Xie Jing Feng Aka David Chow v. Chief Executive of Government of HKSAR

HCAL 349/2018

[2019] HKCFI 2115

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 349 OF 2018

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Before: Hon Chow J in Court

Date of Hearing: 22 August 2019

Date of Decision:  5 September 2019

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D E C I S I O N

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1.The Applicant is the subject of extradition proceedings pursuant to a request made by the Government of India for his surrender to face criminal prosecution for drug-related offences and escaping from lawful custody offences in India. The basic facts relating to his case were set out in this court’s previous decision given on 8 April 2019 (“the Decision”) on the Applicant’s second application for a writ of habeas corpus in respect of his current detention in Hong Kong (Xie Jing Feng v Hong Kong SAR Government [2019] 2 HKLRD 780), and will not be repeated here.

2.On 5 March 2018, the Applicant made the present application for leave to apply for judicial review of the Order for Surrender of the Applicant to India made by the Chief Executive on 7 February 2018 pursuant to Section 13 of the Fugitive Offenders Ordinance, Cap 503 (“the Ordinance”).  The hearing on 22 August 2019 was originally fixed to consider the application for leave to apply for judicial review.  However, in view of the Putative Respondent’s request for time to enable the Department of Justice to seek clarification with the Indian Government on a matter which it was said might be relevant to the execution of the Order for Surrender and with the agreement of the parties, the court directed that the present application for judicial review should be dealt with on a rolled-up basis.  Directions for the further conduct of this matter will be set out at the end of this decision.

3.There were also before the court:

(1)  the Applicant’s two summonses issued on 29 July 2019 and 14 August 2019 respectively; and

(2)  the Applicant’s application by letters dated 19 June 2019 and 2 July 2019 respectively seeking production of a copy of the Request for Surrender from the Government of India to the Government of Hong Kong dated 17 May 2015.

4.The two summonses merely listed a number of documents which were also referred and attached to the Applicant’s affirmations dated 19 June 2019 and 14 August 2019 respectively, but did not seek any order or relief from the court. The Applicant confirmed at the hearing on 22 August 2019 that he did not in fact seek any order or relief from the court under the two summonses.  Accordingly, the court ordered that no order be made on the summonses.

5.In so far as the Applicant’s application for production of the Request for Surrender was concerned, the Applicant submitted that the Request for Surrender was the source document which activated the extradition proceedings against him, without which the Chief Executive would have no power to issue the Authority to Proceed or the Order for Surrender, and he sought production of the Request for Surrender as evidence to establish the lawfulness or otherwise of the Order for Surrender made by the Chief Executive.  The Applicant also complained that the Request for Surrender was not produced before the Court of Committal, and suspected that the Request for Surrender might not have been validly made by a person in accordance with the requirements of Section 6(1)(a) of the Ordinance.

6.At the hearing on 22 August 2019, the Applicant summarized the grounds of his present application for judicial review of the Order for Surrender as follows:

(1)  His applications for a writ of habeas corpus were pending (in that there were still outstanding appeal proceedings), and thus he could not lawfully be removed from Hong Kong by reason of Section 22A(11) of the High Court Ordinance, Cap 4 and Section 12(1) of the Ordinance.

(2)  He had made a fresh non-refoulement claim based on his right to life under Article 2 of the Hong Kong Bill of Rights.

(3)  He would face a substantial risk of a death penalty should he be returned to India to face criminal trial and convicted of the offences for which his extradition was sought.

(4)  He would be subjected to torture should he be surrendered to India.

7.The merits of these grounds of judicial review will have to be determined at the rolled-up hearing of the application for judicial review.  I am unable to see how the Request for Surrender sought by the Applicant is relevant to the aforesaid grounds of judicial review.

8.The Applicant has not produced any evidence to support his suspicion that the Request for Surrender may not have been validly made by a person in accordance with the requirements of Section 6(1)(a) of the Ordinance. There is no basis for the court to order the Putative Respondent to produce a copy of the Request for Surrender to the Applicant merely because of his suspicion of its invalidity.

9.The Applicant’s complaint about the non-production of the Request for Surrender before the Court of Committal was also raised by him in his second application for a writ of habeas corpus, and was dealt with in paragraphs 15 to 19 of the Decision.

10.For the above reasons, the Applicant’s application for production of a copy of the Request for Surrender is dismissed.

11.The following directions are given for the further conduct of the present application:

(1)  There shall be a rolled-up hearing of the application for leave to apply for judicial review and the substantive application for judicial review on 22 November 2019, at 10:00 am, with 1 day reserved.

(2)  The Putative Respondent shall have leave to file and serve evidence on or before 4 October 2019.

(3)  The Applicant shall have leave to file and serve evidence in reply (if any) within 21 days thereafter.

(4)  No further evidence may be filed or served without leave of the court.

(5)  The above directions shall supersede the previous directions given by the court on 20 November 2018.

12.Finally, I make an order that the costs of the hearing on 22 August 2019 be in the cause.

The Applicant acting in person

Mr Mark Chan, GC of Department of Justice, for the Putative Respondent