RAMANJIT SINGH v. COMMISSIONER OF CORRECTIONAL SERVICES AND ANOTHER

HCAL 1064/2023

[2023] HKCFI 1983

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1064 OF 2023

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J U D G M E N T

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A.  Introduction

1.  By his application, the Applicant applies for a writ of habeas corpus, pursuant to section 22A of the High Court Ordinance Cap 4. The Applicant thereby seeks release from the custody of the 1^st respondent Commissioner of Correctional Services (“Commissioner”). The application comes about in the following way.

2.  The Applicant is a Hong Kong permanent resident, now 34 years of age. He lives in Hong Kong with his wife and two children. On 25 June 2018, he was arrested pursuant to a warrant issued under section 7(1)(b) of the Fugitive Offenders Ordinance Cap 503 (“FOO”).

3.  The Government of India (“GOI”) sought to have the Applicant extradited to India, on the basis of 28 notional Hong Kong offences.

4.  By his decision dated 19 November 2019 (“Ruling 1”), the Magistrate (Mr LT Pang) committed the Applicant to custody in relation to 18 of the offences (i.e. Offences 4 to 7, 13, and 16 to 28), pursuant to section 10(6)(b) of the FOO. Part of Ruling 1 was the Magistrate’s rejection of the Applicant’s application (“section 5 application”) made pursuant to section 5 of the FOO.

5.  The GOI appealed against the Magistrate’s refusal to commit on Offences 10 to 12. The appeal was heard by the Court of First Instance (“CFI”), and allowed on 10 November 2020. The Applicant then appealed to the Court of Appeal (“CA”), which dismissed his appeal on 16 July 2021. The Applicant’s subsequent application for leave to appeal was dismissed by the Court of Final Appeal on 28 December 2021.

6.  Pursuant to the directions of the CFI and the CA, the case was remitted to the Magistrate to decide, according to the opinion of the Court on the question of law, whether the Applicant should be ordered to be committed to custody in respect of Offences 10 to 12.

7.  By his decision dated 8 July 2022 (“Ruling 2”), the Magistrate committed the Applicant to custody on Offences 10 and 11, but not 12.

8.  There is a 2^nd Amended Order of Committal dated 8 July 2022, which lists short offence descriptions relating to the 20 offences for which the Magistrate found sufficient evidence to warrant the Applicant’s committal.

9.  The committal to custody is to await the decision of the Chief Executive (“CE”) to surrender the Applicant to India, which request for surrender has been made by the GOI.

10.  The application for habeas corpus was issued on 30 June 2023, and is based on 5 Grounds (see below). It can be noted here that it is well-established that on an application for habeas corpus in extradition proceedings, the CFI does not hear an appeal from a decision of the court of committal. Rather, the Court looks at the lawfulness of the detention, which includes looking at whether the magistrate making the committal order has committed any errors of law, or whether his conclusion on the evidence is Wednesbury unreasonable, in the sense that it is a decision which no reasonable magistrate, properly directing himself in law, could have made.

11.  I gave directions to deal with what is sometimes a two-step procedure on an application for habeas corpus, but on a rolled-up basis, at a hearing on 4 August 2023. The Applicant was represented by Mr Simon NM Young of Counsel. The Commissioner and the GOI were represented by Mr Wayne Walsh SC (leading Ms Dora Si, Acting Deputy Principal Government Counsel, and Mr Kevin Chan, Acting Senior Government Counsel).

12.  At the end of the hearing, I reserved my decision to be handed down later.

13.  This is my Judgment.

B.  Grounds of Application

14.  The first three Grounds of the application relate to the Magistrate’s decision on the section 5 application. Those Grounds are as follows:

Ground 1: The Magistrate misdirected himself in law on the question of the causal link required when considering the Applicant’s application not to be surrendered, made under section 5(1)(c) and (d) of the FOO.

Ground 2: The Magistrate erred in adopting an overly restrictive view of the relevance of the evidence advanced on the Applicant’s behalf in his section 5 application, and consequently failed to take into account relevant and material evidence before him.

Ground 3: The Magistrate erred in taking no account of the material evidence in the Affidavit of Mr Brijinder Singh Sodhi, which exhibited affidavits of Mr Gurwinder Singh, Mr Rajveer Singh and Mr Harcharan Singh (together “New Evidence”), in deciding the Applicant’s section 5 application.

15.  The next Ground of the application relates to Offences 10 to 28. It is as follows:

Ground 4: In considering whether the evidence was sufficient to warrant the Applicant’s committal to custody, the Magistrate erred in law in refusing to admit and consider the New Evidence, which was material to the question of evidential sufficiency and not excluded by section 23(4) of the FOO.

16.  The last Ground of the application relates only to the committal in relation to Offence 11. It is as follows:

Ground 5: In relation to the remitted proceeding, the Magistrate erred in allowing the GOI to amend the particulars of notional Offences 11 and 12, allowing for a timeframe of the offences to be widened, where the Magistrate lacked the jurisdiction to allow such amendment or should not have allowed the amendment as it would be unfair to the Applicant.

17.  Mr Young submits that if Grounds 1, 2 or 3 are successful, it means that the Applicant is currently being detained by a process that has not complied with the law, so that his detention is “without lawful justification” and he must be released (unless there is some other lawful basis for his continued detention). Mr Young further submits that if Grounds 4 and 5 are successful, it means the notional Offences to which those grounds apply can no longer be the basis for the Applicant’s committal to custody, so that the order for committal would need to be further amended to reflect that decision.

C.  The Statutory Regime and Applicable Principles

18.  It is helpful first to identify the framework for the relevant extradition proceedings, as provided for in the FOO (and relevant subsidiary legislation). Unless the context otherwise makes clear, all references to numbered sections in this Judgment are to the numbered sections in the FOO.

19.  The GOI’s request for the surrender of the Applicant was made pursuant to the Agreement for the Surrender of Fugitive Offenders between the Government of Hong Kong and the Republic of India, scheduled to the Fugitive Offenders (India) Order Cap 503P.

20.  Under section 4 of the FOO, a person in Hong Kong who is wanted in another place for prosecution 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 the FOO.

21.  In relation to that, section 6(2) provides that the CE may issue an authority to proceed upon receipt of a request for surrender by a prescribed place and, subject to provisional warrants of arrest, a fugitive shall not be dealt with in accordance with the provisions under the FOO except pursuant to an authority to proceed. There is no dispute in this case relating to the relevant authority.

22.  When a fugitive is arrested, he should be brought before a magistrate for committal proceedings under section 10.

23.  Section 10 – materially for present purposes – provides as follows:

10. Proceedings for committal

(1) A person arrested pursuant to a warrant under section 7 shall (unless previously discharged under subsection (2)(b) of that section) be brought as soon as practicable before a magistrate.

(2) For the purposes of proceedings under this section, the court of committal shall –

(a) hear the case in the like manner, and have the like jurisdiction and powers, as nearly as may be, including, subject to subsection (5) and section 11(2), power to remand in custody or on bail, as if the person brought before it is charged with an indictable offence committed in Hong Kong;

(b) receive any evidence relevant to the exercise of its jurisdiction under section 5.

(6) Where –

(a) subject to subsection (7), at any time the person arrested informs the court of committal, and whether or not –

(i) an authority to proceed has been issued in respect of him; or

(ii) the court is proceeding under paragraph (b),

that he consents to his surrender to the prescribed place by which the request for surrender concerned was made; or

(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

(iv) where the person has been prosecuted for the offence, a conviction obtained and –

(A) no sentence has been imposed, that there is an intention to impose a sentence;

(B) a sentence of imprisonment has been imposed, that either –

(I) the sentence has not been carried out; or

(II) in the case of a term of imprisonment, not less than 6 months of the term remain to be served,

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.

(9) If –

(a) the court of committal is not satisfied as referred to in subsection (6)(b) in relation to the person arrested; or

(b) the committal of the person arrested is prohibited by a provision of this Ordinance,

the court shall discharge him.

24.  The phrase “as nearly as maybe” in section 10(2)(a) is to be read consistent with the extradition legislation, meaning that there is no right for the fugitive to cross-examine the foreign affidavit deponents or to seek disclosure. Hence, the function of the Court of committal is to determine, in accordance with section 10(6)(b)(i)-(iii):

(1)  whether the offence to which the authority to proceed relates is a “relevant offence”;

(2)  whether the supporting documents in relation to the offence have been produced and are duly authenticated; and

(3)  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.

25.  The practice in extradition cases has been that the Hong Kong ‘offences’ are often stated in the authority to proceed in very general terms. The magistrate is not, of course, concerned with whether the offence is made out in foreign law. He is concerned solely with whether the evidence would support committal for trial in Hong Kong, if the conduct complained of had taken place in Hong Kong: see the statement of principle in, for example, R v Governor of Pentonville Prison, ex parte Osman [1990] 1 WLR 277.

26.  So the magistrate is furnished at the commencement of the hearing with a schedule of charges based on the alleged conduct and formulated in accordance with Hong Kong law. It is recognised that the schedule of charges is frequently amended in the course of the hearing. Since the magistrate is not concerned with the foreign charges, but only with the evidence, there is no reason why the Hong Kong charges should not be amended from time to time to fit the evidence; and this is what happens. It is the evidence which matters, not the form of the charges.

27.  The ex parte Osman case is also relevant to the task of the magistrate when weighing the evidence. It held that the duty of the magistrate is to consider the evidence as a whole, and to reject any evidence which he considers worthless. In that sense, it is his duty to weigh up the evidence. But it is not his duty to weigh the evidence. He is neither entitled nor obliged to determine the amount of weight to be attached to any evidence, or to compare one witness with another. That would be for the jury at the trial. It follows that the magistrate is not concerned with inconsistencies or contradictions in evidence, unless they are such as to justify rejecting or eliminating the evidence altogether.

28.  In the Canadian case of United States of America v Ferras [2006] 2 RCS 77, the court considered evaluating the sufficiency of evidence, from a procedural standpoint. In particular, the court addressed how and when concerns about reliability or availability of evidence render evidence insufficient for the purposes of committal. The court noted at §52 that certification of evidence is the indicium of reliability that the legislature has prescribed for evidence in the circumstances. (This is the production and authentication requirement in our section 10(6)(b)(ii).) Hence, unless challenged, certification establishes reliability.

29.  The court also noted at §53 that the person sought for extradition may challenge the sufficiency of the case, including the reliability of certified evidence. But it pointed out that the issue is threshold reliability. Once it is admitted, its reliability for the purposes of extradition is determined in light of all the evidence presented in the hearing. At §54, the court stated:

Challenging the justification for committal may involve adducing evidence or making arguments on whether the evidence could be believed by a reasonable jury. Where such evidence is adduced or such arguments are raised, an extradition judge may engage in a limited weighing of evidence to determine whether there is a plausible case. The ultimate assessment of reliability is still left for the trial where guilt and innocence are at issue. However, the extradition judge looks at the whole of the evidence presented at the extradition hearing and determines whether it discloses a case on which a jury could convict. If the evidence is so defective or appears so unreliable that the judge concludes it would be dangerous or unsafe to convict, then the case should not go to a jury and is therefore not sufficient to meet the test for committal.

30.  It is important to remember that guilt or innocence forms no part of the international extradition process.

31.  If the magistrate is satisfied with the compliance of the requirements under section 10(6)(b), he comes under a mandatory obligation to commit the fugitive to custody to await the CEO’s decision to surrender, unless the person’s committal is prohibited by any other provision of the FOO.

32.  One such provision prohibiting surrender is to be found in section 5, which provides:

5. General restrictions on surrender

(1) A person shall not be surrendered to a prescribed place, or committed to or kept in custody for the purposes of such surrender, if it appears to an appropriate authority –

(a) that the offence in respect of which such surrender is sought is an offence of a political character (and irrespective of how that offence is described in the prescribed arrangements concerned);

(b) that –

(i) the offence in respect of which such surrender is sought was prosecuted in his absence and a conviction obtained; and

(ii) the person –

(A) has not had an opportunity of being tried in his presence for that offence; and

(B) if surrendered, would not have an opportunity of being re-tried in his presence for that offence;

(c) that the request for surrender concerned (though purporting to be made on account of a relevant offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions;

(d) that he might, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions; or

(e) that if the offence had occurred in Hong Kong, the law of Hong Kong relating to previous acquittal or conviction would preclude the prosecution, or the imposition or enforcement of a sentence, in respect of that offence.

(7) In this section, appropriate authority (主管當局) means –

(a) the Chief Executive;

(b) the court of committal; or

(c) the Court of First Instance on an application for habeas corpus or for judicial review of the order of committal.

33.  I specifically note the words “shall not” in the introductory part of section 5(1) identify that establishing one of the matters in section 5(1)(a)-(e) will raise a complete bar to surrender or committal. For present purposes, the focus is on section 5(1)(c) and (d).

34.  Mr Young submits that the words “if it appears to an appropriate authority” in the introductory part of section 5(1) identify a “relatively low standard” (as he put it). But I do not think those words set any standard, except to identify that the appropriate authority must be appropriately satisfied of the existence of one of the features which raises a bar to surrender or committal. For example, I do not think it is helpful, or even makes sense, to talk of a “relatively low standard” when considering whether it appears to the appropriate authority under section 5(1)(a) that the offence in respect of which such surrender is sought is an offence of a political character. I can come back to the relevant standard for section 5(1)(c) and (d), below.

35.  It can also be noted that section 5(7) expressly grants a CFI judge dealing with an application for habeas corpus or judicial review of an order of committal, the original jurisdiction to deal with a section 5 application. Hence, if I were to take the view that the Magistrate erred in his decision on the section 5 application made by the Applicant, I can deal with that application myself, afresh.

36.  I will deal further with the proper approach to section 5 when I consider Ground 1, below.

37.  Section 12 deals with applications for habeas corpus, and expressly states that upon an application for habeas corpus made by a person in relation to whom an order of committal has been made, the CFI may receive additional evidence relevant to the exercise of its jurisdiction under section 5. Section 12 provides as follows:

12. Application for habeas corpus, etc.

(1) Where the court of committal makes an order of committal in relation to a person, it shall –

(a) inform him in ordinary language of his right to make an application for habeas corpus; and

(b) forthwith give notice of the order to the Chief Executive. (Amended 71 of 1999 s. 3)

(2) A person in relation to whom an order of committal has been made shall not be surrendered under this Ordinance –

(a) subject to subsection (3), in any case, until the expiration of 15 days beginning with the day on which the order was made;

(b) if an application for habeas corpus is made in his case, so long as proceedings on that application are pending.

(3) Subsection (2)(a) shall not apply in the case of an order of committal made in relation to a person by virtue of that person’s consent to surrender pursuant to section 10(6)(a).

(4) On an application for habeas corpus made in the case of a person in relation to whom an order of committal has been made, the Court of First Instance may receive additional evidence relevant to the exercise of its jurisdiction under section 5.

38.  Relevant to Grounds 1 to 3 and Ground 4 in particular is the interaction between section 12(4) and section 23(4). Section 23 provides as follows:

23. Admissibility of evidence, etc.

(1) Any supporting document or other document which is duly authenticated is admissible in evidence in any proceedings under this Ordinance without further proof.

(2) Any supporting document or other document shall be deemed to be duly authenticated if it –

(a) purports to be signed or certified by a judge, magistrate or officer of the prescribed place concerned; and

(b) purports to be sealed with the official or public seal of a competent authority of that place.

(3) Subject to subsection (4), in any proceedings under this Ordinance, nothing in this Ordinance shall prejudice either –

(a) the admission in evidence of any document which is admissible in evidence; or

(b) the proof of any matter,

under any other law of Hong Kong.

(4) Without prejudice to the generality of section 10(2)(b) or 12(4), in any proceedings under this Ordinance, any evidence which contradicts an allegation that a person sought to be surrendered under this Ordinance to a prescribed place has engaged in conduct which constitutes a relevant offence for which such surrender is sought is inadmissible and, accordingly –

(a) that person is not entitled to adduce such evidence; and

(b) any court is not entitled to receive such evidence.

(5) Without prejudice to the generality of subsection (4), in proceedings under this Ordinance evidence may be adduced for the purposes of showing that a person brought before the court of committal or any other court is not the person identified in the request for surrender to which the proceedings relate.

(6) In this section, document (文件) includes a copy of a document.

39.  Once a committal order is made, it is for the CE to decide whether a formal surrender order should be made. In that regard, section 13 – materially for present purposes – provides as follows:

13. Order for surrender

(2A) An order for surrender must not be made for the surrender of a torture claimant to a prescribed place if the claimant’s torture claim is made in respect of that prescribed place.

(2B) If after an order for surrender has been made for the surrender of a person to a prescribed place, the person makes a torture claim in respect of the prescribed place, then, the order for surrender is suspended until the torture claim is finally determined or withdrawn under Part VIIC of the Immigration Ordinance (Cap. 115) and –

(a) if the torture claim is accepted as substantiated on final determination under that Part, the order for surrender must be taken as rescinded at the time of the final determination; or

(b) in any other case, the order for surrender resumes its effect as from the final determination or withdrawal.

40.  Section 2 defines “torture claimant” as a person who falls within the meaning of “claimant” as defined by section 37U(1) of the Immigration Ordinance Cap 115, and a “torture claim” accordingly. That type of claim – now subsumed into what is often called a ‘non-refoulement claim’ – is a claim that the claimant is at risk of torture and cruel, inhuman or degrading treatment and punishment (“CIDTP”), and such claims are now ordinarily dealt with under the Unified Screening Mechanism (“USM”).

41.  Hence, whilst a fugitive has an extant torture claim, a surrender order cannot be made (or if already made must be suspended) pending the determination of that torture claim. If the torture claim is accepted as substantiated on final determination, any order for surrender previously made must be taken as rescinded.

42.  Under the FOO, the Court is only concerned with the restrictions in accordance with section 5. The wider aspects of the risks of torture, persecution and CIDTP are to be dealt with at the executive phase of surrender and under the USM: see, for example, Xie Jing Feng v Superintendent of Lai Chi Kok Reception Centre and Government of the Republic of India (unreported, HCAL 223/2015, 13 February 2017, Au J) at §79.

43.  This is because the committal proceedings are only to determine if there is a prima facie case as to whether the applicant has committed the offences alleged by the foreign requesting authority. Even if a person is committed under the committal proceedings envisaged in the FOO, the CE has a discretion under section 13(1) to decide whether or not to make a surrender order, and in doing so must take account of those matters identified at sections 13(2A) and (2B). Hence, it can be expected that the CE will take into account an applicant’s non-refoulement claim in deciding whether to exercise his discretion to make a surrender order.

44.  Lastly, in relation to Ground 5, section 11 is relevant. It materially provides as follows:

11. Statement of case by court of committal

(3) On an appeal under subsection (1), the Court of First Instance shall have power –

(a) to remit the case to the court of committal to decide it according to the opinion of the Court of First Instance on the question of law involved; or

(b) to dismiss the appeal.

45.  As will be seen below, after the appeal on Ruling 1, the CA remitted the Applicant’s case to the Magistrate using language closely echoing section 11(3)(a). For the moment, it suffices to identify that the section does not make reference to a “re-hearing”. But, what is to happen – and what is permissible – when the case is remitted may be dependent on the particular circumstances of the case.

D.  Ground 1

46.  It helps first to note that the Magistrate dealt with a preliminary issue as to his jurisdiction in circumstances where a Fugitive makes a complaint that he would face the risks of torture and CIDTP if he is surrendered to the requesting party. He referenced that in §§236-239 of Ruling 1. By his preliminary issue ruling, he had held that issues relating to general risks of torture and CIDTP should be dealt with and addressed by the Immigration Department under the USM, and not by the committal court. He thought that approach echoed the provisions of section 13, and was also in line with the Xie Jing Feng case (see above).

47.  The Magistrate also noted in Ruling 1 – at §§240-241 and 245 – that Mr Young was adamant that the complaints lodged by the Applicant in relation to torture and CIDTP risks had to be adjudicated upon because of the operation of section 5. Expressly without commenting whether that was seeking to revisit the same issue by way of the back door, the Magistrate said that he would examine the “complained risks” in accordance with the provisions of section 5 and related legal authorities. He then did so.

48.  By way of reminder, the provisions in section 5(1)(c) and (d) are as follows:

A person shall not be surrendered to a prescribed place, or committed to or kept in custody for the purposes of such surrender, if it appears to an appropriate authority –

…

(c) that the request for surrender concerned (though purporting to be made on account of a relevant offence) is in fact made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions;

(d) that he might, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions;

49.  Mr Young referred to the two limbs as the “purpose limb” and the “prejudice limb” respectively. I will refer to the reason of “race, religion, nationality or political opinions” as the “extraneous reasons”. In broad terms, the two subsections deal with the situation where extradition is said to be barred by extraneous circumstances or because the fugitive’s human rights will be violated.

50.  The Magistrate made reference to Hilali v National Court, Madrid [2006] 4 All ER 435. In that case, at §62, it was held that:

The burden is on the appellant to show a causal link between the issue of the warrant, his detention, prosecution, punishment or the prejudice which he asserts he will suffer and the fact of his race or his religion. He does not have to prove on the balance of probabilities that the events described in s 13(b) [our section 5(1)(d)] will take place, but he must show that there is a ‘reasonable chance’ or ‘reasonable grounds for thinking’ or a ‘serious possibility’ that such events will occur (see Fernandez v Government of Singapore [1971] 2 All ER 691 …).

51.  In passing, I also note (as is relevant to other Grounds) that in the Hilali case at §63 it was noted that it has long been established that the court in considering these matters is not bound by the ordinary rules of evidence, and the applicant may rely on any material in support of the submission based on the section.

52.  But, it seems to me that there is a significant difference between section 5(1)(c) and section 5(1)(d). Though an argument is frequently raised on both parts of the section in any particular case, so that the argument might tend to treat the two parts of the section in a similar way, the difference between them actually necessitates a greater degree of analytical robustness. In short, section 5(1)(c) is backward looking, whilst section 5(1)(d) is forward-looking: see, for example, Antonov v Prosecutor General’s Office Lithuania [2015] EWHC 1243 (Admin) at §§20-28.

53.  With respect both to the Magistrate, and to the way in which the matter was apparently argued, I am not sure that sufficient robustness was applied.

54.  As to section 5(1)(c), it is concerned with something that has already happened. The requested person’s extradition is barred if “it appears that” the request was “in fact issued” for one of the stated purposes. Section 5(1)(c) therefore requires the Court to assess the state of mind of the requesting judicial authority at the time that the extradition request was made, so as to establish whether its purpose was to prosecute or punish for one of the extraneous reasons. That is indeed a question of fact, and the burden on the requested person is to establish the reason why the request was “in fact issued”, on the balance of probabilities.

55.  However, section 5(1)(d) is concerned with predicting what facts may occur in the future, if the requested person is extradited, and the legal consequences that flow from them. The standard to be established is that there is a “reasonable chance” or “a serious possibility” or “substantial grounds for thinking” that the eventualities set out in the subsection would occur. The requested person must establish that there is the necessary causal link between what is said that there will be a “serious possibility” of happening, such as prejudice at his trial if extradited, and the extraneous consideration relied upon. Thus, for example, the requested person must establish that there is a “serious possibility” that, if extradited, he will be prejudiced in his trial on account of his nationality or his political opinions. In short, the “serious possibility” test applies both to what might happen and to the reason for it happening.

56.  As the Antonov case also points out, it is also important to note that section 5(1)(d) is only concerned with the possibility of certain specific “extraneous considerations” causing prejudice at the requested person’s trial, or his punishment, detention or restriction in his personal liberty. Other causes of those consequences, such as a lack of judicial independence or corruption, are irrelevant. The words in the section should be given their ordinary meaning and no more.

57.  Hence, whilst in some sense both section 5(1)(c) and section 5(1)(d) require the establishment of a causal link, it will be important to note what needs to be causally linked to what else. For the former, the link is between the request and the reason why it was made as a matter of fact. For the latter, the link is between what is said that there will be a “serious possibility” of happening and the extraneous consideration relied upon.

58.  Also it seems to me that both section 5(1)(c) and (d) are concerned with what might be called the direct consequences of the request for surrender, including the intended trial and any connected punishment, detention or restriction in personal liberty. I think this is clear from the other parts of section 5(1) and the entire structure of the FOO. In other words, section 5(1)(d) is not concerned with some general concern about punishment, detention or restriction in personal liberty wholly disconnected from the proceedings which are intended to flow from the request for surrender. For example, the reference to “punishment” refers to punishment following a conviction on the offences for which the fugitive would be surrendered, and I think the other words are to be read in similar vein.

59.  Further, though a section 5 application which relies on both section 5(1)(c) and (d) requires separate analysis of each limb, there may be cases where a finding on one them could inform the finding on the other. For example, if it is found that the request for surrender was in fact made for the purpose of prosecuting or punishing the fugitive on account of the extraneous reasons, that may tend to suggest that, if surrendered, the fugitive may be prejudiced at any trial or punished, detained or restricted in his personal liberty for those extraneous reasons.

60.  The Magistrate addressed the section 5 application – and the test to be applied – as follows:

246. In this regard, it is worth mentioning that according to the established legal principles, a Fugitive has a duty to demonstrate that there exists a specific causal link between the request for surrender and the events he complains of would occur should he be surrendered to the requesting party. See, for example, Hilali v National Court Madrid.

247. In order to prove the existence of such specific causal link, the Fugitive has to meet an evidential requirement or threshold. The authorities have adopted different expressions to explain such evidential threshold including “there is a reasonable chance” that the events complained of would occur; “there are reasonable grounds for thinking” that those events would occur; or “there is a serious possibility” that those events would occur.

248. Despite those many expressions, the evidential threshold that the Fugitive has to meet is indeed the same.

61.  Mr Young submits that the Magistrate has rephrased the Hilali test and approached the matter on the basis that the necessary causal link is between “the request for surrender and the events he complains of would occur” rather than a causal link between a state of affairs (detention, prosecution, punishment or prejudice etc) and the fact of his race, religion, nationality or political opinions.

62.  Mr Young says that approach is apparent from what the Magistrate later stated in his Ruling 1, at §§273-276 and 295. The former paragraphs are in the part of Ruling 1 considering the evidence of Dr Alan Mitchell, whilst the latter paragraph is in the section considering the Applicant’s own affidavit evidence. Those paragraphs read as follows:

273. Even if, for the time being, I assume that the Fugitive’s account is true, and his saying that he had been tortured by the police is supported by Dr Mitchell’s finding, could Dr Mitchell’s finding advance the Fugitive’s case as far as section 5 of the FOO is concerned?

274. I am afraid not. The Fugitive’s allegation as against the police. What he asserts is exactly something falling within the domain of general risks of torture and CIDTP. In order to invoke the protection offered by section 5 of the FOO, the Fugitive must show that there is a specific link between the request for surrender and the alleged torture or risks of torture.

275. Now it is the Indian Government, or the prosecutorial authority of India, but not the police Department of India who is seeking the Fugitive’s surrender to India for trial of criminal offences. I do not see the link between the alleged torture and the request for surrender.

295. Furthermore, as I have also discussed above, the Fugitive’s allegation of torture is against the police, not the state of India. What he has to show is a causal link between the request for surrender and the alleged torture and persecution.

63.  I think the Magistrate’s use of phrases along the lines of “link between the request for surrender and the alleged torture or risks of torture” – and, in particular, the reference to “torture” rather than the more precise wording used in the section – might be short hand perhaps, with both section 5(1)(c) and section 5(1)(d) possibly in mind, even though the language is a little loose. I do not accept Mr Young’s submission that the Magistrate’s approach might have been informed by his thinking that the section 5 application was an attempt to get through the ‘back door’ what the Applicant had failed to achieve through the ‘front door’ of the jurisdictional point (see above).

64.  But, to be fair to the Magistrate, there are other matters of context to which reference might also be made, for example at §§279 and 283. The former paragraph is in the part of Ruling 1 where the Magistrate was addressing the affidavit of Ms Indira-Natascha Prahst. The latter paragraph is in the part of Ruling 1 where the Magistrate was addressing the affidavits filed by two Indian lawyers. Those paragraphs read as follows:

279. She did not even point to any incident or matter that could explain or demonstrate that there is a causal link between the request for the Fugitive’s surrender and the hidden agenda that the Fugitive is indeed punished or prosecuted by reason of his identity as a Sikh or a person affiliated with the Khalistan movement.

283. The affidavits filed by the other two witnesses, namely Mr Navkiran Singh and Mr Jaspal Singh Manjhpur have the same problem. Both of their affidavits relate solely to the persecution of Sikhs and persons affiliated with the Khalistan movement in India in general. They did not comment specifically on the case of the Fugitive. Nor did they point to any specific matter that could possibly link up the prosecution of the Fugitive (and the request for surrender) with his identity as a Sikh or and activists of the Khalistan movement.

65.  What the Magistrate said in §279 – and in particular the reference to “the hidden agenda” – seems to me to identify that the Magistrate had section 5(1)(c) uppermost in his mind at that point. Whereas the language used in §283 is perhaps more redolent of section 5(1)(d). As I say, this may have been the result of both limbs being argued and considered more or less together.

66.  Looking at the matter overall, and despite the short hand or loose language, I think it is tolerably clear that the Magistrate had the correct test in mind. First, he made specific reference to section 5(1)(c) and (d), and their identification as the “purpose ground” and “prejudice ground” respectively, and where the statutory test is set by the terms of the statute itself. Secondly, he made express reference to established legal principles, by reference to the Hilali case and the test in Fernandez (with some paraphrasing, though he did not actually quote from it). Further, the Magistrate seems to me to have been looking to see whether (1) the request for surrender had been made for the purposes of torture and persecution – i.e. on account of the Applicant’s race, religion, nationality or political opinions – instead of being made on account of the relevant offence, and (2) whether the Applicant might be prejudiced or improperly treated in and around the intended trial process on account of those personal characteristics.

67.  In any event, if the Magistrate did not adopt the correct test, I have identified what I consider to be the correct test, and I can apply it to whatever is the appropriate evidence to be considered on the section 5 application. I will do so below.

68.  That leads on to consideration of the following Grounds of the application.

E.  Introduction to Grounds 2 and 3

69.  As Mr Young submits, Grounds 2 and 3 are related in that they take issue with the approach of the Magistrate to the evidence tendered by the Applicant in support of his section 5 application.

70.  Before turning to the individual aspects of each Ground, I can address the point as to what evidence the committal court can and should receive when dealing with a section 5 application.

71.  The starting point is that section 10(2)(b) expressly states that the court of committal shall receive any evidence relevant to the exercise of its jurisdiction under section 5. Secondly, section 12(4) also identifies that on an application for habeas corpus, the CFI may receive additional evidence relevant to the exercise of its jurisdiction (as an “appropriate authority”) under section 5.

72.  Particularly relevant to Ground 3 is the question as to what is the effect of the non-contradiction rule in section 23(4). As a reminder, it provides:

(4) Without prejudice to the generality of section 10(2)(b) or 12(4), in any proceedings under this Ordinance, any evidence which contradicts an allegation that a person sought to be surrendered under this Ordinance to a prescribed place has engaged in conduct which constitutes a relevant offence for which such surrender is sought is inadmissible and, accordingly –

(a) that person is not entitled to adduce such evidence; and

(b) any court is not entitled to receive such evidence.

73.  I accept that this provision means that, ordinarily for the purposes of the extradition proceedings, evidence which seeks to contradict an allegation that the person sought to be surrendered has engaged in conduct which constitutes a relevant offence is inadmissible, and cannot be accepted by the court of committal. However, ‘carved out’ from that general and ordinary position is the position relating to a section 5 application.

74.  This seems to me to be consistent with the long line of cases which identify that the normal rules of evidence are relaxed when considering section 5 applications, or those of a similar nature. I have already mentioned above the Hilali case at §63. Reference can also be made to Cabal v United Mexican States (No 2) (2000) 172 ALR 743, at §§15-16, where French J stated:

15. The requirement that the grounds for believing there to be an extradition objection should be substantial is evaluative in character. It must be applied having regard to the legislative purpose. In relation to the political objections in s 7(b) and (c) [our section 5(1)(c) and (d)] material which demonstrates a real or substantial risk that the circumstances described in those paragraphs exist or will exist may be sufficient to satisfy the condition in s 19(2)(d). The very nature of those objections is such that the evidence relied upon to make them out or to show substantial grounds for believing that they exist may be in direct or circumstantial in character. On the other hand, that which is necessary to demonstrate the other objections in s 7 is likely to be fairly clear-cut.

16. If it be right that the accused person must demonstrate a real risk that the political objections defined in s 7(b) and (c) exist then such may be demonstrated by second-order or derivative materials which might not be admissible in civil or criminal proceedings to prove, according to the ordinary rules of evidence and on the balance of probabilities, that the political objections exist. To require strict proof that the political objections exist would rob those objective provisions of much of their protective value. If the factum probandum in relation to the extradition objection is “substantial grounds for believing”, in the sense of a real risk, that those objections exist then second-order or derivative evidence may be treated as evidence which goes, not to prove the facts of the relevant objection, but rather that there are substantial grounds for believing that fact exists.

75.  In passing, I would draw attention to the fact that, in the same case at §17, it was noted (amongst other points) that:

(1)  general country information of the kind upon which applicants frequently seek to rely may have little bearing upon the ad hominem criteria to be applied in deciding whether the relevant objections are made out;

(2)  material may also be excluded where its generality gives it little weight;

(3)  alternatively, it may be accepted but found not to give rise to substantial grounds for believing that the objection to which it is addressed is made out; and

(4)  the Magistrate may reject material which is merely argumentative or offers unqualified opinions.

76.  I take those points into account when considering the Magistrate’s approach.

77.  My reading of section 23(4) also accords with general common sense when considering that section 5 applications are dealing with potential bars to committal for surrender as a result of what might broadly be described as real human rights concerns. The consequences which section 5 is intended to avert are potentially very grave to the individual fugitive concerned. Further, it is well-settled that courts will give anxious scrutiny to all available materials in considering whether the expression of such concerns has been made out.

78.  I would add – I think contrary to Mr Walsh’s submission – that it seems to me to be perfectly possible for the same or overlapping evidence to be deployed in support of a section 5 application and a claim proceeding through the USM. However, it is correct to remember that the focus on a section 5 application is as regards the particular fugitive and the reason why in fact there has been a request for his surrender (section 5(1)(c)) and/or whether there is a serious possibility that he might be prejudiced at his trial or punished, detained or restricted in his personal liberty as a result of inappropriate extraneous considerations (section 5(1)(d)).

F.  Ground 2

79.  Ground 2 relates to the evidence of: (1) Dr Mitchell, a medical doctor with significant experience in dealing with torture claims; (2) Ms Prahst, a sociologist; (3) Lawyers Singh and Majhpur, both criminal practitioners in India; and (4) the Applicant himself.

80.  Of course, though I shall return to the point, whatever the value of their evidence, it would need to be considered against the other evidential materials provided.

81.  The GOI filed evidence that in India there is no bar to profess Sikh religion. Rather, persons belonging to the Sikh religion have held the highest posts such as President of India, Prime Minister of India, Chief Justice and other judges of India, as well as other ministers of central and state government and higher posts in civil and arm forces in India. India is a secular country, and the right to religion is a fundamental right.

82.  The Applicant was medically examined from time to time during his detention, as it is a legal requirement. He had never complained about alleged torture either to doctors who medically examined him or to the Magistrate before whom he was produced from time to time. Copies of the contemporaneous medical records are consistent with the absence of any such complaint, and repeatedly record the absence of any external injury. He was duly represented by an advocate who was assigned by his own choice, and he never filed any complaint against any police officer either before the Magistrate or before any other higher court or authority. Nor did he ever make any complaints whilst in jail.

83.  The individual officers accused by the Applicant of having tortured him in police custody have each filed affidavits describing the allegations as totally false and frivolous. One of the officers accused has produced an affidavit to say that he was not even posted at the relevant police station at the time.

84.  Turning to Dr Mitchell, his report stated that he had been asked to address the following issues: (a) the general human rights conditions of prisons in Punjab, and (b) the likelihood of a person in the Applicant’s position (i.e. returning to custody to face serious charges alleged against him) being subject to torture or cruel or inhumane or degrading treatment or punishment. Dr Mitchell conducted an interview with the Applicant on 21 May 2019 at the Lai Chi Kok Reception Centre.

85.  His report conclusion was as follows:

11. Summary and Opinion

11.1 The Torture in India report of 2011 compiled by the Asian Centre for Human rights sets out unambiguously that the routine use of torture is an endemic part of the administration of the criminal justice system in India. The report gives example of widespread torture by police and prison staff across India, including Punjab where Mr Singh was previously held and where likely he again would be held were he to be extradited to India. The findings of the 2011 report are continued in the 2018 update of the Asian Centre for Human Rights suggesting that this problem still exists currently and indeed such a view has also been reported by India’s National Human Rights Commission which recently set out that custodial violence and torture continue to be rampant.

11.2 When I visited West Bengal in 2015 I heard first-hand from recently retired very senior police and prison officials that the use of torture is routine.

11.3 In my work within an immigration detention centre in the United Kingdom all too often I see detained persons who allege that they have been tortured, a number of whom have fled India and my reports concerning such are invariably accepted by the Home Office as constituting evidence of such enough that a person will often be released from detention thereafter.

11.4 [The Applicant] gave a very clear and unexaggerated account of having been tortured by the police in India in 2016. I found him to be credible in what he told me and my clinical findings are supportive of his allegations that his legs were regularly forced apart causing pain, swelling and bruising. I believe that [the Applicant] was tortured in the way that he described and fear that if he were to be extradited to India that again he would be at real risk of being subjected to torture and inhuman or degrading treatment

86.  The Magistrate considered – see §§260-276 of Ruling 1 – that Dr Mitchell’s statement had “a number of issues”, which might be summarised as follows:

(1)  It is not appropriate for Dr Mitchell to assess the credibility and reliability of the Applicant’s account. Whilst there is no challenge to his expertise as a medical doctor, his opinions should be confined to issues relating to the medical discipline. It is not his duty or function of within his competence to assess a witness’ credibility and the truthfulness of a witness’ account. The way the Report is written (see, for example, §11.4) gives an impression that Dr Mitchell had crossed the line and performed the task of assessing credibility.

(2)  A large proportion of the report was about the general condition in India and reported incidents of torture he had learned from various sources. It was not his duty to give an opinion on general risk of torture or CIDTP.

(3)  The medical finding was on examination almost 3 years after detention at the police station where the Applicant claims to have been tortured. This raises a question as to reliability. Further, there is evidence that medical examinations were conducted on the Applicant during that period of detention, and there was never a finding of physical or external injury.

(4)  When Dr Mitchell commented that the Applicant’s saying he had been tortured was credible, he was placing reliance on and giving weight to the Applicant’s account. But all the police officers who the Applicant alleges had tortured him have filed affidavits in rebuttal.

(5)  The finding of scars on the Applicant’s body exists in a vacuum, and does not indicate any improper conduct on the part of anyone.

(6)  Without commenting on whether Dr Mitchell’s opinion is biased, the only part of the report which is relevant is as to the medical finding he made at the interview with the Applicant in May 2019.

(7)  However, as already stated, that finding is unreliable, and contradicted by other evidence including contemporaneous medical records made by the doctors who examined the Applicant in June 2016.

(8)  Further, the Applicant’s allegation is against the police, and his allegations fall within the domain of general risks of torture and CIDTP. There is no evidence showing the specific link necessary for section 5 of the FOO.

(9)  In the circumstances, Dr Mitchell’s opinion does not carry any evidential value.

87.  Mr Young submits that Dr Mitchell’s evidence did have evidential value, in supporting the Applicant’s claim that his bodily injuries rose from torture by the Indian police whilst he was in police custody in India in mid-2016. Mr Young accepts that it was not independent evidence of torture, but says that it was corroborative of the Applicant’s claim. Therefore, he says, it was an error for the Magistrate to conclude that Dr Mitchell’s evidence had no evidential value.

88.  If the Magistrate really meant that Dr Mitchell’s opinion would not even be brought into the balance of considerations, I agree that was an error. However, it seems to me that, in context, the Magistrate meant simply that Dr Mitchell’s opinion would be given so little weight as to have no real value. I think the Magistrate was entirely correct when he found that the part of the report which is relevant was as to the medical finding found on the interview with the Applicant conducted in May 2019. Obviously, insofar as Dr Mitchell’s opinion was that the Applicant’s scars or injuries observed by him were consistent with the version of events given by the Applicant of having been tortured, that is material which was properly able to be taken into account. If it was not taken into the balance at all by the Magistrate, that was an error. But, if it is taken into account, and then balanced against the other evidence to which the Magistrate made reference – such as the affidavits of the accused police officers denying the allegations of torture (with one officer even stating that he was not posted to the police station at the time), and the contemporaneous medical records which identify the absence of any external marks on the Applicant, and the evidence that the Applicant and his chosen representative never made any allegations of torture at the time, despite numerous appearances before a magistrate – then it was fair for the Magistrate to have significantly discounted Dr Mitchell’s evidence to the point of giving it no value (or weight) at all.

89.  I also agree with the Magistrate that some of the language used by Dr Mitchell is suggestive that he has ‘crossed the line’ from being an impartial and independent expert to being either an advocate for the Applicant, or attempting to perform the evidential evaluation and judgment which is not his domain. I have no doubt that Dr Mitchell has enormous relevant experience, but that experience does not change his proper role.

90.  If I were to re-perform the evaluation on the materials, I would also reach the conclusion that the weight of Dr Mitchell’s opinion is rather little against the totality of the materials – some of which I have summarized above.

91.  Ms Prahst, in her affidavit, says that her area of specialisation lies in minority-majority relations, racism, genocide, state violence, terrorism, politics of identity and sovereignty movements, media discourses and youth gang violence. She says she was instructed to prepare a report on areas including but not limited to the conditions of Sikhs in India, the development of Khalistan movement in India and the likelihood of a person in the Applicant’s situation being subjected to ill-treatment or prejudice for his religious or political beliefs in India. In the report itself, exhibited to the affidavit, she gives more detail of the area upon which the expert evidence is sought, and adds as one area her view on the ability of the Indian authorities to protect a person in the Applicant’s situation from being subjected to discrimination and/or ill-treatment for his religious and/or political beliefs.

92.  Her conclusion is as follows:

17. Summary and Opinion

17.1. Given the role of the police to protect its citizens, in November 1984, witnesses instead have stated police were standing idly while innocents Sikhs were being killed and Sikhs in prison, instead of being protected, were being tortured and in some cases killed. The findings from the studies, interviews and human rights reports and affidavits reveal that Sikhs in police custody and in prison are not adequately protected. Cases as recent as Johal, and Romi and Pamma where torture is stated in their affidavits demonstrates that the conditions for prisoners continue to subject prisoners to violence and impending danger.

17.2 If the Prisoners in Punjab continue to be imprisoned and tortured and not protected while in custody, I believe that Sikh prisoners in general would be subjected to harm, and Khalistani’s in particular. Torture, poor treatment and conditions leading to deterioration of health are of serious concern as well as receiving a fair trial. Given that there is a resurgence of the Khalistan movement at the level of human rights advocacy and raising awareness at the level of the United Nations, through social media and increased commemorations worldwide, the Indian Government is responding to this threat with force and incarceration.

17.3 Given the geopolitical climate, such conditions are fertile ground for the Indian Government to target Sikhs and Khalistani’s for political reasons. As such, I believe that provisions must be made for interrogation, jail time or sentencing outside of prisons in India for Khalistani Sikhs. For this reason, I believe that an extradition to India given Romi’s religious (Sikh) and political (SAD and Pro-Khalistani) (opinions), would put him in serious danger for his life if he were to be extradited to India. Having been allegedly tortured during interrogation, while in police custody in prison in Punjab, it is likely that he will be subjected to torture again, given that he may be interrogated further or forced to make a confession under torture.

17.4 More collaborative efforts at the United Nations level and with Human rights groups need to be advanced, to ensure that extradition cases protect individual whose extraditions can be motivated by governments for political purposes. Currently, the safety and precarity of Sikhs and Khalistani’s in particular will be compromised including a person like Romi in prisons in India.

17.5 Given these circumstances, I firmly believe that Romi should not be extradited back to India.

93.  The Magistrate considered – see §§278-282 of Ruling 1 – that Ms Prahst’s report was irrelevant for present purposes, on the basis that it relates solely to the alleged risks of torture, CIDTP and persecution faced by Sikhs and persons affiliated with the Khalistan movement in India in general. The Magistrate was also concerned that a video clip of Ms Prahst seen making a speech – addressing the public on issues relating to the persecution of Sikhs and supporters of the Khalistan movement by the Indian Government in general – raised doubts about her impartiality.

94.  Mr Young submits that the main thrust of Ms Prahst’s evidence was to demonstrate the risks of ill-treatment and prejudice a Sikh supporter of the Khalistan cause, such as a member of SADA, might face if put in the custody of the Indian authorities. Having been provided with the Applicant’s affidavit, she expressed an opinion as to the likely risks that someone like the Applicant with his background and affiliation would face if surrendered to India. I agree with Mr Young that that kind of evidence is potentially germane to showing by way of circumstantial evidence that the Applicant might be prejudiced at trial or restricted in his liberty by reason of his religious or political opinions. I also accept that her evidence identifies that the offences for which the Applicant is wanted may have some political dimension, which might lend some plausibility to the risk of prejudice he will face if surrendered. If the Magistrate totally ignored it on the ground that it was irrelevant, as was apparently the case, that was an error.

95.  However, even if Ms Prahst’s evidence is taken into account, I do not think it carries much weight at all. It is mainly dealing with background and context and generalities, and there is very little specific evidence about the Applicant in terms of persecution risk (though she does talk about persons with similar characteristics as the Applicant). Further, the particular offences for which the Applicant is wanted – even if they are said to arise in a political context – are not readily categorised as offences of a political character. Indeed, if they were, the argument would have been that section 5(1)(a) is satisfied. Further – though I do not need to place great store by it – I agree with the Magistrate that the video clip indeed raises some concern about the impartiality of Ms Prahst, at least as regards the objectivity in her presentation, even taking account of Mr Young’s submission that her activism does not undermine her knowledge and experience.

96.  One of the two lawyers expressed the view that based on his knowledge and experience in criminal litigation practice and having handled a number of criminal cases concerning “Sikh political prisoners”, he is of the view that if the Applicant is extradited to India there is “a very high risk of harassment, torture, illegal confinement, false implication in cases and death”. The other expressed the conclusion:

After going through the affidavit of [the Applicant] and his relatives’ history of being involved in the movement of formation of Independent state to be known as Khalistan makes him a vulnerable for being persecuted and subjected to Torture in custody and even being killed in a false encounter. From my 32 years’ experience as a human rights Lawyer and activist, I can say with confidence that [the Applicant] faces a risk of being persecuted for his political opinions on his arrival in India.

97.  Those expressions were the maximum part of the materials that had any potential reference to the Applicant.

98.  The Magistrate considered that those materials had a similar problem, in relating solely to the persecution of Sikhs and persons affiliated with the Khalistan movement in India in general. The affidavits do not comment specifically on the case of the Applicant, nor point to any specific matter that could possibly linkup the prosecution of the Applicant (and the request for surrender) with his identity as a Sikh or an activist of the Khalistan movement. The Magistrate also doubted that lawyers by profession possessed any expertise to give opinions on matters relating to risks of persecution and CIDTP in India

99.  Mr Young criticises the Magistrate for failing to recognise the value of the lawyers’ evidence as circumstantial evidence from which to infer that the Applicant is likely to be mistreated if surrendered to face trial in India for offences that have a political dimension. He recognises that the lawyers do not provide direct evidence of what happened or what is likely to happen to the Applicant, but submits that (when taken with the Applicant’s own evidence) the combined evidence would tend to further the Applicant’s claim under section 5. Therefore, for the Magistrate to rule it out categorically and to ignore it totally was an error.

100.  For reasons which I have given in relation to the other witnesses above, I agree that to rule out the Indian lawyers’ evidence from consideration altogether was an error. It is the kind of evidence which, depending on the other materials, might provide some circumstantial evidence from which to make the invited inference. Nevertheless, in the circumstances of this case and in light of the other materials, I would give the Indian lawyers’ evidence no real weight in the section 5 consideration. It is rather general, it comes from lawyers not offering legal opinion, and it is not specific about the Applicant in terms of persecution risk.

101.  In the Applicant’s own affidavit filed at least partly in support of his section 5 application, his conclusion paragraph reads as follows:

Based upon my personal experience and knowledge, I firmly believe there was a high probability I would face death, torture and inhuman and degrading treatment again by the police officers including [those previously named by him] and their fellows in Punjab on the ground of my religious and political beliefs after I had been sent back to India.

102.  The Magistrate – at §§293-296 of Ruling 1 – considered there to be issues in relation to the truthfulness and veracity of the Applicant’s account in regard to the alleged torture, in light of the other evidence adduced. The Magistrate also pointed, as relevant to the Applicant’s credibility, to the fact that as at the date of Ruling 1 the Applicant had not (or had only recently) lodged any torture claim, CIDTP claim or the like with the Immigration Department. Further, the Applicant’s allegation was made against the police, not the state of India.

103.  I respectfully agree with the Magistrate’s approach as to the Applicant’s evidence. It was perfectly open to the Magistrate to take the view that, measured against the other evidence, there were issues as to the veracity of that evidence. I agree with the Magistrate that the very late complaint, raised only in the context of these extradition proceedings, casts further doubt on the credibility of the version of events put forward by the Applicant. His evidence that he was subject to arbitrary arrest is starkly contradicted by the evidence concerning his arrest in the first case (possession of firearms and ammunition, and stolen credit cards) which evidence was not challenged on the application. An arrest in those circumstances seems far from arbitrary, and points to the request for his surrender being for the purposes of prosecution on the relevant offences, not persecution. Further, as well as being obviously self-serving, I think the Applicant’s complaints are really general complaints, which the Applicant can pursue under the USM, as he is in fact doing.

104.  In conclusion on Ground 2, whilst I agree with Mr Young that it was an error on the part of the Magistrate to have ruled out the evidence completely from any consideration, on his stated basis that it was irrelevant, I do not think taking it into consideration lends any weighty support to the section 5 application. In other words, even if the totality of that evidence is admitted and fully considered, it does not satisfy the burden the Applicant faces on the section 5 application (whether on its own or cumulatively, see below).

G.  Ground 3

105.  Ground 3 relates to the New Evidence, in the form of an affidavit from an Indian lawyer which exhibited affidavits from three previous witnesses who had provided affidavits to the GOI, and whose evidence was important in establishing a prima facie case for Offences 10 to 28.

106.  In the New Evidence, those three witnesses stated that the contents of their previous affidavits were false, and they had signed them only because the Punjab police had threatened to arrest them or implicate them with false charges.

107.  The Applicant sought to rely on this New Evidence, both on the prima facie issue, and on the section 5 application. However, the Magistrate refused the Applicant’s application to receive this evidence and took no account of it in deciding the section 5 application.

108.  The Magistrate gave three reasons for rejecting the New Evidence – see §§98-111 of Ruling 1. Those three reasons were; (1) the holding in R v Governor of Pentonville Prison, ex parte Alves [1993] AC 284; (2) the non-contradiction rule in section 23(4); and (3) the timing of the production of the affidavits, giving rise to a reasonable suspicion.

109.  Insofar as the refusal to admit the New Evidence related to the section 5 application, I agree that the Magistrate was in error. As Mr Young submits, none of those three reasons should bar consideration of the evidence when it comes to section 5.

110.  First, the ex parte Alves case was a case concerned with the question of prima facie issue for committal, and not with section 5 or its equivalent. Secondly, as I have indicated above, section 23(4) operates without prejudice to the court’s wide power to receive evidence when considering section 5, and it does not preclude contradicting evidence from consideration. Thirdly, doubts about the timing of the production of the evidence go to the weight, not to the admissibility, of the evidence.

111.  On this basis, Ground 3 is made out. It was an error completely to exclude the New Evidence from the section 5 consideration for these reasons.

112.  Nevertheless, even taking the New Evidence into account against the other evidential materials, as I can, I do not think it means that the Applicant has made out his section 5 application burden.

113.  As regards the New Evidence, it has been pointed out that the original affidavits were apparently sworn voluntarily before a Judicial Magistrate, and that the subsequent affidavits do not by themselves reject the probative value of their earlier affidavits. I agree.

114.  Overall, even in the context of the other Indian proceedings and judgment on which Mr Young sought to place reliance, I do not think the New Evidence establishes the Applicant’s burden on the section 5 application (whether taken on its own or cumulatively with other evidence).

115.  Indeed, in overall conclusion of the Grounds 1 to 3, I think the Magistrate might have used more precise language, but probably had the correct test in mind. Even if he did not, I have that test in mind and can perform the section 5 application afresh. In doing so, I can take into account, and weigh appropriately as I see it, the evidence which the Magistrate wholly excluded from consideration but which I think should have been at least taken into account and weighed.

116.  I have done so. As identified above, that leads to the conclusion that the Applicant has failed to establish his points under section 5. On the balance of probabilities, I do not think it has been shown that at the time of the GOI’s request for the Applicant to be surrendered that request was made not for prosecuting the relevant offences but instead for prosecuting the Applicant for his race, religion, nationality or political opinions. Nor do I think the evidence shows any serious possibility that the Applicant might, if surrendered, be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality or political opinions.

117.  As a result, the ultimate gravamen of the complaint in Grounds 1 to 3 is not made out.

H.  Ground 4

118.  By this Ground, Mr Young submits that the New Evidence was admissible for testing evidential sufficiency of the case for which committal was sought. Hence, he submits, it was an error of law for the Magistrate not to take the New Evidence into account in coming to his conclusions on whether there was a prima facie case in relation to Offences 10 to 28.

119.  In R v Governor of Pentonville Prison, ex parte Alves [1993] AC 284, it was recognised at 291H that there can be more than one possible explanation why a witness may retract evidence given by him on a previous occasion. One possibility may be that it is the later retraction, rather than the earlier evidence, which is not worthy of belief. Whether the evidence, in light of the subsequent retraction, was sufficient to justify an applicant’s committal is essentially a matter for the decision of the magistrate. Whilst retraction of evidence may be a matter which the magistrate should take into account, he does so when considering whether a witness’ evidence is to be rejected as worthless.

120.  In Re Secretary for Justice’s Reference (Nos 1-3/2021) [2022] 5 HKLRD 886, the Hong Kong Court of Appeal was dealing with a case relating to an argument that there was no case to answer. Having identified two possible strands of authority, Macrae VP said at §58:

Be that as it may, we do not necessarily see this as a rigid dichotomy. Obviously, if part of the defence is accepted by a prosecution witness so that the original case promoted by the prosecution is altered or diminished in some material way, a judge would not approach a submission of no case to answer on the basis that the evidence had not been accepted and that the original prosecution case remained unaltered or undiminished. In that sense, a judge must look at “the totality of the evidence” in asking himself, whenever the submission is made, whether a jury properly directed could not properly convict upon it.

121.  That is the context in which the Magistrate was to have looked at the totality of the evidence.

122.  Therefore, the first reason given by the Magistrate for rejecting the New Evidence – applying the common law principles – was perfectly sound. Plainly, he did not regard the New Evidence as rendering the earlier evidence worthless. As a result, it had no relevance.

123.  It would be for the trial court to assess the witnesses’ credibility in light of the original evidence and its subsequent retraction. That is not a matter for the court of committal.

124.  As to section 23(4), it is to be remembered that guilt or innocence forms no part of the international extradition process. That is why there is no fundamental objection to a statutory provision prohibiting the adducing receipt of evidence to contradict an allegation that the person has engaged in conduct constituting an extradition offence for which the surrender of the person is sought: see, for example, Rivas v Republic of Chile [2021] FCAFC 214 at §14.

125.  In the Australian case of Todhunter v Attorney-General of the Commonwealth of Australia (1994) 52 FCR 228, at 249-250, a provision similar to our section 23(4) was held to be not ultra vires the power of the Commonwealth. That question was dealt with in a different constitutional framework from that applicable in Hong Kong, but there is still some resonance and value in the reasoning. In part, the reason that the provision was held not to be ultra vires was because the extradition regime is not directed to the question of whether the evidence established guilt to a prima facie or other level at all, and is not couched in terms of an assessment of guilt or innocence. The regime is premised on the confidence in the jurisprudential integrity of the requesting State to address any question of guilt or innocence according to the legal standards that apply in an enquiry into those matters in the requesting State. This is where, importantly, that confidence is reciprocal.

126.  This is consistent with the view of the true nature of an extradition hearing. It not only does not determine guilt or innocence, it is not to be elevated into a quasi-trial to similar effect by allowing the accused person to introduce “defence” evidence that contradicts or qualifies the “prosecution” evidence: see See Cherk Ching v Superintendent of Lai Chi Kok Reception Centre [2005] 4 HKLRD 105 at §§54-56. Further, I do not think that the practical effect of section 23(4) is to deny ‘equality of arms’ in the way Mr Young suggests.

127.  I would add that I am also not persuaded by Mr Young’s attempts to create a ‘curate’s egg’ from the New Evidence, saying that some of it was contradictory but some of it was not. Surely, the entire thrust and purpose of the New Evidence was to seek to contradict the previous evidence given, and to explain why. I do not think the explanation is to be separated from the contradiction.

128.  Mr Young also asks me to read down section 23(4) so that its application would be consistent with the requested person’s right to a fair hearing. This is on the basis that the provision is otherwise a disproportionate limit on a person’s right to a fair hearing. In this regard, Mr Walsh’s submission is that Articles 10 and 11 of the Hong Kong Bill of Rights (“BOR 10” and “BOR 11”) have no application to extradition committal proceedings because they do not concern the determination of a criminal charge against the fugitive. But, though it is correct that there is no determination of a criminal charge, I accept that BOR 10 does apply.

129.  BOR 10 provides that:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. …

130.  In Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR 237 at §§24 and 62-65, it was held that having regard to their context, the words “determination of … rights and obligations in a suit at law” call for a generous interpretation. The relevant words refer to determinations of civil rights and obligations distinguishing them from the terminations of criminal charges, which are also dealt with in juxtaposition by two different articles. Hence “suit at law” is intended to convey the meaning of “a civil suit at law”, as opposed to the determination of a criminal charge. So it was held that BOR 10 applies to disciplinary proceedings.

131.  I agree with Mr Young that the stakes are even greater in extradition proceedings, where matters of liberty and removal are concerned, so that BOR 10 should be applicable to such proceedings.

132.  A similar point was made in Pomiechowski v District Court of Legnic, Poland [2012] 1 WLR 1604 at §§32-33. It was held that a claim to extradite a person does not involve the determination of a criminal charge, and the person is not entitled to any full process of examination of his guilt or innocence, or to the procedural guarantees which would attend that. But he is entitled to a fair determination as to his common-law right to remain within the jurisdiction.

133.  But being entitled to a fair determination does not, in my view, render 23(4) in some way constitutionally inapposite – for the reasons already canvassed by reference to the authorities cited above.

134.  Mr Young sought to rely on R (Saifi) v Governor of Brixton Prison [2001] 1 WLR 1134, in which the court was dealing with the situation where the sufficiency for committal on the prosecution case against the applicant in that case depended on the evidence of a particular individual: see §17. It was common ground that the witness’ statements, taken at face value, provided a case to answer. Reference was made to the Alves case, where it had been held that the retraction by witnessing extradition proceedings of evidence previously given in the requesting state did not, in itself, discredit that evidence and, unless it was worthless, the magistrate was entitled to act upon it in deciding whether there was sufficient evidence to justify an order for committal. The conclusion in the case, at §62, was that the magistrate’s review of the evidence bearing on the issue of sufficiency was not comprehensive enough. This was because he was not dealing with the mere retraction of a confession, and should have considered all the circumstances surrounding the making of the original confession and its content, which on the critical issue as to the applicant’s involvement contained a significant internal inconsistency. There was also a failure to refer to significant other evidence. Had he considered all the circumstances, the Court thought, the magistrate would have been bound to conclude that no Judge properly directing himself could convict on that evidence because it was worthless.

135.  Albeit by reference to the particular circumstances of that case, the decision again emphasises the point that the relevant assessment is whether the retraction of evidence previously given so discredits that original evidence that it has become worthless. In my view, that is not the circumstance of this case.

136.  I also accept that the Magistrate was entitled to take into account the circumstances in which the New Evidence came into existence. The evidence suggests that the three prosecution witnesses were approached by one of the defendant escapees in the criminal proceedings in India, a well-known gangster leader, who sought to have them retract their evidence.

137.  Ground 4 fails.

I.  Ground 5

138.  At the end of the CA Judgment, [2021] 3 HKLRD 600, following the appeal from Ruling 1, Zervos JA (giving the judgment of the Court) stated at §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 s.10(6)(b) of the FOO in respect of the offences of “facilitating or permitting the escape of a person from custody” and “fences relating to unlawful escape from custody” to await the Chief Executive’s decision as to his surrender to India.

139.  In the Magistrate’s Ruling 2, he allowed the GOI to amend the particulars of Offences 11 and 12, materially by changing the time reference from “on the 27^th day of November 2016” to “on divers days between the 1^st day of July 2016 and the 27^th day of November 2016”. I accept that the amendment was sought and obtained by the GOI on the basis that if the particulars as originally framed were left in place, the evidence was unable to make out the offence so framed. But, to put it another way, the amendment was sought and obtained so that the particulars reflected the evidence.

140.  Having permitted those amendments, the Magistrate found – at §86 of Ruling 2 – that there was sufficient evidence to commit the Applicant on Offence 11 (although, for other reasons, he refused to commit on Offence 12).

141.  Mr Young submits that the Magistrate erredd because (1) he had no jurisdiction to allow the particulars to be amended in a remitted proceeding, ordered pursuant to section 11(3)(a), and (2) even if he had that jurisdiction, he erred in exercising it, as it was unfair to the Applicant to do so.

142.  On the first point, Mr Young submits that the jurisdiction to allow an amendment has to be found either in section 11(3)(a) or in the CFI/CA’s order remitting the matter back to the court of committal for a decision. He submits that neither allowed for the amendment, and that what should have happened was for the Magistrate to decide on committal on the original charge without allowing any amendments to that charge. As to the second point, Mr Young submits that it was unfair to allow any amendment when the GOI had had ample opportunity to seek amendment of the particulars in the original committal hearing, or even before the CFI or CA. Further, the amendment in part seems to have arisen out of comments made by the Magistrate in Ruling 1 about the problem with the Offences as originally drawn, so that the amendment application was an attempt to ‘patch up’ the GOI’s case after learning of the Magistrate’s views.

143.  Mr Young says there is support for that submission in Dempsey v Government of the USA [2020] 1 WLR 3103. There, the court was concerned with the situation where an appellate court had directed the lower court upon a remission to proceed as the lower court judge would have been required to do had he decided the question of extradition offence difference in the and in accordance with the conclusions expressed in the appellate judgement. The question to be determined was whether, at the remitted hearing, the judge had jurisdiction to consider an issue which had not been raised at the original extradition hearing. It was held at, §22, that the expectation was that all matters in issue would be resolved at the extradition hearing with all disputed matters resolved at a subsequent appeal and then the matter returned to the judge for final disposal. At §24, the court stated that the key to understanding what the judge was required to do is in what is meant by “the extradition hearing” in the phrase remitting the matter to him. The court stated that it is not a reference to a hypothetical extradition hearing, but the extradition hearing that occurred and gave rise to the appeal. The judge is required to proceed as he or she would have done at the earlier extradition hearing if the question had been determined differently.

144.  I reject Mr Young’s submissions. As Mr Walsh submits, the notional Hong Kong offences are drawn up in extradition proceedings to assist the court of committal to determine whether the conduct, if it had occurred in Hong Kong, would have constituted an offence falling within the description of offences in Schedule 1 to the FOO – and the definition of “relevant offence”. As the authorities emphasise (see above), it is the evidence which matters. Therefore, I agree with Mr Walsh that the fact that the particulars were amended on a remitted committal hearing is neither here nor there.

145.  In any event, the CA’s direction remitting the matter back to the Magistrate occurred because he had found – at §132 of Ruling 1 – that there was no prima facie case because the offences did not qualify as extradition offences under the treaty arrangements with India. He made no rulings on the evidence itself for the notional Offences 10 to 12. Put another way, the necessary consideration was interrupted as a result of a legal ruling, which was subsequently corrected by the CFI/CA.

146.  In those circumstances, it seems obvious to me that the CA’s direction, remitting the matter back to the Magistrate with the benefit of its opinion on the question of law, put the Magistrate back into the position which he would have been had he reached the correct opinion on that question of law in the first place. At that point, he would have gone on to make rulings on the evidence as regards the notional Offences 10 to 12. Therefore, that is what he was required to do on the remitted hearing.

147.  Further, no new evidence was introduced to ‘patch up’ the case. The evidence on the remitted committal hearing was the same as that in the original committal hearing. As I have stated, it is the evidence which matters, and the amendment was sought and, in my view, properly permitted accordingly – just as it might have happened had the Magistrate not made a decision which gave rise to the case stated and subsequent remission back to him.

148.  Ground 5 fails.

J.  Result

149.  The Applicant’s application for writ of habeas corpus is accordingly dismissed.

150.  Similarly, the 2^nd Amended Order of Committal does not need to be amended, and I dismiss the application for it to be amended.

151.  I would also make clear that I have, in the exercise of my original jurisdiction as an appropriate authority, considered but dismissed the Applicant’s section 5 application.

152.  I see no reason why the costs should not follow the event. Therefore, the Applicant shall pay the costs of the Respondents to be taxed if not agreed, with certificate for two Counsel (which, in the exercise of my discretion, seems to be appropriate to the circumstances of the case). I also direct that the Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.