CATCHWORDS EXTRADITION - Effect of provisions with respect to Commonwealth countries in relation to Singapore - meaning of requirement in Regulation 6 of Extradition (Commonwealth Countries) Regulations that the documents "allow the sufficient evidence test to be satisfied" - statutory substitution of "prima facie evidence test" - comment on drafting of the Act and the Regulations - discussion of effect of statutory test in the context of a case alleged on circumstantial evidence - effect of criminal onus on prima facie case - satisfaction of test in relation to counts of abetment to cheat under Penal Code of Singapore. Extradition Act 1988, ss.5,11,19 Extradition (Commonwealth Countries) Regulations, regs.3,6 United States of America v Holt (1994) 49 FCR 501 Unkel v Director of Public Prosecutions (1990) 95 ALR 44 Thorp v Abbotto (1992) 34 FCR 366 May v O'Sullivan (1955) 92 CLR 654 Wentworth v Rogers [1984] 2 NSWLR 422 Plomp v The Queen (1963) 110 CLR 234 Chamberlain v The Queen (1983) 153 CLR 514 ICHIYO UJIIE (FORMERLY NAMED KAZUHIRO YASHIMA) V. REPUBLIC OF SINGAPORE NG. 823 of 1995 Lockhart, Burchett & Lindgren JJ. Sydney 16 May 1996 IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) NG 823 of 1995 ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: ICHIYO UJIIE (FORMERLY NAMED KAZUHIRO YASHIMA) Appellant AND: REPUBLIC OF SINGAPORE Respondent CORAM: Lockhart, Burchett and Lindgren JJ. PLACE: Sydney DATE: 16 May 1996 ORDERS OF THE COURT THE COURT ORDERS THAT the appeal be dismissed. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. G 823 of 1995 ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: ICHIYO UJIIE (formerly named KAZUHIRO YASHIMA) Appellant AND: REPUBLIC OF SINGAPORE Respondent COURT: LOCKHART, BURCHETT and LINDGREN JJ. DATE: 16 MAY 1996 PLACE: SYDNEY REASONS FOR JUDGMENT LOCKHART J. I agree with the reasons for judgment of Burchett J. and the orders which he proposes. I certify that this page is a true copy of the reasons for judgment herein of the Honourable Justice Lockhart. Associate Dated: 16 May 1996 IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) NG 823 of 1995 ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: ICHIYO UJIIE (FORMERLY NAMED KAZUHIRO YASHIMA) Appellant AND: REPUBLIC OF SINGAPORE Respondent CORAM: Lockhart, Burchett and Lindgren JJ. PLACE: Sydney DATE : 16 May 1996 REASONS FOR JUDGMENT BURCHETT J.: The appellant appeals against a decision confirming a Magistrate's order by which it was determined, pursuant to s. 19(9) of the Extradition Act 1988, that he was eligible to be surrendered to the Republic of Singapore for trial upon two counts of abetment to cheat punishable under ss. 109 and 420 of the Penal Code of Singapore. Singapore is a Commonwealth country that is an "extradition country", within the meaning of s. 5 of the Extradition Act, by virtue of a declaration made by reg. 3 of the Extradition (Commonwealth Countries) Regulations (Statutory Rules 1988 No. 281). By s. 11(1) of the Extradition Act it is provided: "The regulations may: (a) state that this 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, being a treaty a copy of which is set out in the regulations; or (b) 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." Regulation 6 of the Extradition (Commonwealth Countries) Regulations is intended to implement the power conferred by s. 11(1)(b) of the Act. It does so in general terms, referring to "each Commonwealth country", but no point was taken suggesting that such a reference does not relate to "a specified extradition country" within the meaning of s. 11(1)(b). Regulation 6 provides: "(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." It will now be apparent that, in an application by the Republic of Singapore to extradite a person from Australia, the Regulations provide for a requirement additional to the requirements of the Act (to be found in s. 19), and that this additional requirement is that there be documents allowing "the sufficient evidence test to be satisfied". To understand what that means, reg. 6(2) directs attention to s. 11(5)(a) of the Act. However, this reference to that provision is most confusing, for subs. (5)(a) does not at all provide a meaning for the application of "the sufficient evidence test"; rather, subs. (5)(a) must be read with subs. (4) and subs. (5)(b), and when it is so read, the result is the abandonment of a "sufficient evidence test" and the substitution of a "prima facie evidence test". It is unfortunate, to say the least, that legislation so important to individual liberty as the Extradition Act should be bedevilled by a complex and puzzling maze of provisions of this kind - a maze that led the trial Judge into what counsel for the respondent submitted was an unnecessary and misdirected examination of the terms of s. 11(5)(a). For the purposes of a case such as the present (and not only in relation to Singapore, but all Commonwealth countries), the reference to subs. (5)(a) in reg. 6 is an invitation to turn into a blind section of the maze. It is subs. (4), the language of which subs. (5) merely interprets, which provides the way out. With that introduction to the provisions, I now set out subss. (4) and (5) of s. 11: "(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 evidence 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." As the trial Judge pointed out, a Full Court remarked on the confusion produced by these provisions in United States of America v Holt (1994) 49 FCR 501 at 504. I agree with the observation there made, by reference to the remarks of Pincus J. in Unkel v Director of Public Prosecutions (1990) 95 ALR 44 at 48, "that it seems `unfortunate that it is so difficult for a magistrate to ascertain what it is that he has to decide, when confronted with an extradition application'". However, I think a meaning does emerge, though somewhat darkly, from these provisions. What the draftsman of the Act intended, by setting out such a series of differing formulations, was to catch up the various ways in which the test for the sufficiency of the evidence has been, or might have been, expressed in limitations, conditions, exceptions or qualifications made applicable in treaties or by virtue of s. 11(1) or s. 11(3) in particular cases. Subsection (5)(a) traces each of three formulations that might have been applicable, and provides that any one of them answers the statutory expression, "the sufficient evidence test"; and subs. (4) then provides that, in a case where this test must be satisfied, there shall be substituted for it another test, now formulated in the Act under the name "the prima facie evidence test", a definition of which is contained in subs. (5)(b). The clue to all this is to be found by one who walks through the maze warily, observing that subs. (5)(b) is not an interpretation provision for the purposes of subs. (5)(a), but, as the introductory words of subs. (5) show, "[f]or the purposes of subsection (4)". The way of understanding these provisions has actually been already explained, somewhat more succinctly than I have done, by Pincus J. in Unkel (supra, at 46-47). See also Todhunter v United States of America (1995) 57 FCR 70 at 91-92. The consequence is that s. 11(5)(b), a definition of "the prima facie evidence test", provides the test to be satisfied in the present case, notwithstanding the reference in the Regulations to s. 11(5)(a) and to "the sufficient evidence test" which it defines. The question to be asked is whether the evidence provided in support of the appellant's extradition would, if his conduct had taken place in a part of Australia, and if the evidence were uncontroverted, provide sufficient grounds to put him on trial, or sufficient grounds for inquiry by a court, in relation to the offence. What that test means is elucidated by Thorp v Abbotto (1992) 34 FCR 366. There, a Full Court considered the duty of a Magistrate at a committal hearing in a case where the evidence raised conflicting hypotheses, on the one hand consistent with guilt, and on the other hand consistent with innocence. Lockhart J. (at 372) referred to the earlier Full Court decision in Forsyth v Rodda (1989) 87 ALR 699 at 721, and concluded that the Magistrate, in such a case, was "not necessarily bound to discharge the defendant". Gummow J. (at 382) took the same view, saying: "The existence of a hypothesis which is consistent with innocence does not mean that the jury necessarily would entertain a reasonable doubt as to the guilt of the respondent. The jury might not consider the hypothesis reasonable. It might take a different view of the facts so as to exclude that hypothesis." Their Honours found support for their approach to the problem in Doney v The Queen (1990) 171 CLR 207 at 214-215, where it is stated in the joint judgment of the High Court: "It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty." It is necessary to preserve the distinction between a state of the evidence upon which a conclusion of guilt would be open, and a state of the evidence upon which a Tribunal making the ultimate decision would actually be prepared to draw that conclusion. For this distinction, Australian lawyers normally cite the decision of the High Court in May v O'Sullivan (1955) 92 CLR 654 at 658, where Dixon C.J., Webb, Fullagar, Kitto and Taylor JJ. said: "When, at the close of the case for the prosecution, a submission is made that there is `no case to answer', the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a `case to answer' has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the Tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. This is a question of fact." Of course, even as to the question of law whether a finding of guilt is open upon the evidence, the onus of proof beyond reasonable doubt, which would have to be satisfied in making that finding, must be taken into account. That was made clear, if it was ever obscure, by the Court of Appeal of New South Wales in Wentworth v Rogers [1984] 2 NSWLR 422 at 429, where Glass J.A. was concerned with the very question that s. 11(5)(b) raises, but in respect of a committal proceeding in New South Wales. He said: "The powers of the magistrate at the close of evidence for the prosecution are not open to doubt ... . He is required to rule upon the sufficiency of the evidence. ... It is not his function to weigh the evidence or assess its acceptability whether in relation to the character of the evidence itself or the credibility of the witnesses who gave it. He is required to assume that it is accepted without reservation by a jury: Jayasena v The Queen [1970] AC 618 at 624. Upon that assumption he asks himself whether a jury accepting all the prosecution evidence could lawfully convict the defendant, May v O'Sullivan [supra], i.e. could acting reasonably be satisfied of the defendant's guilt beyond reasonable doubt. Another formulation of the question is whether the evidence adduced by the prosecution is capable of producing satisfaction beyond reasonable doubt in the minds of a reasonable jury. Whether he would be so persuaded by the evidence to that degree or at all is not to the point. If he is of opinion that an inference of guilt may properly be drawn, the evidence is sufficient and a prima facie case has been made out." Samuels J.A. put the matter similarly at 435-436. When I turn to the facts of this case, it will become apparent that the only question is whether sufficient circumstantial evidence has been provided to allow a court to infer a vital ingredient of the offence alleged, namely, the appellant's guilty knowledge and intent. In a criminal case depending on circumstantial evidence, there is a rule "that you cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances": Plomp v The Queen (1963) 110 CLR 234 at 243, per Dixon C.J. But, for the reasons I have just endeavoured to state, the question we have to decide is not whether the Court would find the appellant guilty; it is whether the tribunal of fact could so find. In Plomp, where a jury, relying on circumstantial evidence, had convicted the applicant of the murder of his wife, the problem was examined in connection with an argument that the evidence was insufficient to sustain the conviction. Menzies J. said (at 247): "[T]he question now is not whether this Court thinks that the only rational hypothesis open upon the evidence was that the applicant drowned his wife. It is rather whether this Court thinks that upon the evidence it was open to the jury to be satisfied beyond reasonable doubt that the death of the deceased was not accidental but was the work of the applicant." That statement, although directed to the situation after a verdict, expresses the law which is also applicable at the stage where committal is being considered. On the other hand, the statements made in Chamberlain v The Queen (1983) 153 CLR 514 at 536 (per Gibbs C.J. and Mason J.) and 599 (per Brennan J.) are directed to the basis on which the jury is required to consider the matter in reaching a conclusion upon guilt or innocence. Undoubtedly, as it was put in the former passage, the jury, before convicting upon circumstantial evidence, must find the circumstances "exclude any reasonable hypothesis consistent with innocence". The documents produced to the Magistrate in this case tell a story of fraud. That is not in dispute. Some time in 1991, a Malaysian named Idris, whose affidavit is among the documents, met in Kuala Lumpur a "well dressed Chinese man" who introduced himself as K.L. Wong. Mr Wong was also known as Henry Wong, and he used too the name Ang Yew Kim or King. It appears his real name was Nga Sook Khoon. Nga Sook Khoon professed to be interested in foreign exchange dealings, and Mr Idris, who worked as a broker, introduced him to a bank clerk named Abdul Hardee Bin Ibrahim (known as "Hardee"), who worked at Malayan Banking Berhard (known as "Maybank"), a Malaysian bank with a branch that is called in the evidence the Wisma Sime Darby branch in Kuala Lumpur. As events showed, Nga Sook Khoon was able to corrupt Hardee and, through him, other bank officers named Saufee and Bakhi who also worked at the Wisma Sime Darby branch. In December 1992, Mr Idris began to work for Nga Sook Khoon, answering telephone calls in an office at Kuala Lumpur, and also purchasing stationery. In January 1993, Nga Sook Khoon arranged to open a current account under the name of Ngan Construction with Maybank at the Wisma Sime Darby branch. He arranged, too, to have Ngan Construction registered at the Registry of Companies. At this stage, Mr Idris was present during a discussion between Nga Sook Khoon and two bank officers named Sazali and Nasaruddin, both of whom worked in the head office of Maybank. The discussion concerned telex transmission of a confirmation to be sent from the Wisma Sime Darby branch of Maybank, through its head office, to an overseas bank. Nasaruddin was to assist. Mr Idris describes obtaining rubber stamps and printed forms required to enable bills of exchange to be prepared for Ngan Construction. This was shortly before 20 February 1993. Then, on an occasion between 20 February 1993 and 24 February 1993, three persons whom Mr Idris understood to represent a Singapore company, Malvest (Singapore) Private Limited ("Malvest"), met Nga Sook Khoon at a restaurant in Kuala Lumpur. They included a Chinese woman Vivien Then, an old man said to be Taiwanese, and an old lady. The latter two have not been identified. But Vivien Then is an important person in this case because she was plainly a key figure in the frauds which were perpetrated, and at the same time she is a person who worked with the appellant. The appellant was the chairman of Malvest, while she has been variously described in the documents as his secretary or as the general manager of the company. The discussion at the restaurant was about Malvest receiving bills of exchange from Ngan Construction. It was agreed, according to Mr Idris's account, that after the "Bill of Exchange had been discounted at United Overseas Bank in Singapore, Ngan Construction would get 55% of the face value of the Bill of Exchange. The balance was to go to Malvest of Singapore." Nga Sook Khoon said "that he had bank officers who would ensure that the discounting of the bill of exchange transaction would go through." During February 1993, numbers of cards were printed in the name Ngan Construction. Mr Idris arranged this, he said, "because Pandu [a person involved] and K.L. Wong [i.e. Nga Sook Khoon] had planned to go [to] Singapore to meet the Malvest people to finalise discussions on the discounting of the bills of exchange. He wanted their name cards to present to the Malvest people." Within days of receiving the cards, Nga Sook Khoon, with others, visited Singapore. On 6 March 1993, Hardee brought to the office, where he met Nga Sook Khoon, some Maybank letterhead and the rubber stamps of two Maybank officers. There was discussion about typing an instruction on the letterhead to the head office of Maybank "to proceed with the transaction to discount the bill of exchange with the United Overseas Bank in Singapore." It was said the bill of exchange was for US$2 million. The signatures of two Maybank officers were forged by Hardee, who copied them from two of the bank's specimen signatures which he had brought with him. What was fabricated was a request on Maybank letterhead dated 6 March 1993, purporting to come from the Wisma Sime Darby branch and addressed to the bank's Head Office Communication Centre, to have a telex sent to United Overseas Bank Limited at Singapore. This telex was to confirm, on behalf of the Maybank Wisma Sime Darby branch, the acceptance on 18 February 1993 of bills of exchange issued by Ngan Construction. An irrevocable undertaking was added "to pay the payee or bona fide holder of the said bill at maturity on 17/02/1994." On 8 March 1993, Nga Sook Khoon left for Singapore, returning to say that the transaction had been successful, whereupon he paid Mr Idris in Malaysian ringgit the sum of MR$3,000.00. Mr Idris goes on to describe a further transaction involving a second bill of exchange in the sum of US$3 million, Hardee again forging the signatures of two Maybank officers. The affidavit of Mr Idris is long and detailed. It tells the story, from the Kuala Lumpur end, of the fraudulent transactions, and of course that is only part of the story. Other evidence, to which I shall turn, details events in Singapore. But it is already clear that Maybank's purported acceptances of the two bills of exchange, apparently drawn by Ngan Construction in favour of Malvest, were forgeries. Indeed, there is evidence that even the signatures appearing as those of signatories for the drawer were false. At least one was signed by Nga Sook Khoon himself, though not with his own name. Elaborate arrangements were made to have the acceptances of these bills confirmed, and it transpired that corrupted bank officers at the Wisma Sime Darby branch were able to send telexes to Singapore falsely answering queries, so as to ensure the bills were treated as genuine. However, counsel for the appellant point out that his name nowhere emerges in the 49 paragraphs of Mr Idris's affidavit, although numbers of other persons are identified. According to Mr Idris, the "master mind of the case" was Nga Sook Khoon, who later, in a statement to the Singaporean Police, accepted this description of himself. And the person who was repeatedly in contact with Nga Sook Khoon on behalf of Malvest was Vivien Then. She was sometimes accompanied by some Chinese persons, but never by the appellant, who is Japanese. On this basis, the appellant argues that the evidence of Mr Idris permits of an hypothesis consistent with innocence, namely, that the appellant (then known as Mr Yashima) was himself a victim of a conspiracy involving Vivien Then. I shall return to this issue after referring to the evidence of what happened in Singapore. But one thing should be noted at this stage; although Mr Idris does not mention Mr Yashima, he does say that the conspiratorial agreement reached between 20 February 1993 and 24 February 1993 was that "Ngan Construction would get 55% of the face value of the Bill of Exchange" only, while the "balance was to go to Malvest of Singapore." Malvest, as other evidence shows, was wholly owned by Mr Yashima and his wife. I now turn to the evidence relating to events in Singapore. An affidavit of Lee Mong Seng (also known as Patrick Lee), a Vice President of the Corporate Banking Division of the United Overseas Bank Ltd ("UOB"), Singapore, whose work at the bank is not concerned with bills of exchange, states that in 1989, through another customer, he came to know the appellant (to whom he refers as "Yashima") and Vivien Then. During 1992, he says, Yashima established his company Malvest, "which he told me was involved in the development of golf courses in Malaysia and the sale of the golf memberships". Mr Lee adds: "I subsequently came to know Vivien Then whom [sic] Yashima told me is his secretary". Mr Lee then says: "Some time in February 1993, Yashima told me that there were some membership fees due to him from the sale of golf memberships in Kuala Lumpur. He also told me that they were payable to him by means of Bill of Exchange. He requested me to discount the Bills of Exchange against acceptance by Malayan Banking Berhard, Kuala Lumpur." There was an explanation that Yashima approached Mr Lee "as he had no dealings with the Bills Department". Mr Lee referred the request to one Soh Chee Seng of the International Trade and Remittance Services Division of UOB. After he had advised the appellant, Mr Lee said, "Yashima told me that he would send Vivien Then to deal with the documentation relating to the Bill of Exchange." Subsequently, Vivien Then saw Mr Lee, bringing a bill of exchange purportedly issued by Ngan Construction for US$2 million payable to Malvest, the paying bank being Maybank. Vivien Then said "that the US$2 million was the amount due to Malvest for golf memberships". Mr Lee continued: "She said that Malvest would like to discount the said Bill of Exchange with UOB." Apparently, the form of bill of exchange then brought to the bank was not satisfactory, and Soh Chee Seng gave Vivien Then a sample of what was required. About 8 March 1993, Vivien Then came back to the bank to see Mr Lee with the revised form of bill of exchange for US$2 million, which appeared to have been duly accepted by Maybank. There was, however, no endorsement by Malvest, and the bill was returned to Vivien Then to have that attended to. At the same time, the bank required Malvest "to provide us with a letter requesting us to accept the said bill of exchange for discounting". The form of letter was drafted by a bank officer, Henry Ong, and handed to Vivien Then. He also gave her forms for Malvest to fill out by way of collection instructions. Later on the same day, Vivien Then returned with the bill of exchange, now duly endorsed by Yashima on behalf of Malvest. She also brought with her two letters from Malvest addressed to UOB, dated 8 March 1993, signed by Mr Yashima as chairman of Malvest. The first letter, based on Mr Ong's draft, read: "Please discount the enclosed Bill of Exchange duly accepted by Malayan Banking Berhard, 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." The second letter requested the bank, upon discounting the bill, to exchange US$1 million to Singapore dollars, to be credited to a current account of Malvest. The bill was then discounted at a margin of 1% above Singapore Interbank Offer Rate, and of the proceeds US$1 million was converted to S$1,646,500.00 and credited to the Malvest account nominated, while the balance of US$909,895.83 was credited to a Malvest United States dollar account. The bill of exchange so discounted was dated 18 February 1993; it had purportedly been drawn by Ngan Construction in favour of "the order of Malvest (Singapore) Private Limited" in the sum of US$2 million, to be paid on 17 February 1994; and it purported to have been accepted on 18 February 1993 by Maybank. According to Mr Lee, the appellant telephoned him on the following day, that is, on 9 March 1993, to advise that he would be sending Vivien Then with a cheque "to encash the money". This was apparently a reference to the Singapore dollars into which US$1 million of the sum had been exchanged. In fact, this very large sum was withdrawn in cash by Vivien Then. On 10 March 1993, a sum of US$609,544.54 in the Malvest United States dollar account was exchanged into Singapore dollars in the sum of S$1,003,797.95, and that sum was credited on the same day to a Malvest current account with UOB. A cash cheque was then drawn for S$815,000.00 and the cash was credited to the appellant's personal account on 11 March 1993. At some time in the middle of March 1993, according to Mr Lee, the appellant telephoned him again "and requested UOB to discount another bill of exchange for US$3 million which he said was related to the payment of golf membership fees due to Malvest." He asked for the proceeds to be credited to his personal account. He said that he would again send Vivien Then with the bill of exchange. Later that day, she brought a further bill of exchange differing from the earlier one only in that the amount was now US$3 million. Again there were letters signed by the appellant on behalf of Malvest, each of which was dated 15 March 1993, one making the same statement as before, that the amount represented part of the agency fees due to Malvest from Ngan Construction, and the other requesting exchange into Singapore dollars and credit to the appellant's bank account. Both were again signed by the appellant. On the same day, the second bill of exchange was discounted by UOB, the proceeds in the sum of S$4,703,445.00 being credited as directed. In each case, Malvest's bank had requested confirmation from Maybank, and in each case Maybank had confirmed that it had accepted the bill of exchange. However, on 20 April 1993, Maybank head office advised UOB that the bills of exchange were forgeries. This discovery had been made when Maybank's Singapore branch had checked with its head office in Kuala Lumpur, after the bills had been discounted, and the signatures attesting the acceptances by the bank were found not to be genuine. The evidence includes an affidavit of Ngoh Geoh Eng, who was employed by Malvest (the name of which was changed in June 1994 to Wisely Investment Pte Ltd) between 26 October 1992 and 31 August 1994. The directors were Mr and Mrs Yashima and one Ong. She stated that the General Manager was Vivien Then. The witness recalled being involved with Vivien Then and the Project Manager of the company, a Mr Kobayashi, in the cashing on 9 March 1993 of the cheque for S$1,646,500.00 drawn on Malvest's account. When they returned to Malvest's office with the money, there was a Chinese man unknown to the witness in Mr Yashima's office. On Mr Yashima's instructions, the witness noted down on a photocopy of the cheque that S$1,390,000.00 "was given to a Mr Ang Yew King also known as William or Henry". Other details were noted too, including the payment of S$66,000.00 to Mr Yashima. The witness also recalled that on 15 March 1993, when a further amount of S$1,863,000.00 was withdrawn in cash and the money was brought back to the office, the same Chinese man unknown to the witness was present in the office. Subsequently, the appellant told the witness "that the unknown Chinese man was known as William or Henry". It will be remembered that Nga Sook Khoon was known to Mr Idris, among other names, as Henry Wong. However, the witness was not able in January 1995 to identify a photograph of Nga Sook Khoon. During an audit of Malvest's accounts which took place in May 1994, the appellant provided the witness with a photocopy of a document headed: "BILL OF EXCHANGE MEMORANDUM OF UNDERSTANDING". The document was dated 9 March 1993, and named as parties to it a Mr Ang Yew King of Ngan Construction, Kuala Lumpur, and Malvest. It provided: "MALVEST (S) PTE LTD hereby agree to assist NGAN CONSTRUCTION to secure a discount for the BILL OF EXCHANGE of US$3,000,000/- ... from [MAYBANK] dated 11th March 1993, after which 90% of the money secured will be refunded to MR ANG YEW KING of NGAN CONSTRUCTION. In assistang [sic] NGAN CONSTRUCTION to secure the BILL OF EXCHANGE, [MALVEST] will receive a 10% commission for the service rendered." The document was purportedly executed by Mr Ang Yew King, and by Malvest by an authorized signatory Vivien Then. The appellant signed as a witness. The manner of his doing so does not make it entirely clear, but the document is certainly open to the construction that he signed as witness to both the other signatures. The evidence shows that an almost (but not quite) identical document exists, dated 15 February 1993, in respect of the bill of exchange for US$2 million. It was signed and witnessed in the same manner, and contained the same provision for division of the proceeds of the bill. The audited accounts of Malvest for the year ended 31 December 1993 showed an income of $1,920,000 consisting of: "1. Commission from negotiating for discounting bill of exchange amounting to US$5 million 820,000 2. Commission and gain from participating in a joint venture with I.C. Chen Taipei in the development of temple 1,100,000 1,920,000." No income from golf course developments or from the sale of memberships associated with golf courses was shown. In May 1993, during investigations by the Singapore Police, the appellant handed to Lim Liang Boo, a senior investigation officer in charge of the investigation, photocopies of the memoranda of understanding between Ngan Construction and Malvest, together with photocopies of two receipts dated respectively 10 March 1993 and 16 March 1993, signed on behalf of Ngan Construction in the name Ang Yew King. The first acknowledged receipt from Malvest of US$1,800,000.00 "as being 90% of the discounting of Bill of Exchange ... dated 18 February 1993, amounting to US$2,000,000.00 10% of US$2,000,000.00 will go to Malvest (S) Pte Ltd as commission for discounting the Bill." The second receipt similarly acknowledged receipt of US$2,700,000.00 from Malvest "as being 90% of the discounting of Bill of Exchange ... dated 11th March 1993, amounting to US$3,000,000.00. 10% of the amount discounted, US$300,000.00, will go to Malvest (S) Pte Ltd as commission for discounting the said Bill." Of course, if these receipts were genuine, it would follow that Malvest did not in fact obtain the sums of "10% of US$2,000,000.00" (i.e. US$200,000) and "US$300,000" referred to in these receipts, since the bank's charges for discounting the bills must be allowed for. Those charges amounted to almost US$90,000 in the case of the first bill, and a proportionate, and thus larger, amount in the case of the second. That, in itself, suggests the receipts were not genuine, since it is hard to understand how anyone issuing them at the time, and particularly the second of them, could have overlooked the substantial difference between the figures shown in the receipts and the actual amounts received from the bank. Furthermore, the memoranda of understanding stated clearly that "90% of the money secured", not 90% of the face value of the bills, was to go to Ngan Construction, and 10% was to be Malvest's commission. That clearly indicates the 10% was also to be 10% of the money secured. These discrepancies in documents which were produced by the appellant himself, as evidence of the transactions, might reasonably be regarded by a tribunal of fact as very significant. It should also be noted that the sum of S$820,000 shown as commission in the books of the company was stated by the auditor to be "equivalent to US$500,000". That would mean, if the figures are correct, that Malvest received 10% of the face value of the bills, and the bank's charges came out of the amounts allegedly paid to Ngan Construction, so that the receipts for US$1,800,000.00 and US$2,700,000.00 (allowing no deductions) could not be genuine. A salient feature of the evidence is that the appellant told Patrick Lee, in advance of the bills being presented for discounting, that there were membership fees due to him from the sale of golf memberships in Kuala Lumpur which were payable by bill of exchange. What he clearly suggested to Patrick Lee, and the letters he signed later confirmed, was that the amount of the bills, the sum of US$5 million, was money due to Malvest. That, of course, was consistent with the manner in which the bills had been drawn. They were payable to Malvest. But Malvest had not entered into any genuine contract with Ngan Construction, which had been formed by Nga Sook Khoon simply as a vehicle for fraud. Malvest's own records showed that 10% of the money was due to it, but as "commission". This discrepancy is plainly a serious circumstance. There is a further matter of very considerable weight. The banking records of Malvest and of the appellant are consistent with the conspiratorial agreement Mr Idris heard Nga Sook Khoon make with Vivien Then in Kuala Lumpur in showing that a large part of the proceeds of the frauds found its way to Malvest and to the appellant. They received much more than the 10% mentioned in the memoranda of understanding, and the receipts purporting to show an accounting to Ngan Construction plainly did not reflect what had happened. As I have pointed out, they could not have done so, since they ignored the bank's charges for discounting the bills. The circumstances, in my opinion, provide ground for an inference that the appellant was both personally involved in the arrangements for the discounting of the forged bills of exchange, and also knowingly involved. Possibly, as his counsel contended, a tribunal trying the case would consider the explanation that he was an innocent dupe to be reasonably compatible with the circumstances. However, such a tribunal would not be bound to take this view. It would be open to it to make a finding against the appellant beyond reasonable doubt, upon the basis that only his guilt is reasonably compatible with the circumstances disclosed by this evidence. That means that a prima facie case has been established within the meaning of the Extradition Act. For these reasons, the appeal should be dismissed. I certify that this and the preceding twenty-three (23) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett. Associate: Date: 16 May 1996 IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No NG 823 of 1995 GENERAL DIVISION ) On appeal from a Judge of the Federal Court of Australia BETWEEN: ICHIYO UJIIE (FORMERLY NAMED KAZUHIRO YASHIMA Appellant AND: REPUBLIC OF SINGAPORE Respondent CORAM: Lockhart, Burchett and Lindgren J PLACE: Sydney DATE: 16 May 1996 REASONS FOR JUDGMENT LINDGREN J: I have read in draft the Reasons for Judgment of Burchett J with which I agree. For those reasons I also agree with his Honour that the appeal should be dismissed. I certify that this page is a true copy of the Reasons for Judgment of the Honourable Justice Lindgren. Associate: Dated: 16 May 1996 Heard: 1 March 1996 Place: Sydney Decision: 16 May 1996 Appearances: Mr F S McAlary QC with Mr D A Chaikin of counsel instructed by Bernard D Brassil & Co appeared for the appellant. Mr P S Hastings QC with Mr G A Farmer of counsel instructed by the Commonwealth Director of Public Prosecutions appeared for the respondent.