Xie Jing Feng v HKSAR
Court of First Instance
Constitutional and Administrative Law List No 855 of 2019
Anderson Chow J
29 March, 2, 8 April 2019

Human rights — habeas corpus — request for surrender of fugitive offender to foreign jurisdiction — documents to be produced to committal court — authentication of affidavits relied upon by requesting state — relevance of death penalty in requesting state’s jurisdiction

The applicant, X, was a fugitive from India where he was wanted for drug-related offences and offences of escaping from lawful custody. He was arrested in Hong Kong pursuant to two provisional arrest warrants. India requested his surrender. The Acting Chief Executive issued an authority to proceed. The Magistrate committed him to custody to await the Chief Executive’s decision as to the requested surrender. X then applied for habeas corpus. It was refused by the Judge. An order for surrender was made (the “Order”) by the Chief Executive. X applied for leave to apply for judicial review of the Order. That application for leave was adjourned for argument. X sought an extension of time to appeal against the Judge’s refusal of habeas corpus. The Judge refused the extension sought. X then applied to the Court of Appeal for an extension of time to appeal, which was pending. X took out a second application for habeas corpus before a different Judge, doing so on the following principal grounds: (1) the Request for Surrender (the “Request”) was not produced, so that (a) the Committal Court could not and did not determine if the Request was issued by a proper authority; (b) the decision to commit was Wednesbury unreasonable; (c) the provisional arrest warrants were terminated by such non-production; (d) art.10 of the Hong Kong Bill of Rights had been breached; (e) the Request had not been properly authenticated; and (f) the fugitive’s name on the Request could not be ascertained; (2) some of the Indian authorities’ affidavits were invalid for not following the provisions of the Oaths and Declarations Ordinance (Cap. 11) and the Committal Court erred in accepting those documents as evidence when finding a prima facie case against X; (3) X might be sentenced to death if surrendered to India and found guilty of some of the drug-related offences; (4) confessions made by X to the Indian authorities were wrongly admitted into evidence in the committal proceedings.

Held, dismissing the second application for habeas corpus, that:

1) The Request was not one of the documents that had to be produced and authenticated for committal proceedings under the Fugitive Offenders Ordinance (Cap. 503) (In re Chuen Sau-kam [1990] 1 HKLR 23 applied). (See paras. 15–19.)

2) As for the affidavits in question, they were properly authenticated under the relevant legislation. (See paras. 21–22.)

3) There was evidence before the Committal Court showing that the maximum penalty upon conviction in India of the drug-related offences would be 20 years’ imprisonment. In any event, whether a person ought not be surrendered to a foreign jurisdiction because he might be sentenced to death there was a matter for the Chief Executive when deciding whether to make an order for surrender. A committal court was not prohibited from making a committal order where the relevant offence was punishable with death in the requesting jurisdiction. (See paras. 23–25.)

4) The argument as to the admissibility of the confessions failed for the reasons given by the Judge when refusing the first habeas corpus application. (See para. 26.)

Application

This was the second application for a writ of habeas corpus in respect of the applicant’s detention after his first application was dismissed by Thomas Au J on 13 February 2017. The facts are set out in the judgment.

Editorial Note: The number of points taken by the applicant enabled the Court to deal with the matter quite extensively, but it should perhaps be borne in mind that the applicant was not legally represented.

Jurisdictions: 

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