
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                                         -2-                                          2            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                                         -3-                                          3            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                       _______    ______________                                         -4-                                          4            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                                         -5-                                          5            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.                                         -6-                                          6            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.                                         -7-                                          7
