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State v Kinho Lo [2014] FJHC 632; HAA019.2014S (26 August 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION


CRIMINAL APPEAL CASE NO. HAA 019 OF 2014S


BETWEEN:


THE STATE
APPELLANT


AND:


KINHO LO
RESPONDENT


Counsels : Ms. J. Prasad for Appellant
Ms. R. Lal and Mr. A. Bale for Respondent
Hearing : 21 August, 2014
Judgment : 26 August, 2014


JUDGMENT


  1. On 24 July 2014, the State filed a notice of motion and affidavit in support, seeking the following orders from the Suva Magistrate Court:
  2. In the affidavit in support of the Notice of Motion, by Detective Sergeant 2572 Satish Chand, he stated the following:

"...1. THAT I am based at the CID Headquarters of the Fiji Police Force in Suva Street.


2. THAT I am familiar with matters pertaining to these proceedings and dispose this, my affidavit, from my personal knowledge and as a result of information obtained in my official capacity unless otherwise stated, and the contents of which are true to the best of my knowledge, information and belief.


  1. THAT the United States of America [USA] has requested the extradition of the respondent. Annexed hereto and marked "SC 1" is a copy of the application. ["the Application"]
  2. THAT on 15th July 2014, the Fijian Minister for Foreign Affairs and International Cooperation issued an Authority to Proceed on the Application. Annexed hereto and marked "SC 2" is a copy of the authority to proceed.
  3. THAT United States of America is a treaty country. Annexed hereto and marked "SC 3" is a copy of the Extradition Treaty.
  4. THAT a warrant of arrest was issued by the United States District Court, Northern District of Illinois, Eastern Division against Kinho Lo, the Respondent on 21st June, 2013. [Annexure labelled Government Exhibit A in extradition application of USA]
  5. THAT as part of the supporting documents provided to Fiji by the United States of America has provided the photograph and the description of the Respondent. The description as per the affidavit of Mathew F Madden is:

Name : Kinho Lo

Date of Birth : March 13, 1967

Passport No : 674328 (Fiji)

Last Known address : 78 Lees Road, Suva, Fiji


  1. THAT I have looked at the picture annexed to the Application and confirm that the Respondent is the same person I have investigated earlier.
  2. THAT the offences that the Respondent is charged with are specified in Government Exhibit B of the Application. These offences are violations of Title 18, United States Code section 371, 1544, 1028(a) (1) and 1543.
  3. THAT the text of the relevant section is annexed to the Application and marked as Government Exhibit C.
  4. THAT I believe that the offences contained in the complaint (Government Exhibit B) are extradition offences as they attract a sentence of not less than 12 months imprisonment under the laws of the United States of America.
  5. THAT I am informed that, the offences if committed in Fiji would attract a term of imprisonment of more than 12 months imprisonment as these offences relate to making, providing or possessing fraudulent passports contrary to section 127 of the Crimes Decree which attracts a term of imprisonment for 10 years.
  6. THAT the Application is duly authenticated and sealed by the United States of America Secretary of State Mr John F Kerry and is certified by the Attorney General Mr Eric Holder. Furthermore, the warrant of arrest is certified by the Deputy Clerk of the United States District Court, Northern District Illinois, Eastern Division.
  7. THAT I reasonably believe that in light of the charges that the Respondent faces and through my own investigations, it highly likely that the Respondent would have in h is possession the means to travel out of Fiji under a false identity.
  8. THAT it is my belief that the Respondent is a flight risk and that if bail is granted pending final determination of this Application the Respondent will attempt to leave jurisdiction..."
  9. On 28 July 2014, the above motion was heard in court, and a warrant of arrest was issued against the respondent. He was produced in court on 31 July 2014. Copies of the notice of motion and the affidavit in support were served on him in court. As a result of the prosecution's application, he was remanded in custody.
  10. The case was recalled in the Suva Magistrate Court on 11 August 2014. He was represented by counsel. Counsel asked for time to file and serve their bail application. The case was adjourned to 18 August 2014 to enable counsel to prepare their bail application.
  11. On 12 August 2014, the respondent filed and serve his bail application via a notice of motion and an affidavit in support, from himself. Detective Sergeant 2572 Satish Chand, for the State, replied with an affidavit on 14 August 2014. The respondent replied with a further affidavit on 18 August 2014. The court heard the parties on 18 August 2014. It ruled in favour of the respondent, by stating that, "...Court finds compelling grounds to grant bail..." The court then said: "...Accused is bailed as follows:
  12. The State was not happy with the above decision, and it appealed on the same day, on the following grounds:

"...a. That the learned Magistrate erred in law and in fact in granting bail to the Respondent when there was ample evidence put before the Court that the Respondent is a flight risk;


b. That the learned Magistrate erred in law in failing to consider section 64 of the Extradition Act; and


c. That the learned Magistrate erred in law and in fact in failing to consider the suitability of the sureties..."


  1. This appeal has brought to the fore the need to examine in detail the purpose of the Extradition Act 2003. To answer the questions posed by this appeal, we need to find out the intention of Parliament when enacting the Extradition Act 2003. We begin by examining its pre-amble, which reads as follows:

"...AN ACT


To regulate the Extradition of persons from the Fiji Islands, to facilitate the making of requests for Extradition by the Fiji Islands to other countries, to enable the Fiji Islands to carry out its obligations under Extradition treaties and for related matters..."


  1. It could be seen from the pre-amble that the Extradition Act 2003 had four major objectives and/or purposes:
  2. Of particular importance to this case is Fiji's duties as a Sovereign State, to another Sovereign State, that is, the United States of America (USA), as far as Extradition matters are concerned. Parliament, by virtue of objective No.(iii) mentioned in paragraph 8 (iii) above, has directed that a purpose of the Extradition Act 2003 is "To enable the Fiji Islands to carry out its obligations under Extradition Treaties".
  3. Article 1 of the Extradition Treaty [Fiji Treaty No. 314] between Fiji and the United States of America since 1931, were as follows:

"...The High Contracting Parties engage to deliver up to each other, under certain circumstances and conditions stated in the present Treaty, those persons who, being accused or convicted of any of the crimes, or offences enumerated in Article 3, committed within the jurisdiction of the one Party, shall be found within the territory of the other Party..."


[Refer to paragraph 5 of Detective Sergeants 2572 Satish Chand's 24 July 2014 Affidavit] The offences enumerated in Article 3 were murder, manslaughter, administering drugs, rape, defilement, indecent assault, kidnapping or false imprisonment, abducting, human trafficking, bigamy, extortion, perjury, burglary, robbery with violence, obtaining money by false pretence, counterfeiting, forgery etc.


  1. It could be seen from the discussion above, that the primary purpose of the Extradition Act 2003 was to facilitate the extradition of accused or convicted people to the country where they were alleged to have committed an "extradition offence", or had been convicted of the same. It is to those countries where the issue of guilt or otherwise, or the sentence to be imposed, will be decided, according to law, in their jurisdictions. This may be a reason why section 14(2) and 34(3) of the Extradition Act 2003 prohibited the accused and/or the convicted person to adduce, nor the Magistrate to receive, any evidence that contradicts the allegation levelled against them.
  2. On the conduct of extradition proceedings, section 14(2) and 34(3) of the Extradition Act 2003 reads as follows:

Conduct of extradition proceedings


"...14(2) In the proceedings, the person is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct that constitutes the offence for which extradition is sought..."


"...34(3) In the proceedings, the person is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct that constitutes the offence for which extradition is sought..."


  1. It is at this point, that we need to consider, section 64 of the Extradition Act 2003, which reads as follows:

Granting of bail


"...Notwithstanding the Bail Act, bail under this Act must only be granted under special circumstances..."


  1. It must be noted that under section 64 of the Extradition Act 2003, a mandatory duty is cast upon the courts not to grant bail, unless there are "special circumstances". The phrase "special circumstances" is not defined in section 2 of the Act, which is the interpretation section. Neither is the phrase given a meaning or definition in any other part of the Act. To resolve this problem, we must look to the Act in its totality, and consider the possible meaning to the phrase in its context, especially in relation to the pre-amble of the Act.
  2. In my view, considering the general purpose of the Extradition Act 2003 as shown by its pre-amble, and considering the need to give the phrase "special circumstance" a contextual meaning within the confines of the general purpose of the Act, "special circumstances" would include bringing someone's case within the grounds shown in section 4(a) to (h) of the Extradition Act 2003. Alternatively, a person must bring his case somewhere near to or somewhere equivalent to the grounds mentioned from section 4(a) to (h) of the 2003 Act. Only then can a person be entitled to bail.
  3. Section 4 of the Extradition Act 2003 reads as follows:

Extradition objection


"...4. There is an extradition objection to a request for the surrender of a person for an extradition offence if –


(a) the extradition offence is regarded as a political offence;

(b) there are substantial grounds for believing that surrender of the person is sought for the purpose of prosecuting or punishing the person because of his or her race, religion, nationality, political opinions, sex or status, or for a political offence in the requesting country;

(c) on surrender, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, because of his or her race, religion, nationality, political opinions, sex or status;

(d) the offence is an offence under the Republic of Fiji Military Forces Act but also not an offence under the Penal Code or other written laws;

(e) final judgment has been given against the person in the Fiji Islands, or in the third country, for the offence;

(f) under the law of the requesting country or the Fiji Islands, the person has become immune from prosecution or punishment because of lapse of time, amnesty or any other reason;

(g) the person has already been acquitted or pardoned in the requesting country or the Fiji Islands, or punishment under the law of that country or the Fiji Islands, for the offence or another offence constituted by the same conduct as the extradition offence; or

(h) the judgment has been given in the persons absence and there is no provision in the law of the requesting country entitling the person to appear before a court and raise any defence the person may have..."
  1. I now come to consider the appellant's grounds of appeal.
(a) Appeal Ground (b), as mentioned in paragraph 6 hereof:
  1. I will only deal with Ground (b) of the Appeal, because this will determine the outcome of the appeal.
  2. I have carefully read the court record, and have carefully read the papers submitted by the parties in the bail application. Considering what we have discussed above, the learned Magistrate could only grant bail to the respondent, if there were "special circumstances", in terms of section 64 of the Extradition Act 2003. The respondent must persuade the learned Magistrate to accept that there were "special circumstances" in his case. He must bring his case within the confines of the matters mentioned in section 4(a) to 4(h) of the Extradition Act 2003, or alternatively, somewhere near to or somewhere equivalent, to the matters mentioned in section 4 of the Act. In my view, the respondent have failed in establishing a "special circumstance", to justify been released on bail. In my view, the learned Magistrate erred in not properly applying section 64 of the Extradition Act 2003. On this ground, I allow the State's appeal.
(b) Ground (a) and (c):
  1. There is no need to consider these grounds, as I've allowed the State's appeal above.
  2. In summary, I allow the State's appeal. I order the accused to be remanded in custody. The extradition proceeding is to be given top priority. The matter is remitted to the Suva Magistrate Court, to conduct the extradition proceeding as soon as possible. The matter is adjourned to Suva Magistrate Court on 2 September, 2014, at 9.30am, to set the timetable for the extradition proceeding. I order so accordingly.

Salesi Temo

JUDGE


Solicitor for Appellant : Office of the Director of Public Prosecution, Suva.

Solicitor for Respondent : Lal, Patel and Bale, Lawyers, Suva.

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