Home | Databases | WorldLII | Search | Feedback High Court of New Zealand Decisions

Kwok-Fung v Superintendent of Auckland Central Remand Prison HC Auckland M1356/FW01 [2001] NZHC 920; [2002] NZAR 49 (2 October 2001)

Last Updated: 13 November 2013

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY M1356/FW01

UNDER The Habeas Corpus Act 2001

AND

UNDER The Judicature Amendment Act 1972

IN THE MATTER of the Extradition Act 1999

AND the proceedings to extradite YUEN KWOK FUNG to the Hong Kong Special Administrative Region of the People’s Republic of China

BETWEEN YUEN KWOK-FUNG
Applicant

AND THE SUPERINTENDENT OF AUCKLAND CENTRAL REMAND PRISON First Defendant

AND THE MINISTER OF JUSTICE
Second Defendant

Date: 14 September 2001

Counsel: S Connolly for plaintiff
M Ruffin for defendants

Judgment date: 2 October 2001

JUDGMENT OF O’REGAN J

Solicitors:
B Ellis, PO Box 4516, Auckland for plaintiff
Meredith Connell, DX CP 24063 for defendants

[1] The plaintiff, Yuen Kwok-Fung, is the subject of a surrender order made by the second defendant (the Minister) on 28 August 2001 under Part 3 of the Extradition Act 1999 (the Act), authorising his surrender to the authorities of the Hong Kong Special Administrative Region of the People’s Republic of China (Hong Kong). He seeks judicial review of the Minister’s decision and asks the Court to set aside or declare invalid that decision or, alternatively, to order the Minister to reconsider the matter. The statement of claim also seeks a writ of habeas corpus but it was agreed before me that, as the matter has developed, the habeas corpus application has become unnecessary. Mr Yuen does not now pursue it.

Issues

[2] The judicial review application raises two issues, namely:

[a] Whether the decision of the Minister was unreasonable in that it did not consider the “interests of justice” test under s 30(3)(c) of the Act;

[b] Whether the Minister erred in law in that he took into account an irrelevant consideration, namely the fact that Mr Yuen was a citizen of Hong Kong at the time of his alleged offending.

[3] With respect to the first issue, I note that the essential thrust of the plaintiff’s arguments has been that the Minister failed to consider, or failed to consider properly, the “interests of justice” test pursuant to s 30(3)(c) of the Act. Effectively, the plaintiff has sought to demonstrate that the Minister failed to consider a relevant factor. I have therefore considered this aspect of the case on the basis that the plaintiff is arguing that the Minister treated s 30(3)(c) in a way that was mistaken in law and/or unreasonable.

The sequence of events

[4] The history of this matter is somewhat tortuous, but because some of the earlier events have relevance to the issues in the present case, I will briefly set out a chronology of events.

[5] The context of these events is important. The surrender order was made under the Act. The Act applies to Hong Kong by virtue of the Extradition (Hong Kong Special Administrative Region of the People’s Republic of China) Order 1998 (the 1998 order). The Schedule to the 1998 order sets out the text of the extradition agreement between New Zealand and Hong Kong, dated 3 April 1998 (the Hong Kong extradition agreement). Under the Hong Kong extradition agreement, New Zealand and Hong Kong agree that, when requested, the requested party will surrender to the requesting party, for prosecution or enforcement of a sentence in the jurisdiction of the requesting party, any person who is found in the jurisdiction of the requested party. This obligation relates only to certain specified offences and there are a number of specific provisions and exceptions. In particular, each party reserves the right to refuse to surrender its nationals and there is also a discretion given to the requested party to refuse to surrender a person otherwise eligible for surrender for certain specified reasons.

[6] The Act replaced the Extradition Act 1965 (to which the 1998 order originally applied), but the 1998 order now applies to the Act by virtue of transitional provisions contained in the Act.

[7] Section 30 of the Act gives the Minister power to determine whether a person should be surrendered under an extradition agreement. For present purposes, the key provision is s 30(3)(c), the relevant parts of which, in summary, say that the Minister may determine that a person not be surrendered if the extradition treaty in question does not preclude the surrender of New Zealand citizens (as is the case here) but the Minister is satisfied that, having regard to the circumstances of the case, it would not be in the interests of justice to surrender the person.

[8] The chronology of events is as follows:

[a] In June 2000 District Court Judge Hole determined that Mr Yuen was eligible for surrender to Hong Kong, but declined Hong Kong’s application for surrender on the basis that it would be incompatible with certain humanitarian considerations referred to in Article 7(1)(d) of the Hong Kong extradition agreement.

[b] Hong Kong appealed to the High Court and Paterson J allowed the appeal in a judgment dated 30 October 2000. He found that the District Court did not have jurisdiction to consider the discretionary restrictions on surrender set out in Article 7 of the Hong Kong extradition agreement and the 1998 order.

[c] Mr Yuen appealed to the Court of Appeal which dismissed the appeal in a judgment dated 13 June 2001.

[d] The matter was therefore remitted to the District Court and Judge Hole made a determination on 18 July 2001 that Mr Yuen was eligible for surrender and issued a warrant for detention under s 26(1)(a) of the Act.

[e] Under Part 3 of the Act, the Minister was then required to determine whether Mr Yuen should be surrendered. The Ministry of Justice (the Ministry) sought submissions on that issue from Mr Yuen’s counsel, Mr Connolly, who made extensive submissions on 27 July 2001, appending the judgments of Judge Hole, Paterson J and the Court of Appeal, as well as supporting affidavits. The Ministry then sought a response from Hong Kong, submissions in reply to that response from Mr Yuen’s counsel, a further response from Hong Kong and further submissions from Mr Yuen’s counsel - these latter submissions were dated 14 August and 27 August 2001. The Ministry then prepared a report for the Minister dated 28 August 2001, as a result of which the Minister determined that Mr Yuen should be surrendered and signed the surrender order.

[f] Mr Yuen then applied for a Writ of Habeas Corpus and the current proceedings were commenced. Mr Yuen’s solicitor wrote to the Minister asking for his decision and was informed by the Ministry that the Minister had left the country soon after the surrender was signed, and the normal practice of sending a letter giving the reasoning for the Minister’s decision could not therefore be followed. However, a copy of the Ministry’s report to the Minister was sent to Mr Yuen’s solicitor because these proceedings were then on foot. A letter explaining the Minister’s reasoning was never prepared or sent, but the Minister filed an affidavit dated 3 September 2001 in relation to the habeas corpus proceedings.

The Minister’s affidavit

[9] In his affidavit, the Minister dealt particularly with the matters raised in the initial habeas corpus proceedings. Among other things he said that, when considering the request for surrender of Mr Yuen, he read the advice of the Ministry and the attachments to that advice - those included the submissions by Mr Yuen’s counsel and the submissions made by Hong Kong. The Minister said he determined to surrender Mr Yuen for the reasons set out in the Ministry’s advice and for the following reasons:

[a] The New Zealand government should endeavour to uphold its obligations contained in the Hong Kong extradition agreement (referring specifically to Article 1 of that agreement);

[b] Mr Yuen is a New Zealand citizen and the Hong Kong extradition agreement and the Act did not make this a mandatory restriction on surrender, but only a discretionary one. He said he took into account Mr Yuen’s New Zealand citizenship in the context of giving effect to New Zealand’s obligations in the Hong Kong extradition agreement, but rejected the submissions of Mr Yuen’s counsel about the effect of s 30(3)(c). He also took into account that Mr Yuen was a citizen of Hong Kong at the time of the alleged offending; and

[c] Otherwise for the reasons set out in the Ministry’s advice, particularly paras 12 and 15-51 of the advice.

The Minister’s decision under s 30(3)(c)

[10] The decision which the Minister is required to make under s 30(3)(c) has four elements, namely:

[a] The person is a New Zealand citizen;

[b] The Minister is satisfied;

[c] Having regard to the circumstances of the case;

[d] That it would not be in the interests of justice to surrender the person.

New Zealand citizen.

[11] There is no dispute that Mr Yuen is a New Zealand citizen.

The Minister is satisfied

[12] Again there is no dispute about this. All that is required is that the Minister makes up his or her mind - R v White (David) [1988] 1 NZLR 264 at 268.

Having regard to the circumstances of the case

[13] These words are at the heart of this case. The question of particular relevance is whether the use of this terminology in the sub-section limits the scope of the Minister’s inquiry to matters directly related to the proposed criminal proceedings in the state seeking extradition, or whether a broader view, taking into account matters relating to the personal circumstances of the person subject to the extradition request, can be undertaken.

[14] The practical significance of this issue is the concern which Mr Yuen has about his ability to prepare his defence because certain documents relating to the companies with which he was associated in Hong Kong, which are directly relevant to his alleged offending, have been destroyed. There may be difficulties in locating witnesses as well, given that the offences were alleged to have occurred in 1995. The Minister received a considerable body of evidence and submissions about the destruction of the documents and their likely impact on Mr Yuen’s defence. Apparently, Hong Kong has a process that allows for a trial court to order a permanent stay of proceedings if it is not possible for an accused person to have a fair trial, if, for example, crucial records have been lost or destroyed.

[15] Mr Connolly argued in this Court that there were a number of personal circumstances relating to Mr Yuen which were also relevant in this regard. These were that Mr Yuen may be imprisoned on his return to Hong Kong, or would need to post a very large bail bond in order to obtain bail and he may not have access to legal aid for the purposes of preparing an application for a permanent stay or other pretrial investigations necessary to support such an application, or may not be eligible for legal aid at all. There were also a number of issues relating to Mr Yuen’s personal circumstances, such as the impact on his business in Whangaparoa and his family, his elderly and infirm parents who live in New Zealand and for whom he has responsibility, and the possibility of civil action being taken against Mr Yuen in Hong Kong if he were to return there.

[16] The question of what circumstances can be considered in this context was recently the subject of a Court of Appeal decision: Wolf v Federal Republic of Germany (CA 906/01, 26 July 2001). That case concerned the interpretation of s 8 of the Act which provides a discretionary restriction on surrender of a person subject to an extradition request if, because of certain specified factors, “and having regard to all the circumstances of the case”, it would be unjust or oppressive to surrender the person. The Court was required to consider the correct interpretation of the words “having regard to all the circumstances of the case” as it appears in that section.

[17] In particular, the Court considered the question of whether “all the circumstances of the case” could include personal circumstances of the individual concerned. It was noted that the wording of s 8 can be contrasted with that of s 30(3)(d), which gives the Minister a discretion not to surrender a person if it appears to the Minister that “compelling or extraordinary circumstances of the person” exist that would make it unjust or oppressive to surrender him or her.

[18] The Court accepted that Parliament had drawn a differentiation between the circumstances of the case in s 8(1) and the circumstances of the person in s 30(3)(d). Robertson J, delivering the judgment of the Court, concluded by saying that the “wide textured approach” to the words “all of the circumstances” in earlier legislation was no longer tenable under the Act, and that the words “circumstances of the case” apply to a situation in which there is a clear nexus between the circumstances relied upon and the statutory criteria.

[19] For the Crown, Mr Ruffin argued that this narrow interpretation excluded matters relating to Mr Yuen himself and that the Ministry correctly advised the Minister on the matters to be considered in the context of “circumstances of the case”. However, that advice was given in the context of advising the Minister about his discretion to refuse surrender under Article 7(1)(d) of the Hong Kong extradition agreement which deals with humanitarian considerations. The Ministry’s advice was to the effect that in the Wolf case, the Court of Appeal had accepted a Crown submission that the circumstances of the case do not include personal circumstances of the offender and, if in any way they did, they must relate to the circumstances of the case. While that advice may have given appropriate guidance as to the interpretation of Article 7 of the Hong Kong extradition agreement (I do not need to express a view on that), it was not given in the context of s 30(3)(c) and, if the Minister considered it applied in the context of s 30(3)(c), it was, in my view, too restrictive.

[20] In my view, the impact of the Wolf decision on the interpretation of s 30(3)(c) is that, for the purposes of that sub-section, the circumstances must be limited to those with a clear nexus to the statutory criteria. Crown counsel accepted that the destruction of documents and possible difficulty of contacting witnesses were matters which fell within that category. I agree that that is the case. It is equally clear that matters relating to Mr Yuen’s personal circumstances, such as the establishment of his business in New Zealand, his financial situation and the effect on him, his parents and his immediate family, do not have the necessary nexus for the purposes of s 30(3)(c).

[21] However, matters which are personal to Mr Yuen, but which relate to the impact of the destruction of documents and potential unavailability of witnesses on him, such as the availability or otherwise of legal aid for pre-trial applications and the question of whether bail will be available or affordable to him at the time such pre-trial investigations and applications would need to be made, do have the necessary nexus to the statutory criteria. Even though they are personal to Mr Yuen, they should be taken into account when considering the discretion under s 30(3)(c). I consider this conclusion is consistent with the formulation set out in the Court of Appeal’s Judgment in Wolf.

Interests of justice

[22] Counsel agreed that the Court of Appeal decision in R v McClintock [1986] 2 NZLR 99, provides helpful guidance on the meaning of the term “interests of justice”. That case concerned s 23A of the Evidence Act 1908 which deals with evidence of the complainant in cases of a sexual nature where a Court is required to determine whether leave should be given to adduce evidence or cross-examine the complainant about her previous sexual experience. The section requires that this discretion be exercised in the interests of justice and Cooke P, giving the judgment of the Court, said that the discretion must be exercised with full sensitivity to the philosophy of the statute and that the term “interests of justice” is wider than, but certainly includes, fairness to the defendant.

[23] I do not think there is anything to be gained by suggesting that there is any particular approach which should be taken to the interpretation of the term “interests of justice” - the words used in the statute cannot be improved upon by the use of synonyms. In essence, what is required is for the Minister to consider the objects of the Act, (the principal object is to enable New Zealand to carry out its obligations under extradition treaties, which in this case means the Hong Kong extradition agreement), to balance that obligation against the circumstances of the case in relation to Mr Yuen, and to come to an assessment of where the interests of justice lie.

[24] Mr Connolly was critical of the fact that the Ministry’s advice to the Minister did not deal with the “interests of justice” test at all. I do not think there is anything in this criticism. There is not a “test” in the sense of there being any need for further explanation. All that is required is that the Minister be aware the sub-section allows him to determine that the person not be surrendered if he is satisfied it would not be in the interests of justice to surrender him. In determining where the interests of justice lie, the Minister should have regard to the circumstances of the case which have clear nexus to the statutory criteria and balance those circumstances and their impact on Mr Yuen’ against New Zealand’s obligations under the Hong Kong extradition agreement.

The Minister’s decision

[25] The Minister accepted the advice provided to him by the Ministry and decided to execute the surrender order. Mr Yuen’s counsel asked for a copy of the Minister’s decision. The Ministry wrote to him saying that the normal practice was for the Minister to provide to the subject of the surrender order a letter explaining the reasoning behind the decision. In this case that was not possible because the Minister had left for overseas immediately after the date of the surrender order, so instead the Ministry disclosed a copy of its advice to the Minister, which was not usual procedure. The letter said that the advice did not necessarily reflect the reasons behind the Minister’s decision.

[26] After the commencement of these proceedings, the Minister filed an affidavit to which I have already referred, in which he confirmed his decision was based on the Ministry’s advice. In that affidavit he confirmed he had read the advice and the attachments to it, which included the submissions made on behalf of Mr Yuen. He said he gave full consideration to the submissions of counsel for Mr Yuen. Crown counsel placed some reliance on that aspect of the Minister’s affidavit, because it is clear the submissions filed on behalf of Mr Yuen dealt with the relevant matters and Crown counsel argued that if the Minister had fully considered those submissions, then it is clear he fully considered those relevant matters.

[27] Mr Connolly argued that Mr Yuen was entitled to be given the reasons for the decision against him, because s 23 of the Official Information Act 1982 applied. That section requires a Minister who makes a decision in respect of a person in his or its personal capacity, to provide the person on request with a written statement of:

[a] The findings on material issues of fact;

[b] A reference to the information on which the findings were based; and

[c] The reasons for the decision or recommendation.

[28] The requirement to disclose information on which the findings were based is subject to some restrictions which are not relevant for present purposes. I accept that if Mr Yuen had made a request for a statement of reasons in terms of s 23 he would have been entitled to receive such a statement. I also accept that the request for a copy of the decision did not clearly invoke Mr Yuen’s rights under s 23. It seems that, once the current proceedings were commenced, attention was focused on this litigation, rather than on steps which could have been taken under the Official Information Act. Accordingly, I do not think there is anything in the present case which turns on s 23 as I do not believe it was invoked. Even if s 23 had been invoked, I do not think that a failure to comply with that section would, of itself, render an otherwise valid and reasonable decision invalid.

[29] Nevertheless, the fact that s 23 applies emphasises the apparent assumption on the part of the Legislature that decisions of this kind will require Ministers to make findings on material issues of fact, based on information provided to them, and to assess the reasons for their decisions.

[30] The process which that involves was considered by the Court of Appeal in Singh v Department of Labour [1999] NZAR 258, a case involving the Removal Review Authority. The statutory context was quite different there, as the statutes specifically required the Authority to give reasons and there was a right of appeal on questions of law. In giving the judgment of the Court, Keith J said that one of the factors behind the requirement to give reasons was the need for the affected person to be assured that evidence and arguments had been assessed in accordance with the law. In that sense, a mere assertion by the Minister that he took into account submissions, but without any indication as to the thought processes involved in doing so, is not adequate to assure the applicant or a Court that the necessary consideration has been given.

[31] Mr Connolly also referred me to Ronberg v The Chief Executive, Department of Labour [1995] NZAR 509, a decision of McGechan J. This case also concerned the Removal Review Authority, being an appeal against a decision of that Authority. McGechan J referred to the requirement to give reasons and said it was not sufficient simply to repeat the existence of statutory criteria without more - it is necessary to go on and say why those statutory criteria are satisfied or not. To answer the “why” question, the Authority needs to identify applicable law, ascertain relevant facts and determine in the light of that law and those facts the results which follow.

[32] Mr Connolly also referred me to the decision of Chisholm J in Mil Mohamed Mohamud v Minister of Immigration [1997] NZAR 223. In that case, Chisholm J said that he was not prepared to conclude that a relevant factor had been properly considered by the Deportation Review Tribunal in circumstances where no reference was made to that factor in the Tribunal’s judgment.

[33] The decision required of the Minister under the Act is different in nature to the decisions required to be made by the Removal Review Authority or the Deportation Review Tribunal, and the analogy with the Singh, Ronberg, and Mohamud cases cannot therefore be taken too far. However, I accept Mr Connolly’s submission that the fact the Minister says in an affidavit that he read and considered submissions made on behalf of Mr Yuen is not necessarily sufficient to satisfy the Court that the Minister has considered matters raised in those submissions, if the Ministry’s advice, on which the Minister’s submission was based, does not specifically provide him with advice on relevant issues.

The Ministry’s advice: Section 30(3)(c)

[34] The Ministry’s advice to the Minister of 28 August 2001 was a comprehensive document running to some 16 pages. It recounts the factual history and basis on which Mr Yuen is subject to extradition, then refers to restrictions on the surrender of persons under the Hong Kong extradition agreement by reference to humanitarian considerations (referring to Article 7(1)(d) of the Hong Kong extradition agreement), excessive delay (by reference to Article 7(1)(b)) and New Zealand nationality.

[35] In the context of humanitarian considerations it refers to the Wolf decision as to what are “circumstances of the case”, taking the restrictive view to which earlier reference has been made. There was also advice about the fact that Mr Yuen was a New Zealand national, but this did not specifically refer to the discretion which the Minister has under s 30(3)(c) or the criteria for the exercise of that discretion.

[36] The impact on Mr Yuen of the unavailability of witnesses and destruction of records was dealt with in the context of the humanitarian considerations applying under Article 7(1)(d) of the Hong Kong extradition agreement. In that context, there is a reference to the submissions made by Mr Connolly that Mr Yuen would be seriously prejudiced in his defence, and to the response by the Hong Kong Authorities that Hong Kong law allows for a permanent stay of proceedings if no fair trial is possible, and that the impact of availability of documents and witnesses is a matter for the trial Court to determine. The advice says although the loss or destruction of documents may count as a “circumstance of the case”, it is questionable whether it amounts to a humanitarian consideration, and that, in any event, it is more appropriately a matter for trial.

[37] Mr Connolly was critical of the fact that the advice of the Ministry did not specifically refer to his submissions made on 13 August 2001 which set out a chronology of events with regard to the destruction of documents, and how that would affect Mr Yuen’s defence. He acknowledged the information contained in those submissions had been considered by the authors of the Ministry’s advice and I believe there is no particular requirement to refer to submissions made so long as the matters on which the Minister’s discretion must be exercised are fairly put to him.

[38] In this case, the submissions filed by Mr Connolly were voluminous, with a large number of attachments, followed up with extensive supplementary submissions. The task of the Ministry is to synthesise the key arguments made and relevant points to be considered, so the Minister is provided with a concise summary, rather than a voluminous, inaccessible document.

[39] Mr Connolly also criticised the fact that the Ministry’s conclusion that the question of destruction of documents is more appropriately a matter for trial did not refer the Minister to case law relating to the unavailability of evidence, particularly the cases of Kakis v Government of the Republic of Cyprus [1978] 2 All ER 634 and New Zealand v Venkataya (1995) 57 FCR 151, in which unavailability of evidence was considered as a factor in determining that extradition would be unjust or oppressive. Again, I do not think there is any specific obligation on the Ministry to refer to cases from other jurisdictions applying different statutory criteria, so long as the factors which should weigh on the Minister are properly put to him.

[40] Mr Connolly also criticised the Ministry’s advice because it did not refer to the finding of District Court Judge Hole in his original decision, that if records had been destroyed there would be a likelihood of injustice occurring, or to the comment made by Paterson J in his decision that destruction of records, if it was brought about by the Hong Kong authorities, would be “a factor to be taken into account in assessing whether justice can be done”. Again, I consider there is no specific obligation on the Ministry to refer to those earlier findings, which are expressions of view that are not binding on the Minister. The Minister may well have found reference to those matters of assistance to him in reaching his decision, but their omission does not, of itself, raise any concern about the adequacy of the Ministry’s advice.

[41] On behalf of the Crown, Mr Ruffin relied substantially on the fact that Mr Connolly’s submissions specifically referred to the discretion the Minister has under s 30(3)(c). He pointed out that those submissions argue that the destruction of documents means it is not in the interests of justice to surrender Mr Yuen, that the decisions of Judge Hole and Paterson J are appended to the submissions and that there is a direct reference in the submissions to Paterson J’s comment to the destruction of documents. He also relied on the references in the Ministry’s advice to the relevant factors to which I have already referred. He pointed out that the Minister’s affidavit refers to having given full consideration to the submissions of counsel for Mr Yuen, as well as the Minister’s reliance on the Ministry’s advice.

[42] For the reasons set out in paragraph 33 above, I do not accept that the reference in the Minister’s affidavit to his consideration of the submissions made by Mr Yuen’s counsel is sufficient to satisfy me that the matters raised in those submissions were considered and applied by the Minister to the decision which he was required to make under s 30(3)(c). It is clear that the Minister’s decision was based for the most part on the Ministry’s advice, and that is to be expected. That means the Ministry’s advice, where it has been accepted and applied by the Minister, is a signpost as to the matters which have been addressed in reaching the decision.

[43] In this case, the Ministry’s advice focuses on Article 7 considerations, in respect of which Mr Yuen takes no issue with the Minister’s decision. However, in relation to the decision to be made by the Minister under s 30(3)(c), there is no specific advice referring to that sub-section at all, and therefore no advice to the Minister on what he needs to be satisfied of, the relevant circumstances of the case in relation to the sub-section, or what factors should influence the Minister in determining where the interests of justice lie.

[44] Mr Ruffin argued that the onus is on Mr Yuen to satisfy the Minister that he ought to exercise his discretion under s 30(3)(c) in Mr Yuen’s favour and that Mr Yuen has failed to discharge that onus. It is unhelpful to characterise the exercise to be undertaken by the Minister in terms of onus of proof. I accept that if no matters are raised by a person who is subject to an extradition request, then there is no particular reason for the Minister to consider the relevant statutory criteria unless the possible application of those criteria is blindingly obvious. Mr Yuen’s counsel did raise the s 30(3)(c) discretion in his submissions (although I acknowledge it was but one tree in a large forest of submissions).

[45] In those circumstances, the Ministry’s advice ought to have referred the Minister to the fact that the discretion applied, addressed the question of what the circumstances of the case were (and ought not to have excluded the questions of the personal impact on Mr Yuen in terms of availability of legal aid and bail), and then put the Minister in a position where he could properly apply his mind to the issue as to where the interests of justice lay. As this has not occurred, I am not satisfied that the Minister’s decision has properly considered the required matters under s 30(3)(c).

[46] Mr Ruffin pointed out the matters relevant under s 30 are not threshold matters in terms of extradition, that is they are not matters of which the Minister must be satisfied in order to decide to sign a surrender order. Rather, they are matters of which the Minister could be satisfied in exercising a discretion that a surrender order should not be made. I accept there is a distinction of the kind highlighted by Mr Ruffin. But this is not of great significance where the person in respect of whom extradition has been requested has squarely raised the possible exercise of that discretion with the Minister and established there may be bona fide reasons for the Minister to exercise the discretion in his favour.

Conclusion: s 30(3)(c)

[47] In conclusion, nothing in this case demonstrates that the Minister’s decision was unreasonable in a general sense. I see no reason to review his decision on that basis. However, I accept the submission made on behalf of Mr Yuen that the evidence before me, particularly the Minister’s affidavit and the Ministry’s advice, does not establish that the Minister has considered the issues raised under s 303(3)(c). I therefore find that the Minister made an error of law in not considering a mandatory relevant consideration, and that it is appropriate to remit the matter to the Minister for reconsideration in the light of the matters raised in this judgment, particularly:

[a] The nature of the discretion the Minister has under s 30(3)(c) which applies in this case by virtue of the terms of Article 3 of the Hong Kong extradition agreement;

[b] The circumstances of the case which can be taken into account in the exercise of that discretion as outlined earlier in this judgment;

[c] The balancing exercise which the Minister must undertake in determining where the interests of justice lie.

[48] I should emphasise that, in coming to this decision, I am not expressing any view on the merits of Mr Yuen’s case. The assessment of where the interests lie is clearly one which the Act requires the Minister to make, as the previous proceedings involving Mr Yuen established. I also record that I have no criticism of the process which the Ministry adopted. It is appropriate that the Ministry seeks submissions and provides advice to the Minister and also appropriate for the Minister to rely on that advice. The process seems similar to that described in relation to the equivalent legislation in Australia in Foster v Attorney General [1998] 158 ALR 394.

[49] The fact the Minister is likely to rely on the advice makes it important that it correctly identifies the statutory provision (or provision in the extradition agreement) under which any decision to be made by the Minister must be made, identifies the relevant factual considerations and advises the Minister on the criteria to be applied in making the decision. To assist the Ministry in that process, it may be appropriate that the Ministry’s request for submissions from counsel representing the person to whom the extradition request relates specifically identifies the need for counsel to state which provisions of the Act or the extradition agreement he or she believes apply, the facts that belief is based on, the evidence as to those facts, and the reasons the Minister should make a decision under the relevant provision in favour of the person to whom the extradition request relates.

[50] It would seem advisable for the Ministry to structure its advice to the Minister in a similar way: setting out the relevant statutory provision (or provision in the extradition agreement), identifying the factual considerations the Ministry thinks are relevant to that provision, summarising any submissions on this point, and explaining to the Minister the criteria to be followed in coming to a decision. This may help to ensure that the Minister has a clear picture of the specific matters requiring decision and the criteria he or she should take into account in making the decision on each of those matters.

Irrelevant consideration: Mr Yuen’s citizenship at time of alleged offending

[51] The second ground raised by Mr Yuen in his application is that the Minister erred in law in that he took into account an irrelevant consideration that Mr Yuen was a citizen of Hong Kong at the time of the alleged offending. The Minister says in his affidavit that he took into account that Mr Yuen was a citizen of Hong Kong at the time of the alleged offending when making his decision under s 30(3)(c).

[52] Mr Ruffin argued that this is indeed a relevant consideration and that there is no basis on which to limit the exercise of the Minister’s discretion by excluding this factor. Mr Connolly argued that it is not a relevant consideration under s 30(3)(c).

[53] I accept Mr Ruffin’s submission that there is no reason why the fact that Mr Yuen was a Hong Kong citizen at the time of the alleged offending cannot be considered by the Minister, as one of the many factors he takes into account in reaching a decision as to whether he should exercise his discretion under s 30(3)(c). It is obviously not a determinative factor, but the discretion is a broad one requiring an overall assessment of the interests of justice and I do not accept that the statutory language excludes this factor from the ambit of matters to be taken into account by the Minister. Accordingly, this aspect of Mr Yuen’s case fails.

Decision

[54] I order that this matter be remitted to the Minister for reconsideration, limited to the possible application of s 30(3)(c). In reconsidering and redetermining the matter, the Minister should take into account the matters referred to in paragraph 47 above. I also order that no steps should be taken to surrender Mr Yuen to the Hong Kong Authorities until that reconsideration and redetermination have occurred. As indicated at the outset, the habeas corpus matter was not pursued, and I therefore make no order in relation to that application.

Costs

[55] I did not hear from the parties as to costs and therefore reserve that matter. If the parties are unable to agree on the question of costs, then written submissions should be made by the plaintiff within 21 days of the date of this judgment, with any reply by the defendant to be made within seven days after the plaintiff’s submission.