U.S. v. Sai-Wah, CIV.A. 3:03CV103-H.

• Decision Date: 14 July 2003
• Docket Number: No. CIV.A. 3:03CV103-H.,CIV.A. 3:03CV103-H.
• Citation: 270 F.Supp.2d 748
• Court: U.S. District Court — Western District of North Carolina
• Parties: UNITED STATES of America, Plaintiff, v. Poon SAI-WAH, Defendant.

270 F.Supp.2d 748

UNITED STATES of America, Plaintiff, v. Poon SAI-WAH, Defendant.

No. CIV.A. 3:03CV103-H.

United States District Court, W.D. North Carolina, Charlotte Division.

July 14, 2003.

Noell Tin, Charlotte, NC, for defendant.

Paul B. Taylor, United States Attorney, Asheville, NC, for U.S.

MEMORANDUM AND ORDER

HORN, United States Magistrate Judge.

THIS MATTER is before the Court on the Government's "Complaint Seeking Extradition" filed March 10, 2003, as amended by its "Amended Complaint Seeking Extradition" filed April 22, 2003. In support of its Amended Complaint, the Government states that it represents "the People's Republic of China, Government of Hong Kong Administrative Region"; that there is a treaty with Hong Kong which remains "in full force and effect"; that Poon Sai-Wah "was charged with Evasion of Liability by Deception" in violation of Hong Kong law; that in commission of the alleged offense Poon Sai-Wah gave postdated checks, which were later rejected due to insufficient funds, in an aggregate amount of $470,599.77; and that Poon Sai-Wah emigrated to the United States prior to the February 1, 1996 date on which the post-dated checks were due and payable.

With the consent of the parties, this matter has been referred to the undersigned Magistrate Judge, initially by Order filed April 4, 2003 (document # 5) "to conduct the initial appearance" and thereafter by Order filed April 29, 2003 (document # 9) "to conduct all proceedings."

Reference is made to the following pleadings, each of which has been carefully considered: "Defendant's Memorandum Of Law In Opposition To Extradition" filed June 18, 2003 (document # 10); Mr. Poon's "Motion To Dismiss For Lack Of Subject Matter Jurisdiction" filed June 18, 2003 (document # 11); "Government's Response To Motion To Dismiss" filed June 23, 2003 (document # 12); "Defendant's Supplemental Memorandum of Law In Opposition To Extradition" filed June 30, 2003 (document # 13); and "Government's Response to Defendant's Supplemental Memorandum" filed July 3, 2003 (document # 14). A hearing was conducted by the undersigned on Monday, June 23, 2003, and the arguments of counsel at the hearing have also been carefully considered.

The Government has attempted on a previous occasion to have Mr. Poon extradited, in a proceeding filed in the Eastern District of New York. Although the presiding judge in that case declined to certify extraditability, counsel for the Government in this district (AUSA Paul B. Taylor) argues that the case presented in New York failed to articulate a full and accurate picture of the Hong Kong charges. Mr. Taylor urges that, when understood in their larger context, the charges in Hong Kong are essentially that Mr. Poon committed a fraud which would be criminally actionable in federal court and in a preponderance of state jurisdictions.

Mr. Poon and the Government agree that for extradition to be proper: (a) there must be a valid treaty between our country and the country seeking extradition; and (b) the alleged criminal conduct must violate federal law and/or a preponderance of state law and the criminal laws of Hong Kong/Republic of China. The parties also agree that Mr. Poon's alleged conduct would violate the laws of Hong Kong/Republic of China.

The Government first urges the Court, in its "Response [to Mr. Poon's] Motion to Dismiss," to find that there is a valid treaty with Hong Kong. The Government notes that the only federal courts that have considered this issue in published opinions—the Second Circuit Court of Appeals in Cheung v. United States, 213 F.3d 82 (2d Cir.2000), and the Central District of California in In re Extradition of James Coe, 261 F.Supp.2d 1203 (C.D Cal.2003)—have determined that the extradition treaty with Hong Kong is valid. The Government also notes that the U.S. Department of State officially considers the extradition treaty with Hong Kong to be "in full force effect," an opinion the parties believe to be entitled to somewhere between "respect" (Mr. Poon's term) and "deference" (the Government's term).

Counsel for Mr. Poon argues to the contrary that "Hong Kong is a sub-sovereign region ultimately governed by the Peoples Republic of China" with whom the United States has no extradition treaty. The reasons for the United States not having an extradition treaty with China are alleged to "include the lack of due process by the Chinese criminal justice system and the poor human rights record [in the Republic of China] in general." In further support of his position, Mr. Poon shows the Court that Hong Kong is not on the list of countries in 18 U.S.C. § 3184 with whom the United States has valid extradition treaties; that the treaty on which the Government relies "was negotiated prior to Hong Kong's reversion to China on July 1, 1997"; and that "[i]n determining whether the extradition statutes encompass sub-sovereigns it is the judiciary's decision that controls."

Although defense counsel for Mr. Poon makes an interesting and earnest argument that the subject treaty is invalid, the undersigned will have to decline counsel's...