Oen Yin-Choy v. Robinson, YIN-CHO

Citation858 F.2d 1400
Decision Date05 October 1988
Docket NumberP,YIN-CHO,No. 87-15055,87-15055
PartiesOENetitioner-Appellant, v. Glen S. ROBINSON, U.S. Marshal for the Northern District of California, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Cedric C. Chao, Michael M. Carlson, Thomas P. Reilly, Morrison & Foerster, San Francisco, Cal., for petitioner-appellant.

Eric J. Swenson, Asst. U.S. Atty., Dept. of Justice, San Francisco, Cal., for respondent-appellee.

Appeal from the United States District Court for the Northern District of California.

Before TANG, SCHROEDER and NELSON, Circuit Judges.

SCHROEDER, Circuit Judge:

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. Miller, 252 U.S. 364, 369, 40 S.Ct. 347, 349, 64 L.Ed. 616 (1920); Caplan v. Vokes, 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. Klein, 573 F.2d 1360, 1368 (9th Cir.), cert. denied, 439 U.S. 932, 99 S.Ct. 323, 58 L.Ed.2d 327 (1978)). See also Theron 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.

BACKGROUND

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 of Great Britain and Northern Ireland ("Treaty"), June 8, 1972, 28 U.S.T. 227, T.I.A.S. No. 8468, and by the 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 ("Supplementary Treaty"), ratified and entered into force December 23, 1986 (132 Cong.Rec. S9120 (daily ed. July 16, 1986)).

The United Kingdom leased the New Territories of Hong Kong from China in 1898 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 ceded to the United Kingdom in 1842 and 1860. See Comment, The Reversion of Hong Kong to China: Legal and Practical Questions, 21 Willamette L.Rev. 327 (1985). All of Hong Kong will revert to the People's Republic of China 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 with Annexes, Beijing, December 19, 1984, ratified and entered into force May 27, 1985, T.S. No. 26 (1985), Cmnd. 9543 (joint declaration).

These extradition proceedings were instituted on April 15, 1987, by the United States Attorney on behalf of the Government of the United Kingdom and the Crown Colony of Hong Kong. After a two-part extradition hearing, the district court entered a certification of extraditability on September 4, 1987, and subsequently denied the petition for habeas corpus on November 13, 1987.

DISCUSSION
I. The Lawfulness of the extradition under the Treaty.

Oen argues that the district court lacked jurisdiction to order his extradition because the Hong Kong Government has not satisfied requirements of the extradition Treaty. His arguments are based upon Article XII(1) of the Treaty which provides that the party requesting extradition, in this case Hong Kong, shall not extradite the fugitive to a third state. It further provides that after being extradited, the person shall not be charged with any offenses other than the offenses for which the party was extradited. The provision in relevant part reads as follows:

[A] person extradited shall not be detained or proceeded against in the territory of the requesting Party for any offense other than an extraditable offense established by the facts in respect of which his extradition has been granted, or on account of any other matters, nor be extradited by that Party to a third State--(a) until after he has returned to the territory of the requested Party; or (b) until the expiration of thirty days after he has been free to return to the territory of the requested Party.

Treaty, Article XII(1). The requirement that an individual be tried only for offenses for which extradition has been sought is generally referred to as the principle of "speciality." See Theron, 832 F.2d at 496.

Oen first contends that if he is extradited and convicted, he may remain incarcerated in Hong Kong beyond July 1, 1997, the date on which full sovereign control over Hong Kong will revert to the People's Republic of China. He argues that if this scenario occurs, he will in effect have been extradited to China, a third state, in violation of the Treaty.

Even if Oen does remain in prison in 1997, the reversion of Hong Kong to Chinese authority does not result in an extradition within the meaning of Article XII(1). The Supreme Court long ago defined "extradition" as the "surrender by one nation to another of an individual accused or convicted of an offense outside of its own territory, and within territorial jurisdiction of another, which, being competent to try and to punish him, demands his surrender." Terlinden v. Ames, 184 U.S. 270, 289, 22 S.Ct. 484, 492, 46 L.Ed. 534 (1902). We adopted that definition in Stevenson v. United States, 381 F.2d 142, 144 (9th Cir.1967). Neither deportation nor surrender other than in response to a demand pursuant to Treaty constitutes extradition. Id.; see also Emami, 834 F.2d at 1453-54. Therefore, even if Oen becomes subject to Chinese authority pursuant to a reversion of sovereignty upon cession and termination of the British lease of Hong Kong, he will not have been extradited to China.

Oen also contends that if he remains in Hong Kong after the transition to Chinese control, he will become subject to Chinese law and may be prosecuted for additional offenses or be subject to additional penalties in violation of the principle of speciality. He maintains that so long as such a possibility exists, Hong Kong has not met an implied condition in the extradition Treaty that Hong Kong will guarantee no prosecutions by successor governments. We find no support for such an interpretation.

The Treaty constitutes commitments between the United States and the United Kingdom on behalf of its Crown Colony. It does not purport to include commitments by successor governments or third states. In re Tang, 674 F.Supp. 1058, 1068-69 (S.D.N.Y.1987). Were the Treaty to be interpreted as Oen asks, extradition to Hong Kong would be the exception rather than the rule because it would be limited in practice only to extraditions for crimes which could be punished for a term expiring before the reversion date. There is no indication that the United Kingdom and the United States had any such intention when they expressly made the Supplementary Extradition Treaty applicable to Hong Kong on January 1, 1988, at a time when the impending reversion was fully understood. See Exchange of Notes of August 19 and 29, 1986, December 23, 1986, and December 31, 1987. 1

Oen's contention that Hong Kong has not met the requirements of the Extradition Treaty are groundless; thus, the district court had jurisdiction to determine Oen's extraditability.

II. Dual Criminality

Oen contends that his offenses are not extraditable because his conduct failed to satisfy elements of corresponding U.S. offenses. Under the principle of dual criminality, no offense is extraditable unless it describes conduct which is criminal in both jurisdictions. Emami, 834 F.2d at 1449. The Treaty at issue here expressly incorporates this principle. Treaty, Article III.

To satisfy dual criminality, the name by which the crime is described in the two countries need not be the same, nor does the scope of liability for the crime need to be the same. See Emami, 834 F.2d at 1450. "Rather, dual criminality exists if the 'essential character' of the acts criminalized by the law of each country are the same and if the laws are 'substantially analogous.' " Theron, 832 F.2d at 496 (quoting Wright v. Henkel, 190 U.S. 40, 58, 23 S.Ct. 781, 785, 47 L.Ed. 948 (1903)). Thus, "each element of the offense purportedly committed in a foreign country...

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