This judgment is now reported in [2021] 3 HKLRD 600.

On 16 July 2021, the Court of Appeal ruled that Ramanjit Singh (“Romi”) could be extradited for offences relating to “escape from lawful custody” under the extradition arrangements between Hong Kong and the Republic of India.

The magistrate had refused the application but the decision was overturned on appeal by the Court of First Instance.  This is Romi’s appeal against the CFI decision.

This is an issue as to whether the formalities for extradition have been met and does not involve an inquiry into whether the subject person is guilty of the offence for which his surrender is sought.  Specifically, whether offences in relation to unlawful escape from custody fell within those offences within Art 2(1)(xxxiv) of the Schedule to the Fugitive Offenders (India) Order (Cap 503P) and s 10(6)(b) of the Fugitive Offenders Ordinance (Cap 503).

Art 2(1)(xxxiv) forms part of the list of the descriptions of offences in respect of which surrender can take place.  It reads,

“Any other offences not referred to in the previous items of this paragraph, which are punishable by imprisonment or other form of detention for at least on year or by a more severe penalty and which are also offences for which surrender may be granted in accordance with the laws of both Parties.“

The question before the Court was whether Article 2(1)(xxxiv) was a “catch-all clause”. The contextual and purposive interpretation of Article 2(1)(xxxiv) did not intend the listed offences to be exhaustive. The opening statement “Any other offences not referred to in the previous items of this paragraph” was intended to extend the list of offences to the offences that satisfied the conditions: The offence 1) was punishable by imprisonment for at least one year; 2) was one which surrender may be granted in accordance with the laws of both parties. The Court rejected the contention that Article 2(1)(xxxiv) only covers newly created offences as it relied on the assumption that prior to making the Agreement the parties would have conducted a comprehensive study of all offences in the other jurisdiction. It was held that Article 2(1)(xxxiv) was a “catch-all clause” and the offences pertained were within the reach of Article 2(1).

The Court rejected the application of the principle of doubtful penalisation and the principle of legality when construing Article 2(1)(xxxiv).

As regards the principle of doubtful penalisation, the requirement for the law to be clear before it may be applied in a punitive way was not applicable as the process of extradition by the requested party was largely procedural and without determination of the criminal charges which the person’s surrender to the requesting state was sought nor do they impose a penalty.

As to the principle of legality, the CA dismissed this argument on the grounds that the  fundamental right purportedly engaged was not identified and there was no explanation on how it was violated.

Simon Young acted for the Appellant, instructed by Boase Cohen & Collins.

Wayne Walsh SC, counsel on fiat, acted for the Respondent, leading Ms Dora Si, DPGC(Ag) and Mr Kevin Chan, SGC(Ag), of the DOJ.

The full judgment is available here.