XIE JING FENG v. HONG KONG SAR GOVERNMENT AND ANOTHER

HCAL 855/2019

[2019] HKCFI 2174

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 855 OF 2019

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D E C I S I O N

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1.  On 8 April 2019, this court handed down its decision (“the April 2019 Decision”) rejecting the Applicant’s application for a writ of habeas corpus. That application was his 2^nd application for a writ of habeas corpus, his 1^st application having been dismissed by Au J (as he then was) in HCAL 223/2015 on 13 February 2017. In this decision, unless the context indicates otherwise, the court shall continue to use the expressions and abbreviations as defined in the April 2019 Decision.

2.  On 4 July 2019, the Applicant issued a summons which did not seek any order or relief from the court.  It merely referred to his affirmation dated 31 May 2019, which was filed on 4 July 2019, and listed a total of 8 documents.  The same 8 documents were listed in the Applicant’s affirmation dated 31 May 2019, including:

(1)  a document described as “Affirmation dated 28/5/2019 page 1 of 1” (“Document (1)”);

(2)  a document described as “Affirmation Appeal dd 15/4 pages 1 – 19” (“Document (2)”) and

(3)  a document described as “Affirmation II dd 20/4/19 pages 1 – 13” (“Document (3)”).

3.  In Document (1), the Applicant states that the “Affirmation” is “in relation to [his] appeal out of time”, and gives the following reasons for the delay:

(1)  He is unrepresented and has difficulties in understanding the Decision and “search[ing] for grounds for appeal”.

(2)  He was waiting for a court judgment from India in support of his contention that he would face the risk of a death penalty in India.

(3)  He is being incarcerated in Lai Chi Kok Reception Centre without access to photocopying facilities and has to mail relevant documents to his friends outside of prison to copy them for the purpose of his application to the court.

(4)  The delay does not cause any prejudice to the Respondents.

(5)  There are merits in his appeal to the Court of Appeal.

4.  Documents (2) and (3) relate to the Applicant’s proposed grounds of appeal against the April 2019 Decision, in particular, his complaint about the Request for Surrender (which he says has never been produced or examined by the Court of Committal or this court), and his confessions made to the Indian authorities (which he says were not admissible as evidence).

5.  It transpires that the Applicant in fact served his Notice of Appeal on the Respondents, which was received on 7 May 2019.  The Respondents accepts that the Notice of Appeal was served in time.  Accordingly, the Applicant does not need any extension of time to serve the Notice of Appeal.  What he needs is an extension of time to set down the appeal for hearing under Order 59, rule 5(1) of the Rules of the High Court, Cap 4A.  However, an application for an extension of time for this purpose ought to be made to the Court of Appeal, and not to the Court of First Instance (see Hong Kong Civil Procedure 2019, at paragraph 59/5/7).  Note that the power of a judge at first instance to extend time under Order 59, rule 15 applies only to the period for serving a notice of appeal under rule 4 or for making an ex parte application under rule 14(3). This is sufficient to dispose of the present application.  For the sake of completeness, I shall briefly consider the merits of the application.

6.  Whether considering an application for an extension of time to serve a notice of appeal, the court undertakes a holistic assessment of all relevant circumstances and decides whether the overall justice of the case requires the exercise of the discretion to extend time. Relevant considerations include (i) the length of the delay, (ii) the reasons for the delay, (iii) the merits of the intended appeal, and (iv) the prejudice to the respondent if the application is granted.  These considerations should not be assessed in a rigid or mechanistic manner (see Hong Kong Civil Procedure 2019, at paragraph 59/4/9).  The same considerations apply in an application for an extension of time to set down an appeal (see Hong Kong Civil Procedure 2019, at paragraph 59/5/7).  While the consideration of the merits of an intended appeal is not conclusive of the matter, it is common sense that the court would unlikely grant an extension of time, whether to service a notice of appeal or to set down, if the intended appeal does not appear to have any reasonable prospect of success.

7.  In the present case, the Applicant’s complaint about the non-production of the Request for Surrender before the Court of Committal was dealt with in paragraphs 15 to 20 of the April 2019 Decision, where the court held that the Request for Surrender was not a document required to be produced or authenticated before the Court of Committal in support of the application for the Committal Order under Section 10(6)(b)(ii) of the Fugitive Offenders Ordinance, Cap 503 (“the Ordinance”).  In Document (2), at page 3, the Applicant says that he does not insist upon the formal production of the Request for Surrender, but insists that the Court of Committal has the right to call for the Request for Surrender, and it is under a judicial obligation to determine whether it is in compliance with Section 6(1)(a) and (b) of the Ordinance.  In my view, if the Request for Surrender is not required to be produced before the Court of Committal, I fail to see how it can be argued that the Court of Committal is under an obligation to require the production of the Request for Surrender in order to determine its validity.

8.  There can be no dispute that, as a matter of fact, a Request for Surrender was made by the Indian Government to the Hong Kong Government in May 2019, and the Acting Chief Executive issued an Authority to Proceed on 22 May 2015 in consequence of that request, as stated in paragraph 7 of the judgment of Au J (as he then was) in his judgment handed down on 13 February 2017 in HCAL 223/2015.  The Applicant’s arguments about the validity of the Authority to Proceed and the Committal Order are all based on his suspicion that the Request for Surrender may not comply with the requirements of Section 6(1) of the Ordinance, but there is no evidence to substantiate such suspicion.  To argue that the Court of Committal is under a duty to require the production of the Request for Surrender in order to determine its validity would effectively be adding the Request for Surrender to the list of “supporting documents” (as defined in Section 2(1) of the Ordinance) required to be produced and authenticated under Section 10(6)(b)(ii) of the Ordinance.  The court has no power to re-write the legislation.  By excluding the Request for Surrender from the list of “supporting documents”, the Legislature plainly does not intend that the Court of Committal is required to the examine the validity of the Request for Surrender before making the Committal Order.

9.  There is equally no basis for the contention that this court, when determining the lawfulness of the Applicant’s detention in a habeas corpus application, should require the Respondents to produce the Request for Surrender in order to determine its validity.  The court’s function in such application is to determine, on the basis of the materials before the court, whether the Committal Order is lawfully made by the Court of Committal and whether the Applicant’s detention is lawful.

10.  As regards the argument that the Applicant will face the risk of a death penalty if he should be returned to and tried in India for the offences for which his extradition to that jurisdiction is being sought, it was dealt with in paragraphs 23 to 25 of the April 2019 Decision. At the hearing on 2 September 2019, the Applicant submits that if he is only convicted of one charge in India in respect of a commercial quantity of dangerous drugs, the maximum penalty would be 20 years, but he is facing two such charges in two different cities in India, and if he should be convicted in both trials he could be given a death penalty for his second conviction.  This point does not appear to have been raised previously.  In any event, as mentioned in paragraph 24 of the April 2019 Decision, this is a matter to be considered by the Chief Executive when she decided whether to make the Order for Surrender, and not a matter to be considered by the Court of Committal when it decided whether to make the Committal Order.

11.  As regards the argument about the inadmissibility of his confessions made to the Indian authorities, the Applicant complains that this court did not give reasons for rejecting it. However, as mentioned in paragraph 26 of the April 2019 Decision, this point was considered and rejected by Au J in paragraphs 31 to 41 of his judgment dismissing the Applicant’s 1^st application for habeas corpus. It is plain that this court agreed with the reasons given by Au J.  There was no duty on this court to give separate reasons for rejecting the same argument. This comment also applies to the complaint that this court did not give reasons for rejecting the Applicant’s argument that the Provisional Arrest Warrants had been terminated by reasons of the non-production of the Request for Surrender. Again, the court stated at paragraph 20 of the April 2019 Decision that this argument had been rejected by Au J in paragraphs 23 to 29 of his judgment.

12.  In all, I do not consider that the intended appeal has any reasonable prospect of success.  Having come to this conclusion, it is clear that the Applicant’s application for an extension of time should be dismissed.  I so order, with costs to the Respondents, to be taxed if not agreed.

HCAL 855/2019

[2019] HKCFI 910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 855 OF 2019

________________________

________________________

___________________

D E C I S I O N

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INTRODUCTION

1.  This is the Applicant’s 2^nd application (“the 2^nd Application”) for an order that a writ of habeas corpusad subjiciendum be issued in respect of his current detention, his 1^st habeas corpus application in HCAL 223/2015 (“the 1^st Application”) having been dismissed by Au J (as he then was) on 13 February 2017. I am told by Mr Hoe, Senior Government Counsel, on behalf of the Respondents, that there is currently a pending application by the Applicant to the Court of Appeal for an extension of time to appeal against the judgment of Au J.

BACKGROUND FACTS

2.  The Applicant is wanted as a fugitive in India for the prosecution of drug-related offences and offences of escaping from lawful custody allegedly committed by him in that jurisdiction.  The basic facts of the alleged offences have been set out by Au J in his written judgment (“the Judgment”) in the 1^st Application handed down on 13 February 2017, and shall not be repeated here. 

3.  The relevant drug-related offences took place in or around November 2008, and those for escaping from lawful custody in April 2011. On 20 March 2015, two provisional arrest warrants (“the Provisional Arrest Warrants”) were issued against the Applicant pursuant to Section 7(1)(b) of the Fugitive Offenders Ordinance, Cap 503, and on 21 March 2015, the Applicant was arrested in Hong Kong pursuant to the Provisional Arrest Warrants.  In what follows, unless the context indicates otherwise, references to Sections shall be to the Fugitive Offenders Ordinance.

4.  On 17 May 2015, the Government of India made a request for surrender (“the Request for Surrender”) of the Applicant to the Hong Kong Government.

5.  On 22 May 2015, the Acting Chief Executive issued an authority to proceed (“the Authority to Proceed”) pursuant to Section 6(2).

6.  On 8 June 2015, the Applicant’s application for bail was refused by a magistrate sitting at the Eastern Magistracy.

7.  On 23 October 2015, a magistrate sitting at the Eastern Magistracy (“the Court of Committal”) made an order of committal (“the Committal Order”) pursuant to Section 10(6)(b) against the Applicant.  Under the Committal Order, the Applicant is committed to custody to await the decision of the Chief Executive as to his surrender to India.

8.  On 19 November 2015, the Applicant made the 1^st Application. That application was heard on 1 March 2016 and, as earlier mentioned, was dismissed by Au J on 13 February 2017.

9.  On 7 February 2018, the Chief Executive made an order for surrender (“the Order for Surrender”) of the Applicant to India under Section 13.

10.  On 5 March 2018, the Applicant applied for leave to apply for judicial review of the Order for Surrender in HCAL 349/2018.  On 6 March 2018, at an inter-partes hearing, the court directed that the application for leave to apply for judicial review should be adjourned to a date to be fixed for argument, with one hour reserved.

11.  On 30 November 2018, Au J dismissed the Applicant’s application for an extension of time to appeal against the Judgment to the Court of Appeal.

12.  On 7 March 2019, the Applicant made an application to the Court of the Appeal for an extension of time to appeal against the Judgment.  This application is currently pending before the Court of Appeal.

13.  On 27 March 2019, the Applicant made the present application, which was heard on 29 March and 2 April 2019.

GROUND OF APPLICATIONS

14.  In support his application, the Applicant raises the following principal grounds:

(1)   The Request for Surrender was not produced before the Court of Committal, such that –

(a)   the Court of Committal could not and did not determine whether the Request for Surrender was issued by a proper authority;

(b)   the Court of Committal’s decision to make the Committal Order is Wednesbury unreasonable, in that the court did not ask for or obtain the Request for Surrender;

(c)   the Provisional Arrest Warrants were terminated by reasons of the non-production of the Request for Surrender;

(d)   there has been a breach of Article 10 of the Hong Kong Bill of Rights by reason of the failure to produce the Request for Surrender;

(e)   the Request for Surrender has not be properly authenticated; and

(f)   as the Request for Surrender has not been produced before the Court of Committal, the name of the fugitive on the request cannot be ascertained.

(2)   Some of the affidavits produced by the Indian authorities as part of the supporting documents did not follow the provisions of the Oath and Declaration Ordinance, Cap 11, and are therefore invalid, and the Court of Committal erred in accepting those documents as evidence in support of the finding of a prima facie case against the Applicant.

(3)   The Applicant may be sentenced to death if he were to be surrendered to India and found guilty of the drugs related offences alleged against him.

(4)   The confessions made by the Applicant to the Indian authorities were wrongfully admitted into evidence in the committal proceedings.

GROUND 1: THE REQUEST FOR SURRENDER

15.  The major ground raised by the Applicant in support of the present application is the failure to produce the Request for Surrender to the Court of Committal at the committal proceedings, which failure gives rise to his various complaints as set out in paragraph 14(1) above.

16.  The foundation of this ground is the Applicant’s contention that the Request for Surrender is a necessary document to be produced before the Court of Committal to support the application for the Committal Order.  The power of a magistrate to make a committal order is prescribed by Section 10(6), which provides, so far as relevant, as follows:

“Where –

(b) an authority to proceed has been issued in respect of the person arrested and the court of committal is satisfied –

(i) that the offence to which the authority relates is a relevant offence;

(ii) that the supporting documents in relation to the offence –

(A) have been produced; and

(B) are duly authenticated;

(iii) where the person is wanted for prosecution in respect of the offence, that the evidence in relation to the offence would be sufficient to warrant the person’s committal for trial according to the law of Hong Kong if the offence had been committed within the jurisdiction of that court or any other court; …

the court shall (unless the person’s committal is prohibited by any other provision of this Ordinance) by order commit him to custody –

(i) to await the Chief Executive’s decision as to his surrender to the prescribed place by which the request for surrender concerned was made; and

(ii) if the Chief Executive decides that he shall be surrendered to that place, to await such surrender.”

17.  It can be seen that under Section 10(b)(ii), the documents which are required to be produced and authenticated are the “supporting documents”, which is defined in Section (1)(a) to mean:

“in relation to an offence in respect of which a person is wanted for prosecution –

(i) a warrant of arrest (or a copy thereof) issued in the prescribed place which has made the request for surrender concerned; and

(ii) other documents which provide evidence of –

(A) the offence;

(B) the penalty which may be imposed in respect of the offence; and

(C) the conduct constituting the offence.”

18.  The Request for Surrender is not one of the supporting documents required to be produced and authenticated under Section 10(b)(ii). That there is no requirement to produce the Request for Surrender before the Court of Committal is confirmed by the judgment of Mayo J (as he then was) in In re Chuen Sau-kam [1990] 1 HKLR 23, at 29-31:

“I will now consider the complaint that it had never been proved that the Letter of Request for Extradition had been produced within sixty days. Mr. Thomas argued that placing reliance upon the recitals contained in His Excellency the Governor's Order of the 17th of March was not sufficient. I regret that I do not agree. A similar issue was raised in R. v. Governor of Pentonville Prison 1980 1 All ER 701. Griffiths J. summarised the documentary requirements in such cases at p. 705:-

‘…

The first ground of attack was conveniently described by counsel for the applicants as the pleading point. His complaint is that there was no formal document before the magistrate that contained sufficient particulars of the applicants' offence to show that it constituted the crime of burglary according to English law …

In order to examine this submission it is necessary to consider the steps by which extradition is obtained to see what formal documents are required to be placed before the magistrate. The first step is the request for extradition. This is through diplomatic channels and the material that must accompany the request is set out in Article VII of the extradition treaty between the two governemnts, given statutory force by Order in Council.

This is the material on which the legal advisers in the Home Office will consider whether they should advise the Secretary of State to take the next step in the extradition procedure, which is to refer the request to a metropolitan magistrate pursuant to s 7 of the Extradition Act 1870 …

When the magistrate receives the order from the Secretary of State, it is his duty to enquire into the evidence and, if sufficient, to issue his warrant as plainly appears from the terms of ss 8 and 10…

The only other document of a formal nature that is required to be before the magistrate is the foreign warrant authorising the arrest of the criminal … There is nothing in the treaty that requires any other formal document to be before the magistrate and no authority has been cited to show that extradition has ever been refused on this ground. I am quite satisfied that in extradition proceedings there is no requirement for any formal documents to be before the magistrate other than the order of the Secretary of State and the warrant of arrest, neither of which, for the reasons I have given, are required to set out all the particulars of the English offence. It is to the evidence that the magistrate is directed to look to see whether there are sufficient facts established to constitute an offence contrary to English law and not to any formal document …’

I am satisfied that this is a correct statement of the law. The Applicant had no right to insist upon the formal production of the request” [emphasis added].

19.  The Applicant says that the law in England which was relied upon by Mayo J to reach his conclusion has been changed. Even if the law in England has been changed as alleged by the Applicant, such change would have no relevance to the position in Hong Kong.  If the Request for Surrender is not required to be produced before the Court of Committal, as I believe to be the correct legal position, none of the Applicant’s complaints as set out in paragraph 14(1) above can get off the ground.

20.  For the sake of completeness, I should mention that the Applicant previously argued, in the 1^st Application, that the Provisional Arrest Warrants had been terminated by 20 May 2015 because the Request for Surrender was not received by the Hong Kong Government by the end of the 60-day period from the date of his arrest on 21 March 2015 under Article 10(3) of the Agreement for the Surrender of Fugitive Offenders between the Government of Hong Kong and the Republic of India.  That argument was rejected by Au J at paragraphs 23 to 29 of the Judgment, because the judge was satisfied on the evidence that the Request for Surrender was transmitted to and received by the Hong Kong Government on 17 May 2015.

GROUND 2: AUTHENTICATION

21.  The Applicant’s complaint is that some of the affidavits made in India and submitted as part of the supporting documents to the Court of Committal were not dated or otherwise made in accordance with Section 7 of the Oath and Declaration Ordinance.  There is nothing in this point.  Under Section 23 of the FOO:

“(1) Any supporting document or other document which is duly authenticated is admissible in evidence in any proceedings under this Ordinance without further proof.

(2) Any supporting document or other document shall be deemed to be duly authenticated if it –

(a) purports to be signed or certified by a judge, magistrate or officer of the prescribed place concerned; and

(b)   purports to be sealed with the official or public seal of a competent authority of that place.”

22.  There is no suggestion that the relevant affidavits were not properly authenticated in accordance with the requirements of Section 23(2).  Hence, they were admissible as evidence before the Court of Committal.  There is no requirement that evidence, to be admissible before a magistrate in committal proceedings, must be in the form of an affidavit/affirmation: see See Cherk Ching v Superintendent of Lai Chi Kok Reception Centre & Another [2005] 4 HKLRD 105, per Hartmann J (as he then was) at paragraph 91:

“On a plain reading therefore it seems to me that the language of the Ordinance is to the following effect:

(i) Evidence supplied by a requesting country to establish a prima facie case is to be contained in supporting documents.

(ii) Those documents are not restricted to any particular class of documents. Evidence contained in supporting documents may therefore be in the form of depositions or statements on oath but may also be in other forms, for example, witness statements made in accordance with the laws and procedures of the requesting country

(iii) Admissibility of supporting documents containing evidence is not determined by whether they are supported by some acceptable form of oath or affirmation but solely by the determination that they are duly authenticated in terms of the Ordinance and the prevailing extradition agreement.”

GROUND 3: DEATH PENALTY

23.  This ground can be disposed of shortly, because the evidence before the Court of Committal, in the form of an affidavit made by the Indian prosecutor (Mr Chauhan), is that the maximum penalty in India upon conviction of the drug related offences alleged against the Applicant is up to 20 years of imprisonment only.

24.  In any event, the question of whether a person ought not to be surrendered to a foreign jurisdiction to stand trial because he may face a sentence of death penalty upon conviction of the relevant offence in that jurisdiction is a matter for the Chief Executive when she decides whether to make an order for surrender under Section 13(5).  That subsection states as follows:

“Where –

(a) a person is wanted in a prescribed place for prosecution, or for the imposition or enforcement of a sentence, in respect of a relevant offence against the law of that place; and

(b) that offence is punishable with death,

then an order for surrender may only be made in the case of that person if that place gives an assurance which satisfies the Chief Executive that that punishment will not be imposed on that person or, if so imposed, not carried out.”

25.  There is nothing in Section 10 to suggest that a court of committal is prohibited from making a committal order where the relevant offence is punishable with death in the foreign jurisdiction.  If a court of committal has no power to make a committal order in such a case, Section 13(5) would be rendered otiose.

GROUND 4: ADMISSIBILITY OF CONFESSIONS

26.  Again, this ground can be disposed of shortly. The same ground was advanced by the Applicant in the 1^st Application, and rejected by Au J in paragraphs 31 to 41 of the Judgment.

DISPOSITION

27.  For the foregoing reasons, the 2^nd Application is dismissed, with no order as to costs (which Mr Hoe did not seek).