United States v. Kin-Hong

• Court: Court of Appeals for the First Circuit
• Decided: May 16, 1996
• Docket: 96-1386
• Status: Published

Opinion

USCA1 Opinion

May 23, 1996

                            United States Court of Appeals

                                For the First Circuit

                                 ____________________



        No. 96-1386



                              UNITED STATES OF AMERICA,



                                      Appellant,



                                          v.



                            LUI KIN-HONG, a/k/a JERRY LUI,



                                      Appellee.



                                 ____________________


ERRATA SHEET
                                     ERRATA SHEET



            The opinion of this Court issued on May 14, 1996, is corrected  as

        follows:



            On page 6, lines 17-18:  replace "his release on bail anew."  with

        "his bail request."



United States Court of Appeals

                                For the First Circuit

                                 ____________________



        No. 96-1386



                              UNITED STATES OF AMERICA,



                                      Appellant,



                                          v.



                            LUI KIN-HONG, a/k/a JERRY LUI,



                                      Appellee.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                     [Hon. Joseph L. Tauro, U.S. District Judge]
                                            ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________



                           Stahl and Lynch, Circuit Judges.
                                            ______________



                                 ____________________



            Alex Whiting, Assistant United  States Attorney, with  whom Donald
            ____________                                                ______

        K.  Stern,   United  States  Attorney,   and  Susan  Hanson-Philbrick,
        _________                                     _______________________

        Assistant  United States  Attorney,  were  on  brief, for  the  United

        States.

            Harvey A.  Silverglate, with  whom Andrew Good  and Silverglate  &
            ______________________             ___________      ______________

        Good were on brief, for appellee.
        ____


____________________



                                     May 16, 1996

                                 ____________________



Per Curiam.  Before  us is an appeal by  the United
                      Per Curiam.
                      __________



            States from  the grant  of a  petition for a  writ of  habeas



            corpus releasing  Lui Kin-Hong,  a/k/a Jerry Lui  ("Lui"), on



            bail pending a decision on his extraditability to Hong  Kong.



            We previously stayed the release order and we now reverse the



            order of the district  court and hold that there are  at this



            time no "special circumstances" warranting Lui's release.  We



            do not reach the issue of whether Lui poses a risk of flight.



                      Lui,  formerly  a  senior  officer  of the  British



            American Tobacco Co.  (HK) Ltd. ("BAT"),  is charged in  Hong



            Kong   with conspiring  to receive and  receiving millions of



            dollars in bribes from Giant Island Ltd. ("GIL").  The bribes



            were  allegedly given for a virtual monopoly on the export of



            certain cigarettes to  the People's Republic of  China and to



            Taiwan.   The  Hong  Kong authorities  charge  that GIL  paid



            bribes  in excess  of HK  $100  million to  a  series of  BAT



            executives, including  Lui.  Other  alleged conspirators  are



            also  charged with  the abduction,  torture, and murder  of a



            former GIL  shareholder who  cooperated with the  authorities



            and,  it  is said,  would  have  provided  evidence of  Lui's



            acceptance of  bribes.   Lui was  away  from Hong  Kong on  a



            business  trip  when  the  Hong Kong  authorities  sought  to



            question him  in April 1994  and he has not  returned to Hong



            Kong since, despite representations  from his attorney to the


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authorities  that   he  would   return  and  consent   to  be



            interviewed within several weeks.



                      At  the request  of the  United Kingdom,  acting on



            behalf of  its Crown  Colony,  Hong Kong,  the United  States



            arrested Lui as he disembarked from a plane at Boston's Logan



            Airport on December 20, 1995.  The arrest was for the purpose



            of  extraditing Lui to Hong  Kong to face  several charges of



            bribery.   At  a December  21, 1995  hearing, the  government



            asked  that  Lui  be   detained  pending  completion  of  the



            extradition proceedings.   The magistrate  judge ordered  Lui



            held temporarily pending a  full hearing on the motion.   Lui



            filed a cross-motion to  be released on conditions.   After a



            hearing,  the magistrate  judge  denied Lui's  request to  be



            released on bail.  The magistrate judge found both that there



            were no special circumstances and there was a risk of flight.



                      On  a petition  for a  writ of  habeas  corpus, the



            district court reversed the order of the magistrate judge and



            released Lui on conditions.  The district court held that the



            reversion of Hong Kong  to the People's Republic of  China on



            July 1, 1997 raised complex legal issues that would result in



            protracted proceedings and presented a "special circumstance"



            overriding the presumption against  bail.  The district court



            also found that  there were conditions of  release that would



            adequately ensure Lui's presence  at future proceedings.  The



            district court's  order granting a release  on conditions has


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been  stayed  pending  this decision.    We  now reverse  the



            district court and  order Lui held pending the  resolution of



            the extradition issue.



                      There  is a presumption against bail in extradition



            cases  and only  "special circumstances"  justify  release on



            bail.  Wright v. Henkel, 190 U.S.  40, 63 (1903); Koskotas v.
                   ______    ______                           ________



            Roche,  931 F.2d 169, 175  (1st Cir. 1991);  United States v.
            _____                                        _____________



            Williams,  611 F.2d 914,  915 (1st  Cir. 1979)  (per curiam);
            ________



            Beaulieu  v. Hartigan,  554 F.2d  1, 1  (1st Cir.  1977) (per
            ________     ________



            curiam).   "Special circumstances" are  limited to situations



            in  which "'the  justification [for  release] is  pressing as



            well as  plain.'"  Williams,  611 F.2d at 915  (quoting In re
                               ________                             _____



            Klein,   46  F.2d   85,  85   (S.D.N.Y.  1930)).     "Special
            _____



            circumstances" may  include  a delayed  extradition  hearing.



            Id.  at 915;  see  also United  States  ex rel.  McNamara  v.
            ___           _________ _________________________________



            Henkel, 46 F.2d 84, 84 (S.D.N.Y. 1912) ("When the examination
            ______



            day  comes and the [government] is not ready to proceed after



            having had  a reasonable opportunity to  communicate with the



            region from  whence the request for  extradition emanated, it



            is  then time enough  to ask for bail.").   Other courts have



            held that such circumstances  may also include the raising of



            substantial claims against  extradition on which the  relator



            has a high probability of success, a serious deterioration in



            the  relator's health,  or  an unusual  delay in  the appeals



            process.   Salerno v. United  States, 878 F.2d  317, 317 (9th
                       _______    ______________


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Cir. 1989); In re Extradition of Siegmund, 887 F. Supp. 1383,
                        _____________________________



            1385-86  (D. Nev. 1995);  United States v.  Taitz, 130 F.R.D.
                                      _____________     _____



            442,  444-45  (S.D.  Cal.  1990).   While  arguably  Lui  may



            ultimately prevail in his  challenges to his extradition, the



            record does not  establish probability of success  one way or



            another.  Similarly, the other two grounds do not obtain.



                      Lui  argues that  the  complexity  of legal  issues



            surrounding  the  impending change  in sovereignty  over Hong



            Kong (namely,  whether extradition is authorized if it is the



            People's Republic of China, and not Hong Kong, which will try



            Lui)  will result  in protracted extradition  proceedings and



            that this  constitutes a "special  circumstance."  We  do not



            agree.  Lui does  not argue that the extradition  hearing has



            yet  been unduly  delayed.   See Williams,  611 F.2d  at 915;
                                         ___ ________



            McNamara, 46 F.2d at  84.  The matter is  currently scheduled
            ________



            to  be heard on May  28, 1996 before  Magistrate Judge Karol.



            Indeed, Lui states in his brief in this court that "the lower



            courts have been deciding the issues at as rapid a pace as is



            practicable."   To the extent that there has been some delay,



            Lui himself is partly responsible, having moved, for example,



            at the end of  April, for a continuance of  the hearing which



            had been scheduled  for May 6, 1996.1  Moreover,  there is no



                                
            ____________________



            1.  We also note that on May 6, 1996, Lui filed a motion with

            the district court  entitled Motion  for Leave  to Amend  His

            Petition for  a Writ of Habeas Corpus  and to Dismiss so Much
                                    _____________

            of  His Petition as Seeks Release on Conditions, in which Lui

            sought "to dismiss so  much of his pending petition  as seeks



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reason to believe that the extradition hearing itself will be



            unusually  long.  At  oral argument before  this court, Lui's



            counsel estimated  that the hearing  would take two  to three



            days  at most,  while the government  suggested a  few hours.



            Lui  has made  an  insufficient showing  that  the issues  he



            raises are so complex that the resolution of  the extradition



            issue will be  inevitably and exceedingly protracted.  Cf. In
                                                                   ___ __



            re Extradition of Morales, 906  F. Supp. 1368, 1374-75  (S.D.
            _________________________



            Cal.  1995)  ("special  circumstances"  existed  when,  after



            relator already had been held six  months, the United States,



            at  the request of  the foreign government  involved and upon



            the dismissal of the original  complaint for lack of probable



            cause,  filed a  new complaint  charging a  different offense



            thus delaying conclusion of the  matter).  The factual record



            will  be further developed at the  extradition hearing and it



            is premature for this  court to consider the merits  of Lui's



            claims.  Finally, we  do not believe that the  normal passage



            of  time inherent  in  the litigation  process constitutes  a



            "special circumstance."  Should unusual delays transpire, Lui



            may then renew his bail request.



                      Thus, we  are left  with Lui's argument  that final



            resolution  of  the extradition  proceedings  (unless  in his


____________________



            his  release  on  conditions,  and to  vacate  [the  district

            court's] April  25, 1996 Order  which granted him  release on

            conditions."  Had that motion been granted, which it was not,

            considerable delay would have resulted.



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favor) may not take place before reversion and it is unlikely



            that there will be a treaty in place allowing his extradition



            to the People's Republic of China.  Under such circumstances,



            he argues, he could not be extradited after reversion and the



            United States  would be required to  release him immediately.



            However, given the current  uncertainty over the future state



            of foreign affairs2  with Hong Kong and the People's Republic



            of  China  and  the  possibility (which  we  do  not consider



            remote) that the federal courts will complete their review of



            this matter well prior  to July 1, 1997, we  are reluctant at



            this time  to consider  the expected effect  of reversion  on



            Lui's extraditability to constitute a "special circumstance."



                      For  these reasons,  we  reverse the  order of  the



            district court releasing Lui on bail and instruct that Lui be



            held without  bail pending the resolution  of the extradition



            issue.  This order  is without prejudice to Lui's  ability to



            file a new  motion for release  on bail  at some future  date



            should there be a change in circumstances.



                      It is so ordered.
                      _________________



                                
            ____________________



            2.  Lui's own brief before this court states that "the Senate

            may yet ratify  an agreement with  the [People's Republic  of

            China] . . .  which would provide the necessary  assurance of

            . . . protections  [for trial  or punishment by  the People's

            Republic  of China]  after the U.K.  relinquishes sovereignty

            over  Hong  Kong's  criminal  justice  system."    While  the

            concession  was made in the context of trial or punishment by

            the  People's  Republic of  China after  a surrender  to Hong

            Kong,  such  an  agreement   could  conceivably  cover  post-

            reversion  extraditions for  offenses committed  against Hong

            Kong.



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