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