Court of Appeal
Coram: Macrae VP, Pang and Zervos JJA
16 July 2021
The Republic of India requested the arrest and surrender of Mr. Singh in respect of a number of criminal charges including “facilitating or permitting the escape of a person from custody” and “offences relating to unlawful escape from custody”. At the committal proceedings, although the Magistrate committed the appellant to custody on certain other offences, he refused to do so in respect of the offences referred to above as he found that these offences did not come within Article 2(1)(xxxiv) of the Schedule to the Fugitive Offenders (India) Order, Cap 503P (FO(I)O) and did not constitute relevant offences in the context of section 10(6)(b) of the Fugitive Offenders Ordinance, Cap 503 (FOO). The Republic of India brought an appeal by case stated against the Magistrate’s decision, which was overturned by a Judge in the Court of First Instance.
The question of law
Wong J in the Court of First Instance had answered the following question of law in the affirmative:
Whether the offence of escape from lawful custody is an offence for which surrender may be granted coming within Article 2(1)(xxxiv) of the Schedule to the Fugitive Offenders (India) Order, Cap 503P, Laws of Hong Kong, and this a relevant offence in the context of section 10(6)(b) of the Fugitive Offenders Ordinance.
Mr. Singh appealed that decision seeking an order that the question of law be answered in the negative and seeking a declaration that the offences relating to unlawful escape from custody are not offences in respect of which an order for surrender could be made.
The Legal Framework of Extradition arrangements with India
In giving the judgement of the Court, Zervos JA said:
“The fundamental imperative of extradition agreements between states is to ensure fugitive offenders are brought to justice….extradition arrangements are entered into with other states as an international treaty based on mutual trust and cooperation, and hence there is a strong public interest in the achievement of the aim of fulfilling international obligations in bringing to justice fugitive offenders accused of serious crime.”
Section 2(2) of the FOO provides that the Indian offence must be punishable with imprisonment for more than 12 months and that the acts or omissions constituting the conduct of the Indian offence should constitute an offence in Hong Kong, coming within a description specified in Schedule 1 of the FOO and punishable with imprisonment for more than 12 months. It was agreed by the parties that one should look at the offences set out in the Agreement for the Surrender of Fugitive Offenders between Hong Kong and the Republic of India signed on 28 June 1997 for the purpose of considering whether an offence is extraditable and is a relevant offence under section 2(2) of the FOO.
Interpretation of Treaties
The Court of Appeal acknowledged that when interpreting treaties what is needed is a broad brush approach, rather than a narrow linguistic approach “seeking a meaning which makes sense in the light of the treaty as a whole, and the purposes which the parties were seeking to achieve, rather than by concentrating exclusively on the language”. Citing a number of English authorities with approval, Zervos JA approved the principle that extradition treaties and statutes should be accorded a broad and generous construction so far as the texts permit, in order to facilitate extradition.
The Court of Appeal unanimously dismissed the appeal stating that as a matter of common sense Article 2(1)(xxxiv) makes it abundantly clear that the particularised offences listed before that Article were not intended as a closed or exhaustive list. As long as the offence is punishable by imprisonment for at least a year, and the offence is one for which surrender may be granted in accordance with the laws of both parties (the dual criminality rule), the offence was covered by Article 2(1)(xxxiv) and is a relevant offence for the purposes of the FOO.
This article by MCS originally appeared in Hong Kong Lawyer, the Official Journal of the Law Society of Hong Kong: Ramanjit Singh V The Government Of The Republic Of India  HKCA 865