CHOI SZE FAI v. COMMISSIONER OF CORRECTIONAL SERVICES

1996, M.P. No. 1717

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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REASONS FOR JUDGMENT

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1. The applicant is an inmate of Stanley Prison and was applying for judicial review of two decisions of the Commissioner of Correctional Services ("the Commissioner"); namely an alleged decision to cause arbitrary search to the applicant's cell, and an alleged decision not to adopt adequate and timely measures to treat the applicant's rheumatoid arthritis. Leave was granted on 3 June 1996 and the notice of motion was filed on 29 May 1996.

Arbitrary Search

2. The grounds relied upon by the applicant in his Notice of Application were :-

"(1) There were neither provisions in the Prison Ordinances (Cap.234) nor provisions in the Prison Rules (Cap.234) to authorise the Commissioner of Correctional Services to cause arbitrary search to a prisoner's cell;

(2) The decision to cause arbitrary search to a prisoner's cell is in breach of Articles 6, 13 and 14 of the Bill of Rights Ordinance as well as Rule 9, Rule 110 and Rule 138(a) of the Prison Rules."

3. However, when it was pointed out to the applicant during the hearing of his application that the Commissioner was relying on the provisions of Standing Order 244 issued pursuant to the powers conferred upon him under regulation 77 of the Prison Rules in searching the applicant's cell; the applicant launched a new and wholly different attack against the Commissioner. It was his contention that the searches were arbitrary in that they were conducted for an improper reason or motive. He alleged for the first time that he was informed by a prison staff, a certain Mr. Yu, that the true purpose of such searches was to punish and intimidate disobedient and unruly inmates. He even went to the extent of suggesting, without being prepared to substantiate such allegation by facts or evidence, that the Standing Order empowering the searches were issued with such improper motives in mind and not for the purpose as set out therein.

4. He explained the late reveal of such allegation was due to his wish not to unnecessarily embarrass the Commissioner at earlier stages of the proceedings. He suggested such wish was founded on his hope to come to some sort of compromise or settlement with the Commissioner thereby avoiding direct confrontation in court. In other words, the concealment or withholding of such a serious allegation was the result of a conscious decision of the applicant for the motives he disclosed. Such tactic is wholly improper and unwarranted. Trial by ambush cannot be acceptable in any court of law. If permitted, such allegation would bring a whole new dimension to the application necessitating fresh evidence of a completely different nature. The applicant who was a solicitor did not seek to submit that he was not aware of the proper way to conduct a case. There was no justification for the applicant to behave in the manner he did. The applicant must suffer the consequence of his conscious refraining from reliance on such a known ground when leave was sought. His application for leave to rely on the said new ground was refused.

5. The applicant was not prepared to argue at the hearing that the said Standing Order was irrational or unreasonable or in any way an infringement of the Bill of Rights or the Prison Rules. I was satisfied that no legitimate complaint could be raised against the said Standing Order in that respect. The purpose for such searches was clearly set out in S.O.244(1) to be as a precaution against prisoners "secreting tools, implements, ropes or clothing which they might use in effecting their escape or materials from which these could be made." Though S.O.244(3)(a) provided for weekly searches of the prisoners, their cells and clothing and the workshop, I was given to understand by the applicant that in reality searches were far less frequent than that. In the premises, disturbance of the prisoners' life had been kept to a level below that required by the Standing Orders. I was satisfied that such a provision is both reasonable and necessary as a precaution against escape. Furthermore, such measure would be a necessary precaution against possession of prohibited articles by prisoners that may constitute a threat to the safety and well-being of other inmates. Regulation 77(4) of the Prison Rules clearly placed a duty upon the Commissioner to issue such orders as may be necessary for the government of all institutions under his control in conformity with the rules. I cannot see how such provisions can be said to be in contravention of any article of the Bill of Rights, in view of s.9 of that Ordinance which provided that "persons lawfully detained in penal establishments of whatever character are subject to such restrictions as may from time to time be authorized by law for the preservation of service and custodial discipline."

6. For the above reasons, I was wholly satisfied that the original grounds, which were abandoned by the applicant at the hearing, were in any event without merits.

Refusal of Adequate or Timely Medical Treatment

7. The applicant alleged in the Notice of Application when leave was sought that he was suffering from rheumatoid arthritis and that the Commissioner had repeatedly refused to give him adequate or timely medical treatment for the same. However, it transpired at the hearing that the real complaint was that the Commissioner refused to supplied to him certain medicine he requested. It was his believe that he ought to be supply with "Ben-gay pain-relieving rub", "Tiger bone with papaya wine" or "Ng Ka Pay" (a type of Chinese wine) from outside prison. He also alleged that one of the two doctors that treated him, a certain Dr. Chu, had privately told him that he had declined the applicant's said request "not due to medical reasons but due to administrative problem".

8. As it was wholly unclear what the alleged "administrative problem" was, the applicant sought an adjournment to subpoena Dr. Chu to explain what he meant. The respondent, not surprisingly, objected. The application was refused as it was clear that the request of the applicant was nothing more than a fishing exercise in the hope of revealing evidence favourable to the applicant's cause. There was no ground to believe Dr. Chu's evidence would more likely than not disclose matters in support of the applicant's cause. Even if the applicant's said allegation was true, it may be that the "administrative problem" was wholly innocent and proper. It would not surprise me at all if it was a reference to Prison Rules 143 and 154(2) whcih stipulated that such private medical treatment would only be allowed if sanctioned by a medical officer or in case of urgent necessity. The applicant was not able to obtain sanction from any medical officer, there being no ground for such sanction, nor had any urgent need ever arose. Such restriction of outside private supply of medication or private medical treatment if suitable alternative is available from government supply could hardly be said to be unreasonable. Dr. Chan confirmed that Dr. Chu denied ever spoken to the applicant about administrative problem. The applicant had no idea at all what the alleged administrative problem was. To permit such a fishing expedition at such late stage in the proceedings could not be in the interest of justice.

9. The only medical evidence from qualified medical practitioner before the court came from Dr. Chan, the other medical officer who treated the applicant. His record revealed that the applicant had made complaints of sickness on 141 occasions since admission to prison on 9 April 1994. He was given medical treatment and prescriptions as his condition required on all occasions. Complaints of pain in joints and muscles were made on 28 occasions. On 27 June 1995, blood test for polyarthritis revealed no abnormality. The result was explained to the applicant by Dr. Chu on 12 July 1995. The last of such complaints of pain was on 12 November 1995. There was no further complaint of pain in joints or muscle after that date, nothwithstanding his complaints of other minor ailments on 32 other subsequent occasions. Dr. Chan verified that no medical officer had ever agreed with the applicant's own "diagnosis" of his condition. The applicant's request for outside pain relieving rub was turned down due to a lack of significant symptoms or medical evidence for such a need. He was prescribed appropriate pain relieving pills and ointment from government supply. He was always advised to attend the prison hospital for treatment if pain recurred. The applicant did not seek to deny the doctor's records. In the premises, the applicant was given immediate medical treatments and prescriptions whenever he complained of sickness. There was no substance at all in his allegation of the Commissioner's refusal to provide adequate and timely medical treatment to him.

10. As to his allegation that he suffered from rheumatoid arthritis, there was no evidence, apart from his own lay opinion, to substantiate such conclusion. The applicant's suspicion of the nature of his discomfort was wholly unsupported by any credible evidence. I decline to accept his suspicion as representing the true position of his health condition. In the premises, there was no rheumatoid arthritis to be treated. Any complaint of a refusal to render treatment for rheumatoid arthritis to him would be ill-founded.

11. In any event, his complaint for a refusal to permit supply of tiger bone wine must be dismissed as supply of such substance would be an offence under the Animal and Plants (Protection of Endangered Species) Ordinance, Cap.187.

12. The applicant no longer pursued his claim against an alleged decision to remove him from his single cell, as no such decision was ever made by the Commissioner as alleged or at all.

13. For reasons given above, the applicant failed to substantiate any of his claims and his application was dismissed with costs.