Extradition Act


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EXTRADITION ACT

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C
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EXTRADITION ACT

Arrangement of Sections
Section
1 Short title..........................................................................................................5
2 Interpretation....................................................................................................5
3 Persons liable to be returned. ...........................................................................6
4 Designated countries........................................................................................6
5 Relevant offences.............................................................................................6
6 General restrictions on return...........................................................................7
PROCEEDINGS FOR RETURN ........................................................................8
7 Authority to proceed. .......................................................................................8
8 Arrest for purposes of committal. ....................................................................9
9 Proceedings for committal. ............................................................................10
10 Application for habeas corpus, etc.................................................................10
11 Order for return to requesting country. ..........................................................11
12 Discharge in case of delay in returning..........................................................12
13 Evidence.........................................................................................................13
14 Custody. .........................................................................................................14
15 Forms of warrants and orders. .......................................................................14
TREATMENT OF PERSON RETURNED FROM DESIGNATED
COUNTRIES ....................................................................................................15
16 Restrictions upon proceedings for other offences..........................................15
17 Restoration of persons not tried or acquitted. ................................................15
18 Persons convicted in absence.........................................................................16
19 Power to revoke or vary Orders, etc. .............................................................16
20 Repeals and transitional provisions. ..............................................................16

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SCHEDULE 1 17

DESCRIPTION OF RELEVANT OFFENCES IN DESIGNATED
COUNTRIES ....................................................................................................17

SCHEDULE 2 19

UNITED KINGDOM ENACTMENTS REPEALED AS RESPECTS THE
KINGDOM OF TONGA.....................................................................................19

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C
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EXTRADITION ACT

Acts 19 of 1972 and 46 of 1988

AN ACT TO MAKE PROVISION FOR THE RETURN FROM THE
KINGDOM OF TONGA TO OTHER COUNTRIES OF PERSONS

ACCUSED OR CONVICTED OF OFFENCES IN THESE COUNTRIES;
TO REGULATE THE TREATMENT OF PERSONS ACCUSED OR

CONVICTED OF OFFENCES IN THE KINGDOM OF TONGA WHO
ARE RETURNED FROM SUCH COUNTRIES; AND FOR PURPOSES

CONNECTED WITH THE MATTERS AFORESAID

Commencement [22nd December 1972]

1 Short title.
This Act may be cited as the Extradition Act.

2 Interpretation.
In this Act the following expressions shall have the meanings hereby assigned to
them, that is to say:

“application for habeas corpus” means an application for a writ of
habeas corpus ad subjiciendum;

“country” includes any territory, colony, protected state, protectorate and
dependency;

“Court of Appeal” means the Court of Appeal of the Kingdom of Tonga;

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“dealt with” means tried or returned or surrendered to any country or
detained with a view to trial or with a view to such return or surrender;

“designated country” means any country designated in terms of section 4
of this Act;

“imprisonment” includes detention of any description;

“Prime Minister” means the Prime Minister of the Kingdom of Tonga
and includes any person for the time being performing his functions;

“race” includes tribe;

“Supreme Court” means the Supreme Court of the Kingdom of Tonga.

3 Persons liable to be returned.
Subject to the provisions of this Act, a person found in Tonga who is accused of
a relevant offence in any other country being a country designated in terms of
section 4 of this Act or who is alleged to be unlawfully at large after conviction
of such an offence in any such country may be arrested and returned to that
country as provided by this Act.

4 Designated countries.
(1) Where it appears to His Majesty that reciprocal arrangements are to be

granted to Tonga by any other country, He may by Order in Council
designate that country as a country to which the provisions of this Act
shall apply, subject to such exceptions adaptations or modifications as
may be specified in the Order in Council.

(2) For the purposes of any Order in Council under subsection (1), any
territory for which a designated country is responsible may be treated as
part of that country or, if the Government of that country so requests, as a
separate country.

5 Relevant offences.
(1) For the purposes of this Act an offence of which a person is accused or

has been convicted in a designated country is a relevant offence if —
(a) in the case of an offence against the law of a designated country, it

is an offence which, however described in that law, falls within any
of the descriptions set out in Schedule 1 to this Act, and is
punishable under that law with imprisonment for a term of 12
months or any greater punishment;

(b) in any case, the act or omission constituting the offence against the
equivalent act or omission, would constitute an offence against the

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law of Tonga if it took place within Tonga or, in the case of an
extra-territorial offence, in corresponding circumstances
outside Tonga.

(2) in determining for the purposes of this section whether an offence against
the law of a designated country falls within a description set out in
Schedule 1 to this Act, any special intent or state of mind or special
circumstances of aggravation which may be necessary to constitute that
offence under the law shall be disregarded.

(3) The descriptions set out in Schedule 1 to this Act include in each case
offences of attempting or conspiring to commit, of assisting, counselling
or procuring the commission of or being accessory before or after the fact
to the offences therein described, and of impeding the apprehension or
prosecution of persons guilty of those offences.

(4) References in this section to the law of any country include references to
the law of any part of that country.

6 General restrictions on return.
(1) A person shall not be returned under this Act to a designated country or

committed to or kept in custody for the purposes of such return, if it
appears to the Prime Minister, to the court of committal or to the Supreme
Court on an application for habeas corpus —
(a) that the offence of which that person is accused or was convicted is

an offence of a political character;
(b) that the request for his return (though purporting to be made on

account of a relevant offence) is in fact made for the purpose of
prosecuting or punishing him on account of his race, religion,
nationality or political opinions; or

(c) that he might, if returned, be prejudiced at his trial or punished,
detained or restricted in his personal liberty by reason of his race,
religion, nationality or political opinions.

(2) A person accused of an offence shall not be returned under this Act to any
country, or committed to or kept in custody for the purposes of such
return, if it appears as aforesaid that if charged with that offence in Tonga
he would be entitled to be discharged under any rule of law relating to
previous acquittal or conviction.

(3) A person shall not be returned under this Act to any country, or committed
to or kept in custody for the purposes of such return, unless provision is
made by the law of that country, or by an arrangement made with that
country, for securing that he will not, unless he has first been restored or
had an opportunity of returning to Tonga, be dealt with in that country for

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or in respect of any offence committed before his return under this Act
other than —
(a) the offence in respect of which his return under this Act requested;
(b) any lesser offence proved by the facts proved before the court of

committal; or
(c) any other offence being a relevant offence in respect of which the

Prime Minister may consent to his being so dealt with.

(4) Any such arrangement as is mentioned in subsection (3) may be an
arrangement made for the particular case or an arrangement of a more
general nature; and for the purposes of that subsection a certificate issued
by or under the authority of the Prime Minister confirming the existence
of an arrangement with any country and stating its terms shall be
conclusive evidence of the matters contained in the certificate.

(5) The reference in this section to an offence of a political character does not
include —
(a) an offence against the life or person of the Head of the Country or

any related offence described in section 5(3) of this Act; or
(b) any offence of genocide as defined by the Genocide Act, and any

attempt or conspiracy to commit such an offence and any direct and
public incitement to commit such an offence, and it shall not be an
objection to any proceedings taken against a person by virtue of the
provisions of this Act that under the law in force at the time when
and in the place where he is alleged to have committed the act of
which he is accused or of which he was convicted he could not have
been punished therefor.

PROCEEDINGS FOR RETURN

7 Authority to proceed.
(1) Subject to the provisions of this Act relating to provisional warrants, a

person shall not be dealt with thereunder except in pursuance of an order
of the Prime Minister (in this Act referred to as an authority to proceed),
issued in pursuance of a request made to the Prime Minister by or on
behalf of the Government of the designated country, or by the
Government of the dependency of the designated country in which the
person to be returned is accused or was convicted.

(2) There shall be furnished with any request made for the purposes of this
section on behalf of any country—
(a) in the case of a person accused of an offence, a warrant for his

arrest issued in that country;

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(b) in the case of a person unlawfully at large after conviction of an
offence, a certificate of the conviction and sentence in that country,
and a statement of the amount if any of that sentence which has
been served, together (in each case) with particulars of the person
whose return is requested and of the facts upon which and the law
under which he is accused or was convicted, and evidence sufficient
to justify the issue of a warrant for his arrest under section 8 of
this Act.

(3) On receipt of such a request the Prime Minister may issue an authority to
proceed unless it appears to him that an order for the return of the person
concerned could not lawfully be made, or would not in fact be made, in
accordance with the provisions of this Act.

8 Arrest for purposes of committal.
(1) A warrant for the arrest of a person accused of a relevant offence, or

alleged to be unlawfully at large after conviction of such an offence, may
be issued —
(a) on the receipt of an authority to proceed, by the Chief Police

Magistrate;
(b) without such an authority, by any magistrate in any part of Tonga,

upon information that the said person is or is believed to be in or on
his way to Tonga;

and any warrant issued by virtue of paragraph (b) above is in this Act
referred to as a provisional warrant.

(2) A warrant of arrest under this section may be issued upon such evidence
as would, in the opinion of the magistrate, authorise the issue of a warrant
for the arrest of a person accused of committing a corresponding offence
or, as the case may be, of a person alleged to be unlawfully at large after
conviction of an offence, within the jurisdiction of the magistrate.

(3) Where a provisional warrant is issued under this section the authority by
whom it is issued shall forthwith give notice to the Prime Minister, and
transmit to him the information and evidence or certified copies of the
information and evidence, upon which it was issued; and the Prime
Minister may in any case, and shall if he decides not to issue an authority
to proceed in respect of the person to whom the warrant relates, by order
cancel the warrant and, if that person has been arrested thereunder,
discharge him from custody.

(4) A warrant of arrest issued under this section may be executed in any part
of Tonga and may be executed by any person to whom it is directed or by
any officer or other member of the Police Force.

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(5) Where a warrant is issued under this section for the arrest of a person
accused of an offence of stealing or receiving stolen property or any other
offence in respect of property, a magistrate in any part of Tonga shall have
the like power to issue a warrant to search for the property as if the
offence had been committed within the jurisdiction of the magistrate.
(Amended by Act 46 of 1988.)

9 Proceedings for committal.
(1) A person arrested in pursuance of a warrant under section 8 of this Act

shall (unless previously discharged under subsection (3) of that section) be
brought as soon as practicable before a court (in this Act referred to as the
court of committal) consisting of a magistrate.

(2) For the purposes of proceedings under this section a court of committal
consisting of a magistrate shall have the like jurisdiction and powers, as
nearly as may be, including power to remand in custody or on bail, as a
magistrate's court holding a preliminary inquiry.

(3) Where the person arrested is in custody by virtue of a provisional warrant
and no authority to proceed has been received in respect of him, the court
of committal may fix a reasonable period (of which the court shall give
notice to the Prime Minister) after which he will be discharged from
custody unless such an authority has been received.

(4) Where an authority to proceed has been issued in respect of the person
arrested and the court of committal is satisfied, after hearing any evidence
tendered in support of the request for the return of that person or on behalf
of that person, that the offence to which the authority relates is a relevant
offence and is further satisfied —
(a) where that person is accused of the offence, that the evidence would

be sufficient to warrant his trial for that offence if it had been
committed within the jurisdiction of the court;

(b) where that person is alleged to be unlawfully at large after
conviction of the offence, that he has been so convicted and appears
to be so at large,

the court shall, unless his committal is prohibited by any other provision
of this Act, commit him to custody to await his return thereunder; but if
the court is not so satisfied or if the committal of that person is so
prohibited, the court shall discharge him from custody.

10 Application for habeas corpus, etc.
(1) Where a person is committed to custody under section 9 of this Act, the

court shall inform him in ordinary language of his right to make an

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application for habeas corpus, and shall forthwith give notice of the
committal to the Prime Minister.

(2) A person committed to custody under the said section 9 shall not be
returned under this Act —
(a) in any case, until the expiration of the period of 15 days beginning

with the day on which the order for his committal is made;
(b) if an application for habeas corpus is made in his case, so long as

proceedings on that application are pending.

(3) On any such application the Supreme Court may, without prejudice to any
other jurisdiction of the court, order the person committed to be
discharged from custody if it appears to the court that —
(a) by reason of the trivial nature of the offence of which he is accused

or was convicted; or
(b) by reason of the passage of time since he is alleged to have

committed it or to have become unlawfully at large, as the case may
be; or

(c) because the accusation against him is not made in good faith in the
interests of justice,

it would, having regard to all the circumstances, be unjust or oppressive to
return him.

(4) On any such application the Supreme Court may receive additional
evidence relevant to the exercise of its jurisdiction under section 6 of this
Act or under subsection (3) of this section.

(5) For the purposes of this section, proceedings on an application for habeas
corpus shall be treated as pending until any appeal in those proceedings is
disposed of; and an appeal shall be treated as disposed of at the expiration
of the time within which the appeal may be brought or, where leave to
appeal is required, within which the application for leave may be made, if
the appeal is not brought or the application made within that time.
(Amended by Act 46 of 1988.)

11 Order for return to requesting country.
(1) Where a person is committed to await his return and is not discharged by

order of the Supreme Court, the Prime Minister may by warrant order him
to be returned to the country by which the request for his return was made
unless the return of that person is prohibited, or prohibited for the time
being, by section 6 of this Act or this section, or the Prime Minister
decides under this section to make no such order in his case.

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(2) An order shall not be made under this section in the case of a person who
is serving a sentence of imprisonment or detention, or is charged with an
offence, in Tonga —
(a) in the case of a person serving such a sentence, until the sentence

has been served;
(b) in the case of a person charged with an offence, until the charge is

disposed of or withdrawn and, if it results in a sentence of
imprisonment (not being a suspended sentence), until the sentence
has been served.

(3) The Prime Minister shall not make an order under this section in the case
of any person if it appears to the Prime Minister, on the grounds
mentioned in section 10(3) of this Act, that it would be unjust or
oppressive to return that person, and may decide to make no order under
this section in the case of a person accused or convicted of an offence in
the designated country if he considers, on any such grounds as are
mentioned in paragraphs (a) to (c) of section 6(1) of this Act, that the
order ought not to be made.

(4) The Prime Minister may decide to make no order under this section in the
case of a person accused or convicted of a relevant offence not punishable
with death in Tonga, if that person could be or has been sentenced to
death for that offence in the country by which the request for his return is
made.

(5) The Prime Minister may decide to make no order under this section for
the return of a person committed in consequence of a request made on
behalf of any country, if another request for his return under this Act, has
been made on behalf of another designated country and it appears to the
Prime Minister, having regard to all the circumstances of the case and in
particular —
(a) the relative seriousness of the offences in question;
(b) the date on which each such request or requisition was made; and
(c) the nationality or citizenship of the person concerned and his

ordinary residence,

that preference should be given to the other request or requisition.

(6) Notice of the issue of a warrant under this section shall forthwith be given
to the person to be returned thereunder.

12 Discharge in case of delay in returning.
(1) If any person committed to await his return is in custody in Tonga under

this Act after the expiration of the following period, that is to say —

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(a) in any case, the period of 2 months beginning with the first day on
which, having regard to section 10(2) of this Act, he could have
been returned;

(b) where a warrant for his return has been issued under section 11 of
this Act, the period of one month beginning with the day on which
that warrant was issued,

he may apply to the Supreme Court for his discharge.

(2) If upon any such application the court is satisfied that reasonable notice of
the proposed application has been given to the Prime Minister, the court
may, unless sufficient cause is shown to the contrary, by order direct the
applicant to be discharged from custody and, if a warrant for his return has
been issued under the said section 11, quash that warrant.

13 Evidence.
(1) In any proceedings under this Act, including proceedings on an

application for habeas corpus in respect of a person in custody
thereunder —
(a) a document, duly authenticated, which purports to set out evidence

given on oath in the designated country shall be admissible as
evidence of the matters stated therein;

(b) a document, duly authenticated, which purports to have been
received in evidence, or to be a copy of a document so received, in
any proceeding in any such country shall be admissible in evidence;

(c) a document, duly authenticated, which certifies that a person was
convicted on a date specified in the document of an offence against
the law of, or of a part of, any such country shall be admissible as
evidence of the fact and date of the conviction.

(2) A document shall be deemed to be duly authenticated for the purposes of
this section —
(a) in the case of a document purporting to set out evidence given as

aforesaid, if the document purports to be certified by a judge or
magistrate or officer in or of the country in question to be the
original document containing or recording that evidence or a true
copy of such a document;

(b) in the case of a document which purports to have been received in
evidence as aforesaid or to be a copy of a document so received, if
the document purports to be certified as aforesaid to have been, or
to be a true copy of a document which has been, so received;

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(c) in the case of a document which certifies that a person was
convicted as aforesaid, if the document purports to be certified as
aforesaid,

and in any such case the document is authenticated either by the oath of a
witness or by the official seal of the Secretary of State or of a Minister of
the designated country or of the Governor of a dependency of the
designated country.

(3) In this section “oath” includes information or declaration; and nothing in
this section shall prejudice the admission in evidence of any document
which is admissible in evidence apart from this section.

14 Custody.
(1) Any person remanded or committed to custody under section 9 of this Act

shall be committed to the like institution as a person charged with an
offence before the court of committal.

(2) If any person who is in custody by virtue of a warrant under this Act
escapes out of custody, he may be retaken in any part of Tonga in like
manner as a person escaping from custody under a warrant for his arrest
issued in that part in respect of an offence committed therein.

(3) Where a person, being in custody in any part of Tonga whether under this
Act or otherwise, is required to be removed in custody under this Act to
another part of Tonga and is so removed by sea or by air, he shall be
deemed to continue in legal custody until he reaches the place to which he
is required to be removed.

(4) A warrant under section 11 of this Act for the return of any person to any
country shall be sufficient authority for all persons to whom it is directed
and all officers or other members of the Police Force to receive that
person, keep him in custody and convey him into the jurisdiction of that
country.

15 Forms of warrants and orders.
(1) Any warrant or order to be issued or made by the Prime Minister under

any of the foregoing provisions of this Act shall be given under the hand
of the Prime Minister or the Chief Secretary and Secretary to Cabinet.

(2) The Prime Minister may by order prescribe the form of any warrant or
order to be issued or made under the foregoing provisions of this Act.

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TREATMENT OF PERSON RETURNED FROM DESIGNATED
COUNTRIES

16 Restrictions upon proceedings for other offences.
(1) This section applies to any person accused or convicted for an offence

under the law of Tonga who is returned to Tonga from any designed
country.

(2) A person to whom this section shall not, during the period described in
subsection (3), be dealt with in Tonga for or in respect of any offence
committed before he was returned to Tonga other than —
(a) the offence in respect of which he was returned;
(b) any lesser offence proved by the facts proved for the purposes of

securing his return; or
(c) any other offence in respect of which the Government of the

country or Governor of the dependency from which he was returned
may consent to his being dealt with.

(3) The period referred to in subsection (2) in relation to a person to whom
this section applies, is the period beginning with the day of his arrival in
Tonga on his return as mentioned in subsection (1) and ending 145 days
after the first subsequent day on which he has the opportunity to leave
Tonga.

17 Restoration of persons not tried or acquitted.
(1) This section applies to any person accused of an offence under the law of

Tonga who is returned to Tonga as mentioned in section 16(1) of this Act.

(2) If in the case of a person to whom this section applies, either —
(a) proceedings against him for the offence for which he was returned

are not begun within the period of 6 months beginning with the day
of his arrival in Tonga on being returned; or

(b) on his trial for that offence, he is acquitted or discharged absolutely
or conditionally.

the Prime Minister may, if he thinks fit, on the request of that person,
arrange for him to be sent back free of charge and with as little delay as
possible to the country from which he was returned.

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18 Persons convicted in absence.
For the purposes of this Act a person convicted of an offence in his absence shall
be treated as a person accused of that offence.

19 Power to revoke or vary Orders, etc.
Any power to make an Order in Council or order under this Act includes power
to revoke or vary such an Order in Council or order by a subsequent Order in
Council or order.

20 Repeals and transitional provisions.
(1) Subject to the provisions of this section, the enactments described in

Schedule 2 to this Act are hereby repealed as respects Tonga to the extent
specified in the third column of that Schedule.

(2) The repeals effected by subsection (1) of this section shall not affect the
operation of the United Kingdom Fugitive Offenders Act 1881 in any case
where, before the date on which that subsection comes into force, a
warrant endorsed under section 3 of that Act, or a provisional warrant
issued under section 4 of that Act, has been executed in Tonga.

(3) Without prejudice to subsection (2) of this section, this Act applies to
offences committed before as well as after the coming into force of
this Act.



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SCHEDULE 1

(Section 5)

DESCRIPTION OF RELEVANT OFFENCES IN DESIGNATED COUNTRIES

1. Murder of any degree.

2. Manslaughter or culpable homicide.

3. An offence against the law relating to abortion.

4. Maliciously or wilfully wounding or inflicting grievous bodily harm.

5. Assault occasioning actual bodily harm.

6. Rape.

7. Unlawful sexual intercourse with a female.

8. Indecent assault.

9. Procuring, or trafficking in, women or young persons for immoral
purposes.

10. Bigamy.

11. Kidnapping, abduction or false imprisonment, or dealing in slaves.

12. Stealing, abandoning, exposing or unlawfully detaining a child.

13. Bribery.

14. Perjury or subornation of perjury or conspiring to defeat the course of
justice.

15. Arson or fire-raising.

16. An offence concerning counterfeit currency.

17. An offence against the law relating to forgery.

18. Stealing, embezzlement, fraudulent conversion, fraudulent false
accounting, obtaining property or credit by false pretences, receiving
stolen property or any other offence in respect of property involving fraud.

19. Burglary, housebreaking or any similar offence.

20. Robbery.

21. Blackmail or extortion by means of threats or by abuse of authority.

22. An offence against bankruptcy law or company law

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23. Malicious or wilful damage to property.

24. Acts done with the intention of endangering vehicles, vessels or aircraft.

25. An offence against the law relating to dangerous drugs or narcotics.

26. Piracy.

27. Revolt against the authority of the master of a ship or the commander of
an aircraft.

28. Contravention of import or export prohibitions relating to precious stones,
gold and other precious metals.

29. Any offence of genocide and any attempt or conspiracy to commit such an
offence and any direct and public incitement to commit such an offence.

30.1 An offence under section 4 or 5 of the Aircraft Offences Act.




1 Deemed to be included by section 7 of the Aircraft Offences Act and applies
whether or not an Order in Council under section 4(1) has been made.



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SCHEDULE 2

(Section 20)

UNITED KINGDOM ENACTMENTS REPEALED AS RESPECTS THE
KINGDOM OF TONGA

Chapter Short Title Extent of Repeal

1881 c. 69 The Fugitive Offenders The whole Act (exception 25.
In section 25 the words from
and including “and the
provisions of this Act” down
to the end of the section.)

1890 c. 37 The Foreign Jurisdiction Act
1890.

In Schedule 1 the entry
relating to the Fugitive
Offenders Act 1881.

1915 c. 39 The Fugitive Offenders
(Protected States) Act 1915.

The whole Act.