CHIM SHING CHUNG v. THE COMMISSIONER OF CORRECTIONAL SERVICES

IN THE COURT OF APPEAL

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

- Headnote -

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

          Judicial review of Commissioner of Correctional Services' decision to ban horse-racing supplements in prisons - Legality under the Prison Rules made under the Prisons Ordinance Cap 234 - Whether the decision was "Wednesbury unreasonable" - Whether Article 16(2) of the Bill of Rights guaranteeing freedom to receive information was engaged.

IN THE COURT OF APPEAL

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

JUDGMENT

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

Litton V-P:

Introduction

1. It is an axiom of our law that a convicted prisoner, in spite of imprisonment, retains all civil rights which are not taken away expressly or by necessary implication.

2. The respondent to this appeal, Mr Chim Shing Chung, is a convicted prisoner serving a long sentence. On 19 May 1995, by order of the Commissioner of Correctional Services (the appellant), the horse-racing supplement of the Tin Tin Daily News ordered by the respondent was removed before the newspaper was delivered to him in Stanley Prison. This, says the respondent, is a violation of his civil rights. In judicial review proceedings brought by him under Order 53 of the Rules of the Supreme Court, Cap 4, he obtained an order from Sears J dated 2 November 1995 declaring this act to be unlawful. Hence this appeal.

3. Sears J's decision rested on three grounds:

"Freedom of opinion and expression

Legality of the Commissioner's act

4. Section 18(1) of the Prisons Ordinance, as relevant, states:

          "18. Introduction of unauthorized articles into Prison

          (1) Any person who ... introduces or conveys into any prison... any... papers, books or any other article whatsoever shall, unless so authorized by the rules made under s25 or by the Commissioner, be guilty of an offence and shall be liable on conviction to a fine of $2,000 and to imprisonment for 3 years."

5. It follows that anyone who knowingly orders papers, books or other articles to be supplied, without it being authorised by rules made under s25, aids and abets in the commission of an offence.

6. Section 25(1) of the Ordinance gives to the Governor-in-Council wide powers to make rules for the regulation and government of prisons.

7. Under Rule 77(1) of the Prison Rules the administrative command and direction of all prisons in Hong Kong is entrusted to the appellant.

8. Under Rule 79 the conduct and treatment of prisoners is entrusted to the Superintendent of each prison.

9. Rule 23(1) provides:

"(1) No prisoner shall without authority have in his possession any article, and any such article found in his possession shall be confiscated by the Superintendent."

10. One then comes to r56 which says:

          "Prisoners may receive books or periodicals from outside the prison under such conditions as the Commissioner may determine."

11. Rule 56 has been in existence for very many years. Under this rule successive Commissioners have authorised the receipt by prisoners of books, magazines, newspapers etc. Without r56 the suppliers of such articles would have committed an offence under s18(1) of the Ordinance, and likewise the prisoners who received them.

What is a "periodical"?

12. At p13 of his judgment, Sears J said:

"A periodical is something which is published periodically and normally means in ordinary usage magazines or trade periodicals. One has only to walk in Hong Kong and see the large range of magazines available to the public.... Although my reaction is to say that [Rule 56] does not include a newspaper, I am prepared to assume in favour of Miss Shine [counsel then appearing for the Commissioner] that this rule permits the prisoners to receive newspapers under such conditions that the Commissioner may determine."

13. I find difficulty with this approach. The question is one of statutory interpretation. Either the word "periodicals" in r56 covers newspapers such as the Tin Tin Daily News, or it does not. The Shorter Oxford Dictionary, which the judge himself consulted, contains the following definition of "periodical".

"A magazine etc whose successive issues are published at regular intervals longer than a day but shorter than a year. Also a newspaper."

14. It is therefore difficult to understand why the judge had doubts as to the definition of the word "periodicals" in r56. It would be an extraordinary thing if the Governor-in-Council, in the exercise of his rule-making powers, should have included magazines etc and excluded newspapers from the scope of r56. Under the Registration of Local Newspapers Ordinance Cap 268 (which replaced an earlier Ordinance of a similar name) "newspaper" is defined in wide terms and it includes any publication available to the public which is published periodically: So the "magazines or trade periodicals" referred to by the judge at p13 of his judgment would be "newspapers" and subject to the same statutory regime as newspapers. Such an Ordinance providing for the registration of newspapers has been in the statute book since 1951. It would be an extraordinary thing if, in the law governing the registration of newspapers in Hong Kong, the word "newspapers" includes "periodicals", but "periodicals" does not include "newspapers" in the Prison Rules. No court would adopt such a construction unless the words in the legislation so constrained. But, as I have said, the dictionary meaning of "periodicals" clearly includes newspapers.

15. Unquestionably, as a matter of language, a newspaper is a periodical publication. It is published periodically, day by day. There is no reason to construe r56 of the Prison Rules in an unusual sense. The opposite is the case. If r56 does not bring "newspapers" within its scope, then it must follow that there is no rule authorising the introduction of newspapers into prisons and, for generations, persons supplying newspapers to prisoners have been committing criminal offences under s18(1) of the Ordinance.

16. Mr Dykes, for the respondent, draws attention to r202(2) of the Rules which states:

"(2) Any... prisoner [awaiting trial] shall have supplied to him, at his own expense, such newspapers, or other means of occupation as are not, in the opinion of the Superintendent, of an objectionable nature."

17. This, he says, is an express reference to "newspapers" in the rules and reinforces the contention that r56 does not deal with newspapers; there is, he submits, simply a gap in the rules. The argument, if it be right, has extraordinary consequences. It means that the supply of newspapers to remand prisoners is regulated by subsidiary legislation, but that in relation to convicted prisoners is not.

18. We have been told that since 5 July this year r56 has been amended-together with many other rules-and it now reads as follows:

          "56. Books, etc, from outside

          Prisoners may receive such books, periodicals, newspapers, or other publications from outside the prison as the Commissioner may determine. But the Superintendent may withhold and dispose of all or any part of a publication where he has reasonable grounds to believe that such publication or part thereof may pose a threat to good order or discipline in the prisons."

19. It is wholly unnecessary for us to speculate as to why this rule, amongst many others, has been amended in this way. In my judgment, there is no doubt as to what r56 in its original form means. It includes the regulation of newspapers.

20. Sears J in his judgment goes on to say: Even if 'periodicals' includes newspapers, r56 does not give the Commissioner 'the right to censor any books or periodicals'. He says that the words in r56 merely dealt with the conditions under which newspapers are received: that is, 'the payment for the periodicals, the method it is brought into prison, how it is delivered, those sorts of things.' The judge emphasized the use of the word 'under' in r56: it does not say 'on such conditions'.

21. In my judgment, such a narrow linguistic approach to construction is wholly unacceptable. It denies the subsidiary legislation that 'fair, large and liberal construction and interpretation' which s19 of the Interpretation and General Clauses Ordinance Cap 1 requires.

22. On any view of the matter, r56 authorizes the Commissioner to permit the receipt of the Tin Tin Daily News by the respondent under the condition that the racing supplement be first extracted.

Irrationality

23. It must be emphasized at the outset that the court cannot be the judge of government policy. As Lord Diplock said in Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 AC 374 at 411E, "the reasons for the decision-maker taking one course rather than another do not normally involve questions to which, if disputed, the judicial process is adapted to provide the right answer". Competing policy considerations are not matters which courts of law can properly weigh. These are matters of value judgment based on priorities which the decision-maker considers relevant. This, presumably, was the reason why the Solicitor-General yesterday (perhaps with some encouragement from this court) did not press for the fresh affidavit evidence to be admitted: evidence which tended to show how wise the Commissioner has been to introduce the policy of extracting racing supplements from newspapers supplied to prisoners, and how the discontinuance of this policy since November 1995 as a result of Sears J's judgment has led to an increase in gambling and related offences in prisons. In my judgment, these matters cannot be weighed in the scales and are irrelevant to what the court has to consider.

24. In this regard, it is important to bear in mind what Lord Brightman said in Chief Constable of the North Wales Police v. Evans [1982]1 WLR 1155 at 1173F:

"Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will... under the guise of preventing the abuse of power, be itself guilty of usurping power."

25. Here, the subsidiary legislation has given the Commissioner the power to impose conditions under which periodicals may be received from outside the prison. The justification for the court's intervention - the only justification-is where he has imposed conditions so absurd that the court can justifiably say: "this is not a rational exercise of discretion at all." He would then have strayed outside the law; he would have purported to exercise his discretion when, in truth, he has not done that at all.

26. Does the evidence before the court justify such an extreme view?

27. The judge made the following findings upon the affidavit evidence before him:

"Gambling in prisons is an offence and those who run prisons... have found that some prisoners engaged in illegal gambling. That is, somebody acting as a bookmaker, either inside the prison or outside the prison, and prisoners betting sums of money whether in cash, or some form of credit. This leads to problems. First of all, there is the general problem of gambling inside the prison which might lead to quarrels and arguments. Secondly, it might lead to pressure being brought to bear on the prisoners who cannot pay up his debt. Thirdly, it might lead to families of prisoners having problems caused to them by their relative's debts. Indeed, I am told some prisoners have sought assistance from the prison staff for protection, no doubt, because they have lost money and cannot pay out for it. So it is a serious problem in prisons."

28. The racing supplements give the reader the most up-to-date information concerning horse-racing: the handicaps, the odds on betting etc. So, in an attempt to alleviate the problem of gambling in prison, the Commissioner ordered the stringent application of an existing Standing Order, passed in August 1986, that the racing supplements should be removed from newspapers ordered by prisoners. This came into effect at the beginning of May 1995.

The judge's reasoning

29. The judge arrived at the conclusion that the decision was "irrational" for three reasons:

30. As can be seen from the reasons given by the judge, he had, in effect, stepped into the Commissioner's shoes to judge the merits of the policy. The "casual connection" between removing racing supplements and the diminution of gambling cannot be "proved"; it is a matter of value judgment. Effectiveness of policy is a matter of degree. These are matters for the Commissioner's judgment, not the court's.

31. The Commissioner is not required by law to operate in a perfect world. His policy of having racing supplements removed from newspapers may turn out to be only partially effective or perhaps not effective at all. But the success or failure of policies is not the test of legality. If that were a legitimate ground for the court's intervention on judicial review, then many other areas of government, where policies have totally or partially failed, would likewise be subject to judicial intervention. The border-line between the exercise of judicial functions by the judges and administrative functions by public officers will become hopelessly blurred.

32. As the judge himself rightly said at p6-K of his judgment:

"The court is not entitled to interfere in the decision of a person entrusted by an Ordinance to make it, unless it is unlawful. The court has no appellate role."

33. This principle is applied uniformly in all areas of administrative law and is even more important where it concerns the government of a prison. As Lawton LJ says in R. v. Camphill Deputy Governor [1985] 2 WLR 36 at 42F:

"Management without discipline is a recipe for chaos. For a prison governor, however, the ultimate sanction used in industry, commerce and schools, namely dismissal, is not available. There is need for other sanctions."

34. It would, in my judgment, need an extreme case before the court can safely say that the Commissioner, in the purported exercise of his judgment and discretion, has abused the powers conferred on him by the subsidiary legislation. In my view, the facts as found by the judge do not begin to approach such a case.

Article 16(2) Bill of Rights

35. Section 2(2) of the Hong Kong Bill of Rights Ordinance makes the Bill of Rights subject to Part III of the Ordinance. Section 9, appearing in Part III (Exceptions and Savings) says:

          Members of and persons serving with the armed forces of the government responsible for the foreign affairs of Hong Kong and persons lawfully detained in penal establishments of whatever character are subject to such restrictions as may from time to time be authorized by law for the preservation of service and custodial discipline."

36. Here, there are unquestionably restrictions authorised by law for the preservation of custodial discipline. They govern the receipt by prisoners of material from outside prison. It is difficult therefore to see how Article 16(2) is engaged.

37. The Solicitor-General submits that as the respondent was a convicted prisoner serving a term of imprisonment in a penal institution, the act of removing the racing supplement from his daily newspaper was a "necessary restriction" for the preservation of public order, as prescribed in Article 16(3); accordingly, even if the removal of the racing supplement were prima facie an infringement of the "right to receive information" as guaranteed by Article 16(2) of the Bill of Rights, the Commissioner has discharged the onus of showing a proportionate response to a social need, namely, the suppression of illegal gambling in penal institutions.

38. Before dealing with this submission, it is important to identify the focus of the issue. Whilst it is of course right to say that all the provisions of the Bill of Rights are directed to the situation of the individual - see Lord Mustill to this effect in Chan Chi-hung v. The Queen [1996]1 AC 442 at 453A - it rarely happens that the Bill of Rights operates in an area of human activities not already covered by the laws of Hong Kong (that is, the common law, the rules of equity and statute law). Sears J had concluded that the interference with the right to receive information in prisoners - by "censoring" newspapers - had no basis in Hong Kong's domestic law. He reached this conclusion by holding (i) that the Standing Orders issued by the Commissioner for the government of institutions under his control- pursuant to Rule 77(4) - were not "laws" within the meaning of that expression in Article 16(3) and (ii) that r56 did not authorize the Commissioner to impose conditions under which newspapers might be received.

39. As regards his second reason, the judge has plainly erred.

40. Once this point is reached and it is accepted that censorship in prisons is authorized by law, the focus changes from the "proportionality" of the act to the "proportionality" of the applicable law.

41. Here the argument revolves round in a full circle, and immediately comes up against the exclusion in s9 of the Bill of Rights Ordinance: prisoners are subject to "custodial discipline" and do not enjoy the full range of rights in Part II of the Ordinance. They are subject to restrictions "authorized by law".

42. Mr Dykes has, quite rightly, conceded that some powers of censorship in prisons are necessary. No argument has been put to us suggesting that s18 of the Ordinance - which makes it a crime to introduce newspapers into prisons without authority- is inconsistent with the Bill of Rights. So what room is there to argue that the "restrictions", such as they are, are not "authorised by law" in terms of s9? I can see none.

43. Thus, the Solicitor-General's submissions as summarized above, though interesting, are academic. The Bill of Rights is simply not engaged.

Conclusion

44. I would allow this appeal, discharge the judge's order of 2 November 1995 and, subject to anything further which might be said, order that the respondent pays the costs here and below.

Liu JA:

45. The respondent is a prisoner, committed after his conviction and sentence to Stanley Prison. In May 1995, on each of the race days the Commissioner of Correctional Services ("the Commissioner") caused to be removed from the delivered newspaper subscribed to by the respondent the horse-racing supplement. The respondent felt aggrieved by the action of the Commissioner taken in May 1995 and enquired through solicitors as to the legal basis upon which his decision was caused to be so implemented. The Commissioner relied on Prison Rules r.56 and Standing Order 397 issued pursuant to r.77(4).

46. It is agreed on all hands that a prisoner does not shed all his basic rights at the prison gate. He would retain these rights of a free citizen unless they are expressly withdrawn from him by law or impliedly superceded insofar as they are wholly inconsistent with the objectives of our correctional system. Restrictions against a free exercise of these basic rights can only be imposed under clear authority of law. See Statutory Interpretation, Bennion, 2nd edn, p.584, section 277. It is against that decision of the Commissioner that the respondent applied for judicial review. Sears, J. granted the application and set at naught the Commissioner's decision, hence this appeal. I would not repeat all the salient facts which are set out in the judgment just delivered by the Vice-President.

47. The Commissioner raised a number of justifications for the interference with the respondent's access to the horse-racing supplements on race days. To these justifications I shall return.

48. In this appeal, the respondent seeks to meet the justifications advanced by the Commissioner on three fronts. First, it is said that there was no legal basis for the Commissioner's censorial action of lifting from his paper its horse-racing supplement on a race day. Secondly, the decision of the Commissioner to remove these horse-racing supplements was irrational and its content unnecessarily wide. Thirdly, by the decision he made in May 1995 the Commissioner was in breach of Article 16(2) of the Hong Kong Bill of Rights in Part II of the Hong Kong Bill of Rights Ordinance. The first and the last objections are inter-linked via s.9 of the Ordinance. The Commissioner need not deal with the Bill of Rights objection by resorting to Article 16(3) unless the first objection succeeds.

49. That illegal gambling in prison was a serious problem which had to be addressed is acknowledged by those representing the respondent. The Commissioner's stance was that the right to a more proximate and fuller final analysis of racing information was not vital or essential to the welfare of the respondent. The respondent's access to such information was not shown to be one of his fundamental needs. Not only was dissemination of horse-racing information of this nature recognised by the Commissioner as lawful, he was also not oblivious of the fact that it would relieve the doldrums of the inmates, perhaps more so for the respondent in detention. The Commissioner maintained that his policy and practice of removing these supplements must be firmly established in order to preserve security, order and discipline. The growing vigilance of his staff and intensified enforcement in Stanley Prison had brought about a 30% increase in gambling related disciplinary offences after May 1995, but that is not to be taken as evidence of ineffective control of illegal gambling since the Commissioner's decision to remove racing supplements. On the other hand, it would serve to demonstrate an unceasing need for the measure taken by the Commissioner. Of the then 1986 inmates in Stanley Prison, 571 received ordered copies of newspapers of their own choice. The 145 officers then on shift duty faced time and labour constraints in monitoring illegal gambling activities which attracted gambling related disciplinary offences, rising from 22 in 1994 to 28 in 1995. Withdrawal of these horse-racing supplements on race days would aid supervision and control. The Commissioner proffered these justifications and concluded that interference with the respondent's right was not excessively onerous or oppressive. Other forms of less exuberant racing reporting were still available to the respondent. He would have the latest horse-racing news from the rest of the paper, the radio and television. The competing interests of the respondent's eager access to the supplements on race days and the Commissioner's concern in maintaining prison discipline are, to my mind, easy to balance. Viewed in that setting, public good must be given preference over the respondent's individual rights. Withholding these racing supplements on race days was calculated to maintain optimum custodial discipline. The transgression against the respondent's right to more informed up-to-date advice on horse-racing was but a small price to pay. The Commissioner could not be condemned as being so outrageously lacking in common sense as would render his decision irrational. In AG v. Lu Kwong-Kut & Others, [1993] 2 HKCLR 186 at p.202 lines 28-29, Lord Woolf reminded us that "the questions of policy remain primarily the responsibility of the legislature". See also Council of Civil Service Unions v. Minister for the Civil Service, [1985] 1 AC 374 at p.411E, per Lord Diplock. In R. v. Home Secretary Ex parte Leech, [1994] QB 198 at p.202 G/H, Steyn L.J. said of Prison Rules as leaving in the prison authorities "a large measure of discretion".

50. If the Commissioner had the power to impose the said restriction by clear authority of law, the Bill of Rights objection under Article 16(2) would not arise. Therefore, but for the contended lack of legal basis for the Commissioner's action, this appeal should clearly be allowed. Was there any sound legal basis for the censorship of the respondent's reading material? S.25(1)(h) of the Prisons Ordinance enables the Governor in Council to make rules "providing for.....discipline.....of the prisoners". Rule 56 of the Prison Rules made thereunder reads:

"Prisoners may receive books or periodicals from outside the prison under such conditions as the Commissioner may determine."

51. "Periodicals" would include "newspapers". See Walter v. Howe, [1881] 50 CJ 621 at p.622. The Oxford Encyclopaedic English Dictionary defines "periodical" as "newspaper, magazine etc. issued at regular intervals, usually monthly or weekly". Seep.1080. The plain meaning of the preposition "under" is "liable to, on condition of, subject to". See The Concise Oxford Dictionary, p. 1167 and The Oxford Encyclopaedic English Dictionary, p. 1570. That is clear authority of law for the imposition of restrictions. The Commissioner in this case was, therefore, entitled to and did lay down the conditions which included the following and with which the respondent agreed in his Consent Form for subscribing to his newspaper:

"The authority has the right to check the contents of the newspaper. The pages covering gambling or any indecent material will be taken out by the authority without any prior notice given."

52. The legal basis for the Commissioner's decision was sourced from the then r.56. The Prison Rules were available in the prison library to which the respondent had access, and upon signing the Consent Form he came to know the precise terms of the imposed restrictions. The law and the impugned decision made thereunder were thus sufficiently accessible to the respondent. In my view, the Commissioner's decision to remove racing supplements on race days was a necessary and reasonable restriction for maintaining institutional good order and discipline at Stanley. It was clearly sanctioned by law of which the respondent had full knowledge. Moreover, s.9 of the Hong Kong Bill of Rights Ordinance, read in conjunction with its s.2(2), exempts from our Bill of Rights persons lawfully detained in penal establishments, who consequently "are subject to such restrictions as may from time to time be authorized by law for the preservation of service and custodial discipline". The respondent falls outside Part II of that Ordinance, of which Article 16 forms part. The Bill of Rights argument also fails.

53. The Standing Orders are mere guidelines for prison officers. See R. v. Home Secretary, Ex part Leech, supra. p.202H, p.202 G/H, Raymond v. Honey, [1983] 1 AC 1 at p.12H -p.13B, per Lord Wilberforce and R. v. Home Secretary, Ex parte Anderson [1984] 1 QB 779. I do not propose to dwell upon the currently amended r.56 which is expected to come into operation on 1 November 1996, s.18(1) of the Prisons Ordinance and Prison Rules rr.47,48 and 202(2). Suffice it to say that I derive no assistance from them on the issues central to this appeal. I, too, would allow this appeal and I agree with the order the Vice-President proposes to make.

Ching JA:

54. For the reasons he has given I too agree with the Vice-President that this appeal is to be upheld.