Extradition

• Author: International Law Group

In the U.S., a federal statute [18 U.S.C. Sections 3181-3196] provides for U.S. extradition law and procedure. From 1977 to June 30, 1997, the U.S.-Great Britain Extradition Treaty governed the international aspects of extradition between the U.S. and Hong Kong. Looking towards China's resumption of control over Hong Kong, the U.S. and Hong Kong concluded the U.S.-Hong Kong Extradition Agreement (HKEA) in 1996. In his transmittal letter to the U.S. Senate, the President noted that the agreement was a "treaty" for purposes of U.S. law.

In 1998, authorities arrested John Cheung in Connecticut pursuant to a Hong Kong extradition request. The Hong Kong government had charged Cheung with criminal fraud in the operation of his consumer retail stores in Hong Kong during mid-1994. Cheung had allegedly bought computer products worth HK$ 2 million from wholesalers and then had absconded with his family without making the installment payments.

Section 3184 confers extradition jurisdiction on federal courts only pursuant to "treaties" with "foreign governments." The Magistrate Judge held that Hong Kong was in fact a "foreign government" under the statute, thus making the HKEA valid and enforceable.

Cheung next petitioned for a writ of habeas corpus. The district court equated "foreign government" with "foreign country," ruling that the U. S. could not extradite Cheung to Hong Kong, a "subsovereign" of China. The court therefore granted Cheung's petition and ordered his discharge from custody.

The U.S. government sought appellate review. The U.S. Court of Appeals for the Second Circuit reverses, remanding the case with directions to vacate the grant of habeas corpus and to enter a certification of extraditability as well as an order of commitment. Under the U.S. Constitution, only the...