Fernandez v. Government of Singapore and Others [1971] UKHL 6

House of Lords
Between
FernandezAppellantGovernment of Singapore and OthersRespondent
Before
Lord ParkerLord DiplockSir Dingle FootDate 2 February 1971
This was an appeal by Gerald Fernandez against the order of the Divisional Court (Lord Parker CJ, Melford Stevenson and Cooke JJ), dated 2nd February 1971 and reported at p 24, ante, dismissing his application for a writ of habeas corpus and subjiciendum and refusing an order for his discharge under s 8 of the Fugitive Offenders Act 1967 except in regard to the first charge contained in the warrant of committal issued on 14th December 1970 by the metropolitan magistrate sitting at Bow Street, which was amended to cover the second charge of corruption against s 6 (a) of the Prevention of Corruption Ordinance 1960 of Singapore only. The government of Singapore, the governor of Pentonville prison and the Secretary of State for Home Affairs, were the respondents to the appeal. The facts are set out in the opinion of Lord Diplock.Sir Dingle Foot QC and E Cotran for the appellant.C J S French QC and M H D Neligan for the government of Singapore.Gordon Slynn for the governor of Pentonville prison and the Secretary of State for Home Affairs.Their Lordships took time for consideration.25th May. The following opinions were delivered.

LORD DONOVAN.

My Lords, like all your Lordships I came to the clear conclusion at the end of the presentation of the appellant's case that it must fail. My reasons were those which are now set out in the speech of my noble and learned friend, Lord Diplock, with which I agree.

VISCOUNT DILHORNE.

My Lords, for the reasons given by my noble and learned friend, Lord Diplock, I agree that this appeal should be dismissed.

LORD PEARSON.

My Lords, I agree with the opinion of my noble and learned friend, Lord Diplock, and would therefore dismiss the appeal.

LORD DIPLOCK.

My Lords, this is an appeal against the refusal by the High Court [1] of an application for habeas corpus arising out of extradition proceedings brought against the appellant under the Fugitive Offenders Act 1967. The appellant was accused of two offences under the Prevention of Corruption Ordinance of Singapore, which he is alleged to have committed in that country in July 1966 and in August 1968. The Republic of Singapore is a designated Commonwealth country under s 2 of the Fugitive Offenders Act 1967. The offences of which he was accused fall within the description 'bribery' in Sch I to the Act. Accordingly, they are relevant offences under s 3.Evidence in support of the request of the government of Singapore for the return of the appellant to that country was tendered in the committal proceedings, under s 7 of the Act, before a metropolitan stipendiary magistrate at Bow Street. It consisted, mainly of affidavits sworn before and certified by a district judge and magistrate in Singapore. The magistrate was satisfied that the evidence so tendered would be sufficient to warrant the appellant's trial for the two offences of which he was accused if they had been committed within the jurisdiction of the court of committal; and on 14th December 1970 the appellant was committed to the custody of the governor of Pentonville prison to await his return to Singapore. On 21st December 1970 application was made to the High Court for habeas corpus under s 8 of the Act. The Divisional Court [2] (Lord Parker CJ, Melford Stevenson and Cooke JJ) took the view that the evidence which had been tendered was not sufficient to support the first charge relating to the alleged offence in July 1966, but was sufficient to support the second charge relating to the alleged offence in August 1968. The court refused the application for habeas corpus but ordered that the warrant of committal should be amended to cover the second charge only. It is against this order that the appellant now appeals to your Lordships' House. No question now arises as to the first charge. It passes out of the picture. If the appellant is returned to Singapore he cannot be dealt with in respect of that offence unless he has first been restored to or had an opportunity of returning to the United Kingdom.Before your Lordships' House four grounds have been advanced on which the appellant claims to be entitled to be released from custody. These are the same as were relied on in his application to the Divisional Court. The first is one of law. It is that the affidavits tendered in support of the request for his return were not admissible as evidence under s II of the Fugitive Offenders Act 1967; and that, apart from those affidavits, there was (as is conceded) no sufficient evidence to warrant his trial for the offence alleged in the second charge. The second is one of fact. It is that even if the affidavits were admissible, the evidence tendered would still not be sufficient to warrant his trial for the offence alleged in the second charge if it had been committed within the jurisdiction of the court of committal, as is required by s 7 (5) (a) of the Act. The third is that the return of the appellant is prohibited under s 4 (1) (c) of the Act because he might, if returned, be detained or restricted in his personal liberty by reason of his political opinions. This is mainly one of fact and the facts, disclosed in the evidence in the instant case are not, in my view, such as to raise any doubtful question of construction of the relevant provisions of that section of the Act. The fourth is one of fact and of discretion. It is that the appellant ought to have been discharged from custody under s 8 (3) of the Act because, by reason of the trivial nature of the offence of which he is accused and the passage of time since he is alleged to have committed it, it should have appeared to the Divisional Court 2 that it would be unjust or repressive to return him to Singapore.The facts which are relevant to each of these grounds of appeal appear in the careful judgment of the Divisional Court 2 . Save in brief summary I do not think it necessary to repeat them. Nor, since I am in favour of dismissing the appeal, do I think it desirable to enlarge on the evidence against the appellant in respect of an offence for which he will stand trial in Singapore if the Home Secretary decides to order his return under s 9 of the Act. From 1963 to 1968 the appellant was employed in Singapore as secretary and manager, legal affairs, of Malaysia-Singapore Airlines Ltd. He is accused, in the second charge, of having accepted a bribe in relation to the affairs of that company. He resigned from that employment at the end of 1968 and moved to Kuala Lumpur in Malaysia where he became a partner in a firm of advocates and solicitors. In July 1969 extradition proceedings were started against him in Malaysia at the request of the government of Singapore; and on 24th July, 1969 he was released on bail pending the adjourned hearing of the proceedings which were due to be resumed in Kuala Lumpur on 15th September 1969. On 2nd August 1969 he left Malaysia for England and did not return. Instead he went to the Irish Republic where he remained for more than a year although he appears to have paid occasional visits to London during this period.In the meantime steps were taken in Singapore and in London to obtain his return, under the Fugitive Offenders Act 1967 to Singapore from the United Kingdom where the Singapore authorities believed him to be. On 20th January 1970 a complaint against the appellant was made on oath before the magistrate in Singapore. On this complaint a warrant for the arrest of the appellant was issued and the two charges under the Prevention of Corruption Ordinance were framed. These documents were duly certified by the magistrate in Singapore and exhibited to an affidavit of the director of the Corrupt Practices Investigation Bureau sworn before the magistrate in Singapore and certified by him as recording the evidence of the deponent. A further affidavit sworn by a state counsel and deputy public prosecutor of the Republic of Singapore, similarly certified, deposed as to the relevant law of Singapore relating to the offences charged. This was done, in fulfilment of the requirements of s 5 (2) of the Fugitive Offenders Act 1967, to justify the issue of a warrant for the appellant's arrest in the United Kingdom under s 6 on this material a metropolitan stipendiary magistrate issued a provisional warrant for the arrest of the appellant on 28th January 1970. The appellant was arrested on this warrant at London Airport on 19th October 1970. He had arrived there from Ireland and was in possession of a ticket for Kuala Lumpur. On 23rd October 1970 authority to proceed with the. case was issued by the Home Secretary under s 5 (1) of the Act. The committal proceedings were heard by the metropolitan stipendiary magistrate on 3rd December 1970 and on subsequent dates. At the conclusion of the hearing on 14th December 1970 the magistrate committed the appellant to custody to await his return to Singapore.To justify such an order the court of committal must be satisfied that the evidence, tendered in support of the request for the return of the person accused of a relevant offence in a designated Commonwealth country would be sufficient to warrant his trial for that offence if it had been committed within the jurisdiction of the court. Section II of the Fugitive Offenders Act 1967 provides that in any proceedings under the Act:
'(1) ... (a) a document, duly authenticated, which purports to set out evidence given on oath in a designated Commonwealth country... shall be admissible as evidence of the matters stated therein; (b) a document, duly authenticated, which purports to have been received in evidence, or to be a copy of a document so received, in any proceeding in any such country... shall be admissible in evidence...
'(2) A document shall be deemed to be duly authenticated for the purposes of this section-(a) in the case of a document purporting to set out evidence given as aforesaid, if the document purports to be certified by a judge or magistrate or officer in or of the country or dependency in question to be the original document containing or recording that evidence or a true copy of such a document... and in any such case the document is authenticated either by the oath of a witness or by the official seal of a Minister of the designated Commonwealth country...'
The first submission on behalf of the appellant may be stated thus. Section 7 (5) of the Act requires the court of committal to be satisfied that 'the evidence' tendered in support of the return of the accused 'would be sufficient to warrant his trig for that offence if it had been committed within the jurisdiction of that court'. At the time of the passing of the Act, a court consisting of a metropolitan stipendiary magistrate could only commit an accused person for trial in England on evidence on oath given orally by witnesses in open court. The meaning of the expression in s II (I) (a) 'evidence given on oath in a designated Commonwealth country' is therefore restricted to oral evidence so given, and 'a document, duly authenticated, which purports to set out' such evidence, is limited to depositions and does not include affidavits.My Lords,s II of the Act is dealing with the admissibility of documentary evidence on an application for the issue of a warrant of arrest under s 6 or for an order for return of the accused under s 7. Documents which fall within the descriptions in this section are admissible for these purposes, whether or not they would be admissible in proceedings on committal for trial for an indictable offence in England. Under s II (I) (a) the evidence set out in the document must have been given on oath. In English law there are two ways in which this may be done. It may be given in writing in the form of an affidavit by a witness. Here the affidavit itself constitutes the document in which that evidence is set out. Or it may be given orally by the witness in proceedings in a court or tribunal and what he said or the substance of it recorded in writing. Here the written record or deposition constitutes the document in which the evidence so given is set out.Even if para (a) of s II (I) stood alone, I should see no warrant for construing it so as to exclude affidavit evidence. But the matter is, in my opinion, put beyond any possibility of doubt by the express reference in sub-s 2 (a) to the 'document containing or recording, that evidence'. An affidavit is a document 'containing' evidence; a deposition is a document 'recording' evidence. Both are admissible under the section. In this respect the Act of 1967 does not differ from the Fugitive Offenders Act 1881, which it repeals and replaces. The admissibility of affidavit evidence was achieved in the earlier Act by the extended definition of 'deposition' so as to include 'any affidavit, affirmation or statement made upon oath'.In coming to the same conclusion as to the true construction of s II (I) (a) the Divisional Court [3] relied on the reference to 'proceedings' in a designated Commonwealth country in para (b) and the absence of any such reference in para (a). Though less directly than sub-s (2) (a) this also supports the view that affidavits, which do not presuppose the existing of 'proceedings' in a designated Commonwealth country, as well as depositions, which do, are admissible under sub-s (I) (a). I agree that in order to render an affidavit admissible under sub-s (I) (a) it is unnecessary to identify any 'proceedings' in the designated country in which the affidavit was sworn, provided that it is duly certified and authenticated under sub-s (2) (a). It appears to have been accepted without argument in the Divisional Court 3 that there were no 'proceedings' in Singapore in the instant case in which the affidavits were sworn; and it has not been necessary for your Lordships to hear any argument of this point in order to dispose of this appeal. I should like to make it clear, however, that in the absence argument I must not be taken as accepting that there were not any 'proceedings' in Singapore in which the affidavits tendered in the court of committal had been received in evidence. The reasons which I have given, however are sufficient for of appeal.As regards the second ground, both the court of committal and the Divisional Court 3 were satisfied that the evidence contained in the affidavits would be sufficient had been committed within the jurisdiction of the court of committal. These are concurrent findings of fact. I agree with them.The third ground relied on by the appellant is that 'he might, if returned, be... detained or restricted in his personal liberty by reason of his... political opinions' The appellant gave oral evidence in the court of committal as to his political activities in Singapore before his departure at the end of 1968. The magistrate did not accept him as a witness of truth as respects this part of his evidence. He was never detained or restricted when he was in Singapore. It is true that during his period in Ireland, after jumping his bail in Malaysia, he has occupied his time in writing the manuscript of a book attacking the Singapore government on political grounds; but this manuscript has not found a publisher and would have remained unknown but for the fact that he himself has chosen to give it such publicity as may have been attracted by his having put it in evidence in the instant proceedings.I do not find it necessary to set out again the relevant evidence on the political aspect of the appellant's case. It is fully dealt with in the judgment of the Divisional Court [4] . Apart from the appellant's own oral evidence which was disbelieved by the magistrate, all that has been proved is that since 1948 there has been emergency legislation in Singapore authorising the detention without trial of person regarded as security risks, and that between 60 and 100 detainees are currently subject to detention thereunder. There is no evidence that anyone has been detained ender this legislation merely because he has expressed political opposition to the Singapore government such as that which the appellant claims to have expressed. Indeed such evidence as there is is to the contrary.The magistrate took the view that to entitle the appellant to avail himself of the prohibition on return under s 4 (I) (c) of the Act the burden which lay on him was 'to show on a balance of probabilities that there is a reasonable chance of his being restricted or detained'. On the evidence which was before him on the committal proceedings he found that there was no such 'reasonable chance'. In the judgment the, Divisional Court [5] , where additional evidence on this issue was admitted Parker CJ, said:
'the burden is... to satisfy the court on a balance of probabilities, but what has to appear has to be merely that the [appellant] might if returned be dealt with in a certain way. As it seems to me "might" there does not mean "might" as a matter of mere possibility but it is for this court to say: has the [appellant] satisfied us that there are substantial grounds for thinking that he might be dealt with in a particular way?'
The Divisional Court came to the conclusion that the evidence before it did not satisfy this test.My Lords,despite the reference in the judgments of both the magistrate and the Divisional Court 4 to 'balance of probabilities' neither court applied as the relevant test that it was pot shown to be more likely that the appellant if returned would be detained or restricted than that he would not-which is all that 'balance of probabilities' means. As the relevant test the magistrate paraphrased the words 'he might which appear in the Act as meaning 'there is a reasonable chance that he will'. The Divisional Court 4 expanded them as meaning 'there are substantial grounds for thinking that he might'. For my Part 1 think it only leads to confusion to speak of 'balance of probabilities' in the context of what the court has to decide under s 4 (I) (c) of the Act. It is a convenient and trite phrase to indicate the degree of certitude which the evidence must have induced in the mind of the court as to the existence of facts, so as to entitle the court to treat them as data capable of giving rise to legal consequences. But the phrase is inappropriate when applied not to ascertaining what has already happened but to prophesying what, if it happens at all, can only happen in the future. There is no general rule of English law that when a court is required, either by statute or at common law, to take account of what may happen in the future and to base legal consequences on the likelihood of its happening, it must ignore any possibility of something happening merely because the odds on its happening are fractionally less than evens. For instance, in assessing damages for personal injuries a court is not entitled to ignore the risk of osteo-arthritis developing after the date of the judgment because it accepts medical evidence that the chances of its developing are 40 per cent. It must make reasonable allowance for that risk when it is 40 per cent, and a correspondingly higher allowance when it is 60 per cent. So, too, in determining whether or not to grant a quia timer injunction on the ground that irreparable harm may be caused unless a particular kind of conduct is restrained, the court is not required by law to shut its eyes to the risk of irreparable harm unless it is satisfied that it is fractionally more than 50 per cent. The degree of risk should be an important factor in the court's decision, whether it is more or less than 50 per cent.Paragraph (c) of s 4 (I) of the Act, unlike paras (a) and (b), calls on the court to prophesy what will happen to the fugitive in the future if he is returned. The degree of confidence that the events specified in the paragraph will occur which the court should have in order to justify refusal to return the fugitive, is not determined by the mere use of the subjunctive mood of the auxiliary verb 'may'. It should, as a matter of commonsense and common humanity, depend on the gravity of the consequences contemplated by the section on the one hand of permitting, and on the other of refusing, the return of the fugitive if the court's expectation should be wrong.The general policy of the Act, i e that persons against whom a prima facie case is established that they have committed a crime in a Commonwealth country should be returned to stand their trial there, is departed from if the return of a person who will not be detained or restricted for any of the reasons specified in para (c) is refused. But is departed from only in one individual case. On the other hand, detention or restriction in his personal liberty, the consequence which the relevant words of that paragraph are intended to avert, is grave indeed to the individual fugitive concerned.My Lords,bearing in mind the relative gravity of the consequences of the court's expectation being falsified either in one way or in the other, I do not think that the test of the applicability of para (c) is that the court must be satisfied that it is more likely than not that the fugitive will be detained or restricted if he is returned. A lesser degree of likelihood is, in my view, sufficient; and I would not quarrel with the way in which the test was stated by the magistrate or with the alternative way in which it was expressed by the Divisional Court [6] . 'A reasonable chance', 'substantial grounds for thinking', 'a serious possibility' - I see no significant difference between these various ways of describing the degree of likelihood of the detention or restriction of the fugitive on his return which justifies the court in giving effect to the provisions of s 4 (I) (c). But judged by any of these tests or by applying, untrammelled by semantics, principles of common sense and common humanity which are subsumed by the Act, I can see nothing in the evidence in the instant case to justify discharging the appellant on the ground that 'he might, if returned, be... detained or restricted in his personal liberty by reason of... his political opinions'.As his final ground the appellant relies on the trivial nature of the offence and the passage of time since he is alleged to have committed it. It is sufficient for me to say that I agree with the Divisional Court 6 that there is neither substance nor merit in these contentions. It is better that I should say no more.I would dismiss this appeal.

LORD CROSS OF CHELSEA.

My Lords, I agree with my noble and learned friend, Lord Diplock, that this appeal should be dismissed and with the reasons which he gives for reaching this conclusion.Appeal dismissed.

[1] Page 24, ante, [1971] 1 WLR 459

[2] Page 24, ante, [1971] 1 WLR 459

[3] Page 24, ante, [1971] 1 WLR 459

[4] Page 24, ante, [1971] 1 WLR 459

[5] Page 30, ante, [1971] 1 WLR at 467

[6] Page 24, ante, [1971] 1 WLR 459