Cheung v Central Magistrates' Court Number 3 of the Spanish High Court, Spain [2012] EWHC 418 (Admin)

Case No CO/7509/2011[2012] EWHC 418 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 14 February 2012
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE TREACY
Between
SIMON CHEUNGClaimantv
Between
CENTRAL MAGISTRATES' COURT NUMBER 3 OF THE SPANISH HIGH COURT, SPAINDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
The Claimant appeared in person for in personMr Myles Grandison (instructed by the Crown Prosecution Service) appeared for Defendant
J U D G M E N T
[1]MR JUSTICE TREACY: This is an appeal against an extradition under Part 1 of the Extradition Act 2003.[2]The appellant, Mr Cheung, appears before me in person today. He did have solicitors, but they came off the record some months ago. He has made brief oral submissions today which, in effect, reiterate arguments put to the District Judge. I have read the case papers, including a skeleton argument from the respondent. Since Mr Cheung made no substantial oral submissions to me, I did not call upon counsel for the respondent to make any submissions. Mr Cheung emphasised to me that his main point was that he was not a fugitive, contrary to the finding of the District Judge.[3]The Spanish authorities issued an European Arrest Warrant on 19 April 2007. They seek the appellant's extradition so that he may stand trial for offences described as falsification of currency and embezzlement. It is alleged that the appellant imported cloned bank cards into Spain and, in association with others, used the cards to obtain over 92,000 euros from cashpoints. Those transactions took place in December 2002.[4]The hearing took place before Deputy Senior District Judge Wickham on 19 July 2011. The appellant challenged his extradition on two grounds: firstly, that it was unjust and oppressive to order his extradition to Spain due to the passage of time that had elapsed; secondly, it was asserted that extradition would breach the appellant's rights under Article 8 of the European Convention on Human Rights.[5]On 4 August, the District Judge handed down her judgment and ordered extradition to Spain. Her ruling includes the following observations:
"3. The defendant has given evidence and been cross-examined. In addition to his evidence I have received statements from his two children Tiffany (aged 12) and Tiana (aged 8). In addition, there is a statement from the defendant's mother ... In support of the defendant's evidence there was also produced a discharge medical report upon [the defendant's mother] from University College London Hospital dated the 17th May 2009."
The judge recorded that the defendant's evidence was that, towards the end of 2002, he went to the south of Spain with the cloned or fraudulent credit cards. The warrant alleges that he, together with others, was involved in the use of those cards on some 35 occasions.[6]In chief, the defendant agreed that his part was to bring the cards into Spain. He was arrested on bail and held in prison. At the end of three months, he was told, according to him, that he could go if he did not cause trouble. He had a Spanish lawyer at the time. They were able to speak in English.[7]The appellant stated that, on release from prison with the assistance of the British embassy, he managed to get his passport back and his mother paid for him to fly back to London in 2003. He claims that, having returned to this country, he reported to the Spanish embassy here, but no one at the embassy was interested in him and he has done nothing since.[8]According to the District Judge's findings, a different picture emerged on cross-examination. The appellant agreed that his release on bail was on condition that he needed to sign on with the court once a month and that, at the beginning of the grant of his bail, his British passport had been withheld.[9]The British embassy had challenged the withholding of the passport and an informal arrangement was reached whereby the passport was returned to the appellant, but there was no formal court hearing or record. The defendant failed to keep in contact with his lawyer and made no effort to speak with him to find out the situation in Spain after he returned to this country.[10]The appellant agreed in cross-examination that it was his co-defendants who had mentioned to him that he would be "all right if he didn't get into further trouble". The appellant said that he had since lost or mislaid all the paperwork relating to the grant of bail and charges against him.

The judge continued in this way at paragraph 5:

"I am asked by the defence not to make a finding of fact that this defendant is a fugitive from justice. I cannot agree. It was quite clear to the defendant that the proceedings were not at an end in 2003 but that he had been granted bail with conditions. There is no evidence before me to show that he was told that he could leave Spain and return to the UK. Neither is there any evidence at all which would indicate that these proceedings had come to an end. Thus, I find that he is a fugitive from justice in Spain."
[12]The judge went on to consider at paragraph 6 additional information received from Spain seeking to explain why there had been little activity between the appellant's departure from Spain in 2003 and 2007. It was only in March 2007 that the warrant for the appellant's arrest was issued. The judge observed this:
"This court would concede that on the face of it 4 years to complete the enquiries is an indication of a leisurely approach to investigation but I must bear in mind that there were apparently 12 credit cards from at least 8 countries other than Spain involved in this fraud and as I have already said 35 operations with them. This is not culpable delay."
The judge went on to say that, although she regarded the appellant as a fugitive from justice, in the event that she was wrong in that finding there was still little evidence to support the section 14 claim based on passage of time.[13]She then went on to consider Article 8 rights, which she viewed as necessarily part of the oppression argument. She spoke of moving letters from the appellant's daughters and his mother, but she noted that the appellant had been divorced for a number of years, that his marriage had been virtually non-existent since 2002 and that he was divorced on return to this country in 2003. She observed that he was not the primary carer for his wife and two children. He tries to support them, but he is currently unemployed. He sees them on a regular basis.[14]As far as his mother is concerned, the judge stated that the appellant had explained her health problems but observed that her health discharge letter, dated 2009, did not really assist as to the mother's condition and noted that the appellant had only just applied for a carers allowance. In her judgment, the very high threshold test set out in the case of Norris and reaffirmed in recent authorities had not been supported by the facts of this case. Accordingly, the appellant's submissions were rejected and his extradition to Spain was ordered.[15]I turn to the question of passage of time under section 14. I have in mind the well-known observations of Lord Brown in Gomes v Government of Trinidad and Tobago [2009] 1 WLR 1038 paragraph 26. Those observations clearly apply here, both in terms of the appellant's conduct, which clearly shows that he deliberately left Spain, aware that matters were proceeding against him, in breach of bail. In my judgment, the District Judge was correct to regard the appellant as a fugitive and not to regard the Spanish authorities as culpable. That being so, unless there are exceptional circumstances, the appellant cannot argue that it would be unjust or oppressive to order his extradition.[16]Oppression is a concept which goes beyond hardship, as is well established by the authorities. As far as injustice is concerned, Spain, as an member of the Council of Europe, should be assumed to be capable of protecting the accused against an unjust trial. Whilst extradition can constitute an interference with the right to respect for family life guaranteed by Article 8(1), it is submitted by the respondent that in this case such interference is justified under Article 8(2) as being proportionate, in accordance with the law and necessary in an democratic society.[17]My consideration of the materials in this case does not show that it would be unjust or oppressive to return the applicant to Spain due to the passage of time. He fled the jurisdiction and there is ample basis for the District Judge's finding in that respect. He can receive a fair trial there, if expedited. There is no culpability on the part of the Spanish authorities, as explained by Lord Brown in Gomes, particularly on a multi-count fraud with international dimensions. Again, I can find no fault with the District Judge's ruling.[18]In my judgment, the Article 8 considerations do not surmount the high threshold which is identified in the well-known case of Norris. As far as the children of the appellant's marriage are concerned, the District Judge's analysis of the facts does not show any unusual or compelling feature which would justify the intervention of Article 8. As far as his mother is concerned. The evidence is deficient and sparse. Her condition has not been explained. Assistance is likely to be available, if need be, through public authorities. Again, this aspect of the case does not surmount the threshold identified in Norris.[19]In my judgment, the District Judge was not in error in her ruling. There was no matter which she ought to have decided differently. Accordingly, this appeal must fail and it is dismissed.[20]Mr Cheung, your appeal has failed and the appeal is dismissed. The order for extradition stands. Thank you, sir.[21]MR GRANDISON: I'm grateful, my Lord.[22]THE CLAIMANT: I said on the last occasion at court that the cards were not mine. I was only taking them over there for somebody else.[23]MR JUSTICE TREACY: Thank you. All right. Madam interpreter, thank you for your attendance. The hearing is concluded. Thank you.