U.S. v. Kin-Hong

Citation110 F.3d 103
Decision Date05 March 1997
Docket NumberKIN-HONG,No. 97-1084,97-1084
PartiesUNITED STATES of America, Appellant, v. Lui, a/k/a Jerry Lui, Appellee. . Heard
CourtU.S. Court of Appeals — First Circuit

Alex Whiting, Assistant United States Attorney, with whom Donald K. Stern, United States Attorney, Susan Hanson-Philbrick, Assistant United States Attorney, and Michael Surgalla, United States Department of Justice, Office of International Affairs, were on brief, for the United States.

Andrew Good, with whom Harvey A. Silverglate and Silverglate & Good were on brief, for appellee.

Michael Posner and John Reinstein on brief for Lawyer's Committee for Human Rights and American Civil Liberties Union of Massachusetts, amici curiae in support of appellee.

Before BOUDIN, Circuit Judge, ALDRICH, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

The United States District Court granted a writ of habeas corpus to Lui Kin-Hong ("Lui"), who sought the writ after a magistrate judge certified to the Secretary of State that she may, in her discretion, surrender Lui for extradition to the Crown Colony of Hong Kong. The United Kingdom, on behalf of Hong Kong, had sought Lui's extradition on a warrant for his arrest for the crime of bribery. Lui's petition for habeas corpus was premised on the fact that the reversion of Hong Kong to the People's Republic of China will take place on July 1, 1997, and it will be impossible for the Crown Colony to try and to punish Lui before that date. The United States appeals. We reverse the order of the district court granting the writ of habeas corpus.

The United States argues that Lui is within the literal terms of the extradition treaties between the United States and the United Kingdom, that the courts may not vary from the language of the treaties, and that the certification must issue. Lui argues that the language of the treaties does not permit extradition, an argument which is surely wrong. Lui's more serious argument is that the Senate, in approving the treaties, did not mean to permit extradition of someone to be tried and punished by a government different from the government which has given its assurances in the treaties.

Lui does not claim that he faces prosecution in Hong Kong on account of his race, religion, nationality, or political opinion. He does not claim to be charged with a political offense. The treaties give the courts a greater role when such considerations are present. Here, Lui's posture is that of one charged with an ordinary crime. His claim is that to surrender him now to Hong Kong is, in effect, to send him to trial and punishment in the People's Republic of China. The Senate, in approving the treaties, could not have intended such a result, he argues, and so the court should interpret the treaties as being inapplicable to his case. Absent a treaty permitting extradition, he argues, he may not be extradited.

While Lui's argument is not frivolous, neither is it persuasive. The Senate was well aware of the reversion when it approved a supplementary treaty with the United Kingdom in 1986. The Senate could easily have sought language to address the reversion of Hong Kong if it were concerned, but did not do so. The President has recently executed a new treaty with the incoming government of Hong Kong, containing the same guarantees that Lui points to in the earlier treaties, and that treaty has been submitted to the Senate. In addition, governments of our treaty partners often change, sometimes by ballot, sometimes by revolution or other means, and the possibility or even certainty of such change does not itself excuse compliance with the terms of the agreement embodied in the treaties between the countries. Treaties contain reciprocal benefits and obligations. The United States benefits from the treaties at issue and, under their terms, may seek extradition to the date of reversion of those it wants for criminal offenses.

Fundamental principles in our American democracy limit the role of courts in certain matters, out of deference to the powers allocated by the Constitution to the President and to the Senate, particularly in the conduct of foreign relations. Those separation of powers principles, well rehearsed in extradition law, preclude us from rewriting the treaties which the President and the Senate have approved. The plain language of the treaties does not support Lui. Under the treaties as written, the courts may not, on the basis of the reversion, avoid certifying to the Secretary of State that Lui may be extradited. The decision whether to surrender Lui, in light of his arguments, is for the Secretary of State to make.

This is not to say American courts acting under the writ of habeas corpus, itself guaranteed in the Constitution, have no independent role. There is the ultimate safeguard that extradition proceedings before United States courts comport with the Due Process Clause of the Constitution. On the facts of this case, there is nothing presenting a serious constitutional issue of denial of due process. Some future case may, on facts amounting to a violation of constitutional guarantees, warrant judicial intervention. This case does not.


We repeat the facts essentially as we stated them in our earlier opinion. United States v. Lui Kin-Hong, 83 F.3d 523 (1st Cir.1996) (reversing district court's decision to release Lui on bail).

Lui is charged in Hong Kong with conspiring to receive and receiving over U.S. $3 million in bribes from Giant Island Ltd. ("GIL") or GIL's subsidiary, Wing Wah Company ("WWC"). Lui, formerly a senior officer of the Brown & Williamson Co., was "seconded" in 1990 to its affiliated company, the British American Tobacco Co. (Hong Kong) Ltd. ("BAT-HK"), where he became Director of Exports in 1992. The charges result from an investigation by the Hong Kong Independent Commission Against Corruption ("ICAC"). The Hong Kong authorities charge that GIL and WWC, to which BAT-HK distributed cigarettes, paid bribes in excess of HK $100 million (approximately U.S. $14 to $15 million) to a series of BAT-HK executives, including Lui. The bribes were allegedly given in exchange for a virtual monopoly on the export of certain brands of cigarettes to the People's Republic of China ("PRC") and to Taiwan. Among the cigarettes distributed were the popular Brown & Williamson brands of Kent, Viceroy, and Lucky Strike. GIL purchased three-quarters of a billion dollars in cigarettes from 1991 to 1994, mostly from BAT-HK.

A former GIL shareholder, Chui To-Yan ("Chui"), cooperated with the authorities and, it is said, would have provided evidence of Lui's acceptance of bribes. Some of Lui's alleged co-conspirators attempted to dissuade Chui from cooperating. Chui was later abducted, tortured, and murdered. The ICAC claims that the murder was committed to stop Chui from testifying. Lui is not charged in the murder conspiracy. Lui was in the Philippines (which has no extradition treaty with Hong Kong) on a business trip when the Hong Kong authorities unsuccessfully sought to question him in April 1994. Lui has not returned to Hong Kong since then.

At the request of the United Kingdom ("UK"), acting on behalf of Hong Kong, United States marshals arrested Lui as he got off a plane at Boston's Logan Airport on December 20, 1995. The arrest was for the purpose of extraditing Lui to Hong Kong. 1 The government asked that Lui be detained pending completion of the extradition proceedings. The magistrate judge, after a hearing, denied Lui's request to be released on bail.

The district court, on April 25, 1996, reversed the order of the magistrate judge and released Lui on bail and conditions. Lui Kin-Hong v. United States, 926 F.Supp. 1180 (D.Mass.1996). The district court held that the reversion of Hong Kong to the PRC on July 1, 1997, raised complex legal issues that would result in protracted proceedings and presented a "special circumstance" overriding the presumption against bail. Id. at 1189. That court also found that there were conditions of release that would adequately ensure Lui's presence at future proceedings. Id. at 1196. This court reversed the district court and, on May 14, 1996, ordered Lui held pending the resolution of the extradition certification issue. Lui, 83 F.3d at 525.

The magistrate judge commenced extradition hearings on May 28, 1996. Those proceedings, during which evidence was taken, lasted three days. The magistrate judge found that there was probable cause to believe that Lui had violated Hong Kong law on all but one of the charges in the warrant. 2 Magistrate Judge Karol, pursuant to 18 U.S.C. § 3184, issued a careful decision certifying Lui's extraditability on August 29, 1996. In re Extradition of Lui Kin-Hong ("Lui Extradition "), 939 F.Supp. 934 (D.Mass.1996). On September 3, 1996, Lui filed an amended petition for a writ of habeas corpus, the only avenue by which a fugitive sought for extradition (a "relator") may attack the After a hearing, the district court issued a memorandum and order granting the writ on January 7, 1997. Lui Kin-Hong v. United States ("Lui Habeas "), 957 F.Supp. 1280, (D.Mass.1997). The district court reasoned that, because the Crown Colony could not try Lui and punish him before the reversion date, the extradition treaty between the United States and the UK, which is applicable to Hong Kong, prohibited extradition. Id. at 1285-86. Because no extradition treaty between the United States and the new government of Hong Kong has been confirmed by the United States Senate, the district court reasoned, the magistrate judge lacked jurisdiction to certify extraditability. See id. at 1286-92. The district court denied the government's motion for reconsideration on January 13, 1997. This court then stayed the district court's order and expedited the present appeal.

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