XIE JING FENG AKA DAVID CHOW v. CHIEF EXECUTIVE OF GOVERNMENT OF HKSAR

HCAL 349/2018

[2019] HKCFI 3123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 349 OF 2018

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J U D G M E N T

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INTRODUCTION

1.  This is the rolled-up hearing of the Applicant’s application for judicial review of the Order for Surrender made by the Chief Executive on 7 February 2018 pursuant to Section 13 of the Fugitive Offenders Ordinance, Cap 503 (“the Ordinance”).

2.  The Applicant is the subject of extradition proceedings pursuant to a request made by the Government of India for his surrender to face criminal prosecution for drugs-related offences and escaping from lawful custody offences in India. The basic facts of the present case were set out in this court’s previous judgment handed down on 8 April 2019 in relation to the Applicant’s second application for a writ of habeas corpus in respect of his current detention in Hong Kong (Xie Jing Feng v Hong Kong SAR Government [2019] 2 HKLRD 780, hereinafter referred to as the “Second Habeas Corpus Judgment”), and will not be repeated here. In what follows, the expressions and abbreviations as defined in that judgment will be adopted, unless the context indicates otherwise.

3.  The following grounds were raised by the Applicant at the hearing on 22 November 2019 in support of the present application for judicial review of the Order for Surrender:

(1) His applications for a writ of habeas corpus were pending (in that there were still outstanding appeal proceedings), and thus he could not lawfully be removed from Hong Kong by reason of Section 12(2)(b) of the Ordinance and/or Section 22A(11) of the High Court Ordinance, Cap 4.

(2) He had made a fresh non-refoulement claim based on rights under Article 3 of the Hong Kong Bill of Rights.

(3) There was a legal requirement to produce the Request for Surrender to the Court of Committal which was not observed.

(4) Without production of the Request for Surrender, there was no proof that it was made by a person specified in Section 6(1) of the Ordinance, and thus the Authority to Proceed made by the Chief Executive on 22 May 2015 was not valid.

(5) The Provisional Arrest Warrants had terminated or expired in the absence of proof that the Request for Surrender was received prior to the expiry of the 60-day period from the date of his arrest.

(6) He would face a substantial risk of a death penalty should he be returned to India to face criminal trial and convicted of the offences for which his extradition was sought.

4.  These grounds be will considered below.

GROUND (1): PENDING HABEAS CORPUS PROCEEDINGS

5.  The Applicant has made two habeas corpus applications.

(1) His first application (HCAL 223/2015) was dismissed by Au J (as he then was) on 13 February 2017 (“the First Habeas Corpus Judgment”). The time for the Applicant to serve a notice of appeal against the judgment of Au J expired on 13 March 2017. He failed to do so, and his subsequent application on 13 August 2018 for an extension of time to serve the notice of appeal was dismissed by the learned judge on 30 November 2018. I am given to understand that the Applicant has renewed his application for an extension of time to the Court of Appeal (CAMP 27/2019), and that application is currently pending determination by the Court of Appeal.

(2) His second application (HCAL 855/2019), made on 27 March 2019, was dismissed by this court on 8 April 2019. This time, he served his notice of appeal within time, but failed to set the appeal down for hearing within the permitted time under Order 59, rule 5(1) of the Rules of the High Court (Cap 4A). His application for an extension of time to do so was dismissed by this court on 5 September 2019.

6.  Under Section 12(2)(b) of the Ordinance, a person in relation to whom an order of committal has been made shall not be surrendered under the Ordinance if an application for habeas corpus is made in his case, so long as proceedings on that application are pending. Subsection (10) provides that for the purposes of this section, proceedings on an application for habeas corpus shall be treated as pending (unless they are discontinued) until (a) a court has finally dealt with any such proceedings before it, and (b) no appeal has been instituted to have any such proceedings brought before any other court.

7.  In the present case, at the time when the Chief Executive made the Order for Surrender on 7 February 2018, the Applicant’s first habeas corpus application had been dismissed by Au J on 13 February 2017 and there was no extant appeal against the judgment of Au J. The second habeas corpus application was not made until 27 March 2019. It follows that there were no pending proceedings on any habeas corpus application for the purpose of Section 12(2)(b) of the Ordinance as at the date of the making of the Order for Surrender.

8.  In any event, Section 12(2)(b) of the Ordinance only restricts the execution of an order for surrender. The existence of pending habeas corpus proceedings does prevent an order for surrender from being made, or affect the validity of any order for surrender made, under Section 13 of the Ordinance.

9.  Under Section 22A(11)(b) of the High Court Ordinance, if a writ of habeas corpus has been issued in respect of a detained person, the person having custody of the detained person must not, until the writ is discharged or the proceedings are concluded, allow the detained person to be removed from Hong Kong. By virtue of subsection (13), a person who fails to comply with a writ of habeas corpus or with a requirement of this section is guilty of contempt of the Court of First Instance. It is clear that Section 22A(11)(b) of the High Court Ordinance does not affect the validity of any order for surrender made under Section 13 of the Ordinance. Even if a writ of habeas corpus is in existence, it only means that execution of the order for surrender may not be carried out.

GROUND (2): FRESH NON-REFOULEMENT CLAIM

10.  The Applicant has made two non-refoulement claims.

(1) His first non-refoulement claim on all applicable grounds, lodged on 16 April 2015, was rejected by the Director of Immigration (“the Director”) under the unified screening mechanism on 23 November 2015, and by the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the TCAB”) on 12 August 2016. His application for leave to apply for judicial review of the decisions of the Director and TCAB was dismissed by P Li J on 28 June 2017 (HCAL 202/2016). His application for an extension of time to appeal against the learned judge’s decision was dismissed by the Court of Appeal on 13 March 2018 (CAMP 28/2017). His further application for leave to appeal to the Court of Final Appeal was dismissed by the Court of Appeal on 23 August 2018.

(2) On 29 March 2017, the Director gave a further decision rejecting the Applicant’s non-refoulement claim on all other applicable grounds including any absolute and non-derogable rights under Article 2 of the Hong Kong Bill of Rights.  On 13 December 2017, the TCAB upheld the Director’s further decision. The Applicant’s application for leave to apply for judicial review of the Director’s further decision and the TCAB’s further decision was dismissed by Bruno Chan DHCJ on 15 March 2019 (HCAL 378/2018). His application for an extension of time to appeal was rejected by Bruno Chan DHCJ on 23 September 2019.

(3) On 12 November 2019, the Applicant made a fresh non-refoulement claim under Article 3 of the Hong Kong Bill of Rights, complaining about unsatisfactory prison conditions in India. This claim is, I understand, currently pending determination.

11.  Under Section 13(2A) of the Ordinance, 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. Subsection (2B) goes on to provide that 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 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.

12.  In the present case, the Chief Executive made the Order for Surrender on 7 February 2018. At that time, the challenges against the Director’s original decision dated 23 November 2015 and further decision dated 29 March 2017 had been rejected by the TCAB on 12 August 2016 and 13 December 2017 respectively, and there was no outstanding non-refoulement claim by the Applicant. There was, accordingly, no legal impediment to the making of the Order for Surrender under Section 13(2A) of the Ordinance. In so far as the Applicant’s recent fresh non-refoulement claim is concerned, even if, for the sake of argument, it could be regarded as a “torture claim” for the purpose of Section 13(2B) of the Ordinance (defined by reference to the definition of that expression in Section 37U(1) of the Immigration Ordinance, Cap 115), the effect of Section 13(2B) is only that the Order for Surrender is suspended pending the final determination of the claim or its withdrawal. The making of the fresh non-refoulement claim by the Applicant does not invalidate the existing Order for Surrender.

GROUND (3): PRODUCTION OF THE REQUEST FOR SURRENDER TO THE COURT OF COMMITTAL

13.  This ground was considered and rejected by this court in the Second Habeas Corpus Judgment, at §§15-19.

GROUND (4): PROOF OF THE FACT THAT THE REQUEST FOR SURRENDER WAS MADE BY A PERSON SPECIFIED IN SECTION 6(1) OF THE ORDINANCE

14.  As this court held in the Second Habeas Corpus Judgment, the Request for Surrender is not a document required to be produced or authenticated in the committal process under the Ordinance. The Applicant’s argument that the Request for Surrender has to be produced in order to prove that it is made by a person specified in Section 6(1) of the Ordinance is, I consider, an attempt to obtain a copy of the same through the back-door. The present application for judicial review should not be allowed to be used by the Applicant as a means to obtain a document to which he is not lawfully entitled, nor should it be turned into a fishing expedition to enable him to look for grounds to challenge the Order for Surrender.  The burden is on the Applicant to make out his case for judicial review of the Chief Executive’s decision to make the Order for Surrender. There is no evidence or basis to support the Applicant’s assertion that the Request for Surrender is not, or may not have been, validly made by a person in accordance with the requirements of Section 6(1) of the Ordinance.

GROUND (5): TERMINATION OR EXPIRY OF THE PROVISIONAL ARREST WARRANTS

15.  This ground was considered and rejected by Au J in the First Habeas Corpus Judgment, at §§23-29. This court adopted the conclusion of Au J in the Second Habeas Corpus Judgment (see §20).

GROUND (6): SUBSTANTIAL RISK OF DEATH PENALTY

16.  In the Second Habeas Corpus Judgment, this court accepted, on the basis of the evidence then before it, that the maximum penalty in India upon conviction of the drug related offences alleged against the Applicant was up to 20 years of imprisonment only (see §23).

17.  The Applicant now relies on Section 31A of the Narcotic Drugs and Psychotropic Substances Act 1985, which states as follows:

“Death Penalty for certain offences after previous conviction

(1) Notwithstanding anything contained in section 31, 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 section 19, section 24, section 27A and for offences involving commercial quantity of any narcotic drug of 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 …

shall be punishable with death.”

18.  According to the Applicant, he was a defendant in another criminal case in India, namely, NDPS Case No 71 of 2009, which went on trial in the Special Court for Narcotic Drug and Psychotropic Substances Act 1985 in Bombay. His co-defendants were, after trial, both found guilty and convicted of drugs related offences falling within the scope of Section 31A(1) of the 1985 Act and sentenced to periods of imprisonment on 9 January 2017. It appears from paragraph 2 of the judgment of the Bombay court that the prosecution against the Applicant was kept on the “Dormant File” in view of the fact that he had absconded. The Applicant says that if he is now sent back to face trial in the city of Vadodara, India in respect of different drugs related offences for which his extradition is sought, he may be convicted by two different courts in two different places in India and, on his second conviction, he may be given a death penalty.

19.  Under Section 13(5) of the Ordinance:

“Where -

(a) a person is wanted in a prescribed place for prosecution, or for the imposition or enforcement of a sentence, in respect of a relevant offence against the law of that place; and

(b) that offence is punishable with death,

then an order for surrender may only be made in the case of that person if that place gives an assurance which satisfies the Chief Executive that that punishment will not be imposed on that person or, if so imposed, not carried out.”

20.  As noted in the Second Habeas Corpus Judgment, the offences for which the Applicant’s extradition is sought are not, on their own, punishable with death. In so far as the possibility of enhanced punishment under Section 31A of the 1985 Act is concerned, the Applicant has not been convicted in the criminal case against him in Bombay, and he has not, for obvious reasons, suggested that he is guilty of the offences for which he has been charged in that court. On the existing facts, the Applicant will not be given a death penalty by the Vadodara Court upon conviction of the offences for which his extradition is sought, since there is currently no conviction against him in respect of other offences by the Bombay court. In any event, the Government of India has given confirmation to the Chief Executive that none of the offences under the Request for Surrender for which the Applicant’s extradition is sought is punishable with death. In particular, the Government of India refers to Section 34A of the Extradition Act 1963 of India, which states as follows:

“Notwithstanding anything contained in any other law for the time being in force, where a fugitive criminal, who has committed an extradition offence punishable with death in India, is surrendered or returned by a foreign State on the request of the Central Government and the laws of that foreign State do not provide for a death penalty of such an offence, such fugitive criminal shall be liable for punishment of imprisonment for life only for that offence.”

See the Affidavit of Lee Ho Ki Iris, Principal Assistant Secretary for Security, filed on 4 October 2019, at §§55 and 56.

21.  In these circumstances, there is no real risk that the Applicant may be given a death penalty should he be convicted by the Vadodara Court of the offences for which his extradition to India is sought. The question of whether he may be given a death penalty upon his conviction for some other offences by some other court is not relevant for the present purpose.

DISPOSITION

22.  In all, the application for judicial review is not reasonably arguable and has no realistic prospect of success. Accordingly, the application for leave to apply for judicial review is dismissed. In view of the clear lack of merits of the application, and the fact that there has effectively been a substantive determination of the application on the merits, the court orders the Applicant to pay the costs of the Putative Respondent, to be taxed if not agreed.