Xie Jing Feng v. Superintendent of Lai Chi Kok Reception Centre and Another

HCAL 223/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 223 OF 2015

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J U D G M E N T

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A.   INTRODUCTION

1.The applicant is wanted as a fugitive in India for the prosecution of drug-related offences and escaping from lawful custody offences.

2.On 23 October 2015, the magistrate of the Court of Committal in the Eastern Magistracy made an order of committal (“the Committal Order”) pursuant to section 10(6)(b) of the Fugitive Offenders Ordinance (Cap 503) (“the FOO”) against the applicant.  Under the Committal Order, the applicant is committed to custody in respect of drug-related offences, offences relating to unlawful escape from custody and offences of conspiracy to commit those offences, to await the decision of the Chief Executive (“CE”) to surrender him to India, a request for which surrender had been made by the Government of India.

3.This is the applicant’s habeas corpus application seeking to challenge the lawfulness of the detention under the Committal Order. The applicant is represented by Mr Ross, and the 1^st and 2^nd respondents, in opposition, are represented by Mr Walsh SC, leading Mr Hoe.

B.   BACKGROUND

B1.   The conducts leading to the alleged criminal prosecution and custody in India

4.In essence, the case against the applicant in India as supported by the evidence in the request for surrender is this.

5.On 21 November 2008 in Vadodara, Gujarat, India, officers of the Narcotics Control Bureau (“NCB”) along with two independent witnesses intercepted a vehicle with the applicant and three others in it.  On searching the vehicle, four packets of transparent polythene bag containing 1.56 kg white crystalline Methamphetamine powder substance was found from a black colour bag in the trunk of the vehicle.  Thereafter, the applicant led the police officers to a company called Sakha Organics Ltd (“SOL”) located in Moxi, Taluka, Savli, Vadodara.  SOL was searched on 21 November 2008 and 30 litres of liquid Methamphetamine was found and seized from a refrigerator placed in the kitchen lab of SOL.  A further search was conducted at SOL on 25 November 2008 with 110.32 kg (gross weight) of liquid Methamphetamine found and seized. During interviews held with the applicant by the NCB, the applicant admitted that he conspired with others to manufacture Methamphetamine at SOL, and the 1.56 kg Methamphetamine found in the vehicle was from SOL and to be delivered by the applicant to others.  For convenience, I would refer these admissions as “the Applicant’s Confession”.

6.Thereafter, the applicant was under judicial custody and lodged as an under trial prisoner at Central Jail, Vadodara.  On 28 April 2011, the applicant was collected from the jail and to a local hospital where he received medical treatment.  Afterwards, when the party was returning to the Central Jail, he was un-cuffed and allowed to wash his face.  The applicant suddenly crossed the road and rode off on a motorcycle.  The police officers gave chase but failed to catch the applicant.

B2.   Procedural events in Hong Kong leading to the Committal Order

7.The applicant was arrested in Hong Kong in March 2015 pursuant to the request made by India pursuant to the Agreement for the Surrender of Fugitive Offenders between the Government of Hong Kong and the Republic of India (“the Agreement”), scheduled to Fugitive Offenders (India) Order (Cap 503P).  Thereafter, the Government of India made a request for surrender together with supporting documents in May 2015.  The applicant was then brought before the magistrate for mention on 18 May 2015, and the case was adjourned to 1 June 2015 pending issuance of the authority to proceed by the CE under section 6(2) of the FOO.  The Acting Chief Executive thereafter issued the authority to proceed on 22 May 2015.

8.The committal hearing pursuant to section 10 of the FOO was eventually held on 22 October 2015.[1] The applicant was legally represented (not by Mr Ross but by a different counsel).  After the hearing, on 23 October 2015, the magistrate made the Committal Order committing him into custody to await the CE’s decision as to his surrender.

C.   APPLICABLE PRINCIPLES

9.Before I look at the grounds made in support of this application, it is useful to first set out some undisputed principles which are relevant to the present application concerning the FOO, the committal proceedings thereunder, and habeas corpus applications.

C1.   The FOO and its committal proceedings

10.Under section 3 of the FOO, the Chief Executive in Council may, in relation to any arrangements for the surrender of fugitive offenders, by order embodying the terms of the arrangement direct that the procedures in the FOO shall apply between Hong Kong and that place outside Hong Kong for the surrender of fugitives in Hong Kong and wanted in that place.  For the present purposes, the arrangement between Hong Kong and India in this respect is contained in the Agreement and set out in the Fugitive Offenders (India) Order.

11.Under section 4 of the FOO, a person in Hong Kong who is wanted in another place for prosecution in respect of a “relevant offence” against the law of that place may be arrested and surrendered to that place in accordance with the provisions of the FOO.

12.In relation to this, section 6(2) of the FOO provides that the CE may issue an authority to proceed upon receipt of a request for surrender by a prescribed place and, subject to provisional warrants of arrest (as provided under section 7(1)(b)), a fugitive shall not be dealt with in accordance with the provisions under the FOO except pursuant to an authority to proceed.

13.When a fugitive is arrested, he should be brought before a magistrate for committal proceedings under section 6 of the FOO.  The function of the Court of Committal is to determine, in accordance with section 10(6)(b)(i) ‑ (iii) of the FOO:

(1)   whether the offence to which the authority to proceed relates is a “relevant offence”;

(2)   whether supporting documents in relation to the offence have been produced and are duly authenticated; and

(3)   whether 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 Hong Kong.

14.Pursuant to section 10(2)(a) of the FOO, the Court of Committal shall:

“hear the case in the like manner, and have the like jurisdiction and powers, as nearly as may be... as if the person brought before it is charged with an indictable offence committed in Hong Kong; ...”

15.It was held that the phrase “as nearly as may be” is to be read consistent with the extradition legislation.  In this regard, it has been held that there is no right by the fugitive to cross-examine the foreign affidavit deponents or seek disclosure.[2]

16.Under section 10(6) of the FOO, once the magistrate was satisfied with the compliance of the requirements under section 10(6)(b) of the FOO at the Committal Hearing, he is under a mandatory obligation to commit the fugitive to custody to await the CE’s decision to surrender, unless the person’s committal is prohibited by any other provision of the Ordinance.

17.Thereafter, the CE in the exercise of his discretion may order the person to be surrendered as requested.  In this respect, section 5 of the FOO provides various statutory restrictions on surrender, which the CE would have to take into account to see if they can be shown to exist in the case under consideration.[3]

C2.   Habeas corpus application in the context of fugitive offenders proceedings

18.The writ of habeas corpus is a prerogative writ which gives the court power to grant an extraordinary remedy for persons who have been wrongfully deprived of their liberty.

19.In the context concerning surrender of fugitive offenders, this court sitting in habeas corpus proceedings is not a Court of Appeal from the magistrate concerning an order of committal made by him. The court is only to look at the lawfulness of the detention, which includes looking at whether the magistrate in making the committal order has committed any errors of law or whether his conclusion on the evidence is Wednesbury unreasonable, in that, whether it is one that no reasonable magistrate, properly directing himself in law, could commit.[4]

D.   THIS APPLICATION

20.In support of this application, the applicant, while acting in person, has filed various lengthy affirmations and written submissions to say in essence that he is innocent and did not commit the offences.  He also alleges that he was framed by the police in India and the confession made by him to the police in India was made involuntarily.  He also says that he would not get a fair trial in India.

21.Mr Ross, now representing the applicant, has fairly and rightly accepted at the hearing that he could not properly advance most of the above as grounds in support of the habeas corpus application, as these are matters that should only properly be considered by the CE when he is to decide whether to consent to the request for surrender.

22.Instead, Mr Ross has limited himself to three arguments to say why the custody is unlawful and hence the court should accede to this application.  I would deal with each of them in turn.

D1.   The provisional arrest had already been terminated and thus the applicant was not under lawful arrest when the authority to proceed was issued

23.Article 10(3) of the Agreement provides as follows:

“(3) The provisional arrest of the person sought shall be terminated upon the expiration of sixty days from the date of his arrest if the request for his surrender shall not have been received. This provision shall not prevent the re-arrest or surrender of the person sought if the request for his surrender is received subsequently.”

24.Mr Ross submits that, under Article 10(3) of the Agreement, the applicant’s provisional arrest as requested by India “shall be terminated” if the request for surrender has not been received by the Hong Kong Government 60 days from the date of his arrest.

25.The applicant was arrested on 21 March 2015.  Mr Ross says if the request for the applicant’s surrender is not received by the end of 20 May 2015 (ie, 60 days from 21 March 2015), the applicant’s provisional arrest “shall” be terminated, and the applicant is able to go free.  In the present case, Mr Ross contends that the authority to proceed was only issued on 22 May 2015 (ie, after 20 May 2015), and there was no evidence (whether primary or secondary) advanced by the respondents before the magistrate to show that the request for surrender was received before 20 May 2015.  In premises, Mr Ross argues, the applicant’s provisional had already been terminated and themagistrate did not have jurisdiction to deal with the applicant.

26.There is nothing in this argument.

27.As submitted by Mr Walsh (which is now backed by the transcript of hearing), at the hearing on 18 May 2015, Mr Hoe (then acting for the Government of India) expressly made it clear to themagistrate that India delivered and transmitted the request for surrender on 17 May 2015, and that that was made within 60 days of the applicant’s arrest.  This was not challenged or queried by the applicant’s then counsel.

28.Further, this fact that the Government of India made the request for surrender on 17 May 2015 is further confirmed on oath at paragraph 13 of Mr Close’s affirmation filed for the present purposes.

29.When viewed as such, I am satisfied that the above evidence and the 2^nd respondent counsel’s contemporaneous indication to themagistrate on 18 May 2015 of the making and receipt of the request for surrender show that the request for surrender was made on 17 May 2015, and hence within 60 days of the applicant’s arrest. The magistrate clearly had jurisdiction to deal with the applicant in the committal proceedings.

30.I therefore reject this ground.

D2.   There is no prima facie case of the drugs-related offences said to be committed by the applicant

31.Under this ground, Mr Ross says the real prima facie case against the applicant arising from the evidence (as quoted at paragraphs 5 and 6 above) rests essentially on the Applicant’s Confession made to the police.  This is so, Mr Ross contends, as without the confession, the other parts of the evidence cannot amount to a prima facie case where the applicant could be convicted of those offences.

32.Insofar as the Applicant’s Confession is concerned, Mr Ross submits that it is not admissible under Indian law as that was not made before a magistrate as required under sections 25 and 26 of the Indian Evidence Act 1872, which provide relevantly as follows:

“25.

Confession to police-officer not to be proved.

25 Confession to police-officer not to be proved. -No confession made to a police-officer, shall be proved as against a person accused of any offence.

26.

Confession by accused while in custody of police not to be proved against him.

26.   Confession by accused while in custody of police not to be proved against him. -No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.”

33.Mr Ross therefore says the magistrate was wrong in law in taking into account the Applicant’s Confession to determine whether there was a prima facie case against the applicant for committal, as under Indian law, that was not admissible.

34.I reject Mr Ross’ submissions.

35.As rightly submitted by Mr Walsh, insofar as the committal proceedings under the FOO are concerned, the magistrate needs only to be satisfied that the evidence presented by the requested party, ie, India in the present case, would support a prima facie case in accordance with Hong Kong law, as if the case had been committed in Hong Kong.

36.This is supported by the plain words of section 10(6)(b)(iii) of the FOO which provide as follows:

“(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; and” (emphasis added)

37.This is also supported by the Court of Appeal’s decision in Ho Man Kong v Superintendent of Lai Chi Kok Reception Centre [2012] 5 HKLRD 329, where, at paragraphs 11 - 13,Stock VP (as the learned NPJ then was) has held that section 10(6)(b)(iii) of the FOO engages the application of Hong Kong rules of evidence (including rules on admissibility) but not that of the requested country.

38.Mr Ross then further relies on Article 8(3) of the Agreement and submits that this Article, which shall override any inconsistent provisions in the FOO by reason of section 3 thereof, supports that it is the rules of evidence of India that the magistrate should have regard to in deciding whether the evidence presented supports a committal for trial.

39.Article 8(3) of the Agreement provides as follows:

“(3) If the request relates to an accused person, it shall also be accompanied by a copy of the warrant of arrest issued by a judge, magistrate or other competent authority of the requesting Party and by such evidence as, according to the law of the requested Party, would justify his committal for trial if the offence had been committed within the jurisdiction of the requested Party.” (emphasis added)

40.With respect, I have difficulty in understanding why this Article supports Mr Ross’ contention.  The references in it to the “requested Party” means Hong Kong.  Hence, this Article is consistent with section 10(6)(b)(iii) of the FOO, in that the evidence presented by India in a request for surrender would, “according to the law of [Hong Kong]”, justify the arrested person’s committal for trial “if the offence had been committed within the jurisdiction of [Hong Kong]”.

41.I would therefore also reject this ground.

D3.   There is no offence of escaping lawful custody under the Indian penal code

42.In addition to the above ground, Mr Ross also says the Government of India cannot show that there is an offence of escaping from lawful custody.  In particular, Mr Ross says all the penal codes referred to in the affidavit made by the Deputy Commissioner of Police of the Vadodara City in support of the request for surrender does not show that there is such an offence which can be made against the applicant.

43.Given my above conclusion under grounds 1 and 2, strictly speaking it is not necessary to deal with this ground as, even if the applicant is successful under this ground, which relates only to the offence of escaping lawful custody, the Committal Order is still lawful and valid given the above reasons.

44.However, for completeness, I would deal with this ground briefly.

45.This ground is without merits for the following reasons.

46.The relevant conditions precedent for the making of a valid committal order are those set out under section 10(6)(b) of the FOO, which provides as follows:

“(6) Where-

(a) ...

(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-

...”

47.Thus, under section 10(6)(b)(i), the Court of Committal has to be satisfied as one of the preconditions for committal that an offence stated in the authority to proceed (as relied on by the requesting party) is a “relevant offence”.

48.Section 2(2) of the FOO further defines a “relevant offence” as follows:

“(2) For the purposes of this Ordinance, an offence by a person against the law of a prescribed place is a relevant offence against that law if-

(a) the offence is punishable under that law with imprisonment for more than 12 months, or any greater punishment; and

(b) the acts or omissions constituting the conduct in respect of which the person's surrender to that place is sought amount to conduct which, if the conduct had occurred in Hong Kong, would constitute an offence-

(i) coming within any of the descriptions specified in Schedule 1; and

(ii)    punishable in Hong Kong with imprisonment for more than 12 months, or any greater punishment.”

49.On a plain construction, under section 2(2)(a), insofar as the foreign offence as relied on by the requesting Party is concerned, all that the Committal Court has to be satisfied is that that offence as stated is one which is punishable with an imprisonment for more than 12 months in that place.  In contrast to section 2(2)(b), which expressly refers to the conduct of the fugitive for the consideration of whether that would constitute an offence in Hong Kong had it occurred in Hong Kong, the court under section 2(2)(a) is not required to be satisfied that the fugitive’s conduct do constitute that foreign offence under the law of that place.  That is clearly to, among others, exclude the need for the Court of Committal in Hong Kong to be engaged and entangled in any debate on foreign law as to what are the constituent elements of that foreign offence and whether the fugitive conduct prima facie fits that offence.

50.The Court of Appeal in Ho Man Kong, supra, has also looked at the significance in the focus on the underlying conduct of the conduct under section 2(2)(b) but not under section 2(2)(a).  Seizing on that difference in emphasis, the Court of Appeal concluded that, insofar as the committal in Hong Kong is concerned, the Hong Kong court is not concerned with matching the offences said to be committed at the prescribed place with the offences that based on the same underlying conducts could prima facie be regarded as committed by the wanted fugitive in Hong Kong.

51.The Court of Appeal explains this in Ho Man Kong, supra, at paragraphs 31(7) - (9) as follows:

“(7) Mr McCoy’s submission [counsel for the wanted person], on the other hand, was that there must be a disciplined correlation between the description of offences specified in the arrest warrant issued in the jurisdiction of the prescribed place and the offences described in the committal order. We did not agree with Mr McCoy’s submission.

(8) There can be no question but that the warrant of arrest in this case related to an offence in respect of which the appellant is wanted for prosecution in Australia and that the conduct in respect of which the warrant was issued is the same conduct underlying the authority to proceed. It is difficult to see why anything additional was required. The point was made in Cosby v Chief Executive HKSAR 23 that:

An analysis of the Fugitive Offenders Ordinance reveals certain key features ... They are:

(1) that the statutory regime directs the Chief Executive in the exercise of his duties under this Ordinance to the conduct of the fugitive in respect of which a surrender is sought by the requesting jurisdiction;

(2) that the same statutory regime directs the magistrate to the conduct of the fugitive revealed by the evidence placed before the magistrate at a committal hearing; and

(3) that neither the Chief Executive nor the magistrate is required to, nor should they, engage upon a study of the constituent elements of the foreign offence with which a wanted person has been charged, nor is either required to match the foreign offence with a local offence.

There is an important difference for the purpose of the Ordinance between the law of the requesting jurisdiction (‘the law of the prescribed place’), and a relevant offence against that law. ... the courts and the Chief Executive are concerned with the law of the requesting jurisdiction to the extent only that it is necessary to see whether the offence described by that law carries a term of 12 months' imprisonment or more, and (sometimes) to see whether the law of the requesting place embraces that which is known in extradition law as the specialty requirement.

The point was further made in that judgment that:

The Fugitive Offenders Ordinance ... has to cater for co-operation with territories which embrace disparate legal concepts, and crimes framed quite differently from ours. Hong Kong's extradition legislation, as well as its extradition agreements, therefore strive to minimise the circumstances in which either the executive or the courts are required to examine the law of the requesting jurisdiction, and to maximise the emphasis upon conduct which in Hong Kong would constitute a scheduled crime.

(9) It follows that there is no need for a match between the description of offence in the foreign warrant and the description of the offence in the committal order.”

52.In the premises, in determining whether the applicant shall be committed in Hong Kong under section 10(6)(b) of the FOO, the magistrate in the present case needs not be concerned with whether there is indeed the offence of escape from lawful custody in India as committed by the applicant, as long as (a) the Government of India has shown that the penal codes they rely on to say that the offence has been committed by the applicant is punishable with imprisonment for more than 12 months (which they have done so by referring to the various penal codes in the Deputy Commissioner’s affidavit); and (b) the applicant’s conduct as complained of, if it had occurred in Hong Kong, supports an offence in Hong Kong that comes within any of the description under Schedule 1 and is punishable in Hong Kong with imprisonment for more than 12 months (this is also established as paragraph 37 of the Schedule 1 provides for “Offences relating to unlawful escape from custody...” and there is no dispute that these offences in Hong Kong are punishable with imprisonment for more than 12 months).

53.There are therefore no merits as a matter of law in Mr Ross’ above contention under this ground.

54.Further, and in any event, even if (which I disagree for the above reasons) the court had to consider whether the relevant Indian penal codes do create offences relating to escape from custody, I am satisfied that they do.

55.Mr Walsh submits that sections 216 and 224 of the Indian Penal Code (“IPC”) (which are quoted in the Deputy Commissioner of Police’s affidavit) clearly create substantive offences of escaping lawful custody for which a person is held for any offence.

56.I agree.

57.Sections 216 of IPC provides relevantly as follows:

“IPC Section : 216Harboring offender who has escaped from custody or whose apprehension has been ordered.

(1) Whenever any person convicted of or charged with an offence, being in lawful custody for that offence, escapes from such custody;

Or Whenever a public servant, in the exercise of the lawful powers of such public servant, orders a certain person to be apprehended for an offence, whoever, knowing of such escape or order for apprehension, harbours or conceals that person with the intention of preventing him from being apprehended, [shall] be punished in the manner following, that is to say.

...” (emphasis added)

58.On any plain reading, the first paragraph of section 216(1) provides a clear offence against a person who escapes from lawful custody.

59.Mr Ross however argues that section 216(1) refers to a person escaping from custody for an offence that he was charged with.  There is nothing to show that the applicant was held in custody for any charged offences (which is not the offence of escaping custody itself).

60.There is nothing in this.  The Deputy Commissioner’s affidavit has deposed clearly at paragraphs 1(4), (5), 2 ‑ 9 that the applicant was charged with the drugs-related offences when he was held in custody.

61.Section 224 of the IPC also provides as follows:

“IPC Section : 224 Resistance or obstruction by a person to his lawful apprehension.

Whoever intentionally offers any resistance or illegal obstruction to the lawful apprehension of himself for any offence with which he is charged or of which he has been convicted, or escapes or attempts to escape from any custody in which he is lawfully detained for any such offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine; or with both.” (emphasis added)

62.Similarly, the plain words of section 224 (as italicised above) create offences directed against a person (say the applicant) who either resists lawful apprehension for any offence or who escapes from lawful custody for which he is held for any offence.

63.For these reasons, this ground is without any substance and must be rejected.

D4.   Other allegations made by the applicant

64.As I mentioned above, other than the above legal submissions made by Mr Ross, the applicant in his various affirmations seek to raise in summary the following allegations to support his habeas corpus application:

(1)   The supporting documents for the request for surrender have not been properly authenticated as the relevant certificates of authenticity are not signed by someone authorized by the court of India as required under Article 12(2) of the Agreement.

(2)   The evidence provided is insufficient to support the Committal Order.

(3)   Surrender should be refused since the accusation against him is not made in good faith or in the interest of justice and there exist valid humanitarian grounds for refusal of surrender.

(4)   He is able to invoke the race, religion, nationality or political opinion restriction under Article 6 of the Agreement.

(5)   His surrender is contrary to Article 3 of the Hong Bill of Rights in that he would be subjected to cruel, inhuman or degrading treatment and punishment (“CIDTP”).

65.Mr Ross has not sought to advance any of these grounds in his submissions and fairly accepted that they do not constitute proper grounds for the habeas corpus application.

66.However, for completeness, I would deal with them quickly.

67.I would, accepting Mr Walsh’s submissions, also dismiss these grounds relied on by the applicant himself for the following reasons.

68.First, I reject the ground that the supporting documents have not been properly authenticated:

(1)   Section 23(1) ‑ (2) of the FOO provide that:

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

(b)   Any supporting document or other document shall be deemed to be duly authenticated if it:

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

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

(2)   The supporting documents in the present case are provided under four Certificates of Authentication signed by Mr Deepankar Aron of Consulate General of the Republic of India in Hong Kong.  The Certificates of Authentication are bound with the respective bundles of supporting documents by red tapes with the seal affixed.

(3)   The admissibility requirements under section 23(2) of the FOO have been complied with through the use of global Certificate of Authentication.  As held by the House of Lords in Oskar v Government of Australia [1988] 1 AC 366, per Lord Ackner:

“... the section does not require each statement to carry on its face a certificate from the magistrate. Such a requirement would be highly artificial. The section is compiled with if there is a separate certificate, which sufficiently identifies all the statements which it certifies, as in the instant case, where they are all tied together...”

(4)   The applicant however contends that under Article 12 of the Agreement, a document can only be authenticated through the signature or certification of a judge, magistrate or an officer “of the court” authorized by the requesting part.  He also contends that the Consulate General of the Republic of India in Hong Kong is an executive branch of India and it cannot play the role of judiciary within and outside of India to authenticate documents.

(5)   The applicant further contends that all supporting documents are signed and certified by an executive magistrate who is not empowered by the High Court of India to affirm affidavits.  As such, they are not admissible in the surrender proceedings.

(6)   These submissions are untenable.

(7)   Article 12(2) of the Agreement provides:

“(2) A document is authenticated for the purposes of this Agreement if:

(a) it purports to be signed or certified by a judge, magistrate or other officer authorized by the requesting Party; and

(b) it purports to be sealed with an official or public seal of the requesting Party or of an officer of the requesting Party.” (emphasis added)

「 (2) 就本協定而言，經以下方式處理的文件為經認證文件：

(a) 看來經要求方的法官、裁判官或其他要求方授權的政府官員簽署或證明；及

(b)  看來經要點方或要求方的政府官員蓋上官方印章或公印者。」

(8)   The applicant’s interpretation of Article 12(2) imposes an unwarranted restriction on the words “other officer authorized by the requesting party”.  The words “of the court” he has prayed for are simply not there and illusory.

(9)   The Chinese text of the relevant words in Article 12(2) of the Agreement – 「  其他要求方授權的政府官員」 – also negates the applicant’s contention.  Obviously, reading the English text and the Chinese text together, the only qualification imposed by Article 12 of the Agreement on the word “officer” (政府官員) is that he must purported to be “authorized by the requesting party” (要求方授權的).  This point is also valid in respect of section 23(2) of the FOO.

(10)    The four global Certificates of Authentication all expressly stipulated that Mr Deepankar Aron as “having been duly authorized by the Republic of India”.  As such the requirements under section 23(2) of the FOO and Article 12(2)(a) of the Agreement have been met.

69.Secondly, I also reject the contentions that there is insufficiency of evidence to support the committal:

(1)   Under section 10(6)(b)(iii) of the FOO, there must be sufficient evidence for the Court of Committal to find a prima facie case had the conducts occurred in Hong Kong.  See: Ex parte Scharks [1964] AC 556 at 580; Ex p Osman (No 1) [1990] 1 WLR 277 at 299 - 300; AG v Li Fook Shui [1990] 1 HKC 1 at 12H-13C applied in SJ v Tang Sau Ling [2013] 2 HKLRD 174 at paragraphs 19 - 20.

(2)   The applicant contends that the evidence provided in the supporting documents is insufficient to convict him on trial, he gives various examples of the alleged insufficiency and deficiencies, eg, lack of finger print and DNA evidence, no photograph, unreliability of the chemical test reports, etc.

(3)   There is no need to go into these details in the instant proceedings.  They are plainly matters for trial in India.  The only question which concerns the Court of Committal is whether there is sufficient evidence for a prima facie case in relation to the Hong Kong offences if the conducts alleged against the applicant occurred in Hong Kong.  I am satisfied that there is such sufficient evidence for the magistrate to so form the view.  Alternatively, it certainly cannot be said that the magistrate’s said conclusion is Wednesbury unreasonable.

70.Third, the applicant claims that, if surrendered, he will be subject to prosecution or would be prejudiced at his trial on account of his race and nationality.[5] He claims that the drug offences are perpetrated as a “vengeance” by the local Indians and his driver in an effort to remove a Chinese from Gujarat.

71.In my view, these are mere assertions made by the applicant, which are subjective and speculative in nature, and not supported in any way by any objective or circumstantial evidence.  In particular, these specific allegations were not even made at the committal hearing before the magistrate (when the applicant was already legally represented) and thus bear the hallmarks of an afterthought.[6]  In the circumstances, I am not satisfied at this stage that the applicant has made out a case that there are questions of race and nationality that would prejudice his trial in India.

72.Fourth, the applicant contends that pursuant to Article 6(4)(c) ‑ (d) of the Agreement, it would be unjust and oppressive to return him to India.  These provide that the surrender sought by India may be refused if it appears to the Government of Hong Kong (as the requested party) that it would be unjust or oppressive to return the fugitive because “the accusation made against [the fugitive] is not made in good faith or in the interests of justice” or “there exist valid humanitarian grounds”.

73.There is nothing in this.

74.In Huang Yuan Yuan Ian v Superintendent of Lai Chi Kok Reception Centre & Anor (HCAL 103/2005, unreported, 11 January 2006), Hartmann J held at paragraphs 78 - 88 that the court has no jurisdiction to make an order pursuant the equivalent article in the surrender agreement between Hong Kong and Singapore. It is a matter for the CE at the executive phase of surrender.  His Lordship observed at paragraph 88 that:

“I am satisfied, therefore, that this court has no jurisdiction to make an order pursuant to art.6(1)(b) [of the agreement between Hong Kong and Singapore, which is similar to Article 6(4)(c) - (d) of the Agreement]. Should it reach that stage, the applicant will be able to make representations to the Chief Executive concerning his assertion that, by reason of the culpable conduct of the Singaporean authorities, it would be oppressive to surrender him to Singapore. The Chief Executive will, in making his executive decision, be able to weigh those representations in the Hong Kong’s international obligations and come to a rational decision on the matter. It is not, however, for this court at this time to usurp the power of the Chief Executive either by ordering him not to surrender the applicant or to make a declaration that it would be oppressive to do so.”

75.Finally, the applicant argues that his life would be at risk and that he would be subject to ill-treatment if surrendered.  In doing so, he seeks to invoke Article 3 of the Hong Kong Bill of Rights.

76.In support, the applicant claims that he has been subject to police abuse and torture which resulted in the confessions by him.  He claimed that, if returned, he would be subject to the “wrath of superintendents of the Indian Revenue Services” because of his prior complaints of corruption, extortion, etc.  He also claims that “fears of police officials suspected and charged with abetting [his] escape... poses serious threat to his life if returned to... India”.

77.The applicant has also presented in his affirmations alleged examples of breaches of human rights norms and other improper activities of Indian law enforcement agencies in support of his claim.

78.The applicant’s contentions in this regard are irrelevant to these proceedings and thus do not support the habeas corpus application.

79.Under the FOO, the court is only concerned with the restrictions in accordance with section 5 of the FOO.  The wider aspect of risks of torture, persecution and CIDTP is to be dealt with at the executive phase of surrender and the Unified Screening Mechanism (“USM”).[7]  As this court has observed in Xiao Hui v Symon Wong Esq, Magistrate (HCAL 66/2014, 13 June 2014, Au J) at paragraph 14:

“(1) ... The committal proceedings are but only one of the stages (as recognised by the applicant) leading to the Chief Executive’s ultimate decision of whether or not to make a surrender order under the FOO.

(2) This is particularly so in light of the following:

(a) It is pertinent to note that even if a person is committed under the committal proceedings envisaged in the FOO, the Chief Executive (‘CE’) has a discretion under s 13(1) of the FOO to decide whether or not to make a surrender order.

(b) Further, ss 13(2A) and (2B) of the FOO expressly provide that the CE should either not to make an order for surrender, or if one is already made, suspend its execution, before a committed person’s torture claim (if lodged) is determined. I of course note that the torture claims in these provisions are by definition ones that are made under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’), which are different from the applicant’s asylum claims. However, these provisions were added in 2012 before the Court of Final Appeal’s decisions in Ubamaka v Secretary for Security and C v Director of Immigration were handed down, whereby the Court of Final Appeal have decided (contrary to the Government’s hitherto belief and practice) that the Director has a duty to screen the types of claims now made by the applicant under the BORO and the Refugee Convention. It was in light of these decisions that the Government has implemented the USM to screen also the types of the claims as the applicant’s asylum claims.

(c) In these circumstances, if the applicant is eventually committed under the committal proceedings, I would expect that the CE would take into account the applicant’s asylum claims in deciding whether to exercise his discretion to make a surrender order against the applicant.

(d)    Moreover, the committal proceedings are only to determine if there is a prima facie case as to whether the applicant has committed the offences the Australian authority says he has.  The committal itself is not the making of the order of surrender. ...”

E.   CONCLUSION

80.For all the above reasons, I dismiss this habeas corpus application.[8] I further order, on a nisi basis that costs of this application be to the respondents, to be taxed if not agreed, with certificate for two counsel.

Mr Phillip Ross, instructed by Ivan Tang & Co, for the applicant

Mr Wayne Walsh SC, DLO and Mr Felix CY Hoe, SGC, of the Department of Justice, for the 1^st and 2^nd respondents