XIE JING FENG v. SUPERINTENDENT OF LAI CHI KOK RECEPTION CENTRE AND ANOTHER

CAMP 27/2019

[2020] HKCA 708

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 27 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 223/2015)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  On 9 June 2020, the Applicant applied by a Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of this Court (Lam VP and McWalters JA) of 14 May 2020, [2020] HKCA 321 (“the Main Judgment”). In that judgment we dismissed the Applicant’s renewed application for extension of time to appeal against the decision of Au J (as he then was) given on 13 February 2017 refusing the Applicant’s habeas corpus application.

2.  As noted in the Main Judgment, the Applicant was seriously out of time in bringing his applications for extension of time to appeal and there were substantive events occurring in the meantime which militated against the exercise of discretion in his favour. It was also held that the new issues which he wished to canvass in the intended appeal should be addressed in two other appeals brought by him which are yet to be heard.  On issues which had been previously canvassed, it was held that there was no merit in his intended appeal.  The Court therefore refused to grant him the indulgence he sought.

3.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the Court of Final Appeal (“CFA”) at the discretion of this Court or the CFA if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the CFA for decision.

4.  The Applicant’s Notice of Motion does not contain any ground.  In his written submission lodged with the Court on 29 June 2020, the Applicant relied on the following grounds and set out three questions for the purposes of S 22(1)(b) of Cap 484:

“ Merits of case

(a) Failure in duty of disclosure by Government Counsel

(b) Request for surrender not authenticated

(c) Inadmissibility of confession statements

(d) Termination of provisional arrest

(e) Decision irrational and Wednesbury unreasonable with errors in law

(f) Non compliance with section (6) ss (1) a, b of the Fugitive Offenders Ordinance, Cap 503 (“FOO”)

…

Question No. 1

Does the committal magistrate has a statutory obligation to validate that the request for surrender is made by a person recognized by Chinese People’s Government as a diplomatic or consular representative of prescribed place concerned and whether if it has been transmitted through diplomatic channel, in compliance with section (6) ss (1) a, b of the ‘FOO’

Question No. 2

Does the committal magistrate has jurisdiction to deal with a person who is subjected to extradition without receiving a validated request for surrender

Question No. 3

Is there a legal requirement to produce the request for surrender before the committal magistrate in an extradition proceedings [sic]”

5.  The Applicant’s submission mainly focused on developing Ground (a) and Questions 1 to 3 in the context of Ground (a).  Ground (d) was briefly alluded to.  Grounds (b), (c), (e) and (f) are merely mentioned in the submission without further elaboration save he alluded to Ground (c) in the reply submissions. 

6.  Under Ground (a), by “failure in duty of disclosure”, the Applicant referred to the non-production of the request for surrender.  Questions 1 to 3 raised by the Applicant are elaborations under Ground (a).

7.  As explained in the Main Judgment, non-production of the request for surrender was not raised in the substantive habeas corpus application before Au J.  It was only raised in the applications for extension of time to appeal, and by then such issue had been dealt with by Chow J in HCAL 349/2018 and HCAL 855/2019.  Thus, the Court held that the proper course was for such issue to be addressed in the appeals brought by the Applicant against Chow J’s decisions under CACV 13/2020 and CACV 507/2019.

8.  The Applicant failed to show that there is any reasonably arguable ground for appealing such analysis in the Main Judgment.  The Applicant’s re-framing of such issue by reference to the duty to disclose and Questions (1) to (3) does not take the issue further.

9.  It is difficult to see any merit in the Applicant’s claim of substantial injustice when he has the opportunity to canvass the issue under Ground (a) in the context of the proper set of proceedings, viz CACV 507/2019 and CACV 13/2020 which he is under a duty to prosecute with due diligence. 

10.  Grounds (b) and (d) regurgitate arguments duly rejected by Au J and this Court in these proceedings: see [46] to [52] of the Main Judgment.  We cannot see any prospect of success on these grounds in the context of an intended appeal against the Main Judgment.

11.  Admissibility of confession statements had not been raised before this Court previously though it had been addressed at [31] to [41] of Au J’s judgment. In the reply submissions, the Applicant attempted to raise new un-particularized arguments concerning admissibility under Hong Kong law. Such a course is not permissible since an application for leave to appeal to the Court of Final Appeal is not a platform for new fact-sensitive issue to be raised. Further, these issues should have been canvassed before the magistrate instead of the habeas corpus proceedings.    

12.  There is no substantive averment by the Applicant to support Grounds (e) and (f).  Insofar as the Applicant relied on the matters canvassed under the other Grounds, Grounds (e) and (f) has no independent merit on its own.  

13.  Moreover, the Applicant’s grounds utterly failed to engage with the reasons set out in the Main Judgment for the dismissal of the application for extension of time to appeal.  It did not pinpoint any error in the analysis by this Court.

14.  In the premise, we do not consider that the intended appeal involves any question of great general or public importance or otherwise ought to be submitted to the CFA for decision.

15.  For these reasons, we refuse to grant leave to appeal to the CFA and dismiss the Notice of Motion with costs to be paid by the Applicant to the Respondents.  The costs of the Respondents are summarily assessed at HK$14,796.