Fernandez v Government of Singapore; R v Governor of Pentonville Prison ex parte Fernandez

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Donovan,Viscount Dilhorne,Lord Pearson,Lord Diplock,Lord Cross of Chelsea
Judgment Date25 May 1971
Judgment citation (vLex)[1971] UKHL J0525-1
Date25 May 1971

[1971] UKHL J0525-1

House of Lords

Lord Donovan

Viscount Dilhorne

Lord Pearson

Lord Diplock

Lord Cross

Fernandez
and
Government of Singapore and Others

Upon Report from the Appellate Committee, to whom was referred the Cause Fernandez (A.P.) against Government of Singapore and others (on Appeal from a Divisional Court of the Queen's Bench Division) that the Committee had heard Counsel for the Appellant, as well on Tuesday the 20th as on Wednesday the 21st, days of April last, upon the Petition and Appeal of Gerald Fernandez, (Assisted Person) at present detained at Her Majesty's Prison, Pentonville, London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice of the 2d of February 1971, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel appearing for the Government of Singapore, the Governor of Her Majesty's Pentonville Prison and Her Majesty's Secretary of State for Home Affairs, the Respondents in the said Appeal, but not being called upon; and due consideration being had this day of what was offered for the said Appellant:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of a Divisional Court of the Queen's Bench Division of the High Court of Justice, of the 2d day of February 1971, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the costs of the Appellant in this House be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949 as amended by the Legal Aid Act 1960.

Lord Donovan

My Lords,

1

Like all your Lordships I came to the clear conclusion at the end of the presentation of the Appellant's case that it must fail. My reasons were those which are now set out in the speech of my noble and learned friend, Lord Diplock, with which I agree.

Viscount Dilhorne

My Lords,

2

For the reasons given by my noble and learned friend, Lord Diplock, I agree that this appeal should be dismissed.

Lord Pearson

My Lords,

3

I agree with the opinion of my noble and learned friend, Lord Diplock, and would therefore dismiss the appeal.

Lord Diplock

My Lords,

4

This is an appeal against the refusal by the High Court of an application for habeas corpus arising out of extradition proceedings brought against the Appellant under the Fugitive Offenders Act, 1967.

5

The Appellant was accused of two offences under the Prevention of Corruption Ordinance of Singapore, which he is alleged to have committed in that country in July, 1966, and in August, 1968. The Republic of Singapore is a designated Commonwealth country under section 2 of the Fugitive Offenders Act, 1967. The offences of which he was accused fall within the description "bribery" in Schedule 1 of the Act. Accordingly, they are relevant offences under section 3.

6

Evidence in support of the request of the Government of Singapore for the return of the Appellant to that country was tendered in the committal proceedings, under section 7 of the Act, before a Metropolitan Stipendiary Magistrate at Bow Street. It consisted mainly of affidavits sworn before and certified by a District Judge and Magistrate in Singapore. The Magistrate was satisfied that the evidence so tendered would be sufficient to warrant the Appellant's trial for the two offences of which he was accused if they had been committed within the jurisdiction of the court of committal; and on 14th December, 1970, the Appellant was committed to the custody of the Government of Pentonville Prison to await his return to Singapore.

7

On 21st December, 1970, application was made to the High Court for habeas corpus under section 8 of the Act. The Divisional Court (Lord Parker, L.C.J., Melford Stevenson and Cooke, J.J.) took the view that the evidence which had been tendered was not sufficient to support the first charge relating to the alleged offence in July, 1966, but was sufficient to support the second charge relating to the alleged offence in August, 1968. The Court refused the application for habeas corpus but ordered that the warrant of committal should be amended to cover the second charge only.

8

It is against this order that the Appellant now appeals to your Lordships' House.

9

No question now arises as to the first charge. It passes out of the picture. If the Appellant is returned to Singapore he cannot be dealt with in respect of that offence unless he has first been restored to or had an opportunity of returning to the United Kingdom.

10

Before your Lordships' House four grounds have been advanced upon which the Appellant claims to be entitled to be released from custody. These are the same as were relied on in his application to the Divisional Court.

11

The first is one of law. It is that the affidavits tendered in support of the request for his return were not admissible as evidence under section 11 of the Fugitive Offenders Act, 1967; and that, apart from those affidavits, there was (as is conceded) no sufficient evidence to warrant his trial for the offence alleged in the second charge.

12

The second is one of fact. It is that even if the affidavits were admissible, the evidence tendered would still not be sufficient to warrant his trial for the offence alleged in the second charge if it had been committed within the jurisdiction of the court of committal, as is required by section 7(5)( a) of the Act.

13

The third is that the return of the Appellant is prohibited under section 4(1)( c) of the Act because he might, if returned, be detained or restricted in his personal liberty by reason of his political opinions. This is mainly one of fact and the facts disclosed in the evidence in the instant case are not, in my view, such as to raise any doubtful question of construction of the relevant provisions of that section of the Act.

14

The fourth is one of fact and of discretion. It is that the Appellant ought to have been discharged from custody under section 8(3) of the Act because, by reason of the trivial nature of the offence of which he is accused and the passage of time since he is alleged to have committed it, it should have appeared to the Divisional Court that it would be unjust or repressive to return him to Singapore.

15

The facts which are relevant to each of these grounds of appeal appear in the careful judgment of the Divisional Court. Save in brief summary I do not think it necessary to repeat them. Nor, since I am in favour of dismissing the appeal, do I think it desirable to enlarge upon the evidence against the Appellant in respect of an offence for which he will stand trial in Singapore if the Home Secretary decides to order his return under section 9 of the Act.

16

From 1963 to 1968 the Appellant was employed in Singapore as Secretary and Manager, Legal Affairs, of Malaysia-Singapore Airlines Ltd. He is accused, in the second charge, of having accepted a bribe in relation to the affairs of that company. He resigned from that employment at the end of 1968 and moved to Kuala Lumpur in Malaysia where he became a partner in a firm of advocates and solicitors. In July, 1969, extradition proceedings were started against him in Malaysia at the request of the Government of Singapore; and on 24th July, 1969, he was released on bail pending the adjourned hearing of the proceedings which were due to be resumed in Kuala Lumpur on 15th September, 1969. On 2nd August, 1969, he left Malaysia for England and did not return. Instead he went to the Irish Republic where he remained for more than a year although he appears to have paid occasional visits to London during this period.

17

In the meantime steps were taken in Singapore and in London to obtain his return, under the Fugitive Offenders Act, 1967, to Singapore from the United Kingdom where the Singapore authorities believed him to be. On 20th January, 1970, a complaint against the Appellant was made on oath before the Magistrate in Singapore. Upon this complaint a warrant for the arrest of the Appellant was issued and the two charges under the Prevention of Corruption Ordinance were framed. These documents were duly certified by the Magistrate in Singapore and exhibited to an affidavit of the Director of the Corrupt Practices Investigation Bureau sworn before the Magistrate in Singapore and certified by him as recording the evidence of the deponent. A further affidavit sworn by a State Counsel and Deputy Public Prosecutor of the Republic of Singapore, similarly certified, deposed as to the relevant law of Singapore relating to the offences charged. This was done, in fulfilment of the...

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