In the matter of Fadaak Sahar Osama A

• Jurisdiction: Singapore
• Judge: Chee Min Ping
• Judgment Date: 10 January 2023
• Neutral Citation: [2023] SGDC 7
• Court: District Court (Singapore)
• Docket Number: EXT-000004-2022(M)
• Published date: 21 January 2023
• Year: 2023
• Hearing Date: 21 December 2022
• Plaintiff Counsel: Kavita Uthrapathy, Anupriya A Daniel and Charmian Ong (Attorney-General's Chambers)
• Defendant Counsel: Wong Siew Hong (Eldan Law LLP)
• Subject Matter: Extradition,Extradition Agreements,Procedure - Extradition offences
• Citation: [2023] SGDC 7

District Judge Chee Min Ping: Introduction and procedural history

These proceedings were brought by the State for the committal of Ms Fadaak Sahar Osama A (“Ms Fadaak”) for extradition. On 25 September 2022, Ms Fadaak was apprehended pursuant to a Warrant of Apprehension issued on 24 September 2022 by a Magistrate of the State Courts of Singapore¹. She was produced before a Magistrate on 26 September 2022. Subsequently, she was remanded pending the formal request for her extradition, and produced before a Magistrate within time intervals of not more than seven days each.

On 22 November 2022, the United States of America (“United States”) submitted the formal extradition request which was received through the diplomatic channel. On 1 December 2022, the Minister for Law (“Minister”) rendered a Notice to the Magistrate pursuant to s 11(1)(b) of the Extradition Act 1968 (“Extradition Act”), that a request has been made to the Minister by the United States for the surrender of Ms Fadaak to face two counts of offences alleged to have been committed in the United States, namely, murder in the first degree and conspiracy to commit murder in the first degree against one Darwin Garcia Franco (“Deceased”).

On 21 December 2022, Ms Fadaak was produced before this court, and evidence was produced by the State in support of its request for the committal of Ms Fadaak pending the Minister’s order for the surrender Ms Fadaak to the United States. At these proceedings, Ms Fadaak elected not to testify or call any witnesses to give testimony.

The applicable law

As Ms Fadaak did not consent to her surrender to the United States, the procedure under s 16(8) of the Extradition Act applied. If satisfied that the criteria under s 16(8) of the Extradition Act have been satisfied, the Magistrate is to issue a warrant for the commitment of Ms Fadaak to await the Minister’s order for surrender to the requesting state, the United States.

Where the Magistrate receives a notice from the Minister under s 11(1)(b) of the Extradition Act that a request has been made for the surrender of a fugitive by a foreign state, the Magistrate was required to ascertain whether: There is a duly authenticated foreign warrant or overseas warrant in respect of the person issued in the foreign State that made the request for the surrender of the person, in accordance with s 16(8)(a) of the Extradition Act. In the case of a person who is accused of an extradition offence — there is a prima facie case that would justify the trial of the person if the act or omission constituting that offence had taken place in, or within the jurisdiction of, Singapore in accordance with s 16(8)(b)(i) of the Extradition Act; and After hearing any evidence tendered by the person, that the person is liable to be surrendered to the foreign State or declared Commonwealth territory that made the request for the surrender in accordance with s 16(8)(c) of the Extradition Act.

Subsequent to Ms Fadaak’s apprehension, the Extradition Act was amended when s 9 of the Statutes (Miscellaneous Amendments) Act 2022 took effect on 1 November 2022. The effect of the amendments relevant for present purposes was the deletion of the sub-provisions ss 16(1) to (7) of the Extradition Act, and the corresponding insertion of the substance of the deleted sub-provisions in ss 15A(1) to (7) of the Extradition Act. The intention behind these amendments was the segregation of the sub-provisions applicable to apprehended persons who consent to surrender in s 15A from the sub-provisions applicable to apprehended persons who do not consent to surrender in s 16, with consequential changes to the wording where necessary (see Statutes (Miscellaneous Amendments) Bill 2022, Explanatory Statement). For present purposes, the commencement of these specific amendments do not substantively impact on the applicable principles.

The evidence presented by the State

The State called its sole witness, Deputy Superintendent of Police Shen Xiang Wei (“DSP Shen”), who is the investigation officer. He testified that on 23 September 2022, consequent to the United States’ request for the provisional arrest of Ms Fadaak,² DSP Shen made an application on 24 September 2022 for a warrant of apprehension against Ms Fadaak.³ The warrant of apprehension was issued by a Magistrate on the same day.⁴ The next day, a team of police officers led by DSP Shen arrested Ms Fadaak pursuant to the warrant of apprehension at Park Royal Hotel on Beach Road at 7500 Beach Road, The Plaza, Singapore 199590.⁵

DSP Shen testified that since Ms Fadaak was ascertained to be a Saudi Arabian national, the US Embassy and the Saudi Arabia Embassy were both informed of her arrest on the same day.⁶ Ms Fadaak was produced at the State Court 4A the next day. The formal extradition request from the United States was submitted on 22 November 2022 through the diplomatic channel and tendered in evidence.⁷

The United States’ extradition request included the affidavit of Senior Deputy Prosecuting Attorney LaKeysha N Washington (“SDA Washington”), which was certified by Jeffrey M Olson, Associate Director, Office of International Affairs, United States Department of Justice, on 7 November 2022.⁸ Exhibited to SDA Washington’s affidavit at Exhibits A and B, are the cause papers tendered to the King County Superior Court to establish probable cause for the issue of the warrant of arrest against Ms Fadaak, and the arrest warrant was issued on 13 October 2020 for two counts, as follows:

Count 1 Murder in the First Degree

That the defendant Sahar O Fadaak in King County Washington, on or about May 31 2019, with premeditated intent to cause the death of another person, together with Saif Al Obaidi, did cause the death of Darwin Garcia Franco, a human being, who died on or about May 31, 2019;

Contrary to RCW 9A.32.030(1)(a), and against the peace and dignity of the State of Washington.

And further do accuse the defendant, Sahar O Fadaak at said time of being armed with a deadly weapon, to-wit: a knife or bladed object, under the authority of RCW 9.94A. 825 and 9.94A.533(4).

And further do accuse the defendant, Sahar O Fadaak, at said time of committing the above crime against a family or household member, a crime of domestic violence as defined under RCW 10.99.020.

Count 2 Conspiracy to Commit Murder in the First Degree

That the defendant Sahar O Fadaak in King County, Washington, on or about April 1, 2019 to May 31 2019, with intent that conduct constituting the crime of Murder in the First Degree occur, did knowingly and unlawfully agree with at least one person, Saif Al Obaidi, to kill Darwin Garcia Franco and one of the parties so agreeing did take a substantial step in pursuance of such agreement.

Contrary to RCW 9A.28.040 and 9A.32.040(1)(a), and against the peace and dignity of the State of Washington.

SDA Washington averred that the United States government will establish the two counts beyond reasonable doubt at trial, given the facts of the case which are essentially set out in the affidavit of Detective Adam Haas (“Detective Haas”) of the Kirkland Police Department, the contents of which essentially mirror the facts stated in the “Certification for Determination of Probable Cause” (“Certification”) prepared by Detective Haas, the lead investigator in the investigation of Ms Fadaak.⁹ The facts stated are summarised as follows: Between January and May 2019, Ms Fadaak and Saif Al Obaidi (“Al Obaidi”) developed a close personal relationship, spending substantial time together and communicating frequently by cell phone. Investigations revealed that Ms Fadaak and Al Obaidi began a romantic relationship, and met from time to time at Ms Fadaak’s personal apartment at Belluvue. On 17 May 2019, the Deceased confronted Ms Fadaak (the Deceased’s wife), about his belief that she was unfaithful. On 22 May 2019, Ms Fadaak began looking for life insurance policies that would pay her the maximum amount available in the event of the Deceased’s death. Ms Fadaak was informed by an insurance salesperson that the policy premium could be reduced if the Deceased first obtained a medical physical. Ms Fadaak insisted that she needed insurance on the Deceased’s life immediately and was not interested in lowering policy premiums by having the Deceased attend a medical physical. On 28 May 2019, Ms Fadaak submitted for a policy with a $250,000 life benefit, listing her and her child as beneficiaries in the event of the Deceased’s death. Ms Fadaak went about making enquiries for a life insurance policy on the Deceased’s life even though Ms Fadaak told investigators that she was planning to leave the Deceased during an unrelated investigation with Child Protective Services. On 29 May 2019, Ms Fadaak was informed that the Deceased could not be insured as he did not have citizenship. At the time of the Deceased’s death, the Deceased lived with his wife Ms Fadaak and their young child in a split level two-floor home in Kirkland, Washington. The Deceased and family occupied the upper floor while one Nelida Zuniga (“Zuniga”) and three minor children rented and resided in the lower floor. That night, Ms Fadaak slept in a room across the hall, which was not a common occurrence. The Deceased was killed on 31 May 2019 at about 2.00 am in his residence. There were no signs of forced entry, and Al Obaidi entered the residence and attacked the Deceased while the Deceased was asleep in bed, alone. Al Obaidi stabbed the Deceased a total of approximately 30 times, causing his death. The residents living downstairs were alerted by the sounds of the attack and came to investigate. Zuniga saw Al Obaidi attack the Deceased, and attempted to intervene. Al Obaidi stabbed Zuniga multiple times. The Deceased ran out of the room where he had initially been attacked, and Al Obaidi then turned to pursue the Deceased who eventually collapsed in a...