CITATION: China v. Wong, 2009 ONCA 148

DATE: 20090217

DOCKET: C47873/C48588

COURT OF APPEAL FOR ONTARIO

Feldman, MacPherson and Armstrong JJ.A.

BETWEEN

The Attorney General of Canada on behalf of the Hong Kong Special Administrative Region of the People’s Republic of China

Respondent

and

David Wong (also known as Tai-Wai Wong and Chi-Keung Wong)

Appellant

Boris Bytensky, for the appellant

Chris de Sa, for the respondent

Heard and released orally: February 9, 2009

On appeal from the committal entered by Justice John MacDonald of the Superior Court of Justice dated December 24, 2007 and by way of judicial review of the decision of the Minister of Justice.

ENDORSEMENT

[1] The appellant appeals his committal for extradition by Justice MacDonald of the Superior Court of Justice on a number of charges of receiving secret commissions and several charges of fraud. The appellant raises two main grounds of appeal: (i) the Crown failed to establish that the appellant did not disclose the receipt of the secret commissions to his employer bank; and (ii) in respect of the first three charges of fraud, there is no evidence that the secret commissions were paid to the appellant in consideration for any act or for refraining from doing any act.

[2] We would not give effect to the first ground of appeal. We are satisfied that there was sufficient evidence from which an inference could be drawn that no disclosure was made to the appellant’s employer. For example, Mr. Chan, a management employee, was apparently unaware of the secret commissions. Also the nature and value of the commissions (expensive Rolex watches and large amounts of cash) lead to the inference that they would not have been reported given that the receipt of such benefits was contrary to the bank’s express policy.

[3] In respect of the second ground of appeal concerning the timing of first three charges of receipt of secret commissions, in our view, it would be open to a court to draw the inference that the benefits were paid in anticipation of the appellant advising how best to obtain favourable treatment from the bank.

[4] In respect of the judicial review application, the applicant’s main submission is that the delay in commencing the extradition proceeding for several years has prejudiced the applicant’s right to a fair trial. We believe that the Minister’s decision to surrender the applicant was reasonable and not in error. The applicant submits that he is the victim of abuse of process from which he would not have a remedy in the Honk Kong courts. We disagree. At least one legal authority submitted by the applicant to the Minister makes it clear that “delay” in proceeding with a case is a ground for granting a stay in the Hong Kong courts.

[5] The applicant further submits that the Minister erred by making it a requirement for a finding of abuse of process that either the Hong Kong authorities or the RCMP acted in bad faith or from some ill motive. We disagree that the Minister erred or that his decision was unreasonable. In our view, the Minister did not require bad faith in order to find abuse of process. The Minister first concluded that the authorities did not act negligently in their attempts to locate Mr. Wong. In addition, the Minister looked to see if there was any bad faith on the part of the authorities and found that there was none. We see no error and also conclude that his approach was reasonable.

[6] In conclusion, the appeal and the application for judicial review are both dismissed.

“K. Feldman J.A.”

“J.C. MacPherson J.A.”

“Robert P. Armstrong J.A.”