WONG WAI FAN v. COMMISSIONER OF CORRECTIONAL SERVICES

HCAL152/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

LIST NO.152 OF 1999

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J U D G M E N T

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The application

1. This is an application for judicial review by the applicant to quash the decision of the Commissioner of Correctional Services ("the Commissioner") dismissing her appeal against the finding of guilt of a disciplinary offence.

2. The applicant is an officer in the Correctional Services Department ("the Department"). In October 1997, she was charged by the Commissioner of an offence contrary to rule 239(1)(c)(i) of the Prison Rules, Cap.234 ("the Rules"). The particulars of the offence stated that she being the lock-up officer of the F2 Ward in Victoria Prison, "did fail to lock the grille gates of five holding grilles in F2 Ward, namely grilles No.1-5 at 1925 hours, thus endangering the security of the prison".

3. The hearing was chaired by an adjudicating officer who was a Superintendent in the Department and the applicant was found guilty as charged. The applicant lodged an appeal to the Commissioner. On 4 September 1998, the Commissioner informed the applicant's solicitors that :

" Having further considered the circumstances of this appeal, and for the purpose of fairness in proceedings, the Commissioner now directs that the whole of the evidence of this case be taken again by another adjudicating officer with the assistance of another prosecuting officer. A determination of this appeal will be made by the Commissioner once the evidence has been taken."

The evidence was retaken in another hearing. The applicant was represented by Mr Poon Chi Ming ("Mr Poon"), an officer in the Department. He was described as a defaulter representative in the transcript of the hearing. Mr Poon appeared for the applicant in both hearings.

4. On 13 October 1999, the Commissioner informed the applicant's solicitors that :

" After considering all evidence retaken under rule 255H, I am satisfied that your client has been given a full and fair hearing and that the charge is proven. I hereby dismiss the appeal."

The applicant obtained leave to apply for judicial review to challenge the decision of the Commissioner.

The Prison Rules

5. Under rule 255D of the Rules, an applicant may appeal against a finding by the Commissioner or other officer that she is guilty of a disciplinary offence.

6. 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.

The powers of the Chief Executive and Commissioner on appeal are set out in rule 255F :

" 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."

Rule 255H deals with the taking of further evidence :

" For the purpose of any appeal against a finding, the Chief Executive may -

(a) accept in whole or in part the record of the evidence already taken;

(b) direct that the whole or any part of the evidence be taken again or that additional evidence be taken,

and the Commissioner may, where the appeal lies to him, do any of those things and may also himself take the evidence or part thereof again or take the additional evidence."

The fundamental question

7. As the appeal was from the finding by a Superintendent, it lies under rule 255E to the Commissioner himself. Under rule 255H, the Commissioner has the power to direct that the evidence be taken again. While the Commissioner has the power to give such a direction, a fundamental question arises as to whether he can make a finding on the evidence when he did not preside the taking of the evidence and when the adjudicating officer had not made a finding of fact.

Fairness not observed

8. In my view, he is not entitled to do so. As the House of Lords in Regina v. Secretary of State for the Home Department, ex parte Doody [1993] 3 WLR 154 observed, where legislation confers an administrative power, there is a presumption that it will be exercised in a manner which is fair in all the circumstances. The power vested in the Commissioner to determine the appeal has not been exercised fairly in this case.

9. Mr Cheng Chi Leung ("Mr Cheng"), the Deputy Commissioner who determined the appeal on the delegated authority of the Commissioner stated that since the retaking of the evidence was for the purpose of an appeal as provided under the Rules, it was the Commissioner, not the adjudicating officer, to draw the finding from such evidence. What Mr Cheng had overlooked was that he was not present when the evidence were retaken and he did not have the opportunity of observing how the witnesses gave their evidence. In Pierre Simon Andre Sip Heng Wong Ng (Alias Wong) and Another v. The Queen [1987] 1 WLR 1356, the Privy Council, dealing with a criminal trial, stated that :

"... In a criminal trial, whether before a jury or before magistrates, it is a fundamental requirement of justice that those called upon to deliver the verdict must have heard all the evidence. The evaluation of oral evidence depends not only upon what is said but how it is said. Evidence that may ultimately read well in a transcript may have carried no conviction at all when it was being given. Those charged with returning a verdict in a criminal case have the duty cast upon them to assess and determine the reliability and veracity of the witnesses who give oral evidence, and it is upon this assessment that their verdict will ultimately depend. If they have not had the opportunity to carry out this vital part of their function as judges of the facts, they are disqualified from returning a verdict, and any verdict they purport to return must be quashed." (emphasis added)

10. Although the judgment was delivered in the context of a criminal trial, in my view, what was said by the Privy Council equally applies to the hearing of a disciplinary offence which involves findings of facts. The rationale is clear : the evaluation of oral evidence depends not only upon what is said but how it is said.

Irresistible inference of guilt?

11. Ms Mahomed, Government Counsel for the Commissioner, argued that the irresistible inference to be drawn from the evidence is that the applicant had indeed failed to lock up the grilles. I am not prepared to accept that this must necessarily be the case, particularly in the light of the challenge that had been lodged on the issue of procedural irregularity which I shall deal with later on. The court in exercising its supervisory jurisdiction in judicial review is concerned with the lawfulness of the decision and not on its merits. In my view, this is a classic case that illustrates the principle that justice must not only be done, but must be seen to be done. Both requirements are not satisfied in the present case. Justice requires the same person who hears the evidence to assess the evidence and make the finding. Mr Cheng in his note of finding actually stated that he had set aside the original proceedings. This being the case, the only evidence that should be considered was that of the second hearing and Mr Cheng did not hear the evidence personally. In my view, the procedural impropriety in the present case is so fundamental that the decision must be quashed.

Failure to give reasons and other procedural impropriety

12. There is another ground in which I think the decision must be quashed. It is the failure by the Commissioner to give reasons for his decision. This ground has to be considered in the light of the procedural impropriety that had occurred in the second hearing.

13. Mr Cheng, in his affirmation, stated that the Commissioner was not bound by law to give the applicant any reasoning in determining the appeal. In my view, the principles in this area had been fully summarized by our Court of Appeal in Dr Kwan Chee Keung v. Medical Council of Hong Kong [1999] 1 HKC 226, namely, that there is no general or primary obligation upon domestic tribunals to give reasons. However, a duty to give reasons may be imposed by statute. Further, the nature and circumstances of the adjudication may indicate a necessity for giving reasons, in which case the tribunal or the courts would readily imply a duty to give reasons. In Regina v. Higher Education Funding Council ex parte Institute of Dental Surgery [1994] 1 WLR 242, the English Court of Appeal gave examples of the classes of cases where there is a duty to give reasons for a decision :

"(2) One such class is where the subject matter is an interest so highly regarded by the law (for example, personal liberty), that fairness requires that reasons, at least for particular decisions, be given as of right.

(3) (a) Another such class is where the decision appears aberrant. Here fairness may require reasons so that the recipient may know whether the aberration is in the legal sense real (and so challengable) or apparent;

(b) it follows that this class does not include decisions which are themselves challengeable by reference only to the reasons for them. A pure exercise of academic judgment is such a decision. And

(c) Procedurally, the grant of leave in such cases will depend upon prima facie evidence that something has gone wrong. The respondent may then seek to demonstrate that it is not so and that the decision is an unalloyed exercise of an intrinsically unchallengeable judgment. If the respondent succeeds, the application fails. If the respondent fails, relief may take the form of an order of mandamus to give reasons, or (if a justiciable flaw has been established) other appropriate relief."

These cases are only examples. Ultimately whether reasons have to be given depends on the circumstances of the case. In this case Mr Cheng said that he had made a note of finding of the evidence taken although he did not say that this note was his reasons for the decision.

14. In my view, reasons are required in this particular case because of the challenge that had been made by the applicant in the second hearing. There were procedural impropriety in the hearing. The Commissioner in his decision must give reasons to show how he had dealt with these matters when he concluded that the charge against the applicant was proven.

Was another witness disciplined for the same offence?

15. One of the witnesses who gave evidence was PW3, Wong Bui Ching. She was another officer stationed in the Victoria prison. She was asked by Mr Poon whether she was disciplined for the same offence of failing to lock up the grilles of the F2 Ward. The transcript showed the following exchange :

"Pros. Offr:	I object because the question is irrelevant to the charge that laid against the officer charged.
Adj. Offr:	The charge was laid against the officer charged as stated on the charge sheet. Unless the D.R. has good reason to push through the question, the objection is sustained on reason that the witness should not be forced to incriminate herself.
DR (i.e. Mr Poon):	I just want to adduce the factual answer whether the  PW3 was disciplined in any way in relation to the charge laid against the officer charged.
Pros. Offr:	I will consider the question as irrelevant.
Adj. Offr:	The question would then be a factual question, and the PW3 would have to answer.
PW3:	I do not wish to answer."

Mr Poon, in his affirmation stated that :

" ... I remember clearly that after such a question was put to her, she thought over for sometime and did not give an answer straight away. Then the adjudicating officer told her that if she did not want to answer, she may say so. Upon such indication by the adjudicating officer, then she said she did not wish to answer."

Mr Poon stated that in the circumstances, there was no point for him to put further questions to the witness, but he did ask the prosecuting officer to confirm whether the witness was disciplined for the same offence. His request, however, was turned down.

16. The reason given by the adjudicating officer in upholding the objection of the prosecuting officer to disclose whether PW3 had been disciplined or not was that "the service record of a staff is a protected data under the relevant ordinances and rules." What apparently had been overlooked is that PW3 was a witness called by the Department to prove the guilt of the applicant. The allegation against the applicant was that she had failed to perform her duty in locking up the grilles. If PW3 had in fact been disciplined as well, then clearly this was a relevant matter in deciding whether the charge against the applicant had been proved or not. Was the applicant solely responsible for the neglect or was someone else also at fault? This was a relevant matter on the credibility of PW3 and the guilt of the applicant. The information should be made available to the applicant. It was not.

17. The Commissioner clearly had information on whether PW3 had been disciplined or not. If she was not disciplined, then the simplest way is for the Commissioner to say so. If, however, she was, then fairness would demand the Commissioner to give reasons for his decision which would show why this matter was irrelevant. In my view, the applicant is indeed left with a sense of real grievance that the Commissioner would make a finding against her without giving a reason.

Interference of witness

18. Another witness, PW8, Ng King Shan, gave evidence in both hearings. One of the grounds of appeal lodged by the applicant to the Commissioner was that this witness had been interfered with by the prosecuting officer. The witness had lodged complaints of the interference to the Principal Officer (Security), the adjudicating officer and the ICAC. It appeared that it was the complaint by the solicitors that this witness had been interfered with which caused the Commissioner to decide initially to have the evidence of PW8 being retaken again. The initial decision was that the same adjudicating officer would take the evidence. Subsequently, as appeared from the letter of 13 October 1999, the Commissioner ordered the whole of the evidence to be retaken by another adjudicating officer and another prosecuting officer.

19. In the second hearing, Mr Poon asked whether PW8 had made a report to ICAC. The adjudicating officer upheld the objection to this question as being irrelevant. Mr Poon is not a lawyer and one would not expect him to raise legal arguments on why the question was necessary. In my view, the adjudicating officer should at least ascertain from Mr Poon why the question was necessary before he disallowed it. Afterall, if it had been alleged that a witness had been interfered with on a previous hearing, then clearly the reliability of the witness' evidence came into issue. Again, one would expect the Commissioner to provide reasons why he would consider this aspect of the case not relevant in the assessment of the evidence.

Investigation report

20. PW1 was the Day Orderly Officer in Victoria Prison during the time of the offence. Four possibilities were suggested by Mr Poon to PW1 on how the grille gates were not locked up. They were :

(1) the locks were out of order;

(2) the grille gates were unlocked by someone with keys drawn from the communication room after they had been locked up;

(3) the grille gates were tampered by the prisoners that caused them to be unlocked;

(4) the responsible staff had failed to lock up the grille gates.

Mr Poon asked PW1 whether he had compiled a report after the incident. If yes, he would ask for a copy of the report. This was objected by the prosecuting officer and the adjudicating officer ruled that :

"No investigation report has been referred to by PW1. I have examined the list of exhibit and confirmed that an investigation report has not been included as part of the exhibits. I accept that an 'investigation report' is not relevant to the proceeding at the present stage. Objection upheld."

21. The reason given by the adjudicating officer was not a reason at all. In my view the fact that PW1 had not referred to an investigation report was not a ground for disallowing the question. Mr Poon, in his affirmation stated that in the first hearing of the case, it was confirmed that there was such an investigation report. Whether the report was relevant or not clearly had to be seen first. In any event, if there was an investigation on the incident, then one would expect the report to contain matters relevant to the incident itself. The report clearly was a document that should be disclosed to the applicant.

22. Mr Poon stated that he had represented numerous of his colleagues in their disciplinary hearings and the investigation report in relation to the charges would be provided to the defaulter representative and the defaulter upon request. However, this time, out of usual practice, the investigation report was not provided. In my view, the Commissioner in finding against the appellant must provide reasons why the investigation report was of no relevance and why it was not provided to the applicant in the first place. Fairness requires reasons to be given.

Further evidence?

23. The decision of the Commissioner should be quashed. There was argument from the parties whether I should remit the case to the Commissioner with directions. Ms Mahomed submitted that I can simply remit the appeal back to the Commissioner to reconsider and reach a decision in accordance with the findings of the court. While this is the usual approach, there is a matter which will preclude me from making such an order. Although in the correspondence with the applicant's solicitors, the Department of Justice which represented the Commissioner had not dealt with the status of the evidence that were taken in the first hearing, Mr Cheng in his note of finding stated that he had set aside the original proceedings. If he had set aside the original proceedings, then it would seem that there was simply no basis to find guilt against the applicant. As the matter now stands, I am not prepared to make further orders.

Conclusion

24. The decision of the Commissioner on 13 October 1999 is quashed. The applicant is entitled to costs nisi of this application.