HKCFI 1983
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1064 OF 2023
||COMMISSIONER OF CORRECTIONAL SERVICES
||THE GOVERNMENT OF THE REPUBLIC OF INDIA
||Hon Coleman J in Court
|Date of Hearing:
||4 August 2023
|Date of Judgment:
||25 August 2023
J U D G M E N T
1. By his application, the Applicant applies for a writ of habeas corpus, pursuant to section 22A of the High Court Ordinance Cap 4. The Applicant thereby seeks release from the custody of the 1st respondent Commissioner of Correctional Services (“Commissioner”). The application comes about in the following way.
2. The Applicant is a Hong Kong permanent resident, now 34 years of age. He lives in Hong Kong with his wife and two children. On 25 June 2018, he was arrested pursuant to a warrant issued under section 7(1)(b) of the Fugitive Offenders Ordinance Cap 503 (“FOO”).
3. The Government of India (“GOI”) sought to have the Applicant extradited to India, on the basis of 28 notional Hong Kong offences.
4. By his decision dated 19 November 2019 (“Ruling 1”), the Magistrate (Mr LT Pang) committed the Applicant to custody in relation to 18 of the offences (i.e. Offences 4 to 7, 13, and 16 to 28), pursuant to section 10(6)(b) of the FOO. Part of Ruling 1 was the Magistrate’s rejection of the Applicant’s application (“section 5 application”) made pursuant to section 5 of the FOO.
5. The GOI appealed against the Magistrate’s refusal to commit on Offences 10 to 12. The appeal was heard by the Court of First Instance (“CFI”), and allowed on 10 November 2020. The Applicant then appealed to the Court of Appeal (“CA”), which dismissed his appeal on 16 July 2021. The Applicant’s subsequent application for leave to appeal was dismissed by the Court of Final Appeal on 28 December 2021.
6. Pursuant to the directions of the CFI and the CA, the case was remitted to the Magistrate to decide, according to the opinion of the Court on the question of law, whether the Applicant should be ordered to be committed to custody in respect of Offences 10 to 12.
7. By his decision dated 8 July 2022 (“Ruling 2”), the Magistrate committed the Applicant to custody on Offences 10 and 11, but not 12.
8. There is a 2nd Amended Order of Committal dated 8 July 2022, which lists short offence descriptions relating to the 20 offences for which the Magistrate found sufficient evidence to warrant the Applicant’s committal.
9. The committal to custody is to await the decision of the Chief Executive (“CE”) to surrender the Applicant to India, which request for surrender has been made by the GOI.
10. The application for habeas corpus was issued on 30 June 2023, and is based on 5 Grounds (see below). It can be noted here that it is well-established that on an application for habeas corpus in extradition proceedings, the CFI does not hear an appeal from a decision of the court of committal. Rather, the Court looks at the lawfulness of the detention, which includes looking at whether the magistrate making the committal order has committed any errors of law, or whether his conclusion on the evidence is Wednesbury unreasonable, in the sense that it is a decision which no reasonable magistrate, properly directing himself in law, could have made.
11. I gave directions to deal with what is sometimes a two-step procedure on an application for habeas corpus, but on a rolled-up basis, at a hearing on 4 August 2023. The Applicant was represented by Mr Simon NM Young of Counsel. The Commissioner and the GOI were represented by Mr Wayne Walsh SC (leading Ms Dora Si, Acting Deputy Principal Government Counsel, and Mr Kevin Chan, Acting Senior Government Counsel).
12. At the end of the hearing, I reserved my decision to be handed down later.
13. This is my Judgment.
B. Grounds of Application
14. The first three Grounds of the application relate to the Magistrate’s decision on the section 5 application. Those Grounds are as follows:
Ground 1: The Magistrate misdirected himself in law on the question of the causal link required when considering the Applicant’s application not to be surrendered, made under section 5(1)(c) and (d) of the FOO.
Ground 2: The Magistrate erred in adopting an overly restrictive view of the relevance of the evidence advanced on the Applicant’s behalf in his section 5 application, and consequently failed to take into account relevant and material evidence before him.
Ground 3: The Magistrate erred in taking no account of the material evidence in the Affidavit of Mr Brijinder Singh Sodhi, which exhibited affidavits of Mr Gurwinder Singh, Mr Rajveer Singh and Mr Harcharan Singh (together “New Evidence”), in deciding the Applicant’s section 5 application.
15. The next Ground of the application relates to Offences 10 to 28. It is as follows:
Ground 4: In considering whether the evidence was sufficient to warrant the Applicant’s committal to custody, the Magistrate erred in law in refusing to admit and consider the New Evidence, which was material to the question of evidential sufficiency and not excluded by section 23(4) of the FOO.
16. The last Ground of the application relates only to the committal in relation to Offence 11. It is as follows:
Ground 5: In relation to the remitted proceeding, the Magistrate erred in allowing the GOI to amend the particulars of notional Offences 11 and 12, allowing for a timeframe of the offences to be widened, where the Magistrate lacked the jurisdiction to allow such amendment or should not have allowed the amendment as it would be unfair to the Applicant.
17. Mr Young submits that if Grounds 1, 2 or 3 are successful, it means that the Applicant is currently being detained by a process that has not complied with the law, so that his detention is “without lawful justification” and he must be released (unless there is some other lawful basis for his continued detention). Mr Young further submits that if Grounds 4 and 5 are successful, it means the notional Offences to which those grounds apply can no longer be the basis for the Applicant’s committal to custody, so that the order for committal would need to be further amended to reflect that decision.
C. The Statutory Regime and Applicable Principles
18. It is helpful first to identify the framework for the relevant extradition proceedings, as provided for in the FOO (and relevant subsidiary legislation). Unless the context otherwise makes clear, all references to numbered sections in this Judgment are to the numbered sections in the FOO.
19. The GOI’s request for the surrender of the Applicant was made pursuant to the Agreement for the Surrender of Fugitive Offenders between the Government of Hong Kong and the Republic of India, scheduled to the Fugitive Offenders (India) Order Cap 503P.
20. Under section 4 of the FOO, a person in Hong Kong who is wanted in another place for prosecution in respect of a “relevant offence” against the law of that place may be arrested and surrendered to that place in accordance with the provisions of the FOO.
21. In relation to that, section 6(2) provides that the CE may issue an authority to proceed upon receipt of a request for surrender by a prescribed place and, subject to provisional warrants of arrest, a fugitive shall not be dealt with in accordance with the provisions under the FOO except pursuant to an authority to proceed. There is no dispute in this case relating to the relevant authority.
22. When a fugitive is arrested, he should be brought before a magistrate for committal proceedings under section 10.
23. Section 10 – materially for present purposes – provides as follows:
10. Proceedings for committal
(1) A person arrested pursuant to a warrant under section 7 shall (unless previously discharged under subsection (2)(b) of that section) be brought as soon as practicable before a magistrate.
(2) For the purposes of proceedings under this section, the court of committal shall –
(a) hear the case in the like manner, and have the like jurisdiction and powers, as nearly as may be, including, subject to subsection (5) and section 11(2), power to remand in custody or on bail, as if the person brought before it is charged with an indictable offence committed in Hong Kong;
(b) receive any evidence relevant to the exercise of its jurisdiction under section 5.
(6) Where –
(a) subject to subsection (7), at any time the person arrested informs the court of committal, and whether or not –
(i) an authority to proceed has been issued in respect of him; or
(ii) the court is proceeding under paragraph (b),
that he consents to his surrender to the prescribed place by which the request for surrender concerned was made; or
(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...