XIE JING FENG v. HONG KONG SAR GOVERNMENT AND ANOTHER

HCAL 855/2019

[2019] HKCFI 2174

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 855 OF 2019

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D E C I S I O N

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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