In the matter of Christopher Milled Elkhouri

• Jurisdiction: Singapore
• Judge: Ong Luan Tze
• Judgment Date: 30 July 2018
• Neutral Citation: [2018] SGDC 200
• Published date: 15 August 2018
• Hearing Date: 07 May 2018,06 July 2018,06 June 2018,04 May 2018
• Docket Number: EXT-900003-2017
• Plaintiff Counsel: State Counsels Mr James Low and Mr Koh Mun Keong
• Defendant Counsel: Mr Bachoo Mohan Singh and Nigel Sim
• Court: District Court (Singapore)

District Judge Ong Luan Tze: Introduction

This is an application by the State under s 25(7) of the Extradition Act (Cap 103) (“the Act”), to commit Mr Christopher Milled Elkhouri (“the fugitive”) before this Court to prison to await the warrant of the Minister for his surrender to Australia.

On 22 December 2017, Singapore received a request from the Government of Australia for the provisional arrest of the fugitive, with a view to extraditing him to Australia.

On 23 December 2017, a Warrant of Apprehension under the Act was issued, and on 19 January 2018, the fugitive was apprehended in Singapore.

On 14 March 2018, the Court received the notice by the Acting Minister for Law under s 23(1)(b) of the Act, informing that a requisition had been made to the Minister by the Commonwealth of Australia, for the surrender of the fugitive.

The extradition was resisted by the fugitive.

After hearing the evidence presented by the State and the fugitive, I found that the fugitive was liable to be surrendered to the Commonwealth of Australia in respect of 24 out of the 25 charges listed in the Extradition Request (Note 11/18)¹ dated 14 February 2018, and committed him accordingly before me to prison to await the warrant of the Minister for his surrender.

Preliminary point – the Warrant of Apprehension

In his closing submissions, counsel for the fugitive sought to argue that the Warrant of Apprehension was not lawful because the Complaint that was filed in support of the application for a Warrant was not signed by the complainant, one Inspector Ng Wei Jie Matthew. Counsel argued that the fugitive ought to be released as a result.

However, I did not think this lack of signature on the complaint necessarily rendered the Warrant of Apprehension or these proceedings invalid. I note in particular that the Warrant of Apprehension was issued under the Act, and the Act does not specify that the evidence to be produced to the Magistrate in support of the application for a Warrant need necessarily be in any particular form or even signed. In any case, even if this was an irregularity in the complaint, there is no basis to say that this irregularity had caused a failure of justice such as to make the Warrant of Apprehension or these proceedings invalid.²

Legal requirements for a Warrant of Commitment

The requirements under s 25(7) of the Act are as follows: A duly authenticated overseas warrant in respect of the fugitive issued in the Commonwealth of Australia; The fugitive is accused of an “extradition crime”. Such evidence as would, in the opinion of the Court, according to the law in force in Singapore, justify the trial of a person if the act or omission constituting that crime had taken place in, or within this Court’s jurisdiction; and After hearing evidence from the fugitive, the Court is satisfied that the fugitive is liable to be surrendered to the Commonwealth of Australia.

Duly authenticated overseas warrant

The certified true copies of three warrants, one dated 2 April 2015 and two dated 9 April 2015, for the apprehension of “Chris Elkhouri”, and issued by the Local Court of New South Wales were tendered in evidence. The warrants were signed by Stephen Maxwell, a registrar of the said court, and an authorised officer under s 3 of the Australian Criminal Procedure Act 1986, empowered to issue arrest warrants. The arrest warrants are also sealed by the official seal of the Attorney-General of the Commonwealth of Australia, who is a Minister of State of the Commonwealth of Australia.

At the hearing, the fugitive did not dispute that this requirement had been fulfilled, or that the person identified in the warrants was himself.

In his closing submissions, however, counsel for the fugitive sought to argue that this requirement was not met because the arrest warrants were issued in the wrong name (“Chris Elkhouri”, whereas the fugitive’s passport name was “Milled Elkhouri”), and reflected the wrong date of birth.

I did not think that these arguments took the fugitive very far. The fact remained that these were duly authenticated overseas warrants in the name of one “Chris Elkhouri”, and in evidence, the fugitive never disputed that these warrants were issued in respect of himself.³ The affidavit from Detective Inspector John Bamford (“Detective Bamford”) dated 5 February 2018 also confirmed that the subject matter of the warrants was one Christopher Milled Elkhouri⁴, and included a brief description of the subject as well as a police photograph of the same.⁵ Having considered all of this, there was no reasonable doubt in my mind that the warrants referred to the fugitive.

I was therefore satisfied that duly authenticated Australian warrants in respect of the fugitive had been produced to meet the requirement under s 25(7)(a) of the Act.

Whether the offences are “extradition crimes”

Section 2(1) of the Act defines “extradition crime” in relation to a declared Commonwealth country as

“an offence against the law of, or of a part of, a declared Commonwealth country – (a) the maximum penalty for which is death or imprisonment for not less than 12 months; and (b) the act or omission constituting the offence or the equivalent act or omission would, if it took place in or within the jurisdiction of Singapore, constitute an offence against the law in force in Singapore that – (i) is described in the First Schedule; or (ii) would be so described if the description concerned contained a reference to any intent or state of mind on the part of the person committing the offence, or to any circumstance of aggravation, necessary to constitute the offence.

The fugitive is wanted by the Government of Australia to face trial in relation to the following 25 offences: 11 offences of knowingly dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 (NSW) (“Crimes Act”), punishable with a maximum penalty of 15 years; 11 offences of dishonestly possessing an interfered with unique identifier contrary to s 154I(1) of the Crimes Act, punishable with a maximum penalty of five years; Two offences of knowingly possessing a vehicle identification plate not attached to the correct vehicle contrary to s 154J(1) of the Crimes Act, punishable with a maximum penalty of five years; and One offence of knowingly facilitating organised car rebirthing activity contrary to s 154G of the Crimes Act, punishable with a maximum penalty of 14 years.

Evidence tendered via the affidavit of one Jyotesh Mehta (“Mr Jyotesh”)⁶, a solicitor in the Office of the Director of Public Prosecutions, New South Wales, confirmed that all the above offences are punishable with a maximum penalty of not less than 12 months.

The next question to consider is whether these acts or omissions constituting the offences would, if committed within the jurisdiction of Singapore, constitute an offence in Singapore which fell within the list in the First Schedule of the Act (“the double criminality principle”). In considering this point, I am guided by the High Court’s observation in Wong Yuh Lan v Public Prosecutor and other matters [2012] SGHC 161 (“Wong Yuh Lan”) at [18], that in the interpretation of “extradition crime” under s 2 of the Extradition Act 2000, policy and practical considerations lean in favour of the “conduct test”, as opposed to the “ingredients test”. The “conduct test” requires the court to look at the conduct alleged against the fugitive and to determine whether the conduct would have been criminal had it been committed within the jurisdiction of the requested state. (see Wong Yuh Lan at [14])

The High Court in Wong Yuh Lan also cautioned against an overly technical approach when applying the double criminality principle, and confirmed that the principle did not require that both the requested state as well as the requesting state recognise the offence/s under identical labels. (See Wong Yuh Lan at [13].)

Knowingly dealing with proceeds of crime

This offence is to be found under s 193B(2) of the Crimes Act. According to the affidavit of Mr Jyotesh at [10], the offence is stated as follows: “A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an offence.”

Under s 193A of the Crimes Act, “deal with” includes receiving, possessing, concealing or disposing of, and “proceeds of crime” include any property that is “substantially derived or realised, directly or indirectly, by any person from the commission of a serious offence”.

The case against the fugitive in respect of the 11 charges of knowingly dealing with proceeds of crime, is that he was in possession of certain vehicles or vehicle parts which had previously been reported as stolen, knowing that they were stolen. The State submitted that if this conduct had taken place in Singapore, it would constitute an offence under s 411 or 413 of the Penal Code (Cap 224). I agree.

In particular, s 411 of the Penal Code makes it an offence to dishonestly receive or retain any stolen property, knowing or having reason to believe the property to be stolen property. I am of the view that the conduct that is being alleged against the fugitive would fall under this offence in Singapore.

As s 411 of the Penal Code clearly falls within paragraph 18 of the First Schedule in the Act, I accept that this offence of knowingly dealing with proceeds of crimes is an “extradition crime” within the meaning of the Act.

Dishonestly possessing a vehicle or part of a vehicle, a unique identifier which has been interfered

This offence is to be found under s 154I(1) of the Crimes Act. According to the affidavit of Mr Jyotesh, the offence is stated as follows: “A person who dishonestly has possession of a motor vehicle or vessel, or a part of a motor vehicle or vessel, a unique identifier of which has been interfered with, is guilty of an offence.”

The State...