Kwok Ming Wan v Conroy

JurisdictionIreland
Judgment Date31 March 1998
Date31 March 1998
Docket Number[S.C. No.31 of 1997]
CourtSupreme Court
Kwok Ming Wan v. Conroy
Kwok Ming Wan
Plaintiff
and
Assistant Commissioner Noel Conroy
Defendant
[S.C. No.31 of 1997]

Supreme Court

Extradition - Factors to be taken into account - Circumstances of plaintiff - Exceptional circumstances - Whether exceptional circumstances must be established before having regard to all circumstances - Delay - Whether delay exceptional - Whether responsibility for delay has direct bearing on injustice and oppression - Extradition Act, 1965 (No. 17), s. 50(2)(bbb).

Courts - Appeal - Function of Supreme Court on appeal - Whether Supreme Court hearing appeal entitled to draw its own inferences from primary facts.

Section 50 of the Extradition Act, 1965 (as amended by s. 2 of the Extradition (Amendment) Act, 1987) ("the Act of 1965 as amended") provides that:-

"(1) A person arrested under this Part shall be released if the High Court or the Minister so directs in accordance with this section.

  • (2) A direction under this section may be given by the High Court where the Court is of opinion that:-

    • (bbb) by reason of the lapse of time since the commission of the offence specified in the warrant or the conviction of the person named or described therein of that offence and other exceptional circumstances, it would, having regard to all the circumstances, be unjust, oppressive or invidious to deliver him up under section 47 . . ."

In September, 1987, the plaintiff was tried in London for a criminal offence. During his trial he absconded and came to this jurisdiction. On the 23rd September, 1987, he was convicted and sentenced in his absence to four years imprisonment.

An extradition warrant was issued in the United Kingdom on the 15th June, 1995.

From the time of his arrival in this jurisdiction in 1987, to his eventual arrest on foot of the said extradition warrant in September, 1995, the plaintiff lived and worked openly under his own name. He had on a number of occasions been subjected to checks by the Aliens Registration Office which was aware that he was living and working in Dublin. In 1994, he applied to the Aliens Registration Office to have his passport stamped to re-enter Ireland as he wished to visit Hong Kong.

The plaintiff started a business in October, 1994. The plaintiff, his wife, whom he had married in 1990 having co-habited since 1988, and their three children originally lived above this business. In 1995, the plaintiff and his wife decided to buy a house and they moved into this house in November, 1995.

In 1990, a request was made by the United Kingdom authorities as to whether the plaintiff was in this jurisdiction. The United Kingdom authorities were told that the plaintiff did not appear to be in this jurisdiction.

On the 15th February, 1993, the plaintiff obtained a fresh British passport through the British Embassy in Dublin. He had left his previous passport behind when he absconded during his trial in 1987.

In November, 1994, the plaintiff was identified by a constable of the United Kingdom police force and following this the said extradition warrant was issued on the 15th June, 1995.

Following the hearing in the High Court that Court ordered the plaintiff's release on the 17th December, 1996, and the defendant appealed to the Supreme Court.

Held by the Supreme Court (Hamilton C.J., Keane and Barron JJ.) in dismissing the appeal, 1, that the three factors which must be taken in to account by a trial judge in the formation of his opinion that it would be unjust, oppressive or invidious to deliver up the person arrested were, the lapse of time, other exceptional circumstances and all the circumstances of the case.

2. That it must be established that exceptional circumstances existed before the court was entitled to have regard to all the circumstances in determining whether it would be unjust, oppressive or invidious to deliver up the plaintiff under the Act of 1965.

Per Barron J.: Section 50 of the Act of 1965, as amended, required that the lapse of time between the conviction and the arrest must be exceptional and that, in addition, there must be other exceptional circumstances before the court could consider all the circumstances as a whole.

3. That it is the function of the Supreme Court on the appeal to form its own opinion as to whether the primary facts as established in the evidence constituted"exceptional circumstances" within the meaning of the Act of 1965 and also on the matter of injustice, oppression or invidiousness.

Kakis v. Republic of Cyprus [1978] 1 W.L.R. 779followed.

4. That, for such purposes, the relevant time period was the period between the date of the plaintiff absconding and the date of the hearing of his application to the High Court.

Per Barron J.: The delay of over eight years was exceptional.

5. That the question of responsibility for the delay was one which may have a direct bearing on the issues of injustice and oppression and that the delay between the plaintiff's conviction and the application to the High Court was contributed to by a certain dilatoriness on the part of the authorities in applying for the plaintiff's extradition.

Kakis v. Republic of Cyprus [1978] 1 W.L.R. 779followed.

Per Barron J.: The apparent failure of the authorities to make earlier inquiries in this jurisdiction and to follow them up resulted in the delay in finding the plaintiff and that this in itself was a factor in favour of the plaintiff

6. That the changes in the family circumstances of the plaintiff were circumstances to be taken into account in determining whether it would unjust, oppressive or invidious to deliver up the plaintiff pursuant to the Act of 1965 but only when considering "all the circumstances".They did not amount to "exceptional circumstances".

7. That the exceptional circumstances were that the plaintiff made no effort to conceal his presence in this country, that he lived and worked openly within this jurisdiction, was in contact with the Gardaí and immigration authorities and that he applied for and obtained a passport from the British Embassy.

8. That, having regard to the fact that the delay between the plaintiff's conviction and the application to the High Court was contributed to by a certain dilatoriness on the part of the authorities in applying for the plaintiff's extradition, the fact the plaintiff lived and worked openly in this jurisdiction and was in contact with the gardaí, the immigration authorities and the British Embassy, the family circumstances of the plaintiff and to the circumstances of the case, it would be unjust and oppressive to deliver up the plaintiff under the Act of 1965.

Per Barron J.: That the length of the sentence faced by the plaintiff must be a consideration and that the shorter the sentence, the more compelling the delay and other exceptional circumstances would be to retain the plaintiff within the jurisdiction.

Cases mentioned in this report:-

Ellis v. O'Dea (No. 2) [1991] 1 I.R. 251; [1991] I.L.R.M. 346.

Kakis v. Republic of Cyprus [1978] 1 W.L.R. 779; [1978] 2 All E.R. 634.

Reg. v. Governor of Pentonville, Ex p. Narang[1978] A.C. 247; [1977] 2 W.L.R. 862; [1977] 2 All E.R. 348.

Appeal from the High Court.

The facts have been summarised in the headnote and are set out fully in the judgments of Hamilton C.J. and Barron J.,infra.

By special summons issued on the 13th October, 1995, the plaintiff sought an order directing his release pursuant to s. 50 of the Extradition Act, 1965, as amended, following a District Court order for his delivery pursuant to s. 47 of the Act, on foot of an extradition warrant issued in the United Kingdom on the 15th June, 1995.

On the 17th December, 1996, the High Court (Smyth J.) ordered that the plaintiff be released.

Notice of appeal was filed on the 5th February, 1997. The appeal was heard by the Supreme Court (Hamilton C.J., Keane and Barron JJ.) on the 28th January, 1998.

Cur. adv. vult.

Hamilton C.J.

31st March, 1998

This is an appeal brought by the above named Noel Conroy, assistant commissioner of the Garda Síochána...

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