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

HCAL68/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.68 OF 1999

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J U D G M E N T

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Facts

1. The Applicant was and still is a Prison Officer in the employ of the Correctional Services Department ("the Department"). He is in the rank of a Principal Officer. He was charged and found guilty of an offence under Rule 239(1)(h)(i) of the Prison Rules ("the Rules"), Cap.234, namely "without proper authority communicates with any ex-prisoner or with a relative, or friend of any prisoner or ex-prisoner". The Rules is the subsidiary legislation of the Prisons Ordinance ("the Ordinance"). The Superintendent who heard the case awarded the punishment of a severe reprimand and a fine of $500 ("the original punishment").

2. The Applicant appealed to the Commissioner of Correctional Services ("the Commissioner") against the finding of guilt by the Superintendent under Rule 247(a) of the Rules. The Commissioner referred the appeal to the Chief Executive on the basis that he was previously involved in the case and by reason of natural justice, someone else should deal with the appeal. The Secretary for the Civil Service ("the Secretary") acting under the delegated authority of the Chief Executive, rejected the Applicant's appeal.

3. After the Secretary dismissed the appeal, the Commissioner reviewed the original punishment and awarded a new punishment against the Applicant. The new punishment was of that a severe reprimand and a fine of $20,000 ("the new punishment"). The Applicant appealed to the Commissioner against the new punishment. The Commissioner again referred the matter to the Chief Executive. The Secretary, acting under delegated authority, substituted the new punishment with a severe reprimand and a fine of $5,000 ("the final punishment").

The application

4. The Applicant applies for judicial review to quash the decision of the Commissioner :-

(1) to refer his appeal against the decision of the Superintendent to the Chief Executive;

(2) to award the new punishment against the Applicant; and

(3) to refer the Applicant's appeal against the new punishment to the Chief Executive.

The Applicant further asks to quash the decision of the Secretary :

(1) to dismiss his appeal; and

(2) to award the final punishment against him.

5. The Applicant also asks the Commissioner to be compelled to determine his appeal against the finding of guilt by the Superintendent.

Appeal against the decision of the Superintendent

6. Under Rule 255D of the Prison Rules, the Applicant has the right of appeal against the finding and punishment of the Superintendent. Rule 255D provides that :-

" A Chief Officer, subordinate officer or other person employed in the prisons (including one who has been dismissed) may appeal, in accordance with the following rules, against -

(a) a finding by the Commissioner or other officer that he is guilty of a disciplinary offence;

(b) any punishment awarded by the Commissioner or other officer, other than under rule 255F."

The Applicant is a Chief Officer within the meaning of the Rule.

To whom the appeal lies

7. Under Rule 255E(1) :-

"The appeal shall lie -

(a) to the Chief Executive, in respect of a finding made or a punishment awarded by the Commissioner; and

(b) to the Commissioner in any other case."

8. As the finding was made by a Superintendent, the appeal under Rule 255D should lie to the Commissioner.

Reason for not hearing the appeal

9. The Commissioner declined to hear the appeal and referred it to the Chief Executive. Mr Yeung, Counsel for the Applicant, referred to Nattrass v. Attorney General [1996] 1 HKC 480 on the proper test to be applied in considering the question of bias on the part of the tribunal.

10. Mr Ismail, Counsel for the Commissioner and the Secretary, referred toJeyaretnam v. Law Society of Singapore [1989] 1 AC 609 and submitted that notwithstanding the provision of Rule 255E, the Commissioner does not need to hear the appeal if there is a good reason for so doing and the Commissioner's prior involvement in this case is clearly a good reason.

11. In my view, it is not necessary to go into this issue for the purpose of this case. Clearly, it is not envisaged by the Rules that the only one who could hear the appeal is the Commissioner personally even when there is a good reason for him not to do so. The real dispute in this case is about who should hear the appeal when the Commissioner does not wish to hear the appeal himself.

Delegation under section 24(2) of the Ordinance

12. The power of delegation is given to the Commissioner under Section 24(2) of the Ordinance :-

" Save where the contrary intention appears from the context of this or any other Ordinance and subject to any special instructions of the Chief Executive, the Commissioner may authorize any senior officer by name, office or appointment to exercise and perform any of the powers, functions and duties which are conferred or imposed upon the Commissioner by this or any other Ordinance except any power to dismiss a subordinate officer which may be conferred on the Commissioner by or under this Ordinance."

13. The Applicant argued that the Commissioner should delegate his task to a senior officer who is defined under section 2 of the Ordinance as meaning :-

"... the Commissioner, Deputy Commissioner, and any Assistant Commissioner, Chief Superintendent, Senior Superintendent, Superintendent, or Chief Officer;"

14. The Respondents contended that this power of delegation is not available in an appeal because of the provisions of section 43(2) of the Interpretation and General Clauses Ordinance, Cap.1 ("IGCO"). Section 43 provides that :-

" (1) Where any Ordinance confers powers or imposes duties upon a specific public officer, such public officer may delegate any other public officer or the person for the time being holding any office designated by him to exercise such powers or perform such duties on his behalf, and thereupon, or from the date specified by such specified public officer, the person delegated shall have and may exercise such powers and perform such duties.

(2) Nothing in subsection (1) shall authorize a specified public officer to delegate any person to make subsidiary legislation or to hear any appeal." (emphasis added)

Construction of the two Ordinances

15. The Respondents argued that section 24(2) of the Ordinance is subject to section 43(2) of the IGCO. How should this conflict be resolved? In my view, one starts by construing section 24(2) first to see whether there is any contrary intention that appears from the context of the Ordinance or any other ordinance which prevents the delegation in an appeal. There clearly is no contrary intention appearing from the context of the Ordinance itself that the power of delegation does not apply to an appeal. One then moves on to consider the IGCO. To do so, one has to regard section 2 of the IGCO first which expressly provides that the IGCO shall apply to other ordinance "save where the contrary intention appears either from this ordinance or from the context of any other ordinance". Paragraph 1380 of Halsbury's Laws of England, 4th Ed. Reissue Vol.44(1) states that :-

" Whether it is so stated or not, a provision of an Interpretation Act does not apply to an enactment if the contrary intention appears from that enactment; and the Interpretation Act itself will provide that its definitions apply only where no contrary intention appears."

IGCO not applicable

16. In my view, the IGCO does not apply in this case because a contrary intention does appear in the Ordinance regarding delegation which displaces the operation of the IGCO.

17. Under section 24(2) of the Ordinance, the powers of the Commissioner are expressly said to be delegable by the Commissioner. Section 24(2) does not exclude the power to hear the appeal from being delegated by the Commissioner. The only exception is the power to dismiss a subordinate officer. Hence under the Ordinance the power of delegation covers an appeal as well.

18. The Rules expressly specify who should hear what appeal. In the Rules the appeal against the finding by a Superintendent is not one to be heard by the Chief Executive. Under the Rules, the Commissioner is the only person who could hear this appeal. If he is unable to delegate his power to hear the appeal, as argued by Mr Ismail, then under the Rules no one can hear the appeal. There would be a vacuum in the system. If the Chief Executive is to hear the appeal, then there must be some legal basis for him to do so. It has not been argued that somehow the Chief Executive has some residual power to hear appeals from decisions of the Superintendent notwithstanding the lack of any express statutory provision. The only argument advanced is that under Rule 255D only two persons can hear appeals and if the Commissioner can not do so, then the Chief Executive should be the one to hear the appeal instead. In my view this is not the proper way to construe the legislation.

19. The mechanism of the appeal system in the Rules clearly provides a contrary intention which displaces the operation of the IGCO. As a result, even if the Commissioner could not hear the appeal himself, he should delegate the power to his senior officers. It is accepted by Mr Yeung that a senior officer includes a Chief Officer who is of the same rank as the Applicant. However, the Commissioner is not compelled to appoint a Chief Officer to hear the appeal. This argument is not an obstacle to the interpretation I have placed on the power of delegation. If the Chief Executive has no power to hear the appeal, then obviously the decision of the Secretary acting as his delegate is invalid.

20. Mr Yeung referred to the case of Mutual Luck Investment Ltd. v. Attorney General & another [1996] 6 HKPLR 1. In my view, it is not necessary to rely on this case because ultimately the issue is one of the construction of different legislation.

Reference to other rules

21. Mr Ismail referred to Rule 253 which provides that if the Commissioner delegated his power to another officer, then the references in Rules 249, 250 and 251 to the Commissioner shall be read as if they were reference to that other officer, and to the Chief Executive shall be read as if they were reference to the Commissioner. The rule on appeal is not one of the three rules referred to in Rule 253.

22. In my view, the absence of reference in Rule 253 to the appeal rule is not an indication that the power of appeal is not subject to delegation. In the ordinary course of events where the power is delegated, it is not necessary to specify in the body of the Rules or Ordinance that the reference to the Commissioner shall mean a reference to the delegated officer. In this case, Rule 253 is for a specific purpose. Under Rule 249, the Commissioner may refer a case to the Chief Executive. The purpose of Rule 253 is to provide that when the task of the Commissioner is delegated to a senior officer, then the senior officer cannot refer the case to the Chief Executive directly but to the Commissioner only. Rule 250 deals with the procedure of the Commissioner referring the case to the Chief Executive and Rule 251 deals with the procedure after the case had been referred to the Chief Executive. After the senior officer has referred the case to the Commissioner, the Commissioner may then under Rule 250 refer the case to the Chief Executive. Thus, Rule 253 does not simply state something that is obvious but rather to make specific provisions relating to referral by the senior officer to the Commissioner and by the Commissioner to the Chief Executive. This Rule does not assist the Respondents.

Review

23. Under Rule 255C, the Commissioner may, on his own motion, review a punishment made by the Superintendent. Rule 255C(2) provides that :-

" 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 255H(a) and (b) are irrelevant for the purpose of this application. Rule 255J provides that the Commissioner shall not :-

"... award a greater punishment under rule 255C(2) or 255F without first allowing the officer or person a reasonable opportunity to be heard or to make representations in writing as to why the punishment should not be increased."

Instead of providing separately for what the Commissioner may do on review, Rule 255C adopts some of the things that the Commissioner may do on appeal under Rule 255F. Rule 255F provides that :-

" 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; (emphasis added)

(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."

Item (e) is not available to the Commissioner on a review.

Punishment

24. In this case, the Commissioner on review of the original punishment increased the fine to $20,000. This exceeded what the Superintendent could have awarded in the first place. On 2nd January 1998, when the original punishment was awarded against the Applicant, his monthly salary was HK$53,670. His salary was HK$56,910 as at 16th September 1998 when the Commissioner conducted the review. His daily pay was $1,787 and $1,897 respectively on those two dates. Under Rule 247, the maximum fine the Superintendent could impose was a day's wage. On the other hand, the powers of punishment by the Commissioner and the Chief Executive in relation to a disciplinary offence are much higher. The Commissioner can impose the following punishment under Rule 254(a) :-

" (i) reduction in rank;

(ii) stoppage or deferment of increment;

(iii) where the offence is against rule 239(k)(i), forfeiture of pay (excluding allowances) for a period not exceeding one month or the period of absence, whichever is the greater;

(iv) a fine not exceeding one month's salary (excluding allowances); (emphasis added)

(v) severe reprimand;

(vi) reprimand;

(vii) extra duties; ..."

The punishments that can be imposed by the Chief Executive under Rule 254(b) are :-

" (i) the punishments described in paragraph (a);

(ii) dismissal;

(iii) compulsory retirement either with gratuity or other allowances or without such benefits or with reduced benefits and, in accordance with the Pensions Ordinance (Cap.89) of the Pension Benefits Ordinance (Cap.99), with or without pension, or with reduced pension."

Punishment that could be awarded in the first instance

25. The dispute concerns the meaning of the words "any other punishment which could have been awarded in the first instance" in item (c) of Rule 255F. The Respondents argued that the increased fine is something that the Commissioner can impose in the first instance because of the provision of Rule 254(a)(iv), namely a fine not exceeding one month's salary.

26. In my view, the construction urged upon by the Respondents is wrong. Punishment which could have been awarded in the first instance, means punishment which could have been awarded by the Superintendent who heard the charge in the first instance.

Powers of the Commissioner and Chief Executive in the first instance

27. Under the Rules, apart from the power of the Commissioner to review the punishment and the power of the Commissioner and the Chief Executive to hear appeals, both of them have the power to impose punishment in cases referred to them in the first instance.

28. Under Rule 245(2), if the Superintendent, after hearing all the evidence of a charge, comes to the conclusion that the charge is proved but that the case should be referred to the Commissioner, he shall refer the case to the Commissioner. Under Rule 245(3) where the Superintendent considers that the charge is not within his competence, or that although it is within his competence, his power of punishment would be insufficient if the charge were admitted or found proven, he shall refer the case to the Commissioner.

29. Under Rule 249, the Commissioner on considering a case referred to him under Rules 245(2) and (3) may award a punishment within his power (Rule 249(b)(i)), or he may refer the case to the Chief Executive (Rule 249(b)(ii)). Where a case is referred to the Chief Executive, he may award a punishment within his power (Rule 251(b)).

30. In this case, there was no referral by the Superintendent of the case to the Commissioner. If both the Commissioner and the Chief Executive can impose punishments in the first instance then the words "punishment which could have been awarded in the first instance" will not necessarily mean the punishment within their power on the hearing of a review by the Commissioner or on appeal by the Commissioner and Chief Executive. After all, Rule 255(c) does not say punishment that could be awarded within their power. The only exception is Rule 255F(e) which deals with an appeal when no punishment was awarded in the first place. This item is, however, not available on a review. I find that, on the review, the Commissioner could only exercise the power of punishment that is available to the Superintendent in the first instance. If he intends to impose a fine, then the maximum amount is one day wage. The $20,000 fine clearly exceeds the limit of what the Superintendent can impose in the first instance. The decision is invalid.

31. Mr Ismail argued that if the Superintendent had already imposed a maximum fine, then the Commissioner on review could not increase the punishment even if he wishes to do so. I see no absurdity in the result. This is a penal provision. If it is intended to impose a punishment on review which is not available to the Superintendent, then clear words must be used in the Rules. Rule 245(3) already caters for the situation where a higher punishment could be imposed in the first instance when the Superintendent considers that his power of punishment is insufficient. Other than this, the Commissioner on review does not have a power to impose a higher punishment which is not available to the Superintendent.

Appeal against the fine of $20,000

32. The Applicant appealed against the new punishment imposed by the Commissioner on review. Under Rule 255D, the Applicant may appeal against any punishment awarded by the Commissioner other than under Rule 255F.

33. In my view, the Applicant clearly was entitled to appeal against the fine of $20,000. As a matter of convenience, the drafter of the Rules simply referred to certain parts of Rule 255F as the powers that are available to the Commissioner on review. Clearly the restriction to appeal against punishment is only against those awarded by the Commissioner in an appeal proper under Rule 255F.

34. In this case the Applicant lodged the appeal to the Commissioner. However, under Rule 255E(1)(a), the appeal should lie to the Chief Executive. The referral of this appeal by the Commissioner to the Chief Executive, although without any legal basis, actually achieved the procedural requirement under Rule 255E(1)(a). However, the issue is now academic because if the Commissioner had no power to impose a fine of $20,000, the punishment is invalid in the first place.

Decision of the Secretary in imposing a fine of $5,000

35. The Secretary substituted the fine to $5,000. While procedurally he is entitled to hear the appeal against the punishment imposed by the Commissioner, however, as I have said earlier, the punishment imposed by the Commissioner was invalid in the first place. In any event, the final punishment imposed by the Secretary is not one that was available to the Superintendent who heard the charge in the first instance. Further Rule 255F(e) is not available to the Secretary because this only covers the situation where there was no punishment imposed in the first place. As a result, this decision ought to be quashed as well.

Other issues

36. The Respondents argued that I should not exercise my discretion in favour of the Applicant. I can see no reason why I should not do so. The Applicant had also argued that the referral by the Commissioner to the Chief Executive was for a collateral purpose, namely to impose a higher punishment to the Applicant. I do not find that to be the case. The Respondents had simply misconstrued the legislation.

Conclusion

37. Accordingly, I will quash the following decisions, namely :-

(1) The referral by the Commissioner of the Applicant's appeal against the finding by the Superintendent to the Chief Executive.

(2) The decision of the Secretary affirming the finding of the Superintendent.

(3) The decision of the Commissioner imposing the fine of $20,000.

(4) The decision of the Secretary imposing the fine of $5,000.

38. I will further order the Commissioner to hear the appeal lodged by the Applicant against the finding by the Superintendent.

Costs

39. The Applicant is to have costs nisi of the application.