In the matter of Chester YANG Yang, Jr. @ "Chester Yang, Jr", "Pian He Yang" and "Tian He Yang"

• Jurisdiction: Singapore
• Judge: Loh Hui-min
• Judgment Date: 03 October 2022
• Neutral Citation: [2022] SGDC 228
• Court: District Court (Singapore)
• Docket Number: EXT-900002-2022
• Published date: 08 October 2022
• Year: 2022
• Hearing Date: 18 August 2022,24 August 2022
• Plaintiff Counsel: State Counsels Ms Charmian Ong and Ms Serena Liew (with Senior State Counsel Mr Sellakumaran s/o Sellamuthoo in attendance)
• Defendant Counsel: Chester YANG Yang, Jr. in person.
• Subject Matter: Extradition,Extradition Agreements,Procedure,Extraditable offences
• Citation: [2022] SGDC 228

District Judge Loh Hui-min:

This was an application by the State under s 11(7) of the Extradition Act 1968, as was in force prior to 1 July 2022 (“the Act”), to commit one Chester YANG Yang, Jr. @ “Chester Yang, Jr”, “Pian He Yang”” and “Tian He Yang” (“Yang”) to prison to await the warrant of the Minister for his surrender to the United States of America (“the US”). Yang was wanted by the US to stand trial for three charges of sexual offences against a five-year-old child (“the Victim”) committed on 21 April 2017.

The application was strenuously resisted by Yang. Two novel issues of treaty interpretation, which have yet to be fully considered in our local jurisprudence, arose during the proceedings. First, whether Yang’s detention was in breach of Article 11 of the extradition treaty between the US and Singapore (“the Treaty”), and therefore unlawful. Second, whether the alleged offences fell to be offences for which extradition shall be reciprocally granted under Article 3 of the Treaty.

After hearing the evidence presented by the State and Yang, as well as their arguments, I found that Yang was liable to be surrendered to the US in respect of the three charges. Accordingly, I issued a warrant committing him to prison to await the warrant from the Minister for his surrender under s 11(7) of the Act. I now elaborate on the reasons for my decision.

Relationship between the Treaty and the Act

I begin first by briefly setting out the relationship between the Treaty and the Act. This has been explored at some length in Wong Yuh Lan v Public Prosecutor and other matters [2012] SGHC 161 (“Wong Yuh Lan”). I do not propose to repeat the analysis here, save to highlight matters relevant to the present case.

The Treaty is derived from the extradition treaty of 22 December 1931 entered between the United Kingdom (“the UK”) and the US which was given effect to by the United States of America (Extradition) Order in Council 1935, and extended to every “British possession”, including Singapore, by the various Extradition Acts in the UK (see Wong Yuh Lan at [4]). There was no dispute between the parties that the UK-US Treaty continued to apply between US and Singapore post-independence. In any event, this is also clear from the ‘Exchange of Letters Constituting an Agreement Between the United States of America and Singapore for the Continued Application to Singapore of the United States/United Kingdom Treaty of December 22, 1931 Concerning Extradition’ (the “1969 Exchange of Letters”).

The US therefore falls within the definition of “foreign State” in s 2 of the Act, being a foreign State between which and Singapore an extradition treaty is in force. Section 3(1) of the Act provides that Part 2 of the Act shall apply in relation to the extradition arrangement between Singapore and the US. Section 3(2) of the Act further provides that Part 2 of the Act shall apply subject to “any limitations, conditions, exceptions or qualifications” in the Treaty. Put simply, whilst the Act lays down the framework for extradition and matters connected to the same, its scope continues to be subject to the parties’ mutual obligations as set out in the Treaty.

Preliminary Issue – whether Yang’s remand was unlawful

At the hearing, Yang raised a preliminary point that his remand was unlawful as the State had failed to produce sufficient evidence for his extradition within two months from the date of his apprehension, in breach of Article 11 of the Treaty which states:

If sufficient evidence for the extradition be not produced within two months from the date of the apprehension of the fugitive, or within such further time as the High Contracting Party applied to, or the proper tribunal of such High Contracting Party, shall direct, the fugitive shall be set at liberty.

To provide context to Yang’s contention, it is first necessary to set out the procedural background of the matter.

Procedural Background

On 30 May 2022, the Singapore Police Force had applied for a warrant for the apprehension of Yang to be issued under s10(1)(b) of the Act.¹ The warrant of apprehension under s 10(1)(b) of the Act was issued by the Magistrate on 31 May 2022² and Yang was apprehended on the same day.³ On 1 June 2022, Yang was brought before a Magistrate as required by s 11(1) of the Act and the Magistrate ordered his remand as provided for under s 11(2) of the Act.⁴

The events that followed were not disputed by parties: As provided for under s 11(2) of the Act, Yang was continuously remanded for periods not exceeding 7 days at a time. On 27 July 2022, Singapore received the requisition for the surrender of Yang from the US through the usual diplomatic channels.⁵ The requisition contained a warrant of arrest for Yang issued by the US and the evidence in support of its request to extradite Yang.⁶ On 29 July 2022, the Magistrate was informed at a further mention for the matter, that the requisition from the US had been received by the Ministry of Foreign Affairs. The matter was adjourned by the Magistrate for the Minister of Law (“the Minister”) to issue the notice under s 9(1)(b) of the Act (“the Minister’s Notice”) and for the requisition to be forwarded to Court. The Minister’s Notice was issued on 3 August 2022 and the following day, 4 August 2022, the requisition was placed before the Magistrate at a further mention for the matter.

The matter was eventually fixed for a hearing before me on 18 August 2022 and the warrant committing him to prison to await his surrender to the US was issued on 24 August 2022.

Parties’ arguments

Parties agreed that Article 11 of the Treaty applied in the present case but differed on the interpretation of the term “produced” therein.

Yang contended that the term “produced” referred to the production of evidence for extradition in Court and that this was not done until 4 August 2022, more than two months after his apprehension. He therefore argued that the State had breached Article 11 of the Treaty and that his remand after 29 July 2022 was unlawful.

State Counsel Ms Ong submitted that the term “produced” referred to the production of evidence for extradition to Singapore and not the Court. Therefore, the receipt by Singapore of the requisition containing such evidence on 27 July 2022 was within the prescribed time in Article 11. In support of her submission, Ms Ong cited the decision of the House of Lords in Government of the Federal Republic of Germany v Sotiriadis and Anor [1975] AC 1 (“Sotiriadis”).

Ms Ong submitted in the alternative, that even if Yang’s interpretation of “production” was correct, the Magistrate had validly extended the time to produce the said evidence as prescribed by Article 11 of the Treaty.

Sotiriadis

I turn first to consider the decision in Sotiriadis which concerned the interpretation of Schedule 2, Article XII of the Federal Republic of Germany (Extradition) Order 1960 (“the Anglo-German Treaty”) which states as follows:

If sufficient evidence for the extradition be not produced within two months from the date of the apprehension of the fugitive, he shall be set at liberty.

In Sotiriadis, the fugitive had been arrested on 5 April 1973 pursuant to an arrest warrant issued under s 8(2) of the Extradition Act 1870 (33 & 34 Vic. c. 52) (“the Extradition Act 1870”). On 2 June 1973, the Home Office delivered to the Magistrate at Bow Street the Secretary of State’s order under s 7 of the Extradition Act 1870, dated 1 June 1973, signifying that a requisition for the surrender of the fugitive had been made by Germany. On 4 June 1973, the Magistrate was handed English translations of the depositions of witnesses taken in Germany. However, the original, duly authenticated depositions which had been received by the Home Office on 4 June 1973, were not forwarded to the Magistrate until 6 June 1973. The fugitive applied for a writ of habeas corpus citing a breach of Article XII of the Anglo-German Treaty, as no sufficient evidence to justify his committal had been produced within two months of the date of his apprehension on 5 April 1973, i.e., by 5 June 1973.

The Divisional Court allowed the fugitive’s application, but this was overturned on appeal by the House of Lords. Their decision turned on the interpretation of the terms “apprehension” and “produced” in Schedule 2, Article XII of the Anglo-German Treaty.

As regards the term “apprehension”, they held that upon ordinary principles of construction, it must bear the same meaning as the terms “arrest” and “apprehension” in Schedule 2, Article IX of the Anglo-German Treaty, which provided that “the competent authorities of the State applied to shall proceed to the arrest of the fugitive” upon receiving a requisition for extradition in accordance with the stipulations of Schedule 2, Article VIII of the Anglo-German Treaty, and bring him before a Magistrate for examination, “as if the apprehension had taken place for a crime committed in the same country” (Sotiriadis at 18D, 23A, 36H-37A).

They found that this “apprehension” effected after and pursuant to a requisition under Schedule 2, Article VIII of the Anglo-German Treaty was separate and distinct from the apprehension of the fugitive made pursuant to an arrest warrant issued under s 8(2) of the Extradition Act 1870: Section 8(2) of the Extradition Act 1870 provided for the provisional/precautionary arrest of a fugitive before the requisition for his surrender has been received by the Secretary of State and signified to the Magistrate (Sotiriadis at 25C). In this regard, the charge(s) on which the fugitive was arrested would be inchoate, insofar as the foreign government had yet to confirm that it was being proceeded on by way of requisition. Furthermore, the process under s 8(2) of the Extradition Act 1870 did not need to be set into motion by the foreign government or at its instance. It would therefore be contrary to...