RE SAKCHAI SUWANNAPENG

Head Note

                    Judicial Review - Prisoner on remand placed in solitary confinement - Prison ordinance (Cap 234) and Prison Rules - legality of Departmental Standing order - Close Supervision Unit - power of the Court to review an order of Prison officials.

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS NO.157 OF 1990

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JUDGMENT

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1. This application for Judicial Review is unusual and raises an important question with regard to the legality of certain categories of imprisonment imposed by the Commissioner of Correctional Services through one of his Senior Superintendents. There is also an application of Habeas Corpus, which I have adjourned, as I consider I have sufficient power within the ambit of Judicial Review to enable me to do justice to the parties.

Background facts

2. The applicant is a Thai Citizen. He was arrested at Kai Tax Airport on October 21st 1989 for an alleged drug conspiracy.

3. On October 23rd, he was remanded to Lai Chi Kok pending extradition proceedings.

4. On October 27th, he was placed in category A confinement and since November 1st has been in solitary confinement in what is called the Close Supervision Unit'. This means that he is kept in his prison cell for approximately 23 hours a day.

5. On December 16th 1989, his solicitor wrote and asked the Senior Superintendent of Lai Chi Kok to explain why he could not have association, as before, with other prisoners. This letter was not answered until December 27th, when the Acting Senior Superintendent said that he had been "separated from the main prisoner community on management grounds".

6. On January 16th, I granted leave to move for Judicial Review. I would like to say at the outset I am grateful to Mr. Logan and those who instruct him for preparing their affidavits expeditiously and allowing the hearing to take place within a week.

7. I am not going to go into the facts behind the extradition proceedings, other than to say generally that the applicant together with other persons is said to be an importer of substantial quantities of heroin into the United States. He was, as other persons before him have been, targeted by the United States Drug Enforcement Agency as a major drug trafficker. What had happened was that statues were brought into the United States; when they were broken open, they were found to contain substantial quantities of heroin.

Statutory Provisions

8. The control of prisoners, their methods of detention and their rights are set out in the Prison Ordinance, Cap 234.

9. Cells are certified under S.6, and by virtue of S.6(5) "in every prison special cells shall be provided for the temporary confinement of refractory or violent prisoners."

10. S.25(1) permits the Governor in Council to make rules providing for (h) "the classification, clothing, maintenance, employment, discipline, instruction and correction of the prisoners".

11. Prison Rules were made in 1954 and have from time to time been amended.

12. Rules 57 to 65 deal with Prison Discipline.

13. Rule 58 "A prisoner who has been reported for an offence shall be kept apart from other prisoners pending adjudication".

14. Rule 59 "It shall be the duty of the Principal officer on duty before he accepts a report made against a prisoner, to inform such prisoner of the facts alleged against him and to afford him an opportunity of making his reply."

15. The punishment for the large number of offences set out under Rule 61, includes "seperate confinement for any period not exceeding 28 days".

16. Rule 68 permits violent or refractory prisoners to be temporarily confined in special cells.

17. Rule 77 permits the Commissioner to run the prisons and to issue all necessary orders for the government of the prisons.

18. Part II contains Special Rules for particular classes of prisoners.

19. This applicant is awaiting extradition proceedings and by virtue of Rule 188(1)(d) is a "prisoner awaiting trial". He does not have to carry out any labour and has a number of privileges not afforded to ordinary prisoners. Prisoners awaiting trial are also kept apart from convicted prisoners (Rule 190).

20. Rule 217 provides that prisoners under sentence of death "shall be confined in a seperate cell apart from all other prisoners". This may be an additional punishment and of course they are kept under close supervision because they may be liable to harm themselves.

21. It is clear, in my judgment, from a perusal of the Rules and the Ordinance that (i) segregation is a punishment for those who break, or are likely to break, prison discipline, or are under sentence of death or are violent persons; and (ii) remand prisoners who are dealt with under Part II of the Rules fall into a special category. They have a less restricted regime. For example, they can have food and half a bottle of wine a day brought into the prison. This applicant has not been convicted of any offence, has caused no trouble and his extradition proceedings have not even started.

22. Why has this applicant been put into solitary confinement as it is described? I have no doubt that those words are properly used by Mr. McCoy, because although this applicant can be visited by the prison doctor and his wife can visit for 15 minutes a day, it appears to me that it is solitary confinement to lock a man up 23 hours a day without his general right of association with other prisoners. I confess I have found the reasons put forward by this particular prison Superintendent to be confusing. He said first it was for "management reasons", then apparently he told the visiting Justices, or one of his officers told them, that it was for security reasons. It has peen suggested that the applicant might break out of jail, or corrupt inmates to help him break out. Then it is said he might corrupt warders and finally that someone from the drug syndicate, or perhaps someone connected with the Burmese Army might try and eliminate him. I find many of these suggestions fanciful.

23. There is no doubt that this applicant had been in an ordinary dormitory with a general right of association with other prisoners for a number of days. Apparently he had done nothing wrong. during that period of time. It was only after a Chinese newspaper published a report that he was in some way connected with the Burmese Army that he was moved to solitary confinement. He was not told the reason why. He was not given any opportunity to put forward any reason as to why his right for general association should be removed. It is said that Interpol have recently stated that he might escape, and the Superintendent in a disclosed memorandum is of the view that this man is of enormous wealth and influence. He might corrupt anyone apparently who comes into contact with him.

24. I confess 1 find it difficult to know from where the Superintendent obtained that information, as much of what he says in his memorandum appears to be supposition on his part.

25. It goes without saying that a prison is supposed to be secure. 1 am told that Lai Chi Kok is secure and no one has ever escaped from it. There is no justification in common sense for a man to be put in solitary confinement merely because it is thought he might escape. What is the justification in law for the Superintendent's actions? It is said to be Rule 36(2):

 

"Whenever in the opinion of the Superintendent, it is desirable either in the interests of prisoner or in the interests of prison discipline, that a prisoner should perform his labour in a cell, the Superintendent may order him to do soy and in such case, he shall perform such labour as can be suitably performed in a cell."

26. This is part of a group of Rules dealing with the health and cleaniness of prisoners and it relates to the labour which a convicted prisoner must to do by virtue of Rule 38. When he is on remand, a prisoner does not have to undertake any labour whatsoever. This Rule is quite different from the well-known English Prison Rule 43 which provides:

27. The effect of saying that the legal justification for the Superintendent's action is found in Rule 36(2) means this - that although a person who breaks prison discipline, has the benefit of a form of trial, in the sense that he is told what the charge is and is given an opportunity to reply,and on conviction can only be segregated for a maximum of 28 days as a punishment - someone who has committee no offence, has caused no trouble, is not told the reason why and is given no opportunity to put forward his own point of view, can be   segregated for some 8U days. It is right that under Rule 36(3), there is a monthly review by the Commissioner of the matter, but in my judgment it is a matter of significance that this punishment can be accorded to someone at the Superintendent's own option.

28. There has been disclosed a Departmental Standing Order which causes me serious concern. This emanated from the then Commissioner, I am told, in 1973 and established special units Para. 1 says:

 

"The main purpose of a special unit is to enable staff to forestall serious trouble by isolating certain prisoners from the prison community. It will not be necessary for a prisoner to have committed a disciplinary offence before he is allocated to the special unit and the unit is not, therefore, a conventional punishment wing, although it will perform some of the functions of such a wing. it is not to be regarded as a unit in which prisoners on the escape list are to be normally located. The unit should be seen as an instrument of management and control rather than a security measure. The undesirability of locating a prisoner in' the special unit for long periods should be kept constantly in mind, and the aim should be to transfer a prisoner back to the main prison as soon as possible provided this is compatible with the interests of the prison community as whole."

29. The reason for not keeping a prisoner in this unit for a long period is, in my judgment, because it is clear this is a punishment unit. I am reinforced in my view, as I am told by Mr. Logan that a medical officer has to examine such a prisoner everyday to see whether or not that person is showing signs of distress.

30. Paragraph 3 of this order says the special unit should comprise the following units for the types of prisoners as listed:

31. Rule 68 already empowers violent or refractory prisoners to be kept in special cells.

32. There is no legal power I can find to punish subversive prisoners. A subversive person may be someone who holds a different political standpoint to the Government it has hot escaped my judicial notice that some citizens in Hong Kong who wish to have democracy, may be said by those in other places to be subversive. This close supervision unit' does not appear to have the legal approval of the Governor in Council. The Prison Ordinance provides that the Governor in Council can by Rules categorize prisoners, - but this does not appear to have been done. I have been given no evidence that this memorandum has ever been disclosed to or discussed by the Executive Council. To estabish such an important unit in Hong Kong, which apparently has been operating for a number of years, for the punishment of prisoners because their particular crime or alleged crime is considered to be socially or politically unacceptable, is one no right minded demoncracy should countenance. The fact that a person is a drug smuggler, or a political activist does not mean he should be singled out for special treatment when in prison. Everyone including prisoners, have certain basic rights and these are riot to be taken away unless the law so permits.

33. Mr. Logan submits that this is a management matter and the court should not interfere with how the Superintendent may run his prison. It has been said on a number of occasion before that this court is not an appellate court from decisions of Government Departments, and a Judge should not substitute his own discretion for that of the Government Minister or Officer, because otherwise he would be giving himself a power which the Ordinance specifically gives to that Government official see e.g. Chief Constable of the North West Police v Evans (1982) 1WLR 1155 and In re Chun Yuet-Bun (1988) 1HKLR 336. The Judge is, however, entitled to interfere if that Minister or Officer is exercising his discretion unlawfully. However powerful and important a Government Department is, and however unmeritorious a subject's personal case appears to be, nevertheless, all persons must be treated according to the law. The role of an independent Judiciary is to ensure that if citizens' rights are infringed by a Government Department that must only happen according to the law, and if the infringement is unlawful, it is for the Judiciary to declare it to be so.

34. In Leech v Deputy Governor Parkhurrt Prison (1986) AC 533 an important decision as to the supervisory role of the court over prisoners kept in lawful custody, the House of Lords has now said that the courts are entitled if they consider that something unlawful is happening to "look over the prison walls".

35. I have come to the following conclusions.(i) The segregation of prisoners in solitary confinement under Rule 36(2) is unlawful, unless the prisoner so requests it. The Government should give consideration to a Rule similar to the English Rule 43, if it wishes prisoners to be kept separate. A prisoner unless he has voluntarily requested separate confinement, has no safeguards, such as I find in the Rules dealing with prison discipline. He is not told the reason why he has been segregated, he is given no opportunity to make any comment. He can do nothing about it.

                (ii) Even if I were wrong and Rule 36(2) does in some way permit the Superintendent, whenever he forms that opinion, to put prisoners in solitary confinement, then I can find no evidence here that would justify him in so doing. I can find nothing to show that it was in the interests of prison discipline that this prisoner be kept in solitary confinement. There is no evidence that this man has done anything wrong, has broken or is about to break prison discipline. What has happened is that he is said to be a major drug smuggler.

                (iii) The Departmental Standing Order No. 3796 in so far as it tells prison Superintendents that subversive prisoners can be put into solitary confinement is unlawful, and I recommend that the utilization of Close Supervision Units should be sanctioned by the Governor in Council. It is submitted by Mr. Loran that the Commissioner under Rule 77 can make this order.

36. I do not agree. The Commissioner can only act within the law. He is not entitled to impose on prisoners a harsher regime than the law permits.

37. In my judgment the order to segregate this applicant was unlawful and he should be returned to normal association. Unless the Attorney General gives me an undertaking to so return him, I will grant a declaration that he is being unlawfully held.

38. The undertaking now being given, I make no order save that the Applicant has his costs.