BRIAN ALFRED HALL v. SECRETARY FOR JUSTICE

HCAL 84/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 84 OF 2004

---------------------

----------------------

-------------------------

J U D G M E N T

-------------------------

Introduction

1. In this application for judicial review, the applicant seeks to have a Standing Order issued by the Commissioner of Correctional Services set aside on the basis that, in issuing the Order, the Commissioner acted above his powers.  The application arises in the following way.

2. On 23 June 1998, the applicant, a Nigerian national, was convicted of trafficking in dangerous drugs and sentenced to 18 years’ imprisonment.  He has at all material times been serving his sentence at Stanley Prison.

3. In or about November 2002, the applicant came into conflict with another prisoner, a man named Baba, also a Nigerian national.  The evidence suggests that in one violent confrontation the applicant struck Baba with a fibre-glass stool.  It is the applicant’s case that Baba was a member of a group of non-Chinese prisoners, mainly African and South American, who were involved in nefarious activities.  The applicant, being non-Chinese, was expected to be part of this group.  He said he did not wish to be.  Tensions grew and hence the confrontation.

4. Whatever the cause, shortly after the confrontation with Baba, the applicant sought to be removed from association with other prisoners, his case being that he feared further confrontation with Baba and his associates.  Rule 65B of the Prison Rules, made pursuant to s.23 of the Prisons Ordinance, Cap.234, gives discretionary power to a superintendent of the Correctional Services Department to remove a prisoner from everyday association with other prisoners for specified periods of time.

5. On or about 3 December 2002, the applicant’s application for removal was granted.  The superintendent who made the order endorsed the relevant form with the following statement :

“	He [the applicant] was afraid of having confrontation with other prisoners in normal association.  In order to maintain good order and discipline, it is recommended to remove this prisoner from association on his own request.”

6. However, in order to be removed from association at his own request, the applicant was requested to sign a form – a Form F – which detailed the conditions of his removal.  First, it meant that he would be kept in a special part of the prison known as the Protection Unit.  As such, as the Form F made it clear, he would be separated from other prisoners in the Protection Unit, would have to perform labour in his cell, would be fed in the cell and would only be permitted limited periods of exercise outside of the cell.  These restrictions were accepted by the applicant and he has made no complaint in respect of them.  However, the Form F went on to bind the applicant to the loss of certain privileges.  In this regard, the Form F read (in part) :

“	Once my request for protection is accepted, I have to abide by the following conditions:-
	1.	During my period of detention in the Protection Unit, I will not be allowed to possess a radio.
	2.	Within the first twelve months in the Protection Unit, I will not be allowed to make purchase of any canteen items except letter writing materials and stamps.”

7. It is the applicant’s case that he protested at this loss of privileges.  But, understanding that unless he signed the Form F he would not receive the protection of removal from association, he said he was compelled to do so.  What is apparent is that, once he had been placed into the Protection Unit, the applicant made numerous complaints as to the loss of privileges which I have detailed.

8. When these complaints were not answered, the applicant sought leave to apply for judicial review on the basis that the removal of his privileges had been unlawful.  On 25 August 2004, having heard oral submissions, I granted leave.

The nature of the applicant’s challenge

9. In drafting and advocating his challenge, the applicant, to my understanding, received no legal assistance.  The precision expected therefore of an experienced public law barrister or solicitor could not be expected.  But, as I understood the applicant’s challenge, it was to the following effect :

(i)	Removal from association, while it might protect a prisoner from harm, was nevertheless an isolated and arduous regime.
(ii)	Removal of privileges was, in the context of the relevant legislation, a form of punishment and, within the Protection Unit, certainly acted as a punishment.
(iii)	The purported authority to allow for the removal of privileges from prisoners voluntarily removed from association lay in Standing Orders.  Those standing orders, however, had to comply with the Prisons Ordinance, Cap.234, and the Prison Rules made under the Ordinance.
(iv)	The Prison Rules allow for privileges to be removed as a form of punishment and Standing Orders may therefore regulate the manner in which this is done.  However, the Prison Rules do not allow for privileges to be removed when a prisoner is not being punished. In so far, therefore, as the Standing Orders allow this to take place, they are ultra vires the Rules.
(v)	The removal of his privileges when they were not imposed as a ‘punishment’ was therefore unlawful.

The ‘agreement’ to incur loss of privileges

10. Mr Kwok Sui Hay, who appeared for the respondent, did not argue, or argue with any persistence, the proposition that, as the applicant had signed the Form F, he was contractually bound.  In my judgment, he was correct to adopt that position.  Leaving aside the applicant’s belief that he had no choice in the matter, once the prison authorities accepted that the applicant should be removed from association, they had an obligation to do so.  In my judgment, therefore, without in any way suggesting bad faith or oppressive conduct on the part of the prison authorities, it would be accurate, I think, to say that the applicant’s loss of privileges was imposed on him.  The question, of course, is whether it was lawfully imposed.

Loss of privileges : punishment or not?

11. As I understand it, the nature of privileges are only defined in Standing Orders.  In this regard, Standing Order 58-01(2) gives a list of privileges, the list being as follows :

“		canteen purchases (except letter writing materials and stamps);
		books (including textbooks, library books and notebooks), periodicals and newspapers;
		shaver, transistor radio and batteries;
		entertainment, recreational activities and association;
		lectures, theatricals, concert parties and video shows;
		sports and public competitions; or
		leave of absence.”  [my emphasis]

12. As to who may receive privileges, Standing Order 58-01(1) provides that :

“	A prisoner will be eligible for privileges upon admission but may forfeit same in accordance with the provisions of Prison Rule 63(1).”

13. Standing Order 58-01(1) provides, therefore, that privileges may be removed provided that is done in accordance with the Prison Rules, specifically Rule 63(1).  That Rule, which bears the heading ‘Punishment which may be imposed by the Superintendent’, states (in part) :

“	(1)	The Superintendent may order a prisoner, who commits any of the offences enumerated in rule 61, to be punished by any one or more of the following punishments-
		(a)	issuing a caution;
		(b)	separate confinement for any period not exceeding 28 days;
		(c)	forfeiture of remission not exceeding 1 month but if the Superintendent considers that his power of punishment is insufficient, he shall refer the case to the Commissioner who may order forfeiture of remission not exceeding 3 months;
		(d)	forfeiture of privileges for a period not exceeding 3 months …”  [my emphasis]

14. In terms of Rule 63(1) therefore the removal of privileges is a form of punishment imposed only after a prisoner has had an opportunity to defend himself and has been found guilty of an offence under Rule 61, that rule, for purposes of illustration, reading (in part) :

“	Every prisoner shall be guilty of an offence against prison discipline if he-
	“	(a)	disobeys any order of the Superintendent or of any other officer of the Correctional Services Department, or any prison rules or other regulations or any directive issued from time to time by the Commissioner that are applicable to him;
		(b)	treats with disrespect any officer of the Correctional Services Department, or any person authorized to visit the prison;
		(c)	is idle or negligent at work, or refuses to work;
		(d)	uses threatening, abusive or insulting words or behaves in a manner that expresses a threat, abuse or an insult …”

15. It is important, I think, to recognise that, in terms of the Rules, a prisoner who has been found guilty of a disciplinary offence under Rule 61, or who is aggrieved by any punishment imposed under Rule 63 for the commission of such an offence, has certain rights of appeal which are defined in the Rules themselves.

16. As I read the Rules, therefore, it is only as a form of punishment – imposed after a prisoner has been found guilty of a specific offence against discipline – that privileges may be removed from a prisoner.  I can find nothing in the Rules to suggest that privileges may be removed from an individual prisoner as a form only of administrative convenience.

17. In the already restricted lives of prisoners it must be self-evident, I think, that the removal of privileges (such as the ability to listen to a radio, to read books for entertainment or to purchase items from a canteen) would be a matter for real consequence, so much so that it would amount, in every practical sense, to a form of punishment.  In my judgment, the Prison Rules – which are subsidiary legislation – recognize that fact in classifying the forfeiture of privileges as a form of punishment.

18. If forfeiture of privileges is therefore classified as a form of punishment in the Rules, I fail to see how, absent specific language to the contrary, it can also be classified as a form of convenient administrative action which may be imposed outside of the procedures approved by the legislature for governing the investigation, determination and punishment of offences against discipline.

19. In summary, I am satisfied that the applicant must be correct in his assertion that the removal of privileges is recognised in the Rules as a form of punishment and only as that.

Removal from association

20. That it may be necessary to remove a prisoner from general association with other prisoners is recognised by Rule 68B(1) which provides that :

“Where the Superintendent has reasonable grounds for believing it is desirable, for the maintenance of good order or discipline or in the interests of a prisoner, that such prisoner should not associate with other prisoners, either generally, or for particular purposes, he may order the removal of such prisoner from association for a period of not more than 72 hours.”  [my emphasis]

21. However, a removal from association for a period of not more than 72 hours is often only the initial period of removal.  Rule 68B(5) and (6) make provision for the continued removal of a prisoner for periods of no more than one month at a time.  A prisoner may therefore be removed from association for an extended period of time, perhaps longer than the three-month maximum period allowed in terms of Rule 63(1)(d) for imposing forfeiture of privileges as a punishment.

22. In my judgment, Rule 68B, read as a whole, does not give a superintendent any power to accompany removal from association with some form of punishment.

23. In advocating his challenge, the applicant said that removal of association constitutes a solitary and arduous regime, not necessarily arduous in the purely physical sense but very much so in the psychological sense.  That assertion is supported, in my view, by the provisions of Rule 68B which provide, first, that a prisoner must be medically certified as fit for removal and, second, that, while removed, his progress must be professionally monitored.  In this regard, Rule 68B(2) and (4) reads :

“	(2)	No prisoner shall be removed from association under paragraph (1) unless the Medical Officer has certified that the prisoner is fit for removal.
		…
	(4)	The Commissioner shall appoint for each prison a Board of Review consisting of the Superintendent, the Medical Officer and such other suitable officer as the Commissioner may select, to keep under review the progress of all prisoners removed from association and to make recommendations to the Commissioner as to their suitability for further removal under paragraph (5) or (8) or to be returned to association.”

24. On my reading of the Rules, removal from association is not a form of punishment.  It is instead a form of restraint intended to ensure the continuance of good order and discipline or to ensure the welfare of a prisoner.  That removal is not in any way a form of punishment is, in my view, recognised not only in the plain language of Rule 68B but in the fact that the Rule appears in ‘Part (j)’ of the Prison Rules, that part bearing the heading ‘Restraints’, which is distinct from ‘Part (i)’ : ‘Offences Against Discipline’.

25. That the fact of removal brings with it the hardship of isolation from the general prison community is a consequence only.  But while isolation may be so described I do not see that loss of privileges can attract the same description.  It is not simply a consequence, it is quite plainly, I think, an additional burden imposed either as a punishment or as a supposed form of disincentive which itself, in practice, amounts to a punishment.  This is illustrated by the manner in which the different categories of prisoners removed from association by being placed into the Protection Unit are treated.  Some retain privileges, some do not.

26. I am told that three categories of prisoners are removed from association by being placed in the Protection Unit.  In the first category are prisoners confined there as a punishment.  These prisoners only lose their privileges if that is stated to be part of their punishment.  Otherwise they retain them.  In the second category are prisoners who, by reason of their past profession (e.g. policemen) or their assistance to the authorities (e.g. accomplice witnesses) are perceived to be at risk.  These prisoners only lose their privileges if their removal is perceived somehow to be at least partially their fault.  In the third category are prisoners in the position of the applicant who are removed for their own protection or because they pose a threat to other prisoners.  Those prisoners also lose their privileges only if their removal from association is perceived to be to some degree their own fault.

The Standing Orders

27. The applicant’s removal of privileges for the time when he was removed from association was ordered pursuant to Standing Order 58-01(3) which states :

“Privileges of prisoners in the Protection Unit may be restricted pursuant to SP 65-04 (para. 2).”

28. SP65-04(2), a Standing Procedure but, as I understand it, part of Standing Orders, is to the following effect :

“Protection Unit is also for the removal of prisoners from association in their own interest in accordance with Prison Rule 68B where there is a need to protect the prisoner from other prisoners for reasons of his involvement in matters after admission and that he has fault for that involvement.  For instance, incurring debts in gambling activities, fighting with others, taking part in group conflicts, committing nuisance that arouses general resentment, etc.”  [my emphasis]

29. The Standing Orders, of course, are not statutory provisions and must be in conformity with the Prison Rules.  If they are not in conformity then they are of no force and effect, as the applicant himself expressed it, they are ultra vires the powers of the Commissioner.

30. Standing Orders are issued by the Commissioner pursuant to Rule 77(4) of the Prison Rules which reads (in part) :

“The Commissioner shall issue such orders as may be necessary for the government of all institutions under his control in conformity with these rules …”

31. Rule 77(4) states clearly that any orders issued by the Commissioner shall be in conformity with the Prison Rules.  The Standing Orders, therefore, may not permit the punishment of a prisoner other than in accordance with the Prison Rules.  In my judgment, however, Standing Order 58-01(3), which permits the restriction of privileges of prisoners in the Protection Unit purports to do exactly that; that is, to impose a form of punishment on a prisoner without the need to adhere to the regime laid down in the Prison Rules for the prosecution and punishment of offences against discipline.

32. Mr Kwok Sui Hay, for the respondent, submitted that, seen in context, the removal of privileges from prisoners who are removed from association is not to be described as a punishment but rather as an ‘administrative disincentive’.  If there were no such disincentive, he said, prisoners would face no discouragement to abuse the system.  They could, for example, employ the system of removal from association as a form of tactical retreat, perhaps to avoid more strenuous physical labour or as a haven from their own wrong-doing, and still enjoy their privileges.

33. But whether the reason for issuing Standing Order 58-01(3) is a rational one is not to the point.  The issue is whether the Standing Order is in conformity with the Prison Rules.  For the reasons which I have given, I am satisfied that it is not conformity and is therefore ultra vires.

34. Mr Kwok further submitted that a ‘restriction’ on privileges does not, amount to a ‘forfeiture’ of privileges and does not therefore equate to a punishment in terms of Rule 63(1).  I do not see anything in that point.  If I was to accept his argument, it would mean that an individual prisoner could have all except one or two of his privileges stripped from him without the requirement laid down in the Rules to first find him guilty of an offence against discipline.  That cannot have been the intention of the legislature.  In any event, I do not read Rule 63(1) which speaks of ‘forfeiture of privileges’ as meaning the forfeiture of all privileges.

Is a radio or newspaper a fundamental right not subject to forfeiture?

35. During the course of his submissions, the applicant made reference to various international conventions, more particularly the Standard Minimum Rules for the Treatment of Prisoners (adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders), in order to assert that the right to a radio and/or newspaper was a fundamental right of all prisoners and could not therefore be the subject of forfeiture or restriction.  Suffice to say that, on the materials presented to me, I could find nothing to suggest, even by implication, that the right to a radio or a newspaper is an internationally recognised fundamental right of all prisoners.  Quite clearly, it is not a fundamental right.

Remedy

36. In my judgment, the most appropriate remedy available to the applicant is one of declaratory relief.  I see no need for any prerogative order.

Conclusion

37. The application for judicial review is therefore granted.  There will be a declaration that Standing Order 58-01(3) is ultra vires the powers of the Commissioner given to him in Rule 77(4) of the Prisoner Rules.

38. As to costs, I do not know that the question of costs arises.  But if it does arise, I will hear from the parties.