The Indian government is seeking to bolster the list of charges against a Hong Kong resident who Delhi wants to try for his alleged role in a jailbreak in his native country four years ago.
The fate of Ramanjit Singh, also known as Romi, has remained uncertain ever since Eastern Court last year found there was a prima facie case against him, and ordered his committal while Hong Kong leader Carrie Lam Cheng Yuet-ngor weighs whether to hand him over. No decision has been announced.
Under general extradition requirements, the city’s Fugitive Offenders Ordinance requires a suspect only be tried back home for offences punishable by more than 12 months under the law of the partner country. The offences must also be listed under Schedule 1 of the Hong Kong ordinance and similarly carry a minimum one-year sentence.
Get the latest insights and analysis from our Global Impact newsletter on the big stories originating in China.
Delhi wants to charge Singh, 32, over the jailbreak in the northern Indian state of Punjab, which allowed six criminals to escape, as well as over a series of lesser crimes. An Interpol Red Alert was issued for his provisional arrest.
But a lower Hong Kong court earlier ruled that India’s Fugitive Offenders Order did not include a catch-all provision covering crimes relating to escape from lawful custody, weakening the list of charges he would face if sent home. Delhi is appealing that decision.
Wayne Walsh SC, for the Indian government, said the appeal raised an important point of law on the interpretation of treaty, significant for the present case and those that followed.
If Delhi wins the appeal, the case will be sent back to the magistrate for another round of committal proceedings to assess the evidence and determine whether it was strong enough to bring the escape charges to trial.
Mr Justice Albert Wong Sung-hau of the High Court, who on Tuesday lifted the statutory reporting restrictions against committal proceedings, will deliver his ruling on November 10.
The catch-all provision becomes a catch-nothing provision
Wayne Walsh SC
The Indian government is demanding Singh’s surrender over the two criminal cases stemming from 2016, which they say involves the equivalent of 28 serious offences in Hong Kong.
Singh was accused of stealing a car from his uncle, carrying a revolver without a licence, and possessing fake car plates and forged debit and credit cards. He was arrested by Patiala police in Punjab on June 4, 2016.
But he is also accused of playing an essential role in remotely helping the six inmates escape from a maximum-security prison in Nabha on November 27 that year, after he had jumped bail and fled to Hong Kong.
Singh has been remanded in Hong Kong since February 2018, initially in connection with a local theft – involving more than 450 million yen (US$4.04 million). Prosecutors dropped the charges before the Indian government made a formal request for his surrender in August last year.
He returned to court last Friday, handcuffed and shackled in heavy metal chains under the escort of police and correctional services officers, with stepped-up security inside and around the building.
At the outset of the hearing, defence counsel Professor Simon Young Ngai-man asked for the court’s permission to allow him to “go unfettered” as the chains had “affected his ability to concentrate”.
“This is a rarity to have someone shackled in this manner,” Young said.
But Wong dismissed the application, after Walsh reminded the court that Singh was wanted by Interpol for “very serious offences”.
In the previous ruling last November, Magistrate Pang Leung-ting found there was a prima facie case in 18 of the 28 notional Hong Kong offences to justify the order of committal, relating to the possession of firearms and false instruments, assisting an offender, and conspiracy to pervert the course of justice.
Three of the rejected offences related to escape from lawful custody, which Pang observed were not among the 34 categories of extraditable charges listed in Article 2 of India’s Fugitive Offenders Order.
But Walsh said those escape charges were covered by the catch-all provision in the last category of the article, which referred to “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 one year … and which are also offences for which surrender may be granted in accordance with the laws of both parties”.
Walsh also argued there was evidence to show the offence was extraditable under both Hong Kong and Indian law, complaining that Pang had wrongly adopted an overly literal approach in interpreting the bilateral agreement, ignoring its objective and purpose.
“The catch-all provision becomes a catch-nothing provision,” Walsh said.
He further explained such provisions were present in agreements with other countries, such as the Netherlands and Malaysia, to cater for offences that might be included in the ordinance. It was enacted in 1997, three years after the Indian one was negotiated on the basis of a model agreement that did not include the escape charge.
Young countered the magistrate’s approach and answer were both correct, as the alternative proposed by the Indian government was overly broad.
He argued the disputed provision was meant to cater to legislative change where either party created a new criminal offence and made it extraditable, or when an existing offence was made extraditable.
“It’s not a catch-all or catch-nothing provision,” he said. “It catches what it was intended to catch.”
Young argued that if parties had truly intended for the escape charge to be included, it could have been easily written, especially given it was a very old offence, included in the 1860 Indian penal code.
“That offence is left out,” Young said. “It’s not for the court to say it’s included in a catch-all.”
More from South China Morning Post:
- Hong Kong murder suspect who sparked extradition bill crisis ‘essentially a free man’, admits city’s leader Carrie Lam
- Hong Kong man jailed in Philippines for 40 years over drug charge loses final appeal
- Hong Kong protests: riot-accused social worker goes free as judge rules she has no case to answer
This article India seeks to up charges against Hong Kong resident wanted in connection with 2016 jailbreak first appeared on South China Morning Post