Judicial Committee of the Privy Council
| DOI | 10.1177/002201839105500205 |
| Published date | 01 May 1991 |
| Date | 01 May 1991 |
| Subject Matter | Judicial Committee of the Privy Council |
JUDICIAL
COMMITTEE
OF
THE
PRIVY
COUNCIL
STANDARD OF
PROOF
OF FUGITIVE
OFFENDER
Cheung Ying-Lun vGovt
of
Australia
Certain provisions of the Fugitive Offenders Act 1967 have been
applied by Ordinance to Hong Kong, including one to the effect
that,
if the court of committal is satisfied that the evidence would
be sufficient to warrant trial for the offence of the person arrested
if that offence had been committed within the jurisdiction of the
court, it should commit him to custody to await his return. In
Cheung Ying-Lun vGovt
of
Australia [1990] 1
WLR
97, the
extradition from Hong Kong was sought of three men alleged to
have committed offences in Australia. They were arrested and
authority to proceed was given. Before the magistrate, the question
was raised of the standard of proof which the magistrate must
require before he proceeds to commit. By s 85(2) of the Mag-
istrate's Ordinance it is provided that if, in the opinion of the
magistrate, 'such evidence is sufficient to put the accused upon his
trial for an indictable offence, or if the evidence given raises a
strong or probable presumption of (his) guilt' he should be
committed.
The
magistrate here ruled that it was sufficient that a
prima facie case against the person had been established and on
that basis the committal was made.
The
fugitive was given leave
to apply for a writ of habeas corpus, but the Chief Justice refused
to discharge him and that decision was upheld by the Court of
Appeal. He applied to the Privy Council for special leave to
appeal.
Although the Board rarely gives a reasoned judgment in dispos-
ing of a petition for leave to appeal, it did so on this occasion
'because the law requires clarification'.
The
two terms which
appear
in s 85(2) of the Ordinance, 'sufficient to put the accused
upon his trial' and 'raises astrong or probable presumption of the
guilt of the accused' indicate different standards of proof. The
decision of the House of Lords in R v Brixton Prison Governor,
214
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