LING HIN WING v. THE COMMISSIONER OF CORRECTIONAL SERVICES

Headnote

Judicial review of Disciplinary Proceedings under the Prisons Ordinance C. 234. Standard of proof required to prove allegations made - the duty of the Investigating Officer to conduct a fair hearing and the principles to be adhered to generally. In this case it was held that the relief sought would not be granted.

----------------

___________

JUDGMENT

___________

1. The Applicant is seeking the judicial review of disciplinary proceedings which were instituted against him earlier in the year when he was found to be in breach of Prison Rules made pursuant to the Prison Ordinance Cap.234. Consequent upon the findings of this tribunal he was dismissed from his job as an officer in the Correctional Services Department.

2. The Applicant was found guilty under rule 239(1)(h)(i) in that he "without proper authority communicated with an ex-prisoner or with a relative, or friend of any prisoner, or ex-prisoner". Particulars of the alleged offence were that on the 7th of September, 1983 he signed a promissory note in favour of Artley Finance (H.K.) Limited and an ex-prisoner TUNG Yat-hing signed a guarantee which guaranteed the Applicant's indebtedness to Artley Finance.

3. TUNG Yat-hing was at one time also a prison warden. Mr. Tung was dismissed from this employment on the 25th of September 1981. The reason for Mr. Tung's dismissal from the service was that on the day in question he was convicted of a criminal offence and sentenced to a term of imprisonment. The Applicant's defence to the disciplinary proceedings was that he did not know that Mr. Tung had been sentenced to prison and accordingly he did not realize that he was, after his release from prison, an ex-prisoner. The main problem which arises in these proceedings is that no direct evidence was deduced in the disciplinary proceedings proving that the Applicant did indeed have this knowledge. It is evident from the findings of the adjudicating officer, Mr Harchand Rutton, a Superintendent of the Correctional Services Department and from an affidavit he swore on the 7th of October that Mr Rutton drew an inference that the Applicant must have known of Mr. Tung's conviction and sentence of imprisonment as this was common knowledge and a matter of considerable interest in the Correctional Services Department.

4. In the course of an able submission, Mr. Plowman for the Applicant argued that it was manifest on reading Mr Rutton's findings that he had adopted the wrong standard in determining whether or not the Applicant had this knowledge. In the findings Mr Rutton had used the word "likelihood" and it was evident that he had assessed the evidence before him on the balance of probabilities. Mr. Plowman conceded that it was not necessary in disciplinary proceedings of this nature for the prosecuting officer to prove his case to the criminal standard of proof beyond a reasonable doubt.  Mr Plowman referred to the case of WONG Kai-fou v. The Medical Council ⁽¹⁾ in support of this proposition. I think though that he accepted that an accurate statement of the law was the citation at p.258 of Hornal v. New Berger Products Ltd. ⁽²⁾ where Denning, L.J., said:

"The judge reviewed all the cases and held rightly that the standard of proof depends on the nature of the issue. The more serious the allegation the higher the degree of probability that is required. But it need not, in a civil case, reach the very high standard required by the criminal law."

In this connection I accept that the present proceedings were at the higher end of the scale as it is a serious matter for an officer who has served 15 years as a government servant to face a charge which will in all probability lead to his dismissal if it is proven.

5. Miss Hartstein who was representing the Crown also made an able submission. She emphasised the nature of the proceedings. They were informal domestic proceedings as could be seen from rule 243 of the Rules which provided for the procedure to be adopted.  She also referred to the judgment of Geoffrey Lane, L.J., at p.1406 of R. v. Hull Visitors Ex-parte St. Germain ⁽³⁾ where he cited with approval Lord Loreburn, L. C.'s speech in Board of Education v. Rice ⁽⁴⁾

"Comparatively recent statutes have extended, if they have not originated, the practice of imposing upon departments or officers of state the duty of deciding or determining questions of various kinds. In the present instance, as in many others, what comes for determination is sometimes a matter to be settled by discretion, involving no law. It will, I suppose, usually be of an administrative kind; but sometimes it will involve matter of law as well as matter of fact, or even depend upon matter of law alone. In such cases the Board of Education will have to ascertain the law and also to ascertain the facts. I need not add that in doing either they must act in good faith and fairly listen to both sides, for that is a duty lying upon everyone who decides anything.  But I do not think they are bound to treat such a question as though it were a trial. They have no power to administer an oath, and need not examine witnesses. They can obtain information in any way they think best, always giving a fair opportunity to these who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view."

Miss Hartstein argued with a large measure of justification that this was exactly what Mr Rutton had done. He had afforded every opportunity to the Applicant to put forward his side of his story. As it happened Mr Rutton had simply not believed the Applicant when he had stated that he had not known of Mr Tung's imprisonment. Having regard to the circumstances which Mr Rutton refers to in his affidavit it is difficult to avoid coming to a conclusion that as a matter of common sense the Applicant must have known about Mr Tung's imprisonment.

6. I realize that various difficulties arise in coming to this conclusion. There may be some justification for the observation made by Mr Plowman that if this view of matter is accepted the Applicant had virtually no prospect of exculpating himself in the disciplinary Proceedings. While this may be true it does not lead one to a conclusion that no useful purpose was served by the proceedings. They did at least provide the Applicant with an opportunity of putting forward his defence.  I am also satisfied that this was duly weighed and considered by Mr Rutton and the Applicant had every opportunity of putting forward any other evidence which could be of assistance to him. It may quite often be the case that where the prosecution has an overwhelmingly strong case the result of proceedings may be almost a foregone conclusion. This does not mean that where a criminal offence has been committed and there is overwhelming evidence there should be no trial.

7. I will deal shortly with the other grounds in this application. Mr. Plowman criticized the way in which evidence was deduced that the Applicant had communicated with Mr Tung.   Two letters from Artley Finance were produced and exhibited and a statement was contained in the second letter, Exhibit B, that the Applicant and Mr Tung had attended at the offices on the 7th of September 1983. The officer-in-charge of the matter at Artley Finance did not appear at the hearing although it was indicated on the charge sheet served on the Applicant that he would appear.  According to Mr Rutton the Applicant was shown the letters and he agreed their production. Mr Plowman pointed out that this was most unsatisfactory and clearly the Applicant had not accepted the truth of the contents of the letters. In effect he was being called upon to assist in proving the charge against himself.  There is much merit in this contention. This type of approach would be totally unacceptable in criminal proceedings. However in the context of these disciplinary proceedings it is necessary to bear in mind that the only point at issue in the proceedings was whether the Applicant knew that Mr Tung was an ex-prisoner.  It is also significant to note that the Applicant at no time has denied that he did communicate with Mr Tung and this being the case I do not think that there has been any breach of the rules of natural justice.

8. In ground (5) of the application the Applicant complains that Mr Rutton should not have been in possession of the Applicant's staff record when he presided over the proceedings. There were references to 4 reprimands having been administered to the Applicant two of them being severe reprimands.  I do not think that there is much substance to this criticism.  I do not think that it is unreasonable where internal disciplinary proceedings of an informal nature are being conducted that the adjudicating officer should be in possession of such information.  It is clearly the intention of the legislature that the inquiry should be undertaken by a senior officer who is familiar with all of the circumstances obtaining and it is indeed his special knowledge and experience which enables him to conduct the inquiry in a satisfactory and realistic manner.  There is nothing to indicate that 4 reprimands over a period of 8 years is a bad record. There is no reason to suppose that the Applicant's record had any adverse effect upon the proceedings. I also do not consider there is any substance in the other grounds referred to by the Applicant.

                Having considered the whole of this application carefully I have come to the conclusion that there has not been any breach of the rules of natural justice. Accordingly I am not prepared to grant the relief which is sought.  The Crown will be entitled to its costs.

(1) 1967 HKLR 620

(2) 1957 1QB 247

(3) 1979 1WLR 1401

(4) 1911 A. C. 179 p.182