LI SIU HING v. COMMISSIONER OF CORRECTIONAL SERVICES

CACV 277/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 277 OF 2009

(ON APPEAL FROM HCAL NO. 129 OF 2009)

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J U D G M E N T

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Hon Tang VP:

1.  The applicant is a serving prisoner. 

2.  By a decision of the Commissioner of Correctional Services (“the Commissioner”) dated 19 January 2007, the applicant was awarded loss of 25 days remission for two disciplinary convictions.    He would be released on 2 September 2010 otherwise.  I presume that he is entitled to a one-third remission of his sentence subject to forfeiture as a result of disciplinary convictions (Rule 69 of the Prison Rules, Cap. 234A). 

3.  An application for leave to apply for judicial review was lodged on 27 November 2009 to quash the decision.  The grounds for quashing the decision are that the adjudicating tribunal was not independent; and that a lower standard of proof, namely, proof on the balance of probabilities had been applied. 

4.  It is clear that the application was prompted by the decision of Fung J in Wong Tak Wai v Commissioner of Correctional Services, HCAL 64/2008 (unreported, dated 31 August 2009), where the learned judge held that Art. 10 of the Hong Kong Bill of Rights requires that such disciplinary proceedings be dealt with by an independent superintendent from another penal institution and that the criminal standard of proof should be applied in such criminal proceedings.  See for example, Form 86 which stated that although the application:

“13.   … is more than 34 months out of time it is within time as measured from the date of the judgment of Fung J in Wong Tak Wai.”

5.  In refusing leave, on consideration of the documents only, A Cheung J made the following observations:

“1. That the previous understanding of the law has subsequently been held to be incorrect would by itself not justify an extension of time, save for exceptional circumstances: cf HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614 at paras 23 to 27; Lau Luen Hung Thomas v Insider Dealing Tribunal FAMV 46/2009, 4 December 2009.

2.  Having taken into consideration all relevant matters, including, in particular, the length of delay, the reason and explanation for the delay, the merits of the proposed challenge, the prejudice to the applicant (in terms of loss of liberty), the detriment to good administration, and the legal policy of finality, a balanced exercise of discretion requires that leave to extend time be refused.”

6.  Mr Kwok Sui Hay, appearing for the applicant, submitted that although in support of the application the applicant had relied on the decision in Wong Tak Wai:

“8. The decision in Wong Tak Wai did not change, or give a new understanding to, any law.  The decision was an application of well established legal principles to facts of the case.”

7.  He submitted that the learned judge had misunderstood Wong Tak Wai as “changing” the law when he relied on the HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614 and Lau Luen Hung Thomas v. Insider Dealing Tribunal and Anor, FAMV 46 of 2009 (unreported, dated 4 December 2009). 

8.  Here we are concerned with an application for, inter alia, an order for certiorari to quash the decision of the Commissioner.  There is a time limit of:

“(1)   … three months from the date when grounds for the application first arose unless the Court considers that there is good reason for extending …”  O. 53 r.4

9.  Extension of time is not granted unless there are good reasons.  In civil cases, it is difficult to conceive of a case where extension of time to appeal is granted after a long delay on the ground that a subsequent decision  has “changed” the law.  In criminal cases, it is a matter of discretion to be exercised in accordance with Hung Chan Wa.  Hung Chan Wa decided that a change in the law, even though it would result in the appeal being allowed, were time to appeal extended, is not a sufficiently good reason for extension of time to be granted.  But there may be circumstances in a particular case which are so exceptional that the court would grant an extension.  The reason why the court requires such exceptional circumstances is because “the courts recognize the practical necessity for finality in the criminal process”.  See per Li CJ at 632 at para. 24.  But for the practical necessity for finality, one would have thought that the fact that no appeal was made within time because of a settled but erroneous view of the law is a good reason for extension of time. 

10.  In this case, I believe the approach adopted in criminal cases should be adopted.  But, it is wrong to regard the Hung Chan Wa test as more onerous.  Where the delay is not the consequence of a known (and erroneous) state of the law, it is difficult to understand why an applicant should be treated more favourably.  In such cases the practical necessity of finality applies with greater force.

11.  It is in the interest of society for there to be finality in any legal process.  The practical necessity for finality does not depend on whether what prompted an application for extension of time to be made is a decision which has “changed” the law or exposed the fallacy of a previous understanding of the law.  Such decisions may explain the late application.  The fact that an appeal was prompted by such an event is in favour of an applicant for extension of time.  But it is not sufficient in the absence of truly exceptional circumstances.  An applicant who had failed to appeal notwithstanding that the law could not be said to be settled against him could hardly deserve more sympathy from the court. 

12.  Mr Kwok relied on Chiu Hoi Po v. Commissioner of Police, FACV 9/2009 (unreported, dated 24 July 2009).  But it is clearly distinguishable.  In that case, the Court of Final Appeal gave leave to the applicant to argue a new point on appeal based on Art. 10 of the Hong Kong Bill of Rights.  In that case, the applicant’s appeals to the Court of Appeal and to the Court of Appeal were all lodged in time.  He did not require an extension of time to appeal. 

13.  Mr Kwok also relied on the decision of what Bokhary JA (as he then was) said in the Court of Appeal in Nguyen Tuan Cuong and Ors v. Director Of Immigration and Ors, CACV 196/1995 (unreported, dated 8 February 1996), at p. 23 of the judgment:

“[Counsel for the Director of Immigration] also relies on delay and detriment to good administration.  I would not withhold relief on either of those bases.  The appellants did not sit on their rights.  They were unaware of them.  So was, as it happens, the Director despite all the legal advice so readily available to him.  And as for good administration, I think that it is dealing with the appellants otherwise than in strict conformity with the law which would, in all the circumstances, be detrimental to good administration.”

14.  However, Bokhary JA was not concerned with an application for an extension of time to apply for judicial review.  In that case, an extension of time to make the application had been granted.  His lordship was there concerned with whether the relief should be withheld because of delay.

15.  Mr Kwok submitted that the theoretical basis for finality is the concept of merger.  In R v Unger [1977] 2 NSWLR 990 at 995 where Mr Justice Street, the Chief Justice of Australia said:

“This concept of merger is no blind, arbitrary proposition. It is founded deeply in the fabric of the philosophy of the common law. Although in pure theory the overruling or modification by judicial decision of previous conceptions of legal principle does no more than correct a departure from the timeless perfection of the law, the plain fact is that legal principle is constantly evolving and being moulded in the light of the changing and developing social context. Recognizing this, there has always been an unwillingness to permit the re-opening of past decisions. Indeed the process of appeal, either civil or criminal, is a comparatively recent and statutory concept - it finds no basis in the common law itself. This finality of decision in each individual case leaves the courts free to permit a judicious flexibility in the development of principle in later cases, free from inhibition lest such development may set at large disputes that have previously been resolved. The concept of merger in judgment, both in the civil and in the criminal field, to which Dixon C.J. referred, equally with the doctrine of res judicata, serves this requirement of flexibility for potential development of the law.”

16.  He submitted that the doctrine of merger can have no application here since the Commissioner’s decision was not a judgment of the court.  This is not the occasion to discuss whether, it is now necessary to resort to the concept of merger, except perhaps in cases where as a result of a later decision the offence for which an applicant had been convicted turned out to be a non existent offence.  It is sufficient for the present purpose to say that the authority to detain the applicant stems from the judgment of the court.  That stands and is not being challenged.  It is the legality of the withholding or forfeiture of remission which is being challenged.  On that, the practical necessity for finality is a sufficient reason to refuse an extension of time.

17.  Mr Kwok also submitted that even if an extension of time is not granted, the applicant could apply for a writ of habeas corpus at a later time.  I say nothing about that.  If and when such an application is made, the court will deal with it. 

18.  Mr Kwok also relied on R v. Hawkins [1997] 1 Cr. App. R. 234 and submitted the test is whether:

“… any substantial injustice has been done” 240E (per Lord Bingham LCJ (as he then was).

19.  In R v. Ballinger [2005] 2 Cr. App. R. 433, another decision of the English Court of Appeal, Hawkins was applied.  There the applicant who was a Petty Officer Physical Trainer in the Royal Navy was convicted of an offence of indecent assault and was sentenced, inter alia, to a term of detention and dismissal from the service.  He was advised against appeal on that basis that the authorities established that a Naval Court Martial was compatible with the European Convention on Human Rights.  He was convicted on 2 April 2003.  In July 2004 he was advised that on the basis of a decision in the Court of Appeal, the previous advice that there was no ground of appeal was wrong.  On an application for leave to appeal out of time, the Court of Appeal refused leave.  The applicant submitted that he had suffered a substantial injustice; he has been wrongly convicted and the consequences for him are enormous both in terms of his sentence of detention, his dismissal from the service and the financial consequences.  Scott Baker LJ giving the judgment of the court said at 438:

“In our view, however this is not sufficient to bring him within the test envisaged by the Chief Justice in Hawkins.  We accept the submission … that this applicant has not been able to show any substantial injury or injustice.”

20.  The authorities are clear that the fact that if an extension of time is granted, the conviction would be quashed and the applicant would regain his liberty, is not of itself an exceptional circumstances warranting an extension of time.

21.  In Mr Kwok’s further written submission, he relied on the fact that in a similar case an extension of time had been granted by A Cheung J Chan Ka Man v. Commissioner of Correctional Services, HCAL 111/2009 (unreported, 21 October 2009).  There, the applicant challenged nine convictions in relation to which he was found guilty of disciplinary offences as a result of which he has lost 10 days of remission.  He was granted leave to apply out of time in respect of two convictions.  The delay was about 18 months in one conviction and 12 months in the other. 

22.  In A Cheung J’s judgment of 21 October 2009, he said:

“2. So far as the applicant’s challenge, or proposed challenge, being out of time is concerned, I note that there are exceptional circumstances.  Indeed, the applicant, a prisoner, has applied for legal aid to challenge similar earlier awards but his applications for legal aid have been unsuccessful.  That explains why he failed to take action to challenge the earlier awards or Awards (8) and (9).  But once he learned of the decision of Fung J in Wong Tak Wai v Commissioner of Correctional Services HCAL 64/2008, 31 August 2009, he immediately applied for legal aid again to challenge the awards.  The application took time and he was eventually granted legal aid and thus the present application.

3.  In those circumstances, bearing in mind that the applicant is, and was at all material times, a prisoner and his access to legal advice was, understandably, restricted, I take the view that there are indeed exceptional circumstances to justify an extension of time.  In doing so, I have also borne in mind the merits of his proposed challenge, based on the judgment of Fung J in Wong Tak Wai, even though that case is under appeal.”

4.  Having said that, it does not mean that the Commissioner cannot rely on delay to resist the substantive application, but that would be a matter for the substantive hearing.”

23.  Mr Kwok also referred to the fact that in Wong Tak Wai, Poon J had granted an extension of time to apply for judicial review notwithstanding substantial delay.  Mr Kwok submitted that Chan Ka Man and Wong Tak Wai had been given priority by the Legal Aid Department due to their imminent release dates.  He also mentioned that the Legal Aid Department has been inundated by similar applications. 

24.  In Tsang Yiu Kai and Ors v. Insider Dealing Tribunal, HCMP 1322/2007 (unreported, dated 18 December 2007), the appellants, who had been found to be insider dealers, after a delay of about 1½ years, sought leave to appeal out of time as a result of the decision of Court of Appeal in Koon Wing Yee v Insider Dealing Tribunal and Anor, CACV 358/2005 and CACV 360/2005 (unreported, dated 30 May 2007).  Leave was granted ex parte by Rogers VP.  The extension of time was set aside by a court of two judges (Tang VP and Yuen JA) applying Hung Chan Wa.

25.  Also in Lau Luen Hung Thomas v. Insider Dealing Tribunal and Anor, HCMP 1161/2007 (unreported, dated 11 September 2007), the applicant had been found to be an insider dealer and there was a delay of about 5 months.  After an inter partes hearing Cheung JA granted leave to appeal out of time.  That was set aside by Ma CJHC and Stock JA in HCMP 1751/2007 (unreported, 28 February 2008). 

26.  I say nothing about whether extensions of time ought properly to have been granted in Chan Ka Man and Wong Tak Wai.  I say, however, that it must not be assumed because leave had been granted in some cases, leave would continue to be granted.  Nor that that those decisions would have survived challenges in this Court.  What we have to consider is whether in this case the exercise of discretion by A Cheung J can be faulted.  With respect, I think not.  I would dismiss the appeal.

Hon Wright J:

27.  I agree.