USCA1 Opinion
May 23, 1996
United States Court of Appeals
For the First Circuit
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No. 96-1386
UNITED STATES OF AMERICA,
Appellant,
v.
LUI KIN-HONG, a/k/a JERRY LUI,
Appellee.
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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.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
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Before
Torruella, Chief Judge,
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Stahl and Lynch, Circuit Judges.
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Alex Whiting, Assistant United States Attorney, with whom Donald
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K. Stern, United States Attorney, and Susan Hanson-Philbrick,
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Assistant United States Attorney, were on brief, for the United
States.
Harvey A. Silverglate, with whom Andrew Good and Silverglate &
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Good were on brief, for appellee.
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May 16, 1996
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Per Curiam. Before us is an appeal by the United
Per Curiam.
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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.
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Roche, 931 F.2d 169, 175 (1st Cir. 1991); United States v.
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Williams, 611 F.2d 914, 915 (1st Cir. 1979) (per curiam);
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Beaulieu v. Hartigan, 554 F.2d 1, 1 (1st Cir. 1977) (per
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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
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Klein, 46 F.2d 85, 85 (S.D.N.Y. 1930)). "Special
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circumstances" may include a delayed extradition hearing.
Id. at 915; see also United States ex rel. McNamara v.
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Henkel, 46 F.2d 84, 84 (S.D.N.Y. 1912) ("When the examination
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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,
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1385-86 (D. Nev. 1995); United States v. Taitz, 130 F.R.D.
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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;
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McNamara, 46 F.2d at 84. The matter is currently scheduled
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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
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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
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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
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re Extradition of Morales, 906 F. Supp. 1368, 1374-75 (S.D.
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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
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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.
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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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