Matter of Extradition of Lui
| Decision Date | 29 August 1996 |
| Docket Number | No. 95-M1072-ZRK.,95-M1072-ZRK. |
| Citation | 939 F. Supp. 934 |
| Parties | In the Matter of EXTRADITION of LUI Kin-Hong a/k/a Jerry Lui. |
| Court | U.S. District Court — District of Massachusetts |
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Andrew Good, Silverglate & Good, Boston, MA, for Lui Kin-Hong.
Susan C. Hanson-Philbrick, United States Attorney's Office, Boston, MA, for U.S.
The Government of the United Kingdom, on instructions from the Crown Colony of Hong Kong, is seeking the extradition of Lui Kin-hong, a/k/a Jerry Lui ("Lui"), for alleged violations of section 9(1)(a) of the Prevention of Bribery Ordinance, Chapter 201, Laws of Hong Kong. The request for extradition was made pursuant to 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, June 8, 1972, 28 U.S.T. 227 ("the Treaty"), and the Supplementary 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").1 Lui has raised several objections to extraditability, including objections based on the fact that sovereignty over Hong Kong will revert to the People's Republic of China ("PRC") on July 1, 1997, 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, Dec. 19, 1984 ("the Joint Declaration"). .
This court held an extradition hearing on three consecutive days commencing May 28, 1996, and the parties filed lengthy pre- and post-hearing memoranda and reply memoranda. Upon careful consideration of the evidence, the memoranda, and the arguments of counsel. I conclude for the reasons stated below that Lui is extraditable on all charges except Charge 2, which charge relates to an alleged payment made to him in October 1988.
It is undisputed that Lui, a citizen of Hong Kong and, since 1994, of Canada, was employed by Brown & Williamson Tobacco Corporation ("B & W"), a United States corporation, from August 1988 to May 1, 1993. B & W, a wholly owned subsidiary of British-American Tobacco Industries PLC ("BAT PLC"), manufactures and distributes worldwide a number of popular brands of cigarettes, including Kent, Lucky Strike, and Viceroy. Beginning in June 1990, while Lui was still an employee of B & W, he was "seconded" to British-American Tobacco Company (Hong Kong) Limited ("BAT-HK"), a Hong Kong corporation that distributes cigarettes manufactured by B & W and others to countries in the Far East. BAT-HK is a wholly owned subsidiary of British-American Tobacco Company Limited, an English corporation that is wholly owned by BAT PLC. It was not clear from the evidence what responsibilities Lui actually performed at B & W from August 1988 until he was seconded to BAT-HK in June 1990, although he apparently held the title Regional Director for Taiwan and the Philippines and worked out of a Taiwan office during at least the latter part of that period. It was also unclear what his responsibilities, if any, were with respect to BAT-HK when he was initially seconded there. With respect to the latter point, the evidence revealed only that he was first posted to BAT-HK to serve as the "eyes and ears" of B & W and "to act as a liaison officer." (
It is also undisputed that, effective January 1, 1992, while he was still employed by B & W but stationed at BAT-HK and living in Hong Kong, Lui became BAT-HK's Director of Exports. He remained in that key position until he resigned from B & W effective May 1, 1993. As Director of Exports, Lui was influential in determining how many cartons of cigarettes (including, but apparently not limited to, brands manufactured by B & W) BAT-HK would allocate to each of its distributors for resale. One of BAT-HK's distributors was Giant Island Ltd. ("GIL"). In a ten-charge warrant, the details of which are discussed below, Hong Kong authorities allege that, from 1988 to 1993, Lui accepted bribes from GIL or its affiliate, Wing Wah Company ("Wing Wah"), in violation of section 9. The bribes were allegedly paid to induce Lui to cause BAT-HK to make favorable allocations of cigarettes to GIL or Wing Wah or to reward him for having done so. It is undisputed that Lui had no authority to influence BAT-HK's allocation decisions until several years after the first payment was allegedly made in October 1988. Indeed, it is undisputed that Lui was not even seconded to BAT-HK until more than a year and a half after the initial payment. Hong Kong authorities nevertheless allege that the payments commenced as early as they did because Lui, GIL, and Wing Wah had the foresight to anticipate as early as October 1988 that Lui would eventually become influential in making cigarette allocation decisions on behalf of BAT-HK.
Effective May 1, 1993, Lui left B & W and BAT-HK and immediately began working for a company affiliated with GIL. In April 1994, Hong Kong authorities sought to arrest Lui, but he had already left Hong Kong for the Philippines, where his employer had set up operations and with whom Hong Kong had no extradition treaty. As far as the record reveals, Lui never returned to Hong Kong, despite the fact that, for at least most months in the past two years, his wife and children remained there. Hong Kong authorities learned that Lui would be flying to Boston on personal business on December 20, 1995, and they arranged to have him arrested at Logan Airport upon his arrival. He has been held in custody since that date. See In re Extradition of Lui Kin-Hong, 913 F.Supp. 50 (D.Mass.), habeas corpus granted by Kin-Hong v. United States, 926 F.Supp. 1180 (D.Mass.), order rev'd, 83 F.3d 523 (1st Cir.1996) (per curiam).
Although several warrants for Lui's arrest have been issued in Hong Kong since 1994, the most recent one, and the one that is operative here, is dated February 5, 1996.2 The warrant sets forth ten charges, all brought under section 9(1)(a) and one also brought under common law. The first charge is that Lui, as an agent of "Brown and Williamson Limited"3 and of BAT-HK, conspired in Hong Kong, between June 1, 1988, and December 31, 1993, with present and former principals of GIL and Wing Wah to "accept advantages ... as an inducement to or reward for or otherwise on account of ... Lui's doing or having done an act in relation to his principal's affairs or business, namely, ensuring the sale and supply of cigarettes from BAT-HK to Wing Wah Company and/or GIL and/or associated companies...."
Charges 2 through 10 charge Lui with substantive violations of section 9. Specifically, charges 2 through 8 charge Lui with accepting advantages in the following amounts on the dates indicated:
Charges 9 and 10 charge Lui with accepting advantages in the form of unsecured loans in the amounts of HK$3,000,000 and HK$7,000,000, respectively, from a GIL affiliate between January 1, 1993, and April 30, 1993. Since the exchange rate between Hong Kong and United States dollars is in the range of 7 to 1, see, e.g., Currency Trading, Wall St.J., Aug. 20, 1996, at C20, Lui is alleged to have accepted outright payments of approximately US$3,000,000 and unsecured loans in the order of magnitude of US$1,500,000.
As noted, each charge is brought under section 9, entitled "Corrupt transactions with agents," which provides, in pertinent part:
Other relevant provisions of the Prevention of Bribery Ordinance include: section 2(1), which defines the term "advantage" as meaning, among other things, "(a) any gift, loan, fee, reward or commission consisting of money," the term "agent" as "including ... any person employed by or acting for another," and the term "principal" as "including ... an employer"; section 2(2)(c), which states that "a person accepts an advantage if he ... directly or indirectly takes, receives or obtains, or agrees to take, receive or obtain any advantage"; section 12(1)(a)(iii), which provides for a term of imprisonment of up to seven years for a violation of section 9; and section 12A, which specifies the same penalty upon conviction of conspiracy to violate section 9.
In the United States, extradition is governed entirely by treaty and statute. See, e.g., In re Extradition of Howard (United States v. Howard), 996 F.2d 1320, 1329 (1st Cir.1993). In this case, it is undisputed that the applicable treaty is the 1972 Treaty, as supplemented by the 1985 Supplementary Treaty, and that the applicable statutes are 18 U.S.C. §§ 3184 and 3186 (1994).4
Although some of the inquiries in a particular extradition...
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