Wu, Hou-Wah v Attorney-General for the Commonwealth

[1997] FCA 1176

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 740  of 1997

BETWEEN:

HOU-WAH WU
Applicant

AND:

ATTORNEY-GENERAL FOR THE COMMONWEALTH
First Respondent

DIRECTOR OF PUBLIC PROSECUTIONS
Second Respondent

GOVERNOR OF THE REMAND CENTRE AT GRAFTON
Third Respondent

JUDGE:	BURCHETT J
DATE:	5 NOVEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The applicant Hou-wah Wu (“Mrs Wu” - I understand the order of her names, as given in the application, follows the occidental, and not the Chinese, practice) made an application, under s 39B of the Judiciary Act 1903, in respect of a proceeding against her upon an extradition request, dated 20 August 1997, emanating from the Hong Kong Special Administrative Region of the People’s Republic of China. Mrs Wu claims that this request constitutes an abuse of the procedure for extradition; that it is invalid as a request under the Extradition Act 1988; and that certain regulations relied upon in relation to it are also invalid. On 17 September 1997, she filed a notice of motion pursuant to which she sought, on 3 October 1997, at a hearing before me, a grant of bail pending the hearing of her application. I granted bail upon certain conditions involving the lodgment of cash security by two persons, each in the sum of $50,000, one of those persons to be the applicant’s brother, upon certain stringent reporting conditions which I specified, upon a condition requiring further security by bank guarantee in the sum of $400,000 to be furnished by the applicant’s brother or by a company of which he is a major shareholder, and upon conditions as to the applicant’s passport, as to her not approaching any point of overseas departure and as to the furnishing of advice to the Director of Public Prosecutions of the applicant’s address and the furnishing of twenty-four hours advance notice of any change of address. I reserved my reasons, which now follow.

The first thing to observe about this matter is that the applicant has been held in custody since 16 May 1997. Initially, she was taken into custody pursuant to proceedings upon a previous request which had been made on behalf of the Government of Hong Kong by the then Governor, Mr Patten. A written submission was put to the Director of Public Prosecutions by the applicant’s solicitors on 5 August 1997 to the effect that proceedings based on this request could not be valid after the colony of Hong Kong, which Mr Patten had administered on behalf of Great Britain, ceased to exist as such, and became merely a part of the sovereign state known as the People’s Republic of China. It was asked that the applicant “be released forthwith”. The Director of Public Prosecutions replied promptly by letter dated 6 August 1997. In this letter, he disputed a suggestion made by the solicitors that he had already conceded the point, but he did not deny the invalidity in fact of the proceedings, and in rather opaque terms suggested he was awaiting an Attorney-General’s notice under s 17 of the Extradition Act 1988 for the applicant’s release. Almost one month later, on 3 September 1997, the Director of Public Prosecutions advised the solicitors that “the Hong Kong authorities have re-issued their request for Mrs Wu’s extradition. The Commonwealth Attorney-General has issued a fresh notice under section 16 of the Extradition Act.” The matter, he said, was to be relisted before Lismore Local Court on 5 September 1997, and he concluded:

“Finally I advise the issuing of a section 17 notice will bring the original request to an end.”

What the letter failed to say was that, on 31 August 1997, a Minister acting on behalf of the Attorney-General had in fact issued a direction to relevant magistrates under s 17 directing them to order “the release of Wu Hou-wah from custody”. As a consequence of this failure, and of the further failure of the appropriate persons to advise the magistrates, or alternatively of the magistrates to act, the applicant remained incarcerated in a maximum security prison between 31 August and 5 September notwithstanding the direction given on behalf of the Attorney-General for her release. Doubtless, the circumstances will be elucidated at the hearing of the principal application, and it is not appropriate to make final findings (and I do not do so) on the material presented at an interlocutory hearing of an application for bail. But it is plainly arguable that there has been a most serious violation of the applicant’s fundamental human rights, and of basic duties owed towards her by the Australian Government: see the remarks of Deane J in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 528-529, and my own remarks with reference to the same subject, as a member of the Full Court, in Winkler v Director of Public Prosecutions (1990) 25 FCR 79 at 114 et seq. Before considering the implications of this aspect of the matter, I should complete the recital of events by recording that, on 5 September, there was no release of the applicant, because the magistrate proceeded to act upon the second request, which had in the meantime been received in respect of her. That request was described in a notice under s 16(1) of the Act dated 31 August 1997, signed by a Minister acting on behalf of the Attorney-General, as a request “from the Hong Kong Special Administrative Region of the People’s Republic of China, an extradition country”. It is pursuant to that request that the respondents now claim to hold the applicant in custody, and it is the request which is challenged in the principal application.

Extradition of the applicant is sought on the ground of an alleged offence of serious fraud involving an amount approximating 1.4 million Australian dollars.  It appears that Mrs Wu fled Hong Kong to escape prosecution or other consequences of earlier events.  Counsel for the respondents (other than the Governor of the Remand Centre at Grafton who submitted to such order as the Court might make) argued that a letter dated 9 April 1995, written by the applicant in Chinese characters, of which a translation was put into evidence, showed that she was prepared “to lead a life of fleeing”, and therefore could not be trusted to adhere to bail conditions.  It is true that the letter, as translated, used those words.  However, when the full contents of the letter are read (five typed pages), I think it favours, rather than embarrasses, Mrs Wu’s application.  It is expressed as an agonised letter, written to her son very shortly after her flight, filled with expressions of remorse and, it must be said, some self-pity.  It suggests a very confused state of mind, rather than the kind of resolute determination or criminal bent that might lead to a defiance of bail conditions and continued flight.  There is nothing in this lengthy letter to her own son to indicate that she had amassed any significant sums by what she had done, which might fund a life as a fugitive.  She plainly asserts that all the money in question was lost.  I did not understand counsel for the respondents to suggest that this was untrue: his submission was that “[t]he applicant left Hong Kong when she was unable to repay the money to the investors”. 

For the applicant, it is pointed out that she does not speak any English, and that she is incarcerated in a high security regional prison at Grafton, where there are no other Chinese speakers.  Her incapacity to communicate in any normal way may, I think, be fairly regarded as an exceptional circumstance rendering her imprisonment particularly onerous. 

There is another circumstance of an exacerbating character.  The applicant has, during the past two years, been suffering the consequences of what an orthopaedic surgeon (Dr J R S Ashwell) has described as “a severe crushing and twisting injury to her right upper arm with fracture of the humerus, deep abrasions and injury to the radial, ulna[r] and median nerves and musculo-cutaneous nerve of her upper arm”.  A report furnished on 10 July 1997 shows that she is still under treatment, and that the nerve recovery is incomplete, and likely to remain so.  The specialist considered that she “needs to continue with passively mobilising her hand using her other hand or preferably by another person”, and that “[w]ithout continuing the mobilising exercises to her hand over the next 6 months, it is likely that the fingers will stiffen further.”  Other evidence suggests the applicant suffers continuing pain.

In my opinion, the long separation from her husband while she is incarcerated in Grafton gaol is inevitably a much more severe ordeal for this Chinese woman in her early fifties, who cannot speak the language of her gaolers or other inmates, and is suffering quite serious medical problems, than the imprisonment of a fugitive on remand would ordinarily be. 

The first contention of counsel for the applicant was that I had a broad discretion of the kind applying to immigration cases under the decisions of the Full Court in Minister for Immigration, Local Government and Ethnic Affairs v Msilanga (1992) 34 FCR 169 at 170, per Black CJ, and 189, per Burchett J; and Minister for Immigration, Local Government and Ethnic Affairs v Montero (No 2) (1992) 26 ALD 158. But I do not think an extradition case can properly be compared with an immigration case. Certainly, the authorities cited provide support for the proposition that this Court, before which an application has been brought under s 39B of the Judiciary Act, has conferred on it, pursuant to s 23 of the Federal Court of Australia Act 1976, a jurisdiction to make an interlocutory order granting bail as may be appropriate. But what is appropriate in an extradition case has long been held by the courts to involve a consideration of whether there is something special or exceptional about the case to justify bail. Sections 15 and 21 of the Extradition Act 1988 give that rule statutory force, requiring “special circumstances”. Counsel contends correctly that these sections do not in terms apply to the present case. But they reflect a legislative adherence to what is, in any event, the common law principle. Cooper J, in Holt v Hogan (1993) 117 ALR 378 at 385, described the common law and the statute as taking “the same approach”. In The Queen v Spilsbury [1898] 2 QB 615 Lord Russell of Killowen CJ (with whom Wright and Kennedy JJ agreed) held that the common law conferred a power to grant bail in an extradition case independently of statute. But he added (at 622):

“Considering the class of cases which are likely to arise under the Fugitive Offenders Act, it is obvious that the power ought to be exercised with extreme care and caution.”

This statement of the law has constantly been applied since:  see I and C Stanbrook on the Law and Practice of Extradition (1980) 52;   V E Hartley Booth on British Extradition Law and Procedure (1980) Vol 1, 41.  It seems to me that the common law’s “extreme care and caution” and the statute’s “special circumstances” are each intended to reflect the same matter - a high risk that a fugitive from his own country may fail to answer bail.  This was expressly held to be the basis of the statutory provisions in Schoenmakers v Director of Public Prosecutions (1991) 30 FCR 70 at 73-74, a decision of French J. It is a consideration which should be applied bearing in mind the importance of the international obligation undertaken by Australia when it enters into extradition treaties: R v Phillips (1922) 38 TLR 897 at 898; Hempel and Etheredge v Moore (1987) 13 FCR 480 at 488.

Accordingly, in my view, it is necessary to approach an application of this kind on the footing that special circumstances must be shown. Cf the case of an application for bail following conviction and pending an appeal, where exceptional or special circumstances must be shown:  see the authorities discussed in Eastman v The Queen (Burchett J, unreported, 7 January 1997).

But what are special circumstances?  In Jess v Scott (1986) 12 FCR 187, a Full Court discussed a number of decisions of high authority concerning the expressions “special reasons” and “special circumstances” and similar expressions, which were treated as equivalent, and concluded (at 195), of the expression there in point, namely, “special reasons”:

“It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.”

(The case was concerned with an extension of time to appeal.)  The same principle was applied to the expression “special circumstances”, in relation to an application for release from an implied undertaking, in Holpitt Pty Limited v Varimu Pty Limited (1991) 29 FCR 576 at 578-579, where it was pointed out that the word “special” derives almost all its meaning from its context. See also Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217; Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 124 ALR 493 at 501-502. These expositions of comparable uses of “special circumstances” support the view, which I hold, that the expression refers to circumstances different, in some way that provides a ground for considering a grant of bail more favourably, from those of the ordinary case of a fugitive remanded in custody.

What is special for the purposes of the Extradition Act has been considered, with reference to concrete situations, by French J in Schoenmakers (supra); by Cooper J in Holt v Hogan (supra); and by Spender J in Kainhoffer v Director of Public Prosecutions (1993) 48 FCR 9. In the present case, it seems to me there are several circumstances which, singly and in combination, are special. In the first place, Mrs Wu was imprisoned for several months pursuant to a request which ultimately was not pursued. As I have indicated, there is an issue concerning the circumstances surrounding the latter part of that imprisonment; but I think, quite apart from what may ultimately be concluded on that issue, the very fact of imprisonment for a substantial time, upon a request which was then abandoned, involved circumstances that should properly be regarded as special when bail is sought in relation to a later request. Then there are the language and medical matters to which I have already referred, each of which is, I think, a special circumstance in relation to the imprisonment of this particular woman in this particular prison.

The circumstances being special, a question of discretion arose.  At the hearing, I reached the firm conclusion that it was appropriate the applicant should have bail, and that there was no significant risk of her absconding if bail were granted upon the conditions which I imposed.  Accordingly I made the orders which have been set out earlier in these reasons.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate:

Dated:   5 November 1997

Counsel for the Applicant:                 Mr N J Williams and Mr T Reilly

Solicitors for the Applicant:               Grahams Solicitors     

Counsel for the Respondent:             Mr L P Robberds QC

Solicitor for the Respondent:             Commonwealth Director of Public Prosecutions

Date of hearing:  3 October 1997

Date of judgment:  5 November 1997