RAMANJIT SINGH alias ROMI v. THE GOVERNMENT OF THE REPUBLIC OF INDIA

CACC 210/2020

[2021] HKCA 865

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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J U D G M E N T

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

Introduction

1.  This appeal concerns whether the appellant can be extradited for offences relating to “escape from lawful custody” under the extradition arrangements between Hong Kong and the Republic of India.  It raises a question concerning the statutory construction of provisions of the relevant extradition legislation and agreement which define the nature and scope of extraditable offences for the surrender of fugitive offenders between the parties.

2.  The Republic of India requested the arrest and surrender of the appellant in respect of a number of criminal charges, and as a result he was brought before a court of committal, to determine whether he should be committed to custody to await the Chief Executive’s decision on his surrender. At the conclusion of the proceedings, the magistrate who heard the application committed the appellant to custody on certain offences but refused to do so in respect of offences of “facilitating or permitting the escape of a person from custody” and “offences relating to unlawful escape from custody”.[1] He found that these offences did not come within Article 2(1)(xxxiv) of the Schedule to the Fugitive Offenders (India) Order, Cap 503P, (FO(I)O), and did not constitute relevant offences in the context of section 10(6)(b) of the Fugitive Offenders Ordinance, Cap 503, (FOO). 

3.  The Republic of India brought an appeal by case stated against the magistrate’s decision, which was overturned by a judge in the Court of First Instance.  The appellant now appeals that judgment.

The background facts

4.  The appellant is a national of India and also a permanent resident of Hong Kong, whose extradition is sought by the Government of the Republic of India on the basis that he is wanted for prosecution in India for two cases.

5.  The first case relates to the appellant’s arrest in India for possession of firearms and ammunition, and forged credit cards. 

6.  The second case relates to the appellant’s alleged participation in a criminal conspiracy to plan the escape of six prisoners from the maximum security jail in Nabha, Punjab and to provide financial assistance to carry it out.  The appellant is alleged to have participated in the plan for the jailbreak while he was in prison with the six escapees, following his arrest for the first case.  Briefly, he is alleged to have had meetings with the inmates in which he agreed that when he got out of jail he would go to Hong Kong and send funds for the purchase of arms to be used for the jailbreak. After the appellant was released from custody on bail, he fled to Hong Kong. He sent from Hong Kong a series of remittances to a man in India known as Mani Sekhon for the purpose of the jailbreak as agreed.  The jailbreak took place on 27 November 2016.  It involved a group of men, including Mani Sekhon, who went to the jail disguised as police officers, purporting to escort a prisoner.  The men were armed with rifles and overpowered the prison guards, firing indiscriminately and snatching more weapons from the prison guards.  The men then drove away from the jail with the six escapees.

The legal framework

7.  Before we address the issue in this appeal, it is necessary to provide an overview of the legal framework of the extradition arrangements between Hong Kong and the Republic of India.

8.  The fundamental imperative of extradition agreements between states is to ensure fugitive offenders are brought to justice.  In general terms, extradition is the delivery by one state to another of persons accused or convicted of crimes committed and justiciable in one state who have fled to another.  The surrender of a wanted person for prosecution in another state is subject to the extradition process under Hong Kong law which involves a judicial inquiry to determine whether the formalities of the request to surrender made by the requesting state have been met and no grounds exist for refusing surrender.  It does not involve an inquiry into whether the person is in fact guilty of the offence for which surrender is sought.  However, persons are only surrendered to states with which Hong Kong has reached extradition agreements, and it is taken that a wanted person will receive a fair and impartial trial in the requesting state.[2]

9.  It is important to understand that extradition arrangements are entered into with other states as an international treaty based on mutual trust and cooperation, and hence there is a strong public interest in the achievement of the aim of fulfilling international obligations in bringing to justice fugitive offenders accused of serious crime.  This was explained by Lord Brown in Gomes v Government of Trinidad and Tobago [2009] UKHL 21, who, giving the opinion of the Committee, said:

“The extradition process, it must be remembered, is only available for returning suspects to friendly foreign states with whom this country has entered into multi-lateral or bilateral treaty obligations involving mutually agreed and reciprocal commitments. The arrangements are founded on mutual trust and respect. There is a strong public interest in respecting such treaty obligations. As has repeatedly been stated, international cooperation in this field is ever more important to bring to justice those accused of serious cross-border crimes and to ensure that fugitives cannot find safe havens abroad.”[3]

10.  In the lead up to the change of sovereignty on 1 July 1997, the Hong Kong government had to negotiate new extradition agreements with various states. For this purpose a model agreement was approved as a basis for negotiations. Agreements were negotiated and agreed in anticipation of the enactment of the FOO, which came into effect on 25 April 1997.  It sets out the legal process for the surrender of fugitive offenders, and by way of subsidiary legislation recites the extradition agreement with a particular state as an order.  

11.  Section 3 of the FOO empowers the Chief Executive to make an order which directs that the procedures in the FOO shall apply in relation to any arrangements for the surrender of fugitive offenders which are applicable to Hong Kong and a place outside Hong Kong, subject to the limitations, restrictions, exceptions and qualifications contained in the order.

12.  The surrender of fugitive offenders between Hong Kong and the Republic of India is governed by the terms of the Agreement for the Surrender of Fugitive Offenders (the Agreement), signed on 28 June 1997.  The Agreement became operative on 14 November 1997 pursuant to an order passed by the Chief Executive under section 3 of the FOO.  The FO(I)O recites the provisions of the Agreement as a Schedule to it. 

13.  By virtue of the FO(I)O, India is a “prescribed place” as defined under section 2 of the FOO, which means “a place outside Hong Kong to or from which a person may be surrendered pursuant to prescribed arrangements”.  Section 2 also provides a definition for “prescribed arrangements”, which means “arrangements for the surrender of fugitive offenders which are the subject of an order under section 3(1) which is in force”.  Section 3(1) reads:

“(1) Subject to subsection (9), the Chief Executive in Council may, in relation to any arrangements for the surrender of fugitive offenders, by order-

(a) reciting or embodying the terms of the arrangement;

(b) specifying the extent, if any, to which any relevant enactment specified in the order is to be repealed or amended,

  direct that the procedures in this Ordinance shall apply as between Hong Kong and the place outside Hong Kong to which the arrangements relate, subject to the limitations, restrictions, exceptions and qualifications, if any, contained in the order.”

14.  A request for the surrender of a fugitive may be made by a prescribed place in respect of a relevant offence.  It is provided by section 4 that a person in Hong Kong “who 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 may be arrested and surrendered to that place in accordance with the provisions of this Ordinance.”

15.  Section 2(2) 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 persons 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 description specified in Schedule 1; and

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

16.  Schedule 1 lists 46 descriptions of offences, including for the purposes of this appeal items “26. Facilitating or permitting the escape of a person from custody.” and “37. Offences relating to unlawful escape from custody; mutiny in prison.” 

17.  It is a requirement under section 6(1) and (2) that a person shall not be dealt with under Part 2 of the FOO except pursuant to an authority to proceed issued by the Chief Executive pursuant to a request for surrender issued and transmitted from the requesting state.  When a wanted person is arrested, it is required under section 7 the he be brought before a magistrate as soon as practicable. 

18.  The magistrate constitutes a court of committal for the purposes of dealing with the person under Part 2 of the FOO.  Section 10(6), so far as material provides:

“(6) 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; and

…

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.”

19.  If the magistrate is satisfied of the matters in section 10(6), and no grounds exist for refusing surrender, then he shall commit the person to custody to await the Chief Executive’s decision as to surrender.[4] Section 5 stipulates various grounds for refusing surrender of persons to prescribed places, including where the offence in question is of a political character.

20.  As provided by section 2(2), the two requirements that need to be satisfied in order to constitute a relevant offence are: (1) the offences are punishable with imprisonment for more than 12 months; and (2) the acts or omissions constituting the conduct in respect of which the surrender request is made amount to conduct which, if the conduct had occurred in Hong Kong, would constitute offences in Hong Kong, that come within the description of offences specified in Schedule 1 and are punishable with imprisonment for more than 12 months.

21.  In similar terms contained in section 3(1) of the FOO, section 2 of the FO(I)O directs that in relation to the arrangements for the surrender of fugitive offenders, which are applicable to Hong Kong and India and recited in the Schedule, the procedures in the FOO are to apply “subject to the limitations, restrictions, exceptions and qualifications contained in those arrangements as so recited.” 

22.  The Schedule recites the Agreement for the surrender of fugitive offenders between the Government of Hong Kong and the Government of the Republic of India.  It states that the Agreement is authorised by the respective governments and is to make provision for the reciprocal surrender of fugitive offenders.  The terms of the Agreement are set out as articles.  Article 1 provides for the obligation to surrender.  It states that it is agreed by the parties to surrender to each other, subject to the provisions laid down in the Agreement, any person who is found in the jurisdiction of the requested party and who is wanted by the requesting party for prosecution or for the imposition or enforcement of a sentence in respect of an offence under Article 2 of this Agreement whether such an offence was committed before or after the entry into force of the Agreement. 

23.  Article 2(1) lists the descriptions of offences on which surrender of a fugitive offender can take place under the FO(I)O.  We have set out this article in full because it is particularly relevant to the issue in this appeal.  It reads:

“Surrender of fugitive offenders shall be granted for an offence coming within any of the following descriptions of offences in so far as it is according to the laws of both Parties punishable by imprisonment or other form of detention for at least one year, or by a more severe penalty—

(i) Murder, manslaughter or culpable homicide

(ii) Aiding, abetting, counselling or procuring suicide

(iii) Maliciously wounding; inflicting grievous bodily harm; assault occasioning actual bodily harm or causing injury whether by means of a weapon, a dangerous substance or otherwise

(iv) Bigamy

(v) Rape

(vi) An offence relating to women and girls

(vii) Indecent assault

(viii) Stealing, abandoning, exposing or unlawfully detaining a child

(ix) Gross indecency with a child

(x) Kidnapping; abduction; false imprisonment or unlawful detention, including the taking of a hostage; dealing in slaves

(xi) Offences against the law relating to drugs, including narcotics and psychotropic substances and precursors and essential chemicals used in the illegal manufacture of narcotic drugs and psychotropic substances

(xii) Obtaining property or pecuniary advantage by deception; cheating; criminal breach of trust; embezzlement or criminal misappropriation; theft; robbery; burglary; blackmail; handling or receiving stolen goods; false accounting or any other offence in respect of property involving fraud

(xiii) Offences relating to fiscal matters, taxes or duties, notwithstanding that the law of the requested Party does not impose the same kind of tax or duty or does not contain a tax, duty or customs regulation of the same kind as the law of the requesting Party

(xiv) Smuggling; offences against laws relating to the import and export of prohibited items, including historical and archaeological and other items

(xv) Conspiracy to commit fraud or to defraud

(xvi) Offences against bankruptcy law

(xvii) False statements by company directors and other officers

(xviii) Any offence against the law relating to false or misleading trade descriptions; counterfeiting of coins; or forgery or uttering what is forged

(xix) An offence against the laws relating to corruption, including bribery, secret commissions, and breach of trust

(xx) Perjury and subornation of perjury; attempting to pervert the course of justice

(xxi) Criminal damage, including arson, damaging property whether used for public utilities or otherwise with intent to endanger life or with reckless disregard as to whether the life of another would thereby be endangered

(xxii) Offences involving the unlawful use of computers

(xxiii) An offence against the law relating to firearms, including but not limited to the possession of a firearm or ammunition by a person who intends either himself or through another person to endanger life or the use of a firearm by a person with intent to resist or prevent the arrest or detention of himself or another person

(xxiv) An offence against the law relating to explosives, including but not limited to the causing of an explosion likely to endanger life or cause serious damage to property or the making or possession of an explosive substance by a person who intends either himself or through another person to endanger life or cause serious damage to property

(xxv) Sinking or destroying a vessel at sea; assaults on board a ship on the high seas with intent to destroy life or to do grievous bodily harm; revolt or conspiracy to revolt by two or more persons on board a ship on the high seas against the authority of the master

(xxvi) Piracy, involving ships or aircraft, according to international law

(xxvii) Genocide or conspiracy or direct and public incitement to commit genocide

(xxviii) Unlawful use, possession, control, seizure or hijacking of aircraft, vessels or other means of transportation

(xxix) Impeding the arrest or prosecution of a person who has or is believed to have committed an offence for which surrender may be granted under this Agreement and which is punishable according to the laws of both Parties by imprisonment or other form of detention of a period of five years or more

(xxx) Offences against the laws relating to the protection of public health and the environment

(xxxi) Offences relating to the possession or laundering of proceeds obtained from the commission of any offence for which surrender may be granted under this Agreement

(xxxii) Offences for which fugitive offenders may be surrendered under International Conventions currently applied

(xxxiii) Aiding, abetting, counselling or procuring the commission of, inciting, being an accessory before or after the fact to or attempting or conspiring to commit any offence for which surrender may be granted under this Agreement

(xxxiv) Any other offences not referred to in the previous items of this paragraph, which are punishable by imprisonment or other form of detention for at least one year or by a more severe penalty and which are also offences for which surrender may be granted in accordance with the laws of both Parties.” 

24.  In addressing whether the offence is an offence under the laws of both parties, Article 2(3) provides:

“For the purposes of this Article, in determining whether the offence is an offence punishable under the laws of both Parties the totality of the acts or omissions alleged against the person whose surrender is sought shall be taken into account without reference to the elements of the offence prescribed by the laws of the requesting Party.”

25.  There are other articles in the Agreement that address the procedures and requirements in respect of the arrangements for surrender of a fugitive offender but there is no need to refer to them for the purpose of this appeal.

26.  The corresponding legislation in India is the Extradition Act, 1962.  In so far as relevant to this appeal, section 2(c) defines an “extradition offence”, which reads:

“2(c) ‘extradition offence’ means—

(i) in relation to a foreign State, being a treaty State, an offence provided for in the extradition treaty with that State;

(ii) in relation to a foreign State other than a treaty State an offence punishable with imprisonment for a term which shall not be less than one year under the laws of India or of a foreign State and includes a composite offence;”

The procedural history

27.  The appellant was arrested in Hong Kong on 25 June 2018 in relation to the present matter.  The Chief Executive issued an authority to proceed dated 11 September 2018, and a supplemental authority to proceed dated 1 May 2019, in which she stated that a request for the surrender of the appellant had been received from the Republic of India and directed that he be dealt with under Part 2 of the FOO in respect of offences on which his surrender was sought. 

28.  Where an authority to proceed has been issued in respect of the arrest of a person wanted for prosecution in India, pursuant to section 10(6)(b) of the FOO, a court of committal has the power to order him to be committed to custody pending his surrender to India.  By virtue of section 10(6)(b), a magistrate, as a court of committal, is required to determine:

(a)  whether the offence to which the authority to proceed relates is a relevant offence;[5]

(b)  whether supporting documents in relation to the offence have been produced and are duly authenticated;[6] and

(c)  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.[7]

29.  As noted, one of the conditions to be satisfied under section 10(6)(b) is that the offence to which the authority relates is a relevant offence.  To be a relevant offence, section 2(2) provides that the Indian offence must be punishable with imprisonment for more than 12 months and that the acts or omissions constituting the conduct of the Indian offence, should constitute an offence in Hong Kong, coming within a description specified in Schedule 1 of the FOO and punishable with imprisonment for more than 12 months.

30.  Committal proceedings were held before a magistrate, who on 19 November 2019 committed the appellant to custody to await a decision on his surrender by the Chief Executive in respect of some of the offences for which his surrender was sought but not in respect of other offences.^[8] He refused to commit the appellant to custody in respect of the offences of “facilitating or permitting the escape of a person from custody” (item 26 of Schedule 1 of the FOO) and “offences relating to unlawful escape from custody” (item 37 of Schedule 1 to the FOO) as specified in the authority to proceed.  The magistrate held that these offences did not constitute relevant offences within section 10(6)(b) because, although the Indian offences relating to “escape from lawful custody” came within items 26 and 37 of Schedule 1 to the FOO, Article 2(1) of the Agreement in the Schedule to the FO(I)O did not make any reference to offences of “escape from lawful custody”.

31.  The relevant Indian offences of “facilitating or permitting the escape of persons from custody” and “offences relating to unlawful escape from custody” are contrary to section 224 of the Indian Penal Code, namely, resistance or obstruction by a person to his lawful apprehension or escape from lawful custody.  The offence is punishable with imprisonment for “a term which may extend to two years, or with a fine, or with both.”.  This satisfied the condition of the length of imprisonment of more than 12 months. 

32.  The acts or omissions of the Indian offences would constitute the three notional Hong Kong offences^[9] of Offence 10: conspiracy to escape from lawful custody;[10] Offence 11: aiding and abetting, counselling or procuring escape from lawful custody;[11] and Offence 12: aiding a prisoner to escape from prison or legal custody.[12]  The notional offences come within the descriptions of items 26 and 37 in Schedule 1 of the FOO and each of the offences is punishable by imprisonment for more than 12 months.  This satisfied the condition of the Indian offences constituting offences in Hong Kong within the terms of the FOO.

33.  Whilst, on the face of the wording in section 2(2), each of Offences 10, 11 and 12 appeared to be a “relevant offence”,^[13] it was agreed by the parties that one should also look at the offences set out in the Agreement for the purpose of considering whether an offence is extraditable, and thus a relevant offence.^[14] 

34.  Article 2(1)(i) to (xxxiii) of the FO(I)O expressly sets out 33 descriptions of offences, to which the surrender of fugitive offenders applies.  However, the offences do not encompass an offence relating to “escape from lawful custody”.  Nonetheless, Article 2(1)(xxxiv) refers to “any other offences”, the meaning and scope of which was disputed by the parties before the magistrate.

35.  The respondent argued that Article 2(1)(xxxiv) was a “catch-all clause”, wide enough to cover all offences which were not expressly provided in Article 2(1)(i) to (xxxiii), including Offences 10, 11 and 12.  The appellant disagreed, and contended that the item only intended to catch offences that were newly created after the making of the Agreement.^[15]  

The question of law

36.  Section 11(1) of the FOO provides that if the court of committal refuses to make the committal order, the requesting party may appeal against the refusal decision by way of case stated to the Court of First Instance.  

37.  The Republic of India duly brought an appeal by case stated against the magistrate’s decision pursuant to this section in respect of the following question of law:

“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.”

38.  The case stated was heard by Albert Wong J (the judge), and in a judgment given on 10 November 2020 he answered the question of law in the affirmative and ordered that the case be remitted to the magistrate to decide, in accordance with his opinion on the law, whether the appellant should be committed to custody in respect of the offences in question.

39.  The appellant appeals the judgment pursuant to section 11(5)(a) of the FOO, seeking an order that it be set aside and that the question of law posed in the case stated appeal be answered in the negative, and that it be declared that the offences relating to unlawful escape from custody are not offences in respect of which the Chief Executive has power to make an order for surrender in respect of the appellant whose surrender is requested by the Government of the Republic of India. 

The decision on appeal

40.  The judge succinctly stated the issue he had to decide by the following question: “Is it agreed between Hong Kong and India that the offences in question are extraditable between the two places?”[16]

41.  He noted that if Article 2(1)(xxxiv) is a “catch-all clause” as contended by the respondent, then the offences in question were extraditable between the two places.  If it is not, then pursuant to section 3(1) of the FOO, the offences were not extraditable since they were not expressly listed in the Agreement, nor in the FO(I)O, which cites the Agreement.  In addition, the requirement in section 2(c)(i) of the Extradition Act was also not met, as they were not offences “provided for in the extradition treaty with that State.”[17]

42.  In his analysis of the issue, the judge concluded that by the inclusion of Article 2(1)(xxxiv) in the article the parties intended that the list was not meant to be exhaustive.  He mentioned that this was a point of view that Mr Young did not disagree with, because he submitted the article was only meant to cover new offences enacted in the future, and not offences already in existence at the time the Agreement was made.[18]

43.  The judge reviewed in detail the submissions on the process involved between Hong Kong and India, as well as other states, in reaching a bilateral agreement for extradition.  He also addressed the arguments as to how this evidenced the intention of the parties as to the meaning of Article 2(1)(xxxiv).

44.  The judge went on to find that any further extraditable offence caught under Article 2(1)(xxxiv) should be one “under the prevailing state of law of a party, having met all the required conditions”.^[19]  He rejected the appellant’s contention that Article 2(1)(xxxiv) was intended to only cover newly created offences as it rested on the assumption that prior to making the Agreement the parties would have conducted a comprehensive study of all offences in the other jurisdiction.  He was of the view if that had been their intention, it would undermine the effectiveness of Article 2(1)(xxxiv).^[20] 

45.  The judge was of the view that the appellant’s interpretation of Article 2(1)(xxxiv) was inappropriately restrictive given the wording of the item and the intention of the parties.  He said:

“105. … An important criterion specifically stipulated in Article 2(1)(xxxiv) is that it has to be an offence ‘for which surrender may be granted in accordance with the laws of both Parties’. It appears to me that the parties were satisfied, and this reflects their intention, that the laws of both parties prevailing at the time surrender is sought is a sufficient threshold provided all other criteria are met.”

He went on to conclude:

“107. Having considered submission and all the material before me, I find that Article 2(1)(xxxiv) was and is intended by both parties as a ‘catch-all clause’ subject to the criteria stated therein.”

46.  The judge then turned his attention to the criteria that had to be satisfied under Article 2(1)(xxxiv).  He said:

“108. The next question is whether the requirements as stipulated in Article 2(1)(xxxiv) are met. There are three requirements:

(1) The offences are not referred to in the previous items in Article 2(1) of the Agreement;

(2) The offences are punishable by imprisonment for at least one year; and

(3) The offences are those for which surrender may be granted in accordance with the laws of both parties.

109. There is no dispute that the first two requirements are met. I will therefore only examine whether the third is also met. It concerns the laws of both parties.

110. As far as India is concerned, the relevant law is as stated in the Extradition Act. It was so at the time of the Agreement and at present. The wording is clear. Section 2(c)(i) of the Extradition Act provides that an extradition offence in relation to a foreign state, being a treaty state, is an offence provided for in the extradition treaty with that state. As I find that Article 2(1)(xxxiv) in the Agreement is a ‘catch-all clause’ as contended by the appellant, the offences in question are offences provided for in the extradition treaty.

111. For Hong Kong, the FOO was not yet enacted at the time of the Agreement but it was in the pipeline. The FOO is now in place and provides for a definition of relevant offence, as stated in paragraph 13 above. As said, on the face the definition is met. There is, however, a further criterion as provided in section 2 of the Indian Order, the offences have to be provided for in the Agreement. The offences in question are listed offences under the FOO. As I find that Article 2(1)(xxxiv) is a ‘catch-all clause’ as contended by the appellant, this criterion is also met.” (Citations omitted)

Treaty interpretation

47.  It is significant that at the heart of this appeal are the terms of a treaty struck between two state parties to establish an effective mechanism for reciprocal arrangements of the surrender of fugitive offenders.  As a treaty other considerations also apply when interpreting its provisions. 

48.  The primary rule of interpretation of a treaty is laid down in article 31(1) of the Vienna Convention on the Law of Treaties (1969):

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”

49.  Lord Sumption JSC in Al-Malki v Reyes [2019] AC 735, having quoted the primary rule went on to explain:

“The principle of construction according to the ordinary meaning of terms is mandatory (‘shall’), but that is not to say that a treaty is to be interpreted in a spirit of pedantic literalism. The language must, as the rule itself insists, be read in its context and in the light of its object and purpose. However, the function of context and purpose in the process of interpretation is to enable the instrument to be read as the parties would have read it. It is not an alternative to the text as a source for determining the parties’ intentions.”[21]

50.  It has been said that a treaty agreement is generally the product of a long period of negotiation and compromise, and one cannot expect to find the same degree of precision of language as one does with a statute drafted by parliamentary counsel.  For this reason, one is more likely to arrive at the true construction of an article by seeking a meaning which makes sense in the light of the treaty as a whole, and the purposes which the parties were seeking to achieve, rather than by concentrating exclusively on the language, although the language itself is the starting point.  What is needed is a broad approach, rather than a narrow linguistic approach: Adan v Secretary of State for the Home Department [1999] 1 AC 293.[22]  

51.  The general principle is to accord extradition treaties and extradition statutes a broad and generous construction so far as the texts permit it in order to facilitate extradition.  This was articulated by Lord Steyn, giving the majority judgment, in Cartwright and another v Superintendent of Her Majesty’s Prison and another [2004] 1 WLR 902, in which he said:[23]

“14. In extradition law the court must adopt a balanced approach. Throughout extradition law there are two principal threads. First, in exercising powers of extradition courts of law must … be vigilant to protect individuals from the overreaching of their rights by the government. Justice to the individual is always of supreme importance. Secondly, the Board considers that it is imperative of legal policy that extradition law must, wherever possible, be made to work effectively. There was some controversy about this point. It is, therefore, necessary to explain the position.

15. Crime and criminals have always traversed national boundaries. But in the modern world advances in technology and means of communication have enormously increased this phenomenon, notably in the fields of financial crimes, drugs offences and terrorism. It is, therefore, of great importance that extradition law should function properly. For the applicants Mr Fitzgerald accepted on the authority of R v Governor of Ashford Remand Centre, ex p Postlethwaite [1988] AC 924, pp.946-947, that extradition treaties, being contracts between sovereign states, should be purposively and liberally construed. But he argued that a different approach is necessary in regard to domestic extradition legislation. He made a comparison with criminal statutes and submitted that an approach is necessary in regard to domestic and submitted that an approach of strict construction is necessary. The Board would reject this submission. Even in regard to criminal statutes the presumption in favour of strict construction is nowadays rarely applied. There has been a shift to purposive construction of penal statutes: see Cross, Statutory Interpretation, 3^rd ed (1995), pp 172-175. In any event, it is a well settled principle ‘that a domestic statute designed to give effect to an international convention should, in general, be given a broad and liberal construction’: The Antonis P Lemons [1985] AC 711, 731. The same must be true of a statue passed pursuant to a bilateral treaty. Moreover, In re Ismail [1999] 1 AC 320 the House of Lords in a unanimous judgment commented on the need to bring suspected criminals, who have fled abroad, to justice through the extradition process. In that case I observed, at p 327:

‘There is a transnational interest in the achievement of this aim. Extradition treaties, and extradition statutes, ought, therefore, to be accorded a broad and generous construction so far as the texts permit it in order to facilitate extradition …’

  As the final court of The Bahamas the Board is in no doubt that it must adopt, where the Extradition Act 1994 permits it, a purposive or dynamic interpretation to make extradition work effectively.”

Statutory construction

52.  It is well settled that the modern approach to statutory construction is to adopt a purposive interpretation where the statutory language is construed having regard to its context and purpose, and not only when an ambiguity may be thought to arise.[24]  To this end, the context of a statutory provision is taken in its widest sense and includes the other provisions of the statute and the existing state of the law.[25]

53.  These principles were reaffirmed in T v Commissioner of Police (2014) 17 HKCFAR 593,[26] but it is appropriate to repeat Fok PJ’s summary of them:

“194. The modern approach to statutory construction is not in issue. The proper starting point is to look at the relevant words or provisions having regard to their context and purpose: see HKSAR v Lam Kwong Wai at [63] and Leung Chun Ying v Ho Chun Yan Albert (2013) 16 HKCFAR 735, at [12]. The context of a statutory provision should be taken in its widest sense and includes the other provisions of the statute and the existing state of the law: HKSAR v Cheung Kwun Yin at [13]. The purpose of a statutory provision may be gleaned from the provision itself or from a relevant report of the Law Reform Commission or the Explanatory Memorandum to the bill or from a statement of a responsible official to the Legislative Council in respect of the bill: ibid. at [14].

195. Nevertheless, the object of the exercise is to ascertain the legislative intent of the language of the statute and, in this regard, a court cannot attribute to a statutory provision a meaning which the language, understood in the light of its context and statutory purpose, cannot bear: see HKSAR v Lam Kwong Wai at [63] and China Field Ltd v Appeal Tribunal (Buildings) (No 2) at [36].

196.  There are other canons of statutory interpretation that may also be relevant.  It is a principle of statutory interpretation that a person should not be penalised except under clear law.  Therefore, when considering opposing constructions of a statutory provision, the court presumes the legislature intended to observe this principle and should strive to avoid adopting a construction which penalises a person when the legislator’s intention to do so is doubtful.[27]  Similarly, as part of the principle against doubtful penalisation, there is a presumption against the imposition of a statutory interference with freedom of association or of speech without clear words.[28]”

54.  Later in his judgment, Fok PJ also emphasised that there are limits to purposive interpretation which need to be noted.  He explained:

“222. However, it is important to recognise that there are limits to the extent this statutory purpose can be used … As Lord Millett NPJ observed in China Field Ltd v Appeal Tribunal (Buildings) (No 2):

“There can be no quarrel with the principle that statutory provisions should be given a purposive interpretation, but there has been a distressing development by the courts which allows them to distort or even ignore the plain meaning of the text and construe the statute in whatever manner achieves a result which they consider desirable. It cannot be said too often that this is not permissible. Purposive construction means only that statutory provisions are to be interpreted to give effect to the intention of the legislature, and that intention must be ascertained by a proper application of the interpretative process. This does not permit the Court to attribute to a statutory provision a meaning which the language of the statute, understood in the light of its context and the statutory purpose, is incapable of bearing”.^[29]”

55.  The words written and intended in legal provisions are important under a purposive interpretation.  It will always be necessary to have regard to the particular words used by the legislature in expressing its will.  However, the words should not be looked at in a vacuum.[30]  The court looks to the statutory language to see what meaning or meanings it is capable of bearing and then uses a contextual and purposive construction as a tool or aid to arrive at an interpretation that gives effect to the legislative intention.[31]  Furthermore, a court should not, unless constrained by the words used, interpret an extradition treaty in a way which would “hinder the working and narrow the operation of the most salutary international arrangements”.[32]

The appellant’s submissions

56.  Mr Simon Young, for the appellant, has advanced two grounds of appeal. In Ground 1, he argues that the judge failed to give a meaningful interpretation of Article 2(1)(xxxiv).  In Ground 2, he argues that the judge erroneously interpreted Article 2(1)(xxxiv).

57.  In respect of Ground 1, Mr Young criticises the judge’s interpretation for leaving unanswered the question of what offences are actually caught by Article 2(1)(xxxiv), resulting in a circularity between Article 2(1)(xxxiv) and section 2(c)(i) of the Extradition Act.[33] It is also complained that, given the judge’s finding, he should at least have made clear whether the term “catch-all” was meant to catch all Indian offences, namely all Indian offences punishable with imprisonment for a term not less than one year, or all Indian offences equivalent to those in Schedule 1 to the FOO.[34] 

58.  In respect of Ground 2, Mr Young claims the judge’s interpretation of Article 2(1)(xxxiv) was wrong for three reasons.  First, the judge failed to give proper weight to the opening words in Article 2(1)(xxxiv), “Any other offences not referred to in the previous items of this paragraph”, and as a result also failed to properly take into account the principle against doubtful penalisation and the principle of legality.[35] He argues that the principle against doubtful penalisation requires the law to be clear before it may be applied in a punitive way, but as the judge found the arguments of the parties as to the interpretation of Article 2(1)(xxxiv) to be equally consistent then the words could not be as clear as he found.^[36]  

59.  Secondly, while engaging in a process of inferential reasoning as to the intention of the parties at the time of making the Agreement, the judge made unfair assumptions and interpreted Article 2(1)(xxxiv) in a way inconsistent with international comity.[37]

60.  Thirdly, the judge’s interpretation failed to take into account the limiting effect of Article 2(1), the scope of which was intended to be narrower than that of Schedule 1 to the FOO.  As a result, it rendered the entirety of Article 2(1) nugatory.[38]

The respondent’s submissions

61.  Mr Wayne Walsh SC, together with Ms Dora Si and Mr Kevin Chan, for the respondent, submits in response to Ground 1, that the judge’s approach did not result in an “infinite loop”.  The judge gave a meaningful interpretation to Article 2(1)(xxxiv)[39] and the alleged circularity was broken by the express inclusion of Article 2(1)(xxxiv), which he correctly found to be a “catch-all clause”.  He submits Article 2(1)(xxxiv) covers “all Indian offences punishable with imprisonment for a term of not less than one year”.[40]

62.  As for Ground 2, Mr Walsh submits as follows.  First, it is doubtful whether the principle against doubtful penalization applies in the present context since the FOO and the FO(I)O are not penal enactments.[41] As to the principle of legality, this deals with individual rights which are not engaged in the present case.[42] 

63.  Secondly, the judge engaged in a permissible process of treaty and statutory interpretation in order to understand the intention of the parties, rather than a process of inferential reasoning as alleged.[43] The judge’s approach was also consistent with international comity since he found that for an offence to be extraditable under Article 2(1)(xxxiv) it must be in accordance with both laws, and so negated the possibility of the scope of the Agreement being altered by a unilateral change in the law of a single party.[44]

64.  Thirdly, it is plainly wrong to assume that the Agreement must have the effect of restricting Schedule 1 to the FOO.  The words “if any” in section 3(1) of the FOO permits Article 2(1) to be “co-extensive” with Schedule 1 of the FOO.[45] In addition, Article 2(1)(xxxiv) should not be regarded as a clause that opens offences for extradition without limitation.  It only catches an offence which is extraditable under the laws of Hong Kong (namely, those listed in Schedule 1 to the FOO) and India (namely, those subject to at least a term of imprisonment of one year).[46]

Ground 1: Failure to provide a meaningful interpretation of Article 2(1)(xxxiv)

65.  Mr Young criticises the judge for describing Article 2(1)(xxxiv) as a “catch-all clause” in the sense “it only catches the offences which satisfied all the criteria and restrictions stipulated in the Agreement as well as in local legislation of both parties”.[47]

66.  We find this criticism to be unjustified.  The judge used the generic expressions “catch-all clause” or “residual clause” because that is how Article 2(1)(xxxiv) was referred to in the relevant papers and the submissions of the parties.  It was done for ease of reference.  The judge nevertheless gave a considered analysis and a meaningful interpretation of Article 2(1)(xxxiv).[48]

67.  Mr Young complains that it was incumbent on the judge to interpret Article 2(1)(xxxiv) by considering the “offences for which surrender may be granted in accordance with the laws” of India.[49]  He argues that this took the judge to section 2(c)(i) of the Extradition Act, which defined an “extradition offence” to mean “an offence provided for in the extradition treaty with that State”, and consequently this brought the judge back to Article 2(1)(xxxiv).  He develops his argument by submitting that as a matter of logic the judge’s next step “should have taken him again to section 2(c)(i), which would then lead to Article 2(1)(xxxiv) and so on, resulting in an infinite loop without ever answering the question.”  His complaint, and the issue engaged in this appeal, is that the judge did not confront and resolve this circularity.

68.  Mr Young claims that the judge never resolved this issue because he failed to provide a meaningful interpretation of Article 2(1)(xxxiv), and instead simply found that it was a “catch-all clause”, which caught offences that satisfied all the criteria and restrictions stipulated in the Agreement as well as in the local legislation of both parties.  When it came to defining the meaning and scope of Article 2(1)(xxxiv), Mr Young complains that the judge simply repeated the terms of the item, without saying anything else.  He submits that this left unanswered the question of what offences were caught by Article 2(1)(xxxiv).

69.  Mr Young also complains that the judge failed to explain how, applying section 2(c)(i) of the Extradition Act, Article 2(1)(xxxiv) could capture offences other than those provided for in items (i) to (xxxiii) “without entering the infinite loop of item (xxxiv).”[50]  He submits that it is unclear from the judge’s reasoning whether the catch-all in respect of Indian offences means: (i) all Indian offences; (ii) all Indian offences punishable with imprisonment for a term not less than one year; (iii) all Indian offences equivalent to those in Schedule 1 of the FOO; or (iv) some other delineation.  He argues that if the judge meant categories (i) and (ii), then this would be at variance with the distinction between the meaning of an “extradition offence” for a “treaty state” under section 2(c)(i), and for a “foreign state other than a treaty state” under section 2(c)(ii).  He further argues that if the judge meant category (iii) this would be contrary to the accepted notion that Article 2(1) was intended to be a “limitation, restriction, exception and qualification” of Schedule 1.[51]

70.  The judge reasoned that the answer to the question whether Article 2(1)(xxxiv) is a “catch-all clause” was determined by identifying the intention of the parties to the Agreement.[52]  He found that by putting this item in the Agreement the parties intended that the list of offences was not meant to be exhaustive. 

71.  The judge rejected Mr Young’s argument that Article 2(1)(xxxvi) was only meant to cover new offences created in the future, but not offences already in existence at the time the Agreement was made.[53]  He noted that if it was the intention of the parties that either party could amend its law to include further extraditable offences and the amendment would be recognized for the purpose of extradition as contended by the appellant, it must also have been the intention of the parties that if an offence is extraditable under the prevailing state of the law of a party, having met all the required conditions, it too would be recognized.[54]

72.  The judge explained the argument that Article 2(1)(xxxiv) was only meant to cover new offences assumed both parties had comprehensively studied all offences of the other party and wished to include only those offences which they had considered and agreed upon.  If this had been the intention of the parties, including Article 2(1)(xxxiv) in the Agreement, even if to cover new offences only, would undermine the effectiveness of such an exercise.[55]

73.  The judge also pointed out an important criterion is that the offence must be an offence “for which surrender may be granted in accordance with the laws of both Parties”, and this reflected the intention of the parties that the laws of both parties prevailing at the time surrender is sought is a sufficient threshold provided all other criteria are met.[56] He explained section 2(c)(i) of the Indian Extradition Act provides that an extradition offence is an offence provided for in the extradition treaty and as Article 2(1)(xxxiv) is a “catch-all clause”, the offence of “escape from lawful custody” is provided for in the Agreement. [57]  

74.  We agree with Mr Walsh’s submission that there is no issue of circularity by the judge’s interpretation because any purported circularity is broken by the express inclusion of the “catch-all clause” in the Agreement.  The judge makes it clear that the item covers all Indian offences punishable with imprisonment for a term of not less than one year.[58]  Mr Walsh submits that this is not at variance with the distinction between an extradition offence in relation to a “treaty State” and “foreign State other than a treaty State” in section 2(c) of the Extradition Act.

75.  The opening statement of Article 2(1) provides that surrender of fugitive offenders shall be granted for an offence (1) coming within the descriptions of offences in items (i) to (xxxiv); and (2) according to the laws of both parties punishable by imprisonment for at least one year.  Item (xxxiv) is drafted broadly to include “any other offences” which are punishable by imprisonment for at least one year and “for which surrender may be granted in accordance with the laws of both Parties.” Section 2(c)(i) defines an extradition offence by what is provided for in the Agreement and it would include “escape from lawful custody” as long as it is an offence contrary to the laws of both parties and is punishable by imprisonment for at least one year.[59]

76.  We find Mr Young’s criticisms of the judge’s reasoning to be misconceived and unjustified.  Indeed, we consider Mr Young’s interpretation of Article 2(1)(xxxiv) to give it a meaning which the language is not capable of bearing and the proposition of an “infinite loop” is without logical foundation. 

77.  Mr Young seems to be accepting that Article 2(1)(xxxiv) does, by its wording, cover other offences not previously mentioned in the paragraph, but he contends it is restricted to cover new offences created in the future, but not offences in existence at the time the Agreement was made.[60] The wording of Article 2(1)(xxxiv) simply does not support such an interpretation.  In rejecting this interpretation, and giving Article 2(1)(xxxiv) an interpretation that is consistent with its plain and simple language, then the “infinite loop” argument falls by the wayside.

78.  The natural and ordinary meaning of the language in Article 2(1)(xxxiv) is an important consideration.  The paragraph commences by stating that surrender of fugitive offenders “shall” be granted for an offence “coming within” any of the following descriptions of offences as long as it is punishable under the laws of both parties by imprisonment for at least one year.  It then lists the descriptions of offences from items (i) to (xxxiv).

79.  We have set out Article 2(1) in full because it is evident from items (i) to (xxxiii), the parties intended to provide for the full range and ambit of criminal conduct, and item (xxxiv) is there to include any other criminal conduct that had not been previously described. The wording of item (xxxiv) is of particular relevance and is worth repeating. It reads:

“Any other offences not referred to in the previous items of this paragraph, which are punishable by imprisonment or other form of detention for at least one year or by a more severe penalty and which are also offences for which surrender may be granted in accordance with the laws of both Parties.”

80.  In our judgment, as a matter of common sense, the wording of Article 2(1)(xxxiv) is plain and simple.  The opening statement “Any other offences not referred to in the previous items of this paragraph”, makes it abundantly clear that the previous items were not a closed or exhaustive list of offences covered by the paragraph.  The description “any other offences”[61] is intentionally wide and clearly seeks to extend the list of offences provided the offence satisfies the two stipulated conditions.  The first condition reinforces the requirement as mentioned in the opening statement of the paragraph that the offence is punishable by imprisonment for at least one year.  The second condition adds that the offence is one which surrender may be granted in accordance with the laws of both parties.

81.  We turn to consider the contextual meaning of Article 2(1)(xxxiv). In interpreting extradition legislation, it is necessary to take cognizance of the object that it seeks to address and to construe its provisions in a manner that will best ensure the attainment of it.  It is important to bear in mind that a key aspect of the doctrine of international comity is the cooperation and assistance between states to bring fugitive offenders to justice.  This is reflected in the object of the FOO, which includes “to make provision for the surrender to certain places outside Hong Kong of persons wanted for prosecution … in respect of certain offences against the laws of those places, … and for matters incidental thereto or connected therewith.” 

82.  An overall examination of Article 2(1) reveals the wide range and ambit of serious criminal conduct that is listed in items (i) to (xxxiii).  It basically covers the full range of crimes of violence and property and delineates a host of other specific types of crimes.  It is quite apparent that item (xxxiv) in the context of this paragraph is meant to cover other offences not previously mentioned.   

83.  We next turn to consider the purposive meaning of Article 2(1)(xxxiv), which, in our view, is to provide for criminal offences that had not been previously mentioned in the preceding items, and is there to ensure that other criminal conduct is caught within the paragraph as long as it satisfies the two stipulated conditions.

84.  While the extradition process is an important component of our criminal justice system, it is not a criminal trial to determine the guilt or innocence of the fugitive.  That is the function of the state that has requested his or her surrender.  The purpose of the extradition hearing is for the committal magistrate, where an authority to proceed has been issued, to be satisfied that the offence relates to a relevant offence; the supporting documents have been produced and authenticated; and the evidence would be sufficient to warrant the person’s committal for trial according to Hong Kong law.[62]

85.  The proper construction of the language of Article 2(1)(xxxiv) in the light of its context and purpose is, to use its generic description, a “catch-all clause”.  The opening phrase makes it clear it is concerned with offences not covered by the previous items, and then goes on to stipulate that the offences must satisfy two conditions. 

86.  The first condition is that the offences “are punishable by imprisonment or other form of detention for at least one year or by a more severe penalty.”  This is a condition that is mentioned in the opening statement of Article 2(1) and variously in the extradition agreement and legislation.  It is emphasising that the process of extradition of a fugitive offender is only concerned with serious criminal offences which are measured by a penalty of a term of imprisonment or detention for at least one year.

87.  The second condition is that the offences “are also offences for which surrender may be granted in accordance with the laws of both Parties.”  This condition addresses the principle of dual criminality, requiring that the criminal conduct is an offence in both jurisdictions, for which surrender by the parties may be granted.

88.  It is important to bear in mind that the offence under consideration must be an offence punishable with imprisonment for at least one year and contrary to the laws of both parties.  Accordingly, if it is not a criminal offence in either jurisdiction then it does satisfy the dual criminality requirement. 

89.  It is also 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.  In Hong Kong, it must be an offence listed in Schedule 1 to the FOO.  Schedule 1 sets out 46 itemised criminal offences or conduct.  The offence of “escape from lawful custody” is described in items 26 and 37 of Schedule 1.  In India, it must be an “extradition offence” as defined in the Extradition Act, namely “an offence provided for in the extradition treaty with that State”.  This would include the offence of “escape from lawful custody”, as it comes within the terms of Article 2(1)(xxxiv), notwithstanding it has not been specifically mentioned in the preceding 33 items, and is therefore an offence provided for in the extradition treaty (the Agreement) with Hong Kong.

90.  In our judgment, neither the scheme of the legislation, nor the terms of the Agreement intend the restrictive interpretation of Article 2(1)(xxxiv) as submitted by Mr Young.  We agree with the judge’s finding that Article 2(1)(xxxiv) covers offences under the prevailing state of the laws of both parties at the time of the request for surrender, which also satisfy the two stipulated conditions. 

Ground 2: Interpretation of Article 2(1)(xxxiv) was erroneous

91.  To a large extent, the complaint under this ground that the judge’s interpretation of Article 2(1)(xxxiv) was erroneous has been answered by our analysis and conclusion of the first ground.  There are three component parts to this ground of appeal.

The text of Article 2(1)(xxxiv)

92.  The first component concerns the appellant’s contention that the judge failed to apply the principle of doubtful penalisation and the principle of legality when construing Article 2(1)(xxxiv) with reference to the opening statement “Any other offences not referred to in the previous items of this paragraph”.

93.  The principle of statutory construction that the appellant relies upon is well established and holds that a person should not be penalised except under clear law.  In this regard, a court, when faced with opposing constructions of a statutory provision, should strive to avoid adopting a construction which penalises a person when the legislature’s intention to do so is doubtful.[63] The appellant submits that the principle of doubtful penalisation requires the law to be clear before it may be applied in a punitive way.

94.  As noted by the respondent, it is doubtful whether either of these principles apply in the manner in which it is argued by the appellant.  The principle of doubtful penalisation provides that ambiguous provisions in penal enactments should be generally construed in favour of the accused.  A statute is regarded as penal for the purpose of statutory construction if it imposes a fine, penalty or forfeiture.[64]  Whilst it is true that extradition proceedings are criminal proceedings in nature because they may lead to the conviction of a person in the requesting state, the process of extradition by the requested party is largely procedural and without determination of the criminal charges which the person’s surrender to the requesting state is sought.[65]

95.  It is not quite clear how the appellant’s argument on this point applies to the circumstances of this case as the judge was not construing provisions in a penal enactment, rather he was determining whether particular criminal offences, with which no issue was being taken as to their appropriateness and definition, came within the meaning of extraditable offences in the relevant legislation.

96.  As rightly noted by the respondent, the provisions of the Agreement and the relevant legislation do not determine a charge against the appellant, nor do they impose a penalty.  More importantly, the appellant does not challenge the nature or terms of the offence provisions in question. No complaint is made as to the nature of the criminality that the offences seek to address, nor of the terms in which they seek to prohibit and penalise the criminal conduct in question. 

97.  The appellant also submits that the principle of legality applies in the statutory construction of Article 2(1)(xxxiv), but without identifying the fundamental right purportedly engaged and how it has been violated.  The appellant submits that the principle raises a presumption against an interpretation that would override or constrain fundamental rights and that any abrogation of a fundamental right has to be effected “unmistakably, expressly or by necessary implication”: HKSAR v Yeung Ka Sing Carson (2016) 19 HKCFAR 279.[66]  

98.  The underlying premise of the appellant’s argument is that a process that recognises an offence as a relevant offence, and then seeks to commit a person to custody so that he might be surrendered to India for trial on that relevant offence, “must surely engage the principle of legality.”  This argument lacks substance and fails to articulate how this principle properly applies to the issue at hand.  Furthermore, as we have already explained we find that the provision under Article 2(1)(xxxiv) to be clear, and in our view there was no doubt as to the intention of the legislature as to the terms and scope of this item.

99.  We do not find that the principles of doubtful penalisation and legality have been offended as complained by the appellant in the statutory construction of Article 2 (1)(xxxiv). 

Whether Article 2(1)(xxxiv) is a “catch-all clause”

100.  The second component concerns the appellant’s contention that the judge’s reasons for finding that the parties intended Article 2(1)(xxxiv) to be a “catch-all clause” were equivocal and insufficient to support the finding.  It is argued that there was no direct evidence of what the parties intended in relation to the scope of Article 2(1)(xxxiv) and in the absence of such evidence, the judge engaged in a process of inferential reasoning based on the following four matters:

(i)  The Agreement with India was initialled by the parties in 1994, two years before the introduction of the Fugitive Offenders Bill, at a time when the nature of the offences to be included as extraditable offences was uncertain;

(ii)  By including Article 2(1)(xxxiv) in the Agreement, the intention of the parties was that the list of offences would not be exhaustive;

(iii)  It was the intention of the parties that further extradition offences would be recognised; and

(iv)  If Article 2(1)(xxxiv) covers only new offences, it implies that the parties had wished to include only offences which they had considered and agreed upon, but this would undermine the effectiveness of this item.

101.  It is difficult to understand what point is being made about “direct evidence” and “inferential reasoning” in the context of statutory construction.  This is not a criminal trial where these concepts might have particular application. 

102.  It would appear the appellant’s complaint is that the finding by the judge that the parties intended Article 2(1)(xxxiv) to be a “catch-all clause” is not supported by the evidence, which was equivocal. This argument ignores the fact that the issue before the judge was a question of statutory construction, which he addressed by applying the relevant principles.  The essential task of the judge when interpreting Article 2(1)(xxxiv) of the Agreement was to read it “as the parties would have read it.”[67]

103.  It is submitted by the appellant that (i) and (ii) are entirely consistent with the position that in 1994, Article 2(1)(xxxiv) was added to the Agreement to enable India after the FOO was enacted “to pick and choose” which of the additional Schedule 1 offences it would make extraditable as a matter of Indian law, without the need to renegotiate the extradition agreement. 

104.  It is submitted by the appellant that (iii) raises two difficulties.  First, it was speculative, and secondly, it was inconsistent with international comity.  As for the first point, it is argued that there was no information before the court as to what was discussed and negotiated between the parties at the time the Agreement was concluded and therefore it was not right for the judge to assume that India would accept as extraditable offences all those which were included in Schedule 1.  It is pointed out that ten of the Schedule 1 offence descriptions are not listed in Article 2(1).

105.  In oral submission, Mr Walsh, by reference to relevant documents, explained that the Agreement between Hong Kong and India was part of an ongoing process of negotiation which was also contingent upon the enactment of extradition legislation in Hong Kong as a result of the change of sovereignty.  He explained that in the period leading up to the change of sovereignty, extradition agreements with other parties were negotiated and signed at different stages of the process.  Negotiations were based on a model agreement settled in 1990, which contained a shorter list of 26 descriptions of offences[68] than the list that was later enacted in Schedule 1 of the FOO.  The Agreement with India was initialled in January 1994 and signed on 28 June 1997.  He took us to the relevant documents to make the point that the offence of “escaping from lawful custody” was not deliberately omitted but simply reflected that the Agreement with India was negotiated before the extradition legislation in Hong Kong was enacted and Article 2(1)(xxxiv) was there to ensure that other relevant offences would be extraditable.

106.  At one stage in oral submissions, Mr Young accepted that Article 2(1)(xxxiv) does extend the list of extraditable offences, but questioned “how and how far it extends”.  In our view, the answer is as far as the text permits it in order to facilitate extradition.  As we have already stated, the range of offences under Article 2(1)(xxxiv) is wide but pegged back by the two stipulated conditions in order to be an extraditable offence, subject to section 10(6)(b) and section 2(2) of the FOO.

107.  The appellant’s argument about international comity is that the judge by the approach he has taken in his reasoning means that Hong Kong is in a position to make unilateral changes to Schedule 1 and India will necessarily be bound by those changes.  It is submitted that it is unlikely that this is what the parties intended.  We simply cannot see how such a proposition can be extrapolated from the judge’s reasoning in his construction of this statutory provision.  The issue the judge had to decide was whether Article 2(1)(xxxiv) was a “catch-all clause” that caught the offences relating to “escape from lawful custody”, which are listed as items 26 and 37 of Schedule 1.

108.  As to point (iv), the appellant submits that the judge’s reasoning is incorrect.  It is argued that Article 2(1)(xxxiv) operates so as to allow the addition of “new mutual extradition offences” on the basis of a domestic law amendment without the need to renegotiate the treaty.  That may be so, but it does not limit the terms and scope of Article 2(1)(xxxiv) as a “catch-all clause”.  We agree with the judge’s conclusion that Article 2(1)(xxxiv) covers all offences prevailing under the laws of the parties for which surrender might be granted and that it was not limited to only new offences for which surrender might become available in the future.

The understanding of “relevant offence”

109.  The third component concerns the appellant’s contention that the judge had an incorrect understanding of the extradition legislation and the concept of a “relevant offence”.  It is specifically argued by the appellant that the judge failed to have regard to the limiting effect of Article 2(1) in interpreting item (xxxiv) and “relevant offence”.  The appellant submits that item (xxxiv) was not intended to be a “catch-all clause” because such an interpretation would undermine the limiting effect of the article that its scope was intended to be narrower than that of Schedule 1 to the FOO.

110.  In response, Mr Walsh submits that the appellant’s argument is based on the wrongful premise that the Agreement must have the effect of restricting Schedule 1 to the FOO.  He points out that section 3(1) of the FOO states the procedures in the Ordinance shall apply “subject to the limitations, restrictions, exceptions and qualifications, if any, contained in the order.”  He argues that the expression “if any” permits Article 2(1) to be coexistent with Schedule 1, although it cannot be wider than Schedule 1.

111.  Mr Walsh also submits that the judge correctly understood the concept of “relevant offence” and the limiting effect of Article 2(1).  Section 3(1) of the FOO provides that arrangements for the surrender of fugitive offenders is subject to the limitations, restrictions, exceptions and qualifications contained in the order.  The FO(I)O in turn provides under section 2 that the procedures in the FOO shall apply between the two places subject to the limitations, restrictions, exceptions and qualifications contained in the Agreement, as recited in the Schedule to the FO(I)O.  The judge rightly concluded that the offences in question were relevant offences only if they are included as extraditable offences in the Agreement.[69]

112.  Mr Walsh argues that the appellant’s submission that Article 2(1)(xxxiv) was not intended to be a “catch-all clause” because such an interpretation would undermine the limiting effect of Article 2(1) in respect of Schedule 1 to the FOO and render it of “no legal effect” is plainly wrong.  He points out that it is still a requirement that the offence must be an offence which is extraditable under the laws of both parties.  Hong Kong extraditable offences are limited to only those listed in Schedule 1 to the FOO and Indian extraditable offences are limited to only those offences subject to at least one year of imprisonment.  He submits that the suggestion by the appellant that the “catch-all” nature of Article 2(1)(xxxiv) would be parricidal in that it would render the whole Article 2 (1) of no legal effect, and would open up offences for extradition without limitation so as to render the list of offences in the extradition agreement nugatory is not correct. 

113.  We agree with these submissions.  There are stipulated and defined requirements that need to be satisfied to be extraditable offences between the parties and we do not see them being overcome by the “catch-all” interpretation of item (xxxiv).  The mere fact that there is a “catch-all clause” or a “residual clause” to incorporate any other offences not previously listed does not render nugatory or of no legal effect the whole of the article.  In our view, what it does show is a clear intention of the parties to list exhaustively a range of offences that are to be extraditable between the parties, and Article (2)(1)(xxxiv) is there to ensure that any other offences not previously listed are caught so long as they satisfy the relevant criteria.

114.  The appellant also makes the point that Article (2)(1)(xxxiv) is more aptly described as a “residual clause” designed to cater for future allocations of offences in respect of which extradition is available.  We do not find any merit in this point.  As pointed out by Mr Walsh, whilst reference has been made to the term “residual clause” during legislative discussions on other extradition legislation, it has also been referred to as a “catch-all clause”.  He adds that there are references in other orders under the FOO to indicate that the purpose of the “catch-all clause” is to be broad and not limited to only future offences.  The purpose of it is to allow extradition for any other offence not specified in the list of offences contained in the extradition agreement provided the offence meets the other requirements under the FOO, particularly it is listed in Schedule 1 to the FOO.

115.  The extradition arrangements in place between Hong Kong and India are there to provide an effective working process for the surrender of fugitives in respect of serious crime.  We find the list of offences under Article 2(1) is broad and item (xxxiv) ensures that any offence not previously mentioned is included in the list as long as it satisfies the two stipulated conditions.  In our view, this would contemplate offences that were contrary to the laws of both parties for which surrender may be granted. This would include existing offences and not be limited to only future offences.  Even when it is established that the offence comes within the descriptions of offences, including item (xxxiv), there are other relevant provisions that need to be addressed, such as section 10(6)(b) and section 2(2) of the FOO.

116.  We further find no substance to the appellant’s argument that Article 2(1)(xxxiv) is a “residual clause” and not a “catch-all clause”.  We can do no better than quote William Shakespeare that “a rose by any other name would smell as sweet”.[70] The phrase “catch-all clause” is a generic expression commonly used in contractual arrangements which is intended to cover all possibilities not covered by previous individual items.

Conclusion

117.  It follows from what we have said, we would dismiss the appeal.  We would also answer the question of law in the affirmative.  We find the offence of “escape from lawful custody” is an offence for which surrender may be granted coming within Article 2(1)(xxxiv) of the Agreement and also a relevant offence in the context of section 10(6)(b)(i) and section 2(2) of the FOO.  That is because it is an offence contrary to section 224 of the Indian Penal Code, punishable with imprisonment for more than 12 months and the acts constituting the conduct of the offence if they occurred in Hong Kong would constitute an offence coming within the descriptions of items 26 (facilitating or permitting the escape of a person from custody) and 37 (offences relating to unlawful escape from custody) of Schedule 1 to the FOO and punishable in Hong Kong with imprisonment for more than 12 months as offences of conspiracy to escape from lawful custody, contrary to common law and section 159A and 159C of the Crimes Ordinance, Cap 200; aiding and abetting, counselling or procuring escape from lawful custody, contrary to common law and section 89 of the Criminal Procedure Ordinance, Cap 221; and aiding a prisoner to escape from lawful custody, contrary to section 17(b) of the Prisons Ordinance, Cap 234.

118.  We remit the case to the court of committal to decide, according to the opinion of this Court on the question of law, whether the appellant should be ordered to be committed to custody under section 10(6)(b) of the FOO in respect of the offences of “facilitating or permitting the escape of a person from custody” and “offences relating to unlawful escape from custody” to await the Chief Executive’s decision as to his surrender to India.

[1] Paragraphs (d) and (e) of the Authority to Proceed dated 11 September 2018, Appeal Bundle, A52-53.

[2] See Cherk Ching v Superintendent of Lai Chi Kok Reception Centre & Another [2005] 4 HKLRD 105, at [3] and [27] per Hartmann J. 

[3] At [36].

[4] The Chief Executive’s decision whether or not to order the surrender of a person who has been committed is governed by section 13 of the FOO.

[5] Section 10(6)(b)(i).

[6] Section 10(6)(b)(ii).

[7] Section 10(6)(b)(iii).

[8] Appeal Bundle, B304-363 (the magistrate’s ruling).  The magistrate found that there was a prima facie case in respect of 18 notional Hong Kong offences (namely, Offences 4, 5, 6, 7, 13, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26 , 27 and 28); for which a committal order dated 19 November 2019: see Appeal Bundle, A/Item 8 (and the amended version of which dated 10 January 2020: see Appeal Bundle, A/Item 10) was issued against the appellant; whilst finding no prima facie case on the remaining 10 notional Hong Kong offences (namely, Offences 10, 11 and 12): see magistrate’s ruling, at [39] (Offences 1, 2, 3, 8 and 9), at [132] (Offences 10, 11 and 12), at [167] (Offence 14) and at [193] (Offence 15). 

[9] Appeal Bundle, B415-416 (Submissions on behalf of the Government of India).

[10] Contrary to common law and section 159A and 159C of the Crimes Ordinance, Cap 200.  Under section 101I of the Criminal Procedure Ordinance, Cap 221, the maximum penalty is 7 years’ imprisonment.

[11] Contrary to common law and section 89 of the Criminal Procedure Ordinance, Cap 221.  Under section 101I of the Criminal Procedure Ordinance, Cap 221, the maximum penalty is 7 years’ imprisonment.

[12] Contrary to section 17(b) of the Prisons Ordinance, Cap 234.  The maximum penalty is 2 years’ imprisonment. 

[13] As required by section 2(2)(b)(i), the offences fall within item 26 (namely, facilitating or permitting the escape of a person from custody) and item 37 (namely, offences relating to unlawful escape from custody; mutiny in prison) in Schedule 1 to the FOO.

[14] Appeal Bundle, A7-48 (the Judgment).  The judge also held that “the offences in question are relevant offences only if they are included as extraditable offences in the Agreement”: Judgment, at [55].

[15] Judgment, at [84].

[16] Judgement, at [69].

[17] Judgment, at [68] and [70].

[18] Judgment, at [84].

[19] Judgment, at [99].

[20] Judgment, at [101].

[21] At [11].

[22] At 305C-D.

[23] Lord Hoffmann and Lord Rodger gave a dissenting judgment.  It appears they did not take issue with the principle that domestic extradition legislation is to be given a purposive interpretation, although they were critical of a construction that sought to remedy a defect in the law which was beyond the language of the statute: See [42].

[24] The purposive construction of statutes is reflected in section 19 of the Interpretation and General Clauses Ordinance, Cap 1.  It states: “An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”

[25] HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568, at [11], [12] and [14] per Li CJ.

[26] At [4] per Ma CJ, at [48] per Ribeiro PJ, at [194]-[196] and [222] per Fok PJ, at [278] per Lord Neuberger of Abbotsbury NPJ.  See also HKSAR v Kwan Ka Hei (2020) 23 HKCFAR 229, at [8] and [9].

[27] Bennion on Statutory Interpretation (6^th ed, 2013), s 271 (pp 749-750).

[28] Bennion on Statutory Interpretation, ss 276 (pp 761-762) and 277 (pp 762-763).

[29] (2009) 12 HKCFAR 342, at [36].

[30] T v Commissioner of Police (2014) 17 HKCFAR 593, at [4] per Ma CJ.

[31] HKSAR v Fugro Geotechnical Services Ltd (2014) 17 HKCFAR 755, at [22] per Fok PJ, giving the judgment of the Court. 

[32] Government of Belgium v Postlethwaite and Others [1988] 1 AC 924, 947 per Lord Bridge.

[33] Appellant’s Written Submission, at [14].

[34] Appellant’s Written Submission, at [19].

[35] Appellant’s Written Submission, at [21].

[36] Judgment, at [85].

[37] Appellant’s Written Submission, at [31] and [33]-[34].

[38] Appellant’s Written Submission, at [36]-[39].

[39] Respondent’s Written Submission, at [6]-[7].

[40] Respondent’s Written Submission, at [11]-[12].

[41] Respondent’s Written Submission, at [16]-[18].

[42] Respondent’s Written Submission, at [20].

[43] Respondent’s Written Submission, at [29]-[33].

[44] Respondent’s Written Submission, at [34].

[45] Respondent’s Written Submission, at [38].

[46] Respondent’s Written Submission, at [39]-[41].

[47] Judgment, at [88].  See also [105] and [107].

[48] Judgment, at [67]-[112].  See in particular [105] and [108].

[49] The actual wording of this part of Article 2(1)(xxxiv) is “offences for which surrender may be granted in accordance with the laws of both Parties.”  Hence, the offences have to satisfy the laws of Hong Kong and India.

[50] Appellant’s Written Submission, at [19].

[51] This description is taken from section 2 of the FO(I)O, which is so far as material reads: “… directed that the procedures in the Ordinance (the FOO) shall apply as between Hong Kong and the Republic of India subject to the limitation, restrictions, exceptions and qualifications contained in those arrangements as so recited.”

[52] Judgment, at [71]. 

[53] Judgment, at [84].

[54] Judgment, at [99].

[55] Judgment, at [101].

[56] Judgment, at [105].

[57] Judgment, at [110].

[58] Judgment, at [89], [102], [103] and [108].

[59] Under the Agreement in FO(I)(O) the term of imprisonment is for “at least one year” (Article 2(1) and 2(1)(xxxiv)), while under the FOO it is for “more than 12 months” (section 2(2)(a)).

[60] Judgment, at [84].

[61] See HKSAR v Chan Sze Ting and Another [1997] HKCU 398, HCMA 106/1997, 4 September 1997, as to the reference of the word “any” in “any person”; Chan Sze Ting and Another v HKSAR (1997-1998) 1 HKCFAR 46, at 50 H-I.

[62] Section 10(6)(b) and section 2(2) of the FOO.

[63] See HKSAR v Kwan Ka Hei (2020) 23 HKCFAR 229, at [8] and [9]. 

[64] Halsbury’s Laws of Hong Kong, 2^nd Edition, 2019, Vol 45, at [365.083].

[65] See See Cherk Ching v Superintendent Lai Chi Kok Reception Centre and Another [2005] 4 HKLRD 105, at [27]-[29] and [79] and Xie Jing Feng v HKSAR Government and Another, unrep., CACV 507/2019, 1 April 2021, at [63]. 

[66] At [54]. 

[67] Al-Malki v Reyes, at [11] per Lord Sumption.

[68] Judgment, at [24].

[69] Judgment, at [11]-[17] and [55].

[70] Romeo and Juliet, Act 2, Scene 2.