United States of America v Lui Kin-Hong

Date10 April 1997
CourtU.S. Court of Appeals — First Circuit
United States District Court, District of Massachusetts.
United States Court of Appeals, First Circuit.

(Tauro, Chief Judge)

(Aldrich, Senior Circuit Judge; Boudin and Lynch, Circuit Judges)

(Torruella, Chief Judge; Selya, Boudin, Stahl and Lynch, Circuit Judges)

United States of America
Lui Kin-Hong, A.K.A. Jerry Lui1

States Sovereignty Transfer of sovereignty Joint Declaration between People's Republic of China and United Kingdom, 1984 Hong Kong due to revert to Chinese sovereignty on 1 July 1997 Hong Kong ceasing to exist as British Colony Hong Kong becoming part of China on date of reversion Article 3 of Joint Declaration Establishment of Hong Kong Special Administrative Region (HKSAR) Basic policies to remain intact for fifty years after handover Whether requesting sovereign able to comply with terms of United KingdomUnited States Extradition Treaty, 1972

Extradition Treaties Scope and effect United KingdomUnited States Extradition Treaty, 1972 Extended to Hong Kong in 1976 Supplementary Treaty, 1986 Whether terms of Treaty permitting extradition of petitioner to Hong Kong Whether requesting State able to try and punish petitioner before 1 July 1997 Whether change of sovereignty over Hong Kong affecting applicability of Treaty Absence of extradition treaty between United States and China Intention of United States Senate Doctrine of non-inquiry Doctrine of separation of powers Whether Court having independent role Whether Court able to depart from Treaty and wishes of Executive Non-justiciability of evaluation of contingent political events Whether certain provisions of Treaty rendering Treaty inapplicable to present case

Relationship of international law and municipal law United States Congress passing Hong Kong Policy Act 1992 United Kingdom United States Extradition Treaty, 1972 Act providing that all treaties with Hong Kong to remain in force until reversion Provision of means to continue treaties after 1 July 1997 Whether Act evidence of Congressional intent that Treaty should extend to petitioner Whether Act amending Treaty

State succession Transfer of Hong Kong from United Kingdom to China Whether doctrine applicable Effect on extradition treaty The law of the United States

Summary: The facts:The petitioner, a citizen of the British Dependent Territories (Hong Kong) and of Canada, was arrested in the United States in 1995 as the result of an extradition request by the United Kingdom on behalf of the British Colony of Hong Kong (Hong Kong). The Extradition Treaty, 1972 (the Treaty), which governed extradition arrangements between the United States and the United Kingdom, was officially extended to Hong Kong in 1976 and modified by the Supplementary Treaty, 1986. In 1996 the Magistrate Judge authorized the surrender of the petitioner to Hong Kong. He petitioned for a writ of habeas corpus.

Pursuant to the Joint Declaration between the People's Republic of China (China) and the United Kingdom, 1984 (the Joint Declaration), Hong Kong was due to revert to Chinese sovereignty on 1 July 1997. Under the terms of the Joint Declaration China declared its basic policies with respect to Hong Kong. It stated its intention to establish a Hong Kong Special Administrative Region (HKSAR) which was to be vested with a high degree of autonomy and independent judicial power. The laws in force in Hong Kong were to remain basically unchanged.2 Article 3(12) stipulated that these basic policies were to remain the same for fifty years after the handover.

The petitioner alleged that his extradition to Hong Kong was not permitted under the Treaty as it was not possible for him to be tried and punished by the requesting sovereign before Hong Kong reverted to China. He maintained that the United States Senate, in approving the Treaty, had not intended that the regime which tried and punished the fugitive should be different from that which had given its assurances in the Treaty. Accordingly, he maintained that he could not be surrendered as the Treaty did not permit his extradition and there was no extradition treaty between the United States and China.

The United States asserted that the literal terms of the Extradition Treaties between the United States and the United Kingdom clearly allowed the petitioner's extradition to Hong Kong and that in the circumstances of the case the Court was not permitted to deviate from the Treaties.

Held (by the District Court):The petition for a writ of habeas corpus was granted. The Magistrate Judge lacked jurisdiction to authorize the petitioner's extradition.

(1) The Court had the jurisdiction to examine whether the requesting sovereign was able to fulfil its obligations under the Treaty (p. 615).

(2) As it would be impossible for the United Kingdom to try and punish the petitioner through its Colony of Hong Kong before Hong Kong's reversion to China, the United Kingdom was unable to comply with the terms of the

Treaty. As such, and as no valid extradition treaty existed between the United States and China, the extradition of the petitioner could not be permitted (pp. 61517)

(3) In ratifying the Treaty the United States Senate had not intended that the petitioner should be tried and punished by China, a non-democratic country, but by the United Kingdom as requesting sovereign. Extradition to Hong Kong in these circumstances would, therefore, contravene the will of the Senate, as well as the terms of the Treaty. The Hong Kong Policy Act 1992 did not amend the Treaty and was only evidence of the fact that Congress supported the continuation of treaties with Hong Kong according to their own terms (pp. 61721).

(4) The doctrine of State succession, whereby a sovereign could assume all of the responsibilities and duties of a predecessor sovereign if all parties agreed, was not applicable as China, being a non-democratic regime, was not able to meet the political offence requirements, as amended by the Supplementary Treaty (pp. 6212).

(5) The non-inquiry doctrine, which forbade judicial authorities from investigating the fairness of a requesting nation's justice system when considering whether to permit extradition to that nation, had not been violated. The Court's interpretation of the Treaty was in fact consistent with this doctrine as it was based on its acceptance that the Executive and Legislature had deemed the justice system of the United Kingdom and its Colony fair enough to send the accused for trial (p. 622).

(6) As the Court had concluded that the Magistrate Judge lacked jurisdiction, it was unnecessary to consider whether he had also erred in finding probable cause for the crimes charged (p. 622).

The United States appealed.

Held (by the Court of Appeals):The appeal was allowed. The order of the District Court granting the writ of habeas corpus was reversed.

(1) The approval by the United States Senate of the Supplementary Treaty in 1986, while aware of the reversion of Hong Kong to China on 1 July 1997, and its lack of comment on the issue indicated that it did not intend the Treaty to be inapplicable where trial and punishment was to be carried out by China as opposed to Hong Kong. Governments of State parties changed frequently but this did not excuse non-compliance with the terms of the agreement (p. 623).

(2) The doctrine of the separation of powers meant that the Judiciary was not at liberty to rewrite treaties which had been approved by the Executive. As there was no denial of due process and the petitioner was facing prosecution for an ordinary crime, not for political reasons, the Court's independent role was restricted (p. 623).

(3) One of the principles developed by the courts to ensure that judicial enquiry did not impinge upon executive prerogative and expertise was the rule which prohibited investigation into the fairness and procedures of a requesting nation's justice system. Whether the new treaty between the United States and the new Hong Kong Government, providing for reciprocal post-reversion extradition, would be approved by the Senate, whether the current treaty was to be extended by executive agreement and whether China was to adhere to the terms of the Joint Declaration were questions which involved the evaluation of contingent political events and were thus non-justiciable. The Executive had already provided a statutory scheme under which the validity of the extradition of the petitioner could be ascertained (pp. 6269).

(4) As the Senate had chosen not to modify or abrogate the Treaty, the Court could not interfere with its terms. On the plain language of the Treaty, the obligation of the United States to extradite the petitioner expressed in Article I of the Treaty was not undermined by four treaty provisions which the petitioner claimed rendered the Treaty inapplicable in his case. The warrant requirement in Article VII(3) of the Treaty and the dual criminality requirement in Article III were satisfied. Neither did the political offence exception contained in Article 3(a) of the Supplementary Treaty nor the rule of specialty apply (pp. 6303).

(5) The Magistrate Judge was fully warranted in finding probable cause to support the petitioner's extradition (pp. 6338).

The petitioner requested a rehearing before the full bench of the Court of Appeals.

Held (by the Court of Appeals, Circuit, Judge Stahl dissenting):The petition for en banc review was dismissed.

Per Circuit Judge Stahl (dissenting): (1) In the circumstances a certification of extraditability constituted a violation of the Treaty as it was to be inferred from the language of Article XII of the Treaty that extradition was only permitted if the offences were to be tried and punished by the requesting sovereign (pp. 63942).

(2) The United Kingdom's surrender of sovereignty over Hong Kong to China on 1 July 1997 would effect an impermissible re-extradition with respect to the petitioner under the terms of Article XII of the Treaty as his prosecution would take place under the judicial system of...

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