RE XIE JING FENG

HCAL 378/2018

[2019] HKCFI 2198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 378 OF 2018

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DECISION

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1.  On 15 March 2019 I refused to grant leave to the applicant to apply for judicial review of the further decisions of the Director of Immigration (“the Director”) or of the Torture Claims Appeal Board (“the Board”) in rejecting/dismissing his non-refoulement claim on BOR 2 risk upon finding none of the grounds put forward by him reasonably arguable for his intended challenge, that there was no error of law or procedural unfairness in the process before the Director or the Board or in their decisions, and that there was no reasonable prospect of success in his intended application.

2.  As recorded in my decision, the applicant was born in China and subsequently went to Canada as a refugee and was granted its citizenship. In November 2008 he went to India for business, and when he was travelling from Vadodara (formerly Baroda) to Mumbai (Bombay) with his two Malaysian assistants on a vehicle, they were arrested by the Indian police after some 1.5 kgs of the narcotic drug methamphetamine were discovered in their vehicle, and were all subsequently charged for drug-related offences.

3.  Whilst being detained in the Vadodara (Baroda) Central Prison pending trial, in April 2011 the applicant managed to escape from the prison and fled to Nepal, and on 20 November 2011 when he was passing through Hong Kong on his way to China, he was arrested by the Immigration Department for using a forged Malaysian passport, for which he was later convicted and sentenced to prison for eight months, and in 2013 he was convicted for money laundering and was given a further four-year imprisonment.

4.  In March 2015 the Indian authorities submitted an extradition request for his return to India to face his drug-related charges, and hence the applicant raised a non-refoulement claim for protection on the basis that he would face an unjust judicial process in India, and that he would be harmed or killed by the Indian police or authorities for his escape from their custody.

5.  In brief, his claim was subsequently rejected by the Director of Immigration (“the Director”) on all then applicable grounds including torture risk, BOR 3 (“CIDTP”) risk, and persecution risk, his subsequent appeal was also dismissed by the Torture Claims Appeal Board (“the Board”), followed by the refusal of his leave application for judicial review by Li J, as well as the dismissal of his appeal by the Court of Appeal, and on 23 August 2018 his notice of motion for leave to appeal to the Court of Final Appeal was also refused which put an end to his non-refoulement claim under all those applicable risks except for the later BOR 2 risk, of which he relied essentially on the basis that he would face long delay for trial and also further charges which may attract the death penalty thereby depriving him of his right to life under BOR 2.

6.  As noted above, his claim under BOR 2 risk was again rejected by both the Director and the Board, and on 15 March 2019 I refused to grant leave for him to apply for judicial review of those further decisions of the Director or the Board upon finding no prospect of success in his intended chellenge.

7.  The applicant now by a summons dated 4 July 2019 seeks leave to appeal against that decision out of time, as the 14-day period for him to file his appeal under Order 53, rule 3(4) of the Rules of the High Court, Cap 4A ended on 29 March 2019, and hence he was late by more than three months with his intended appeal. 

8.  In considering whether to extend time for appealing against a decision refusing leave to appeal for judicial review, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the prospect of the intended appeal; and (iv) the prejudice to the respondent if an extension of time were granted: see Re MK HCMP 2609/2016, 10 January 2017; Chu On Fong Winter v The Appeal Panel (Housing) HCMP 982/2017, 20 July 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226; and Re Saqlain Muhammad [2018] HKCA 346.

9.  In the applicant’s case, a delay of more than three months must be considered as substantial or excessive, for which he explained at the hearing of his summons that he was of low education and without legal knowledge that he was unaware of the time-limit for filing appeal, and that he has all along been detained at the Lai Chi Kok Reception Centre without any access to the necessary facilities such as copying the relevant documents for his application.

10.  Given the history of his proceedings and that he had in fact gone through the entire appeal process regarding his earlier claim mostly unrepresented and while being detained, and given the way he had been able to conduct his appeal by himself including making numerous written submissions throughout his previous and present proceedings, I do not accept that he was unaware of the time-limit required for his present application or that he was unable to properly prepare for this second appeal of his.  In the circumstances I do not accept that he has provided any good or valid reason for his delay.

11.  As for the merit, if any, of his intended appeal, the applicant did not identify any error in the decision either in his supporting affirmation or written submissions, or at the hearing of his summons, but rather he relies on a judgment delivered by the Special Court for Narcotic Drug and Psychotropic Substances Act 1985 at Greater Bombay in India on 9 January 2017 which he claims he was able to obtain only recently, in which it shows that he was named the 3^rd accused as absconded, and that his two Malaysian assistants being the other two accused were convicted and sentenced accordingly as follows:

 (1) Unauthorized possession of 7 kgs of Methamphetamine, a prohibited psychotropic substance, and were sentenced to imprisonment for 14 years and to pay a fine of 1.5 million rupees and if in default to serve a further period of imprisonment for 6 months; 

 (2) Criminal conspiracy to possess the said 7 kgs of Methamphetamine and 5 kgs of Ephedrine, a controlled substance, and were sentenced to imprisonment for 14 years and to pay a fine of 1.5 million rupees and if in default to serve a further period of imprisonment for 6 months; 

 (3) Distribution, trade and commence of Ephedrine and were sentenced to imprisonment for 10 years and to pay a fine of 1 million rupees and if in default to serve a further period of imprisonment for 6 months; 

 (4) All the substantive sentences were to run concurrently;

 (5) The period of detention undergone by the accused to be set off against the sentence of imprisonment; and

 (6) Standing warrant for arrest against the applicant.

12.  The applicant therefore argues that this judgment shows that he and the two accused were charged for those abovementioned narcotic drugs found in Bombay and hence were tried by the court there, but as he was arrested in Vadodara for the 1.5 plus kgs of methamphetamine found in their vehicle for which he believes that he would face further charges in Vadodara, and therefore risks facing the death penalty if subsequently convicted by a court in Vadodara, as according to the extracted copy by him of the Narcotic Drugs and Psychotropic Substances (Amendment) Act 2001 of the Indian statute, section 31A provides for death penalty for certain offences after previous conviction as follows:

“ 31A. Death penalty for certain offences after previous conviction.— (1) … if any person who has been convicted of the commission of, or attempt to commit, or abetment of, or criminal conspiracy to commit, any of the offences punishable under … and for offences involving commercial quantity of any narcotic drug or psychotropic substance, is subsequently convicted of the commission of, or attempt to commit, or abetment of, or criminal conspiracy to commit, an offence relating to—

(a) engaging in the production, manufacture, possession, transportation, import into India, export from India or transhipment, of the narcotic drugs or psychotropic substances specified under column (1) of the Table below and involving the quantity, which is equal to or more than the quantity indicated against each such drug or substance, as specified in column (2) of the said Table:

TABLE
Particulars of narcotic drugs …		Quantity
	(1)	(2)
…
(xi)	Methamphetamine …	1,500 grams
…
(b)	financing, directly or indirectly, any of the activities specified in clause (a), shall be punishable with death.”

13.  This judgment was never before the Court in the applicant’s leave application for judicial review, let alone before the Board, but I accept that it was related to his claim under BOR 2 risk raised before the Board, and given the fact that he had been detained at all material time, I am prepared to take it into account in the consideration of the prospect of his intended appeal.

14.  A careful examination of the document, however, shows that even on the applicant’s own case, as evidenced by the details contained in this judgment of the Bombay Court, that those drugs found in Bombay for which he and his two Malaysian assistants were charged were clearly part of the same operation for which they were earlier arrested in Vadodara for the much smaller quantity of methamphetamine found in their vehicle, and therefore even if the applicant were to face further prosecution in Vadodara subsequent to that in Bombay, which seems unlikely given the fact that almost 11 years have passed since their arrest in 2008 but still no evidence of any charge being laid against him or the other two accused, as such I do not accept that it would thereby render the one in Bombay to become a “previous conviction”and may therefore attract the death penalty in any subsequent conviction in Vadodara, as it seems clear to me that the legislative intention was to deter re-offence in the future, not to mention as noted above that there is simply no evidence that such further prosecution would be imminent or forthcoming other than the mere speculation of the applicant, as the Board had already considered and found in its decision as follows:

“ 9.6 A possible death penalty for a ‘subsequent conviction’ is found under Section 31A(1) of the Indian Narcotic Drugs and Psychotropic Substances Act 1985 (as amended), amended from mandatory to only discretionary: paragraph 15 of the 2014 amendment to the Act. In today’s case the Appellant has never been convicted in India, hence the Duty Lawyer now makes the submission in the next paragraph.

9.7 Duty Lawyer submits: (1) that even if the two convictions (one for TDD the other for MDD) are recorded in the same trial, he says one of these conviction will be a ‘subsequent conviction’ for the purpose of Section 31A(1) thereby incurring a possibility of the death penalty, (2) he says that the Indian Government may, when the time comes, act in bad faith and deliberately conduct separate trials for the 2 offences, so that if convicted in the second trial, the Appellant will suffer a ‘subsequent conviction’ incurring the possibility of a death penalty, but (3) he concedes that the statutory death penalty is only discretionary and not mandatory.

9.8 An appellant needs to establish a substantial risk of death under BOR 2 Risk, not any level of risk. To say that the Indian Government may act in bad faith in order to bring in a ‘subsequent conviction’ is a brave and discourteous speculation with not the slightest evidence to support same. I do not entertain this speculation.

9.9 If two convictions are recorded in the same trial, I am not of the view that one of the convictions is a ‘subsequent conviction’ but only ‘two conviction recorded’ …” 

15.  In the circumstances and for the above reasons, I do not find that this judgment of the Bombay Court, even if admitted, would have advanced the applicant’s case any further than it was before the Board,and in the absence of any error being clearly and properly identified in the decision by the applicant, I am not satisfied that he has demonstrated any merit or prospect of success in his intended appeal. 

16.  In the premises, it would be futile to extend time for what appears to be a hopeless appeal.  Accordingly I refuse his application for leave to appeal out of time, and dismiss the applicant’s summons.