WONG TAK WAI v. COMMISSIONER OF CORRECTIONAL SERVICES

[English Translation – 英譯本]

HCMP1491/2016

IN THE HIGH COURT OF THE HONG KONG

SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1491 OF 2016

(ON INTENDED APPEAL FROM HIGH COURT CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 162 OF 2013)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  The applicant applied to the Court of Appeal for leave to appeal out of time against the decision of Fung J (“the judge”) refusing to grant leave to apply for judicial review on 12 August 2014.

Background

2.  The applicant is a prisoner serving a sentence of imprisonment at Shek Pik Prison.

3.  The applicant was alleged to have offended good order and discipline at Shek Pik Prison, contrary to Rule 61(p), Prison Rules, Cap 234A, and was subjected to disciplinary proceedings (Prison Disciplinary Proceedings No: SPP41/BR/12, “disciplinary proceedings”). The relevant facts alleged that on 19 April 2012, the applicant, who was serving a term of imprisonment, rushed into the office of the Chief Officer of Correctional Services Department (CSD). He was yelling, emotional and out of control. As warnings had been ignored, the CSD officers subdued him with the use of force and pepper spray.

4.  At the same time, the applicant complained that he was framed and beaten up by the CSD officers. The applicant’s complaint was dealt with jointly in the disciplinary proceedings.

5.  The disciplinary proceedings commenced on 27 April 2012 and concluded on 6 December 2012. The applicant was found to be in breach of Rule 61(p) of the Prison Rules, and was punished by solitary confinement for 4 days, deprivation of earnings for 7 days and forfeiture of privileges (i.e. right to purchase items) for 4 days. The applicant appealed to the Commissioner of Correctional Services, who dismissed the appeal.

6.  On 1 November 2013, the applicant filed the Form 86 with the Court of the First Instance, applying for leave to apply for judicial review out of time against the determination of the disciplinary proceedings.

7.  A directions hearing on the applicant’s application was held before the judge. Having considered the applicant’s and the putative respondent’s written submissions, the judge handed down his judgment on 12 August 2014. The judge granted an extension of time to apply for leave, but refused to grant leave to apply for judicial review based on the consideration that the intended judicial review had no reasonable prospect of success.

8.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court, the time limit for appealing against the refusal of leave to apply for judicial review is 14 days. The appeal period in this case expired on 26 August 2014.

9.  On 14 June 2016, the applicant commenced the present proceedings, applying for leave to appeal out of time. He was acting in person.

10.  The Department of Justice was acting on behalf of the putative respondent in these proceedings. On 24 June 2016, the Department of Justice wrote to the court to indicate that the putative respondent did not intend to reply to the applicant’s application unless otherwise directed by the court.

11.  Having considered the documents filed by the applicant, we are of the view that pursuant to Order 59, rule 14A(1) of the Rules of the High Court, a determination may be made without an oral hearing on the basis of the affidavit submitted by the applicant and the written submission contained therein only.

The applicable legal principles

12.  With regard to the principles for granting an application for leave to appeal out of time, the authorities have established that the court must consider: (1) the length of the delay; (2) the reasons for the delay; (3) the merits of the grounds of appeal; and (4) the degree of prejudice to the other party if leave to appeal out of time is granted: Hong Kong Civil Procedures 2016 Vol 1, 59/4/9.

13.  The authorities also provide that if the applicant’s delay is substantial and not wholly excusable, a real prospect of success on the merits must be shown before the court can grant leave to appeal: Wong Yuk Man v Ng Leung Sing, HCMP 3217/2015, 22 January 2016.

Discussion

14.  In this case, the applicant’s delay of 22 months is excessively substantial. The applicant explained that he did not know the legal procedures; he was mistaken about the time limit for appeal; and he needed more time to prepare appeal documents, as he was in prison where his action was restricted. He also said that after Mr Ng, counsel assigned by the Legal Aid Department, had provided his legal opinion, neither an officer of the Legal Aid Department, nor a solicitor followed up the case and filed the application with the court for him, causing the case to stagnate.

15.  Documents submitted by the applicant show the chronology after the judge’s refusal of the application for leave to apply for judicial review as follows:

12/8/2014	The judge refused the application for leave to apply for judicial review.
22/9/2014	The Director of Legal Aid issued a memorandum to notify the applicant that an application for legal aid had been made for the intended appeal against the determination in HCAL162/2013.
7/11/2014	Mr Chow, counsel assigned by the Director of Legal Aid, provided legal opinion pursuant to Section 9(d) of Legal Aid Ordinance, Cap 91.
22/12/2014	The Director of Legal Aid issued a Legal Aid Certificate to the applicant and assigned a solicitor to represent him.
25/2/2015	The Director of Legal Aid assigned Mr Ng to be the counsel for the applicant.
27/3/2015	Mr Ng provided legal opinion concerning the applicant’s intended appeal.
14/12/2015	The Director of Legal Aid discharged the applicant’s Legal Aid certificate.
7/4/2016	A hearing on the applicant’s appeal against the decision of discharging the Legal Aid Certificate.
26/5/2016	The applicant’s appeal against the decision of discharging the Legal Aid Certificate was dismissed.
14/6/2016	The applicant commenced the present application to apply for leave to appeal out of time.

  

16.  We are of the view that the applicant had no sufficient reasons for the delay. Firstly, the appeal time period had expired when the applicant applied for legal aid, for which the applicant explained that he had confused the time limit with that for a criminal appeal. We noted though the applicant’s legal aid application form was dated 8 September 2014, the Legal Aid Department did not receive it until 18 or 19 September 2014 (see the right top corner at page one of the application form). The Director of Legal Aid’s memorandum was issued on 22 September 2014. In any event, no matter how many days the applicant had thought the time limit for appealing there were, he had the duty to proceed with the appeal and to apply for legal aid promptly. The applicant obviously had not performed his duty. He only wrote to the court on 8 September 2014 indicating that he needed to seek assistance from the Legal Aid Department, and thus he would formally commence the proceedings of the appeal after the result of his legal aid application was known. What the applicant did could neither achieve the effect of freezing or extending the appeal time, nor offer a good explanation for the delay.

17.  Secondly, as regards the allegation that the solicitor and officer of the Legal Aid Department did not follow up his case, the documents the applicant submitted did not have such information, and his affidavit did not provide such details either, including when he was last contacted by the officer of the Legal Aid Department and the solicitor for the case, and whether he had contacted them to enquire, follow up and to urge them to process the appeal. If the applicant wished to rely upon his legal aid application and the delay caused by the time taken to obtain legal aid as a ground for seeking an extension of time, he must provide a full account regarding his legal aid application with the relevant details and documents to prove that he had duly performed his duty in the course of his legal aid application. See BI v Director of Immigration [2016] 2 HKLRD 520, para 131. In fact, by the time Mr Ng, the counsel, provided his legal opinion, the time limit for appeal had expired 7 months earlier. Mr Ng’s legal opinion pointed out the delay of the intended appeal was excessively substantial and also explained the relevant law.

18.  Furthermore, even when the applicant applied for legal aid, he had a duty to ensure the appeal was lodged within the time limit for appeal. The fact that a person in custody may experience some inconvenience in dealing with the proceedings or documents cannot satisfactorily explain a delay of almost two years. In addition, the applicant was not legally aided at the hearing before the judge, and he commenced the present proceedings in person. The applicant was therefore seen to be able to proceed with the litigation when he was not legally aided or legally represented and in custody. All these would not make him unable to appeal against the determination by the judge.

19.  Given that the delay in making the application was an excessively substantial one and there was no good explanation for applying out of time, the applicant must demonstrate to the court that his appeal has real prospect of success, before he could be granted an extension by the court and proceed with the application: see paragraph 12 above. This is a high threshold. If the applicant can only show his intended appeal has a reasonable chance of succeeding, this is not sufficient for the court to exercise its discretion to extend the time limit for appeal.

20.  The applicant relied on the opinions of counsel, Mr Chow and Mr Ng, which indicated that the applicant’s intended appeal stood a reasonable chance of succeeding. The substance of Mr Ng’s opinion was that “if the applicant could surmount the application for extension of time to appeal before the court, his appeal stands a reasonable chance of succeeding”. Nevertheless, as stated above, having a reasonable chance of succeeding in appeal is not sufficient for the court to exercise its discretion to grant extension of time for appeal.

21.  The applicant has put forward five grounds of appeal. Grounds (1) to (4) rely on the opinion stated by Mr Ng, the counsel. Ground (1) concerns whether or not legal representation should be allowed in disciplinary proceedings. In fact, prison disciplinary proceedings amount to a criminal charge within the meaning of Article 10 of the Hong Kong Bill of Rights. And the punishment by separate confinement involves restraint on the liberty of a person: Wong Tak Wai v Commissioner of Correctional Services [2010] 4 HKLRD 409. Considering the legal principles and the circumstances of this case, it may be reasonably arguable that the decision denying the applicant legal representation was a wrong one, and constituted procedural unfairness. However, counsel’s opinion only states the argument succinctly with no in-depth analysis of the issue. Whether or not ground (1) has real prospect of success is yet to be determined.

22.  As regards ground (2) that the adjudicator did not provide witness statements to the applicant prior to the hearing, the judge, in our view, was right to consider whether the disciplinary proceedings were fair to the applicant as a whole. The focus is not on whether or not the adjudicator had reasonable grounds for failing to provide the applicant with witness statements at the beginning.

23.  Ground (3) concerns the adjudicator’s refusal of the applicant’s request for a medical examination report on the injuries. The adjudicator’s decision was based on his assessment of the evidence in the disciplinary proceedings and the relevant facts in dispute. Given that there was no evidence showing his decision was clearly wrong, the judge was right to conclude that the court should not intervene.

24.  Ground (4) concerns the adjudicator’s refusal to have the disciplinary proceedings audio-recorded. There was no concrete evidence in the case showing the adjudicator’s written record was untruthful and inaccurate, or there was procedural unfairness in the disciplinary proceedings or appeal to the Commissioner for Correctional Services because of the failure to audio-record the proceedings. The issue on whether the prison disciplinary proceedings should be audio-recorded or not is a theoretical argument in this case.

25.  The applicant alleged in ground (5) that it was wrong for the Correctional Services Department to redact the names of the witnesses in the transcript of the proceedings issued based on the Personal Data (Privacy) Ordinance, Cap 486, and that it caused hindrance and unfairness to the prisoner’s appeal. The applicant referred to Section 39 of the High Court Ordinance, Cap 4, and alleged that it expressly provides that “the disclosure of documents of legal proceedings shall not be suppressed”. However, that is not the contents of Section 39, which safeguards the Registrar of the High Court against civil claims due to the work done by bailiffs. While the applicant also alleged that the transcripts from the audio-recorded proceedings issued by the court did not have the names of witnesses wiped off, he has ignored Section 51A of the Personal Data (Privacy) Ordinance which exempts courts and judicial officers, who hold personal data during the performance of their judicial functions, from the control and restriction of the data protection principles and the relevant provisions of that ordinance.

26.  To conclude, the applicant has not shown his grounds of appeal enjoy any real prospect of success.

27.  From the conclusion of the disciplinary proceedings (on 6 December 2012) to the commencement of the application by the applicant (on 14 June 2016), it has been a lapse of three and a half years. As this is an ex parte application, the putative respondent did not submit evidence. Nevertheless, it is not inconceivable that if and when leave to the applicant’s appeal out of time is granted, there would be difficulties caused to the operation of the putative respondent. Also, due to the long lapse of time, the correctional service officers, witnesses and medical officers who examined the injuries concerned may be out of contact, and they probably no longer have a clear recollection of the details of the incident. In the circumstances, granting leave to the applicant’s appeal out of time may cause unfairness to the putative respondent.

Conclusion

28.  Having considered the relevant factors in this application as a whole including the delay, reasons for the delay, the grounds of appeal and principle of fairness, we refuse to grant the applicant leave to appeal out of time, and the applicant’s summons is dismissed.

29.  Further, since this application is totally without merit, pursuant to Order 59, rule 2A(8) of the Rules of the High Court, we order the applicant may not request the determination of this Court to be reconsidered at an oral hearing pursuant to Order 59, rule 2A(7).