RE NG MUK KAM

HCAL 14/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 14 OF 2010

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J U D G M E N T

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1.  This is an application for leave to apply for judicial review.

2.  The applicant is a prisoner at Shek Pik Prison, serving a sentence of life imprisonment for drug trafficking. However, there is evidence to the effect that subject to good behaviour, the applicant, who has been imprisoned since 1993, may be released from prison not earlier than 12 December 2016.

3.  During his imprisonment, the applicant has been involved in four disciplinary proceedings. The first two happened more than seven years ago and the papers can no longer be located. The third one took place in 2005 and the applicant pleaded guilty in the proceedings.

4.  The fourth disciplinary matter, the subject matter of the present proposed challenge, took place on 6 October 2007. The applicant was charged with having in his possession two tea bags without permission, contrary to rule 61(k)(i) of the Prison Rules (Cap 234A).

5.  After a hearing in which three correctional services officers gave evidence against him and one other correctional services officer was called as a defence witness, on 17 October 2007, the applicant was convicted of the disciplinary charge and sentenced accordingly:

(i)  forfeiture of remission of sentence of two days;

(ii)  deprivation of earnings of seven days;

(iii)  forfeiture of privileges for seven days; and

(iv)  separate confinement for seven days.

6.  The applicant says that during the hearing, he requested for legal assistance and representation, but his requests were refused.

7.  The applicant also says that he was unaware of any right of appeal to the Commissioner of Correctional Services, and no appeal was lodged.

8.  The applicant claims that he became aware of the decision of Fung J in Wong Tak Wai v Commissioner of Correctional Services, HCAL 64/2008, 31 August 2009, in early September 2009 from newspapers that he read. He then realised that he had not had a fair hearing in the disciplinary proceedings in question, and according to Wong Tak Wai, the proceedings and award made therein were liable to be quashed. He lost no time in applying for legal aid to challenge the same and his application was eventually granted on 22 January 2010. The form 86 was filed on 1 February 2010.

9.  Relying on Wong Tak Wai, which is under appeal, and a number of other local as well as overseas authorities, including the Court of Final Appeal’s decision in Lam Siu Po v Commissioner of Police [2009] 4 HKLRD 575 (26 March 2009), various grounds have been put forward in the form 86 and by counsel at the hearing to challenge the disciplinary proceedings. In essence, the applicant complains that he has not received a fair hearing, in breach of his constitutional as well as common law rights.

10.  In the light of those authorities, I accept that the applicant has a reasonably arguable case with a real prospect of success. If he had made his application within the three-month time limit for applying for leave, his application for leave would have been granted.

11.  However, the complication in the present case is that he is out of time by more than two years.

12.  The only reason for the applicant’s lengthy delay is his ignorance of the law. In this regard, of course, one must bear in mind that he is a prisoner serving a life sentence. He has been imprisoned since 1993, and his contact with the outside world is very restricted. In particular, his access to legal advice is limited. Although there is no suggestion that he cannot apply for legal aid from prison, it is accepted that making such an application is, by comparison, not as convenient a matter to him as to those living freely in the society.

13.  All this must be borne in mind.

14.  However, they are only some of the considerations to take into account. This Court has in the recent case of Tsui Kin Kwok Johnnie v Commissioner of Police HCAL 50/2009, 26 February 2010, dealt with a late application for leave to apply for judicial review to challenge certain decisions made in police disciplinary proceedings by an ex-policeman. There are certainly differences between the position of a police officer or an ex-police officer and that of a serving prisoner. In particular, the prisoner’s access to legal assistance is, as mentioned, restricted. However, the general principles discussed by the Court in Tsui Kin Kwok Johnnie are nonetheless of relevance.

15.  In particular, the ultimate question is whether there is “good reason” for extending the period within which the application for leave to apply for judicial review shall be made.

16.  In paragraph 31 of its judgment in Tsui Kin Kwok Johnnie, this Court points out that a change in the understanding of the law cannot, by itself, justify an extension of time, save in exceptional circumstances. This general principle applies, in my view, to prison disciplinary proceedings.

17.  In fact, prior to Wong Tak Wai, there simply was no local authority directly on the point in question. The law in this regard was, strictly speaking, very much “open”, although most people, if not everyone, must have assumed then that the relevant provisions governing prison disciplinary proceedings were lawful and valid.

18.  Finality of proceedings, as an important public policy consideration, assumes additional significance in prison disciplinary matters. Discipline is an important aspect of prison life. It is essential to prison management and control. Decisions made in prison disciplinary proceedings should not be lightly disturbed or reopened, particularly after the lapse of a substantial period of time, as this would, self-evidently, not be conducive to the good administration of prisons.

19.  As has been pointed out also in Tsui Kin Kwok Johnnie (para 38), the fact that a proposed challenge, if allowed to be made out of time, is likely to succeed is not a sufficient exceptional circumstance for an extension to be granted, although a lack of substantial merits would be a good reason to refuse an extension.

20.  In the present case, as I said, I accept that the applicant has a reasonably arguable case with a real prospect of success, if he is allowed to mount his challenge out of time. However, that by itself cannot be an exceptional circumstance for granting an extension of time. Moreover, in the overall consideration of the entire circumstances, this factor, although relevant, cannot be given too much weight.

21.  I have already mentioned the peculiar situation faced by the applicant as a serving prisoner, in terms of access to legal assistance. I accept that he stands in a disadvantaged position when compared with others. This is a consideration of significance, but it is not the only material consideration.

22.  I also bear in mind the prejudice to the applicant in terms of his sense of injustice and aggrieved feelings, and also in terms of the award that he was given. He has been forfeited of two days’ remission and deprived of earnings of seven days. He has also been deprived of privileges for seven days and separately confined for seven days. These are serious matters that cannot be lightly ignored. However, again, they are not conclusive considerations, and must be considered in conjunction with all other relevant matters.

23.  I have mentioned the importance of discipline in the present context, and how it impacts on the question of finality. On a more practical level, if the disciplinary proceedings were allowed to be challenged and the challenge were to be successful, there are real doubts as to whether it would be practically possible to rehear the disciplinary matter in fresh proceedings. In all likelihood, the exhibits involved must have been disposed of by now, but even assuming that that is not a matter of great significance, memories of the witnesses must have been affected due to the long lapse of time. That said, I accept the submission of Mr Andy Lam, who has said everything possible for the applicant at the oral hearing, that such practical difficulties have not prevented the courts in some of the cases referred to by him from granting appropriate relief despite the long lapses of time since the subject matters of challenge first arose. For my part, I accept the possible practical difficulties as a relevant consideration, but do not accord it more weight than it deserves.

24.  The length of delay itself is of course a relevant consideration, but on final analysis, its real significance lies in its effect, if any, on matters such as prejudice and detriment to good administration. I have borne the length of delay in mind accordingly.

25.  I have borne in mind the constitutional challenges proposed to be mounted against the various relevant provisions. However, I also bear in mind that the matter has essentially been dealt with in Wong Tak Wai, and the Court of Appeal will revisit the same in due course.

26.  Mr Lam has very rightly reminded this Court of its own decision in Chan Ka Man v Commissioner of Correctional Services, HCAL 111/2009, 21 October 2009, in which the Court granted an extension of time to apply for leave to challenge two prison disciplinary awards.

27.  However, Chan Ka Man is of very peculiar facts. There, the prisoner had faced previous disciplinary proceedings, and had actually applied for legal aid at the time to challenge those earlier awards. However, his applications for legal aid had all been unsuccessful on the ground that he had no merits. That explained why when it came to the subject awards, he did not take any step to challenge the awards. However, once he learned of the decision of Fung J in Wong Tak Wai, he immediately applied for legal aid again to challenge the awards. In those circumstances, bearing in mind that the applicant there was a prisoner at all material times and his access to legal assistance was restricted, the Court took the view that there were indeed exceptional circumstances to justify an extension of time.

28.  Chan Ka Man was a quick decision in the sense that there was urgency in deciding the question of extension of time and leave to apply for judicial review. If the proposed challenge of the applicant there was allowed to be run and if it was to be eventually upheld, he would have been entitled to be released within days of the making of the application for leave to apply for judicial review. The Court eventually came down on granting him an extension of time as well as leave to apply for judicial review, so as to enable him to be released almost immediately by way of interim relief. However, the Court observed in paragraph 4 of the judgment that its decision did not mean that the Commissioner could not rely on delay to resist the substantive application.

29.  It is also a fair observation to make that in Chan Ka Man, due to the urgency of the matter, the Court did not have the benefit of detailed submissions, whether on the law or on the facts, unlike what it has since enjoyed in cases such as Tsui Kin Kwok Johnnie. The government counsel appearing for the Commissioner in Chan Ka Man was not to blame. She was called upon to assist the Court at very short notice.

30.  Nonetheless, the short point is that Chan Ka Man is a decision on its own peculiar facts, and does not decide any general principles of law. In any event, it is not binding on this Court.

31.  As I observed in Tsui Kin Kwok Johnnie (para 30), the entire circumstances of each individual case must be looked at, and the discretion of the Court must be exercised in accordance with the facts and circumstances in each individual case.

32.  The Court has done precisely that. The above simply sets out the more important considerations that the Court has borne in mind. Having considered all relevant matters and the case as a whole, I have concluded that time should not be extended. The application for leave is refused, with no order as to costs, save that the applicant’s own costs shall be taxed in accordance with applicable legal aid regulations.