Cases: Lui

United States of America vs. Lui Kin-hong (Jerry Lui)

• On Appeal from an Order of the United States District Court, Brief for Lui Kin-Hong, Petitioner, Appellee, February 7, 1997
• Rebuttal Brief for Lui Kin-Hong, Petitioner, Appellee, February 21, 1997
• Emergency Application for Stay of Mandate of United States Court of Appeals for the First Circuit and of Issuance of Certificate of Extraditability Pending Certiorari, April 2, 1997

Our client, Jerry Lui, is a former executive of British-American Tobacco (Hong Kong). The now-defunct British Crown Colony of Hong Kong sought Lui's extradition to stand trial in Hong Kong to answer the Crown Colony's charge that he had accepted commercial bribes during his employment. Lui's extradition was sought under the U.S-U.K. extradition treaty, which was in force at the time of Lui's arrest.

One of Lui's principal defenses to his extradition was that under America's extradition treaty with the United Kingdom, he could only be extradited from the U.S. to be tried and, if convicted, punished in the United Kingdom's courts and prisons. The government agreed that, if he were extradited under our treaty with the United Kingdom, Lui would not be tried and punished in the British system but rather in the courts and prisons of the Hong Kong Special Administrative Region of the People's Republic of China.

At the time of Lui's extradition proceeding, the U.S. had no extradition treaty with the PRC, an international human rights pariah, nor with the Chinese government entity which took power in Hong Kong on July 1, 1997.

Lui's petition for habeas corpus was granted by Chief Judge Joseph L. Tauro, ruling that Lui could not be extradited to be tried in the courts of a nation with which the United States had no extradition treaty and that our treaty with the United Kingdom did not authorize Lui's extradition to stand trial in the courts of any nation other than the United Kingdom. The government appealed successfully to the United States Court of Appeals for the First Circuit. Judge Norman Stahl dissented. Lui petitioned the Supreme Court of the United States to stay his extradition and review his case, but the Court declined to do so with Justices Breyer and Stevens voting to require the government to show why the stay and review should not have been granted.

A plea to Secretary of State Madeleine Albright not to surrender Lui was unsuccessful. Lui was transported to Hong Kong in June 1997, was convicted and sentenced there in March 1998.

He pursued an appeal to the intermediate appellate court, which unanimously reversed his conviction, prohibited him from being re-prosecuted, and assessed costs of appeal against the government. The government may petition for discretionary review, but its chances of obtaining such review, much less of reversing the appellate court, are very slim. We will post the appellate court's opinion as soon as it is received.

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