R v Secretary of State for the Home Department, ex parte Launder

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BROWNE-WILKINSON,LORD STEYN,LORD HOPE OF CRAIGHEAD,Procedural History,Proceedings in the Divisional Court,The Issues in this Appeal,The Joint Declaration and the Basic Law,The Decisions by the Secretary of State,The Principles to be Applied in Extradition Cases,European Community Law and Human Rights,Conclusion,LORD CLYDE,LORD HUTTON
Judgment Date21 May 1997
Judgment citation (vLex)[1997] UKHL J0521-4

[1997] UKHL J0521-4

HOUSE OF LORDS

Lord Browne-Wilkinson

Lord Steyn

Lord Hope of Craighead

Lord Clyde

Lord Hutton

Regina
and
Secretary of State for the Home Department
(Appellants)
Ex Parte Launder
(Respondents)

(On Appeal from a Divisional Court of the Queen's Bench Division)

LORD BROWNE-WILKINSON

My Lords,

1

I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Hope of Craighead. For the reasons which he gives, I would allow the appeal.

LORD STEYN

My Lords,

2

I have read in draft the speech to be delivered by my noble and learned friend, Lord Hope of Craighead. For the reasons he gives I would allow the appeal.

LORD HOPE OF CRAIGHEAD

My Lords,

3

This is an appeal against the decision by the Divisional Court of the Queen's Bench Division (Henry L.J. and Ebsworth J.) on 6 August 1996 to quash a warrant under section 12(1) of the Extradition Act 1989 by which the Secretary of State for the Home Department ordered the respondent, Ewan Quayle Launder, to be returned to Hong Kong at the request of the Governor to face trial there on charges of corruption for which on 23 November 1989 a warrant had been issued by the Principal Magistrate.

4

Although the respondent denies the charges which have been laid against him, he accepts for the purposes of this case that a prima facie case against him has been made. The offences fall within the definition of the expression "extradition crime" in section 2(1) of the Act. Arrangements exist between the United Kingdom and the Crown Colony under the Fugitive Offenders (Hong Kong) Order 1967 for securing that the requirements of section 6(4), known as the "specialty protection", are satisfied. It is not suggested that any of the particular matters mentioned in section 12(2) which would make it unjust or oppressive for him to be returned the Hong Kong arise in this case. There is no reason to think that there would have been any other grounds for objecting to the warrant, had it not been for the fact that on 1 July 1997 sovereignty over Hong Kong will be transferred to the Peoples' Republic of China and Hong Kong will then cease to be a Crown Colony.

5

It has for some time been obvious that the respondent's trial for these offences could not take place until after the transfer of sovereignty. It was plain that questions would be raised about the procedures which would be in place in Hong Kong after 1 July 1997, to ensure that the respondent would receive a fair trial and that he would continue to have the benefit of the specialty protection there were he to be extradited. But the respondent has raised objections to the warrant directed to the future of Hong Kong which are of an even more fundamental character. He maintains that, despite the arrangements which have been made to secure continuity for the rule of law after the transfer, he would be faced with the real risk that the safeguards will not be effective and that he will receive an unfair trial and, if convicted, inhumane punishment. It is these questions which have given rise to the important and difficult issues in this appeal.

6

It is hard to imagine a more significant event in the history of any state than a transfer of its sovereignty. The transfer of sovereignty over Hong Kong from the United Kingdom to the Peoples' Republic of China (P.R.C.) will bring to an end more than a century and a half of British rule since Hong Kong island was first occupied by the United Kingdom in 1841 after the Opium War. For the peoples of the region, and for the people of Hong Kong in particular, the resumption of Chinese sovereignty will change many things. That is to be expected and is, indeed, inevitable. But in other respects the transfer will be an unusual one, perhaps unique. It will above all be a negotiated and orderly transfer, the product of 15 years' preparation for the event. There are numerous examples in history of transfers of sovereignty by conquest, by treaty or concession or by purchase. But such a long period of negotiation and preparation appears to be unprecedented. The transfer will also involve the creation in Hong Kong of a separate and novel system of government. This has been designed to preserve its own legal system and to provide for it a high degree of legislative and executive autonomy. Under the principle of "one country, two systems" the P.R.C. have decided that, upon its resumption of sovereignty, a Special Administrative Region (S.A.R.) will be established in Hong Kong and that the socialist system and policies will not be practised there. Not even the United Kingdom, which in other respects is a unique arrangement, provides a precise analogy. For example, the supreme judicial authority for all three jurisdictions in the United Kingdom, save only in respect of decisions of the High Court of Justiciary in Edinburgh, resides in the House of Lords at Westminster. For Hong Kong the supreme judicial authority will reside in Hong Kong, not the P.R.C.

7

It will be necessary for me later to describe some of the details of these arrangements. At this stage it is sufficient to say that the context for an examination of the issues of law in this case is, even for extradition cases, an unusual one. It placed a heavy responsibility on the Home Secretary whose decisions are under challenge in this case. Your Lordships will be aware of the responsibility which now rests with this House, in view of the critical stage which matters have now reached in the preparation for the hand-over in only a few weeks' time.

Procedural History
8

It is first necessary to set out briefly a history of the events which have led to this appeal.

9

The warrant which was issued by the Principal Magistrate on 23 November 1989 was in connection with 14 charges of accepting an advantage, contrary to section 9(1)(b) of the Prevention of Bribery Ordinance, Chapter 201 of the Laws of Hong Kong. The charges related to payments made to the respondent between 11 October 1980 and 3 January 1982, during a period when he was resident in Hong Kong and employed there in a senior position in a merchant banking company. They were alleged to have been made in connection with the granting by that company of loans to groups in which the persons who made the payments were shareholders. The payments allegedly so made total HK$45.95 million, which is £3.8 million at current exchange rates. A provisional warrant for the respondent's arrest was issued at Bow Street Magistrates' Court on 21 May 1990. He was arrested on 10 September 1993 at Heathrow Airport, having arrived in this country from Berlin. He was granted bail on 30 September 1993 and has been on bail ever since.

10

On 7 October 1993 the Governor of Hong Kong made a request to the Secretary of State for Foreign and Commonwealth Affairs for the extradition of the respondent to Hong Kong. On 12 January 1994 the Secretary of State issued to the magistrate an authority to proceed under section 7(1) and (4) of the Act of 1989. On the same day he issued a specialty certificate under section 6(7) of that Act to the effect that the Governor of Hong Kong had undertaken that the respondent would receive the protection set out in subsection (4) of that section. On 7 April 1994 the magistrate committed the respondent under section 9 to await the Secretary of State's decision whether or not to order his return. The respondent challenged that order by applying for a writ of habeas corpus to the Divisional Court. That application was dismissed by the Divisional Court on 14 December 1994, and on 9 March 1995 leave to appeal to the House of Lords was refused.

11

The respondent then made extensive representations to the Secretary of State in an endeavour to persuade him not to order his return to Hong Kong. These were made by him personally by letter to the Home Secretary, through his M.P. and through his solicitor. These representations were supported by lengthy affidavits from experts in this field which raised substantial questions about the prospects of a fair trial and the impartial administration of justice in Hong Kong after the transfer of sovereignty. Following an invitation to comment on a response on these matters from the Hong Kong Government as the requesting authority, the respondent's solicitor submitted further material to the Home Secretary. On 31 July 1995 the Secretary of State wrote to the respondent's solicitor informing him that he had decided to order the respondent's return to Hong Kong.

12

That letter was written on his behalf by Mr. David Ackland, the Head of the International Criminal Policy Division of the Home Office, of which the Extradition Section of the Home Office is a part. He stated that, in the light of the matters raised by the respondent, the Secretary of State had agreed exceptionally to give his reasons at that stage, reserving the right to expand on them later if leave were to be sought to move for judicial review of the decision. In his statement of the reasons he said that the Secretary of State had considered very carefully all the extensive representations made on the respondent's behalf, but that he did not consider that they were sufficient either individually or cumulatively to justify not surrendering him. After dealing with matters which are no longer in issue, he dealt with the allegations of prejudice arising from the position in Hong Kong after 1 July 1997. He summarised the measures which were to be in place in Hong Kong after that date in the light of the Joint Declaration and the Basic Law to which I shall return later in this speech. He then dealt with representations that the order would be in breach of the respondent's rights under the European Convention of Human Rights and European Community law.

13

The letter concluded with these...

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