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

HCMA 139/2020

[2020] HKCFI 2603

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 139 OF 2020

(ON APPEAL FROM KCMP 139 OF 2018)

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J U D G M E N T

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1.  This is an appeal by way of case stated by the Government of the Republic of India (“India”) pursuant to section 11(1) of the Fugitive Offenders Ordinance[1] (“FOO”), against the decision of a Magistrate[2] refusing to commit the respondent to custody to await a decision on his surrender by the Chief Executive in respect of offences of “facilitating or permitting the escape of a person from custody”[3] and “offences relating to unlawful escape from custody”[4] as specified in the Authority to Proceed dated 11 September 2018[5].

2.  The respondent is a national of India and also a permanent resident of Hong Kong.

PROCEDURAL HISTORY

3.  The respondent was arrested in Hong Kong on 25 June 2018.

4.  On 11 September 2018, the Chief Executive issued the Authority to Proceed[6]. Later, a Supplemental Authority to Proceed[7] was issued but it has little relevance for the purpose of the present appeal.

5.  As a result, committal proceedings were conducted in June 2019 and the hearing lasted nine days.  The Magistrate gave his ruling on 19 November 2019[8] committing the respondent to custody in respect of some of the offences for which his surrender was sought.  The offences which the Magistrate refused to commit include those mentioned in paragraph 1 above.  For the offences mentioned in paragraph 1, the Magistrate found[9] they did not constitute relevant offences within section 10(6)(b) of the FOO[10].

6.  The notional Hong Kong offences relevant to this appeal are:

(1)  Offence 10: Conspiracy to escape from lawful custody[11];

(2)  Offence 11: Counselling or procuring escape from lawful custody[12]; and

(3)  Offence 12: Aiding a prisoner to escape from prison or legal custody[13].

I will call these offences the offences in question.

FACTUAL ALLEGATIONS AGAINST THE RESPONDENT

7.  The respondent is wanted for prosecution in India for two cases.  The first case[14] relates to the respondent’s arrest in India for possession of firearms and ammunition and forged credit cards.  This case is not directly relevant to the present appeal.

8.  The other case[15] relates to the present appeal.  The respondent is alleged to have participated in a criminal conspiracy to plan the escape of six prisoners from the Maximum Security Jail in Nabha (“the Jail”) and to provide financial assistance in relation thereto.

9.  The factual allegations put forward by the appellant against the respondent may be summarized as in the following paragraph.  There was factual dispute and the Magistrate had yet to make an ultimate factual finding on the offences in question.

10.  In gist, the respondent is alleged to have participated in the plan for the jail break which commenced while he was in prison with the six escapees following his arrest for the first Indian case[16].  He was alleged to have meetings with the inmates in which he said when he got out of jail he would go to Hong Kong and send funds for the purchase of arms to be used at the jail break.  After the respondent 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 called Mani Sekhon for the purpose of the jail break.  The jail break occurred on 27 November 2016.  A group of persons went to the Jail disguised as police officers purporting to escort a prisoner.  The group was armed with rifles and they overpowered the prison guards, firing indiscriminately and snatching more weapons from the guards.  The whole group then drove away from the Jail with the escapees.

RELEVANT OFFENCES

11.  For the purpose of the committal, section 10(6)(b) of the FOO[17] stipulates the conditions to be satisfied.  If the Magistrate is satisfied that the stipulated conditions are met, he shall make a committal order unless the committal is prohibited by other provisions.

12.  In relation to the offences in question, the only condition which the Magistrate was not satisfied with was that the offences have to be relevant offences as defined in the FOO[18].

13.  According to section 2(2) of the FOO[19], a relevant offence is established if:

(1)  the Indian offence is punishable with imprisonment for more than 12 months;

(2)  the acts or omissions constituting the conduct of the respondent amounts to conduct which, if the conduct had occurred in Hong Kong, would constitute an offence:

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

(b)  punishable in Hong Kong with imprisonment for more than 12 months.

14.  The applicable Indian offences relied upon by the appellant, and relevant for the present appeal, are provided in section 224 of the Indian Penal Code, namely:

Resistance or obstruction by a person to his lawful apprehension, ie, escape from lawful custody.

15.  It is an offence punishable under Indian law by imprisonment for up to two years.  The length of imprisonment requirement in criterion (1) above is met.

16.  As regards criterion (2), the appellant contended that the acts or omissions of the respondent constituted conduct which, if occurred in Hong Kong, constituted the three notional offences stated in paragraph 6 above.

17.  Each of these offences is punishable in Hong Kong by more than 12 months’ imprisonment.  The appellant contended that these offences came within the description in items 26 and 37 of Schedule 1 of the FOO.  The offences in question do come within the descriptions specified in Schedule 1.  It appears that criterion 2 is met.

RULING OF THE MAGISTRATE

18.  Despite on the face the criteria stipulated in section 2(2) of the FOO^[20] are met, the Magistrate did not find that the offences in question constitute relevant offences.

19.  The main basis for the ruling of the Magistrate is that he found same or similar reference to offence relating to escape from lawful custody is absent in Article 2(1) of the Extradition Agreement between Hong Kong and India[21] (“the Agreement”) which sets out the list of offences for which was agreed between parties for surrender of fugitive offenders[22].

20.  The Magistrate took into account section 2(c) of the Extradition Act 1962 (“the Extradition Act”), the relevant Indian legislation, which provides:

“(c) ‘extradition offence’ means―

(i) in relation to a foreign State, being a treaty State, an offence provided for in the extradition treaty[23] 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.”

21.  For the reason set out above, the Magistrate found that Offences 10 ‑ 12[24] do not constitute “relevant offences” and held that there was no prima facie case in respect of these offences.  Accordingly, he refused to make an order of committal in relation to these offences.

THE QUESTION OF LAW

22.  The question of law posed in the case stated is:

“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[25], and thus a relevant offence in the context of section 10(6)(b) of the Fugitive Offenders Ordinance?”

LOCAL LEGAL FRAMEWORK FOR SURRENDERING OF FUGITIVE OFFENDERS

23.  Prior to 1997, Hong Kong’s arrangements for the surrender of fugitive offenders were based on bilateral treaties which the United Kingdom (“UK”) had applied to Hong Kong and on a network of arrangements with Commonwealth countries under UK legislation which had been extended to Hong Kong.

24.  In anticipation of the resumption of sovereignty on 1 July 1997, negotiation with various countries for bilateral agreements for surrender of fugitive offenders was carried out, based on a model agreement[26] which had been worked out in the Sino-British Joint Liaison Group (“JLG”).[27]  Article 2 of the model agreement contains a list of descriptions of offence for which surrender might be granted.  This list contains 26 descriptions of offence and does not include offences relating to unlawful escape from custody.  Neither does it contain a provision similar to Article 2(1)(xxxiv)[28], a provision residual in nature which is the focus of this appeal, and described by the appellant as the “catch-all clause”.

25.  Local legislation in relation to fugitive offenders also needed to be introduced and as a result the FOO[29] was enacted.  It provides for mechanism for implementing agreement for the surrender of accused or convicted persons and set out the conditions and procedures for surrender of fugitive offenders subject to various conditions to safeguard the rights of those persons.[30] Whenever a bilateral agreement is signed, an order will be made by the Chief Executive in Council to give effect to the relevant provisions of that agreement.[31]

26.  Section 3(1) of the FOO provides that the Chief Executive in Council may by order direct that the procedures in the Ordinance shall apply as between the parties to arrangements for surrender of fugitive offenders, subject to the limitations, restrictions, exceptions and qualifications, if any, contained in the order to be made under the FOO.  As can be seen later[32], section 3(1) of the FOO has significance in the present matter.  Schedule 1 of the FOO lists 46 descriptions of offence for which surrender might be granted, more than that as stated in the model agreement.  Offences relating to unlawful escape from custody are listed as items 26 and 37.

27.  As at October 1996, when the Fugitive Offenders Bill was introduced to the Legislative Council, Hong Kong had signed agreements with the Netherlands, Canada, Australia, Malaysia and the Philippines, and was awaiting signature with India, the US and Indonesia.[33] The list of offences for which surrender might be granted under the agreements generally followed the list in the model agreement with adaptations and variations in each case.  Provision similar to Article 2(1)(xxxiv) appeared in some agreements.

28.  After two rounds of negotiations between Hong Kong government and the Indian delegation, the parties initialled an agreement which was subsequently agreed by the JLG in 1994.[34]  At that time, the FOO had yet come into existence.[35]

29.  The Agreement was signed on 28 June 1997.  Article 2(1) of the Agreement listed the offences for which surrender of fugitive offenders may be granted between the parties.^[36]

30.  The Agreement was given effect by the Fugitive Offenders (India) Order^[37] (“the Indian Order”), which recites the Agreement as a Schedule.

31.  The Indian Order provides in section 2 that:

“the procedures in the [FOO] shall apply as between Hong Kong and [India], subject to the limitations, restrictions, exceptions and qualifications contained in the [Agreement].”[38]

As can be seen later, this provision has significance in the present matter.

THE ISSUES INVOLVED

32.  The question of law posed boils down to one point: are the offences in question relevant offences for the purpose of surrender of the respondent in the present case by virtue of Article 2(1)(xxxiv) of the Agreement (ie, Article 2(1)(xxxiv) of the Schedule to the Fugitive Offenders (India) Order as stated in the question)?

33.  Article 2(1) sets out 33 descriptions of offence, as items (i) to (xxxiii).  In addition there is Article 2(1)(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.”

34.  Counsel for the appellant, Mr Walsh SC[39] described Article 2(1)(xxxiv) as a “catch-all clause” and submitted that since the Article is of this nature, if an offence matches the criteria set out in this Article, it is a relevant offence.

35.  On the other hand, counsel representing the respondent, Mr Young, submitted that Article 2(1)(xxxiv) does not have the effect of a “catch-all clause” as contended by the appellant.  His main submission is that the clause only captures new offences created after the Agreement had been signed, and by new offences he meant to include those offences newly created and offences which become extraditable as a result of legislative change.

36.  As a related matter, Mr Walsh submitted that the Magistrate erred in not accepting the evidence of the expert witness adduced by the appellant whilst Mr Young supported the decision of the Magistrate.

EVIDENCE OF THE EXPERT

37.  The definition of relevant offence is complex, involving an evaluation of the foreign offence, the alleged criminal conduct, and the possible Hong Kong offence if the alleged conduct occurred in Hong Kong.

38.  As regards the question whether the offence in question is one for which surrender may be granted in accordance with the law of India, a Public Prosecutor of India[40] gave evidence as an expert.  He indeed is also tasked with the prosecution of the respondent[41] and therefore as Mr Young said is not an independent witness.  That said, there was no need to call the witness and there was no cross examination of him.  The evidence of the expert was adduced by way of the two affirmations he made.[42]  The respondent did not file any expert evidence on Indian law and only sought to dispute the evidence of the expert witness by the provision in the Extradition Act, as stated in paragraph 20 above.

39.  The part of the evidence of the expert witness which calls for attention is[43]:

“2. Pursuant to Article 2(1)(xxxiv) of the Agreement, the Surrender of Fugitive Offenders between the two governments, surrender of fugitive offenders shall be granted for any other offences not referred to in the previous items listed under Article 2(1), 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.

3. (Explaining what is a composite offence.);

4. (Citing section 2(c)(i) of the Extradition Act: in relation to a treaty state, extradition offence is an offence provided for in the extradition treaty with that state.).

5. (Citing section 2(c)(ii) of the Extradition Act: in relation to a foreign state other that a treaty state, extradition offence means 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.).

6. By virtue of the provisions of the Extradition Act as stated above, it is confirmed that an offence punishable with imprisonment term which shall not be less than one year under the laws of India or of a foreign state … is an extraditable offence in relation to even a non-treaty State.

7. The offence of ‘escape from custody is contrary to … section 224 of the [Indian Penal Code]. The maximum penalty … is imprisonment for a term which may extend to two years, or with fine, or with both.

…

9. In the light of all the above, the deponent confirms that the offences of ‘escape from custody’ … are extraditable offences for which surrender may be granted in accordance with the law of India and are therefore covered by Article 2(1)(xxxiv) of the Agreement.”

40.  As regards the expert evidence, the Magistrate had these to say:

“… I interpret him to be arguing that, given that the offences relating to escape from unlawful custody are serious offences capable of attracting substantial imprisonment terms, there is no reason why this type of offence are not extradition offences in the treaty state scenario, when it is beyond doubt that they are extradition offences in the non-treaty state scenario. His argument was to the effect that no distinction should be drawn.”

41.  The Magistrate then said he took into account that:

(1)  in the Extradition Act a distinction is drawn between an agreement state and a non-agreement state;

(2)  Hong Kong is an agreement state for this purpose;

(3)  the Extradition Act provides that extradition offences are offences provided for in the agreement;

(4)  the offences relating to escape from lawful custody are left out and omitted from the agreement; and

(5)  Article 2(1)(xxxiv) in the agreement makes a specific reference to the laws of both parties,

and held that as the condition “in accordance with the laws of both parties” set out in Article 2(1)(xxxiv) is not satisfied, the offences in question are not extradition offence.[44]

Submissions

42.  It was the submission of Mr Walsh that, as the evidence of the expert was in essence not contradicted, it was wrong for the Magistrate not to accept the evidence of the expert and instead adopted his own interpretation of the Extradition Act as put forward from counsel for the respondent.

43.  Mr Walsh cited Bank Mellat v Her Majesty’s Treasury[45], in which the following propositions were said to be well established:

(1)  foreign law is a question of fact, to be proved by a duly qualified expert, the function of such expert extends to both the interpretation and application of the foreign law;

(2)  the burden of proof rests on the party seeking to establish the proposition of foreign law in question;

(3)  although the court will scrutinize the evidence adduced, it will not undertake its own researches into questions of foreign law;

(4)  when scrutinizing the evidence the court is not inhibited from using its own intelligence and common sense; and

(5)  where expert evidence on foreign law is uncontradicted, the court should be reluctant to reject it, unless it is obviously false, obscure, extravagant, lacking in obvious objectivity and impartiality, or patently absurd, etc.

44.  Mr Young, on the other hand, cited the decision of Court of Final Appeal in Zhang Hong Li v DBS Bank (Hong Kong) Ltd[46], in which the following principles were stated:[47]

“…

(c) Expert evidence of foreign law, although a matter of fact, will be treated differently to other, ordinary, findings of fact.

(d) Even if uncontradicted, the court will examine the content of any expert opinion evidence as to foreign law and will reject it as unsatisfactory if the circumstances so warrant.”

45.  Their Lordships also observed[48]:

“In particular, the court will examine the legal reasoning of a foreign law expert to determine the validity and reliability of the expert’s evidence as to the content of the foreign law in question, even where that evidence is uncontradicted”.

In making the above observations, the Court was in the course of examining the power of an appellate court to interfere with finding of facts of lower courts, having acknowledged that foreign law is treated as a fact by the courts of Hong Kong and is ascertained by a process of pleading and proof, including an expert giving evidence in court[49].

46.  Mr Young supported the decision of the Magistrate in rejecting the evidence of the expert and found that as Article 2(1) of the Agreement “does not make any reference to offences relating to escape from lawful custody”, the offences in question “are not extradition offences”, and “the condition ‘in accordance with the laws of both parties’ set out in item (xxxiv) is not satisfied”.

Discussion

47.  Notwithstanding that no expert evidence was adduced by the respondent, the Magistrate pointed to the Extradition Act which provides that extradition offences would be the offences provided for in the Agreement if the Indian Government has signed a treaty, or an extradition agreement with a foreign government.

48.  It is to be noted that the Extradition Act provides for two separate and distinct definitions of “extradition offence”: one is in relation to “a foreign State, being an Agreement State” and the other in relation to “a foreign State other than an Agreement State”.  I agree with Mr Young that this distinction has significance.

49.  It is not disputed that Hong Kong is an agreement state under the Extradition Act, given the existence of the Agreement.  In relation to an agreement state, an “extradition offence” is defined as “an offence provided for in[50] the extradition agreement with that State”[51]. I was told that this is the only provision enacted in India to define what amounts to extradition offence in that jurisdiction.

50.  It was the Magistrate’s interpretation of the expert opinion that there is no distinction between an agreement state and a non-agreement state and based on this interpretation the Magistrate further found that this opinion cannot be accepted as it is contrary to the above mentioned provision in the Extradition Act.

51.  It appears to me that what the expert said was that in his opinion the offences in question are extraditable offences irrespective of whether the case involves agreement states or otherwise as in either situation the distinct definition is met.

52.  In any case, the Magistrate did not accept the opinion of the expert witness on the ultimate point of whether the offences are extraditable.  As stated in Zhang Hong Li v DBS Bank (Hong Kong) Ltd[52], my task is to examine the legal reasoning of a foreign law expert to determine the validity and reliability of the expert’s evidence as to the content of the foreign law in question.[53]

53.  The expert witness gave the opinion that the offences in question are covered by Article 2(1)(xxxiv).  There is no direct conflicting evidence though the relevant provisions in the Extradition Act was drawn to my attention.  His opinion gives an impression, at least to the Magistrate, that he drew no distinction to the provisions in relation to treaty states and non-treaty states.  However, he did not expressly say so.  Indeed he mentioned section 2(c)(i) of the Extradition Act and Article 2(1)(xxxiv) in his opinion and when he gave his final opinion he said he gave it “in the light of all the above”.

54.  The most important issue to be resolved in this case is the intention of the parties in relation to the purpose and effect of Article 2(1)(xxxiv).  In my judgment, section 2(c)(i) of the Extradition Act is the provision to apply. The opinion of the expert is a matter which I am entitled to take into account. How much weight does it has is for me to decide.

IS ARTICLE 2(1)(XXXIV) A “CATCH-ALL CLAUSE”?

55.  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, in this case the Indian Order.  Section 2 of the Indian Order provides that the procedures in the FOO shall apply between the two places subject to the limitations, restrictions, exceptions and qualifications contained in the Agreement, which is recited as the Schedule in the Indian Order.  There is no dispute that provisions in the Agreement amount to such limitations and restrictions.  It follows that the offences in question are relevant offences only if they are included as extraditable offences in the Agreement.

Submissions

56.  Mr Walsh contended that Article 2(1)(xxxiv) in the Agreement is a “catch-all clause”, and therefore the offences in question are covered in the Treaty.

57.  It is the submission of Mr Walsh that a treaty is not to be interpreted in a spirit of pedantic literalism.  The language should be read in its context and in the light of its object and purpose.  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.

58.  Mr Walsh submitted that the clause cannot in any circumstance be interpreted in the narrow and literal sense to mean, in the case of India, only those additional offences which are extraditable offences according to section 2(c)(i) of the Extradition Act (ie, the Agreement state clause) because there can never be any such additional offences under the law of India based on this interpretation adopted by the Magistrate.  Otherwise the “catch-all” clause is rendered quite meaningless, and in effect becomes a “catch-nothing” clause.

59.  In support of this contention, Mr Walsh relied on the Vienna Convention on the Law of Treaties and the case of Al-Malki v Reyes.[54]

60.  On the other hand, it is the submission of Mr Young that the approach and conclusion of the Magistrate are correct, the interpretation of the Agreement as suggested by the appellant is incorrect, and that the parties did not intend to include the offences relating to escape from custody as an extradition offence when the Agreement was signed.  In particular, Mr Young argued that, since the offences relating to unlawful escape from custody are not expressly provided for as extraditable offences in either the Agreement or the Extradition Act, they are not extraditable offences.

61.  Mr Young stressed that if there is doubt in the expansive interpretation of the Article, as suggested by the appellant, the court should resolve that doubt in the respondent’s favour and avoid a construction that would penalize him by exposing him to additional criminal charges.  He argued that Article 2(1)(xxxiv) does not cover unspecified offences already in existence at the time the Agreement was made and is meant to cover only newly created offences or offence, in the sense as stated in paragraph 35 above.

62.  Mr Young pointed out that historically countries negotiating extradition treaties provided for extraditable offences in a closed list of offences.  Specific offences were agreed upon and listed in the treaty, the only way to add new offences to the list was to amend the treaty with the consent of the parties.  Overcoming this restrictive approach, many countries/jurisdictions moved towards eliminating the list, enabling extradition for all offences punishable above an agreed severity threshold (“no-list approach”).[55]  As a kind of half-way house, some jurisdictions adopted a modified list (or open list approach) whereby specific offences are enumerated ending with a residual category, similar to Article 2(1)(xxxiv).[56]

63.  Hong Kong follows the open list approach with 18 countries.  With Malaysia, a closed list was originally agreed, but the surrender agreement was later amended by protocol to incorporate an open list.  With Canada, a closed list was agreed.

64.  Both the open and closed list approaches allow states to delineate specifically what offences may and may not be extraditable.  Mr Young contended that the open list approach has the advantage of having the residual clause which can catch new offences without the need to re-negotiate and amend the treaty.  The residual clause is added to the Agreement with an eye to the future, to be invoked, for example, if new forms of harmful conduct call for new criminal offences which the parties believe should be the subject of extradition.  The need to invoke the residual clause would be expected to be rare and exceptional.  He submitted that the appellant’s position severely compromises the original intention of the parties to maintain an open list approach to the Agreement.

65.  The submission of Mr Young included the following main points:

(1)  Extraditable offences must be offences of serious nature and be specified, not hidden in an all-encompassing “catch-all” clause.  If it is so intended, it should be stated clearly, as in the case of the agreements between the USA and the UK.  Otherwise the principle of legal certainty would be compromised.

(2)  Had the Parties intended the appellant’s broad interpretation of the residual category, it could easily have been written into the Agreement, in terms such as the followings:

“any other offence, if: (a) the offence is punishable under the laws of both parties by imprisonment or other form of detention for at least one year or by a more severe penalty; (b) it is an offence for which surrender may be granted in accordance with the laws of Hong Kong; and (c) the offence constitutes an extraditable offence under the law of India.”

(3)  That the Parties did not choose to include this broad formulation is a strong indication that they did not intend Article 2(1)(xxxiv) to have such a wide scope, in particular as there had been amendment to the list of offences during the negotiation process.

(4)  Even if the Parties referenced a model agreement as the initial basis for negotiation, it did not stop them from adding to and modifying the suggested items.  Negotiated agreements inevitably contain a number of variations from the model agreement to meet the needs and legal requirements of the relevant jurisdiction.  The example of further negotiation and amendment of the agreement with Malaysia was quoted.  If necessary, local legislation can be amended to make more offences extraditable.

(5)  In choosing to list offences, the parties carefully discuss, deliberate and agree upon a list of specific offence descriptions for which surrender will be mutually possible, taking into account political, moral, religious or other reasons which are of concern to the negotiating parties.

66.  Mr Young argued that the Parties intended to adopt an open list approach whereas the effect of the appellant’s submission is to transform the Agreement into one that approximates the no-list approach,[57] substantially widening the list of extraditable offences or even renders nugatory items (i) to (xxxiii) in Article 2.  He submitted that if the Parties truly intended to adopt the no-list (or near no-list) approach, they would have done so explicitly.

Discussion

67.  Hong Kong and India are the two parties of the Agreement.  As far as Hong Kong is concerned, section 3(1)(b) of the FOO provides that the procedures in the Ordinance shall apply as between the parties, subject to the limitations, restrictions, exceptions and qualifications, if any, contained in the order to be made under the FOO.  The relevant order is the Indian Order.  The Indian Order recites the Agreement and provides in section 2 that the procedures in the FOO shall apply as between Hong Kong and India, subject to the terms of the Agreement.[58]

68.  As far as India is concerned, the Extradition Act, as I found it, provides in section 2(c) that extradition offence is “an offence provided for in the extradition treaty with that State”.[59]

69.  The question therefore is: is it agreed between Hong Kong and India that the offences in question are extraditable between the two places?

70.  If Article 2(1)(xxxiv) is a “catch-all clause” as contended, the offences in question are extraditable between the two places.  If not, then pursuant to section 3(1) of the FOO, the offences in question are not extraditable since they are not expressly listed in the agreement, and also not listed in the Indian Order which cites the Agreement.  In addition, the requirement in section 2(c) of the Extradition Act[60] is also not met.

71.  The answer to the question whether Article 2(1)(xxxiv) is a “catch-all clause” is determined by identifying the intent of the parties in the Agreement, which is to be achieved by interpretation of the Agreement.  Whilst the opinion of the expert[61] is a matter which the court is entitled to take into account as far as the law of India is concerned, the court also has to consider the matter from other perspectives bearing in mind the principles of interpretation respectively of treaties and legislation.

72.  The Agreement is implemented under the FOO and the Indian Order, and therefore statutory interpretation is engaged.  It suffices to mention that section 19 of the Interpretation and General Clauses Ordinance[62] provides:

“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.”

73.  The local legislation, however, adds nothing to the Agreement and therefore the principle governing treaty interpretation is more significant.

74.  Article 31(1) of the Vienna Convention on the Law of Treaties (1969) laid down the primary rule of interpretation of treaties:

“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.”

75.  In Adan v Secretary of State for the Home Department[63], Lord Lloyd of Berwick observed:

(1)  one cannot expect to find the same precision of language in the text of an international convention as an Act of Parliament;

(2)  one is more likely to arrive at the true construction of a provision in such document by seeking a meaning which makes sense in the light of the Convention as a whole, and the purposes which the framers of the Convention were seeking to achieve, rather than by concentrating exclusively on the language;

(3)  a broad approach is what is needed, rather than a narrow linguistic approach; and

(4)  that said, the starting point must be the language itself.

76.  Later, in Al-Malki v Reyes[64], Lord Sumption JSC confirmed it as the primary rule and said the followings are the principle in interpretation of treaties[65]:

(1)  so far as a statute gives effect to an international treaty, it falls to be interpreted by the court in accordance with the principles of interpretation applicable to treaties as a matter of international law;

(2)  the language of a Treaty must be read in its context and in the light of its object and purpose, and not in a spirit of pedantic literalism; and

(3)  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.

77.  His Lordship further observed, in the context of considering the Convention on Diplomatic Relations, that[66]:

(1)  text of treaties is the result of intensely deliberative process in which the language is minutely reviewed and debated, and if necessary amended;

(2)  the text is the only thing that the party states agreed; and

(3)  the scope for inexactness of language is limited.

78.  The Agreement should “be read as the parties would have read it”[67]. In my consideration, I bear in mind the said principles and submission of Counsel, as well as the matters brought to my attention most of which are stated below.  I was reminded, and I bear in mind, that in HKSAR v Kwan Ka Hei[68]and T v Commissioner of Police[69], the Court of Final Appeal stated:

“it is a principle of statutory interpretation that a person should not be penalised except under clear law, and the court, when faced with opposing constructions of a statutory provision, should strive to avoid adopting a construction which penalises a person when the legislator’s intention to do so is doubtful.”

The same approach should be adopted in interpretation of treaties / extradition agreements.

79.  Mr Walsh argued that extradition arrangement is not penal provision.  In view of the consequences faced by the Respondent, I am inclined to think that the abovesaid principle should be applied when identifying the intent of the parties.

80.  I am also of the view that, in the exercise, other than the provisions expressly stated in the Agreement, matters which I may take into account include: the state of the law at the material time, the sequence of events including the timing of the Agreement and enactment of the FOO, the Model Agreement used as a basis for the negotiation, statements from the officials and explanatory memorandum to the Legislative Council in relation to extradition arrangement with various countries, and contents of other extradition agreements, insofar as it may cast light on the interpretation exercise.

81.  The government told the Legislative Council in October 1996 relating to the policy behind the FOO:[70]

“… our policy is to surrender individuals only for specified, serious offences. These are listed in our bilateral agreements and in the localised legislation.”

82.  According to the preamble to the FOO, it is an ordinance “to make provision for the surrender to certain places outside Hong Kong of persons wanted for prosecution, or for the imposition or enforcement of a sentence, in respect of certain offences against the laws of those places… and for matters incidental thereto or connected therewith.”

83.  It is stated in the agreement with India that parties are “desiring to make provision for the reciprocal surrender of fugitive offenders”.[71] The parties chose to have a list of offences for this purpose, which is not short, comprising 33 specific descriptions of offence.  Common sense tells it was a result of careful deliberation and negotiation.  Such negotiation had started before the drafting of the FOO, and was based on the Model Agreement[72].  The Agreement included all the offences described in the Model Agreement and 12 extra descriptions of offences not stated in the Model Agreement.  On top, Article 2(1)(xxxiv) was provided as the last item in the list, a residual item to put it in more neutral term.

84.  In my judgment, by putting in Article 2(1)(xxxiv) the intention of the parties must be that the list of offences is not meant to be exhaustive.  Indeed, it was not what Mr Young contended.  His submission was that the Article is meant only to cover new offences in future created, but not offences already in existence at the time the Agreement was made.

85.  Mr Young said Article 2(1)(xxxiv) starts with the words “any other offences not referred to in the previous items of this paragraph” and submitted that this is strong indication that parties do not intend Article 2(1)(xxxiv) to overlap with the offences already expressly stated.  I note that up to now these words are used only in the agreement with India and not in the agreements with any other countries even if the agreements contain a clause of similar effect.  However, I do not agree to this submission of Mr Young.  Firstly, whilst accepting wording used is important in identifying the intention of the parties, choice of words was result of negotiation between the two parties involved in this particular exercise who would have their own particular concern, the fact that these words do not appear in other agreements is not conclusive for the purpose.  Secondly, I find existence of these words equally consistent with the contention of Mr Walsh.  For argument sake, had it been the intent of the parties to confine the Article to cover only new offences in future created, clear words to this effect could have been used.

86.  Mr Young stressed that, in accordance with the Extradition Act, to be an extradition offence it needs to be an offence provided for in the Agreement.  He supported the finding of the Magistrate that the offences in question are not so provided.  He also submitted that had there been an amendment to the Extradition Act to include the offences in question within the definition of extradition offence, the conclusion may have been different.  In support of his argument, Mr Young cited R v Bow Street Magistrate, Ex parte Government of the United States of America[73]in which the House of Lords examined whether certain computer crimes not expressly listed in the treaty between the USA and the UK were covered by the treaty provision written along the line: “any other offence ... extraditable under ... the law of UK”.  Lord Hobhouse of Woodborough observed:

“All that is needed is some provision of the law of the UK which provides … that computer crime shall both become an offence and be extraditable under the law of the UK; the Act of 1990 contains provisions that meet this need.”[74]

87.  Mr Young argued that such threshold has not been met as the offences in question are not provided for as extraditable offences in either the Agreement or the Extradition Act.  I accept that the offences in question are not expressly provided for in the Agreement.  It all depends on whether they are intended to be coved by Article 2(1)(xxxiv).  I do not think that the requirement of “some provision of the law” is not met.

88.  Mr Young stressed the importance of the principle of legal certainty.  In my judgment, there is sufficient legal certainty even if Article 2(1)(xxxiv) is found to be a “catch-all clause” since at most 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 which is the source of the authority to make extradition arrangement and seek extradition in individual cases.

89.  Mr Young submitted that the result of this interpretation will be that all Indian offences punishable with imprisonment more than 12 months will be extraditable.  Even if this point is consistent with the law in India, the submission as a whole ignores the provision in Article 2(1)(xxxiv) stipulates that the requirements of the law of both parties have to be met.

90.  Mr Young also pointed out the following matters:

(1)  Six out of the seven other surrender agreements signed before the enactment of the FOO included offences related to unlawful escape from custody.  Only the agreements with Malaysia and India left out the offence; and

(2)  As the Agreement between Hong Kong and India was the last of the eight agreements to be signed at that time,

(a)   those negotiating it would have known that most of the already concluded agreements listed the offence of unlawful escape from custody;

(b)  the text of the Fugitive Offenders Bill was already available in October 1996, eight months before the Agreement was signed by the Parties.

91.  I have the following observations:

(1)  despite offences relating to unlawful escape from custody were not included in the original agreement with Malaysia, the agreement was later amended by adding the following description as item (xxxviii):

“any other offence for which surrender may be granted in accordance with the law of the requested party.”

(2)  the Fugitive Offenders Bill was only available eight months before the Agreement was signed with India.  It was subject to examination and enactment process by the Hong Kong legislature; and

(3)  whilst the Agreement was signed in June 1997, the Agreement had been initialled by parties and agreed by the JLG in 1994.

92.  I note the following sequence of events.  It was in November 1990 that the Executive Council advised and the Governor ordered that Hong Kong should commence negotiations with various places for bilateral agreements for extradition.  Negotiations were based on the Model Agreement which was settled in 1990.  Negotiation with India took place in July 1993 and January 1994.  The parties initialled the Agreement and it was subsequently agreed by the JLG in December 1994.  The process took place before the drafting of the FOO.  The bill for the FOO was introduced in October 1996.[75]  The FOO was enacted in 1997.  The list of offences in the Model Agreement is significantly shorter than that later provided in the FOO.  The offences relating to escape from lawful custody was not included in the Model Agreement.  Such offences were included in the list in the FOO eventually enacted.  I was told that the list in the FOO contains all the offences included in various agreements negotiated up to the drafting of the Ordinance.

93.  At the time the agreement with India was initialled[76] and awaiting formal signature, agreements had been signed with five countries, namely the Netherlands, Canada, Australia, Malaysia and the Philippines.[77]  By the time the Indian Order was to be made, there were seven Orders already, in relation to the agreements with the said five countries, as well as that with the USA and Indonesia.  Only the agreement with Canada does not consist a similar residual clause.  Similar residual clause was included in the first extradition agreement which was signed with the Netherlands on 2 November 1992.

94.  There is no evidence before me whether, and if so to what extent, the delegates of both parties were aware of the Fugitive Offenders Bill.

95.  Mr Young pointed out that when the Agreement was initialled by the parties, the Bill was already available.  The Agreement was initialled by parties on a date around March 1994, two years prior to the introduction of the Bill.  Even if at that time the Bill for the FOO had been prepared, the bill is still subject to examination by the legislature and subject to enactment procedures.  What offences would be included in the Ordinance as extraditable offences was less than certain.

96.  I was told that Article 2(1)(xxxiv) was not expressly canvassed during the process of making the Indian Order.  Similar provision was, however, discussed during the enactment process of the Fugitive Offenders (South Africa) Order.

97.  In the meeting on 20 May 2010 of the Legislative Council Subcommittee on Fugitive Offenders (South Africa) Order[78], in response to the following query in relation to the provision (item 47):

“any other offence which each Party has confirmed to the other, by notice in writing, is an offence for which surrender may be granted in accordance with its law.”

a Senior Government Counsel stated that the purpose of the provision were[79]:

(1)  “to provide flexibility to either Party to amend its laws to include extraditable offences without the need for re-negotiation”;

(2)  “a similar formulation had been included in almost all [extradition agreements] signed by the Hong Kong Government with other foreign jurisdictions”; and

(3)  “amendments to the [FOO] were necessary before surrender for newly added offences under item (47) could be granted”.

98.  Later, in a Security Bureau paper entitled “Response to issues raised” at the said Subcommittee meeting[80], it was stated that such provision:

“is a ‘catch-all’ clause to cover any future amendment to the law of either party which may affect the list of relevant offences. With this ‘catch-all’ clause, re-negotiation to incorporate changes to the list of relevant offences in the Agreement can be avoided. Provision of similar effect can be found in the following Orders: … India …”.

99.  Although on the face this later statement seems to an extent support the contention of Mr Young, in my judgment, eyeing only on the words “future amendments” overlooks the important purpose of permitting either party to include extraditable offences without the need for re-negotiation.  If it is the intention of both parties that either party is at liberty to amend its law to include further extraditable offence and the amendment will be recognized for the purpose of extradition, it must be the intention of both parties that if an offence is extraditable under the prevailing state of law of a party, having met all the required conditions it will be recognized.

100.  I also note that similar provision was not included in the original agreement with Malaysia.  In 2007, there was various amendments to the agreement by means of a Protocol.  The Protocol is said to supplement the original agreement, “desiring to adopt provisions supplementary to those of the original agreement to promote more effective implementation of the said agreement.”[81]

101.  The argument that Article 2(1)(xxxiv) is meant to cover only new offences rests on the assumption that prior to making of the Agreement both parties have had a comprehensive study of all the offences in the other jurisdiction.  It also implies parties had wished to include only offences which they had considered and agreed upon.  If it had been their intention, including Article 2(1)(xxxiv) in the Agreement, even if it is to cover new offences only, will undermine the effectiveness of such exercise.

102.  There is no evidence before me that why parties listed certain offences in the Agreement.  An obvious advantage is that the list provides higher certainty as to what offences are extraditable.  There is also no evidence before me why offences relating to unlawful escape from custody is not included in the list.  I note that, unlike the offences under Article 2(1)(xxxiv), the other offences under Article 2(1) are intended by parties to be extraditable so long as the minimum imprisonment or detention term is met[82].  For the offences to be covered by Article 2(1)(xxxiv), there is an additional requirement that it has to be an offence for which surrender may be granted in accordance with the law of both parties.

103.  I also note that despite there is the following stipulation in the preamble of Article 2(1) of the Agreement:

“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”,

the effect of listing of offences is not as definite as it appears to be.  Even though apart from Article 2(1)(xxxiv) there is no requirement that surrender has to be in accordance with the laws of both parties, the local law of the parties does affect the operation.  An offence expressly listed can subsequently become not extraditable as a result of change in the local law of either of the parties.  Whilst as the law now stands in India, it will not happen as its only relevant law as provided in section 2(c)(i) of the Extradition Act is that an extradition offence is an offence provided for in the Agreement, it can happen if Hong Kong changes the law by taking out from Schedule 1 of the FOO a description of offence.  If this happens, the offence stops to be a relevant offence since a criterion in section 2(2) of the FOO is not met, namely the conduct in question would constitute an offence coming within any of the descriptions specified in Schedule 1.  As a result, Hong Kong cannot rely on section 4 of the FOO to make arrest and arrange surrender of a person, even if the conduct amounts to an offence expressly listed in the Agreement.

104.  As far as the provision in the Agreement itself, I also note that the clause in question[83] is put under Article 2(1), together with all other expressly provided offences, and under the same preamble as quoted in the preceding paragraph.  It is, in my judgment, an indication that the parties intend Article 2(1)(xxxiv) to be another description of offence just like the offences more specifically stated, and not another category of offence.

105.  In my view, the focus of the parties in the present case was that insofar as the offence is one which satisfies all the criteria set out in the preamble of Article 2(1)[84] and Article 2(1)(xxxiv)[85], surrender of the fugitive offender may be granted.  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.

106.  In my judgment, this interpretation of the Agreement is consistent with the language used, the opinion of the expert on Indian law, and the material on legislative procedure produced before me in relation to the FOO, the Indian Order and the orders for some other fugitive agreements.  It is, to me, a meaning which makes sense in the light of the Agreement as a whole, and is consistent with the purposes the parties seek to achieve.

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.

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[86], 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.

112.  I am satisfied that the offences in question are those for which surrender may be granted in accordance with the laws of both parties.  Accordingly, I am also satisfied that all the requirements[87] under Article 2(1)(xxxiv) are met.

ANSWER TO THE QUESTION POSED

113.  My answer to the question posed in the Case Stated therefore is: Yes.  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[88], and thus a relevant offence in the context of section 10(6)(b) of the Fugitive Offenders Ordinance[89].

DISPOSITION

114.  Accordingly, I allow the appeal.  Pursuant to section 11(3)(a) of the FOO[90], I remit the case to the court of committal to decide it according to my opinion on the question of the law posed, as stated in the preceding paragraph.