Oen Yin Choy v Robinson
| Date | 05 October 1988 |
| Court | U.S. Court of Appeals — Ninth Circuit |
(Tang, Schroeder and Nelson, Circuit Judges)
Extradition Speciality Accused liable to be extradited to Hong Kong Reversion of Hong Kong to People's Republic of China in 1997 Whether violation of speciality principle in United Kingdom United States Extradition Treaty Double criminality Requirement that conduct constitute an offence under laws of both the requesting and the requested State Extent of requirement Whether requirement satisfied by corresponding substantive elements of offence
State succession Treaties Extradition treaties Hong Kong Reversion of sovereignty to People's Republic of China Effect on United Kingdom United States Extradition Treaty Whether Treaty containing implied guarantee by Hong Kong that any person extradited there would not be prosecuted by a successor government The law of the United States
Summary:The facts:The British Colony of Hong Kong requested the extradition of the petitioner on charges of false accounting and publishing a false statement. The District Court certified that he was liable to extradition and subsequently denied the petitioner's application for habeas corpus. The petitioner appealed, contending, inter alia,
(i) that as Hong Kong was to become part of the People's Republic of China in 1997, he would in effect be extradited to a third State in violation of the principle of speciality as provided for in Article XII(l) of the United KingdomUnited States Extradition Treaty (the Treaty);1
(ii) that the offences with which he had been charged were not extraditable as his alleged conduct failed to satisfy all the elements of the corresponding United States offences;
(iii) that there was insufficient evidence to establish probable cause to believe that he had committed the offences;
(iv) that his due process rights had been violated as he had been denied the right to cross-examine a particular witness and he had been inadequately informed of the charges against him; and,
(v) that as the same judge had presided over both the extradition and habeas corpus proceedings he had been denied a meaningful review of the extradition proceedings.
Held:The appeal was dismissed.
(1) The scope of a review for a habeas corpus petition which had been brought to challenge a District Court's certification of extraditability was limited to consideration of whether the extradition judge had jurisdiction to conduct the extradition proceedings; the extradition court had jurisdiction over the fugitive; the Treaty was in full force and effect; the crime fell within the terms of the Treaty; and whether there was competent legal evidence to support the certification of extraditability (pp. 456).
(2) Neither deportation nor surrender other than in response to a demand made pursuant to an extradition treaty constituted an act of extradition. Accordingly, even if the petitioner were to remain in prison until 1997, the reversion of Hong Kong to Chinese authority would not constitute an act of extradition within the meaning of Article XII(1) of the Treaty (pp. 467).
(3) There was no evidence indicating that the Supplementary Extradition Treaty between the United Kingdom and the United States (the Supplementary Treaty) of 1986 contained an implied guarantee by Hong Kong that any persons extradited to that Colony pursuant to the Treaty would not be prosecuted by successor governments. The Supplementary Treaty did not purport to include any commitments by a successor government or third parties. As a consequence, the only way in which such an implied condition could be enforced would be to limit extradition requests to those crimes carrying sentences which could not extend beyond the date on which Hong Kong reverted to Chinese sovereignty. There was no indication that the United States and the United Kingdom had intended to incorporate any such limitation into the Supplementary Treaty (p. 47).
(4) In order to satisfy the requirement of double criminality it was not necessary that the law of both States should define the crime in the same way or that the scope of liability should be the same in both States. It was enough that the particular act for which extradition was sought should be criminal in both countries. Accordingly, each element of the offence purportedly committed in the requesting State did not have to be identical to the elements of a similar offence in the United States (pp. 478).
(5) As the offences with which the petitioner had been charged had been enumerated as extraditable offences under the Treaty and the crimes of false accounting and publishing of a false statement were substantially analogous to the United States crime of making a false entry in a bank statement, the requirement of double criminality had been satisfied (p. 48).
(6) The petitioner's due process rights had not been violated as there was no right of cross-examination in extradition proceedings and he had been adequately appraised of the charges against him (pp. 4950).
(7) The evidence submitted by the Hong Kong authorities was sufficient to establish that there was probable cause to believe that the petitioner was guilty of the crimes of false accounting and publishing a false statement (pp. 501).
(8) It was not necessary for the judge who had presided at the petitioner's extradition hearing to abstain from hearing his subsequent petition for habeas corpus (p. 51).
The following is the text of the judgment of the Court, delivered by Circuit Judge Schroeder:
This is an appeal from the district court's denial of a petition for a writ of habeas corpus which the appellant filed to prevent his extradition to Hong Kong. The Crown Colony of Hong Kong seeks extradition of appellant Oen Yin-Choy from the United States to stand trial on six counts of false accounting and one count of publishing a false statement. The extradition proceeding is set against the historic backdrop of the scheduled reversion of Hong Kong from the United Kingdom to the People's Republic of China in 1997. Oen's principal contention is that he cannot lawfully be extradited under the applicable extradition Treaty between the United States and the United Kingdom. Oen contends that as a result of the contemplated 1997 reversion he may find himself subject to the exercise of China's criminal jurisdiction, in violation of the Treaty. We hold that no part of the extradition Treaty bars the extradition ordered by the district court.
Oen also challenges the sufficiency and admissibility of evidence in the extradition proceeding. Because a certification of extraditability is not a final order, no direct appeal from the decision will lie and review is available only by way of a petition for habeas corpus. Collins v. MillerUNKUNK, 252 U.S. 364, 369, 40 S.Ct. 347, 349, 64 L.Ed. 616 (1920); Caplan v. VokesECAS, 649 F.2d 1336, 1340 (9th Cir.1981). The scope of review in such instances is restricted to inquiring whether (1) the extradition judge had jurisdiction to conduct extradition proceedings; (2) the extradition court had jurisdiction over the fugitive; (3) the Treaty of extradition was in full force and effect; (4) the crime fell within the terms of the Treaty; and (5) there was competent legal evidence to support a finding of extraditability. Emami v. United States Dist. Court for the N. Dist. of California, 834 F.2d 1444, 1447 (9th Cir.1987) (quoting Hooker v. KleinINTL,[2] 573 F.2d 1360, 1368 (9th Cir.), cert. denied, 439 U.S. 932, 99 S.Ct. 323, 58 L.Ed.2d 327 (1978)). See alsoTheron v. United States Marshal, 832 F.2d 492, 495 (9th Cir.1987), cert. denied,U.S.,
108 S.Ct. 2830, 100 L.Ed.2d 930 (1988). Oen's claims are without merit under the limited standards applicable to review of extradition proceedings.Extradition to the Crown Colony of Hong Kong is governed by the Extradition Treaty between the Government of the United States of America and the Government of the United Kingdom...
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