HKSAR v. WOO WING SEE PHYLLIS (胡詠斯)

Press Summary (English)

Press Summary (Chinese)

FACC No. 2 of 2026

[2026] HKCFA 19

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 2 OF 2026 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 350 OF 2024)

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JUDGMENT

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Chief Justice Cheung:

1.  I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Ribeiro PJ:

2.  I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Fok PJ:

A.     Introduction and background facts

3.  The appellant was convicted of the offence of “Carrying an unauthorized article out of a prison”, contrary to s.18(1) of the Prisons Ordinance (Cap.234) (“PO”).  She challenges her conviction in this appeal which raises a question concerning the proper interpretation of s.18(1) of the PO (set out below) as well as certain provisions of the Prison Rules (Cap.234A) (“PR”) (also set out below).

4.  The facts out of which the appeal arises are relatively straightforward.  At the material time, in April 2023, a Mr Chow Ka Shing was detained at Lai Chi Kok Reception Centre.  He was represented by the solicitors’ firm Chan & Chan in relation to certain pending proceedings.  The appellant was an assistant solicitor in the firm, having been admitted to practice in Hong Kong in 2022.

5.  Mr Chow wished to make a complaint to the Ombudsman of Hong Kong (“the Ombudsman”).[1] In the afternoon of 28 April 2023, he asked officers of the Correctional Services Department (“CSD”) for a proforma document entitled “Complaint Form of the Office of the Ombudsman of Hong Kong” (“Complaint Form”).  A blank Complaint Form was accordingly then issued to Mr Chow and assigned a reference number.  The provision of the form to Mr Chow was logged in a “Record book of complaint forms of the Office of the Ombudsman of Hong Kong” maintained by the CSD.  It was also recorded in the CSD’s “Register of issuance of complaint forms of the Ombudsman”.

6.  The CSD officer who gave Mr Chow the Complaint Form told him that, after filling it out, he should notify CSD staff to conduct a security check of the form and that he should not mail it himself.  He was told that during the check, CSD staff would not read the contents of the Complaint Form.  Mr Chow responded that he understood.

7.  On 8 May 2023, the Office of the Ombudsman received by post a complaint form completed by Mr Chow, postmarked 4 May 2023.  This complaint form was the Complaint Form received by Mr Chow on 28 April 2023.  On 11 May 2023, a Senior Investigation Officer in the Office of the Ombudsman, who was responsible for handling the complaint, sent an email to the CSD, informing the CSD of Mr Chow’s complaint and requesting the CSD to provide information.

8.  It is unnecessary to address the nature or substance of Mr Chow’s complaint.  What is relevant, for the purposes of this appeal, is how Mr Chow’s completed Complaint Form came to be received by the Ombudsman.  It was not subjected to the procedure described in paragraph [6] above but was instead taken out of Lai Chi Kok Reception Centre in the manner described as follows.

9.  The CCTV records of the interview room at Lai Chi Kok Reception Centre showed that, on 2 May 2023, two persons interviewed Mr Chow twice that day, namely a barrister and the appellant.  During the second of those interviews, there was an exchange of documents between Mr Chow and the appellant.  This exchange of documents was logged by an Assistant Officer II of the CSD in a “Register recording handover and receipt of documents (legal)”, also signed by Mr Chow and the appellant.  This recorded the handing-over of a 12-page document from the appellant to Mr Chow and then a handing-over of a 3-page document from Mr Chow to the appellant.  Mr Chow’s completed Complaint Form was not included in the 3-page document handed over from Mr Chow to the appellant.

10.  The CCTV footage also showed that, after the above exchange of documents, Mr Chow folded and inserted his completed Complaint Form into a document given to him by the appellant, which he then handed back to the appellant.  The appellant then placed this document, with the completed Complaint Form inside it, underneath a notebook on the table in front of her. At the end of the interview, the appellant put all the materials in front of her, including the completed Complaint Form, into a bag and then left.  In this way, Mr Chow’s completed Complaint Form came to be taken out of Lai Chi Kok Reception Centre by the appellant and mailed to the Ombudsman on 4 May 2023.

B.     The ensuing prosecution and leave to appeal to this Court

11.  Mr Chow and the appellant were jointly charged with one count of “Carrying an unauthorized article out of a prison”, contrary to s.18(1) of the PO.  The particulars of the offence were that the two of them had an unauthorised article, namely a document, carried out of a prison in Hong Kong on or around 2 May 2023.  The document, on the prosecution’s case, was Mr Chow’s completed Complaint Form.  On their pleas of not guilty, they were tried before a magistrate and found guilty of the charge.  Mr Chow was sentenced to 3 days’ imprisonment and the appellant was fined HK$1,800.[2]

12.  Both Mr Chow and the appellant appealed to the Court of First Instance against their convictions and Mr Chow also appealed against his sentence.  Their appeals against conviction were dismissed.  Mr Chow’s appeal against sentence was allowed and a fine of HK$1,800 substituted in place of the term of imprisonment imposed by the magistrate.[3]

13.  The appellant, but not Mr Chow, applied to the Court of First Instance for a certificate that a point of law of great and general importance was involved in the decision.  Concluding that the point was neither of sufficient importance, nor reasonably arguable, the judge refused to issue the certificate sought.[4]

14.  Upon her further application to the Appeal Committee, leave to appeal to this Court was granted in respect of the following question of law:

“For the purpose of section 18(1) of the Prisons Ordinance (Cap 234) (‘PO’), is a letter from a prisoner to the Ombudsman an article authorized by the Prison Rules (Cap 234A) to be carried out of a prison without further authorization from the Commissioner?”[5]

C.     The statutory provisions

15.  PO s.18 is headed “Introduction of unauthorized articles into prison” and s.18(1) reads as follows:

“Any person who brings, throws or in any manner introduces or conveys into any prison, or conveys to any prisoner while in custody outside the prison, or deposits in any place outside a prison with intent that it shall come into the possession of a prisoner, or carries out of a prison any arms, ammunition, weapon, instrument, intoxicating liquor, opium or other drugs, tobacco, money, clothing, provisions, letters, papers, books or any other article whatsoever shall, unless so authorized by the rules made under section 25 or by the Commissioner, be guilty of an offence and shall be liable on conviction to a fine at level 1 and to imprisonment for 3 years.”

16.  PO s.18 is an offence creating section and is addressed to the acts of “[a]ny person”.  The first part of s.18(1) deals with the introduction or conveyance of proscribed items into prisons (or their deposit with intent that they come into a prisoner’s possession).  The second part concerns the removal or carrying out of such items from a prison.  As will be apparent, the prohibition on either activity (whether introduction or carrying out) is not absolute. There are two ways in which a proscribed item might be introduced into or carried out of a prison without infringing s.18(1).  First, the introduction or carrying out might be authorised by the Commissioner or, second, it might be authorised by the rules made under PO s.25.

17.  PO s.25 is the general empowering section conferring power on the Chief Executive in Council to make rules for, amongst numerous other matters relating to correctional services, “the regulation and government of prisons”.[6]  The PR were made under s.25.

18.  There is no suggestion that the Commissioner authorised the carrying out of Mr Chow’s Complaint Form in this case.  As will be seen, the issue in this appeal is whether the carrying out of the item in question was authorised by the PR.

19.  In particular, it is contended that such authorisation was contained in the PR, specifically PR r.47.  That rule is in Subdivision 7 of the PR which is headed “Communications and Visits”.  The rule itself is headed “General provisions as to letters” and, at the material time, relevantly provided:

“(1) Subject to the following provisions of this rule, a prisoner may write and send as many letters as he wishes to any person.

(2) A prisoner shall be furnished with materials and postage sufficient to write and send one letter per week not exceeding 4 pages of A-4 paper in length at public expense, and shall, where the prisoner so requests, be furnished with materials and postage for additional letters subject to the payment of the cost thereof from the prisoner’s earnings.

…

(4) Notwithstanding subrule (2), the Superintendent shall permit a prisoner to write and send a letter at public expense if the letter is correspondence with a specified person.

…”.

20.  In PR r.1A, one of the defined meanings of the term “specified person” is “The Ombudsman appointed under section 3 of The Ombudsman Ordinance (Cap.397)”.[7]

21.  On behalf of the appellant, it is contended before us, as it was in the courts below, that r.47(4) provided the authority under the PR for the carrying out of Mr Chow’s Complaint Form by the appellant within the meaning of s.18(1).

22.  It is suggested that further support for this contention is provided by rr.47A and 47C, so it is convenient to set these out (in their then form) at this stage.

23.  The former (r.47A) is headed “Screening of prisoners’ outgoing and incoming letters” and, at the material time, relevantly read:

“(1) In this rule, maximum security prison (高度設防監獄) means a prison which is –

(a) equipped with such security measures as are suitable in the opinion of the Commissioner for the admission of prisoners representing great security risks in terms of the likelihood of their attempting to escape and the danger to the public if an escape succeeds; and

(b) specified as a maximum security prison in a notice displayed in a conspicuous position in all prisons.

(2) All letters to or from a prisoner in any prison may be opened and searched for the existence of any article which may pose a threat to any individual’s personal safety or to the security, good order and discipline of the prison.

(3) All letters to or from a prisoner in a maximum security prison may, apart from being searched under subrule (2), be read.

(4) A letter to or from a prisoner in any prison other than a maximum security prison may, apart from being searched under subrule (2), be read where the Superintendent, or an officer of the Correctional Services Department designated by the Superintendent for the purpose, reasonably considers that –

(a) the reading will assist in preventing or detecting criminal activities or in countering a threat to or an interference with the security, good order and discipline of the prison;

(b) the letter is likely to contain evidence of an act that would jeopardise the health or safety of any person;

(c) the letter is to the prisoner from, or from the prisoner to, any other prisoner without the prior approval of the Superintendent under rule 47(6)(a)(i); or

(d) the reading would be in the best interests of the prisoner.

…”.

24.  The latter (r.47C) is headed “Letters to or from specified person” and, at the material time, read:

“Notwithstanding rule 47A, where it appears to an officer of the Correctional Services Department not below the rank of Principal Officer that any letter is to a prisoner from, or from a prisoner to, a specified person, the letter –

(a) shall not be opened or searched under rule 47A(2) or (8), except in the presence of the prisoner or unless the prisoner indicates that he does not wish to be present; and

(b)     shall not be read under rule 47A(3) or (4).”

25.  At this stage it is convenient to note that PR r.47(4) was amended in 2025 by the Prison (Amendment) Rules 2025.[8] Subsequent to its amendment, r.47(4) now reads as follows:

“Despite subrule (2), if a prisoner requests to write and send a letter to a specified person, the Superintendent must permit the prisoner to write and send the letter at public expense.”

D.     The appellant’s case

26.  On appeal to the judge below, Mr Chow and the appellant both contended, as they had before the magistrate, that the Complaint Form was, for the purposes of PO s.18(1), an authorised letter pursuant to r.47(4) of the PR. The appellant repeats that contention in this Court.  The argument is that r.47(4) states that the Superintendent of the prison in question must permit a prisoner to write and send a letter at public expense if it is to a specified person.  As such, the Complaint Form was an authorised letter and carrying it out of a prison was not a breach of s.18(1) of the PO.

27.  The crux of the appellant’s argument is that the words “the Superintendent shall permit a prisoner to write and send a letter” in r.47(4) constitute the authority of the Commissioner of Correctional Services under the PR to carry out a letter to, in this case, the Ombudsman.[9]

28.  Elaborate arguments advanced by both the defence and prosecution were entertained in the judgments of both the magistrate[10] and judge[11] below concerning the mandatory nature of the word “shall” in r.47(4) and also what should or might be implied into the requirement that the Superintendent “permit a prisoner to write and send” a letter to a specified person, in particular whether the Commissioner of Correctional Services was entitled to screen such a letter under rr.47A or 47C prior to its being sent.

29.  There is, however, a much simpler and more direct answer to the appellant’s case that demonstrates that the argument advanced on her behalf is untenable.

30.  The approach to statutory construction is not controversial and was not disputed by either party.  The Court’s approach is well established and looks to the language of the statute construed in the light of its context and purpose.  Here, the broad underlying context and purpose of the PO and PR as a whole is the governance and administration of prisons in Hong Kong.  In that broad context, the particular concern of PO s.18 is the introduction and carrying out of unauthorised articles into and out of prisons.  In a prison environment, it is obviously important, from the perspective of safety, good order and discipline, that there is strict control of items brought into and out of penal institutions.  Such control need not be constituted by a total prohibition but a requirement that items brought in and out of prisons must be regulated and monitored is self-evident.

31.  PO s.18 is addressed to the person who introduces or carries an article into or out of a prison.  It is not primarily directed to a prisoner at all, although theoretically it may include him.  But in practice, it is almost always directed at the acts of someone other than a prisoner, since a prisoner is unlikely to be coming and going from a prison and therefore unable to introduce or carry something into or out of a prison.

32.  As already noted, it is not the appellant’s case that she was expressly authorised by the Commissioner to carry the Complaint Form out of the prison, so the question is whether she was authorised by the PR to do so.  Under s.18(1), unless relying on express authority of the Commissioner, it is for the person who has introduced or carried an item into or out of a prison to point to a rule that so authorises their act. 

33.  In the present case, the appellant’s reliance, in this respect, on PR r.47 as authority for an act otherwise prohibited by s.18(1) is completely misplaced.  That rule is concerned with a different subject matter, namely the posting of letters, conducted by a different subject, namely a prisoner.  It sets out what a prisoner is entitled to do in terms of communicating by way of letter.  In the context of r.47 as a whole, r.47(4) deals with the distinction between letters to “any person” (r.47(1)) and those to “a specified person” (r.47(4)).  Whilst there is a limitation on materials and postage for general correspondence, namely enough to write and send one letter per week not exceeding 4 pages of A4 paper (under r.47(2)), these limits do not apply to letters to a specified person, any and all of which are “at public expense” (r.47(4)). Thus, a letter to a specified person may be longer than 4 pages of A4 and the prisoner is to be provided with all materials necessary for him to write such a letter.  For other, general, letters beyond the one letter of 4 pages of A4 per week, the materials and postage must be paid for from the prisoner’s earnings (r.47(2)).

34.  Properly construed, r.47(4) is therefore clearly not concerned with a third party carrying anything out of a prison at all.  It is a rule focusing solely on what a prisoner may do (“write and send a letter”) and how it is to be done (“at public expense” and without limitation in length).  In context, therefore, the meaning of the words “send a letter” in r.47(4) clearly refers to posting by mail and it is straining the meaning of that phrase to interpret it in the way the appellant contends as meaning to give the letter to another person to carry it out of the prison and for that other person then to post it.  In short, the argument that a prisoner may “send” a letter at public expense if it is to a specified person provides no support for an argument that the PR authorise any person to carry such a letter out of a prison without the CSD subjecting it to the usual screening applied to outgoing items which necessarily requires the sending of the letter to be notified to the prison authorities.

35.  Such screening applies to “[a]ll letters to or from a prisoner in any prison” and the purpose of opening and searching such letters is to check “for the existence of any article which may pose a threat to any individual’s personal safety or to the security, good order and discipline of the prison” (r.47A(2)).[12] Letters to a specified person are not exempt from this, save that in the case of such letters, they are not to be opened or searched, except in the presence of the prisoner or unless the prisoner indicates he does not wish to be present (r.47C(a)).  They are not, however, subject to being read (r.47C(b)) under any circumstances, unlike other letters to or from a prisoner (rr.47A(3) and (4)).

36.  Nor is any doubt cast on the interpretation of “send a letter” in r.47(4) by the similar words in r.47(6)(a)(i), which states that a prisoner is not permitted to “send a letter to … another prisoner, unless he has obtained the prior approval of the Superintendent”.[13] In argument during the hearing of the appeal it was suggested that this provision undermined the conclusion that r.47(4) was concerned with postage of a letter by mail.  There was no evidence before the Court of how intra-prison letters between prisoners might be sent.  But even if these letters, which are by nature in a class of their own, are not sent by post, it does not follow that the words “send a letter” in r.47(6)(a)(i) encompass the transmission of such a letter by the hands of a third party without notice to the prison authorities.  On the contrary, even for letters under r.47(6)(a)(i), prior approval of the relevant Superintendent is required.

37.  Nothing in the recent amendments to r.47(4) or rr.47A or 47C alters the above conclusion and it is unnecessary to consider whether those amendments assist the prosecution’s case as contended.[14]

38.  It follows that the appellant’s construction argument in support of the appeal must be rejected.

39.  In the Case for the Appellant, an additional argument in support of the appeal is alluded to, namely that uncertainty over the true meaning of the words “authorized by the rules” in PO s.18(1) and “shall permit … to send” in PR r.47(4) provides some basis for challenging the prosecution case that the appellant had the necessary mental state to commit the offence.[15]

40.  This argument is not open to the appellant.  The magistrate and judge’s respective findings[16] that the appellant had the necessary mens rea for the offence was not challenged under the substantial and grave injustice limb when leave to appeal to this Court was sought.  In any event, given the clandestine way in which the Complaint Form was smuggled out of the prison in this case, there would be some difficulty in arguing convincingly that the appellant believed she was carrying the Complaint Form out of the prison as a matter of right.

E.     Answering the certified question and disposal of the appeal

41.  For the reasons set out above, I would answer the certified question in the negative and dismiss the appeal.

Mr Justice Lam PJ:

42.  I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Gummow NPJ:

43.  I agree with the judgment of Mr Justice Fok PJ.

Chief Justice Cheung:

44.  The Court therefore answers the certified question in the negative and unanimously dismisses the appellant’s appeal.