The Extradition of Cheung

Date23 May 2000
CourtUnited States District Courts
United States District Court, District of Connecticut.
United States Court of Appeals, Second Circuit.

(Dorsey, Senior District Judge)

(McLaughlin, Sack and Katzmann, Circuit Judges)

In the Matter of the Extradition of Cheung
United States of America1

Treaties Parties Whether territorial unit within a State can be party to a treaty Extradition agreement between State and subordinate territory Hong Kong Hong Kong-United States of America Agreement for the Surrender of Fugitive Offenders, 1996 (Hong Kong Extradition Agreement) United States Federal Extradition Statute Whether Hong Kong Extradition Agreement a treaty between the United States and a foreign government within the meaning of the Federal Extradition Statute The law of the United States of America

Summary: The facts:On 1 July 1997 Hong Kong ceased to be a British colony and became the Hong Kong Special Administrative Region (HKSAR) of the People's Republic of China. Prior to that date, extradition between the United States of America and Hong Kong had been governed by the extradition treaties in force between the United States of America and the United Kingdom. In anticipation of those treaties ceasing to apply to Hong Kong, the Agreement between the Government of the United States of America and the Government of Hong Kong for the Surrender of Fugitive Offenders (the Hong Kong Extradition Agreement) was concluded in 1996 and received the advice and consent of the United States Senate in October 1997. The United States Federal Extradition Statute, 18 USC Section 3184, conferred upon federal judicial officers in the United States jurisdiction to conduct extradition proceedings based on a treaty or convention for extradition between the United States and any foreign government.

In June 1998 the HKSAR sought the extradition of Mr Cheung from the United States. Magistrate Judge Margolis certified Mr Cheung's extraditability on 5 February 1999. Mr Cheung petitioned for a writ of habeas corpus.

Held (by the District Court):Mr Cheung's petition for a writ of habeas corpus was granted and his discharge from custody ordered.

(1) Since the HKSAR was not a foreign country under Section 3181 of the Federal Extradition Statute, there was no treaty with a government of a foreign country (p. 664).

(2) As such, no enforceable treaty existed and Mr Cheung could not be extradited to the HKSAR pursuant to Section 3184 of the Federal Extradition

Statute. The Magistrate Judge thus lacked jurisdiction to certify Mr Cheung's extraditability (p. 664)
The Government of the United States appealed.

Held (by the Court of Appeals):The judgment of the District Court was reversed and the case remanded to the District Court to vacate the writ of habeas corpus and to enter a certificate of extraditability and an order committing Mr Cheung to await extradition to the HKSAR.

(1) The term foreign government in the Federal Extradition Statute was not limited to foreign sovereigns or foreign central governments. It also included subsovereign authorities such as the HKSAR. Since the text of the statute was ambiguous, the term was construed to give effect to the purpose of the statute and to the Hong Kong Extradition Agreement (pp. 6727).

(2) Since the Hong Kong Extradition Agreement was a treaty between the United States and a foreign government, the Magistrate Judge had jurisdiction to certify Mr Cheung's extraditability (p. 677).

The text of the judgment of the Court of Appeals, delivered by Circuit Judge Katzmann, commences at p. 665. The following is the text of the judgment of the District Court:


Petitioner John Cheung seeks a writ of habeas corpus pursuant to 28 USC 2241 et seq. Petitioner appeals Magistrate Judge Margolis's Ruling on Request for Extradition dated 5 February 1999, which granted the Government's request for extradition. Petitioner also moves for release on bond pending the resolution of his petition. Familiarity with the factual and procedural background of petitioner's case is presumed. SeeIn re Extradition of CheungUNK 968 F. Supp. 791 (D. Conn. 1997): Ruling on Request for Extradition, No 3:98MC51 (JGM) (D. Conn. 5 February 1999).

[A] party who is to be extraditeda relatormay obtain limited review of an extradition order by seeking a writ of habeas corpus pursuant to 28 USC 2241. In this context, habeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offen[s]e charged is within the treaty and whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.Spatola v. United StatesECAS, 925 F 2d 615, 617 (2d Cir. 1991) (quotes and citations omitted). Petitioner argues that the court lacked jurisdiction under the applicable statutes to grant the Government's request to extradite him from this country to the Hong Kong Special Administrative Region (HKSAR). Specifically, petitioner contends that HKSAR is not a country within the meaning of USC 3181 and 3184, which authorize extradition. The Government responds that the plain meaning of 3184, its legislative history, and the demands of foreign affairs, indicate that the statute permits extradition to a subsovereign government.1

Title 18, 3184, entitled Fugitives from foreign country to United States, provides that:

Title 18 3181, entitled Scope and limitation of chapter, provides in subsection (a) that: [t]he provisions of this chapter relating to the surrender of persons who have committed crimes in foreign countries shall continue in force only during the existence of any treaty of extradition with such foreign government. (emphasis added)

Petitioner expounds the only consistent and permissible meaning of the statute. Petitioner argues that such foreign government refers to the government of the foreign country alone. Any other reading would deprive the word such of meaning and render it superfluous. It is axiomatic that construction of a statute must give meaning to every word in the statute. SeePlatt v. Union Pacific R. Co., 99 US 48, 58 (1878) (Congress is not to be presumed to have used words for no purpose.); United States v. BlasiusUNK, 397 F. 2d 203, 207 n. 9 (2d Cir. 1968) (There is a presumption against construing a statute as containing superfluous or meaningless words or giving it a construction that would render it ineffective.). As the statute directs, the definitions of 3181 apply throughout the chapter, which includes 3184.2 Therefore, 3184 uses the term foreign government in the same manner to refer to the government of a foreign country. Because HKSAR is not a foreign country, a treaty with the government of HKSAR does not confer jurisdiction to extradite petitioner under the terms of 3184.

The Government responds that the term any foreign government of 3184 does not require a kind of foreign government, such as national or democratic foreign government. The Government contends that HKSAR clearly is a foreign government and therefore falls within the meaning of 3184. That HKSAR is a foreign government begs the question, which really asks, government of what? The word government by itself implies nothing concerning the object governed.

See Webstor's Third New Int'l Dictionary 982 (1981) (government defined as the office, authority, or function of governing). Section 3181 answers this query by indicating that the treaty must be with the government of a foreign country.3 To construe 3184 otherwise would permit extradition to a foreign municipality or other local entity, so long as there was an agreement with such, an incongruous result contrary to 3181. After the fact approval of the agreement between the United States and HKSAR (Agreement) by the People's Republic of China (PRC), admittedly the government of a foreign country, does not convert this Agreement into one directly with the PRC, as the statute requires. See Basic Law at xii (Art. 96). Furthermore, such approval demonstrates conclusively HKSAR's subsovereign status, as another foreign government has control over its foreign relations.

The Government argues that this reading conflicts with Congressional intent. In the first place, inquiry into legislative intent is inappropriate where the meaning of the statute is clear. See, e.g., Darby v. Cisneros 509 US 137, 147 (1993) (Recourse to the legislative history of [the statute] is unnecessary in light of the plain meaning of the statutory text.). In the second place, examination of both the statute and the Agreement reveals that the legislative history does not consistently support one position in this difficult issue. It is highly unlikely that Congress intended to grant jurisdiction to extradite foreign nationals to subsovereign regions of foreign countries when it enacted 3184 more than 150 years ago. SeeLa Duca v. United StatesECAS, 93 F. 3d 1100, 1103 (2d Cir. 1996). Numerous cases attest to the historical norm of extradition as a process between two nations. See, e.g., Terlinden v. Ames, 184 US 270, 282 (1902) (Extradition may be sufficiently defined to be the surrender by one nation to another); Gallina v. FraserECAS, 278 F. 2d 77, 78 (2d Cir. 1960) (extradition from the United States to a foreign nation). This fact is also demonstrated by the absence of a single case, cited by petitioner or the Government, of extradition to a subsovereign region. On the other hand, the Senate's ratification of the Agreement on 23 October 1997 indicates its intention to permit extradition to HKSAR. However, such efforts by the Executive branch and the Senate do not supplant the prior legislation of the entire Congress. The State Department cannot exceed the jurisdiction granted by Congress; the Senate cannot act in contravention of the provisions of 3181 and 3184.

The Government also argues that this reading improperly interferes with the conduct of foreign affairs, exemplified by the Hong Kong Policy Act, 22 USC 570132 (Policy Act). Congress passed the Policy Act in...

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