John Muhia Kangu v Director of Prisons

• Jurisdiction: Singapore
• Judge: MPH Rubin J
• Judgment Date: 22 May 1996
• Neutral Citation: [1996] SGHC 110
• Docket Number: Originating Motion No 7 of 1996
• Date: 22 May 1996
• Year: 1996
• Published date: 19 September 2003
• Plaintiff Counsel: Applicant in person
• Citation: [1996] SGHC 110
• Defendant Counsel: Norul Huda Rashid and Pang Khang Chau (Deputy Public Prosecutors)
• Court: High Court (Singapore)
• Subject Matter: Convention Relating to the Status of Refugees 1951,International Law,s 8(3) Fugitive Offenders Act 1967 (UK),Habeas corpus,Whether applicant was 'refugee',Administrative Law,Criminal Procedure and Sentencing,Approach of court hearing application,Treaties,Extradition,Applicant accused of murder in Kenya,Singapore not a party,Whether accusations were in bad faith or politically motivated,Relevant considerations governing exercise of discretion by magistrate,ss 20, 21, 22(1)(a), 24(8), 25, 26 Extradition Act (Cap 103),Relevant considerations governing exercise of discretion,s 3(1) Extradition Act 1870 (UK)

This is an application for a writ of habeas corpus by one John Muhia Kangu, a Kenyan citizen, in respect of whom the government of Kenya had applied for extradition from Singapore.

From the facts presented to the court, it appears that the applicant, a police officer from Kenya, fled Nairobi on or about 12 November 1994 for Norway after being involved in an incident in which he and his colleague, another police officer, had reportedly opened fire and killed two unarmed persons owing to some confusion over their identities. After spending nearly nine months in Norway and after withdrawing his application to the Norwegian authorities for political asylum, he left Norway and arrived in Singapore on 4 August 1995, using his nephew`s passport, apparently, with a view to approaching the New Zealand High Commission in Singapore for political asylum. Upon his arrival, he was granted a 14-day social visit pass by the Singapore immigration department. The immigration officer at the entry point was admittedly unaware of the false nature of his travel documents.

On 11 August 1995, after being notified by the New Zealand High Commission that he was causing trouble whilst seeking asylum, officers from the Tanglin Police Division arrived at the High Commission to question the accused. He was later placed under arrest and referred to the Field Immigration Unit for being in possession and having used another person`s passport to travel to Singapore. Subsequently he was detained at Abingdon Prison from 15 August 1995 by order of the Controller of Immigration under the provisions of s 34(1) of the Immigration Act (Cap 133) pending repatriation. He was, however, not charged in court since his identity could not be verified at the time of his arrest.

The authorities subsequently learnt that he was wanted by Interpol Nairobi for two counts of murder allegedly committed by him together with another person on 9 November 1994 and that a warrant had been issued for his arrest in Kenya on 17 December 1994. The applicant was as a result transferred to Changi Prison for safe custody.

On 16 September 1995, a superintendent of the Kenyan police arrived in Singapore to escort the applicant back to Kenya, but the applicant refused to return. On 10 November 1995, the Minister for Law (the minister) received a requisition from the government of Kenya through the Singapore Ministry of Foreign Affairs for the applicant`s arrest and surrender. On 5 December 1995, the Ministry of Law received the extradition papers and supporting documents. The minister, having considered the depositions and the overseas warrant and after addressing his mind to the relevant provisions of the Extradition Act (Cap 103) (the Act), particularly ss 20 and 21 thereof and the restrictions contained therein (see the affidavit of the Permanent Secretary, Ministry of Law filed on 10 April 1996), exercised his discretion and issued a notice under s 22(1)(a) of the Act, authorizing a district judge in Singapore to issue the requisite warrant for the apprehension of the applicant provided that the provisions of the Act relating to the issue of such a warrant had, in the opinion of the district judge, been complied with.

The Permanent Secretary in his affidavit averred that the minister had no grounds to believe that the request by the Kenyan Government for the applicant`s surrender was politically motivated or that it was not made in good faith.

The extradition hearing which commenced on 15 January 1996 concluded on 19 January 1996 when the learned district judge ruled that there was sufficient evidence to justify the extradition of the applicant to Kenya and that he be remanded pending the warrant of the minister for his surrender. The learned district judge also, as was required of him under s 26 of the Act, advised the applicant of his right to challenge the decision of the district judge by way of an application for a writ of habeas corpus to the High Court.

On 26 January 1996, the minister received from the district judge a certificate pursuant to s 24(8) of the Act, the warrant of commitment dated 19 January 1996, a certified true copy of the notes of evidence and all other court exhibits tendered during the commitment proceedings.

In the result, an application for a writ of habeas corpus was filed by the applicant through his former solicitors on 3 February 1996. Though there was some procedural non-compliance in relation to the said application, in the light of the fact the applicant appeared in person, I heard this application over three days. The applicant in challenging the commitment order issued by the court below, questioned its legality. In para 12 of his affidavit, the applicant said, inter alia:

... The following are the points (sic) am raising in opposing the legality of the decision of the committal court in extraditing me to Kenya. As well as the legality of the committal warrant:

(i) The learned district judge of the subordinate court exceeded his jurisdictional powers by hearing and determining on a question I had raised in the committal court to the effect that the Kenya Government had in fact filed diplomatic extradition proceedings in Norway and thereby made a ruling on an issue of international kaw on matters involving two sovereign countries in regard to whether an extradition treaty exists between Kenya and Norway.

... I do wish to state further here that there is no dispute that the offence of murder is an internationally recognized extraditable offence and that no country in this world would give sanctuary or immunity against prosecution even in the guise of Geneva Convention also given the fact that most countries are now members of the International Police (INTERPOL) fraternity. The articles of the Geneva Convention are clear on the issue of giving or granting asylum to persons known to have committed crimes against humanity and, therefore, the issue of my application of political asylum should not have been construed as immunity against prosecution.

(ii) The learned district judge failed to determine whether the issue I had raised in the committal court in that by the police officers of Tanglin Police Division effecting an arrest in the premises of the New Zealand Embassy in Singapore could be construed to (sic) a violation of my rights as a political asylum seeker as enshrined in the Geneva Convention of which Singapore is a signatory and thus a contracting state and by this action has in fact brought into conflict the two International Charters, viz (1) The Commonwealth Extradition Act, (2) The Geneva Convention.

(iii) The Singapore authorities contravened the Commonwealth Extradition Act which is very clear and also stipulates the procedure to be followed in an extradition proceedings (sic) in regard to the action to be taken in the event of receiving provisional documents from the requesting designated commonwealth country. The authorities failed to produce me in court to answer the charge of extradition though the Kenyan Government had sent documents which could have warranted my production in court by remanding me for a period of and in excess of three months since the documents were first sent to Singapore.

...

[(iv) No sub-para iv]

(v) The requisition made by the Kenyan Government to the Singapore authorities for my surrender to face trial for two counts of murder allegedly committed within the jurisdiction of the Republic of Kenya was not made in good faith and in the interest of justice because as in the case here have an element of a political flavour.

...

(vi) I am raising the point that whether the court would examine the sufficiency of the evidence as contained in the depositions submitted by the Government of Kenya to the learned district judge of the subordinate court, Mr Tan Puay Boon, if such evidence was sufficient to justify the...