Cheng v Governor of Pentonville Prison

JurisdictionEngland & Wales
Judgment Date16 April 1973
CourtHouse of Lords
[HOUSE OF LORDS]

CHENG

APPELLANT

AND

GOVERNOR OF PENTONVILLE PRISON

RESPONDENT

1973 Jan. 24 Lord Widgery C.J., James L.J. and Eveleigh J. 1973 March 5; April 16 Lord Wilberforce, Lord Hodson, Lord Diplock Lord Simon of Glaisdale and Lord Salmon
[On appeal from REGINA v. GOVERNOR OF PENTONVILLE PRISON Ex parte CHENG]

Extradition - Offence of political character - Meaning - Attempted murder of Taiwan vice-premier in United States of America - United States of America requesting extradition of applicant convicted of offence - Whether offence must relate to political affairs of requesting state - Extradition Act 1870 (33 & 34 Vict. c. 52), s. 3 (1)

The applicant, a member of a Formosan organisation opposed to the Taiwan r�gime, was convicted in New York of the attempted murder there of its vice-premier. He was allowed bail pending sentence, but failed to appear in answer to it and fled the country, arriving eventually in London. The United States Government requested his extradition, and the Chief Metropolitan Magistrate made a committal order pending his surrender. His application for a writ of habeas corpus on the ground that the relevant offence was "one of a political character" within section 3 (1) of the Extradition Act 1870,1 and, therefore, a non-extraditable offence, was refused by the Divisional Court of the Queen's Bench Division.

On appeal by the applicant by leave of the Divisional Court:-

Held, dismissing the appeal (Lord Wilberforce and Lord Simon of Glaisdale dissenting), that "political character" in its context connoted opposition to the requesting state on some issue connected with the political control or government of that state (post, pp. 942F-G, 943A-B, 945F-H, 961G-H); and that, since the applicant had not, on the facts, been taking political action vis-�-vis the American Government and the American Government was not concerned with the relations between America and Taiwan in asking for extradition but was concerned only with enforcing its criminal law, the applicant's offence was not one of a political character within section 3 (1) of the Act of 1870 (post, pp. 943B, 961H - 962A).

Dictum of Viscount Radcliffe in Reg. v. Governor of Brixton Prison, Ex parte Schtraks [1964] A.C. 556, 591, H.L.(E.) applied.

Decision of the Divisional Court, post, p. 934G; [1973] 2 W.L.R. 246; [1973] 1 All E.R. 935 affirmed.

The following cases are referred to in their Lordships' opinions:

Artemiou v. Procopiou [1966] 1 Q.B. 878; [1965] 3 W.L.R. 1011; [1965] 3 All E.R. 539, C.A.

1 Extradition Act 1870, s. 3 (1): see post, p. 936D.

Becke v. Smith (1836) 2 M. & W. 191.

Castioni, In re [1891] 1 Q.B. 149, D.C.

Capper v. Baldwin [1965] 2 Q.B. 53; [1965] 2 W.L.R. 610; [1965] 1 All E.R. 787, D.C.

Meunier, In re [1894] 2 Q.B. 415, D.C.

Pavelic and Kwaternik, In re, November 23, 1934; Annual Digest and Reports of Public International Law Cases, 1933-1934, p. 372, Case No. 158.

Reg. v. Governor of Brixton Prison, Ex parte Kolczynski [1955] 1 Q.B. 540; [1955] 2 W.L.R. 116; [1955] 1 All E.R. 31, D.C.

Reg. v. Governor of Brixton Prison, Ex parte Schtraks [1964] A.C. 556; [1962] 3 W.L.R. 1013; [1962] 3 All E.R. 529, H.L.(E.).

Thompson v. Goold & Co. [1910] A.C. 409, H.L.(E.).

The following additional cases were cited in argument in the House of Lords:

Pavan case, June 15, 1928; Annual Digest of Public International Law Cases, 1927-1928, p. 347, Case No. 239.

Zacharia v. Republic of Cyprus [1963] A.C. 634; [1962] 2 W.L.R. 1163; [1962] 2 All E.R. 438, D.C. and H.L.(E.).

The following cases are referred to in the judgments in the Divisional Court:

Castioni, In re [1891] 1 Q.B. 149, D.C.

Meunier, In re [1894] 2 Q.B. 415, D.C.

Reg. v. Governor of Brixton Prison, Ex parte Kolczynski [1955] 1 Q.B. 540; [1955] 2 W.L.R. 116; [1955] 1 All E.R. 31, D.C.

Reg. v. Governor of Brixton Prison, Ex parte Schtraks [1964] A.C. 556; [1962] 3 W.L.R. 1013; [1962] 3 All E.R. 529, H.L.(E.).

The following additional cases were cited in argument in the Divisional Court:

Extradition Act 1870, In re, Ex parte Treasury Solicitor [1969] 1 W.L.R. 12; sub nom. Re Gross, Ex parte Treasury Solicitor [1968] 3 All E.R. 804.

Pavan case, June 15, 1928; Annual Digest of Public International Law Cases, 1927-1928, p. 347, Case No. 239.

Reg. v. Governor of Brixton Prison, Ex parte Dwyer (unreported), April 13, 1970, D.C.

APPLICATION for a writ of habeas corpus.

The applicant, Tzu-Tsai Cheng, applied for a writ of habeas corpus directed to the Governor of Pentonville Prison to bring up and quash an order of committal made by the Chief Metropolitan Magistrate (Sir Frank Milton) at Bow Street Magistrates' Court on November 30, 1972, pending his surrender to the United States authorities pursuant to the Extradition Act 1870. The applicant, who was native of Taiwan resident in the United States, had been convicted by the Supreme Court of New York in May 1971 of the offence of attempted murder of Chiang Ching-Kuo within the jurisdiction of the United States of America. The ground of the application was that the offence for which extradition was sought was an offence of a political character within section 3 (1) of the Extradition Act 1870.

The facts are stated in the judgment of James L.J. Further facts are stated in the opinion of Lord Simon of Glaisdale, post pp. 757F, 759D.

Brian Capstick for the applicant. The question is whether an offence committed within the jurisdiction of the state requesting extradition can amount to an offence of a political character where (1) that offence was committed in the course of a dispute between the governing party of another state (not the requesting state) on the one hand and a movement dedicated to its overthrow on the other, and (2) that offence was committed directly to further the purposes of that movement and for no other purpose or motive.

The place where the offence occurs is irrelevant to the question of whether the offence is a political offence; the country in which the offence is committed does not alter the political character of the offence.

The cases on section 3 (1) of the Act of 1870 show that the courts, when faced with difficult wording, have approached it flexibly, according to the circumstances of the case. It is not necessary that the applicant be involved in an actual uprising. [Reference was made to In re Castioni [1891] 1 Q.B. 149; In re Meunier [1894] 2 Q.B. 415.]Reg. v. Governor of Brixton Prison, Ex parte Kolczynski [1955] 1 Q.B. 540 is an example of the 20th century approach designed to meet 20th century conditions.

The speech of Viscount Radcliffe in Reg. v. Governor of Brixton Prison, Ex parte Schtraks [1964] A.C. 556 suggests that the requesting country must be the country to which the applicant is opposed, but that interpretation is too far from the actual words of the section and is in effect grafting a proviso on to it. This interpretation of the same wording in a different section was adopted in Reg. v. Governor of Brixton Prison, Ex parte Dwyer (unreported), April 13, 1970. The speech of Lord Reid in Schtrak's case suggests that each offence must be considered in the light of all the circumstances at the time; the offence may therefore be against a third state. A person opposed to a totalitarian r�gime finds it impossible to oppose that r�gime from within and therefore becomes a refugee. The political character of his offence against the r�gime is not diminished simply because the offence is also against the common law of the requesting state. If that were so, in all proceedings for extradition for murder the requesting state could claim that the offence had lost its political character.

The purpose of the Act of 1870 was to provide means by which refugees could obtain political asylum. [Reference was made to In re Extradition Act, 1870, Ex parte Treasury Solicitor [1969] 1 W.L.R. 12.] The test is whether the extradition offence is political, and it is unwarranted to graft on to the word "political" the words "in the eyes of the requesting state," which would be the effect of saying that an offence against a totalitarian state is not worthy of being called political if it is committed in another country.

Where the wording of a section is wide, and open to a number of constructions, the construction most favourable to the liberty of the subject must be preferred.

Richard Du Cann for the Governor of Pentonville Prison and the Government of the United States of America. An extradition Act comes

into force by means of a treaty between two countries, so it is in the hands of one country's government whether an Act shall apply to any other country. Section 3 was introduced to guard against the situation which might arise that the standards which existed in the other country at the time of the treaty were no longer being followed, and therefore the offender should not be extradited.

The speeches of Lord Reid and Viscount Radcliffe in Reg. v. Governor of Brixton Prison, Ex parte Schtraks [1964] A.C. 556 are not in conflict, except that Lord Reid says that it is not necessary for the applicant to show that he is involved in a struggle for power: it is sufficient that he shows that he is in a movement which desires reform in some political sphere, whereas Lord Radcliffe emphasizes that there must be some sort of violent struggle.

All the judgments cited which refer to a struggle between the fugitive and the requesting state have only been considering the requesting state. There has been no third state in mind and therefore it is inevitable that references to struggles with the state have been interpreted as meaning the requesting state: see, for example, per Lord Hodson inSchtraks's case, at p. 612. No assistance is to be obtained from the one case in which three countries were involved: Pavan case, June 15, 1928; Annual Digest of Public International Law Cases...

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