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In re Extradition of Yee-Chun

November 30, 1987


The opinion of the court was delivered by: Palmieri, District Judge.


The relators, Tang Yee-Chun ("Tang") and Chan Wai-King ("Chan") were arrested on March 6, 1987 pursuant to warrants issued by a magistrate of this Court in accordance with an extradition treaty between the United States and the United Kingdom to answer a complaint seeking their extradition to Hong Kong. The complaint, dated March 5, 1987, charges Tang, Chan, and a third person not a party to this proceeding, with fraudulent trading practices resulting in the collapse and multi-million dollar losses to the depositors of a banking-type entity called the America and Panama Finance Company Limited ("A & P"). Tang and Chan have remained in custody since their arrest.

On April 16, 1987, the United Kingdom formally requested their extradition to Hong Kong on 46 separate charges involving false accounting and false statements by a corporate director or officer. Both before and after that date, the relators moved unsuccessfully before other judges of this Court for their release from custody and other relief. This proceeding has been delayed by repeated changes of counsel--Tang has retained five successive lawyers, and Chan four. Each has also had a Hong Kong lawyer collaborating with American counsel and in attendance at the evidentiary hearing. This Court was finally able to hold an evidentiary hearing on October 20, 1987, nearly eight months after the arrests. Both relators have filed petitions for writs of habeas corpus.

I. Preliminary Findings and Contentions

The Court must first make the findings required by the statute governing extradition, 18 U.S.C. section 3184. *fn1 First, a valid extradition treaty exists--namely the Treaty between the United States and the United Kingdom, signed June 8, 1972, and entered into force January 21, 1977. TIAS 8468, 28 U.S.T. 227 (the "Treaty"). The Court further finds the crimes with which Tang and Chan are charged are provided for by the Treaty. 28 U.S.T. at 235, Nos. 19-20. Tang and Chan concede that they are the persons sought, and that they were found within this Court's jurisdiction. They do, however, dispute the existence of sufficient evidence "to sustain the charge". See Part III, infra.

Tang contends that the request for extradition on some of the charges was not accompanied by a warrant for his arrest, as is required by Article VII(3), 28 U.S.T. at 231. The Court need only point out the absence of the necessary warrants to the Secretary of State, but may not refuse to certify the extradition of Tang on those charges. See Hill v. United States, 737 F.2d 950, 952 (11th Cir.1984) ("the warrant may specify all the charges if the requesting country so chooses, but it need refer to only one"); cf. Shapiro v. Ferrandina, 478 F.2d 894, 905-06 & n. 10, (2d Cir.), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50 L.Ed.2d 98 (1976). The relators contend that the acts they have allegedly engaged in are not criminal under the laws of both Hong Kong and the United States, as Article III requires, 28 U.S.T. at 229-30. See Part IV, infra. Chan contends that the United Kingdom cannot abide by certain other requirements of the Treaty. See Part V, infra.

In addition to making a number of due process claims, the relators raise procedural technicalities, with the primary authority for their arguments being the asserted experience of Tang's counsel. However, we have not found citation to his own writings, without support from binding authority, to be sufficiently persuasive.

II. The Evidence

On October 20, 1981, the relators appeared before the Court with their counsel and were given an opportunity to explain the evidence submitted on behalf of the government of Hong Kong. They had possession of copies of the government's submission, and access to the actual submission, for more than six months before the hearing.

At the hearing, the government offered no witnesses; nor did the relators. Indeed, at the hearing the relators seemed unprepared to offer any evidence at all, and their presentation consisted mainly of narrow technical attacks on the government's submission. A recurrent theme in the relators' submissions to this Court is the suggestion that they are innocent of any wrongdoing and that this Court should provide them with the facilities for establishing their innocence. The issue of guilt or innocence is not before this Court. It can be appropriately passed on only by the courts in Hong Kong.

In view of the limitations necessarily imposed by the nature of an extradition hearing, *fn2 the six months the relators had to prepare, the fact of their appearance before the Court, and the explicit invitation extended by the Court to offer explanatory affidavits, it is concluded that they had ample notice and opportunity to be heard and suffered no deprivation of any rights to which they were entitled.

The government offered, and the Court accepted as duly authenticated, 18 volumes of affidavits and other documents which had been certified and sealed by the United States Consulate General in Hong Kong. The relators challenge the evidence submitted and contend that "this court must ... exclude any evidence that would be inadmissible in an extradition proceeding conducted in Hong Kong". They put forward the remarkable proposition that this Court must apply the Hong Kong laws of evidence. Their argument ignores the statutory provision that "the certificate of the principal diplomatic or consular officer of the United States resident in such foreign country shall be proof that the [evidence] so offered [is] authenticated in the manner required". 18 U.S.C. section 3190. The proper authentication of the documents submitted by the government of Hong Kong conclusively supports their admissibility. See United States v. Galanis, 429 F.Supp. 1215, 1227-29 (D.Conn.), aff'd in relevant part, rev'd on other g'nds sub nom Galanis v. Pallank, 568 F.2d 234, 240 (2d Cir.1977). *fn3 Any claim of inadmissiblity in a Hong Kong extradition proceeding is irrelevant.

The relators further contend that the testimony of accomplices Agnes Kwok and Eva Hui is inherently unreliable and should not be considered, and that the extradition should therefore be denied. Accomplice testimony is competent to support a finding of probable cause. Eain v. Wilkes, 641 F.2d 504, 510 (7th Cir.) ("such evidence may be of particular importance in extradition cases where all the alleged criminal activity occurred in a distant country"), cert. denied, 454 U.S. 894, 102 S.Ct. 390, 70 L.Ed.2d 208 (1981); Curreri v. Vice, 77 F.2d 130, 132 (9th Cir.) (accomplice testimony "is, next to the confession of the defendant, the most satisfactory kind of evidence that can be produced" in an extradition hearing), cert. denied, 296 U.S. 638, 56 S.Ct. 170, 80 L.Ed. 454 (1935); accord Zanazanian v. United States, 729 F.2d 624, 627 (9th Cir.1984). The accomplice statements are also attacked as made without personal knowledge, as is required by Rice v. Ames, 180 U.S. 371, 375-76, 21 S.Ct. 406, 407-08, 45 L.Ed. 577 (1901). These affidavits are replete with detail and demonstrate that the accomplices were indeed testifying from personal knowledge. Additionally, their accuracy is corroborated by the impressive affidavit of Mr. David Mace, a partner of the Arthur Anderson accounting firm, hired by the Hong Kong government to investigate the financial details of A & P's collapse. He made a meticulous examination and careful analysis of A & P's finances. The attack on Mr. Mace's affidavit as "peppered with inadmissible legal conclusions" ignores the fact that the standards governing the admissibility of evidence at trial are inapplicable. Neither the Federal Rules of Evidence nor the Federal Rules of Criminal Procedure are applicable in these proceedings. Messina v. United States, 728 F.2d 77, 80 (2d Cir.1984); Simmons v. Braun, supra, 627 F.2d 635 at 636; (2d Cir.1980); Fed.R.Evid. 1101(d)(3); Fed.R.Crim.P. 54(b)(5). The relators' attack on Mr. Mace's opinion as to the source of funds used to purchase A & P's main asset is of no probative value in this proceeding but may be raised at trial. See Matter of Sindona, 450 F.Supp. 672, 686-92 (S.D.N.Y.), writ of habeas corpus denied sub nom Sindona v. Grant, 461 F.Supp. 199 (S.D.N.Y.1978), aff'd, 619 F.2d 167 (2d Cir.1980), cert. denied, 451 U.S. 912, 101 S.Ct. 1984, 68 L.Ed.2d 302 (1981).

The relators attack the "certifications" (affidavits) of several of the Hong Kong Magistrates on technical grounds. One Magistrate certifies that certain copies are "true and correct" but does not state that he compared the copies with originals. The certification complies with the requirements set out in the Treaty and cited by the relators. The objection is deemed frivolous. Other Magistrates' certifications contain certain typographical errors: a switched name, mis-typed digits in dates, exhibits put in the wrong order. Objections to these errors are also deemed to be frivolous.

We place particular reliance on the affidavits of Mr. Mace, of Tang's alleged accomplices, of A & P's depositors, and of the Hong Kong investigatory authorities. Additionally, there are numerous financial documents referred to in those affidavits and submitted as exhibits to the affidavit of Philip Layton, a detective with the Royal Hong Kong Police Force, which substantiate the charges against the relators.

III. Probable Cause

The Treaty prohibits the relators' extradition unless the evidence would be sufficient to justify their committal for trial according to United States law. Article IX(1); see also 18 U.S.C. section 3184. The Treaty thus requires a finding of probable cause. Sindona v. Grant, supra, 619 F.2d at 175 (quotingBenson v. McMahon, 127 U.S. 457, 463, 8 S.Ct. 1240, 1243, 32 L.Ed. 234 (1888); and citing Collins v. Loisel, 259 U.S. 309, 315-17, 42 S.Ct. 469, 471-72, 66 L.Ed. 956 (1922); Ornelas v. Ruiz, 161 U.S. 502, 512, 16 S.Ct. 689, 692, 40 L.Ed. 787 (1896); Shapiro v. Ferrandina, supra, 478 F.2d at 901; and Jhirad v. Ferrandina, supra, 536 F.2d at 485). Under that standard, the Court must satisfy itself that there are reasonable grounds to believe Tang and Chan are guilty. Melia v. United States, 667 F.2d 300, 302 (2d Cir.1981). The fraudulent activity on the part of Tang and Chan is well documented and supports all 46 of the specific charges on which Hong Kong has requested they be extradited.

A. Background.

The underlying case involves the relationship of Tang and Chan to a Hong Kong company called the America and Panama Finance Company Limited ("A & P"). A & P was, under Hong Kong Law, a "Deposit Taking Company"--a company formed for the purpose of borrowing money from depositors. Between September 22, 1980, when it opened, and January 7, 1983, when it closed its doors unable to pay the more than HK$17 million it owed its depositors, the company lost more than HK$25 million. *fn4 During that time, it made scores of loans to persons who either did not exist or had no knowledge of the loans. The documentation evidencing the payment of A & P's capital requirements, the identities of those who ran and owned it, and the asserted personal loans it made was false or non-existent.

B. Tang's Relationship to A & P.

Tang was neither a director nor shareholder, neither lender nor borrower. Nonetheless, he exercised close control over A & P. He personally set A & P's interest rates, prepared its newspaper advertisements and negotiated the purchase of its only major asset, a parcel of real estate where the offices of several of Tang's companies were located. He employed numerous female lieutenants who had limited education, and whenever he was absent from Hong Kong, he communicated daily with them by telephone, received daily telex reports from them containing detailed information about the affairs of A & P as well as other companies he controlled, and gave them instructions. Upon the commencement of a government investigation of Tang's companies in October, 1981, Tang left Hong Kong never to return. As A & P began to collapse and the government investigation was expanded, one of Tang's lieutenants flew to New York to brief him.

Several of his key employees confirm that Tang was in complete control of the affairs of A & P. For example, Eva Hui states that "Tang.... carried out all the duties [and] made all the decisions of a managing director." According to Agnes Kwok, the nominal president of A & P, "Tang also arranged for and directed the formation and registration as a Deposit Taking Company of A & P.... He wanted to keep control but not named in case something went wrong."

Tang left an unmistakable paper trail of fabricated financing behind him in Hong Kong. The finances of his lieutenants and companies were meticulously sorted out by Mr. Mace, a professional accountant who concluded that it was Tang who supplied the capital upon which A & P relied, that it was Tang who exercised control over the bank accounts into which proceeds of the falsified loans were deposited, and that it was Tang who directed the making of those loans and the way they were accounted for on A & P's books.

Finally, Tang has declined the invitation of the Crown Colony of Hong Kong to answer charges there. He has remained absent since he first learned of the existence of an investigation, successfully maintaining a fugitive status in Singapore and Brazil prior to his arrest in New York. His use of several aliases during this period and his unwillingness to return to Hong Kong are not consonant with his assertions of innocence. The maintenance of a fugitive status for over six years can be construed as a consciousness of guilt. In Elias v. Ramirez, 215 U.S. 398, 407-08, 30 S.Ct. 131, 135-36, 54 L.Ed. 253 (1910), the Court used the fact of flight as evidence to be considered. There, as here, the opportunity to explain flight was offered, and declined by the person sought to be extradited. *fn5

The affidavit of relator Chan, sworn to October 13, 1987, seeking to exculpate Tang, cannot be weighed in the balance. Abu Eain v. Adams, 529 F.Supp. 685, 691 (N.D.Ill.1980), aff'd sub nom Eain v. Wilkes, supra. Nor can Tang's offer of proof that he is actually owed HK$7 million by A & P. Matter of Sindona, supra, 450 F.Supp. at 686-92. The fact of his control over A & P is sufficiently ...

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