LAM SIU TAI v. THE COMMISSIONER OF CORRECTIONAL SERVICES AND ANOTHER

CACV 25/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 25 OF 2000

(ON APPEAL FROM HCAL NO. 68 OF 1999)

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J U D G M E N T

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Keith JA (giving the judgment of the Court):

Introduction

1. This appeal raises a short but not entirely easy point on the proper construction of the words "any other punishment which could have been awarded in the first instance" in rule 255F(c) of the Prison Rules. All references in this judgment to rules are references to the Prison Rules, and all references to the Commissioner are references to the Commissioner of Correctional Services.

The facts

2. The Applicant is a prison officer. He has attained the rank of Principal Officer. He was charged with a disciplinary offence under the Prison Rules. He denied the charge. Pursuant to rule 245(1), the charge was considered by a Superintendent. The Superintendent found the charge proved. The disciplinary award which the Superintendent made was a fine of $500.00 accompanied by a severe reprimand ("the original punishment").

3. Rule 255D(a) permitted the Applicant to appeal against the finding of guilt. Since the finding had been made by an officer other than the Commissioner, the appeal lay to the Commissioner: see rule 255E(1)(b). However, since the Commissioner (and his deputy) had already been involved in the case, it was thought that the appeal should be determined by someone else. Accordingly, the Commissioner referred the appeal to the Chief Executive. Pursuant to rule 255E(2), the Chief Executive delegated the determination of the appeal to the Secretary for the Civil Service, and in due course the Secretary for the Civil Service confirmed the finding of guilt.

4. The Commissioner's referral of the appeal to the Chief Executive, and the decision of the Secretary for the Civil Service to confirm the finding of guilt, were the first two decisions challenged by the Applicant on an application for judicial review. Cheung J made orders of certiorari quashing both those decisions. There is no appeal from the quashing of those decisions. In addition, Cheung J made an order of mandamus requiring the Commissioner to determine the Applicant's appeal against the finding of guilt. Again, there is no appeal from that order, and no doubt that appeal will be determined by the Commissioner in due course.

5. It is what happened thereafter which is the subject matter of this appeal. Rule 255C(1) empowered the Commissioner to review the original punishment. On that review, he decided to substitute for the original punishment a severe reprimand and a fine of $20,000.00 ("the new punishment"). Rule 255D(b) permitted the Applicant to appeal against the new punishment. Since the new punishment had been awarded by the Commissioner, the appeal lay to the Chief Executive: see rule 255E(1)(a). Pursuant to rule 255E(2), the Chief Executive delegated the determination of that appeal to the Secretary for the Civil Service as well. In due course, the Secretary for the Civil Service decided to substitute for the new punishment a severe reprimand and a fine of $5,000.00 ("the final punishment").

6. The new punishment awarded by the Commissioner and the final punishment awarded by the Secretary for the Civil Service were the other decisions challenged on the Applicant's application for judicial review. Cheung J made orders of certiorari quashing both those decisions as well. These are the orders which are the subject of this appeal. The Commissioner is appealing against the quashing of the new punishment, and the Secretary for the Civil Service is appealing against the quashing of the final punishment. The position at present is that, as a result of the quashing of the new punishment and the final punishment, the original punishment awarded by the Superintendent stands.

The issue of construction

7. The question raised by the appeal relates to the powers of

(a) the Commissioner when he reviews a punishment under rule 255C(1), and

(b) the Chief Executive when he or his delegate (in this case the Secretary for the Civil Service) determines an appeal against a punishment under rule 255E(1).

The Chief Executive's powers on an appeal, and therefore the Secretary for the Civil Service's powers in this case, are set out in rule 255F, which provides:

"Upon an appeal, the Chief Executive or the Commissioner, as the case may be, may-

(a) confirm or reverse the finding;

(b) confirm the punishment;

(c) subject to rule 255J, substitute any other punishment which could have been awarded in the first instance;

(d) remit the punishment in full or in part without substituting any other punishment;

(e) if he dismisses an appeal against a finding and no punishment has been awarded, treat the appeal as if it were a case referred to him for punishment and award any punishment or take any other action within his powers."

The Commissioner's powers on a review under rule 255C(1) are the same, because rule 255C(2) provides:

"Upon a review under this rule the Commissioner may exercise the powers in rule 255H(a) and (b) and, subject to rule 255J, may do any of the things described in rule 255F(a), (b), (c), or (d)."

Rule 255J prohibits the Chief Executive and the Commissioner from awarding a greater punishment under rule 255C(2) or rule 255F without first allowing the officer a reasonable opportunity to be heard or to make representations in writing as to why the punishment should not be increased.

8. The effect of these provisions is to permit

(a) the Commissioner when he reviews a punishment under rule 255C(1), and

(b) the Chief Executive or his delegate when determining an appeal under rule 255E(1),

to substitute "any other punishment which could have been awarded in the first instance". The maximum fine which the Superintendent could have imposed was a fine not exceeding one day's pay: see rule 247(a)(i). However, the Superintendent had the power to refer the case to the Commissioner rather than to decide it himself. Thus, before the hearing the Superintendent could have referred the case to the Commissioner if he had thought that his powers of punishment would be insufficient: see rule 245(3). Moreover, even after hearing all the evidence, the Superintendent could have referred the case to the Commissioner then: see rule 245(2). If the case had been referred to the Commissioner under either of these rules, the maximum fine which the Commissioner could have imposed was a fine not exceeding one month's salary: see rule 254(a)(iv). Finally, if the case had been referred to the Commissioner under either rule 245(3) or rule 245(2), he could himself have referred the case to the Chief Executive: see rule 249(b)(ii). If the case had been referred to the Chief Executive under this rule, the maximum fine which the Chief Executive or his delegate could have imposed was also a fine not exceeding one month's salary: see rule 254(b)(i).

9. Thus, if the words "any other punishment which could have been awarded in the first instance" in rule 255F(c) are to be construed as referring only to the punishment which could have been awarded by the Superintendent when he had been considering the Applicant's case in the first instance, the maximum to which his fine of $500.00 could have been increased was one day's pay. However, if the words are to be construed as referring to the punishment which could have been awarded

(a) by the Commissioner if the case had been referred to him under rule 245(3) or rule 245(2), or

(b) by the Chief Executive (or his delegate) if the case had been referred to him under rule 249(b)(ii),

the maximum to which the Applicant's fine could have been increased was one month's salary. Both the increased fine of $20,000.00 imposed by the Commissioner and the reduced fine of $5,000.00 imposed by the Secretary for the Civil Service were in excess of the Applicant's daily pay. Thus, those fines had to have been quashed, as having been imposed in excess of jurisdiction, if the critical words in rule 255F(c) are to be construed as referring only to the punishment which could have been awarded by the Superintendent. That was the construction which Cheung J adopted, and it was for that reason that he quashed the two decisions to which this appeal relates.

The proper construction of rule 255F(c)

10. A punishment awarded "in the first instance" must, we think, refer to a punishment awarded by the first person who decides the appropriate award. Thus, a punishment awarded on a review under rule 255C or an appeal under rule 255D is not a punishment awarded "in the first instance". But if a case is referred to the Commissioner under rule 245(3) or rule 245(2), so that the Commissioner thus becomes the first person to decide the level of punishment, the Commissioner's award is a punishment awarded "in the first instance". Again, if the Commissioner refers a case (which has been referred to him under rule 245(3) or rule 245(2)) to the Chief Executive under rule 249(b)(ii), so that the Chief Executive (or his delegate) becomes the first person to decide the level of punishment, the Chief Executive's award (or that of his delegate) is a punishment awarded "in the first instance".

11. But the fact that punishments awarded by the Commissioner and the Chief Executive (or his delegate) in cases which have been referred to them are punishments awarded "in the first instance" does not of itself mean that such punishments are included in the punishments to which rule 255F(c) relates. The critical question is whether rule 255F(c) contemplates punishments which could have been awarded by the person who actually decided the case "in the first instance" or punishments which could have been awarded by the persons who would have decided the case "in the first instance" if the case had been referred to them.

12. In our view, the difference in language between rule 255F(c) and rule 255F(e) provides the answer. When rule 255F confers on the Commissioner or the Chief Executive the power to award any punishment within their powers, the language of rule 255F makes that clear. Thus, rule 255F(e) provides that when the Commissioner or the Chief Executive determines an appeal against a finding and no punishment has been awarded, they may treat the appeal as if it was a case referred to them for punishment and award any punishment or take any other action within their powers. If it had been intended to confer such powers in an appeal where a punishment had already been awarded - i.e. a case to which rule 255F(c) applies - rule 255F(c) would surely have said so. The difference in language between rule 255F(c) and rule 255F(e) suggests that the former should be construed in a way which does not permit the Commissioner or the Chief Executive to impose on an appeal any punishment within their powers. On the contrary: it should be construed in a way which limits the punishment which the Commissioner and the Chief Executive could award on an appeal to the powers of the person from whom the appeal was brought.

13. Of course, rule 255F relates to appeals, not cases which the Commissioner has been asked to review. The Commissioner's powers on such a review are to be gleaned from rule 255F only because rule 255C(2) applies rule 255F to such a review. But if rule 255F(c) should be construed as limiting the powers which the Commissioner or the Chief Executive could award on an appeal to the powers of the person from whom the appeal was brought, that construction should also apply (with such necessary changes as the circumstances warrant) to a review by the Commissioner. Thus, in its application to such a review, rule 255F(c) should be construed in a way which limits the punishment which the Commissioner can award to the powers of the person from whom the review was brought.

14. Mr Anthony Ismail for the Respondents contended that such a construction would produce a serious anomaly. He expressed the point in a variety of different ways in paras. 8 and 9 of his concise skeleton submissions, but on analysis they all boiled down to the same point. Such a construction would mean that if the Superintendent determines the punishment himself, and imposes the maximum punishment within his powers, that cannot be increased on a review by the Commissioner even if the Superintendent's powers were manifestly insufficient and the punishment imposed (albeit the maximum) was manifestly inadequate. What is the point of permitting the Commissioner on a review to exercise the power in rule 255H(b) to direct that additional evidence be taken (when that additional evidence might reveal that the case was much more serious than the Superintendent had thought it was) if that evidence could not be used to increase the sentence beyond the maximum sentence which the Superintendent could have imposed?

15. We do not regard such a result as anomalous. After all, the Superintendent can decline to hear the case if he thinks that his powers of punishment would be insufficient, and in that event the referral of the case to the Commissioner (and subsequently to the Chief Executive if the Commissioner decides to take that course) would result in the case being decided "in the first instance" by the Commissioner or the Chief Executive, with the result that a punishment within their powers could be awarded. The supposed anomaly only arises if the Superintendent determines the punishment himself. We detect no anomaly even in that event. The legislature has thought it right in criminal as opposed to disciplinary proceedings to limit the powers of an appellate court in not dissimilar circumstances. Thus, although the Court of First Instance can increase a sentence imposed on a defendant by a magistrate, it cannot do so beyond the maximum sentence which the magistrate could have imposed: see section 119(1)(e) of the Magistrates Ordinance (Cap. 227). The rationale, no doubt, is that if the sentencing court takes the view that its powers of punishment are sufficient, the defendant should not subsequently be prejudiced by that if an appellate court later takes a different view.

16. Finally, Mr Ismail pointed out that the power to substitute any other punishment in rule 255F(c) is expressed to be subject only to rule 255J. It is not expressed to be subject to rule 247 which sets out the disciplinary awards which the Superintendent has the power to make. That is said to be a clear indication that rule 255F(c) is not concerned with the Superintendent's powers. We disagree. This argument begs the question which has to be answered. The power in rule 255F(c) to substitute any other punishment is not only subject to rule 255J. It is also subject to the requirement that the punishment must have been one "which could have been awarded in the first instance". If that is to be construed as referring to the punishment which could have been awarded by the person who actually decided the case in the first instance, then by that route rule 255F(c) becomes subject to rule 247.

Conclusion

17. For these reasons, we have come to the conclusion that Cheung J's construction of rule 255F(c) was entirely correct. The Commissioner did not have the power to increase the Applicant's punishment to $20,000.00, because his power was limited, by rule 255F(c), to increase the fine only to the Applicant's daily pay. Since the new punishment had to be quashed, the new punishment did not constitute a decision which was capable of being the subject of an appeal to the Chief Executive. Accordingly, the final punishment awarded by the Chief Executive's delegate had to be quashed as well. It follows that this appeal must be dismissed.

18. At present, we see no reason why costs should not follow the event. The Applicant was not represented on the appeal, but he may have had some legal costs in connection with the appeal prior to his former solicitors coming off the record. In those circumstances, the order nisi which we make as to costs is that the Respondents must pay to the Applicant his costs of the appeal, to be taxed if not agreed.