LAI CHUN HUNG v. SECRETARY FOR CIVIL SERVICE AND ANOTHER

HCAL 484/2022

[2023] HKCFI 1590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 484 OF 2022

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D E C I S I O N

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A. Introduction

1.  The Applicant is a former staff member of the Correctional Services Department (“CSD”).  His last rank was Assistant Officer II (“AOII”).

2.  In 2016, he was charged with two disciplinary offences and was found guilty of both at the conclusion of a disciplinary hearing.  By a decision (“Sentencing Decision”)  dated 12 June 2019, the Commissioner of Correctional Services (“Commissioner”)  awarded the punishment of “dismissal without retirement benefits” against the Applicant as regards the first charge.

3.  The Applicant appealed against the Sentencing Decision to the Secretary of Civil Service (“Secretary”).  By a decision dated 22 March 2022 (“Appeal Decision”), the Secretary affirmed the Sentencing Decision.

4.  By a Form 86 dated 15 June 2022, and filed the next day, the Applicant sought leave to challenge both the Sentencing Decision and the Appeal Decision by way of judicial review.  On 21 July 2022, I granted leave on paper. The substantive hearing was subsequently fixed for 13 June 2023.  At the hearing, the Applicant was represented by Mr Antonio Tsui of Counsel. The Commissioner and the Secretary were represented by Mr Aaron Lam, Senior Assistant Law Officer (Civil Law)  (Ag)  and Mr Jonathan Ip of Counsel.

5.  I reserved judgment at the conclusion of the hearing.  This is my Judgment.

B.  Focus of the Argument

6.  A myriad of complaints was raised in the Form 86 and adopted in the Form 86A, neither of which was signed by Mr Tsui.  In his skeleton submissions, Mr Tsui condensed the various complaints into three main grounds, all of which are said to have arisen from or flowed from the improper procedure adopted in the disciplinary hearing.

7.  The impropriety is said to be found in the adoption of a “PNG Procedure” rather than a “PG Procedure” – where PNG stands for “pleaded not guilty” and PG stands for “pleaded guilty” – even after the Applicant had pleaded guilty to the disciplinary offences.  As the language of PG and PNG might suggest, the shape of the disciplinary hearing resembles the usual form of criminal proceedings conducted in a Court of law.

8.  It is undisputed that the Applicant initially pleaded ‘not guilty’ to the disciplinary offences but later reversed his plea to one of ‘guilty’ during what I would loosely call a trial.  Mr Tsui said that at that point the trial should have switched from the PNG Procedure to the PG Procedure, and the presentation of prosecution evidence against the Applicant should have ceased and the hearing should have moved to the stage of a plea in mitigation.  However, the Adjudicating Officer (“AO”)  – who was a Superintendent of the CSD assuming the adjudicatory role in the Disciplinary proceedings – continued to adopt the PNG Procedure and allowed the “Prosecuting Officer” (“PO”)  – who was a CSD officer responsible for prosecuting the Applicant – to present more evidence against the Applicant.

9.  From this theme, Mr Tsui formulated three grounds of review, as follows:

(1)  Ground 1: The CSD’s Sentencing Decision was reached through an improper procedure.  Mr Tsui submitted that the departure from proper procedure was not merely trivial or technical, but produced substantive unfairness to the Applicant.  The continuation of the PNG Procedure led to the admission into evidence of more prejudicial materials which became aggravating factors in the sentencing stage and contributed to the award of dismissal without retirement benefits – the most severe punishment of all.

(2)  Ground 2: The adoption of the improper procedure shows that the AO made errors of law, in that he misunderstood the established procedures.  If the deviation from proper procedure was not the result of mistaken understanding but rather a deliberate act, this would call into question the intention of the AO and give rise to a real risk of bias.

(3)  Ground 3: The award of dismissal without retirement benefits is Wednesbury unreasonable, in that it is made based on facts or inferences drawn from the unfair proceeding, it is tainted by errors of fact, and it is disproportionate to the offence committed.

10.  Central to all three grounds are the propriety of the procedures adopted in the disciplinary proceedings conducted before the AO, which has generated the materials forming the basis of not only the Sentencing Decision but also the Appeal Decision.  The Appeal Decision was conducted on paper.  Evidence, which Mr Tsui said had only come into being in the way it did was because of the wrongful continuation of the PNG Procedure, was also admitted into the decision making process leading to the Appeal Decision.  Whilst not put exactly in this way, Mr Tsui’s positon, as I understand it, was that if his attacks on the procedural propriety of the disciplinary proceedings succeeds, both the Sentencing Decision and the Appeal Decision should fall.

11.  Mr Tsui did not pursue other arguments raised in the Form 86 or the supporting materials, which, with respect, were presented in a rather scattered or incoherent manner.  Therefore, I shall focus on these three broad grounds and refer only to facts material to the analysis of these three grounds in the Judgment.

C.  The Regime for Disciplinary Proceedings

12.  To determine whether the actual procedures adopted were improper, it is necessary to see what (proper)  procedures are envisaged under the relevant regulatory regime.

C.1   Prison Rules

13.  Provisions governing disciplinary matters against officers employed in prisons are to be found in Part V of the Prison Rules Cap 234A (“Prison Rules”).  The then applicable version for the Applicant’s case was the one coming into effect on 12 November 2015.

14.  Rule 239 of the Prison Rules sets out a list of disciplinary offences for which persons employed in a prison could be charged.  Of relevance to this case are two disciplinary offences:

(1)  Rule 239(1)(h)  prohibits communication with any ex-prisoner, or a relative or a friend of any prisoner or ex-prisoner, without proper authority.

(2)  Rule 239(1)(p)  prohibits the contravention of any of the Prison Rules or the commission of any breach of duty.

15.  Rules 243 to 251 set out the procedures running from the entering of a charge to the award of punishment if the person is convicted.

16.  Rule 243 provides for the procedure by which an officer could be charged.  The process starts with a charge sheet which shall set out one or more of the specific disciplinary offences listed under Rule 239, as well as such particulars which should leave the officer with no misapprehension as to the charge against him.  The charge sheet is to be handed to the officer charged at the earliest possible moment, together with a list of witnesses and their written statements which are proposed to be adduced in support of the charge.

17.  Rule 244 provides that the officer charged shall, upon the receipt of the charge sheet, state in writing his reply to the charge and give the names of any witnesses he decides to call (and their witness statements)  within 24 hours.

18.  Rule 245 provides for the power to hear charges to officers in the rank of Superintendent.  It is worth setting out Rule 245 in full since it directly concerns the PG Procedure and the PNG Procedure.

245.  Power of Superintendent to hear charges

(1)  Where on consideration of the report upon which the charge is based and the written statements (if any)  the Superintendent considers that the charge is within his competence and that, if it is admitted or found proved, his powers of punishment will be sufficient, then subject to the provisions of subrule (2)—

(a)  if the officer or person charged admits the charge, the Superintendent shall, after hearing him and any witness he may wish to call in extenuation or explanation and any other witnesses whom the Superintendent may consider desirable to call, either caution such officer or person or make a disciplinary award within his powers;

(b)  if the officer or person charged denies the charge, the Superintendent shall, at the earliest possible moment, arrange for the attendance of all necessary witnesses and shall, after hearing all the evidence and the explanation of such officer or person, either dismiss the charge or, if he finds the charge proved, administer a caution or make a disciplinary award within his powers.

(2)  Where the Superintendent, after hearing all of the evidence on a charge under subrule (1), comes to the conclusion that the charge is proved but that the case should be referred to the Commissioner he shall so refer the case and shall forthwith inform the officer or person charged accordingly.

(2A)  Where the officer or person charged is informed by the Superintendent under subrule (2)  that the case has been referred to the Commissioner, he may, within 14 days of being so informed or within such further period as the Commissioner may allow, make representations in writing to the Commissioner.

(3)  Where on consideration of the report on which the charge is based and the written statements (if any)  the Superintendent considers that the charge is not within his competence or that, although it is within his competence, his powers of punishment would be insufficient if the charge were admitted or found proved, he shall refer the case to the Commissioner and shall so inform the officer or person charged; and the Commissioner may either deal with the case himself or direct the Deputy Commissioner to hear the charge and shall so inform the officer or person charged accordingly.

19.  In gist, the Superintendent will only hear the charge if he is of the view that the case is within his competence and that his powers of punishment are sufficient if the charge is established at the end. Otherwise, he will refer the case to the Commissioner or Deputy Commissioner for hearing or for awarding punishment.  Rule 245(1)(a)  governs the PG Procedure which is expected to be triggered by an admission to the charge.  Rule 245(1)(b)  governs the PNG Procedure which is to be adopted when the accused denies the charge.

20.  It can be noted that Mr Lam, on behalf of the Commissioner and the Secretary, placed some emphasis on the provision in Rule 245(2)(a)  which expressly empowers the AO to hear “any other witnesses whom the Superintendent may consider desirable to call” when the accused has pleaded guilty.  I will return to this point later.

21.  Rule 246 sets out the rights of the accused in the conduct of the disciplinary hearing.

22.  Rule 247 sets out the powers of the Superintendent in awarding punishment.  He can only administer a fine, a reprimand, a severe reprimand, a combination of reprimand and fine, or certain hours of extra duty.

23.  Rules 248 to 255B set out the powers of the Deputy Commissioner and the Commissioner on the hearing of a charge in awarding punishment.  The Commissioner also has the option of further referring the case to the Chief Executive (“CE”).  The Deputy Commissioner, the Commissioner, and the CE are capable of awarding punishments heavier than those that could be awarded by the Superintendent, with the CE capable of awarding the most severe forms of punishments.

24.  In respect of punishments for Assistant Officers (to which rank the Applicant belonged), Rules 255 and 254(b)  provide that an Assistant Officer who is found guilty of or pleads guilty to a disciplinary offence may be punished by the Commissioner or the CE by awarding reduction in rank, stoppage or the deferment of increment, forfeiture of pay in some circumstances, a fine not exceeding one month’s salary, severe reprimand, extra duties, dismissal without retirement benefits, compulsory retirement with full retirement benefits or reduced retirement benefits or without retirement benefits.  Obviously the option of dismissal or compulsory retirement without retirement benefits is the most severe of all.

25.  Rules 255C to 255K further set out matters concerning the reviews and appeals of either a guilty finding or a punishment awarded to the accused.  Rule 255E(1)  provides that the appeal shall lie to the CE in respect of a finding made or a punishment awarded by the Commissioner, and the appeal shall lie to the Commissioner in any other case.  Rule 255E(2)  allows the CE to delegate to the Secretary the determination of an appeal referred to him.

26.  Rule 255H provides that for the purpose of any appeal against a finding, the CE may accept in whole or in part the record of the evidence already taken or may direct that the whole or any part of the evidence be taken again or that additional evidence be taken.

C.2   Standing Orders and SDM

27.  Apart from the Prison Rules, disciplinary proceedings against prison staff are also regulated by the CSD’s house rules published in two internal documents known as the “Standing Orders” and the “Staff Discipline Manual” (“SDM”).

28.  Of particular relevance is Chapter 4 of the SDM, which concerns ‘Formal Disciplinary Proceedings’.  Before turning to the more directly relevant provisions, it can be noted that:

(1)  §4.2 provides that formal disciplinary action against persons employed in the prisons is conducted in accordance with the provisions and procedures stipulated in Rules 239 to 255K of the Prison Rules, Chapter 20 of Standing Orders and Standing Procedures, and the ensuing paragraphs in the SDM itself.

(2)  §§4.3 to 4.11 deals with the roles of the parties concerned in formal disciplinary action, including the AO, the PO, the Reporting Officer (“RO”)  and the DOJ.

(3)  §§4.12 to 4.14 deals with the investigation and prosecution.

(4)  §§4.15 to 4.25 deals with defence representation, and the appeal mechanism concerning defence representation.

(5)  §§4.26 to 4.42 covers general matters relating to conduct of disciplinary hearings.

(6)  §§4.43 to 4.81 – under the broad heading ‘Hearing’ – set out the the procedures running from the taking of plea to the awarding of punishments when the accused is found guilty as charged. Individual sections under that broad heading have separate headings or sub-headings.

29.  It can be noted in passing that §4.43 expressly states that the disciplinary hearing is not a court of law, and proceedings should be conducted without undue formality.  But I do not think that provision is particularly central to the analysis required for this case.

30.  §§4.48 to 4.49 – headed “Taking plea” – provide that the plea shall be made by the officer charged himself and that he should be informed of his various rights in the conduct of the hearing.

31.  Immediately following “Taking plea” is a section headed “Plea of guilty”, comprising §§4.50 to 4.54.  As the heading suggests, these paragraphs set out what shall happen if the officer pleads guilty, i.e. the PG Procedure.  These paragraphs read:

4.50  If the Officer Charged enters a guilty plea to the charge, normally, witnesses would not be called to give evidence and the Prosecuting Officer will present to the Adjudicating Officer a summary of facts of the case.

4.51  The fact that the Officer Charged has admitted the charge does not relieve the Prosecuting Officer from producing sufficient evidence to establish the facts of the case.

4.52  If the Adjudicating Officer finds the summary of facts presented insufficient to prove the Officer Charged guilty as charged, even it is agreed to by the Officer Charged, the plea of guilty would not be accepted.

4.53  The Officer Charged will also be asked whether he wishes to challenge the case presented by the Prosecuting Officer.  The Officer Charged will be given the opportunity to admit or to deny all or any part of the particulars.  If the Officer Charged or his representative challenges the facts on which the charge is based, his plea should be changed to one of denying the charge and the matters in dispute shall be covered in subsequent evidence.

4.54  Having satisfied himself that summary of facts presented by the Prosecuting Officer proves the charge, the Adjudicating Officer will ask the Officer Charged or his representative if he has anything to say in mitigation.  The Officer Charged or his representative may be allowed, if necessary, to call witnesses or produce evidence to assist him in mitigation.

32.  Mr Tsui’s emphasis was on §§4.50 and 4.54.  He said since the Applicant pleaded guilty in the middle of the trial and the guilty plea was accepted by the AO, the PO should have ceased calling further evidence, and what should have followed is a plea in mitigation where the Applicant would say something and/or call evidence in mitigation, seeking a lenient punishment.  On the other hand, Mr Lam relied on §4.51 to argue that the presentation of evidence by the PO after a guilty plea is permitted.  I will return to these points later.

33.  Naturally following the “Plea of guilty” section is the “Plea of not guilty” section, which comprises §§4.55 and 4.56.  §4.55 explains that a not guilty plea will be entered, i.e. if the accused pleads not guilty or refuses to plead or remains mute in the proceedings.  §4.56 says the PO will then present his case and state the witnesses and documentary evidence he intends to present at the hearing, i.e. the PNG Procedure is triggered.

34.  §§4.57 to 4.81 set out the PNG Procedure.  As said, the shape of the disciplinary hearing is broadly similar to that of criminal proceedings, except that other than the accused and the prosecution, the AO will also be entitled to call witnesses.  The PNG Procedure is explained in a number of sections, the headings and broad summaries of which should suffice in outlining the procedure:

(1)  “Evidence/witnesses presented by the Prosecuting Officer” – §§4.57 to 4.64: the prosecution will call evidence to establish its case first.

(2)  “No case to answer” – §4.65: after the prosecution has produced all evidence and closed its case, the AO has to decide if there is prima facie evidence to establish the prosecution case.

(3)  “Statement made by the Officer Charged” – §4.66: if there is a case to answer, the accused has to decide whether he wishes to give evidence, either orally or in writing, in his defence.

(4)  “Evidence/witnesses presented by the Officer Charged or his representative” – §§4.67 to 4.69: then the accused can adduce evidence or call witnesses in his defence.

(5)  “Witnesses by Adjudicating Officer” – §4.70: unlike a criminal trial, the AO can also call witnesses and the order of questioning of the witnesses will be determined by the AO at the hearing.  This rule is of no relevance in the present case.

(6)  “Official notebook” – §4.71: the AO may allow a CSD staff witness to refer to his official notebook for refreshing memory.

(7)  “Summing up and final address” – §§4.72 to 4.74: the PO may make a what is usually called a closing speech, followed by the accused if he wishes who has the last word.

D.  The Disciplinary Proceedings against the Applicant

35.  The charge sheet was served on the Applicant on 31 August 2016.  He was charged with two disciplinary offences – the unauthorised communication offence under Rule 239(1)(h)  and the general breach of duty offence under Rule 239(1)(p).

36.  The first charge reads “without proper authority communicates with any ex-prisoner or with a relative, or friend of any prisoner, or ex-prisoner contrary to rule 239(1)(h)(i)  of the Prison Rules”.  The particulars of the offence read “You, being an Assistant Officer II of Correctional Services Department, did, sometime between 2013 and 2014, without proper authority communicate with a [Ms Wong], who was the friend of the then prisoner, a [Mr Tsoi]”.

37.  The second charge reads “commits any breach of duty contrary to Rule 239(1)(p)  of the Prison Rules”.  The particulars read “You, being an Assistant Officer II of Correctional Services Department, in or about early 2014, failed to inform your Head of Institution the solicitation or incitement made to you by a then prisoner, namely [Mr Tsoi], to introduce tea leaves which were contrabands into Pak Sha Wan Correctional Institution, and thus committed a breach of duty on the Correctional Services Department Standing Procedures 07-02(1)  which stipulates [provision then set out]”.

38.  There is no dispute that the Applicant did commit both offences, where he has pleaded guilty to the charges.

39.  The disciplinary proceedings were triggered by a referral from the Independent Commission Against Corruption (“ICAC”).  In 2014, the Applicant was investigated by the ICAC for suspected corruption offences arising from the same factual circumstances which underpinned the two disciplinary offences.  In 2015, the ICAC closed the investigation with the conclusion that there was no evidence to substantiate the criminal offences, but decided to refer the case to the CSD.

40.  While the charge sheet of the disciplinary offences was served in August 2016, the Applicant did not attend the 1^st hearing until June 2017.  The Applicant had refused to attend all the five hearings scheduled before that on medical grounds.

41.  In the end, seven hearings were actually conducted: 1^st Hearing (8 June 2017), 2^nd Hearing (21 June 2017); 3^rd Hearing (22 August 2017); 4^th Hearing (29 September 2017); 5^th Hearing (27 October 2017); 6^th Hearing (23 February 2018); and 7^th Hearing (30 May 2018).  The long gap between the 5^th Hearing and the 6^th Hearing was caused by another period of sick leave.

42.  The Applicant applied for legal representation in the 1^st Hearing.  The AO rejected the application in the 2^nd Hearing. Apparently the reason for rejection was that the disciplinary offences even if substantiated would not warrant a punishment as severe as a dismissal.  He was recorded to have said to the Applicant that:

“Obviously, there was no sufficient prima facie evidence to substantiate the suspicion of acceptance of advantage towards the Officer Charged. Disregarding the likelihood of acceptance of advantage, the seriousness of the two offences would be greatly reduced, and I would rule out the possibility of awarding a dismissal.”

43.  The Applicant’s plea was taken at the 3^rd Hearing.  He pleaded ‘not guilty’ to both charges.

44.  The PO started to present his evidence against the Applicant in the 4^th Hearing.  He proposed to call seven prosecution witnesses: the two ICAC officers who interviewed the Applicant on 19 June 2014 for the suspected corruption offences, two other ICAC officers who interviewed Ms Wong on the same day in connection to the same offences, Ms Wong, and two CSD officers who interviewed the Applicant on 15 September 2015 for the two disciplinary offences.  The PO also proposed to adduce five exhibits:  the Applicant’s ICAC interview records, Ms Wong’s ICAC interview records, the Applicant’s CSD interview records, and two other exhibits related to the Applicant’s work in CSD at the material time.

45.  The first prosecution witness called was a Mr Fung (“PW1”), who was the CSD staff in charge of questioning the Applicant in the CSD interview.  But the 4^th Hearing was adjourned in the middle of PW1’s testimony, in order to allow the Applicant to see a doctor.

46.  When PW1 continued with his evidence in the 5^th Hearing, he produced all the 5 prosecution exhibits.  The Applicant challenged the admissibility of Ms Wong’s ICAC interview records and his own CSD interview records. The hearing was adjourned for him to seek professional (presumably legal)  opinion on the admissibility of those two exhibits.

47.  Before the 6^th Hearing was convened, the AO, on his own motion, reversed his earlier decision which rejected the Applicant’s application for legal representation.  The decision was first made known to the PO on 16 January 2018, on which date a hearing was originally scheduled but the Applicant failed to appear.  The PO made an application for trial in absentia in view the Applicant’s frequent failure to appear in hearings.  The AO thought the appropriate course was to allow the Applicant to be legally represented based on a number of reasons.

48.  The AO’s decision and reasoning was latter made known to the Applicant through a “Special Notice” dated 26 January 2018 issued by the PO.  The body of the notice reads (as translated, underlining in original):

This is to inform you that, due to absence from the disciplinary hearing scheduled for the 4 December 2017, 5 January, 15 January and 16 January 2018, the Adjudicator Officer (“AO”)  had a meeting with me on 16 January 2018.  During the meeting, AO reconsidered and approved your Application for Legal Representation dated 21 September 2016 further following three reasons, in order to protect your rights and ensure that the disciplinary proceeding can be conducted in a fair and just manner:

1.  After your attendance of the last hearing on 27 October 2017, you have been absent from the subsequent hearings due to different reasons for a period of time.  AO believes that you may need to engage legal representative to represent you in the hearings;

2.  You have raised a legal point questioning the admissibility of some of the exhibits during the last hearing on the 27 October 2017;

3.  After assessing the relevant exhibits, AO considered the case is indeed serious and if you are convicted, severe punishment, including dismissal, could be awarded.

49.  That Special Notice was served on the Applicant on 1 February 2018.  On 7 February 2018, the Applicant wrote a statement to the AO to reverse his plea.  He said he would plead guilty to the charges in the next hearing, i.e. the 6^th Hearing which was conducted on 23 February 2018.

50.  The 6^th Hearing started by the PO’s reading out the Applicant’s statement to reverse his plea.  This was followed by the AO’s summary of his three reasons for allowing legal representation, which were already canvassed in the Special Notice.  The AO also asked again whether the Applicant wished for the hearing to be adjourned so that it could be restarted after he had arranged for legal representation, but that the hearing would continue if he decided not to have legal representation.  The Applicant confirmed he did not need legal representation (no doubt because he had already said he would plead guilty to both charges). In passing, I would note that, whilst the AO had changed his mind about legal representation, and had given brief reasons as to why, it may be that the Applicant would not have fully appreciated those points (all the niceties of what might happen next)  once he had indicated his intention to change his plea to one of guilty to both charges

51.  As shown by the hearing transcripts, the 6^th Hearing then proceeded as follows:

(1)  The AO asked the Applicant what he meant by stating that he would plead guilty to all charges, and the Applicant replied that he would plead guilty to the two charges.

(2)  The AO asked what made the Applicant have this change, and the Applicant replied that he was embarrassed to have dragged everyone on for so long, and thought the case should be put to an end as soon as possible.  He apologised for taking up so much time.

(3)  The AO asked the Applicant if he would plead guilty to both charges and their particulars, which he read out in full.  The Applicant pleaded guilty to both charges.

(4)  The AO specifically asked the Applicant whether he agreed to the particulars of the charges.  The Applicant expressly confirmed his agreement.

(5)  The AO then accepted the Applicant’s guilty plea for both charges, expressly on the basis that the Applicant agreed to the particulars.

(6)  Then, almost in the same breath as his confirmation of his acceptance of the guilty plea, the AO continued to process the issue of admissibility of the 5 prosecution exhibits produced by PW1 in the 5^th Hearing.  He ruled as admissible one of the prosecution exhibits concerning the Applicant’s work in the CSD.

(7)  The AO then said they would then proceed to continue with the disciplinary hearing by bringing in the prosecution witnesses.

(8)  The PO then called PW1 to continue with his evidence.

(9)  After PW1 had finished his evidence, the AO asked the PO what other witnesses he needed to call.  The PO called the other CSD staff, a Mr Chung (“PW2”).

(10)  After PW1 and PW2 finished their evidence, the AO said he would then make a ruling on the other prosecution exhibits “based on the testimonies of Mr Fung and Mr Chung”. He ruled all the other 4 prosecution exhibits admissible, which included Ms Wong’s ICAC interview records.

(11)  The AO then asked the PO if he had other witnesses to call or other exhibits to adduce.  The PO replied that as the Applicant had just admitted all the charges, he would not call other evidence. Thus, the other 5 prosecution witnesses the PO originally proposed were eventually not called.

(12)  The AO ruled that there was a prima facie case established, and that the Applicant had a case to answer.

(13)  The AO informed the Applicant that he could now raise his defence (even though the Applicant had just pleaded guilty).

(14)  The AO asked if the Applicant would need to call witnesses or produce evidence for the defence.  Not unsurprisingly, the Applicant did not raise any defence.  Nor did he call any witnesses or produce any exhibits.

(15)  The PO delivered his closing speech.  The prosecution exhibits, including the interview records, were featured in the closing speech.

(16)  The AO then invited the Applicant to give his closing submissions in relation to each charge.

(17)  When asked what was his closing submission on the first charge, the Applicant said “I hope Ah SIR can bestow lenience on me, and provided that I have already pleaded guilty, I hope Ah SIR can show mercy”.

(18)  The AO then reminded the Applicant that plea in mitigation could be made in later stage but it was time for closing submissions on the charge.

(19)  The Applicant said he had no closing submissions for either charge.

(20)  After an adjournment of 20 minutes, the AO concluded the hearing by convicting the Applicant on both charges.

(21)  In doing so, the AO first stated that he had heard the closing submissions of the PO and the Applicant, and would like to remind himself that the burden of proof lay with the prosecution, and that the Applicant did not have to prove his innocence.

(22)  The AO then stated that he found the particulars of each of the charge (which he restated)  as “proven”.

(23)  The AO then asked the Applicant whether he understood his “verdict” on each of the two charges, and the Applicant expressed understanding.

52.  At this point, it is impossible to resist pointing out that, at least at first blush, something appears to have gone wrong with the procedure.  Notwithstanding that the Applicant had changed his plea to one of ‘guilty’, the AO (1) invited the PO to present the prosecution case, (2) then invited the Applicant to present his defence case including by calling witnesses, (3) then invited the PO to make prosecution closing submissions, (4) then invited the Applicant to make his defence closing submissions, (5) then effectively rebuked the Applicant for moving to mitigation instead of seeking to advance submissions in support of a defence, (6) then purported to consider the evidence and the closing submissions, before (7) reaching a verdict on those materials, when clearly most of those steps were inapt and certainly no verdict was required following a guilty plea.

53.  On the 7^th Hearing, the AO gave reasons for his “verdict”.  In doing so, the AO noted that the Applicant had changed his plea to one of guilty, and had agreed to the particulars of both charges, but then immediately reminded himself of the burden of proof and the standard of proof which he would apply to his analysis of the evidence.

54.  After giving reasons for his verdict, the AO then asked the Applicant to make a plea in mitigation for both charges.  The Applicant gave very brief mitigation for both charges.  Thereafter, the AO imposed a “severe reprimand” for Charge 2.  But he said Charge 1 (unauthorised communications)  was very serious and his punishment powers were insufficient and thus he would refer it to the Commissioner.

55.  As the AO explained it orally in the 7^th Hearing, the seriousness lay in how the Applicant became acquainted with Ms Wong in the first place and their continued relationship.  But since the Sentencing Decision (setting out the punishment for Charge 1)  was made by the Commissioner, I shall focus on what information was laid before him rather than what the AO said in the hearing – though they overlap.

E.  The Sentencing Decision made by the Commissioner

56.  The decision was made by way of an internal minute within the CSD.  As is usual in government departments, the minute was drafted as a proposal or a recommendation made by the case officer to seek the endorsement from more senior officers.  The minute was prepared by an officer at the rank of “SS(HR)”, ultimately addressing the Commissioner but passed through two more levels of officer along the chain of command.  The two senior officers signed to support the recommendation while the Commissioner signed and expressly recorded his approval of the recommendation.  None of the them added further comments besides signalling their support or approval.  The recommendation was approved by the Commissioner on 11 June 2019.

57.  At §12 of the minute, what the AO said in the 7^th Hearing to explain the seriousness of the Charge 1 was quoted in part:

Regarding Charge (1), the officer charged took advantage of his position and took the initiative to get acquainted with [Ms Wong], who was paying a visit while he was working as a visitor room staff as Stanley prison in 2006 for personal gain.  After knowing [Ms Wong], the officer charged had met [Mr Tsoi] at the home of [Ms Wong] in 2009 with clear knowledge that [Ms Wong] and [Mr Tsoi] knew each other and had a bond of friendship……. This shows that the officer charged have been engaging in communications with [Ms Wong] regarding the incarceration matters of [Mr Tsoi] in spite of his clear knowledge that [Mr Tsoi] and [Ms Wong] were friends, such act was obviously in breach of the prison rules.  Worse still, the contents of the communications between the Officer Charged and [Ms Wong] were related to disciplinary misconducts, which were serious in nature, disrupting the security, good order and discipline of the institution. From the above behaviour, it can be seen that Officer Charged, as a public officer having served in the Department of more than 20 years, completely disregarded the discipline and order of the prison and has seriously breached the trust of public officers. …… After deliberation, I am of the view that my disciplinary powers to award punishment is insufficient to reflect the seriousness of the charge and therefore I will further case the Commissioner under Rule 245(2)  of the Prison Rules (sic).”

58.  The officer’s analysis as to why a recommendation of dismissal without retirement benefits would be warranted runs from §§15-22, under the section headed “gravity of the misconduct/offence”.  It may be said that these paragraphs are a more elaborate or expanded version of what the AO said which had already been quoted.  §15 is the introductory paragraph.  §§16 to 22 read (where ‘AOII LAI’ refers to the Applicant):

16.  Evidence unveiled in the adjudication indicated that without proper authority, AOII LAI was found communicating with WONG, who was a friend of that then PIC [Tsoi] between 2013 and 2014.  It was noted that the AOII Lai and WONG discuss issues relating to PIC Tsoi, who was then incarcerated in PSWCI while AOII Lai and WONG were having a cohabitation relationship.  More importantly, the conversation between the duo including illicit plans listed as follows:

Event	Occasions
1	WONG requested AOII LAI to ask PIC TSOI to send her letters;
2	WONG requested AOII LAI to give a ball pen to PIC TSOI;
3	WONG requested AOII LAI to introduce tea leaves to PIC TSOI; and
4	AOII LAI passed a message to WONG the PIC TSOI requested her to send him letters.

17.  Although there is no evidence to prove whether AOII LAI had executed illicit acts upon the request from WONG, the conversations during cohabitation hardly convince AOII LAI is a clean and honest person in discharging his duties.  However, it was concluded by AO that AOII LAI had disclosed the incarceration of PIC TSOI to WONG, who was already known as the friend of PIC TSOI in 2009.

18.  As mentioned in the Adjudication Record, AOII LAI agreed that he had already known WONG was a friend of PIC TSOI when the threesomes of them met in an occasion at the home of WONG in 2009.  Furtherance, AOII LAI frankly admitted that in some occasions, he had discussed with WONG the incarceration of PIC TSOI at PSWCI between 2013 and 2014 that indicated AOII LAI had already breached of his trust in public office.  Moreover, such act was not only inflicting conflicts of interest of the correctional officer but also affecting security in prison in a great extent.

19.  Worse still, it was noted that AOII LAI had been taking advantage of his position during the period of 2006 - 2014.  Evidence revealed that AOII LAI (being a visitor room staff when posting at [Stanley Prison] during that period)  first approached the then visitor, i.e. WONG, while she was paying a visit to her husband at that time imprisoned in [Stanley Prison] as early as 2006.  Evidence revealed that AOII LAI took the initiative to make conversation with her on the bus and then further developed a cohabiting relationship with WONG.  During their period of cohabitation, AOII LAI and WONG produced a son during 2008, who is now under foster care.  WONG also stated that AOII LAI never visits their son.

20.  Apparently, AOII LAI initiated and further developed a relationship with WONG (i.e. wife of a PIC incarcerating at that time)  was a pre-planned act which was undoubtedly immoral and unlawful act infringing the clean and honest imagine of the correctional officer.  His act definitely has brought CSD and even the government into disrepute.  Furthermore, AOII LAI’s choice of concealing his intimate relationship with WONG shows his ill intention to cover his unlawful act by all means, which is difficult to win the trust of the public that he can perform his duty without taking advantage of his position abusing his authority.

21.  As a professional and well-disciplined law enforcement agency, CSD expects staff members to possess the right qualities in terms of judgement, self-discipline, sense of reasonableness and integrity.  AOII LAI has served in CSD for 26 years before the incident and should be well aware of the restriction laid out in the departmental regulations.  During the cohabitation period with WONG, he repeatedly engaged in conversations discussing the issues of PIC TSOI, which is an infringement of a PIC’s privacy.  Although there is no evidence proving AOII LAI did convey any contraband to PIC TSOI, his act has contravened the conflict of interest with his official position.  His pre-planned approach to development intimate relationship with WONG suggested that his integrity was in doubt as well as his poor judgement in managing his private life.  In my point of view, his chaotic private life reflected his bad personality traits in general.

22.  Having considered the nature and gravity of the misconduct committed by AOII LAI, I have cast serious doubt about his suitability to remain in the service.

59.  The internal minute then goes on to set out the disciplinary and service records of the Applicant, the mitigating factors, the customary level of punishment and concludes with the recommendation of dismissal without retirement benefits.

60.  The mitigating factors noted included the Applicant’s claim that: (1) he had no contact with Ms Wong after the incident, therefore the same scenario would not happen again; (2) he promised amend his way after reflecting on his own; (3) he had expressed deep remorse; (4) he pleaded guilty to the charges with the hope to receive less severe punishment; and (5) he would like to serve in the CSD for the rest of his service.  The minute then stated:

27.  The above-mentioned mitigating factors presented by AOII LAI and his strong sense of remorse could in no way alleviate the gravity of the offence, especially the instant offence is related to the “integrity” of a clean and honest law enforcement agent, in a “job related” situation, by “manipulating one’s authority” and “taking advantage of one’s position” to set an ill-intended ploy.

61.  The precedent cases considered in the minute include two cases where the punishment awarded was “compulsory retirement” (though it seems from the minute at §30 that each case involved a removal punishment of compulsory retirement with retirement benefits.  Having considered that, the minute identified that a removal punishment should be considered as the appropriate punishment to be awarded.

62.  The recommendation of the award of punishment was phrased as follows:

32.  In making recommendations for punishment, I have duly considered both dismissal and compulsory retirement.  Despite his guilty pleas and clear record of service, we are bound to impose an appropriate punishment having regard to the gravity of the offence and the high integrity requirement of a law enforcement agency. With the above in mind, I recommend that an award of “Dismissal without retirement benefits” be imposed on AOII LAI.

63.  From the minute, there does not seem to be any overt consideration of whether the removal punishment should be one imposed with retirement benefits or without retirement benefits – or why the latter.

64.  The Applicant was informed of the Sentencing Decision by letter dated 12 June 2019.  No reasons are given in the letter.  But the reasons were given to the Applicant by letter dated 12 September 2019 upon the request of the Applicant.  The reasons set out in the 12 September 2019 letter essentially replicate what is set out in the internal minute starting from the part already quoted above, except for some cosmetic changes.

F.  Sources of Aggravating Materials

65.  Before moving on to the appeal and the Appeal Decision, it is convenient to digress from the chronology at this juncture, in order to set out the sources of the facts relied upon by the Commissioner as aggravating factors in the Sentencing Decision.

66.  To recap what is quoted above, what was considered by the Commissioner (and earlier by the AO)  as aggravating features could be summarized in three broad points:

(1)  The communication between the Applicant and Ms Wong was more than innocent conversation.  The communication involved “illicit plans” and was in breach of the privacy of a prisoner then incarcerated in the same institution were the Applicant worked.  It was not specified which part of the communications concerned illicit plans but Mr Lam suggested it was a reference to the introducing of contraband into the prison.

(2)  The Applicant agreed that he knew that Ms Wong and Mr Tsoi were friends as early as in 2009.

(3)  Back in 2006, the Applicant took advantage of his position while he worked in the visit room in Stanley Prison. He saw Ms Wong coming to visit her husband who was then incarcerated there.  The Applicant then approached her by talking to her on a bus.  The Applicant took the initiative to approach Ms Wong in a pre-planned manner in order to develop an intimate relationship with someone he knew to be the wife of a prisoner.  The two eventually cohabitated and gave birth to a son in 2008.

67.  As is reflected in the language, point (3)  is perhaps what is considered as the most damaging amongst all the aggravating features in the internal minutes.  The Applicant’s approach to Ms Wong was almost portrayed in a predatory manner.  The picture painted is one of a CSD officer who took advantage of his position in approaching a woman whom he knew to be the wife of a prisoner in a pre-planned manner in order to develop a romantic relationship with her.  The writer of the minute described such act as immoral, unlawful and bringing the CSD or even the entire government into disrepute.  These points were all endorsed by the Commissioner.

68.  Point (2)  – that the Applicant knew that Ms Wong and Tsoi were friends as early as 2009 – was also given some emphasis.

69.  Mr Tsui disputes the factual correctness of some of the aggravating factors relied upon by the Commissioner, which I will revisit in the context of Ground 3 below.

70.  In any event, as I understand it, Mr Tsui’s main complaint lies in that most of the aggravating matters relied upon by the Commissioner – be they correct or not – were derived from materials which were only admitted after the Applicant had pleaded guilty, in particular Ms Wong’s ICAC interview record.  He said it would be unfair to the Applicant for the Commissioner to rely on them in sentencing the Applicant.

71.  Further, I think it can be said that, whilst the justification subsequently offered for looking at this material was to examine the appropriate context of the matters giving rise to the charges, there is a real flavour that ultimately the penalty award imposed was significantly driven by matters which were not themselves the direct subject of the charge but related to a much wider picture of events over a much longer period of time.

72.  There is no dispute that the aggravating features relied on by the Commissioner came from the two ICAC interviews.  Both point (2)  and point (3)  – how the Applicant approached Ms Wong back in 2006, and that the he knew that Ms Wong and Mr Tsoi were friends as early as 2009 – came from Ms Wong’s ICAC interview record.

73.  In her ICAC interview, Ms Wong said that:

(1)  In 2006, when she came to visit the father of her daughter in the Stanley Prison, the Applicant (who was working there)  noticed her and chit-chatted with her about her daughter.  When she left the prison, it appeared that the Applicant was also getting off work at about the same time and took the same bus with her.  They nodded.

(2)  In her later visits to the prison, the Applicant again took the same bus with her and sat next to her.  The Applicant started talking to her about his wife and how they had fallen out.  When the Applicant learned that the prisoner Ms Wong visited was the father of the daughter, he said she needed to be taken care of.  The two gradually started a relationship and their son was born in 2008.

(3)  Ms Wong and Mr Tsoi knew each other.  On an occasion in about 2009, Mr Tsoi came to her home to borrow Sichuan majong.  The Applicant happened to be in her home when Mr Tsoi came.  Mr Tsoi stayed in the flat for about 45 minutes.  Mr Tsoi and the Applicant did talk to each other on that occasion.

74.  Ms Wong’s account is not corroborated by the Applicant’s evidence.  In his ICAC interview, he said he met Ms Wong in around 2008 or 2009 but he did not remember how he met her.  In his CSD interview, he said he could not remember how or when he met Ms Wong. But he said that he did not know that she was a friend of a prisoner when they met. He also said that he was not sure whether Mr Tsoi and Ms Wong knew each other.

75.  Point (1)  – the content of communications – came from the ICAC interview records of both the Applicant and Ms Wong.  Those concerning what Ms Wong asked of the Applicant came from the Applicant’s ICAC interview.  That the Applicant told Ms Wong that Mr Tsoi asked her to send him letters came from Ms Wong’s interview.

76.  As already said, the two ICAC interview records were produced by PW1 in the 5^th Hearing alongside other exhibits but only admitted into evidence in the 6^th Hearing.

G.  The Appeal Decision

77.  By letter dated 23 June 2019 issued by the Applicant to the Civil Services Bureau, the Applicant appealed against the decision of the Commissioner to impose the dismissal punishment on him.  He indicated that he would provide full grounds of appeal subsequently.  The Applicant was later legally represented in the appeal.

78.  I note that the appeal eventually made by the legal representatives on 29 June 2020 was made against both conviction and sentence of Charge 1 (though the current judicial review only concerns the Sentencing Decision).  The grounds of appeal against the punishment included the argument that:

(1)  Where the Applicant pleaded guilty to the charges and admitted the summary facts, all the AO had to do was to consider whether the summary of facts could support the charges in order to convict the Applicant.

(2)  If the AO thought the facts admitted were insufficient to convict the defendant on his guilty plea, the AO should either have sought amendment of the particulars, or heard evidence, or acquitted.  A violation from that practice was a breach of natural justice and caused procedural unfairness.

(3)  The seriousness of the charge should be reflected in the summary of facts, which should include all particulars of prosecution case before the plea.

(4)  As the summary of facts already supported the charges to which the Applicant pleaded guilty, it was not necessary to produce any further evidence, and blindly continuing the hearing without making clear to the Applicant what was unfolding amounted to procedural injustice.

(5)  As the period of the offence relating to Charge 1 was 2013 to 2014, it was improper to consider the acts (whether those acts were proper or not)  outside that offence period.

(6)  There were also errors in drawing inferences or making findings of fact on the materials before the AO.

(7)  The punishment imposed was unfair when the decision-makers (a) had failed to take into account that the Applicant and Ms Wong were relatives, so that regular contact was justified, (b) had considered irrelevant facts which were not covered in the period of the charge, and (c) had failed to take into account and/or place insufficient weight in evidence favourable to the Applicant’s mitigation.

79.  The appeal was conducted on paper.  There was no oral hearing, but only the exchange of written correspondence between the Applicant and the Secretary.  Therefore, notwithstanding the possibility provided for in the rules, the Secretary did not direct that the whole or any part of the evidence be taken again or that additional evidence be taken.

80.  By memorandum dated 4 February 2021, the Commissioner provided his comments/views on the grounds of appeal.  It can be noted that the Commissioner recognised that the continuation of the hearing by the AO after the Applicant’s guilty plea meant that “it might be arguably that some of the procedures set out in paragraphs 4.50, 4.52 to 4.54 of the Manual had not been followed by the AO during the hearings”. However, the Commissioner opined that no prejudicial effect had been caused (for reasons he then explained).  The views of the Commissioner were summarised and provided to the Applicant’s solicitors for their response.  The response was apparently provided on 7 February 2022, repeating similar grounds of appeal as had been earlier put forward.

81.  By letter dated 22 March 2022, the Secretary upheld both conviction and sentence of Charge 1.

82.  Similar to how the Sentencing Decision was made, the Appeal Decision was made by way of an internal minute which was prepared by a junior officer with his or her reasoning and recommendation for the approval of the Secretary.  The Secretary endorsed the recommendations without adding any comments of his own.  Attached to the minute were numerous enclosures, but I have not been provided with them (at least not in that form).

83.  §10 of the internal minutes summarised the aggravating features relied upon by the Commissioner in awarding the punishment of dismissal without retirement benefits.  Mr Lam, by comparing this paragraph with CSD’s internal minutes submitted for the Commissioner’s approval, said that the Secretary or the CSB did not consider all of the Commissioners/CSD’s observations or conclusion as material.  But §10 was in fact purporting to be a summary of what the Commissioner considered as relevant and materials in reaching the sentencing decision.  I think §10 is a fair summary, albeit that it does not include each and every detail captured in the CSD’s internal minutes.

10.  Having considered the following factors, CSD, [redacted] Department of Justice (“DoJ”)  [redacted] recommended to [the Commissioner] that the punishment of the “dismissal without retirement benefits” should be awarded to LAI for charge (1)  –

Gravity of misconduct

(a)  LAI agreed during adjudication that he had already known WONG was a friend of PIC TSOI since 2009.  In 2013, LAI and WONG were having a cohabitation relationship.  While ALI realised PIC TSOI, a friend of WONG, was incarcerated in PSWCI where LAI was working at the material time, LAI had not sought approval for communicating with WONG but disclosed the incarceration of PIC TSOI to WONG and discussed with WONG issues relating to PIC TSOI between 2013 and 2014.  More importantly, the conversations between LAI and WONG included several illicit plans including WONG’s request to LAI to introduce tea leaves to PIC TSOI.  Though there was no evidence to prove whether LAI had executed illicit acts upon WONG’s requests, the conversations during cohabitation hardly convince that LAI was a clean and honest person in discharging his duties;

(b)  LAI had taken advantage of his position during 2006 - 2014.  Evidence revealed that LAI (as a visit room staff as Stanley Prison (“SP”)  then)  first approached the then visitor, i.e. WONG as early as 2006 when WONG was paying a visit to her husband imprisoned in SP.  LAI took the initiative to make conversation with WONG on the bus and then further developed a cohabitant relationship with WONG.  LAI’s initiating and further developing a relationship with WONG (i.e. wife of a prisoner being incarcerated at that time)  was a pre-planned act which was undoubtedly immoral and unlawful infringing the clean and honest image of correctional officer and bringing CSD and even the government into disrepute. LAI’s concealing his intimate relationship with WONG shows his ill intention to cover his unlawful act by all means, which was difficult to win the trust of the public;

(c)  LAI had been serving in CSD for over 20 years before the incident and should be well aware of the restriction laid down in the departmental regulations. During his cohabitation with WONG, he repeatedly engaged in conversations with WONG discussing the issues of PIC TSOI which was an infringement of a prisoner’s privacy.  His act has led to a conflict of interest with his official position.  CSD cast serious doubt upon his suitability to remain in the service.

84.  Paragraph 13(b)–(g)  set out the Applicant’s grounds of appeal against the sentence:

(b)  LAI contended the PO failed to provide complete and comprehensive summary of facts for LAI’s consideration before his guilty plea for Charge (1), depriving him of the opportunity to understand delegation on top of the summary of facts before he entered his guilty plea;

(c)  LAI alleged the AO failed to determine whether such summary of facts submitted by him was sufficient to prove his charge, and that he had been wrong for a to continue to call witnesses to give evidence in the absence of prosecution’s request.  The additional evidence adduced after his guilty plea had been prejudicial to his case and ought not to be considered;

(d)  LAI alleged the AO failed to provide procedural guidance to him after his guilty plea, depriving him of the opportunity to engage a [legal representative] to cross examine the prosecution witnesses and to challenged evidence adduced, which was a serious breach of natural justice affecting the fairness of the disciplinary proceedings.  Also, AO had made representations to him that the charge was not serious in that AO would not award the punishment of dismissal or reduction in rank;

(e)  LAI challenged that Charge (1)  concerned his communications with WONG between 2013 and 2014.  Any act outside the said offence period, be it was improper or not, should not be considered.  CSD had erred in law to place substantial weight on his relationship with WONG since 2006 which was outside the offence period.

(f)  LAI argued that AO and CSD (in recommending punishment for charge (1))  had erred in fact finding and drawn improper inferences as to certain facts when submitting the case to CCS for consideration and award punishment.  CCS’s decision was based on the irrelevant answer and unsubstantiated allegations; and

(g)  LAI contended that the punishment imposed on Charge (1)  was manifestly excessive and disproportionate to the gravity of the offence and harsher than other cases of a similar nature.

85.  The Secretary rejected those grounds based on analysis as contained in §16 of the internal minutes.  In my summary, those grounds were that:

(1)   The disciplinary proceedings against the Applicant were conducted in a fair manner.

(2)  The summary of facts was read out in the 6^th Hearing and the Applicant agreed them.  (Pausing here, I would note that both the Applicant’s then lawyer and the Secretary seemed to have taken the particulars of charge as stated in the charge sheet to have stood as the summary of facts in the disciplinary proceedings.)

(3)  It is for the AO to decide whether or not to call witnesses.  The evidence adduced after the Applicant’s guilty plea was factual information which was pertinent to the conviction of the disciplinary charges against the Applicant and relevant to the assessment of the gravity of the misconduct.

(4)  This evidence, including the Applicant’s posting at the material time, his knowledge that Ms Wong was a friend of Mr Tsoi in 2009, how the Applicant and Wong came to know each other, history of the relationship and particulars of the communication between them, was relevant.  It was not unreasonable to consider how the Applicant and Ms Wong came to know each other, as well as the history of their relationship for the purposes of ascertaining if the impugned communications were simply incidental and isolated, relevant to the assessment of the gravity of the misconduct in question and the appropriate punishment.

(5)  These matters were also provided in the PO’s closing speech in the 6^th Hearing, and the Applicant showed his understanding and raised no objection to the closing speech.

(6)  The AO and the Commissioner drew inferences from the facts and evidence adduced at the disciplinary hearings. The Commissioner’s reasoning including inferences drawn from available evidence was also provided to the Applicant in 2019 and the Applicant had over 6 months for considering the AO and the Commissioner’s reasoning before submitting his grounds of appeal to the Secretary.

(7)  The AO approved the Applicant’s application for legal representation and the Applicant was informed of that on 16 January 2018.  It was the Applicant’s decision to withdraw the application on 7 February 2018.  The Applicant was reminded of his right to engage a legal representative in the 6^th Hearing.

(8)  As to the claim of excessive punishment, the Secretary said “LAI’s unauthorized communications with WONG, a friend of a prisoner under his direct supervisor, were repeated and constituted an intrusion of privacy of prisoner, it also involved an illicit plan including the introduction of unauthorised articles into a prison which posed a great security risk in terms of penal operation, they are clearly aggravating factors.  In view of the nature and gravity of the misconduct and aggravating factors in the case, we agree with CSD that removal punishment of dismissal without retirement benefits is appropriate”.

86.  It would fair to say that the Secretary has endorsed the reasoning of the Commissioner based on his finding of facts drawn from evidence before him, which evidence the Secretary also considered relevant.

H.  Ground 1

87.  Ground 1 boils down to (a) whether the actual procedure adopted by the AO departed from those envisaged by the Prison Rules and/or the SDM; and (b) if so, whether such departure produced substantive unfairness to the Applicant.

88.  Mr Lam said that the procedures were proper and in any event, there was no substantive unfairness.

89.  His analysis that the procedures were proper runs in three steps:

(1)  Rule 245(1)(a)  of the Prison Rules provides that if the accused admits the charge, the AO shall hear the accused and any witness the accused may wish to call in extenuating or explanation and “any other witnesses whom the Superintendent may consider desirable to call”.  Thus, it is within the power of the AO to call for more witnesses or evidence even after the accused has pleaded guilty.

(2)  The procedures set out in the SDM only govern the situations where the guilty plea or the not guilty plea was taken at the beginning of the trial.  The SDM does not cover the case of a change of plea in the middle of the proceedings.

(3)  As a general position, all administrative and domestic tribunals are, within the legal limit, masters of their own procedures: see Lam Siu Po v Commissioner of Police (2009)  12 HKCFAR 237; Medical Council of Hong Kong v Helen Chan (2010)  13 HKCFAR 248. Since the AO was the master of the disciplinary hearing’s procedures, he was entitled to exercise his discretion and to continue with the PNG Procedure even after the Applicant had pleaded guilty.

90.  At the oral hearing, Mr Tsui raised a new point and argued that the procedures adopted were in breach of Rule 245(1). I will deal with this point later in this Judgment.  Putting that aside, Ground 1, as it is originally framed in the Form 86 or in the written submissions, is not a legality challenge.  The complaint is not that the AO has no power as such to call further evidence after the accused has pleaded guilty under Rule 245, but that the procedures adopted were in breach of the SDM.  Ground 1 challenges the Commissioner’s breach of his own internal policy, not the law.

91.  Mr Lam said the procedures adopted were not in breach of the SDM, but were an exercise of discretion by the AO in deciding what procedures to use in the circumstances not covered by the SDM.  He sought to pin Mr Tsui to §15 of his written submissions in support of the contention that Mr Tsui had agreed that that the SDM does not provide for the procedures in the case of a plea reversal.  At §15 of his written submissions, Mr Tsui said:-

The Manual does not provide guidance on the applicable procedure when the officer charged reverses his plea to a guilty plea in the middle of trial.  In other words, the applicable procedure reversal of a plea is equivocal and is unknown to the Applicant.

92.  But §15 is not consistent with Mr Tsui’s overall written or oral submissions for Ground 1.  For example, §23 of his written submissions reads:

The procedure of disciplinary hearing has been clearly stated in the Manual.  After pleading guilty, the Applicant had legitimate expectation that the procedure for “plea of guilty” would be adopted.  It is expected upon his guilty plea, either the particulars of offence will be adopted as summary of facts (SoF)  or freshly drafted SoF would be read.  Once the AO had accepted his guilty plea, then it would go to the stage of mitigation. (§4.52 of the Manual refers)

93.  The reference to §4.52 is likely a typographical error; Mr Tsui was obviously referring to §4.54.  I also ascribe no particular legal meaning to the phrase “legitimate expectation”.  The overall tenor of Mr Tsui’s oral submissions (if not his written submissions)  was clear – to comply with the SDM, and once the AO has accepted the Applicant’s guilty plea, the calling of prosecution witnesses or production of prosecution evidence should cease immediately and the proceeding should go to the stage of mitigation.  In other words, the PG Procedure provided by the SDM is applicable regardless of whether the guilty plea was tendered at the beginning or only at a later stage of the trial.

94.  I agree with Mr Tsui.  On a proper reading of the SDM, the PG Procedure or the PNG Procedure will be applicable whenever the corresponding plea is entered.  I do not agree with Mr Lam that §§4.50 to 4.74 of the SDM only cover the circumstances where the plea tendered at the beginning is adhered to throughout the trial, or that it has no application if there is a reversal of plea in the middle of the trial.  Mr Lam’s reading is not supported by the text of the relevant paragraphs in the SDM:

(1)  The PG Procedure is triggered “if the Officer Charged entered a guilty plea to the charge”: see §4.50.  The PNG Procedure is triggered if “the Officer Charged had entered a not guilty plea”: see §4.55.

(2)  There is no express temporal requirement as to when the guilty plea or not guilty plea should be entered.

(3)  Nor is it expressly provided that those procedures will not be applicable if there is a plea reversal in the middle of the trial.

(4)  On a plain reading of those paragraphs, the only requirement on the application of the PG Procedure and the PNG Procedure is that they should (only)  follow a guilty plea or a not guilty plea respectively.  There is no temporal requirement or limitation as to when the plea should be entered.

(5)  I think Mr Lam puts some emphasis on the fact that a plea will usually be taken at the beginning of the trial.  However, it is one thing to say that the usual timing for taking a plea is at the beginning of the trial, but another thing to suggest that the PG Procedure or the PNG Procedure should only be applicable if the plea entered at the beginning of the proceeding will be maintained throughout the trial.

(6)  Mr Lam placed some emphasis on the word “normally” in §4.50 of the SDM.  §4.50 provides that if the accused entered a guilty plea, “normally” witnesses will not be called to give evidence and the PO will present to the AO a summary of facts of the case.  He said the reference to “normally” suggests that the PG Procedure should only be used when the guilty plea is tendered at the beginning of the proceedings.  I disagree.

(7)  Reading §§4.50 to 4.54 as whole, it is clear that what is provided in §4.50 is the ‘normal course’ to take when the accused pleads guilty.  §§4.52 and 4.53 expressly provides for when the procedures shall be taken out of the normal course and prosecution evidence shall be called even after an accused has pleaded guilty.  §4.52 envisages a departure from the normal course if the AO is not satisfied that the summary of facts presented by the prosecution comprises facts capable of constituting the charge, even though the accused has pleaded guilty.  §4.53 envisages a departure when the accused (although he has pleaded guilty)  denies the facts on which the charge is based such that no effective guilty plea could have been given.

(8)  The underlying rationale for §§4.52 and 4.53 is clear.  An accused should not be found guilty simply because he pleads guilty.  The AO has to be satisfied that there are proper factual and evidential bases to convict him.  In both cases, the departure from the normal course is intended to benefit the accused.

(9)  The word “normally” in §4.50 cannot assist Mr Lam.

95.  The text of the SDM itself does not support Mr Lam’s reading.  Nor did he put forward any practical, logical, or fairness concerns which would suggest that the PG Procedure the PNG Procedure should only be applicable if the corresponding plea entered into at the beginning of the trial is maintained throughout.  He said there was a discretion for the AO to decide what procedures to use, but he did not attempt to explain why the AO exercised his discretion (assuming that he did have such discretion)  the way he did.  He did not say it was practically difficult to cease the calling the prosecution evidence at that point.  Nor did he suggest that fairness would demand the PNG Procedure to continue.  Indeed, his express position at the oral hearing was that he did not know why the AO acted as he did.

96.  The fact that the prosecution was in the middle of presenting prosecution evidence is simply a feature that may occur when an accused decides to reverse his plea in the middle of a trial.  This in itself is not a reason why the prosecution case should be allowed to continue to run once it has started.

97.  I have come to the conclusion that the actual procedure adopted by the AO has departed from the normal course as set out in the SDM.  No justification was provided as to why the normal procedure was departed from.

98.  Turning to the question of whether the departure from the SDM has resulted in any unfairness to the Applicant.  Mr Tsui submitted that the improper procedure adopted by the AO has produced substantive prejudice to the Applicant.  I think his submissions could be broadly summarized as follows:

(1)  The continuation of the trial led to the admission into evidence of materials unfavourable to the Applicant, in particular the two ICAC interview records from which the Commissioner derived almost all of the aggravating features he relied upon to justify the most severe sentence of dismissal without retirement benefits.

(2)  The Applicant was deprived of the opportunity adequately to prepare for his case, to respond appropriately or to meaningfully challenge evidence presented against him.  That was a result of the AO’s failure in asking the PO to produce a summary of facts to inform the Applicant the basis upon which he would be sentenced, the AO’s failure to explain to the Applicant that he would continue to adopt the PNG Procedure after the plea reversal, and/or the failure to remind the Applicant to he still had a right to engage legal representation (in circumstances where the trial would continue notwithstanding the guilty plea and its acceptance).

99.  Mr Lam’s replies were as follows:

(1)  All the prosecution exhibits, including the two ICAC interview records, where already produced in the 5^th Hearing on 27 October 2017.  In the premises, unless the AO was somehow required to ignore or forget the evidence which was adduced, it could not be said that the AO erred in considering these exhibits.

(2)  The only additional evidence which could be said to be received by the AO in the 6^th Hearing was the testimony of the two CSD staff, PW1 Mr Chung and PW2 Mr Fung. The evidence was limited in scope.  PW1’s evidence concerned the establishment of the offence elements which are undisputed in the present case.  PW2 was called to prove the voluntariness of the Applicant’s interview with the CSD, which the Applicant disputed in the 5^th Hearing.

(3)  All along and after the guilty plea was accepted, the AO had given fair opportunities to the Applicant to respond to the prosecution evidence produced against him.  The prosecution exhibits were provided to him for his consideration as early as in August 2016.  He was expressly invited to comment on the prosecution exhibits after the AO ruled them admissible, to raise his defence and adduce evidence by calling witnesses or producing exhibits after the AO ruled that there was a case to answer, to cross-examine PW1 and PW2, and to have the last word in responding to the prosecution’s closing speech.  He declined to take up those invitations, but only pleaded for leniency.

(4)  Whilst the AO did not explain to the Applicant the procedure he would adopt after the guilty plea, the procedure adopted was evidently the PNG Procedure.  From the beginning of the proceedings in August 2016 all the way till the reversal of plea in February 2018, the Applicant had always been preparing for the PNG Procedure.  As shown in his past conduct, he was well aware of his rights in such proceedings.  He had never shied away from raising or making his queries and objections known.  He challenged the order of witnesses and the admissibility of prosecution exhibits in the 5^th Hearing.  He was well aware of his rights to legal representation or professional opinion and did apply for legal representation in the 1^st Hearing which was granted right before he reversed his plea.  He applied for adjournment in the 5^th hearing in order to seek professional advice on admissibility of certain prosecution exhibits in the 5^th Hearing.

(5)  In any event, even if the respondents were to accept that the AO could have reduced the evidence adduced into a summary of facts, Mr Lam submitted that in such a counterfactual scenario, the AO would still be entitled to take into account the same matters in evidence in arriving at the decision to refer the punishment to the Secretary in respect of Charge 1.  Even if the Applicant would disagree with including such additional evidence into the summary of facts thus necessitating some sort of Newton hearing to be held, the AO would still have heard all the evidence as he in fact did in the present case.

100.  But, I agree with Mr Tsui that the improper procedure adopted by the AO has resulted in real and substantive prejudice to the Applicant in the sentencing stage.

(1)  I reject Mr Lam’s suggestion that in any event the AO had, or would have, and was entitled to consider the two ICAC interview records or other evidence that was only admitted after the plea reversal.

(2)  While the five prosecution exhibits were already adduced in the 5^th Hearing, they were only admitted into evidence by the AO in the 6^th Hearing after he accepted the Applicant’s guilty plea.  It is no answer to suggest that since the AO had already seen the exhibits, he must be entitled to consider them. Indeed, being empowered by the SDM to rule on the admissibility of evidence (see e.g. §4.62), the AO must be regarded as having the ability to disregard or ignore a piece of evidence which he had considered in the process of ruling on its admissibility and which he eventually rules as inadmissible.

(3)  In the same vein, it is also no answer to suggest that even if some form of Newton hearing were to be conducted in the case where the Applicant objected to the inclusion of some unfavourable facts into the summary of facts, the AO would have considered all those matters in a Newton hearing anyway.  The AO should be taken to be able to disregard a piece of information unfavourable to the Applicant if the AO were to rule in the Applicant’s favour in the so-called Newton hearing.

(4)  I do not think Mr Lam can rely on the submissions that the Applicant was well aware that the procedures adopted by the AO after the plea reversal was the PNG Procedure or that he was well aware of his rights in such proceedings.

(5)  The fact that the Applicant made a brief plea in mitigation in response to the invitation to reply to the PO’s closing speech speaks volumes.  Having tendered his guilty plea which was then accepted by the AO, he expected what he had to do in the remaining proceedings was to make a plea in mitigation.  On the spot, and in those circumstances, he was evidently not prepared to contest any evidence presented by the PO (and may have wondered why he might even need to do so).

(6)  More importantly, even if he was aware that the PNG Procedure was ongoing and knew about his rights, he would not be able to make an informed decision about whether he should exercise his rights in, say, challenging the prosecution evidence, unless he knew why the prosecution continued to adduce evidence against him even after the guilty plea.

(7)  Mr Lam said it is not known why the AO continued with the trial after the guilty plea.  But the objective effect (if not the subjective intention of the AO)  of the continuation of the PNG Procedure was to ensure that the prosecution exhibits which would form the basis in sentencing the Applicant could be properly admitted into evidence.  This is evident from a fair reading of the transcripts of the 6^th Hearing.

(8)  Since the AO had already accepted the guilty plea on a given set of admitted facts on which express agreement had been sought and obtained from the Applicant, the continuation of the trial was not for the purpose of ensuring that there was sufficient factual or evidential basis to convict the Applicant as charged.  The prosecution exhibits were likely to have been admitted for sentencing purpose.  The evidence of PW1 and PW2 were produced to support the admissibility of the exhibits.  The AO made his ruling on the admissibility on four prosecution exhibits (including the two ICAC interview records)  expressly based on the testimony of PW1 and PW2.

(9)  It appears to me that the PO was also aware of the purpose for which the PNG procedure was continued.  He closed his case after PW2 had finished his evidence and all the prosecution exhibits ruled as admissible.  The express reason he gave on record not to continue to call other witnesses was that the Applicant had already admitted the charges.  But the Applicant’s guilty plea was already accepted before the admission of prosecution exhibits or PW1 was required to resume evidence and before PW2 was called to give any evidence in the 6^th Hearing.

(10)   Without knowing to what procedure he was now subject, and more crucially the purpose for which further evidence was adduced and its impact on his sentencing, it was impossible for the Applicant to make an informed decision as to how he should respond to that evidence.  I give very little weight to the fact that the AO had expressly invited the Applicant to respond to the prosecution evidence on numerous occasions after the guilty plea and that the Applicant had passed up on all of them.  What the Applicant did could be easily explained as an attempt to appear as ‘cooperative’ as possible in the hope of a lenient sentence, now that he had chosen to plead guilty.  An accused in his position might also be worried that raising objections to prosecution evidence at that stage might have been seen as reneging on the guilty plea he had just tendered.

(11)   If the Applicant were told that further evidence might be admitted to his detriment in sentencing and he was free to contradict that evidence without reneging on his guilty plea, he might have responded differently.  For example, he might have chosen to give evidence himself or call evidence to contradict Ms Wong’s ICAC interview record on how the two became romantically involved or whether the Applicant met Mr Tsoi in 2009; he might also have requested for Ms Wong to be tendered for cross-examination (§4.62 of the SDM), etc.

101.  Ground 1 is made out.

102.  Given my conclusion on Ground 1, it is not necessary to discuss the new point raised by Mr Tsui at the oral hearing. I shall cover the point briefly.  Mr Tsui submitted that Rule 245(3)  requires the AO (being a Superintendent)  to refer the case to the Commissioner when he has formed the view that his powers of punishment would not be sufficient if the charge is established on consideration of the report and the written statements.  He said that the AO had already formed the view that that his powers of punishment may not be sufficient at the time when he granted the application for legal representation in early 2018, as evident in the reasons he gave.  So, it was at the point when he should have referred the case to the Commissioner.  But he did not, in contravention of Rule 245.

103.  Though I see some arguable force in the point, but being one which is also potentially fact-sensitive, I agree with Mr Lam that the Applicant should be barred from raising this point which was only raised for the first time at the hearing.

I.  Ground 2

104.  Ground 2 is closely connected to Ground 1. To recap, the Applicant’s case was that the AO had either misunderstood the established procedures set out in the SDM, or that he had deliberately departed from the SDM in order to admit the five prosecution exhibits to aggravate the offence.  The latter case would suggest a real danger of bias on the part of the AO.

105.  The bulk of Ground 2 is but a logical extension of Ground 1.  There is no evidence to suggest that the AO deliberately adopted a procedure in breach of the SDM.  In all likelihood, the AO seems to have misunderstood the SDM.  This is perhaps most clear from the AO’s on the one hand expressly accepting a guilty plea on the basis of the particulars agreed by the Applicant, then going on to consider a “verdict” as to whether the charge was “proven”, having reminded himself of the burden and standard of proof.

106.  But, as Mr Lam pointed out, this would add no further dimension to Ground 1.  If necessary, I would also find that Ground 2 is made out (in that the AO misunderstood the procedures set out in the SDM).

J.  Ground 3 – Irrationality

107.  Ground 3 is that imposing the punishment of dismissal without retirement benefits was Wednesbury unreasonable for one or a combination the following reasons:

(1)  The decisions were made based on materials unfairly obtained from an improper procedure.  The Applicant did not have fair opportunity to either challenge admissibility of those exhibits or to offer evidence to rebut them.

(2)  The Commissioner has fabricated facts or drawn unfair inferences from the unfairly obtained materials against the Applicant, which facts or inferences were then accepted by the Secretary.  An adverse inference should only be drawn against the Applicant if such an inference is convincing and irresistible.

(3)  The Commissioner and the Secretary heavily relied on matters outside the offence period.  The offence period of Charge 1 was 2013 to 2014.  Yet, the they relied on how the Applicant and Ms Wong became romantically involved in 2006.

(4)  The same factual basis – Mr Tsoi’s solicitation for introduction of contraband into the prison – was used for both Charge 1 and Charge 2.  The same factual basis has already led to the conviction of the Applicant under Charge 2 for which he was awarded a severe reprimand.  He should not be punished again for the same matter under Charge 1.

(5)  The sentence imposed is disproportionate to the offence committed, which was minor or technical in nature.  The Commissioner has failed to consider that the Applicant and Ms Wong are relatives by connection of their son.  Communication between the couple should not be prohibited and, thus, the communication should be seen only as a minor technical breach.

(6)   The sentence imposed is disproportionate in comparison to other disciplinary cases.  Mr Tsui relied on two previous disciplinary cases where he said the accused there committed far more serious conducts but were awarded with less severe punishment.

108.  Whilst all the points were grouped under the umbrella of unreasonableness, some of them do not easily fit into the what might be usually framed as a conventional irrationality challenge.

109.  The first point is a procedural challenge.  It is also a re-run of Ground 1, with which I have already dealt.  There is not much utility in assessing whether the decision-maker’s evaluation of the evidence and the sentence imposed the based on the evidence is reasonable or not, given my finding in Ground 1.

110.  For completeness, I will briefly consider other points under the irrationality head on the assumption that the evidence relied upon by the Commissioner or the Secretary, especially the two ICAC interview records, could have been and was properly admitted into evidence (and without breach of any public law requirement).

111.  As to the facts said to be “fabricated” against the Applicant, most of them were either factual inferences or evaluative findings endorsed by the Commissioner and Secretary, based on the evidence from the prosecution exhibits.  Mr Tsui criticized the Commissioner for giving full weight to Ms Wong’s account in her ICAC interview as to how the two became romantically involved.  It was then inferred that the Applicant had approached Ms Wong in a pre-planned manner to develop an intimate relationship with her back in 2006, knowing that she was connected to a prisoner where the Applicant worked.  From there flow the comments that the Applicant had a chaotic private life, had immoral personality traits, had taken advantage of his position, breached the trust reposed in him, had conflicts of interest, and affected the prison security.  Mr Tsui also complained that the Commissioner concluded that the Applicant knew that Ms Wong and Mr Tsui knew of each other based on Ms Wong’s evidence that the Applicant was in her place when Mr Tsui came to visit her in 2009.  There were also more minor complaints as to the reference that the communications between the couple concerned “illicit plans”, that they repeatedly engaged in discussion concerning Mr Tsoi, etc.

112.  These are not facts “fabricated” by the Commissioner or Secretary, but are unfavourable inferences or evaluative findings drawn against the Applicant.  They are capable of being reasonably supported or inferred from the prosecution evidence.

113.  Mr Tsui said adverse inferences should only be drawn if they are irresistible, which language is reminiscent of the criminal standard of proof.  But it is well established that the civil standard of proof applies in disciplinary proceedings: R (Kuzmin)  v General Medical Council [2019] 1 WLR 6660.  The inferences drawn by such a tribunal need not be irresistible.

114.  That said, a tribunal’s reasoning process, including the drawing of inferences, is still subject to the scrutiny of the judicial review court through the lens of irrationality.  But irrationality is a high threshold.  It is not the function of the Court to interfere with a tribunal’s factual findings or inferences drawn unless the findings or inferences are wholly unsupported by evidence: see Yeung Cheong Fat v Public Service (Discipline)  Investigation Committee [2004] 4 HKC 462.  I do not think it was irrational in the public law sense for the Commissioner to draw those inferences as he did.

115.  But Mr Lam did concede that there were some factual inaccuracies which featured in the Sentencing Decision and the Appeal Decision.

(1)  It was mistaken to describe Ms Wong and the prisoner she visited in 2006 as “wife” and “husband”.  But Ms Wong’s ICAC interview record could support that that prisoner was the father of her daughter.  The mistake was immaterial, the key being that the Applicant knew Ms Wong was a relative of or in a relationship with a prisoner in the institution where the Applicant worked.

(2)  It is incorrect to describe that the Applicant “disclosed” Mr Tsoi’s incarceration to Ms Wong.  But the inaccuracy is minor in the context of the Commissioner’s reasoning in the Sentencing Decision.  It was not relied upon as a separate aggravating factor.

(3)  It is also conceded that the Applicant did not “agree” that he knew that Ms Wong and Mr Tsoi were friends as early as 2009.  Mr Lam admitted that the Applicant did not agree to that in his evidence.  But the key is that the Applicant knew about Ms Wong and Mr Tsoi were friends and that was a fact which the AO was entitled to draw from Ms Wong’s ICAC interview record.

116.  I agree with Mr Lam that those minor inaccuracies had played no material part in the Commissioner or the Secretary’s reasoning.

117.  On taking into account matters outside the offence period, as pointed out by Mr Lam, in the absence of express or implied prescription or prohibition by the statue, a decision maker is entitled to the take into account factors he considers relevant, and to accord with weight he sees fit, subject to the irrationality challenge: M v Permanent Secretary for Security [2019] HKCA 507, §12.  There is no general rule to prevent the Commissioner or the Secretary from taking into matters outside the offence period in the sentencing stage.  I agree with Mr Lam that it was not irrational for the Commissioner to consider the Applicant’s relationship with Ms Wong before 2013 because that is clearly a relevant consideration in assessing the Applicant’s vulnerability to conflicts of interests, his integrity as a CSD officer and whether he was suitable to continue working in the CSD.  I also agree that it was potentially relevant to an assessment of the seriousness of the conduct to consider whether the impugned communications were isolated or part of an ongoing pattern, and in what context they were made.  Nor would I say that the Commissioner was necessarily irrational in according too much weight to those matters.  But I have already made the point that there is a strong flavour that the heaviest penalty was awarded not just because of the seriousness of the offence seen in context, but was significantly driven by a wider view of the Applicant’s character taking real account of events falling well outside the circumstances giving rise to the actual charges.

118.  I also agree with Mr Lam there is no substance in the so-called ‘double jeopardy’ point.  Although the background leading to Charge 1 and Charge 2 are broadly connected, the two charges target different conduct.  Charge 1 targets the unauthorised communication between the Applicant and Ms Wong.  Charge 2 targets the Applicant’s failure to report Mr Tsoi’s solicitation to introduce contraband into the prison.  In any event, there could be no real prejudice to the Applicant even if some sort of “totality principle” is to be applied in awarding punishment for both charges.  The significance for severe reprimand imposed for Charge 2 has been practically reduced to nil, now that the Applicant was to be dismissed without retirement benefits for Charge 1.

119.  There is also no real merit in the argument that the punishment of dismissal without retirement benefits was disproportionate to the offence committed.

120.  Mr Lam drew my attention to the principle that the Court should not lightly interfere with a sentencing decision passed by professional disciplinary bodies:

(1)  Professional disciplinary bodies are familiar with the whole gradation of seriousness of the cases of various types which come before them, and are particularly well qualified to say at what point on the gradation the duration becomes the appropriate sentence.  They are also better positioned than the Court in assessing the measures necessary to maintain professional standard and to provide adequate protection to the public.  They must be accorded with a margin of discretion in sentencing decision: see Wan Pak-Kwong Raymond v The Nursing Council of Hong Kong [2023] HKCA 272 at §§17-19.

(2)  For the Court to interfere, it is not sufficient that the sentence is severe or even unduly severe or surprisingly severe.  For the Court to interfere, the sentence has to be harsh or oppressive, or so far outside the normal discretionary limits: see Cham Kam Choi v Commissioner of Correctional Services [2016] 4 HKLRD 565 at §26.

121.  As I understand it, the disproportionality is said to have arisen from either the Commissioner’s failure to take into consideration that the Applicant and Ms Wong were relatives through the connection of their son, or by comparison to other cases.

122.  I do not agree with Mr Tsui’s submission that the relationship between Ms Wong and the Applicant was a mitigating factor which would reduce the Applicant’s unauthorized communication with her to a technical breach.  For the Commissioner and the Secretary to have seen the cohabitation or close relationship between the two as giving rise to an aggravating factor was a rational view to take (even if that view would not be shared by everyone).

123.  Nor can the Applicant gain much mileage by comparing his sentence with that passed in other cases.  Whilst the Commissioner and the Secretary may look to other penalties imposed in similar cases, such previous cases are not binding as such, and the Court will only interfere where it is shown by reference to earlier penalties that the present penalty imposed is irrational: see Chan Kam Choi at §§17-18.

124.  Mr Tsui pointed to two cases (without identifying them by case numbers or other identifiers)  where he said the CSD staff concerned had committed more serious conduct but were only awarded compulsory retirement.  The two cases may be those referenced in the internal decision-making minutes.  In the first case, the staff member carried out pecuniary transaction with a prisoner for settling gambling debts and subsequently contacted the same prisoner after his release without approval. In the second case, the staff member was solicited to introduce cigarettes into the prison in exchange for pecuniary gain and he failed to report the matter to his Head of Institution.  That staff member then communicated with the same prisoner’s mother without authorization and claimed himself to be a friend of that prisoner.

125.  Though perhaps a harsher decision, I cannot see how the Sentencing Decision could be shown to be irrational by reference to the two cases relied upon by Mr Tsui.  Nor was it irrational in the overall circumstances for the Commissioner to impose dismissal without retirement benefits in light of the factual findings he has made.  I have already briefly mentioned that the minutes do not seem to show express consideration whether to impose a removal penalty with retirement benefits (as opposed to a removal penalty without retirement benefits).  But, I also note that the view was taken and expressed in the internal documentation that the circumstances of the case warranted the heaviest potential punishment, including as a deterrent to others.

126.  If necessary, I would find that Ground 3 is not made out.

K.  Were the Procedural flaws “cured” in the Appeal Decision?

127.  As I already alluded to earlier, the Applicant did not launch an independent attack on the Appeal Decision.  What is said is that the errors made by the Commissioner in making the Sentencing Decision were endorsed rather than corrected by the Secretary in the Appeal Decision.  The Secretary endorsed the Commissioner’s Sentencing Decision in terms of both the reasoning and the evidence or factual findings relied upon.

128.  Given my findings in respect of Ground 1 and Ground 2, both the Sentencing Decision and the Appeal Decision should fall away.

129.  But Mr Lam argued that any procedural flaws in reaching the Sentencing Decision were “cured” in the Appeal Decision.  He said that the Secretary considered the Applicant’s appeal against the Sentencing Decision on a de novo basis.  Even if there were any irrelevant factors or improper inferences that had been considered by the Commissioner in reaching the Sentencing Decision, any defect as such would have been cured by the Appeal Decision.

130.  He said that the appeal was conducted in a procedurally fair manner.  All available documents were disclosed to the Applicant. The Applicant was given sufficient opportunity to make representations and to have the last word.  The Appeal Decision was supported by carefully considered reasons, which covered all the Applicant’s key complaints.

131.  There is no clear or absolute rule as to whether the defects in natural justice or procedural unfairness appearing at the original hearing could be cured through subsequent appeal proceedings: see Calvin v Carr [1980] AC 574.

132.  In the circumstances of the present case, I do not agree that such procedural impropriety which has tainted the Sentencing Decision was “cured” in the Appeal Decision.  I do not agree that the appeal could be said in the circumstances of this case to have been conducted on a de novo basis.  Under Rule 255H, the Secretary has power to accept in whole or in part the record of the evidence already taken, or to direct that the whole or any part of the evidence be taken or that additional evidence be taken.  In the present case, the Secretary had accepted all the record of evidence taken by the AO.  The appeal was conducted on paper rather than by a re-hearing (in the sense of taking any new evidence, or any calling of materials, as might be subject to challenge etc).

133.  The very nature of the error and procedural impropriety leading to the Sentencing Decision almost necessarily meant that it could not be cured on the appeal, unless a fundamentally different approach had been adopted.  The procedural error in the proceeding before the AO was not cured.

L.  Result

134.  The application is allowed based on Ground 1 (and, if necessary, Ground 2).

135.  I grant the following relief:

(1)  a declaration that the Sentencing Decision and the Appeal Decision (insofar as sentencing on Charge 1 is concerned)  was reached in a procedurally unfair manner;

(2)  the Sentencing Decision and the Appeal Decision (insofar as sentencing on Charge 1 is concerned)  be quashed; and

(3)  the Sentencing Decision (insofar as Charge 1 is concerned)  be remitted to the Commissioner for reconsideration.

136.  Though I do not think it necessarily helpful to proscribe how that reconsideration should take place, the Commissioner should of course take into account the matters I have dealt with above, and in particular why I have thought it necessary and appropriate to quash the Sentencing Decision.  It may be that the procedure has in effect to be taken back to the point where the Applicant has pleaded guilty to the charges on the basis of the particulars as formulated.  It was at that point at which the public law errors occurred.  How matters are taken from that point without public law error is a matter for the decision-maker, not the Court.  For the avoidance of doubt, I say nothing about what would be the appropriate sentence reached on a process which satisfies the requirements of public law.

137.  In light of my decision, and in the broad exercise of my discretion as to costs, I see no reason why the costs should not follow the event.  Therefore, I order the Applicant’s costs to be paid by the respondents, to be taxed if not agreed.