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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)
____________________
| BETWEEN |
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| XIE JING FENG |
Applicant |
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and |
| SUPERINTENDENT OF LAI CHI KOK RECEPTION CENTRE |
1st Respondent |
| GOVERNMENT OF THE REPUBLIC OF INDIA |
2nd Respondent |
____________________
Before: Hon Lam VP and McWalters JA in Court
Date of Written Submissions: 14 February, 17 September, 25 October, 6 November, 23 December 2019, 13 January and 16 January 2020
Date of Judgment: 14 May 2020
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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” (“1st Submission”)[1], (b) a 22-page document entitled “Submission Appeal” (“2nd Submission”)[2], (c) a 9-page document entitled “Submission Appeal 1” (“3rd Submission”)[3], and (d) a 9-page document entitled “Submission Oath” (“4th Submission”)[4].
4. Further, an 18-page document dated 17 September 2019 entitled “Affirmation Appeal” (“5th 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 (“6th 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 (“7th 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 (“8th Submission”) and another of 12 pages (“9th 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 1st and 2nd 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 2nd 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...
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