HUNG CHI KWAN v. TAI WING KIN AND ANOTHER

HCAL 106/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 106 OF 2002

____________

____________

_______________

J U D G M E N T

_______________

1. This is an application by a serving prisoner for judicial review of a disciplinary hearing and sentence whereby he was ordered to lose 3 days remission of his sentence, there having been a finding by a Superintendent of Stanley Prison, confirmed by the Commissioner for Correctional Services, that he was fighting with a fellow prisoner on 7 July 2001. Leave to apply was granted by Hartmann J. on 10 April this year and an expedited hearing was ordered. It therefore came before me on 2 May almost exactly three weeks later.

2. The Applicant seeks an order of certiorari to quash the decision of Mr Tai Wing Kin, a Superintendent of the Correctional Services Department, and decision of the Commissioner of Correctional Services who dismissed the Applicant's appeal against the Superintendent's decision.

3. On 7 July 2001 at about 0900 hours the Applicant was in No. 2 playground of block 6. He was seen by two patrolling prison officers to be sitting on the ground. The two officers then saw another prisoner, Sun Sheung Chung, walk towards the Applicant and strike him twice with his fist on the back. The Applicant stood up immediately and turning around struck the other prisoner who had attacked him, twice with his fist. The two men then became entangled. The officers shouted for them to stop and they did so.

4. There were minor injuries to both prisoners. The Applicant had a small (0.5cm diameter) red mark on the inner aspect of his left lip and the other prisoner had what was described as "redness caused by scratching" on his left lower chest, left elbow and left forearm. At the time of this incident the other prisoner was not wearing any clothing on the upper part of his body.

5. Both prisoners were charged with fighting with a person under rule 61(X) of the Prison Rules (Cap.234). The hearing commenced on 9 July before the Presiding Officer, Superintendent Tai Wing Kin in Stanley Prison.

6. Sun Sheung Chung admitted the disciplinary offence but the Applicant denied it. He had on any view good grounds for so doing. The evidence of the two prison officers made it clear that he was the victim of an assault by Sun Sheung Chung. Sun was not charged with a disciplinary offence under Rule 61(f) - "committing an assault".

7. Although Sun admitted the offence he was allowed to take part in the proceedings that ensued as if he were contesting them, and in due course gave evidence and made submissions. All the other witnesses called were cross-examined by the Applicant and Sun himself cross-examined the other prisoners who were called to give evidence in support of the Applicant's case that he did not take part in any fighting with Sun. Of some importance in the context of an aspect of the Presiding Officer's approach to the issues in the proceedings, to which I shall revert in due course, was the evidence of Sun to the effect that he had planned the attack on the Applicant and looked for an opportunity when he was on his own and unsuspecting, and no one was near enough to him to assist him.

8. At the conclusion of the hearing which extended over several days, the Presiding Officer gave his findings. On the evidence the other prisoner, Sun, would have had no defence to a 'charge' of assaulting the applicant. It is clear in the findings that no consideration was given to the matter.

9. For the purposes of this application, Mr Kwok Sui Hay, for the Applicant, attacks the procedure and findings in a number of respects, alleging unfairness in the conduct of the proceedings themselves.

10. When the second prison officer had given evidence, the Applicant challenged his use of his notebook entries as the basis of his evidence. The Presiding Officer told the Applicant that this objection was a matter which he should have raised at the outset. The Applicant's contention is that when he raised an objection to the first prison officer using his notebook as the basis of his evidence, the Presiding Officer told him that he should wait until the prison officer had finished his evidence-in-chief. This does not appear in the record of proceedings. I do not need to resolve the issue as to whether this earlier exchange did take place. It is sufficient that I do not regard the objection to either prison officer using his notebook for the purpose described as a valid one. The officers made their records within a short time of the events occurring and it is reasonable for them to use these records as the basis of their evidence. In any event none of their evidence given in this manner was prejudicial to the Applicant.

11. The second criticism is based upon the suggestion that the other prisoner, Sun, by being allowed to cross-examine witnesses, in effect took on the role of prosecutor. Certainly a degree of latitude was allowed to this prisoner in the proceedings although he had admitted the offence alleged against him. However his questioning was limited to showing that the other prisoners who were called to give evidence on behalf of the Applicant, were biased against Sun, and in favour of the Applicant. Although it was perhaps unusual for the proceedings to be conducted in this way I find no prejudice resulting to the Applicant. The evidence of the other prisoners was largely in conflict with that of the prison officers and the Presiding Officer was entitled to take the view that, with or without questioning by Sun, these witnesses were unreliable and colouring their version of events to support the Applicant. It is quite reasonable in disciplinary proceedings as flexible as these, that even a prisoner who has admitted his offence should be entitled to elicit or challenge evidence with a view to mitigating his own involvement. There is nothing to support this ground of criticism.

12. The third point was that the Presiding Officer should have given the Applicant the opportunity of cross-examining the other prisoner, Sun. The Presiding Officer gave both of them the opportunity of putting forward "their explanations and defences to the charge". Both accepted this. Neither cross-examined the other. It is not suggested on behalf of the Applicant that he asked to cross-examine the other prisoner, and was refused. There is certainly no note to this effect in the record. In my judgment the Applicant's case was in any event clear: he did not take part in any fighting and the other prisoners had been called to give evidence to support this. Even if the Applicant had asked to cross-examine the other prisoner and been refused permission, that would not have constituted a defect in the proceedings with resultant prejudice to the Applicant.

13. After the Presiding Officer had made his findings in a judgment delivered on 21 July 2001, the Applicant appealed to the Commissioner against the findings. He raised two points. One concerned a mistaken reference in the early part of the judgment to the incident having occurred on 9 July 2001. This is simply a slip of the pen and Mr Kwok has very sensibly not pursued this as being of any significance. The other concerned the minor, even trivial injuries sustained by the Applicant and his co-prisoner. He disputed the Prison Officers' evidence on this and that there was any evidence to prove that those sustained by the co-prisoner were as a result of the contact between the two of them.

14. I think the Applicant is somewhat confused about this issue. There was clear evidence of the existence of the injuries, such as they were. It was also open to the Presiding Officer to conclude that they resulted from some physical contact between the two of them. There is no reasonable basis for any point advanced on this issue and no prejudice arises.

15. In response to the grounds of appeal by the Applicant the Presiding Officer found it necessary to make his own comments to the Commissioner directly, a highly questionable action in itself. If such comments were simply confined to a correction of fact or a clarification of some item of evidence about which there was some confusion, they would be acceptable.

16. However the Presiding Officer's comments were not so confined. He dealt with the error concerning the date of the incident. The first sentence of his comment was sufficient. It was quite unnecessary to state more.

17. The second concerned the trivial injuries. It is unfortunate that he dealt with it at all. It contains in any event a misstatement of the evidence. The prison officers did not state that the Applicant scratched the co-prisoner, Sun. The Presiding Officer was entitled to infer that the scratches resulted from the physical contact. Although these comments went beyond what was acceptable I do not consider that they constituted prejudice.

18. The third comment related to sentence and has no objectionable content.

19. The concluding paragraph is however entirely inappropriate. It is necessary to repeat it in full here because it is in my view a complete departure from what is acceptable and should not be repeated as an exercise in self-justification.

"In conclusion, my verdict is safe. The evidence for this case is so clear and really cannot be denied by the Appellant prisoner. As on sentencing, I have given very careful and thorough consideration and the sentence appropriately reflected the Appellant prisoner's acts in committing the offence. Finally, I urge the Commissioner to uphold the original verdict. As for the request to change the punishment, would the Commissioner please make the final decision."

20. I have underlined those parts to which exception is taken. They constitute in my view the clearest exhortation to the Commissioner not to allow the appeal. They are bald statements to the effect - "I made the right decision. The evidence is all one way. Please uphold me."

21. I cannot state too strongly that for one decision-making body to communicate in such terms with an appellate body, which is reviewing his decision, strikes at the root of principles of fairness and impartiality. It was the clearest attempt to influence the Commissioner in his decision. That in itself vitiates the decision of the Commissioner who dismissed the appeal as, in effect, he was asked to do by the Presiding Officer. The unfairness does not stop there. This communication by the Presiding Officer to the Commissioner was not disclosed to the Applicant. There cannot be any argument contrary to a clear cut obligation to disclose to a party any document relating to the proceedings which is made available to an appellate or reviewing body unless there are considerations of security or public interest which require confidentiality. This is not one of those cases and Mr Dennis Law for the Commissioner does not seek to argue otherwise.

22. Mr Law does however argue that the comments to the Commissioner were designed to accelerate the consideration by him. I can find nothing in the content to support this. Mr Law's fall back argument is that no substantial prejudice resulted to the Applicant in any event. I regret that I am quite unable to accept his contention. A secret communication from the original decision-maker to the reviewing Commissioner encouraging the latter to dismiss the appeal reeks of substantial prejudice. The communication breached tenets of fairness. The fact that it was not disclosed to the Applicant was a classic example of justice not being seen to be done.

23. The principles to which I have referred are so deeply enshrined in the law and the line of cases of Judicial Review that it is not necessary to consider specific decisions. I allow the application for certiorari and quash the decision of the Commissioner.

24. That however is not an end of the matter. The simple defence of this Applicant to the charge was that he was not fighting. He asserted and called evidence, in support, that he did not respond to Sun's attack with any blows of his own. It may well have been that the disciplinary charge was based simply upon the notion that if he responded to the attack upon him with any blows of his own then the charge was proved. If that was the approach of the Presiding Officer then it seems the defence of reasonable self-defence was not available to him. It is absolutely clear from the Presiding Officer's judgment that he gave no consideration to whether, if he found that the Applicant did respond with blows, such blows were no more than the use of reasonable force to defend himself. This omission is difficult to understand.

25. As I indicated earlier the disciplinary proceedings were advanced against him on the undisputed factual basis that there was an unprovoked and premeditated attack upon him whilst he was sitting in isolation. If he had been charged with assault, there would have been available to him the defence of self-defence. Why should not that defence nonetheless be available to him in the circumstances as they were presented?

26. I do not accept Mr Law's argument that the Applicant did not himself raise the defence as a matter of law. This Applicant was unrepresented at the hearing. It was a prison disciplinary hearing and therefore representation was not practicable. However that leaves an obligation on those responsible for the proceedings to ensure that his rights are properly protected. Rule 60 stipulates that "it shall be the duty of the Superintendent to investigate such reports (of every offence against prison discipline)" and this means an investigation which considers any defences which may reasonably be available to the person charged, otherwise the investigation is an unfair exercise. Of course there are circumstances where prisoners are found fighting and it is impossible to ascertain the cause of the incident. It may be impossible to see how any such defence could arise but nonetheless it must be positively excluded.

27. In this case there was the clearest indication that it was available. Quite apart from the obvious inference to be drawn from the evidence of what the prison officers saw, there was the evidence from the co-prisoner. Furthermore a question from the Applicant to Prison Officer Tang, made it obvious that self-defence was an issue [p.8 of the Record]

"2nd Defendant:- "If a person is suddenly attacked by others from behind, what is his natural reaction?"

The Prosecutor:- "He will stand up, turn around and fight back.""

This is in general terms what the Applicant did. The Presiding Officer appears to have paid no regard to this at any stage. He seems merely to have proceeded on the basis that since he was satisfied that the Applicant delivered some fist blows to the co-prisoner that constituted the disciplinary offence of fighting and therefore he was guilty.

28. This issue of self-defence did not appear in Mr Kwok's submissions but it appeared to me to be at least arguable and I indicated at an early stage to Mr Law that I wished to hear him on the point. Mr Kwok accepted the invitation to advance it particularly in the light of Mr Law's fair concession that fighting was not an absolute offence in the sense that the delivery of any blows, justified or not, constituted fighting.

29. The failure of the Presiding Officer to consider this issue was a clear example of substantial prejudice to the Applicant. On all the evidence before him self-defence should not only have been considered fully but in my judgment, had there been such full consideration, it could not have been disproved. Once raised, the onus shifts to the prosecutor to disprove it.

30. Accordingly I allow the application for certiorari in respect of the Presiding Officer's decision, quash it and the sentence is thereby also quashed. The effect therefore is that as far as this incident is concerned there will be no reduction in his entitlement to remission.

31. The Applicant is legally aided. He is also entitled to his costs and although this means an accounting exercise between two institutions funded by government, I make an order (nisi) that the Applicant shall have his costs. I invite the parties to submit to me a short statement (of no more than 2 pages) of the claimed profit costs and disbursements and any challenge thereto under order 62 rule 9(4) if the costs are not agreed.