Raichandani & Anor v Government of the Hong Kong

Under section 82 of the Extradition Act 2003, passage of time bars extradition only where returning the person would be unjust or oppressive. Risk of prejudice to the trial and hardship caused by changed circumstances are distinct, though overlapping, considerations. Delay caused by flight, concealment or evasion of arrest will ordinarily weigh heavily against relief. The court must nevertheless assess all the circumstances. Where extraditees leave in flight from criminal process, remain outside the requesting state and thereby contribute substantially to delay, evidential prejudice is unlikely to make extradition unjust. Family disruption and hardship, including separation from dependent children, will not ordinarily amount to oppression without striking or unusual features.

The appellants faced extradition to Hong Kong on fraud and conspiracy charges concerning the collapse of their company in 1998. They argued that the intervening period, including years spent living openly in London, made extradition unjust or oppressive under section 82 of the Extradition Act 2003.

A Senior District Judge found that they had left Hong Kong in flight from criminal process, had evaded arrest until 2006, and had contributed substantially to the delay. He sent the case to the Secretary of State. The appellants appealed under section 103. The central issue was whether the delay created an unacceptable risk of trial prejudice or hardship.

1. Appeal dismissed. The Senior District Judge was entitled to conclude that extradition was not barred by passage of time.
2. Section 82 requires consideration of whether extradition would be unjust or oppressive. Following Kakis v Government of the Republic of Cyprus [1978] 1 WLR 779, injustice concerns principally prejudice in the conduct of the trial, while oppression concerns hardship arising from changes in the accused’s circumstances. The concepts may overlap.
3. The court pragmatically considered the appeal on the approach in Goodyer and Gomes v Government of Trinidad and Tobago [2007] EWHC 2012 (Admin), under which deliberate flight was one factor in the overall assessment. It assumed, without deciding, that Krzyzowski v Poland [2007] EWHC 2754 (Admin) was correct that deliberate flight had to be proved to the criminal standard.
4. The findings that the appellants had left precipitately in fear of criminal process and had evaded arrest until reaching the United Kingdom were supported to the criminal standard. The greater part of the delay was attributable to them. Their residence in London without concealing their identities did not remove the significance of their continuing failure to return to Hong Kong.
5. The asserted loss of documents and witnesses did not establish injustice. The appellants had left knowing of the company’s financial difficulties and had failed to preserve relevant material. Their principal defence concerned knowledge of the fraud, rather than proving the genuineness of individual transactions.
6. Family disruption and hardship did not amount to oppression. The children were practically near-adult, and there were no striking or unusual features making extradition disproportionate, applying Jaso v Central Criminal Court No. 2 Madrid [2007] EWHC 2983 (Admin).

1. High Court (Administrative Court): appeal from the Senior District Judge, City of Westminster Magistrates’ Court, dismissed. The decision to send the case to the Secretary of State was upheld.