rev. 6 1989). The court ordered that Lui be temporarily detained pending a full hearing on the government's motion. Subsequently, Lui filed a cross motion to be released on conditions. Following a series of continuances that Lui requested, the court held a hearing on both motions on January 10, 1996. At the conclusion of the hearing, the parties requested and were granted leave to file supplemental memoranda and affidavits on or before January 17, 1996. Supplemental filings were timely made. Upon consideration of the evidence submitted at the hearing and the voluminous submissions and supplemental submissions of the parties, and for the reasons stated below, the government's motion to detain Lui is hereby ALLOWED, and Lui's cross motion to be released on conditions is DENIED.

I. BACKGROUND

It appears from the complaint, the evidence submitted at the detention hearing, and the supplemental filings that Hong Kong authorities allege that Lui was a senior executive of the British American Tobacco Co. (HK) Ltd. ("BAT") in Hong Kong. BAT apparently had exclusive rights to distribute several popular brands of cigarettes within certain Asian countries, and Lui had the important job of allocating to selected Hong Kong trading companies a share of the cigarettes that were available for export to those countries, including the People's Republic of China ("PRC"). Lui and other senior BAT officers, in violation of Hong Kong law, allegedly solicited and accepted bribes amounting to several million U.S. dollars from one such export company, Giant Island Ltd. ("GIL"), in exchange for granting to GIL a virtual monopoly over the export of certain brands of cigarettes to certain countries.

Hong Kong authorities apparently learned about the alleged bribes from a former GIL shareholder and employee, Chui To-yan ("Chui"), who began cooperating with investigators sometime after he left GIL's employ in April 1993. Beginning in March 1994, participants in the conspiracy allegedly sought to discourage and prevent Chui from continuing to cooperate with Hong Kong authorities in their investigation of the alleged illegal payments. On April 26, 1994, on the basis of information Chui had provided, investigators went to Lui's home in Hong Kong with the intention of arresting him. Lui was not present. The next day, Lui's attorney advised the investigators that Lui had left Hong Kong on a business trip on April 24 and would consent to be interviewed upon his return, which was then expected sometime in May. At the end of May 1994, Lui's attorney reported that Lui had still not returned to Hong Kong and, because of unexpected business developments, was not planning to return for an additional eight to ten weeks.

Lui apparently never returned to Hong Kong, or, if he did, he did so without making his presence known to authorities there. Instead, he and his family established permanent residence in the Philippines, a country with which Hong Kong has no extradition treaty and to which BAT had abruptly relocated its business operations. In June 1994, Lui and his wife, both of whom have family, property, and educational ties to Canada, became Canadian citizens. In a letter dated October 26, 1994, to Hong Kong investigators, Lui's attorney claimed that Lui and his company had been forced to relocate as the result of the adverse effect that the ongoing investigation in Hong Kong was having on Lui's business. The attorney further stated that Lui would be prepared to meet with the investigators in the Philippines. For reasons that have not been made clear, no such meeting was held.

On January 23, 1995, a Hong Kong magistrate issued an initial warrant for Lui's arrest. On or about March 29, 1995, Chui, who had moved to Singapore, was abducted, tortured, and murdered with extreme atrocity and cruelty. On December 12, 1995, another warrant for Lui's arrest, with expanded charges, was issued in Hong Kong. On December 19, 1995, Lui left Manila on a flight to Boston, with connecting layovers in Tokyo and Toronto. His stated purpose in coming to Boston was to visit a friend's child who had been seriously injured in an automobile accident. Hong Kong authorities learned of the trip and secured the cooperation of United States authorities, which resulted in Lui's arrest.

II. DISCUSSION

A. The Legal Standard

Courts have some discretion to grant bail in foreign extradition cases, but there is a presumption against doing so. Beaulieu v. Hartigan, 554 F.2d 1, 1-2 (1st Cir.1977). The reluctance of courts to grant pre-hearing release to persons sought by authorities with whom the United States has extradition treaties has been evident at least as early as the turn of the century, see Wright v. Henkel, 190 U.S. 40, 61-63, 23 S.Ct. 781, 786-87, 47 L.Ed. 948 (1903); In re Mitchell, 171 F. 289, 289-90 (S.D.N.Y.1909), and it has remained constant over the years. It is based on the view that, subject to limited exceptions, the United States has a solemn obligation to honor the lawful requests of its treaty partners to deliver to them accused persons found within its jurisdiction. In recognition of this obligation and to assure that we as a nation will always be in a position to honor it, bail is not granted in foreign extradition cases unless "special circumstances" exist. See Koskotas v. Roche, 931 F.2d 169, 175 (1st Cir.1991) (quoting United States v. Williams, 611 F.2d 914 (1st Cir.1979)). This "special circumstances" standard is much stricter than the "reasonable assurance" of appearance standard made applicable to domestic criminal proceedings by the Bail Reform Act. See 18 U.S.C. § 3142(e) (1994). Under the "special circumstances" standard, it would not be enough for the accused to be a "tolerable bail risk," United States v. Williams, 611 F.2d 914, 915 (1st Cir.1979), although that is surely a necessary condition. Rather, there must also be some "pressing circumstances," such that "the requirements of justice are absolutely peremptory." See id. (citing In re Mitchell, 171 F. 289 (S.D.N.Y.1909)).

Examples of the type of circumstances that have been deemed to be sufficiently urgent to warrant the granting of bail in foreign extradition cases are few and far between. In Mitchell, the accused was released solely for the few days necessary for him to attend a pending civil case on whose outcome his "whole fortune" depended. See 171 F. at 289-90. In Hu Yau-Leung v. Soscia, 649 F.2d 914, 920 (2d Cir.), cert. denied, 454 U.S. 971, 102 S.Ct. 519, 70 L.Ed.2d 389 (1981), release on bail was warranted because the accused was a juvenile and there was no suitable facility in which he could be held. In dictum in Williams, the First Circuit cited United States ex rel. McNamara v. Henkel, 46 F.2d 84 (S.D.N.Y.1912), for the proposition that a special circumstance "may include a delayed extradition hearing." See 611 F.2d at 915. It should be noted, however, that the court in McNamara expressly rejected the suggestion that a person might ever be admitted to bail prior to the date set for a "reasonably early" extradition hearing. See 46 F.2d at 84. Only where the hearing date "comes and the complainant is not ready to proceed" would it be "time ... to ask for bail." See id. Conversely, mere unfairness, such as where two similarly situated persons are treated differently, is not a special circumstance. See Williams, 611 F.2d at 915. As these examples illustrate, bail must be denied unless the accused is not only a "tolerable bail risk," but also would suffer some extreme deprivation beyond the ordinary "discomfiture of jail" if not released pending the extradition hearing. See id.

B. ...