New Delhi: When India quietly asked for the provisional arrest of Nirav Modi in Hong Kong in March, it kicked off a lengthy legal process that experts say could last as long as a year.
In early April, the external affairs ministry revealed in parliament that India had submitted a request to China’s Hong Kong Special Administrative Region on March 23 for the provisional arrest of Nirav Deepak Modi.
A legacy of the colonial era, Hong Kong’s legal system is similar to that of the UK. The Fugitive Offenders Ordinance Chapter 503 is the key domestic legislation through which the territory implements its extradition agreements with foreign governments.
Five years ago, Hong Kong’s extradition laws were a cynosure of worldwide interest when Edward Snowden fled there after leaking top-secret American surveillance programmes to the media. The US had also then made a request for his provisional arrest. Hong Kong authorities claimed that they did not get enough information to process the request as per the law of the land, and in the meantime, Snowden could legitimately leave – which he did by boarding a flight to Moscow.
India signed an extradition treaty with Hong Kong on June 28, 1997 – just two days before Britain handed the colony back to China.
Hong Kong successfully processed the one and only Indian request for extradition, which occurred 14 years ago. In 2004, Hong Kong extradited Ashok Tahilram Sadarangani, who was accused of cheating the Bank of Maharashtra and Union Bank of India of Rs 8.5 crore.
Both the judiciary and the executive have separate roles in the extradition process. The courts will have to examine if there is enough proof of the offence to justify the surrender of the fugitive. If the judiciary gives the green light, then the Hong Kong chief executive would have to decide whether or not to go ahead with the extradition.
The Wire spoke to three top lawyers based in Hong Kong to understand the legal process involved in trying to get Modi back to India. However, none of the three was willing to be quoted.
All of them agreed that the judicial phase of the extradition process could take a year or more. One of the initial factors for determining the length of the process will depend on whether Modi contests the extradition request.
“If Nirav Modi does not contest the process he could be returned in a matter of weeks. If he seeks to contest the case on the merits – whether there is a sufficiency of evidence to justify return – it might take six months and then he would have rights of appeal, which might take another year,” said a senior counsel at the Hong Kong Bar Association with experience of extradition cases.
Once the chief executive issues the authority to proceed, the magistrate will have to determine whether the arrested fugitive has committed an extradition offence, supporting documents are sufficient and the evidence is enough for a trial under Hong Kong law.
The committal hearing has to first take place in the magistrates’ court. If committed to custody, the order can then be appealed in the high court. “There is a right to appeal to the Court of Appeal (of the high court), and if leave is granted, to the Court of Final Appeal,” explained another senior member of Hong Kong’s legal community.
While Hong Kong has a high success rate for extradition requests, this is largely due to the fact that the majority of requests are from US, UK and European countries, which are familiar with the process and its requirements of admissible evidence. “I am not aware of a person successfully challenging an extradition request since 1997,” he told The Wire.
Since most extradition requests made to Hong Kong were successful, most fugitive offenders usually voluntarily return, he added.
Agreeing with his colleague in the Bar, the senior HK counsel added that the decision-making process for authorities would be easier if the offence was financial.
One of the restrictions to surrendering a fugitive under Hong Kong law is when the offence may have a “political character”.
“Financial or fraud cases tend not to have complications such as [those that] might arise if the crime in respect of which extradition was sought could be termed ‘political’, e.g. robbing a bank to fund a political party,” he explained.
While the Hong Kong legal eagles The Wire spoke to were not entirely familiar with the nitty-gritty of the alleged Punjab National Bank scam beyond the media reports, it was pointed out that a complex fraud usually ensures that a “lot more work will be required on all sides to explain how a prima facie case is made out”.
India’s lack of familiarity with Hong Kong’s rules of evidence may be a stumbling block, but not insurmountable. “…the International Legal Assistance Unit of the Department of Justice works closely with the requesting state and advises them on what the documentation the requesting state needs to produce in order to satisfy HK’s evidentiary standards,” said the senior lawyer.
Echoing similar views, the senior barrister said that the unit would right now be working with India. “At this stage, it (Mutual Legal Assistance Unit) would have to be sure that the initial paperwork provided by the government of India was in apple-pie order”.
Incidentally, around 80% of the calculated loss arguably occurred in Hong Kong. Allahabad Bank and Axis Bank have almost Rs 6,000 crore exposure due to the letters of undertaking granted by their Hong Kong branches.
According to the senior member of the Hong Kong Bar Association, “if the facts disclose crimes committed in HKSAR, there would likely by an investigation by the police”.
Hong Kong security agencies could start a probe into an allegation of crime committed on the territory, either for the purpose of criminal proceedings or to assist the requesting state, which in this case, is India.
“Whether the person is tried in HK for the alleged offences committed in HK or he is surrendered to the requesting state to be tried there, would be a matter for discussion between the HK authorities and the requesting state’s authorities,” he said.
While a parallel investigation would not hinder the process, it could certainly delay the extradition. “That would push any request from India to the back of the queue,” said the Hong Kong barrister.
The senior lawyer, who has worked in the government, pointed that it was common for extradition crimes to be committed over two or more jurisdictions. If the requested state declined extradition to allow for a domestic trial, the wanted person may be surrendered only after the completion of his sentence.
The decision on whether to initiate prosecution of the fugitive “would depend upon which jurisdiction has the greater public interest in prosecuting the individual, which jurisdiction suffered the most from the alleged crime, where the evidence is, etc.”
Hong Kong’s legal system is already processing a case of an Indian national, Ramanjit Singh Romi, who is said to be the mastermind of the 2016 Nabha jail break.
Romi was among five men arrested for robbery of HK$32 million for staff of a money exchange. It was only after he was taken into custody that an Interpol alert brought India into the loop.
According to the South China Morning Post, India submitted a request for Romi’s extradition, but the processing of the application for surrender will start only after the Hong Kong’s own legal proceedings are completed.
While the normal process is for the chief executive to give a green signal and a magistrate to issue a warrant for the arrest of a fugitive, India has gone for the fast-track method in the case of Modi.
India has sought “provisional arrest” of Modi, which as per HK law means that a magistrate could issue a warrant without first awaiting the nod from the chief executive “in urgent cases”.
The senior counsel claimed that “in almost all cases, in the interest of comity, HK honours the request for provisional arrest”. The Hong Kong barrister also concurred that provisional warrants were common and usually honoured.
On April 12, the Indian external affairs ministry spokesperson Raveesh Kumar stated that the Hong Kong department was “still examining our request for the provisional order of arrest of Nirav Modi and we are still awaiting a response from their side”.
The Hong Kong barrister, who has dealt with high profile extradition cases, felt that the time taken by the authorities to consider the Indian request was a little unexpected. “I am a bit surprised by the fact that the HK government is examining the request for a provisional warrant. Usually, where say the requesting country is say, the USA, such examination at this stage appears to be cursory. That may be because requests from the USA are relatively common”.
But referring to the most-followed case of Snowden, he believed that there “may have been a reluctance to act quickly in that case, and if that were so, there may be other reasons behind it”.
“I would be surprised if such reasons applied in Modi’s case,” he added.
The only possible reason that Hong Kong would have to not follow through with a request for provisional arrest, expounded the senior member of HK’s legal community, was “if there were problems with the request that could not be remedied or whether it was for an offence that was not an extraditable offence under the relevant treaty”.
If Modi is provisionally arrested, then he would be brought before a magistrate, who will fix a period after which he can be released if the chief executive does not provide an authority to proceed.
Under the India-Hong Kong extradition agreement, India will have a period of 60 days after a provisional arrest to obtain the authority of the chief executive to trigger the judicial phase of the extradition process. However, even if the time limit of 60 days lapses, there could be a re-arrest “if the request for his surrender is received subsequently”, as per Article 10(c) of the treaty.
“However, the process itself, once any person has been arrested, cannot be fast-tracked in any significant way,” said the senior barrister.
If both the courts and the executive agree to the extradition, Hong Kong shall “so far as its law allows” hand over seized property, including money, which may serve either as proof of the offence or as being acquired as a result of the offence. Modi had opened three stores of his luxury jewellery brand in Hong Kong.
“Don’t ignore the possibility of civil action restraining banks or others from disposing of Modi’s (or his group’s) assets in Hong Kong,” he said, suggesting the prospect of the plaintiff getting a Mareva injunction that would freeze the defendant’s property in order to prevent it being taken abroad.
The Fugitive Offenders Ordinance also states that the central government in Beijing will have to be notified by Hong Kong if proceedings have been instituted to surrender a person. The central government can legally deny the extradition at that stage on the grounds that “interests of the People’s Republic of China in matters of defence or foreign affairs would be significantly affected”.
The senior barrister noted that there was a “possible emerging issue” that PRC “may begin to want to have its say on such applications as part of what I have called the executive process”.
“Any such decisions of the PRC would not be subject to any kind of effective review by the Hong Kong courts. This lies in a constitutional no man’s land, but is likely not to impact on a case of the present kind,” he added.
The April 9 remarks of the Chinese foreign ministry spokesperson Geng Shuang seemed to indicate that the final decision would be left to the Hong Kong government. “If India has made a relevant request to the Hong Kong SAR, we leave the matter to the Hong Kong SAR and hope that it will follow the basic laws and relevant judicial system agreement with India to deal with the relevant issue,” said Geng.
(With additional inputs from Anuj Srivas)