XIE JING FENG v. HONG KONG SAR GOVERNMENT

CACV 507/2019

[2021] HKCA 467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 507 OF 2019

(ON APPEAL FROM HCAL NO 855 OF 2019)

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J U D G M E N T

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Hon G Lam J (giving Judgment of the Court):

1.  This is an appeal from the decision of Chow J dated 8 April 2019 in HCAL 855/2019 dismissing the applicant’s application for a writ of habeas corpus.[1] The present appeal is but one of numerous proceedings, described below, arising out of the request by the Government of India for the applicant’s extradition from Hong Kong pursuant to the provisions of the Fugitive Offenders Ordinance (Cap 503) (“FOO”).

Background to the request for extradition

2.  The case against the applicant is essentially that on 21 November 2008, a vehicle with the applicant and three other persons inside were intercepted in Vadodara, Gujarat, India by officers of the (Indian) Narcotics Control Bureau.  Four packets of transparent polythene bag containing 1.56 kg white crystalline Methamphetamine powder substance were found from a black‑coloured bag in the trunk of the vehicle.  On the same date, the applicant led the police officers to the premises of a company called Sakha Organics Ltd in Vadodara, where 30 litres of Methamphetamine in liquid form were found, and another 110.32 kg (gross weight) of liquid Methamphetamine was found on 25 November 2008.  During interviews with the Narcotics Control Bureau, the applicant admitted that he had conspired with others to manufacture Methamphetamine at that company, and gave two written confessions statements dated 21 and 24 November 2008 respectively.  The applicant was later put into custody pending trial at Central Jail, Vadodara.

3.  On 28 April 2011, the applicant was collected from the jail and taken to a local hospital for medical treatment.  Afterwards, during the return journey to Central Jail, the applicant was un‑cuffed and allowed to wash his face.  He suddenly crossed the road and rode off on a motorcycle.  The police officers gave chase but failed to catch him.

4.  In March 2015, two warrants of arrest were issued by the judicial authorities in India in respect of offences under the Narcotics Drugs and Psychotropic Substances Act 1985 and under the Indian Penal Code relating to escape from custody respectively.

Extradition proceedings

5.  It is convenient, before examining the grounds of appeal raised, to set out the relevant events in conjunction with the applicable legal provisions in the extradition procedures. 

6.  The arrangements for the surrender of fugitive offenders between Hong Kong and India are set out in the Agreement for the Surrender of Fugitive Offenders between the Government of Hong Kong Special Administrative Region and the Government of the Republic of India (“Agreement”), entered into on 28 June 1997.  The Fugitive Offenders (India) Order (Cap 503P), made under section 3 of the FOO, sets out the Agreement and gives effect to it by applying the procedures in the FOO as between Hong Kong and India subject to the limitations, restrictions, exceptions and qualifications contained in the Agreement.

7.  In a case like the present where the wanted person is arrested under a provisional warrant, the first step that sets the procedure in motion is the application by the requesting State for provisional arrest.  In the Agreement, this is provided for in Art. 10 as follows:

“ ARTICLE 10

PROVISIONAL ARREST

(1) In urgent cases the person sought may, in accordance with the law of the requested Party, be provisionally arrested on the application of the competent authorities of the requesting Party. …

(3) The provisional arrest of the person sought shall be terminated upon the expiration of sixty days from the date of his arrest if the request for his surrender shall not have been received.  This provision shall not prevent the re‑arrest or surrender of the person sought if the request for his surrender is received subsequently.”

8.  Pursuant to the requests made by India, an application was made by an authorised officer (in this case a police officer) to a magistrate for a provisional warrant for the arrest of the applicant.  Section 7(1)(b) of the FOO provides that the magistrate, if satisfied of the matters referred to therein, may issue a provisional warrant, following which he must give notice to the Chief Executive that he has done so (section 7(2)(a)).  In the present case, two provisional warrants of arrest were issued on 20 March 2015, pursuant to which the applicant was arrested in Hong Kong on the next day. 

9.  In order to progress further, an “authority to proceed” has to be issued by the Chief Executive of the Hong Kong Special Administrative Region pursuant to a request for surrender issued and transmitted from the jurisdiction requesting extradition.  In this connection, section 6 of the FOO provides as follows:

“ 6. Request for surrender and authority to proceed

(1) Subject to the provisions of this Ordinance relating to provisional warrants, a person shall not be dealt with under this Part except pursuant to an authority to proceed issued pursuant to a request for surrender—

(a) made by—

(i) a person recognized by the Central People’s Government as a diplomatic or consular representative of the prescribed place which made the request; or

(ii) any other person approved by the Central People’s Government as a person who may make such a request in respect of that place; and

(b) transmitted through—

(i) the diplomatic channel; or

(ii) any other channel approved by the Central People’s Government as a channel through which such a request may be transmitted.

(2) On receipt of a request for surrender, the Chief Executive may issue an authority to proceed unless it appears to him that an order for surrender in relation to the person concerned could not lawfully be made under the provisions of this Ordinance, or would not in fact be made.

…

(3) A certificate purporting to be signed by or on behalf of the Central People’s Government stating that—

(a) a person specified in the certificate is recognized by the Central People’s Government as a diplomatic or consular representative of a prescribed place specified in the certificate;

(b) a person specified in the certificate is approved by the Central People’s Government as a person who may make a request for surrender in respect of a prescribed place specified in the certificate; or

(c) a channel specified in the certificate is approved by the Central People’s Government as a channel through which a request for surrender may be transmitted,

shall be conclusive evidence of that fact.”

10.  When the person is arrested pursuant to a provisional warrant and brought to a magistrate, and no authority to proceed has been received in respect of him, the magistrate (ie “the court of committal” as defined in the FOO) may fix a reasonable period after which the person will be discharged from custody unless an authority to proceed has been received (section 10(3) & (4)).  This period, which has to be notified to the Chief Executive, is clearly intended to allow time for the request for surrender to be transmitted and the authority to proceed to be issued.

11.  In the case of extradition to India, the request for surrender must, by Art. 10(3) of the Agreement, be transmitted and received within 60 days of the arrest; otherwise the provisional arrest will be terminated.

12.  On 23 March 2015, the applicant was brought up to the Eastern Magistrates’ Courts for mention.  The case was adjourned to 18 May 2015 pending transmission, from India, of the request for surrender.  The applicant was remanded in custody.

13.  On 17 May 2015, the request for the applicant’s surrender made by the Indian Government, together with accompanying documents, were transmitted and received in Hong Kong (although this is now disputed by the applicant).  The applicant was brought before the Eastern Magistrates’ Courts on 18 May 2015 for mention.  The case was adjourned pending issuance of the “authority to proceed” by the Chief Executive.

14.  On 22 May 2015 the Acting Chief Executive issued the authority to proceed pursuant to section 6(2) of the FOO.

15.  After an authority to proceed has been issued, the machinery set out in section 10(6)(b) of FOO as follows which concerns the court of committal comes into play:

“ (6) Where—

…

(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.”

16.  There are, in addition, provisions in section 5 of the FOO that place restrictions on the committal or surrender of a person based on various grounds set out, such as that the offence in respect of which surrender is sought is one of a political character.  These provisions are not engaged in this appeal.

17.  After several adjournments, during which the applicant’s bail application was refused, the substantive committal hearing was held before Deputy Magistrate Mr Peter Hui (“Magistrate”) on 22 and 23 October 2015.  At the end the Magistrate made an order under section 10(6)(b) of the FOO committing the applicant to custody to await the Chief Executive’s decision as to his surrender to India.

18.  The Chief Executive’s decision whether or not to order the surrender of the person committed is governed by section 13 of the FOO as follows:

“ (1) Where a person who has been committed pursuant to an order of committal is not discharged under section 14, the Chief Executive may order him to be surrendered to the prescribed place by which the request for surrender concerned was made and shall specify in the order the offence or, as the case may be, offences in respect of which the person’s surrender is so ordered, unless—

(a) the person’s surrender is prohibited, or prohibited for the time being, by this Ordinance; or

(b) the Chief Executive decides under this section to make no such order in that person’s case.

…

(5) 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.”

19.  Pursuant to section 13, the Chief Executive made an order on 7 February 2018 for the surrender of the applicant to India.

Legal proceedings challenging extradition

20.  The applicant has since 2015 instituted numerous proceedings in the courts of Hong Kong to resist extradition.  Thus he made his first application for a writ of habeas corpus in 2015 in HCAL 223/2015. The application was rejected by Au J on 13 February 2017.  He applied to Au J to extend the time for appeal but this was refused by Au J on 13 November 2018.  On 14 February 2019, the applicant renewed his application for an extension of time for appeal, by issuing a summons in the Court of Appeal in CAMP 27/2019.  Dismissing it on 14 May 2020 with indemnity costs, this Court held that, having regard to the serious delay and the lack of merits, the application was vexatious and tantamount to an abuse of process: [2020] HKCA 321, §56.[2]  The applicant’s application to the Court of Appeal for leave to appeal to the Court of Final Appeal was dismissed on 21 September 2020: [2020] HKCA 708.[3]  His further application to the Appeal Committee of the Court of Final Appeal for leave to appeal was dismissed under rule 7(2) of the Hong Kong Court of Final Appeal Rules (Cap 484A) on 12 March 2021.[4]

21.  During his detention in 2015, the applicant also raised a non‑refoulement claim for protection with the Immigration Department on the basis that, if extradited to India, he would be harmed or killed, and that, if deported to Canada (the applicant being a Canadian national), he would face extradition proceedings and ultimately also end up in India.  His claim was rejected by the Director of Immigration on 23 November 2015 and, on appeal, by the Torture Claims Appeal Board on 12 August 2016.  His application to the Court of First Instance for leave to apply for judicial review of the Board’s decision (HCAL 202/2016) was rejected by Li J on 28 June 2017.  His appeal therefrom to the Court of Appeal (CAMP 28/2017) was also dismissed on 13 March 2018 ([2018] HKCA 145),[5] as was his application for leave to appeal to the Court of Final Appeal on 23 August 2018 ([2018] HKCA 555).[6]

22.  Meanwhile, in 2017 the Director of Immigration on his own initiative took steps to consider the applicant’s claim with regard to Article 2 of the Hong Kong Bill of Rights and, after receiving further representations from the applicant, rejected his claim in relation to Article 2. The applicant’s consequent appeal to the Torture Claims Appeal Board was dismissed on 13 December 2017.  He applied again for leave to apply for judicial review (HCAL 378/2018), but his application was, again, dismissed by Deputy Judge Bruno Chan on 15 March 2019: [2019] HKCFI 454.  On 4 July 2019 the applicant applied, out of time, for leave to appeal, but the application was dismissed by Deputy Judge Bruno Chan on 23 September 2019: [2019] HKCFI 2198.

23.  Meanwhile, as mentioned above, on 7 February 2018, the Chief Executive made an order for the surrender of the applicant to India under section 13 of the FOO.  The applicant sought leave to apply for judicial review of this order on 5 March 2018 (HCAL 349/2018). The application was heard by Chow J in a “rolled‑up” hearing on 22 November 2019.  One of the grounds relied upon by the applicant was that he had made a fresh non‑refoulement claim on 12 November 2019 with reference to unsatisfactory prison conditions in India.  Chow J dismissed the application on 27 December 2019, holding that the intended application for judicial review was not reasonably arguable, and ordered the applicant to pay costs in view of the “clear lack of merits”: [2019] HKCFI 3123, §22.  The applicant’s appeal to this Court (CACV 13/2020) against this decision is scheduled to be heard on 7 May 2021.

24.  While his aforementioned application to the Court of Appeal for an extension of time to appeal against Au J’s decision was still pending, on 27 March 2019 the applicant applied a second time for a writ of habeas corpus, in proceedings numbered HCAL 855/2019.  After a hearing on 29 March and 2 April 2019, his application was dismissed by Chow J on 8 April 2019: [2019] HKCFI 910.  The applicant served a notice of appeal on 7 May 2019 (which the respondents accepted to have been served within time), but was late in setting down the appeal for hearing. His application made to Chow J to extend time was dismissed on 5 September 2019 on the ground that the Court of First Instance had no power to extend time for setting down an appeal and also that the intended appeal did not have reasonable prospects of success: [2019] HKCFI 2174.  On 22 November 2019, Lam VP extended the relevant time under Order 59 rule 5(1) of the Rules of the High Court (Cap 4A).  This is the appeal we determine in this judgment.

The second application for a writ of habeas corpus

25.  The grounds for the applicant’s second application for a writ of habeas corpus in HCAL 855/2019 are to be found in a 30‑page document dated 18 January 2019 with the title “Submission”, attached to the applicant’s affirmation dated 15 February 2019.  The principal grounds were summarised by Chow J in his Decision dated 8 April 2019[7] as follows:

“ (1) The Request for Surrender was not produced before the Court of Committal, such that –

(a) the Court of Committal could not and did not determine whether the Request for Surrender was issued by a proper authority;

(b) the Court of Committal’s decision to make the Committal Order is Wednesbury unreasonable, in that the court did not ask for or obtain the Request for Surrender;

(c) the Provisional Arrest Warrants were terminated by reasons of the non‑production of the Request for Surrender;

(d) there has been a breach of Article 10 of the Hong Kong Bill of Rights by reason of the failure to produce the Request for Surrender;

(e) the Request for Surrender has not [been] properly authenticated; and

(f) as the Request for Surrender has not been produced before the Court of Committal, the name of the fugitive on the request cannot be ascertained.

(2) Some of the affidavits produced by the Indian authorities as part of the supporting documents did not follow the provisions of the Oath[s] and Declaration[s] Ordinance, Cap 11, and are therefore invalid, and the Court of Committal erred in accepting those documents as evidence in support of the finding of a prima facie case against the Applicant.

(3) The Applicant may be sentenced to death if he were to be surrendered to India and found guilty of the drugs related offences alleged against him.

(4) The confessions made by the Applicant to the Indian authorities were wrongfully admitted into evidence in the committal proceedings.”

26.  As to the applicant’s complaints relating to the non‑production of the request for surrender, Chow J held that the documents required to be produced to the court of committal and authenticated are the “supporting documents” under section 10(6) of the FOO and do not include the request for surrender.[8]

27.  Chow J rejected the applicant’s complaint that some of the affidavits produced by the Indian authorities as part of the supporting documents were not made in accordance with the Oaths and Declarations Ordinance (Cap 11), holding that the governing provision is section 23 of the FOO and that there is no requirement for the supporting documents to be in the form of an affidavit or affirmation.[9]

28.  Chow J also rejected the applicant’s argument that he might be sentenced to death if surrendered to India, as there was evidence in the form of an affidavit made by the Indian prosecutor that the maximum penalty for the offences alleged against the applicant is 20 years’ imprisonment.[10]  Further, the question of whether a person should not be extradited because he may face the death penalty is a matter for the Chief Executive under section 13(5) of the FOO, not a ground preventing committal.[11]

29.  Finally, in relation to the applicant’s complaint that his confessions to the Indian authorities were wrongly admitted into evidence in the committal proceedings, Chow J pointed out that this was a ground relied upon before Au J and rejected by his Lordship.[12]

30.  Accordingly, the applicant’s second application for a writ of habeas corpus was dismissed.

This appeal

31.  The grounds of the applicant’s appeal against Chow J’s decision are set out in his 40‑page “Perfected Grounds of Appeal” dated 1 December 2019 attached to his affirmation of 8 January 2020 filed in this appeal.  The applicant also lodged a skeleton argument dated 4 December 2020.  In addition, at the hearing of the appeal, the applicant submitted an 11‑page document headed “Submission” being his written submissions in reply to the respondents’ written submissions, and a 39‑page document headed “Speaking Notes” being his further submissions for the appeal. There being no objection from Mr Hoe, who appeared for the respondents, to the documents being read, we indicated that we would take them as the applicant’s submissions for this appeal with the caveat that anything therein not properly within the scope of this appeal would be ignored.

32.  The 6 grounds of appeal set out in the Perfected Grounds of Appeal may be broadly listed as follows:

(1)  there was non‑compliance with section 6(1)(a) and (b) of FOO, and as the request for surrender was not produced the court could not determine whether the request was properly issued and transmitted;

(2)  there was a failure by the prosecution to comply with their duty of disclosure in failing to disclose the request for surrender;

(3)  as the request for surrender was not produced to the court of committal within 60 days, the applicant’s provisional arrest was terminated;

(4)  as the request for surrender was not authenticated, it was not admissible in proceedings under the FOO;

(5)  the applicant’s confession statements were inadmissible under Indian law and Hong Kong Law, and without them there was no sufficient evidence to raise a prima facie case for committal; and

(6)  the Magistrate’s omission to require the production of the request for surrender was Wednesbury unreasonable.

33.  There is an additional point raised in the applicant’s skeleton argument dated 4 December 2020, namely, that the name of the fugitive subject to the request for surrender was not proved, as the request for surrender was not produced to the Magistrate.

34.  We should mention that at the end of his grounds of appeal, the applicant refers to section 82 of the Criminal Procedure Ordinance (Cap 221) and submits that he has a right of appeal without leave of this Court as his grounds are based on points of law alone.  The applicant is mistaken.  His appeal is not an appeal against conviction brought under section 82, but an appeal against the refusal of a writ of habeas corpus, which lies as of right to the Court of Appeal under section 24 of the High Court Ordinance (Cap 4).

35.  On an application for a writ of habeas corpus, the question for the court is whether the applicant is being lawfully detained.  The court does not sit in appeal from the court of committal, but exercises a review function on Wednesbury principles.  As far as the underlying evidence against the applicant is concerned, the court only examines it (if at all) to determine whether it was such that a reasonable magistrate, properly directing himself in law, could commit: Fung Chuen-kan & another v Government of the United States of America [1994] 1 HKLR 163, 171. If the proper procedures have been followed and the evidence meets the requisite standard, there is no discretion for the court of committal, nor any discretion for the court adjudicating on the application for a writ of habeas corpus or, on appeal, for this Court.  If the applicant’s legal grounds fail, his plea for mercy made at the end of his Speaking Notes is not a proper basis for any different conclusion.

Ground 1: Non‑compliance with section 6(1)(a) and (b) of FOO

36.  The applicant contends that section 6(1) requires the Magistrate, before making an order for his committal, to determine (a) whether there was a valid request for surrender made by a recognised diplomatic or consular representative or other approved person, and (b) whether the request had been transmitted through the diplomatic channel or some other approved channel.  The applicant contends that since the request for surrender was never produced to the Magistrate in the present case, the Magistrate failed to comply with section 6(1) and the committal order was therefore unlawful.  This point was not taken on behalf of the applicant in the first habeas corpus application.

37.  In In re Chuen Sau‑kam [1990] 1 HKLR 23, an argument was also raised that it had not been proved, and the magistrate erred in omitting to find, that the request for extradition had been received within 60 days as was the time limit in the treaty in question.  Mayo J, dismissing the application for a writ of habeas corpus, held that the magistrate was entitled to rely on the recitals contained in the Governor’s order for the arrest of the applicant.  He referred to the English decision of R v Governor of Pentonville Prison, ex parte Budlong [1980] 1 All ER 701 and quoted (at pp 29J to 31G) certain passages from the judgment of Griffiths J in that case including the following:

“ … It is submitted that before the magistrate can begin to consider the evidence in support of the application for an extradition warrant he must have all the necessary ingredients to establish the English offence formally set out in some documents; and as there was no formal document in this case that alleged the burglars entered ‘as trespassers’ the magistrate should have refused to consider the matter further because trespass is an essential element of the English crime of burglary (see s 9 of the Theft Act 1968).

In order to examine this submission it is necessary to consider the steps by which extradition is obtained to see what formal documents are required to be placed before the magistrate. The first step is the request for extradition. This is through diplomatic channels and the material that must accompany the request is set out in Article VII of the extradition treaty between the two governments, given statutory force by Order in Council.

This is the material on which the legal advisers in the Home Office will consider whether they should advise the Secretary of State to take the next step in the extradition procedure, which is to refer the request to a metropolitan magistrate pursuant to s 7 of the Extradition Act 1870 …

When the magistrate receives the order from the Secretary of State, it is his duty to enquire into the evidence and, if sufficient, to issue his warrant as plainly appears from the terms of ss 8 and 10. …

The form of the Secretary of State’s order is prescribed by s 20 which provides:

‘ The forms set forth in the second schedule to this Act, or forms as near thereto as circumstances admit, may be used in all matters to which such forms refer, and in the case of a British possession may be so used, mutatis mutandis, and when used shall be deemed to be valid and sufficient in law.’

The ‘Form of Order of Secretary of State to the Police Magistrate’ contained in Sch 2 requires the Secretary of State to do no more than insert the name of the crime for which extradition is asked. The order in the present case is in the form prescribed by Sch 2 and names the crime as burglary. As such it is deemed to be valid and sufficient in law by s 20.

     The only other document of a formal nature that is required to be before the magistrate is the foreign warrant authorising the arrest of the criminal.  It cannot have been intended that this foreign warrant should set out all the ingredients of the English offence for, as Stephen J said in R v Jacobi and Hiller ‘if it were necessary for the warrant to set forth precisely the crime… every magistrate [in a foreign country] who issued a warrant…would have to be acquainted with the law of England’.  Such an oppressive requirement would, of course, make extradition unworkable.  There is nothing in the treaty that requires any other formal document to be before the magistrate and no authority has been cited to show that extradition has ever been refused on this ground.  I am quite satisfied that in extradition proceedings there is no requirement for any formal documents to be before the magistrate other than the order of the Secretary of State and the warrant of arrest, neither of which, for the reasons I have given, are required to set out all the particulars of the English offence.  It is to the evidence that the magistrate is directed to look to see whether there are sufficient facts established to constitute an offence contrary to English law and not to any formal document.  I am glad to find that this is so, for it would be deplorable if the technicalities of English procedure were introduced to thwart an otherwise proper request for extradition.”

Mayo J said he was satisfied this was a correct statement of the law, and held that the applicant had no right to insist upon the formal production of the request for extradition (see p 31H).

38.  In re Chuen Sau‑kam was a case decided under the (UK) Extradition Act 1870, as applied to Hong Kong at that time.  The present case is governed by the FOO, which was enacted in April 1997, but the procedures are not fundamentally different. 

39.  Section 6 of the FOO has been set out in §9 above.  It can be seen from section 6(2) that it is the Chief Executive who, upon receipt of the request for surrender through the proper channel, acts on it by deciding whether to issue an “authority to proceed”, which is akin in effect to the order of the secretary of state referred to in ex parte Budlong.  In the present case, the authority to proceed was placed before the Magistrate and read as follows:

“ A request for surrender having been received from the Republic of India for the surrender of XIE Jing Feng, also known as Richard, Richard XIE and David CHOW who is wanted in the said place for prosecution in respect of the following offences:-

(i) offences against the law relating to dangerous drugs including narcotics, psychotropic substances, precursors and essential chemicals used in the illegal manufacture of narcotics and psychotropic substances;

(ii) offences relating to unlawful escape from custody; and

(iii) conspiracy to commit the above offences.

I hereby order that the said person be dealt with under Part 2 of the Fugitive Offenders Ordinance (Cap. 503).”

40.  Thereafter it fell to the Magistrate to deal with the person under section 10 of the FOO.  As the court of committal, he does not have a general supervisory function over the extradition procedures.  His role and powers are defined and limited by the provisions of the FOO.  In particular, under section 10(6)(b), the court of committal “shall” commit the person to custody if it is satisfied of the matters referred to therein, including that the “supporting documents”in relation to the offence have been produced and are duly authenticated: section 10(6)(b)(ii).  The “supporting documents”are defined in section 2(1) to mean, unless the context otherwise requires:

“ (a) in relation to an offence in respect of which a person is wanted for prosecution—

(i) a warrant of arrest (or a copy thereof) issued in the prescribed place which has made the request for surrender concerned; and

(ii) other documents which provide evidence of—

(A) the offence;

(B) the penalty which may be imposed in respect of the offence; and

(C) the conduct constituting the offence;

(b) in relation to an offence in respect of which a person is wanted for the imposition or enforcement of a sentence, documents which provide evidence of—

(i) the offence;

(ii) the penalty which may be imposed in respect of the offence;

(iii) the conduct constituting the offence;

(iv) the conviction;

(v) the sentence imposed or the intention to impose a sentence; and

(vi) the extent to which a sentence imposed has not been carried out.”

41.  Plainly the request for surrender does not form part of the “supporting documents” referred to in section 10(6)(b)(ii).  The request is a document transmitted through diplomatic or some other approved channel to the Chief Executive.  The authority for the court of committal to commit the person sought comes from the authority to proceed issued by the Chief Executive, not from the request.  The applicant’s submission that an authority to proceed can only be issued by the Chief Executive after the court of committal has determined that a request for surrender has been properly made and transmitted turns the matter upside down.  It is no part of the court of committal’s function to determine whether there was a request for surrender made by a recognised or approved person through diplomatic or other approved channels.  There is, to be sure, nothing to prevent the request for surrender from being placed in evidence before the court of committal, but in our view nothing in the legislative scheme requires it to be produced to the court of committal before it carries out its functions under section 10(6).  Under the FOO, just as under the Extradition Acts 1870-1935, the magistrate, sitting as the court of committal, is not required to have regard to the request for surrender.

42.  The applicant relies on two sentences at p 30C of Chuen Sau‑kam quoted above, namely, “In order to examine this submission it is necessary to consider the steps by which extradition is obtained to see what formal documents are required to be placed before the magistrate.  The first step is the request for extradition”.  He submits that Mayo J in substance held that there was a legal requirement to produce the request for surrender to the court of committal as the first step in extradition procedure.

43.  Those sentences are actually taken from ex parte Budlong.  We agree with the respondents’ submission that the applicant has misread them.  There Griffiths J was summarising the “steps by which extradition is obtained” in order “to see what formal documents are required to be placed before the magistrate”.  The fact that the request for extradition was the first step — made through diplomatic channels — does not mean that it was a document required to be placed before the magistrate.  In fact, as can be seen from a later passage quoted above, his Lordship stated in no uncertain terms that there was “no requirement for any formal documents to be before the magistrate other than the order of the Secretary of State and the warrant of arrest …”.

44.  Nor does the applicant’s reliance on the case of Ho Man Kong v Superintendent of Lai Chi Kok Reception Centre & another (HCAL 17/2011, 28 July 2011) assist him.  It was a case in which the request for surrender was placed before the magistrate (see §16), but it provides no support for the contention that the request must be produced to the magistrate.  In fact, at §21 of his judgment, Wright J also set out the last paragraph in the quotation from ex parte Budlong at §37 above, which stated that the only formal documents to be placed before the magistrate were the order of the Secretary of State and the warrant of arrest.

Ground 2: Failure in duty of disclosure by prosecution counsel

45.  The applicant, relying on certain passages in HKSAR v Lee Ming Tee & another (2003) 6 HKCFAR 336 at §§140, 143 and 153 relating to the general duty of disclosure on the part of the prosecution in criminal proceedings, submitted that the respondents had a duty to disclose the request for surrender to the court of committal as well as to the court in the habeas corpus proceedings, and that its non‑production breached the legal safeguards for the applicant’s rights.  This ground was not taken by the applicant in the first habeas corpus application, or indeed before Chow J.

46.  We do not accept the applicant’s submission.  It has been held that the general duty of disclosure applicable to the prosecution does not apply to require the requesting State in extradition proceedings to make disclosure of what would be called “unused materials” in ordinary criminal proceedings: Re Thongchai Sanguandikul [1994] 1 HKCLR 1, 8-10;[13] Re Osman’s application (unreported, QBD, 28 February 1992; noted in [1992] Crim LR 741).  In any event, as explained above, the request for surrender is not a document required to be produced to the court of committal.  Nor is there any duty on the respondents to produce it in the habeas corpus proceedings.

47.  The applicant further submits that this Court has power under section 83V(1)(a) of the Criminal Procedure Ordinance to order “the production of any document, exhibit or other thing connected with the proceedings, the production of which appears to it necessary for the determination of the case” and a similar power under section 41 of the High Court Ordinance, and should in this case order the respondents to produce a copy of the request for surrender and a copy of the certificate from the Central People’s Government under section 6(3) of the FOO.

48.  Section 83V(1)(a) concerns the Court of Appeal’s power to order the production of documents, exhibits or other things for the purposes of Part IV of that Ordinance.  The present appeal is not a matter brought under that Part or that Ordinance at all.  The applicant’s reliance on that section is misconceived.  As to section 41 of the High Court Ordinance, this Court has already explained in its judgment in CAMP 27/2019 dated 14 May 2020[14] that section 41 only confers powers on the Court of First Instance and regulates the production of documents prior to the commencement of proceedings.  That provision has no relevance to this appeal.

Ground 3: Termination of provisional arrest

49.  The applicant contends that Article 10(3) of the Agreement requires the request for surrender to be received within 60 days of his provisional arrest on 21 March 2015.  He submits that the request for surrender was not admitted into evidence on or before 20 May 2015 and no authority to proceed was issued on or before that date, and therefore that his provisional arrest had been terminated and the Magistrate did not have jurisdiction to commit him.

50.  In our view, this ground is objectionable because it had been raised in the applicant’s first application for habeas corpus and rejected by Au J in his judgment dated 13 February 2017 (at §§23-30), and also by the Court of Appeal in their decision dated 14 May 2020 refusing to extend time for appeal from Au J (at §§46-48).  By virtue of section 23(1) of the High Court Ordinance (quoted in §67 below), it is not open to the applicant to raise the same ground again in his second application.

51.  Further and in any event, there is no merit in the argument, since there was clear evidence that the request for surrender had been received on 17 May 2015, before the expiration of the 60 days. As Au J said:

“ 27. … at the hearing on 18 May 2015, Mr Hoe (then acting for the Government of India) expressly made it clear to the magistrate that India delivered and transmitted the request for surrender on 17 May 2015, and that that was made within 60 days of the applicant’s arrest. This was not challenged or queried by the applicant’s then counsel.

28.  Further, this fact that the Government of India made the request for surrender on 17 May 2015 is further confirmed on oath at paragraph 13 of Mr Close’s affirmation filed for the present purposes.”

52.  At the hearing before us the applicant asserted that the affirmation of Mr Close had not been disclosed or filed in the proceedings before Au J.  This is unfounded and incorrect.  As indicated to the parties at the hearing, we have since inspected the court file of HCAL 223/2015, which shows that that affirmation was filed on 22 December 2015.  In any event, having exhausted all avenues of appeal, the applicant has no basis to challenge the decision of Au J.

Ground 4: Request for surrender not authenticated

53.  Section 23(1) and (2) of the FOO provides:

“ 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.”

54.  The applicant contends that the request for surrender is an “other document” required to be authenticated under section 23(1) and, not having been so authenticated, is inadmissible.  As a result, the order of committal was unlawful.  This is, again, not a ground run in the first application for a writ of habeas corpus.

55.  The applicant relies on See Cherk Ching v Superintendent of Lai Chi Kok Reception Centre & another [2005] 4 HKLRD 105.  There, at §80, Hartmann J explained that authentication provides an assurance that the case presented is genuine and has been compiled by recognised officers in the requesting state who have done so in accordance with the law, practice and procedures of that state.  In our view this provides no assistance to the applicant.  Hartmann J was dealing with the question of authentication of the evidence relied upon for establishing a prima facie case in respect of the alleged offences.  It follows from our conclusion above that the request for surrender was not part of the documents required to be produced before the court of committal that this ground is also to be rejected.

Ground 5: Inadmissibility of confessions statements

56.  The applicant refers to section 164 of the (Indian) Code of Criminal Procedure 1973 which governs the recording by a Metropolitan Magistrate or Judicial Magistrate of confessions and statements of a person, and also sections 25 and 26 of the Indian Evidence Act 1872, which provide:

“ 25. No confession made to a police‑officer, shall be proved as against a person accused of any offence.

26. No confession made by any person whilst he is in the custody of a police‑officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.”

The applicant contends that by virtue of these provisions, the two confession statements taken by the Indian police from him dated 21 and 24 November 2008 are not admissible under the laws of India.

57.  The applicant contends that the two confession statements are also inadmissible under Hong Kong law because Article 11(2)(g) of the Hong Kong Bill of Rights recognises a person’s right not to be compelled to testify against himself or to confess guilt.  He also relies on sections 10 and 22(2) of the Evidence Ordinance (Cap 8) which provide:

“ 10. Nothing in this Ordinance shall render any person who in any criminal proceedings is charged with an indictable offence or any offence punishable on summary conviction compellable to give evidence for or against himself, or shall render any person in any proceedings compellable to answer any question tending to criminate himself.”

“ 22(2) A statement made in connexion with any criminal proceedings or with any investigation relating or leading to any criminal proceedings shall not be admissible under this section.”

58.  The applicant further relies on HKSAR v Lee Ming Tee & another (2001) 4 HKCFAR 133 at p 171E‑G for the common law privilege against self‑incrimination, and at p 167A‑D for the common law rule that a confession is not admissible in evidence unless the prosecution establish that it was voluntary.  He maintains that he only made the confession statements because he had been brutally beaten and ill‑treated by the officers of the Narcotics Control Bureau. He submits that the respondents have not established that the two confession statements were voluntary, and that they are therefore also inadmissible under the laws of Hong Kong.  Without them, the applicant submits, the other evidence would not be sufficient to warrant his committal for trial in Hong Kong had the offences been committed here.  Having regard to section 10(6)(b)(iii) of the FOO, the Magistrate should have refused to commit the applicant. Accordingly, the order of committal was not lawfully made.

59.  As far as the alleged inadmissibility of the confession statements under Indian law is concerned, this ground is objectionable as being the same as that raised before and rejected by Au J in his judgment at §§31‑41.  In particular, Au J considered the argument based on sections 25 and 26 of the Indian Evidence Act 1872 and held that under section 10(6)(b)(iii) of the FOO, the court of committal needs only to be satisfied that the evidence presented by the requesting State would support a prima facie case in accordance with Hong Kong law, as was common ground accepted by the Court of Appeal in Ho Man Kong v Superintendent of Lai Chi Kok Reception Centre [2012] 5 HKLRD 329 at §§11-13.  It is not open to the applicant to re‑run this point before Chow J or this Court. 

60.  In any event, for the reasons stated by Au J, the point is not valid.  The applicant relies on Attorney General v Lui Kin Hong Jerry (CACV 125/1996, 13 December 1996), a case about a request from Hong Kong to the United States for extradition of a suspect.  The applicant prays in aid certain passages where Sears J said it was unfair for the Hong Kong Government to have sent certain materials inadmissible under Hong Kong law to the United States in support of the request for extradition.  This case provides no assistance to the applicant.  The first instance decision of Sears J was reversed by the Court of Appeal, which held that it was a matter for the United States courts whether to admit those materials and what use to make of them.

61.  As regards the alleged inadmissibility of the confessions under Hong Kong law, the point was as far as we can see not taken in the first habeas corpus application.  We note that there is direct evidence within the supporting documents, in the form of a supplemental affidavit by Mr Sanjay Patel, an Ex‑Intelligence Officer of the Narcotics Control Bureau at Ahmadabad, that the two confession statements were made voluntarily in his presence and that the applicant had been informed of his rights before he wrote the confessions himself.  That evidence was unchallenged in the committal proceedings by the applicant who was legally represented throughout in the Eastern Magistrates’ Courts. 

62.  In these circumstances, the court of committal is not required to hold a voir dire to rule on the voluntariness of the applicant’s confession statements.  In our opinion, what was stated by the Ontario Court, Provincial Division, in Re Commonwealth of Australia and Morgan (1993) 81 CCC (3d) 328 at 337‑338 as follows, based on an extradition scheme which we apprehend is not unlike ours, is equally applicable here:

“ … If, as the prisoner submits, the requesting state must prove voluntariness beyond a reasonable doubt, it follows inexorably that all relevant witnesses will have to be transported to Canada from the requesting state — which in the case at bar is, literally, halfway across the world. Conflicts of credibility could be resolved in no other way.

Such a result would transform a s. 11 hearing into a trial proceeding.  In Schmidt v. The Queen (1987), 33 C.C.C. (3d) 193 (S.C.C.), La Forest J. stated at p. 209, in the context of an extradition hearing, that ‘[i]t must be emphasized that this hearing is not a trial and no attempt should be made to make it one.  The trial, when held, will be in the foreign country according to its laws for an alleged crime committed there …’  In my view, those words have equal application to a hearing under s. 11 of the Fugitive Offenders Act.  A requirement that the requesting state establish voluntariness beyond a reasonable doubt would import into a s. 11 hearing procedures and issues which ought to be reserved for the courts in the jurisdiction in which the trial is to be held.”

63.  It seems to us that this approach is entirely consistent with the general principles governing the function of the court of committal.  If certain evidence is riddled with inconsistencies and contradictions, the court would be justified in rejecting it altogether.  But short of this, the court of committal does not normally enter into the question of the reliability of witnesses and the question of whether the evidence tendered is true and accurate: Re Chong Bing Keung [2000] 2 HKLRD 561, 565, 569; See Cherk Ching v Superintendent of Lai Chi Kok Reception Centre & another, at §79.  Accordingly, the objection based on inadmissibility of the confession statements under Hong Kong law also fails.

Ground 6: Irrationality and Wednesbury unreasonableness

64.  The applicant contends that the Magistrate ought to have ordered the respondents to produce a copy of the request for surrender and that his failure to do so was Wednesbury unreasonable.  He repeats under this ground his submission based on In re Chuen Sau‑kam.  Like the related Grounds 1, 2 and 4 above, this point was not raised in the first habeas corpus application.

65.  We have explained above that the request for surrender is not a document required to be produced to the court of committal. The present contention adds nothing of substance to Grounds 1, 2 and 4 which we have rejected.

Identity of person sought

66.  As to the name of the person whose surrender is sought, the applicant’s name appeared on the certificate of authentication annexed to the supporting documents.  A photograph of the applicant taken after his arrest in Hong Kong had been placed before the Indian witnesses who identified him as the person for which surrender is sought.  There is no merit in the contention that the name of the fugitive was not proved because the request for surrender was not produced.

Abuse of process

67.  The above conclusions are sufficient to dispose of the appeal.  But the respondents have gone further and submitted that these second habeas corpus proceedings amount to an abuse of the process of the court.  There are two rules or principles which are relevant in this context, one statutory and one at common law.  The first is to be found in section 23(1) of the High Court Ordinance, which provides:

“ Notwithstanding anything in any law or rule of court, where an application for habeas corpus has been made by or in respect of any person, no such application shall again be made to the Court of First Instance or any judge thereof by or in respect of that person on the same grounds, unless fresh evidence is adduced in support of the application.”

68.  This provision is similar to section 14(2) of the (UK) Administration of Justice Act 1960 which was considered in R v Governor of Pentonville Prison, ex parte Tarling [1979] 1 WLR 1417 at 1423D, where the phrase “fresh evidence” was construed as meaning:

“ not merely evidence additional to or different from the evidence before the court on the first occasion, but evidence which the applicant could not have put forward on the first application, or which he could not then reasonably be expected to have put forward.”

69.  The second principle may also be found in that case, where it was stated (at 1422H-1423B):

“ … it is clear to the court that an applicant for habeas corpus is required to put forward on his initial application the whole of the case which is then fairly available to him. He is not free to advance an application on one ground, and to keep back a separate ground of application as a basis for a second or renewed application to the court.

The true doctrine of estoppel known as res judicata does not apply to the decision of this court on an application for habeas corpus …  There is, however, a wider sense in which the doctrine of res judicata may be applicable, whereby it becomes an abuse of process to raise in subsequent proceedings matters which could, and therefore should, have been litigated in earlier proceedings: see the judgment of the Privy Council, Lord Morris, Lord Cross and Lord Kilbrandon, in Yat Tung Investment Co. Ltd. v. Dao Heng Bank Ltd. [1975] A.C. 581.  In our judgment, that principle is applicable to proceedings for habeas corpus, whether under the Act of 1967 or under the general jurisdiction of the court, although, no doubt, the stringency of the application of the principle may be different in cases concerning the liberty of the subject from that in cases concerning such matters as disputes upon property.”

70.  This principle was applied in Hong Kong by Mayo J in In re Law Kin‑man [1993] 1 HKLR 83 where an application for a writ of habeas corpus was dismissed on the ground that the issue in question was one that the applicant could and should have raised in his two earlier applications and that the latest application was therefore an abuse of the process of the court.

71.  There have of course been wider developments of the law on the doctrine of estoppel since ex parte Tarling.  In particular, it has been said that just because a point could have been raised in earlier proceedings does not of itself mean that it should have been: Chiang Lily v Secretary for Justice [2009] 6 HKC 234, §57.  It is also significant to consider whether the other party has been “vexed” or whether the administration of justice is being brought into disrepute: Ko Hon Yue v Chiu Pik Yuk, the wife and intended administratrix of Liu Ching Leung, deceased & others (2012) 15 HKCFAR 72, §83(3) & (4). 

72.  In our view, while it is right that the courts be vigilant in relation to the rights of the individual, especially when the liberty of the subject is at stake, it is equally necessary for the court to be astute in protecting from abuse its own processes as well as the provision in section 12(2) and (10) of the FOO that a person committed shall not be surrendered so long as proceedings on an application for habeas corpus (including appeals therefrom) are pending.  Thus it has been held that embarking on a deliberate course of conduct involving repeated applications for writs of habeas corpus and designed to use the machinery of the courts as a way of preventing one’s extradition is an abuse of process of the court: R v Governor of Brixton Prison & another, ex parte Osman (No 4) [1992] 1 All ER 579, 594h-i.  On the other hand, it has been said that where an applicant had failed to rely on a particular ground because of inadvertence, error of judgment or even incompetence on the part of his legal representative (see In re Yeung Yan‑chi [1996] 2 HKLR 309, 312), or because he had “follow[ed] an arguable though erroneous legal path as recommended by his advisers” (see R v Governor of Brixton Prison, ex parte Osman (No 3) [1992] 1 WLR 36 at 44-45), it would not necessarily be an abuse of process for him to seek to rely on the new ground at a later stage.

73.  In the present case, the points raised by the applicant in the application before Chow J or on this appeal are either grounds raised and rejected in the first application (and therefore barred by section 23), or grounds that the applicant could have raised there.  Re‑running the same grounds in the absence of any fresh evidence seems to us to be a clear abuse of process.  As to the points not raised before, they were grounds available to the applicant based on the information in his possession.  In particular, if the production of the request for surrender was, as the applicant contends, fundamental and essential to the committal proceedings, he could properly be expected to have raised the related points at the outset.  Yet he has failed to provide any satisfactory explanation to justify not raising them before: c.f. In re Law Kin‑man, p 85.  The only excuse given was that he was legally represented in the first application but has since been acting in person.  But this in itself is not an exonerating circumstance. Instead, it suggests the applicant is now running points which his former legal representatives, having the same information, did not consider viable.  In these circumstances, even applying the doctrine of abuse with less stringency than in ordinary cases and without inferring that the new points were deliberately kept back for a second application, we consider the appeal is also an abuse as far as those points are concerned.

Conclusion

74.  For all the reasons given above, the appeal is dismissed with costs to the respondents.