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

CAMP 27/2019

[2020] HKCA 321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 27OF 2019

(ON AN INTENDED APPEAL FROM HCAL 223/2015)

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JUDGMENT

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

Introduction

1.  Before this Court is a summons taken out by the applicant on 14 February 2019.  While no relief was set out in the summons, it transpires in the documents exhibited to the applicant’s affirmation filed on the same day that the applicant sought to renew his application to extend the time for filing a notice of appeal against the decision of Au J (as Au JA then was) given on 13 February 2017 (“the Judgment”).  In that decision, Au J refused the applicant’s habeas corpus application.

2.  Au J refused to extend the time for filing a notice of appeal on 30 November 2018.

3.  In this application, the applicant made a total of 9 submissions comprising over 100 pages.  Four submissions were exhibited to his supporting affirmation, and they are: (a) a 3-page document entitled “Submission Time” (“1^st Submission”)[1],  (b) a 22-page document entitled “Submission Appeal” (“2^nd Submission”)[2], (c) a 9-page document entitled “Submission Appeal 1” (“3^rd Submission”)[3], and (d) a 9-page document entitled “Submission Oath” (“4^th Submission”)[4].

4.  Further, an 18-page document dated 17 September 2019 entitled “Affirmation Appeal” (“5^th Submission”) was lodged.  Pursuant to the direction of the Registrar of Civil Appeals, the applicant lodged another 13-page written submission on 6 November 2019 (“6^th Submission”), which exceeded the page limit imposed by the registrar.  Pursuant to the directions of Lam VP, he lodged a 2-page written submission, plus a 6-page document entitled “Additional two issues raised for CAMP 27/2019”, on 23 December 2019 (“7^th Submission”) explaining why the application should not be struck out as an abuse of process.  Finally, the applicant lodged on 13 January 2020 two sets of submissions, one of 6 pages (“8^th Submission”) and another of 12 pages (“9^th Submission”), without any permission allowing him to do so.

5.  Notwithstanding the applicant’s flagrant breaches of the Court’s requirements, we have considered all of the aforesaid submissions lodged in this application. 

6.  The 1^st and 2^nd respondents lodged two sets of written submissions on 25 October 2019 and 16 January 2020.

7.  In his letters dated 17 August 2019 and 17 September 2019, the applicant requested for an oral hearing.  Notwithstanding that, after considering the materials placed before us, we consider that pursuant to Order 59, rule 14A(1) of the Rules of the High Court (Cap 4A) (“RHC”), it is appropriate to deal with this application based on written submissions without an oral hearing.

8.  This is our decision.

Background

9.  The applicant is a Canadian national.  On or about 21 November 2008, he (with three others) was intercepted by the officers of the Narcotics Control Bureau in Vadodara, Gujarat, India.  Four packets of transparent polythene bag containing 1.56 kg white crystalline Methamphetamine power substance were found in the trunk of their vehicle.  Subsequently, the applicant led the police officers to a company premises, wherein more Methamphetamines were found. During the police interview, the applicant admitted that he conspired with others to manufacture Methamphetamine.  The applicant was then placed under custody pending trial at Central Jail, Vadodara. 

10.  On 28 April 2011, the applicant was taken to a local hospital for medical treatment.  Afterwards when he was escorted to return to the Central Jail, he was un-cuffed and allowed to wash his face.  He suddenly crossed the road and rode off on a motorcycle.  The police officers tried to chase after him but to no avail. 

11.  In March 2015, the applicant was arrested in Hong Kong pursuant to a request made by the Indian authority.  The 2^nd Respondent made a request for surrender with supporting documents in May 2015.  The applicant was brought before a magistrate on 18 May 2015.  The then Acting Chief Executive issued the authority to proceed on 22 May 2015 pursuant to Section 6 of the Fugitive Offenders Ordinance (Cap 503).

12.  After several adjournments, the substantive committal hearing was held before a magistrate on 22 October 2015.  The applicant was legally represented at the hearing.  The applicant’s counsel resisted the committal order by challenging the reliability of some of the supporting documents, including the warrant of arrest and affidavits made by Indian officials.  Clerical defects in the documents were highlighted.  Having considered the submissions, the magistrate was of the view that the alleged defects were of no significance.  The learned magistrate went on to comment that:

“ … It is a desperate attempt in a desperate situation faced by [the applicant] to resist the order be made to commit him to custody. Even if he succeeded, the documents or evidence challenged is only a fraction of the supporting evidence; there are still ample supporting evidence left.

Based on the evidence contained in the supporting documents, a prima facie case has been established. Accordingly, an order sought by the Government of the Republic of India be made.”[5]

Au J’s decision

13.  The applicant applied for a writ of habeas corpus ad subjiciendum.  Au J heard the application on 1 March 2016, and the applicant was represented by counsel at the hearing.  Three issues were raised on behalf of the applicant:

(1)  The provisional arrest had already been terminated and thus the applicant was not under lawful arrest when the authority to proceed was issued;

(2)  There was no prima facie case of the drug-related offences allegedly committed by the applicant; and

(3)  There was no offence of escaping lawful custody under the Indian penal code.

14.  By a judgment dated 13 February 2017 (“the Judgment”), Au J rejected all these arguments.  First, the judge accepted that the request for surrender was delivered and transmitted on 17 May 2015, hence it was done within the prescribed period of 60 days[6].

15.  Second, it was argued by counsel that the confession made by the applicant was not admissible under Indian law.  The judge rejected this on the basis that the magistrate needed only to be satisfied that the evidence presented by the requested party would support a prima facie case in accordance with the laws of Hong Kong, not the laws of India[7].

16.  Third, the judge took the view that the third ground could not assist the applicant in the habeas corpus proceedings because, even if he succeeded on this ground, the committal order would still be valid[8]. For completeness, and having considered the relevant statutory provisions and Ho Man Kong v Superintendent of Lai Chi Kok Reception Centre [2012] 5 HKLRD 329, the judge held that the magistrate did not need to be satisfied that there was indeed an offence of escape from lawful custody in India[9].  The judge ruled that it sufficed if the magistrate was satisfied that (a) the Government of India had shown that, under the penal code they relied on, the offence alleged committed by the applicant was punishable with imprisonment for more than 12 months, and (b) the applicant’s conduct as complained of, if it had occurred in Hong Kong, supported an offence in Hong Kong that came within any of the description under Schedule 1 of the Fugitive Offenders Ordinance (Cap 503) (“FOO”) and was punishable in Hong Kong with imprisonment for more than 12 months[10].  Finally, the judge accepted the submissions of the respondents’ counsel that there was indeed an offence of escape from lawful custody, with which the applicant was charged[11].

17.  The judge also considered the allegations made in the applicant’s various affirmations, and rejected them all.  Having considered the provision in the Agreement for the Surrender of Fugitive Offenders between the Hong Kong Government and the Government of the Republic of India, the judge was satisfied that the supporting documents were duly authenticated[12]. He was also satisfied that there was sufficient evidence for the magistrate to conclude that prima face case against the applicant was made out[13].  The applicant’s contention that he would be subjected to persecution based on his race and religious beliefs was considered to be assertion and speculation without evidence in support[14]. The assessment on whether the applicant’s return to India was unjust and oppressive was under the purview of the Chief Executive, not the Court[15].  Au J also held that the allegation of the applicant being subject to cruel, inhuman, or degrading treatment and punishment if deported could not assist him in the habeas corpus proceedings because such an allegation should be dealt with at the executive phase of surrender and the unified screening mechanism[16].

Events after the Judgment

18.  About a year after the handing down of the Judgment, the Chief Executive on 7 February 2018 made an order for surrender under s 13 of FOO.  The applicant applied on 5 March 2018 for leave to apply for judicial review of the said order for surrender under HCAL 349/2018.  The grounds for the intended judicial review included:

(a)  The pending habeas corpus proceedings;

(b)  The fresh non-refoulement claim;

(c)  The non-production of the request for surrender;

(d)  The defective proof of specified person in the request for surrender;

(e)  The termination or expiry of the provisional arrest warrant; and

(f)  The substantial risk of death penalty.

19.  A rolled-up hearing was held on 22 November 2019.  By a judgment dated 27 December 2019 ([2019] HKCFI 3123), Chow J refused to grant leave to the applicant to apply for judicial review.  The applicant has brought an appeal against this decision of Chow J under CACV 13/2020.

20.  Shortly after taking out the present summons, on 27 March 2019, the applicant applied for the 2^nd time for a writ of habeas corpus ad subjiciendum under HCAL 855/2019.  The applicant’s grounds for this 2^nd application were:

(a)  The pending habeas corpus proceedings;

(b)  The non-production of the request for surrender;

(c)  The defective affidavits in the supporting documents;

(d)  The risk of death penalty; and

(e)  The admissibility of his confession.

21.  This application was also heard by Chow J.  By a judgment dated 8 April 2019 ([2019] 2 HKLRD 780, [2019] HKCFI 910), the judge dismissed the application.  On 5 September 2019, Chow J also refused to grant leave to appeal out of time: [2019] 4 HKLRD 600, [2019] HKCFI 2174.  Notwithstanding that, the applicant filed a notice of appeal against Chow J’s decision under CACV 507/2019.  Upon the consent of the Department of Justice (acting for the respondents thereof), Lam VP granted a retrospective extension of time for the applicant to file the notice of appeal.

22.  The hearing dates for these two appeals have not yet been fixed.

23.  In addition to the two sets of proceedings in 2019, the applicant also raised non-refoulement claims. The first claim was rejected, and subsequently led to two applications for leave to apply for judicial review (HCAL 202/2016 and HCAL 378/2018) and a set of miscellaneous proceeding in the Court of Appeal (CAMP 28/2017) for extension of time to appeal regarding the decision in HCAL 202/2016.

24.  Leave was refused in HCAL 202/2016 on 28 June 2017. In CAMP 28/2017, the Court of Appeal considered that the Applicant’s claim was not reasonably arguable and refused to grant an extension of time. His application for leave to appeal to the Court of Final Appeal was dismissed on 23 August 2018.

25.  HCAL 378/2018 was an application to challenge a second decision of the Board in respect of the Further Decision of the Director (under BOR 2 risk). Leave was refused on 15 March 2019. An application for leave to appeal against that refusal out of time (in which he raised an argument on risk of death penalty arising from possibility of further charges in India) was also dismissed on 23 September 2019. 

26.  A second non-refoulement claim was brought by the applicant in November 2019, see [10(3)] of the judgment of Chow J in HCAL 349/2018, [2019] HKCFI 3123.

Application for leave to appeal out of time

27.  Over 19 months after the handing down of the Judgment, the applicant took out a summons on 26 October 2018 for leave to appeal out of time.  The application was heard by Au J on 30 November 2018[17]. After hearing the applicant and the respondents’ counsel, the judge found that the delay was both substantial and inexcusable.  He found that there was no real prospect of success in the intended appeal.  As mentioned earlier, the judge refused to grant leave to appeal out of time and dismissed the applicant’s summons. 

28.  More than 10 weeks after Au J’s decision for refusal of leave to appeal out of time, the applicant filed the present summons with the Court on 14 February 2019.  As mentioned earlier, no relief was stated in the summons.  Nor was there any draft notice of appeal attached to the summons.  After reading through the submissions as mentioned in [3] and [4] above, we distill the following grounds of appeal on which the applicant intended to rely in this application:

(1)  The non-production of the request for surrender;

(2)  The expiry of the period of provisional arrest;

(3)  The insufficiency of evidence to support a prima facie case; and

(4)  Other matters including (a) the allegation that he might be subjected to death penalty if deported to India, and (b) that the affidavits contained in the supporting documents were not effectively sworn.

29.  In his 5^th Submission, the applicant also asked the Court pursuant to s 41 of the High Court Ordinance (Cap 4) to order the respondents to produce the request for surrender, as well as the certificate made under s 6 of FOO[18].

Legal principles

30.  Pursuant to Order 59, rule 4(1)(c) of RHC, the applicant had 28 days after the date of the decision to file a notice of appeal if he wished to bring an appeal against it.  Order 59, rule 15 provides that both the Court of First Instance and the Court of Appeal have concurrent jurisdiction to extend the time for filing a notice of appeal under rule 4. 

31.  The Court’s approach in exercising its discretion to extend the time for appealing is well established.  The following factors are to be taken into account:

(a)  the length of the delay;

(b)  the reasons for the delay;

(c)  the chances of success of the intended appeal; and

(d)  the prejudice to the other party if time is extended.

32.  Where the delay is substantial and not excusable, the party seeking an extension of time must show a real prospect of success on the merits, not just a reasonable prospect of success: see Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd & Anor [2001] 1 HKC 125.

33.  In assessing the prospect of success on the merits, the Court will bear in mind the following principles:

(a)  An appeal is not a second trial of the case.  What the appellate court has to consider is mainly the evidence at trial, and whether the decision of the trial judge is right or wrong: Tsang Tak Wai v Building Authority [2018] 1 HKLRD 137 at [7];

(b)  Accordingly, an appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge: Ng Shek Wai v Independent Commission Against Corruption [2019] 2 HKLRD 586 at [21(a)].

Discussion

34.  Having considered the materials placed before us, we are of the firm view that an extension of time should not be granted.  These are our reasons.

Delay is both substantial and inexcusable

35.  Au J gave his decision on 13 February 2017.  The time for appealing against the decision expired on 13 March 2017.  The applicant did not make an application for extension of time to appeal until 26 October 2018.  He was late by more than 19 months.  After the judge’s refusal to extend the time, it took the applicant another 10 weeks to make the present application.  The delay is very serious.

36.  The applicant submitted that he had no knowledge of law and was not aware of the law relating to the non-production of the request for surrender[19], and that it took him a long time to understand the law[20].  The applicant further averred that the delay was due to the inconvenience and constraints of being incarcerated and unrepresented, coupled with the limited resources in doing research[21].

37.  We do not find that the applicant’s explanation for the delay reasonable.  First, ignorance of the law cannot be an excuse for the delay.  Second, as can been seen in the events set out at [18] above, the applicant was just repeating the grounds he advanced in his leave application for judicial review under HCAL 349/2018.  He was thus aware of the grounds as early as March 2018.  We hold that the delay was inexcusable.

38.  Accordingly, the applicant must demonstrate that his intended appeal has a real prospect of success before an extension of time to appeal can be granted.

Grounds 1 and 4(a) are not canvassed in the court below

39.  According to the applicant’s submissions, it appears that the intended appeal revolves mainly around the first ground, namely the non-production of the request for surrender.  He submitted that the magistrate had a judicial obligation to examine the request for surrender and to determine its validity before the authority to proceed could be issued[22], and it was a procedural impropriety for the magistrate’s failure to order a copy[23], as well as a violation of his right of fair trial under art 10 of the Bill of Rights[24]. In any event, the request for surrender could not be admissible in evidence because it was not authenticated[25]. Because of the non-production of the request, the authority to proceed was invalid and the order for his committal was unlawfully made[26].  Without production of a copy of the request, it was irrational for Au J to accept the date of the transmission of the request[27], or to confirm the name under the request[28]. Finally, the Indian government failed to discharge its burden in proving that the request was transmitted within the period of the provisional arrest[29].  The applicant also referred to the case In re Chuen Sau-kam [1990] 1 HKLR 23 to support his contention that there was a legal requirement to produce the request[30].

40.  This ground relating to the non-production of the request for surrender was not relied upon by counsel then representing the applicant before Au J in the proceedings below: see [22] of the judgment of Au J. 

41.  Though there was reference to the request at the hearing, it was in the context of the validity of the authority to proceed after the alleged expiry of 60 days from the date of transmission of the request[31].

42.  The applicant also raised in this application the point that he might be subjected to the death penalty if he was deported to India[32]. Again, this ground was never canvassed before Au J.

43.  Indeed, the applicant accepted in his submissions that these two grounds were never raised in the 1^st habeas corpus proceedings before Au J[33].  In such circumstances, these two grounds cannot constitute valid grounds in the intended appeal.

44.  Instead, these issues were raised and substantively dealt with by the Court of First Instance in HCAL 349/2018 and HCAL 855/2019. They shall be canvassed in the forthcoming appeals under CACV 13/2020 and CACV 507/2019.  In the circumstances, we see no good reason for this Court to take the exceptional course to allow such new issues to be raised in the context of CAMP 27 of 2019. 

45.  Accordingly, we decline to extend the time in order to allow the applicant to pursue the intended appeal based on grounds 1 and 4(a).

Grounds 2, 3 and 4(b) are regurgitations of arguments already rejected

46.  Ground 2 is a repetition of the issue that the Indian Government failed to transmit the request for surrender within the 60-day period of his arrest.  This issue has been dealt with by the judge in the Judgment[34].

47.  The applicant insisted in this application that the magistrate’s failure to determine whether the prescribed period for provisional arrest had expired[35] was a procedural impropriety.  This argument is misconceived and untenable.  As Au J noted at [27], at the hearing before a magistrate on 18 May 2015, Mr Hoe, counsel for the respondent, clearly indicated to the magistrate that the request for surrender had been delivered and transmitted on the day before the hearing[36].  The applicant’s then counsel did not take issue with that.  In such circumstances, the magistrate was perfectly entitled to proceed on the basis that the request was delivered and transmitted within the prescribed period.   

48.  Counsel for the applicant only raised the 60-day limit at the habeas corpus proceedings.  It was then proved by way of affidavit evidence[37] that the request for surrender was transmitted and received on 17 May 2015, hence within the 60-day period after the applicant’s arrest.  In this application, the applicant challenged this evidence on the basis that it was a hearsay[38].  But habeas corpus proceedings are civil proceedings, and hearsay evidence is admissible: see s 47 of the Evidence Ordinance (Cap 8).  The applicant had neither served counter notice nor applied to call the maker of the affirmation to be cross-examined at trial.  In these circumstances, this argument is totally unmeritorious.

49.  The applicant also submitted that the affidavits contained in the supporting documents were defective and were not valid under the Indian laws or the laws of Hong Kong[39].  Hence, the documents could not establish a prima facie case against him.  The judge had meticulously analyzed this criticism[40]. In this application, the applicant did not pinpoint any error in the judge’s analysis. 

50.  We also accept the respondents’ submission that whether the affidavits were validly made in accordance with the Indian law was irrelevant.  The documents were admissible so long as they were duly authenticated under s 23 of FOO.  We agree with the judge that the documents were properly authenticated and that the supporting documents were sufficient to establish a prima facie case against the applicant. 

51.  Finally, the applicant repeated the allegations that the affidavits in the supporting documents were defective.  These allegations were advanced before, and duly rejected by[41], the magistrate.  We agree with the magistrate that the defects were of no significance and that, even if the affidavits were defective, there was still ample evidence to establish a prima facie case against the applicant[42].

52.  Accordingly, none of ground 2, 3, and 4(a) has any prospect of success.

Production of the request for surrender under s 41 of HCO

53.  In his 5^th Submission, the applicant asked this Court to order the production of the request for surrender in pursuance of s 41 of the High Court Ordinance (Cap 4)[43].  This is a misconceived request.   First, the section only confers powers on the Court of First Instance, and does not engage the Court of Appeal. As such request had not been made in the proceedings before Au J, we would not entertain the same in the context of this CAMP application for an extension of time.   Secondly, as the respondents submitted, it governs the production of documents prior to the commencement of proceedings. Thirdly, as explained above, the request is not germane for the purpose of the proceedings before Au J (thus also before us) since no point had been taken on the production of the request. 

54.  The applicant’s application for the production of the request of surrender is therefore refused.

Conclusion

55.  For these reasons, we consider that the applicant’s delay is both substantial and inexcusable.  The intended appeal has no prospect of success.  It would be futile to extend the time for the applicant to pursue a hopeless appeal.  Accordingly, we dismiss the applicant’s summons dated 14 February 2019.

56.  Costs should follow the event.  In light of the serious delay and the unmeritorious grounds, this application is vexatious and tantamount to an abuse of process.  We therefore order that the costs should be assessed on indemnity basis.  Having considered the respondents’ statement of costs dated 25 October 2019 and taking account of the events subsequent to the filing of that statement, we assess the respondents’ costs of this application at $65,000.