Wan Ping Nam v Minister of Justice
| Jurisdiction | Scotland |
| Judgment Date | 01 June 1972 |
| Date | 01 June 1972 |
| Docket Number | No. 6. |
| Court | High Court of Justiciary |
JC
Lord Justice-General, Lords Wheatley, Cameron.
Administration of Justice—Procedure—Extradition—Fugitive criminal—Foreign seaman suspected of crime—Committal to prison by Sheriff—Application to High Court under statute for relief by writ of habeas corpus—Casus improvisus—Power of Court to grant relief—Nobile Officium—Extradition Act, 1870 (33 and 34 Vict. cap. 52), secs. 10, 11, 12 and 16.
Nobile Officium—High Court of Justiciary—Statute—Casus improvisus—Power of Court to supply omission.
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Sec. 10 of the Extradition Act, 1870, provides that a fugitive criminal accused of an extraditable crime shall, if a foreign warrant for his arrest is duly authenticated and certain evidence is produced, be committed to prison by a police magistrate. Sec. 11 provides that, if the police magistrate commits a fugitive criminal to prison, he shall inform him that he will not be surrendered until after the expiry of fifteen days, and that he has a right to apply for a writ of habeas corpus. Sec. 16, which deals with crimes committed on board any vessel on the high seas which comes into any port of the United Kingdom, provides that the Act shall be construed as if, inter alios,any Sheriff or Sheriff-substitute in Scotland "were substituted for the police magistrate throughout this Act."
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The Federal Republic of Germany (Extradition) Order, 1960, provides by Art. IV that no British subject shall be delivered up by the Government of the United Kingdom to the Government of the Federal Republic.
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A Chinese seaman, who was suspected of having killed a fellow-member of the crew on board a vessel on the high seas, was arrested in a Scottish port, and was detained in a Scottish prison upon a warrant for committal by a Sheriff. The vessel was registered in Bremen in the Federal Republic of Germany, the Government of which sought his extradition. He was informed of his right to, and applied to the High Court of Justiciary for, a writ of habeas corpus or suspension of the warrant for committal, upon the ground that he was a British subject.
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Held that it was the plain intention of the 1870 Act that relief should be available to all persons committed under sec. 10; that, the writ of habeas corpus being unknown to the law of Scotland, the Court had power, in the exercise of the nobile officium, to provide the means of giving effect to the legislature's intention; and that accordingly it should examine the petitioner's allegation and, if he established that he was a British subject and that the committal order was therefore unlawful, should suspend the order.
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Observed that there appeared to be a similar omission in the procedure provided by sec. 12 for the discharge of persons committed but not surrendered within two months.
Wan Ping Nam presented a petition to the nobile officium of the High Court of Justiciary, in which he prayed the Court "to consider the grant of a writ of habeas corpusor to suspend ad interim" a committal warrant granted by the Sheriff at Greenock, by which he had been committed to prison on 3rd May 1972.
The petitioner averred:—"(1) That the petitioner was lately a member of the crew of the motor vessel Taiping, registered in Bremen in the Federal Republic of Germany, but believed to be owned by the Island Navigation Company, Hong Kong. The said ship was on charter to a German company and most of the officers were German nationals, while the crew were mostly Chinese. (2) Ho On Hing, chief steward of the said vessel, died on or about 11th February 1972 after an incident on board the said vessel when she was on the high seas, viz. some eight miles south of the Mull of Oa. (3) The petitioner, being suspected of the killing of the said Ho On Hing, was taken from the said vessel at the request of the master of the said vessel when she called at Greenock on or about 11th February 1972, and was detained in custody at the instance of the Procurator-fiscal, Greenock. (4) The Government of the Federal Republic of Germany, having accused the petitioner of a crime and having issued a warrant authorising the arrest of the petitioner, applied for the petitioner's extradition to Bremen in respect of the said crime, which is an extradition crime in terms of the Extradition Act, 1870. (5) At a hearing on or about 3rd May 1972 at the Sheriff Court of Renfrew and Argyll at Greenock, Sheriff J. B. Patrick committed the petitioner to H.M. Prison, Barlinnie, Glasgow, in terms of section 10 of the Extradition Act, 1870. (6) In terms of section 11 of the said Extradition Act, 1870, the said Sheriff J. B. Patrick informed the petitioner that he would not be surrendered until after the expiration of fifteen days, during which period he had a right to apply for a...
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...38; 2015 SLT 556; 2015 SCCR 333; 2015 SCL 884 Smith, Petr 1987 SCCR 726 Wan Ping Nam v Minister of Justice of Federal Republic of Germany 1972 JC 43; 1972 SLT 220 Wylie v HM Advocate 1966 SLT 149; [1967] Crim LR 422 X v Y (C-507/10) ECLI:]EU:C:2011:873; [2011] ECR I-14241 X and Y v Netherla......
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Icl Plastics Limited And Others For Judicial Review
...(1902) 4F 405 Shepherd v Menzies (1900) 2F 443 Stewart v Roach 1951 J.C. 96 Wan Ping Nam v Minister of Justice of German Federal Republic 1972 J.C.43 Watson v Muir 1938 J.C. 181 English Authorities Arias v Commissioner for the Metropolitan Police 1984, Law Society Gazette 2694; The Times, 1......