Magistrates Court of Fiji

The Application

The cant swore an affidavit in this fresh application for bail. For the applicant it was submitubmitted that he is not flight risk and that he voluntarily went to the Police Station. He further stated that for the period he was on bail from this Court he adhered to his bail conditions.

The applicant submitted that the extradition charges are of a serious nature and that he needed to work with his counsel and obtain comprehensive legal advice to raise an objection or defence to his extradition. The applicant further submitted that English was not his first language and he was having difficulties in comprehending it. He needed a lot of time with his counsel and with an interpreter. The applicant submitted that he had substantial ties to Fiji and assets within the jurisdiction. The court was furnished with the details of the sureties and copies of various documents that showed his ties to Fiji and his assets.

The applicant agreed to adhere to strict bail conditions. He submitted that there was no likelihood of interfering with witnesses. The applicant further agreed to deposit a monetary bond of $10,000.00, report to nearest police station, surrender his passport and be placed on the Immigration watch list.

In summary the applicant submitted the following as special circumstances warranting him the grant of bail –

1. That he is a citizen of Fiji and that he holds no other citizenship, right of abode or residency for any other country.
   
2. The alleged offence was to have been wholly committed within Fiji.
   

100. That he was not in USA during the period of alleged offending, nor does have right of abode or residency in USA and as a result should not be subject to their laws.
     

4. Will be prejudiced at the trial as there are no documentary particulars as to identity of the accusers. The accusers were convicted of offences in USA and entered into plea arrangement. The informants are no longer in contact with FBI and therefore there will be no opportunity to cross-examine the accusers.
   
5. The alleged evidence in relation to the alleged offence has been obtained by non-consensual telephone recordings and has not been disclosed. It is a breach of the constitutional right of applicant to confidentiality of communication and not have unlawfully obtained evidence adduced and used against him.
   

In the oral submission the counsel for the applicant stated that the application came under Section 4 (c) of the Extradition Act. The uniqueness in personal circumstances. Accused cannot reside anywhere else.

The States Response

The State stated that there was nothing new in the application to that was argued in the High Court. The High Court has already stated no special circumstances. Section 4 (c) of the Extradition Act refer to surrender in USA not in Fiji. The Court is bound by the decision of the High Court. Special circumstances have not been defined in the Act. No case authority defining it as well.

The case law from other Jurisdiction

This Court has noted that the term “special circumstances” in Section 64 of the Extradition Act is not defined in the Act. Neither are there any case laws defining this term in Fiji. This Court has found that in other jurisdictions namely, Australia and USA this term has been defined in numerous cases.

In order to assist this Court properly deal with this application this Court would look at the various cases and how the law on “special circumstances” in relation to bail has been developed over time.

Of the most comprehensive discussion and well reasoned out ruling in relation to “special circumstances” was the case United Mexican States v Cabal [2001 60. The HThe High Court of Australia (Full Court consisting of Cleeson CJ, Mchugh and Gummow JJ) on appeal from a single judge (Kirby J) dealt with the issue of what constitutes “sp circumstances” in rein relation to bail in extradition cases. In order that there is no misunderstanding and clarity in the absence of any clear definitions in this jurisdiction on the term this Court feels that is very important that it cites the relevant portions of the Ruling of the Full Court for the benefit of the parties in this case.

In Cabal the Court acknowledged that the provenance of the "special circumstances" requirement is United States extradition case law. The Court in Cabal recited that “In Wright v Henkel [1903] USSC 172; 190 US 40 (1903), the United States Supreme Court rejected an application for release on bail pending the extradition hearing of Whitaker Wright, a well-known English financier. The United Kingdom Government sought Wright's extradition to prosecute him in respect of offences concerning a corporation. The extradition judge rejected his claim for bail, a claim made on the ground that he had bronchitis and might develop pneumonia if kept in gaol. The judge held that he had no power to admit on bail. The Supreme Court rejected Wright's appeal pointing out that there was no statute permitting bail. After referring to sections in the legislation that provided for the committal of the defendant, if the commissioner or judge found the evidence sufficient, the Court said:

"The demanding government, when it has done all that the treaty and the law require it to do, is entitled to the delivery of the accused on the issue of the proper warrant, and the other government is under obligation to make the surrender; an obligation which it might be impossible to fulfill if release on bail were permitted. The enforcement of the bond, if forfeited, would hardly meet the international demand; and the regaining of the custody of the accused obviously would be surrounded with serious embarrassment. And the same reasons which induced the language used in the statute would seem generally applicable to release pending examination."

In the penultimate paragraph of their Honours' judgment, however, they said:

"We are unwilling to hold that the Circuit Courts possess no power in respect of admitting to bail other than as specifically vested by statute, or that, while bail should not ordinarily be granted in cases of foreign extradition, those courts may not in any case, and whatever the special circumstances, extend that relief." (emphasis added)

Their Honours said that there was no occasion to determine whether there was such power "as we are clearly of opinion, on this record, that no error was committed in refusing to admit to bail".”

The Court in Cabal went on to state that some years later in “In re Mitchell 171 F289 at 289 (SD NY 1909), Learned Hand J held that the existence of the power to grant bail "was distinctly affirmed by the Supreme Court" in Wright v Henkel. His Honour said that the Supreme Court had also indicated "that the power should be exercised only in the most pressing circumstances, and when the requirements of justice are absolutely peremptory". In Mitchell, Learned Hand J held that special circumstances existed because the defendant was "entirely unable to consult with his counsel and prepare for the remainder of" a trial involving "all the fortune of the prisoner."

Since In re Mitchell, numerous cases in the United States have held that bail cannot be granted unless special circumstances are established. In Parretti v United States [1997] USCA9 2601; 122 F 3d 758 (9th Circuit 1997), however, the Court of Appeals for the Ninth Circuit (Norris and Reinhardt JJ, Pregerson J dissenting) held that requiring a detainee to show special circumstances before admission to bail violates the Due Process Clause of the Fifth Amendment. Although the special circumstances test no longer represents the law for the Ninth Circuit, it continues to be the law for the other federal circuits in the United States.

The principles applicable in the other federal circuits of the United States are well summarised in Matter of Extradition of Nacif-Borge 829 F Supp 1210 at 1215 (D Nev 1993):

"Therefore, a person subject to international extradition may overcome the presumption against bail by presenting clear and convincing evidence demonstrating 'special circumstances' justifying release pending extradition proceedings and that the person will not flee or pose a danger to any other person or to the community."

The United States cases give valuable guidance as to what constitutes special circumstances. At an early stage, the view was taken that "admission to bail and extradition should be in practice an unusual and extraordinary thing, for the whole proceeding is opposed to our historical ideas about bail." It is therefore accepted that special circumstances "need to be extraordinary and not factors applicable to all defendants facing extradition." It is not necessary that any particular circumstance should be regarded as special. Several factors in combination can constitute special circumstances justifying bail.

A high probability of success in resisting the extradition proceedings may constitute special circumstances. So may age together with lack of a suitable facility for holding the defendant. So may imprisonment causing a serious deterioration of health. In In re Mitchell, Learned Hand J regarded the necessity of the defendant to prepare his defence in a civil action where his entire fortune was at risk as special circumstances. But the general view in the United States is that the need to prepare litigation - whether for the extradition proceedings or other civil litigation - does not constitute special circumstances. As the Ninth Circuit pointed out in Matter of Extradition of Smyth, "[t]he need to consult with counsel, gather evidence and confer with witnesses, although important, is not extraordinary; all incarcerated defendants need to do these things."

That the extradition proceedings may be lengthy will not constitute special circumstances unless there has been some unusual delay. In Hababou v Albright, the District Court refused bail although the defendant's extradition hearing might be delayed for at least a year because he had to answer criminal charges in the United States as well as the extradition charges. That the defendant holds an important position and the community will be deprived of his services during detention does not constitute special circumstances. Nor does the fact that another court has granted bail to the defendant's brother on the same charges. Nor that there is a low risk of flight. That the detainee would be entitled to bail in the country to which he was extradited does not constitute special circumstances either. In In re Extradition of Siegmund, the Court said that the purpose of an international extradition proceeding was "not to mirror the internal bail practices of the requesting country, but, rather, to deliver the extraditee to that country". So in Matter of Extradition of Sutton, the District Court refused bail to an Australian although there was evidence before the Court that, upon being returned to Australia, he would very likely be granted bail pending the hearing of the committal proceedings.

Special circumstances not established

An examination of the particular circumstances relied on in the United States cases and the decisions in respect of those circumstances is instructive. In United States v Kin-Hong, the Court denied that there were special circumstances where the applicant relied on the complexity of the legal issues and the likelihood of delay involved in the impending reversion of Hong Kong (the extraditing country) to the People's Republic of China. In United States ex rel McNamara v Henkel, the Court rejected the likelihood of delay as a special circumstance. In In re Klein, the Court held that discomfort in gaol and the likelihood of delay in the hearing were not special circumstances. In United States v Messina, the likelihood that the applicant would be acquitted when prosecuted on his return was held not to be a special circumstance. In Koskotas v Roche, the Court held that special circumstances did not exist when the applicant agreed to submit to house arrest, claimed the need to be actively involved in defence of the extradition proceedings and wished to prepare for pending civil litigation. In Matter of Extradition of Hamilton-Byrne, the Court held that risks to the defendant's health did not constitute special circumstances. In Matter of Extradition of Rouvier, the Court held that special circumstances were not established by the risk to the defendant's health, that the offence may have been bailable in the extraditing country and that the defendant was likely to be acquitted of the underlying charge. In Lo Duca v United States, the Court held that the ailing health of the defendant's wife was not a special circumstance. In Matter of Extradition of Heilbronn, the Court rejected as special circumstances a claim that the defendant's release would benefit the public because he was a doctor and that there was a likelihood of delay in hearing the extradition proceedings. In Matter of Extradition of Russell, the Court held that special circumstances were not established when the defendant claimed that his detention would result in a large loss of business, that his family was financially dependent upon him, that he was involved in civil litigation that required his attention and that the charges the subject of the extradition were complex. In Cherry v Warden, the Court held that a constitutional challenge to the extradition statute did not constitute special circumstances. In In re Extradition of Siegmund, the Court held that the non-violent nature of the offences the subject of the extradition and that they were bailable in the country seeking extradition were not special circumstances. In United States v Tang Yee-Chun, the Court held that the defendant's difficulty in defending the extradition by reason of his need for a translator did not amount to special circumstances. In United States v Leitner, the Court held that family ties in the United States and the lack of a prior criminal record did not constitute special circumstances.

Special circumstances established

In Beaulieu v Hartigan, the Court held that special circumstances were established when there was a likelihood of delay, the defendant had no passport and was not a danger to the community and his parents were responsible people who would ensure his presence at the trial. In Artukovic v Boyle, the Court held that special circumstances existed where the charge was vague and the defendant had a wife and four children in the United States, had made no attempt to conceal his identity, and had allegedly committed the offence while overseas on Army service. In Hu Yau-Leung v Soscia, the Court held that special circumstances existed by reason of the defendant's background, his age - 16 years - and the lack of a suitable facility in which to detain him. In Kin-Hong v United States, the Court held that special circumstances existed by reason of the probability of delay in finalising the proceedings and the existence of a pending constitutional challenge to the extradition law. In Matter of Extradition of Morales, the Court held that a number of matters in combination constituted special circumstances. They included a defect in the arrest warrant, the defendant's ability to make restitution for the crime, the likelihood of continued delay in the extradition proceedings and the availability of bail upon being returned to Mexico. In United States v Taitz, the Court also held that a combination of matters constituted special circumstances. They included the likelihood of delay, the risk to the defendant's health, the absence of danger to the community, the inability of the defendant to observe his religious rites in gaol and the practice of granting bail to persons in the extraditing country. In In Matter of Requested Extradition of Kirby, the Court of Appeals also held that special circumstances existed by reason of a combination of matters. They included the likelihood of delay, the pending constitutional challenge to the extradition statute, the inability of the defendants to get credit for time spent in detention in the United States if they were sentenced in the extraditing country and the likelihood that the granting of bail would promote harmony among warring factions in Northern Ireland.

The risk of flight

In the United States, the practice is to consider the risk of flight and only then to consider whether special circumstances exist. If there is a real risk of flight, the application for bail is refused whatever the special circumstances may be. In Australia, the existence of special circumstances is an essential condition of the grant of bail. It seems proper, therefore, to determine whether special circumstances exist before considering the question of flight, a matter that is highly relevant in the exercise of the general discretion. It may be going too far to say that, if there is any risk of flight, the Act requires that bail be refused, even if there are special circumstances. In a particular situation, the special circumstances may be so cogent that bail should be granted although there is a slight risk of flight. Nevertheless, to grant bail where there is a real risk of flight could only be justified in the most extraordinary circumstances. In the vast majority of cases, the proper exercise of discretion requires the refusal of bail if there is such a risk. To grant bail where a risk of flight exists is to jeopardise Australia's relationship with the country seeking extradition and to jeopardise our standing in the international community.

The rationale for refusing bail in extradition cases

Where a person is found in Australia and an extraditable offence is alleged against him or her, this country is obliged to return that person to the country seeking extradition. Australia therefore has a very substantial interest in surrendering the person in accordance with its treaty obligations. If Australia fails, when requested, to return a person against whom there is probable cause for concluding that he or she has committed an extraditable offence, it breaches its obligations under international law. If Australia fails to comply with a treaty, the rules of international law entitle the other party to the treaty to repudiate or suspend the performance of its own obligations under the treaty. A repudiation or suspension by another country of its extradition treaty obligations to Australia would hinder this country's ability to enforce its own laws. In an era where much crime is transnational, the breakdown of international co-operation in apprehending criminals would be disastrous for the peoples of the countries concerned. Such a breakdown may do more than inhibit the apprehension of persons who have committed crimes against Australian law. If other countries think it not worthwhile to seek extradition from Australia, Australia may become a haven - at least for a time - for those who have committed serious crimes in other countries. They may well commit similar offences here.

If the defendant flees Australia after being granted bail, the expense of enforcing Australia's treaty obligations has been incurred for no gain to this country. Even if the defendant is re-captured, further public money will have been expended. The cost of extradition proceedings is often substantial. In the present case, for example, there were extremely lengthy proceedings before the Magistrate, an appeal to the Federal Court, and an appeal to the Full Court of the Federal Court. In the proceedings before Kirby J, Mexico and the Commonwealth asserted that they were the "beneficiaries of costs orders against Mr Cabal which amount, in aggregate, to about $2m." But the cost of any extradition proceeding is certain to be considerable. It is obvious that Australia and often the extraditing State may have to spend large sums on extradition proceedings, most of which may be irrecoverable from the defendant. To these costs must be added the cost of keeping the defendant in custody. All this expenditure is put at risk when a defendant is granted bail.

Because the typical extraditee is a person who has fled from another country after committing a serious crime, granting bail to that person provides a further opportunity for him or her to flee from the reach of the extraditing country. The ever present risk of flight in extradition situations was the rationale for the "special circumstances" requirement of s 15(6) of the Act[97]. The Explanatory Memorandum stated:

"Sub-clause (6) provides that a person shall not be granted bail unless there are special circumstances. Such a provision is considered necessary because experience has shown that there is a very high risk of persons sought for extraditable offences absconding. In many cases the person is in Australia to avoid arrest in the country where he is alleged to have committed the offence, i.e. the person left the jurisdiction to avoid justice." (emphasis added)

No similar explanation was given for the later enactment of the "special circumstances" requirement in s 21(6)(f)(iv). But there can be no doubt that that provision has the same rationale as s 15(6).

Given this background and the rationale for the "special circumstances" condition, bail in extradition cases should be granted only when two conditions are fulfilled. First, the circumstances of the individual case are special in the sense that they are different from the circumstances that persons facing extradition would ordinarily endure when regard is had to the nature and extent of the extradition charges. This means that the circumstances relied on must be different in kind from the disadvantages that all extradition defendants have to endure. To constitute "special circumstances", the matters relied on "need to be extraordinary and not factors applicable to all defendants facing extradition." Second, there must be no real risk of flight. Absence of a real risk of flight is ordinarily a necessary but not a sufficient condition of bail. When there is a real risk of flight, ordinarily bail should be refused. Further, the risk of flight should be considered independently of the effect of the proposed bail conditions. In this area of law, the history and character of the defendant and the potential punishment facing the defendant are likely to be surer guides to the risk of flight than bail conditions - even rigorous conditions. A person, fearing punishment and inclined to flee, is unlikely to be diverted from that course by the prospect that his or her sureties may forfeit their securities or by stringent reporting conditions. Even if the defendant has to report twice daily to the police, he or she will have a period of 12-14 hours in which to leave Australia.

Even when special circumstances are proved and there is no real risk of flight, it does not follow that bail must be granted. For example, the defendant may pose a risk to the community or a particular individual. In addition, bail must become harder to obtain as the case proceeds through the judicial system. Once the Magistrate has found that the defendant is eligible for surrender, public interest factors similar to those that require a convicted defendant to be imprisoned also require that a defendant in extradition proceedings be kept in custody. Before a Federal Court judge grants bail, the defendant ordinarily will need to show that the application for review has strong prospects of success as well as special circumstances and an absence of risk of flight."

Analysis of the Application

In re-examining this application for bail by the applicant this Court has noted the submissions made by the counsel for the applicant and read and noted the affidavit of the applicant. This Court has also noted the submissions of the State Counsel.

In Cabal the Full Court defined and extensively discussed "special circumstances" in relation to bail in Extradition matters. For ease of reference this Court has quoted the relevant portions from the ruling in Cabal.

This Court finds that certain arguments advanced by the applicant fulfil the requirements of bail under the Bail Act 2002. However the Bail Act alone does not deal with bail in extradition matters. The Principal Law governing extradition in Fiji is the Extradition Act 2003 and Section 64 states that "Notwithstanding the Bail Act, bail under #160;Act&#1ct must only be grantder specispecial circumstances." This Court notes that the objective of the Extradition Act is to regulate the extradition of persons from the Fiji Islands, to facilitate the makingequests for extradition by n by the Fiji Islands to other Countries, to enable the Fiji islands to carry out its obligations under the extradition treaties and for related matters.

Bail in extradition matters is not as straight forward as compared to Bail in criminal cases. The onus is on the applicant is to establish "special circumstances" for bail to be granted. This is in addition to satisfying the Court that the applicant is not a flight risk. This Court has noted the decision in Cabal by the High Court in Australia. The ruling in Cabal extensively discussed the development of the case law in USA and it also reviewed a number of its federal decisions. Cabal set out the principles that should be applied in determining whether to grant bail under similar "special circumstances" principles that exist in Fiji. For our jurisdiction we can rely on these principles that have been extensively analysed and discussed and developed in the absence of any local jurisprudence on this area.

In this fresh application this Court has noted that the Applicant has argued that he is not a flight risk by agreeing to surrender his passport, provide sureties, post monetary bond, show ties to Fiji and provide he has assets in the jurisdiction, in addition to agreeing to report, not interfere with witnesses. Given the allegation against the applicant of his ability to obtain a 'false' passport this Court is not satisfied that there is no real risk of flight. This Court cannot easily discount the fact that the applicant is not a flight risk given his alleged ability to obtain a passport. The allegation is serious in nature as highlighted in Cabal that reporting twice daily to police still allows a person a period of 12-14 hours in which to leave Fiji. The Applicant was born in China. His wife was also born in China. This Court notes that the applicant's children are born in Fiji. He has ties in Fiji and has assets as well. There is real risk that he might abscond to China or elsewhere. This Court cannot discount this. It is a possibility. No matter how strict terms and conditions are placed or even placing him under immigration watch list. This Court cannot discount the fact that someone may tamper or flout the system for gain or money or a 'slip' may occur resulting in a person, in this case the applicant currently in Court passing through the system. Nothing can stop his family following him to China or another place, should he abscond. Assets can be disposed from abroad. This Court further notes from the affidavit of the Applicant that the applicant understands that the charges against him are serious in nature with a cumulative penalty of 27 years and fine of one million US dollars. This further increases the risk of absconding and not submitting to trial in USA for the allegations or charges made against the applicant.

This Court is mindful that the applicant has co-operated with the police and adhered to his previous bail conditions. In assessing the issue of flight risk this Court is mindful of the real risk of flight given the nature of the allegations against him. This case is now in the legal system. The applicant knows the seriousness of the charges against him. He may take steps to abscond no matter what stringent conditions are set. Fiji is under an obligation to USA as treaty member country to return to USA a person they are seeking extradition for. The extradition procedures will be followed. This Court will set reasonable timelines for the procedures and promptly proceed to deal with this matter.

As to the arguments advanced on "special circumstances" this Court finds that the Applicant had the ability to instruct and communicate with counsel while in custody. The Applicant swore a 10 page affidavit at the Suva Remand Centre even though English is not his first language and the affidavit was explained to him in his native tongue Cantonese and then translated to English. This Court finds that arguments for the applicant on this ground do not fall within special circumstances.

The other grounds advanced in his affidavit citing that there exist "special circumstances" warranting bail that include that he is a Fiji Citizen, the alleged offence was wholly committed in Fiji, never been to USA and not subject to their laws do not make up the special circumstances. There is nothing special or extraordinary about these arguments.

It has also been argued for the Applicant that sources, informers/informants have not been disclosed and he is likely to be prejudiced at the trial. This Court notes that at the Extradition proceeding "..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.", as per Section 14 (2) of the Extradition Act. This Court takes it to mean that this Court will not go into the merits of the allegation made against the applicant and will not seek or receive evidence to contradict the allegation.

The other submissions that that the informants are no longer in contact with FBI and no opportunity to cross examine any accusers and that the evidence was obtained illegally also do not fall within the ambit of special circumstances as this Court will work with the ambit of Section 15 (1) (a) to (f) to determine whether a person may be surrendered or not and would in addition be reliant on Section 14 (2) cited above.

No special circumstances are made out for the applicant that this Court considers is in favour of granting the applicant bail in this matter. This Court in addition on the material before it assesses the applicant to be a flight risk.

Orders

For the reasons given herein bail for the applicant is refused. The applicant is remanded in custody for the conduct of the Extradition Proceedings. The Parties are advised of the right to review/appeal this ruling to the High Court.

This Court further seeks that the parties promptly decided on a timeline for the extradition proceedings.

Chaitanya Lakshman
Resident Magistrate
Suva
15th September 2014