No challenge to extradition to Hong Kong

Regina v Secretary of State for the Home Department, ex parte Launder; House of Lords (Lord Browne-Wilkinson, Lord Steyn, Lord Hope of Craighead, Lord Clyde and Lord Hutton) 21 May 1997

The Home Secretary did not act unreasonably in deciding that the respondent would not be exposed to the risk of injustice or oppression if he were extradited to Hong Kong to face trial there after the handover to China.

The House of Lords allowed the Home Secretary's appeal against the decision of the Divisional Court, which had quashed a warrant under section 12(1) of the Extradition Act by which the Home Secretary had ordered the respondent to be returned to Hong Kong at the request of the Governor to face trial on charges of corruption.

Kenneth Parker QC and James Eadie (Treasury Solicitor) for the Home Secretary; David Vaughan QC and David Perry (Titmus Sainer Dechert) for the respondent; Alun Jones QC and James Lewis (CPS) for the Government of Hong Kong.

Lord Hope said that it was submitted for the Home Secretary that the issue was whether he had acted reasonably in reaching his decision that the Peoples' Republic of China had not repudiated its obligations under the Sino-British Joint Declaration on the Question of Hong Kong, and that there was no intention on its part not to implement the relevant provisions of the Basic Law after the handover of Hong Kong to China on 1 July 1997, and that the extradition of the respondent would not, therefore, be unjust or oppressive.

The question raised by the respondent was whether the rule of law would turn out to be an illusion in the real world after the handover of Hong Kong to China. He contended that there was a substantial risk that in various respects the Joint Declaration would not be adhered to by China after the handover.

It could not be said in the present case that the Home Secretary had acted with procedural unfairness. Irrationality also appeared to be a complaint without any real substance. The question whether it was unjust or oppressive to order the respondent's return to Hong Kong must in the end depend on whether China could be trusted to implement its treaty obligations to respect his fundamental human rights, allow him a fair trial, and leave it to the courts, if he was convicted, to determine the appropriate punishment.

It could not be stressed too strongly that the decision rested with the Home Secretary and not at all with the court. The function of the court in the exercise of its supervisory jurisdiction was review. The present appeal was not against the Home Secretary's decision on the facts. His decision depended upon the exercise of judgment of a kind which lay beyond the expertise of the court. That, no doubt, was why the decision whether or not to grant the warrant had been entrusted to the Home Secretary by Parliament.

The real issue was whether in taking his decision the Home Secretary had asked himself the right question or had fettered his discretion by asking the wrong one.

The correct question was not whether China had repudiated, or would be likely to repudiate, its obligations under the treaty, but rather was whether the respondent would be exposed to the risk of injustice or oppression if he were to be returned to Hong Kong to face trial after the handover. On the evidence their Lordships would not be justified in holding that he had failed to address himself to the right question.

There remained the question whether there was substance in the respondent's concern about the absence of specialty protection under section 6(4) of the Extradition Act 1989 after the handover, and whether it would provide effective protection against the respondent's removal from Hong Kong to any other part of China.

It was reasonable to conclude that, in accordance with the fundamental policy enshrined in the Basic Law, the prohibitions needed to ensure that the respondent would not be surrendered to China would be in place after the handover.

The appeal would be allowed and the respondent's applications for judicial review dismissed.