Matter of Extradition of Tang Yee-Chun

• Decision Date: 30 November 1987
• Docket Number: No. 87 Crim.Misc. 1,p. 10 (ELP).,87 Crim.Misc. 1
• Parties: In the Matter of EXTRADITION OF TANG YEE-CHUN, a/k/a "Tang Lamlap", and Chan Wai-King, a/k/a "Rita Chan".
• Court: U.S. District Court — Southern District of New York

674 F. Supp. 1058

In the Matter of EXTRADITION OF TANG YEE-CHUN, a/k/a "Tang Lamlap", and Chan Wai-King, a/k/a "Rita Chan".

No. 87 Crim.Misc. 1, p. 10 (ELP).

United States District Court, S.D. New York.

November 30, 1987.

COPYRIGHT MATERIAL OMITTED

Lawrence H. Schoenbach, New York City, M. Cherif Bassiouni, Chicago, Ill., for Tang Yee-Chun.

Susan G. Kellman, Carl M. Bornstein, New York City, for Chan Wai-King.

Catherine Gallo, Asst. U.S. Atty., Rudolph W. Giuliani, U.S. Atty., S.D.N.Y., New York City, for the government.

ORDER AND OPINION

PALMIERI, District Judge.

The relators, Tang Yee-Chun ("Tang") and Chan Wai-King ("Chan") were arrested on March 6, 1987 pursuant to warrants issued by a magistrate of this Court in accordance with an extradition treaty between the United States and the United Kingdom to answer a complaint seeking their extradition to Hong Kong. The complaint, dated March 5, 1987, charges Tang, Chan, and a third person not a party to this proceeding, with fraudulent trading practices resulting in the collapse and multi-million dollar losses to the depositors of a banking-type entity called the America and Panama Finance Company Limited ("A & P"). Tang and Chan have remained in custody since their arrest.

On April 16, 1987, the United Kingdom formally requested their extradition to Hong Kong on 46 separate charges involving false accounting and false statements by a corporate director or officer. Both before and after that date, the relators moved unsuccessfully before other judges of this Court for their release from custody and other relief. This proceeding has been delayed by repeated changes of counsel — Tang has retained five successive lawyers, and Chan four. Each has also had a Hong Kong lawyer collaborating with American counsel and in attendance at the evidentiary hearing. This Court was finally able to hold an evidentiary hearing on October 20, 1987, nearly eight months after the arrests. Both relators have filed petitions for writs of habeas corpus.

I Preliminary Findings and Contentions

The Court must first make the findings required by the statute governing extradition, 18 U.S.C. § 3184.¹ First, a valid extradition treaty exists — namely the Treaty between the United States and the United Kingdom, signed June 8, 1972, and entered into force January 21, 1977. TIAS 8468, 28 U.S.T. 227 (the "Treaty"). The Court further finds the crimes with which Tang and Chan are charged are provided for by the Treaty. 28 U.S.T. at 235, Nos. 19-20. Tang and Chan concede that they are the persons sought, and that they were found within this Court's jurisdiction. They do, however, dispute the existence of sufficient evidence "to sustain the charge". See Part III, infra.

Tang contends that the request for extradition on some of the charges was not accompanied by a warrant for his arrest, as is required by Article VII(3), 28 U.S.T. at 231. The Court need only point out the absence of the necessary warrants to the Secretary of State, but may not refuse to certify the extradition of Tang on those charges. See Hill v. United States, 737 F.2d 950, 952 (11th Cir.1984) ("the warrant may specify all the charges if the requesting country so chooses, but it need refer to only one"); cf. Shapiro v. Ferrandina, 478 F.2d 894, 905-06 & n. 10, (2d Cir.), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed. 2d 98 (1976). The relators contend that the acts they have allegedly engaged in are not criminal under the laws of both Hong Kong and the United States, as Article III requires, 28 U.S.T. at 229-30. See Part IV, infra. Chan contends that the United Kingdom cannot abide by certain other requirements of the Treaty. See Part V, infra.

In addition to making a number of due process claims, the relators raise procedural technicalities, with the primary authority for their arguments being the asserted experience of Tang's counsel. However, we have not found citation to his own writings, without support from binding authority, to be sufficiently persuasive.

II The Evidence

On October 20, 1981, the relators appeared before the Court with their counsel and were given an opportunity to explain the evidence submitted on behalf of the government of Hong Kong. They had possession of copies of the government's submission, and access to the actual submission, for more than six months before the hearing.

At the hearing, the government offered no witnesses; nor did the relators. Indeed, at the hearing the relators seemed unprepared to offer any evidence at all, and their presentation consisted mainly of narrow technical attacks on the government's submission. A recurrent theme in the relators' submissions to this Court is the suggestion that they are innocent of any wrongdoing and that this Court should provide them with the facilities for establishing their innocence. The issue of guilt or innocence is not before this Court. It can be appropriately passed on only by the courts in Hong Kong.

In view of the limitations necessarily imposed by the nature of an extradition hearing,² the six months the relators had to prepare, the fact of their appearance before the Court, and the explicit invitation extended by the Court to offer explanatory affidavits, it is concluded that they had ample notice and opportunity to be heard and suffered no deprivation of any rights to which they were entitled.

The government offered, and the Court accepted as duly authenticated, 18 volumes of affidavits and other documents which had been certified and sealed by the United States Consulate General in Hong Kong. The relators challenge the evidence submitted and contend that "this court must ... exclude any evidence that would be inadmissible in an extradition proceeding conducted in Hong Kong". They put forward the remarkable proposition that this Court must apply the Hong Kong laws of evidence. Their argument ignores the statutory provision that "the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that the evidence so offered is authenticated in the manner required". 18 U.S.C. § 3190. The proper authentication of the documents submitted by the government of Hong Kong conclusively supports their admissibility. See United States v. Galanis, 429 F.Supp. 1215, 1227-29 (D.Conn.), aff'd in relevant part, rev'd on other g'nds sub nom Galanis v. Pallank, 568 F.2d 234, 240 (2d Cir.1977).³ Any claim of inadmissiblity in a Hong Kong extradition proceeding is irrelevant.

The relators further contend that the testimony of accomplices Agnes Kwok and Eva Hui is inherently unreliable and should not be considered, and that the extradition should therefore be denied. Accomplice testimony is competent to support a finding of probable cause. Eain v. Wilkes, 641 F.2d 504, 510 (7th Cir.) ("such evidence may be of particular importance in extradition cases where all the alleged criminal activity occured in a distant country"), cert. denied, 454 U.S. 894, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981); Curreri v. Vice, 77 F.2d 130, 132 (9th Cir.) (accomplice testimony "is, next to the confession of the defendant, the most satisfactory kind of evidence that can be produced" in an extradition hearing), cert. denied, 296 U.S. 638, 56 S.Ct. 170, 80 L.Ed. 454 (1935); accord Zanazanian v. United States, 729 F.2d 624, 627 (9th Cir.1984). The accomplice statements are also attacked as made without personal knowledge, as is required by Rice v. Ames, 180 U.S. 371, 375-76, 21 S.Ct. 406, 407-08, 45 L.Ed. 577 (1901). These affidavits are replete with detail and demonstrate that the accomplices were indeed testifying from personal knowledge. Additionally, their accuracy is corroborated by the impressive affidavit of Mr. David Mace, a partner of the Arthur Anderson accounting firm, hired by the Hong Kong government to investigate the financial details of A & P's collapse. He made a meticulous examination and careful analysis of A & P's finances. The attack on Mr. Mace's affidavit as "peppered with inadmissible legal conclusions" ignores the fact that the standards governing the admissibility of evidence at trial are inapplicable. Neither the Federal Rules of Evidence nor the Federal Rules of Criminal Procedure are applicable in these proceedings. Messina v. United States, 728 F.2d 77, 80 (2d Cir.1984); Simmons v. Braun, supra, 627 F.2d 635 at 636; (2d Cir.1980); Fed.R.Evid. 1101(d)(3); Fed.R.Crim.P. 54(b)(5). The relators' attack on Mr. Mace's opinion as to the source of funds used to purchase A & P's main asset is of no probative value in this proceeding but may be raised at trial. See Matter of Sindona, 450 F.Supp. 672, 686-92 (S.D.N.Y.), writ of habeas corpus denied sub nom Sindona v. Grant, 461 F.Supp. 199 (S.D.N.Y.1978), aff'd, 619 F.2d 167 (2d Cir.1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1984, 68 L.Ed.2d 302 (1981).

The relators attack the "certifications" (affidavits) of several of the Hong Kong Magistrates on technical grounds. One Magistrate certifies that certain copies are "true and correct" but does not state that he compared the copies with originals. The certification complies with the requirements set out in the Treaty and cited by the relators. The objection is deemed frivolous. Other Magistrates' certifications contain certain typographical errors: a switched name, mis-typed digits in dates, exhibits put in the wrong order. Objections to these errors are also deemed to be frivolous.

We place particular reliance on the affidavits of Mr. Mace, of Tang's alleged accomplices, of A & P's depositors, and of the Hong Kong investigatory authorities. Additionally, there are numerous financial documents referred to in those affidavits and submitted as exhibits to the affidavit of Philip Layton, a detective with the Royal Hong Kong Police Force, which substantiate the charges against the relators.

III Probable Cause

The Treaty prohibits the relators' extradition unless the evidence...