Ramanjit Singh Alias Romi v. The Government of the Republic of India

CACC 210/2020

[2021] HKCA 1348

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 210 OF 2020

(ON APPEAL FROM HCMA NO 139 OF 2020)

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D E C I S I O N

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Hon Zervos JA (giving the Decision of the Court):

1.By notice of motion dated 23 July 2021, the applicant seeks a certificate pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, on a point of law of great and general importance and with respect to the judgment of this Court given on 16 July 2021 in the following terms:

Whether the offence of escape from lawful custody is an offence for which surrender may be granted, coming within Article 2(1)(xxxiv) of the Schedule to the Fugitive Offenders (India) Order, Cap 503P, Laws of Hong Kong, and thus a relevant offence in the context of section 10(6)(b) of the Fugitive Offenders Ordinance? 

2.The focus of this appeal was whether the offence of “escape from lawful custody” was an offence coming within Article 2(1)(xxxiv).  As pointed out by Mr Simon Young, counsel for the applicant, in his submission in support of this application, the matter in issue comes down to the interpretation and application of the two main conditions in Article 2(1)(xxxiv), namely (1) the offences are punishable by imprisonment for at least one year; and (2) the offences are those for which surrender may be granted in accordance with the laws of both parties.

3.The applicant took no issue in respect of the first condition, but argued that the second condition had not been satisfied.  However, what has been left out is the opening statement of Article 2(1)(xxxiv), namely, “Any other offences not referred to in the previous items of this paragraph”, and the contextual relevance of the item within the extradition regime between the parties.  In the thirty-three previous items, offences are described in respect of which extradition can be sought by the parties.  The thirty-fourth item is a “catch-all clause” of offences that satisfy the two conditions stated therein.

4.As noted in our judgment it was a requirement under Article 2(1)(xxxiv) that the offence is one for which surrender may be granted in accordance with the laws of both parties.  We explained that in Hong Kong the offence in question, “escape from lawful custody”, must be an offence listed in Schedule 1 to the FOO, which it was by virtue of items 26 and 37.  Whereas, in India, it must be an “extradition offence” as defined under section 2(c)(i) of the Indian Extradition Act, namely “an offence provided for in the extradition treaty with that State”.[1]  Put simply, we concluded that Article 2(1)(xxxiv) was a “catch-all clause” which included justiciable criminal offences in India where the offence was punishable by imprisonment for at least one year.[2] 

5.We rejected Mr Young’s argument that, when assessing if the offence is provided for in the extradition arrangement between the parties, only offence descriptions in items (i) to (xxxiii) were to be considered and not item (xxxiv) because of the circularity between Article 2(1)(xxxiv) and section 2(c)(i) of the Extradition Act.  According to Mr Young, these two provisions referred to each other as to what constituted an extraditable offence and hence created an “infinite loop”.  As we stated in our judgment, the purported circularity was broken by the very nature of Article 2(1)(xxxiv) being a “catch-all clause”.[3]

6.The issue before us was simply a question of interpretation of Article 2(1)(xxxiv) in its contextual legal framework, notwithstanding the additional collateral points that had little if any bearing on the main issue. 

7.We do not find that the point of law raised by this application is one of great and general importance, meriting an appeal to the Court of Final Appeal.  The certificate is therefore refused.

Mr Simon Young, instructed by Boase Cohen & Collins, for the applicant

Mr Wayne Walsh SC, counsel on fiat, Ms Dora Si, DPGC (Ag) and Mr Kevin Chan, SGC (Ag), of the Department of Justice, for the respondent

[1] At paragraphs 87-90.

[2] At paragraphs 80-85.

[3] At paragraphs 74, 75 and 86-39.