ICHIYO UJIIE (formerly named KAZUHIRO YASHIMA) v REPUBLIC OF SINGAPORE

"The two parties and their representatives have agreed to the terms and conditions which are as follows: MALVEST (S) PTE LTD hereby agrees to assist NGAN CONSTRUCTION to secure a discount for the BILL OF EXCHANGE OF US$2,000,000/- Bill of Exchange number: 32140876-86410-54392112 from MALAYAN BANKING BERHAD, after which 90% of the money secured will be refunded to MR ANG YEW KING of NGAN CONSTRUCTION. In assisting NGAN CONSTRUCTION to secure the BILL OF EXCHANGE, MALVEST (S) PTE LTD will receive a 10% commission for the service rendered." The second bill of exchange is couched in identical terms except that it refers to a bill of exchange for $US3 million with a different identification number. There is evidence to the effect that, after the Kuala Lumpur meeting attended by Ms Then, the bills of exchange were created. With the assistance of bank officers, the signatures of the Maybank authorised signatories were forged. There is also evidence that, sometime in February 1993, Mr Yashima spoke to Lee Mong Seng (also known as "Patrick Lee"), a Vice President of the Corporate Division of UOB. Mr Lee had known Mr Yashima for some years. In 1992 he had opened UOB bank accounts at Mr Yashima's request, both for Malvest and for Mr Yashima personally. At that time Mr Yashima had told Mr Lee that he was involved in the development of golf courses in Malaysia and the sale of golf memberships. In February 1993, Mr Yashima allegedly told Mr Lee that there were fees due to him from the sale of golf memberships in Kuala Lumpur, they were payable to him by means of bills of exchange and he wanted the bank to discount the bills of exchange against acceptance by Maybank. In anticipation of the transactions, Mr Lee carried out company searches. They revealed that Malvest's paid up capital was $S2 million. Shortly afterwards it was increased to $S5 million. However, according to the company's Balance Sheet as at 31 December 1993, there were offsetting debts that reduced net current assets, at that time, to $S1.651 million. In early March 1993, Ms Then took the first bill to UOB. She spoke to Mr Lee. Mr Lee introduced her to Ong See Hiang, an Assistant Vice President in the bank's International Division. Mr Ong provided her with a draft of a letter instructing UOB to discount the bill of exchange. Ms Then took it away. In anticipation of her return, it appears, UOB contacted Maybank. On 6 March 1993, a telex arrived that purported to have been sent by Maybank. The telex confirmed that Maybank had accepted the bill on 18 February 1993 and irrevocably undertook to pay the payee or bona fide holder at maturity. There is evidence that this telex was sent, or arranged, by Maybank officers involved in the fraud. Maybank had not, in fact, accepted the bill; it never did so. Ms Then returned to UOB with the draft letter engrossed on Malvest's letterhead. It was signed by Mr Yashima. The letter was headed with a reference to the number and value of the bill of exchange. It read:

"Please discount the enclosed Bill of Exchange duly accepted by Malayan Banking Berhad, Kuala Lumpur to mature on 17th February 1994 for US$2,000,000/-. This amount represents part of the Agency Fees due to us from Ngan Construction." Upon receipt of this letter, Mr Ong arranged for the bill to be discounted. In accordance with instructions given by Malvest, the proceeds were split between two of its accounts with the bank. The procedure adopted in connection with the second bill was the same as that for the first. Once again there was a false confirmation from Maybank and a letter from Mr Yashima on behalf of Malvest, dated 15 March and in identical terms except for the number and value of the bill. On this occasion, UOB was instructed to pay the proceeds into Mr Yashima's personal account. It did so. $S4,703,445 was credited to the account on 15 March. On the same day, Mr Yashima withdrew $S1,863,000 in cash. The evidence includes a copy of a letter purporting to be written by Ang Yew King of Ngan acknowledging receipt of $US1.8 million from Malvest: "being 90% of the discounting of Bill of Exchange number 32140876-86410-54392112, dated 18 February 1993, amounting to $US2,000,000.00. 10% of US$2,000,000.00 will go to Malvest (S) Pte Ltd as commission for discounting the Bill."

The evidence includes an affidavit by Mr Ang in which he says he did not receive this money and that the signature on the letter is not his. He also states that the signatures on the two Memorandums of Understanding,which purport to be his, are not his in fact. At least for present purposes, counsel for the applicant do not dispute that both bills of exchange are forgeries. But they say there is no evidence that their client knew this to be so, so the documents do not satisfy "the sufficient evidence test" in relation to him. In order to put this submission into context, it is necessary to refer to the relevant legislation. The legislation The scheme of the Extradition Act is that a country seeking the extradition from Australia of a person accused of having committed an offence in that country ("the extradition country") must make application to a magistrate for the issue of a provisional arrest warrant (s.12). A person arrested pursuant to a provisional arrest warrant must be brought before a magistrate and remanded, either in custody or on bail, pending consideration by the Attorney General of an extradition request from the extradition country (s.15). Section 16 provides for the Attorney General to give an extradition notice to a magistrate, stating that an extradition request has been received. The notice is not to be given unless the Attorney General is of the opinion that the person is an "extraditable person" (see s.6) in relation to the extradition country and that: "if the conduct of a person constituting the extradition offence, or any of the extradition offences, for which surrender of the person is sought, or equivalent conduct, had taken place in Australia at the time at which the extradition request was received, the conduct or the equivalent conduct would have constituted an extradition offence in relation to Australia." The term "extradition offence" is defined by s.5 by reference to the maximum penalty able to be imposed. Section 16(1)(b) forbids the Attorney General to give an extradition notice if he or she is of the opinion that there is an "extradition objection" in relation to the extradition offence or offences. The term "extradition objection" is explained by s.7: "For the purposes of this Act, there is an extradition objection in relation to an extradition offence for which the surrender of a person is sought by an extradition country if: (a) the extradition offence is a political offence in relation to the extradition country; (b) the surrender of the person, in so far as it purports to be sought for the extradition offence, is actually sought for the purpose of prosecuting or punishing the person on account of his or her race, religion, nationality or political opinions or for a political offence in relation to the extradition country; (c) on surrender to the extradition country in respect of the extradition offence, the person may be prejudiced at his or her trial, or punished, detained or restricted in his or her personal liberty, by reason of his or her race, religion, nationality or political opinions; (d) assuming that the conduct constituting the extradition offence, or equivalent conduct, had taken place in Australia at the time at which the extradition request for the surrender of the person was received, that conduct or equivalent conduct would have constituted an offence under the military law, but not also under the ordinary criminal law, of Australia; or (e) the person has been acquitted or pardoned by a competent tribunal or authority in the extradition country or Australia, or has undergone the punishment provided by the law of that country or Australia, in respect of the extradition offence or another offence constituted by the same conduct as constitutes the extradition offence." In cases where the person is not released from custody or discharged from bail, by direction of the Attorney General or order of a magistrate (see s.17), and does not consent to being surrendered to the extradition country (see s.18), a magistrate must determine the person's eligibility for surrender: see s.19(1). Section 19(2) sets out criteria for determining eligibility for surrender: "(a)the supporting documents in relation to the offence have been produced to the magistrate; (b)where this Act applies in relation to the extradition country subject to any limitations, conditions, exceptions or qualifications that require the production to the magistrate of any other documents - those documents have been produced to the magistrate; (c) the magistrate is satisfied that, if the conduct of the person constituting the offence in relation to the extradition country, or equivalent conduct, had taken place in the part of Australia where the proceedings are being conducted and at the time at which the extradition request in relation to the person was received, that conduct or that equivalent conduct would have constituted an extradition offence in relation to that part of Australia; and (d) the person does not satisfy the magistrate that there are substantial grounds for believing that there is an extradition objection in relation to the offence."

Subsection (3) explains the meaning in para. (a) of "supporting documents":

"(a)if the offence is an offence of which the person is accused - a duly authenticated warrant issued by the extradition country for the arrest of the person for the offence, or a duly authenticated copy of such a warrant; (b)if the offence is an offence of which the person has been convicted - such duly authenticated documents as provide evidence of: (i) the conviction; (ii) the sentence imposed or the intention to impose a sentence; and (iii) the extent to which a sentence imposed has not been carried out; and (c) in any case; (i) a duly authenticated statement in writing setting out a description of, and the penalty applicable in respect of, the offence; and (ii) a duly authenticated statement in writing setting out the conduct constituting the offence."

Subsection (7) deals with authentication of documents: "(7)A document that is sought by or on behalf of an extradition country to be admitted in the proceedings is duly authenticated for the purposes of this section if: (a) it purports to be signed or certified by a judge, magistrate or officer in or of the extradition country; and (b) it purports to be authenticated by the oath or affirmation of a witness or to be sealed with an official or public seal; (i) in any case - of the extradition country or of a Minister, Department of State or Department or officer of the Government, of the extradition country; or (ii) where the extradition country is a colony, territory or protectorate - of the person administering the Government of that country or of any person administering a Department of the Government of that country." Subsections (9) and (10) specify the action that is to be taken in consequence of a finding that the person is or is not eligible for surrender to the extradition country. It will be noted that the criteria for eligibility for surrender include, in s.19(2)(b), reference to the production of documents required by any "limitations, conditions, exceptions or qualifications". Section 11 explains what is meant by the phrase "limitations, conditions, exceptions or qualifications". It provides for regulations that either state that the Act applies in relation to a specified extradition country "subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to a bilateral extradition treaty in relation to the country" or "make provision instead to the effect that this Act applies in relation to a specified extradition country subject to other limitations, conditions, exceptions or qualifications". It is not necessary to refer to subss. (2) and (3) but subss. (4) and (5) are important to the argument: "(4)Where, by virtue of subsection (1) or (3), this Act applies in relation to an extradition country subject to a limitation, condition, qualification or exception that, but for this subsection, would have the effect that a person is not eligible for surrender to the extradition country in relation to an extradition offence for the purposes of subsection 19(2) unless the sufficient evidence test is satisfied, then, that limitation, condition, qualification or exception shall be taken instead to have the effect that the person is not eligible for surrender to that country in relation to that offence for the purposes of subsection 19(2) unless the prima facie test is satisfied. (5)For the purposes of subsection (4): (a) a reference to the sufficient evidence test being satisfied is a reference to the provision of evidence that, if the conduct of the person constituting the extradition offence referred to in that subsection had taken place in a part of Australia, would be sufficient to: (i) justify trial of the person in relation to an offence against a law in force in the part of Australia; (ii) justify committal of the person for trial in relation to such an offence; or (iii) establish a prima facie case that the person committed such an offence; and (b) a reference to the prima facie evidence test being satisfied is a reference to the provision of evidence that, if the conduct of the person constituting the extradition offence referred to in that subsection had taken place in the part of Australia referred to in paragraph (a) of this subsection, would, if uncontroverted, provide sufficient grounds to put the person on trial, or sufficient grounds for inquiry by a court, in relation to the offence. " On 24 November 1988 the Governor General made regulations under the Act. They included reg.6, presumably made in reliance on s.11(1)(b): "6(1) The Act applies in relation to each Commonwealth country subject to the limitation, condition, exception or qualification that the documents required to be produced to a magistrate for the purposes of subsection 19(1) of the Act are, in addition to the supporting documents within the meaning of paragraph 19(2)(a) of the Act, documents that allow the sufficient evidence test to be satisfied. (2) In subregulation (1), a reference to the sufficient evidence test being satisfied is a reference to that test being satisfied as referred to in paragraph 11(5)(a) of the Act."

The Republic of Singapore is, of course, a Commonwealth country. Satisfaction of the "sufficient evidence test" The effect of reg.6, it is agreed between the present parties, is that s.19(2)(b) makes it a condition of Mr Yashima's eligibility for surrender that the documents that were produced to the magistrate "allow the sufficient evidence test to be satisfied". This means that Ms Horler was empowered to order the applicant's surrender for extradition only if the documents placed before her provided evidence, if his conduct had taken place in Australia, sufficient to answer one of the tests set out in s.11(5)(a): that is, evidence that would justify his trial in relation to an offence against a law in force in that part of Australia, justify his committal for trial in relation to such an offence or establish a prima facie case that he had committed such an offence. The difference between evidence sufficient to "justify trial of the person" and "justify committal of the person for trial" is not immediately apparent, though I hazard the view that the former refers to evidence that would be sufficient to justify an ex officio indictment unencumbered by considerations concerning the likelihood of a conviction, whereas the latter picks up legal requirements for committals for trial which include such considerations. Whether or not this is correct, the second test, at least, plainly requires more than evidence that establishes a prima facie case, in the ordinary meaning of that phrase: see Prevato v Governor of Metropolitan Remand Centre (1986) 8 FCR 358 at 378-379. Paragraph (b) confers on the words "prima facie case" an artificial meaning that might be thought to equate it with the tests in para. (a)(i) and (ii). The evidence must "provide sufficient grounds to put the person on trial, or sufficient grounds for inquiry by a court, in relation to the offence". This led a Full Court to comment, in United States of America v Holt (1994) 49 FCR 501 at 504: "If one takes Art VI of the Treaty as applying the 'sufficient evidence test', s.11(4) seems to have to (sic) the effect that that test is replaced by the 'prima facie evidence test'. But if the intention is that the 'sufficient evidence test' should be something different from the 'prima facie evidence test' it is not clear why s.11(5)(a)(iii) seems to posit establishment of 'a prima facie case' as one of the ways in which the 'sufficient evidence test' is to be satisfied. Moreover, what is supposed to be the difference between justifying the trial or committal or trial of a person (s.11(5)(a)(i) and (ii) and Art VI) and providing 'sufficient grounds to put the person on trial, or sufficient grounds for inquiry by a court'(s.11(5)(b))?" In Prevato I expressed the opinion that the phrase "sufficient to justify his trial" imported, in New South Wales, the obligation of the magistrate to determine whether a reasonable jury, properly instructed, "would not be likely to convict the defendant": see s.41(b) of the Justices Act 1902 (NSW). I see no reason to change that opinion and I think it applies equally to subpara. (ii) of s.11(5)(a). I am not sure whether it applies to subpara. (i) as well, but it clearly does not apply to subpara. (iii). This subparagraph was deliberately designed to avoid the vagaries of State and Territorial committal requirements. The Attorney General (Hon. Lionel Bowen) made this clear in his Second Reading Speech on the Bill for the Extradition Act: "Sub-clauses 11(4) and 11(5) operate to unify throughout Australia the test to be applied by courts in determining whether evidence supplied by the requesting country is sufficient to justify the trial of the person sought. These sub-clauses will apply where a request is received from a country with which Australia has an extradition relationship requiring the production of prima facie evidence that the offence was committed. Since arrangements of this sort were entered into there have been amendments to the laws of some Australian States which have had the effect of changing the test of whether a person should be committed for trial. At least one of these changes requires the magistrate to assess what a hypothetical jury might decide at trial. The effect of the application of this test to an extradition case is to permit the magistrate to postulate as to the potential outcome of a foreign trial and clearly has the effect of abrogating the rule that extradition proceedings should not be determinative of the guilt or innocence of the person sought. The test set out in the Bill requires the magistrate to form the view that the evidence provided would, if uncontroverted, provide sufficient grounds to put the person on trial. In other words, the magistrate must determine that the evidence provided is sufficient to warrant a court inquiry in relation to the offence or alleged offence. This test will be applied throughout Australia and will therefore overcome the problem, for example, of two or more co-conspirators being arrested in different States and having the magistrates coming to different conclusions on the basis of the same evidence." See House of Representatives Debates, 28 October 1987, p.14.

Once it is seen that subpara. (iii) omits the gloss imposed by provisions like s.41(b) of the Justices Act, there is no reason to doubt that the existence of a prima facie case will generally provide "sufficient grounds" to put the person on trial or for an inquiry by a court. The case against the applicant Notwithstanding counsel's submissions to the contrary, I am of the opinion that, if the conduct constituting the alleged offences had taken place in Australia, there would be sufficient grounds to put the applicant on trial. There is no doubt that the alleged conduct would constitute an offence under New South Wales law: see ss.176A, 178BA, 178BB and 393 of the Crimes Act 1900 (NSW). There is no evidence directly implicating Mr Yashima in the fraud but there is a strong circumstantial case against him. First, it is clear from Malvest's accounts that its business was modest. The 1993 profit and loss statement discloses only one source of income, identified as "Commission" in the sum of $S1.92 million. According to Malvest's accountant, this income came from two transactions, one of them being commission on the discounting of the two subject bills of exchange. This item was said to be worth $S800,000 (about 10% of the combined value of the bills). At about the time the bills were forged, Mr Yashima told Mr Lee that he expected to receive moneys by way of bills drawn on Maybank. There is no evidence that Malvest ever received other Maybank bills. The other 1993 commission payment is described by Malvest's accountant as "Commission and gain from participating in a joint venture with IC Chen/Taipei in the development of temple". It does not seem to have anything to do with Malaysia or golf memberships. There may be another explanation but, in its absence, I think a court would be entitled to infer from the conversation between Mr Yashima and Mr Lee that Mr Yashima had advance knowledge of the arrival of the bills. Second, there is evidence that Mr Yashima gave three different explanations for the payments represented by the bills. According to Mr Lee, Mr Yashima told him the payments were the proceeds of sales of golf memberships. The letters to UOB of 8 March and 15 March signed by Mr Yashima describe each payment as "part of the Agency fees due to us from Ngan Construction". This implies that each payment was part of a larger sum, property described as "agency fees" and all being due to Malvest; not that it was a larger sum out of which Malvest was entitled only to retain a commission. Admittedly, these letters copied a draft prepared by Mr Ong; but he presumably drafted the letter in reliance on Ms Then's instructions. Anyway, both letters were signed by Mr Yashima. He must be assumed to have read them. They were both short and they related to large payments, by Malvest standards. In the absence of an explanation, a court would be entitled to assume that an innocent man in Mr Yashima's position would have corrected any error in the draft. Finally, as mentioned, the $S800,000 brought to the company's accounts in respect of the bills was described as "commission". This description was consistent with the two memorandums of understanding signed by Mr Yashima, as a witness to Ms Then's signature, but not with the earlier descriptions. Third, if Malvest had taken the bills in good faith believing them to be genuine and discounting them for a fee, one would expect Mr Yashima to arrange immediate, direct payment of the value of the bills, less 10%, to Ngan. He did not do this. The proceeds of the first bill were paid into Malvest's account. It is not possible to say what proportion of those proceeds reached Ngan. Any payments seem to have been made in cash, a curious circumstance in itself. Possibly the cash withdrawn on 15 March went to Ngan. But, if the arrangement was an honest transaction involving a 10% commission, why was this payment only about 40% of the amount received for the bill? The position in relation to the second bill is even more curious. It seems inconsistent with the transaction, as represented in the company's accounts, that Mr Yashima should have instructed UOB to pay the proceeds of this bill into his personal bank account. Finally, it is reasonable to wonder why, if Mr Yashima considered the bills were genuine, he thought Ngan needed Malvest at all. There seems to be no reason why Ngan could not have discounted the bills itself, if they were genuine; with any bank, even Maybank itself. Why pay a commission unnecessarily? Even at 10% it amounted to $US500,000. Of course, if the agreed commission was 45%, as Mr Idris claims, the question gains even more force. It is inconceivable that Mr Yashima thought his company was being allowed a 45% commission to negotiate the discounting of two valid bills drawn on a reputable bank. The applicant's counsel mentioned two factors that militated against the inference that their client was aware of the fraud. First, one of the witnesses spoke of the person who drew the original memorandums of understanding "posing as a lawyer"; the suggestion being that Malvest was to be deceived. Ngan business cards were also printed. Second, there is evidence that Malvest signed the bills. It may therefore have made itself liable for their value and, if the 1993 accounts are to be believed, it had some assets after the transactions were completed. I agree these are matters to be taken into account in Mr Yashima's favour. How much weight they should be accorded is something to be determined in the light of the whole of the evidence that emerges at the trial, if one ensues. I do not, myself, think they are of such weight as to displace the compelling prima facie inference of guilty knowledge that arises from the matters I have mentioned. Extradition objection - prejudice at trial Two other points should be mentioned. First, counsel sought to tender evidence to the magistrate concerning difficulties that Mr Yashima would face in preparing for a trial in Singapore. The magistrate rejected the tender. I do not think that the tender of such material is precluded by s.19(5) of the Act. That subsection provides that, in the proceeding before the magistrate, the person: "is not entitled to adduce, and the magistrate is not entitled to receive, evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought". Evidence concerning possible prejudice is not "evidence to contradict an allegation" of relevant conduct. If such evidence could not be adduced, it might be impossible for the person to demonstrate the existence of an "extradition objection" as contemplated by s.7. However, counsel frankly stated that the evidence they had tendered to the magistrate, and wished to adduce before me, did not indicate possible prejudice to their client on account of his race, religion, nationality or political opinions. They said they could only justify the tender if the words "prejudiced at his or her trial" in s.7(c) are properly to be construed as unqualified by the words "by reason of his or her race, religion, nationality or political opinions". They offered no authority for such a construction. In my opinion, it is untenable. As the comma after "liberty" makes clear, the qualifications attach to each of the verbs "prejudiced", "punished" and "detained" and the phrase "restricted in his or her personal liberty". This makes sense in policy terms. The possibility of prejudice at a trial can never be ruled out. If it was a sufficient objection to an extradition that there was a possibility of prejudice at the trial, regardless of the reason, nobody could be surrendered. The supporting documents Counsel contend that the "supporting documents" are deficient. First, they say there is no "duly authenticated warrant issued by the extradition country for the arrest of the person for the offence", as required by s.19(2)(a) read with s.19(3)(a). The Singapore warrant is in evidence. It is cryptic. It describes the offences only by reference to the relevant sections of the Penal Code. But those sections are consistent with the evidence of Mr Wong and the warrant notes that there are two offences. The warrant bears the signature of the issuing magistrate. He has sworn an affidavit deposing to its issue. He regards the warrant as valid under Singapore law. That is all that is required. The function of s.19(3)(a), as I understand the legislation, is to prevent the extradition from Australia of a person who would not be liable to arrest in the extradition country itself. Contrary to the submission of counsel for the applicant, there is no justification for reading into s.19(3)(a) the requirements of Australian law concerning the content of warrants. To do so this might be to stultify the operation of the Act in relation to jurisdictions that use different documentation. Finally, counsel put a submission not made to the magistrate: that the supporting documents do not contain "a duly authenticated statement in writing setting out the conduct constituting the offence". There is nothing in this point. The documents before the magistrate included a lengthy affidavit of Lim Liang Boo, the police officer in charge of the investigation into the alleged offences, setting out in detail the allegations made against the applicant. The application should be dismissed with costs. I certify that this and the preceding twenty-two (22) pages are a true copy of the Reasons for Judgment of the Honourable Justice Wilcox. Associate: Dated: 16 October 1995 APPEARANCES Counsel for the Applicant: B Donovan QC and P Chalkin Solicitors for the Applicant: Brassil & Co Counsel for the Respondent: G Farmer

Solicitors for the Respondent: Commonwealth Department of Public Prosecutions Date of hearing: 16 October 1995