CHAN KAM CHOI v. COMMISSIONER OF CORRECTIONAL SERVICES AND ANOTHER

HCAL 134/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS

NO 134 OF 2013

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BETWEEN

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JUDGMENT

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INTRODUCTION

1. This judgment covers two applications:

(a) an application for judicial review (leave to apply having been granted by the court of appeal on 30 April 2015) (“the JR application”);

(b) an application to amend the amended Form 86, and Form86A, to add 3 grounds of application (in addition to the 2 grounds for which leave has already been granted) (“the amendment application”).

2. The applicant was an Assistant Officer I who used to serve with the Correctional Services Department (“CSD”). He was dismissed without retirement benefits (“the dismissal decision”); the decisions related to the dismissal were:

(1) the decision of the Commissioner of Correctional Services (“the Commissioner”) stated in a letter dated 25 January 2013;

(2) the decision of the Secretary for Civil Service (“the Secretary”) stated in a letter dated 4 June 2013.

The Commissioner has been named as the 1^st respondent herein whereas the Secretary has been named as the 2^nd respondent here.

THE JR APPLICATION

3. The two grounds of application mentioned in para1(b) above are:

(a) the Commissioner erred for having regarded certain previous cases of disciplinary proceedings as “precedent cases”;

(b) the dismissal decision was irrational in that the punishment imposed did not fit the applicant’s misconduct.

THE AMENDMENT APPLICATION

4. The 3 grounds for which the applicant seeks leave to add are in short:

(1) the Secretary failed to take into account (i) the need for the applicant to possess the medicine in an intact container, and (ii)the prison doctor’s recommendation for the applicant to bring snacks to work;

(2) the Commissioner made the dismissal decision without affording the applicant a proper opportunity to be heard (this has been described as a “pre-determination”);

(3) the Commissioner failed to consider the court decision in Cheung Koon Kit v Commissioner of Correctional Services of HKSAR HCAL108/2003 (28 July 2004) as a proper “precedent case”.

BACKGROUND

5. The background relevant to these applications has been helpfully set out in the reasons for judgment of the court of appeal, from which I will gratefully quote below:

“6. [The applicant] was an Assistant Officer I, having worked at the CSD since 1982 (at the age of 23). He was due for retirement on attaining the age of 55 in April 2014. Apart from a censure in 1987 for playing checkers with an inmate while on duty in 1986, he had a clear disciplinary record.

7. On 24 August 2011 after changing into uniform to start his shift, he was asked to attend the office where he was asked to empty his pockets. As a result, he was arrested and charged with the offence of ‘introducing unauthorized articles into prison’ contrary to s.18(1) and (2) Prisons Ordinance Cap. 234.

8. The articles comprised 19 items, being:

- one sealed bottle of medicine (102 glyceryl trinitrate tablets with the trade name of ‘Angised’)

- some foodstuff and a packet of artificial sweetener

- a metal cigarette lighter (in addition to a plastic cigarette lighter)

- a metal roller ball pen

- 10 cigarettes in an opened packet (in addition to an unopened packet of 20 cigarettes)

- plasters

- a bead bracelet

- an ear scraper and

- name cards and pieces of paper inside his wallet.

9. [The applicant] was interviewed by ICAC but no other charges were laid against him.

10. On 9 July 2012 [the applicant] was convicted by a magistrate of the s.18 offence and fined $1,000.”

6.The relevant parts of s 18(1), Cap 234 are:

“Any person who brings, … or in any manner introduces or conveys into any prison, … with intent that it shall come into the possession of a prisoner, … any … instrument, intoxicating liquor, opium or other drugs, tobacco, … provisions, … papers, … or any other article whatsoever shall, unless so authorized by the rules made under section 25 or by the Commissioner, be guilty of an offence … ”.

Further, the relevant parts of s 18(2), Cap 234 read:

“Any officer of the [CSD] … who contravenes … the provisions of subsection (1) shall be liable, in addition to the above punishment and any other punishment, to forfeit his office”.

As should be apparent from the language of the above quotes, s18(1) is of general application whereas s18(2) applies principally to prison officers (of which the applicant used to be one).

7. As stated above, the applicant was later dismissed. Disciplinary proceedings were commenced against him for that purpose. A summary of the proceedings is set out below:

(a) in August 2012, CSD wrote to the applicant informing him CSD was considering to impose disciplinary punishment and invited him to make representations in mitigation (“the Aug 2012 letter”);

(b) the applicant wrote in response on 11 September 2012 stating in gist that:

(1) he was remorseful,

(2) he had suffered from chronic disease and his health had been poor,

(3) his wife depended on him financially and sought leniency from CSD;

(c) after having sight of the applicant’s response, CSD recommended to the Commissioner the dismissal decision (in November2012);

(d) before making the dismissal decision, CSD again wrote to the applicant (on 3 December 2012) notifying him of CSD’s observations and the proposed punishment. The applicant’s representation was again sought;

(e) the applicant responded on 12 December 2012, and applied for “premature retirement with monthly pension and a lump sum pension gratuity”. Among other things, the above mitigation was in effect repeated;

(f) by a letter of 21 December 2012, CSD offered another opportunity to the applicant to make representation;

(g) another letter (dated 28 December 2012) was sent by the applicant;

(h) the Commissioner’s decision (para2(1) above) was sent to the applicant.

A summary of the events leading to the Secretary’s decision (para2(2) above) is:

(1) the applicant lodged an appeal to the Chief Executive in a letter dated 8 February 2013;

(2) the Commissioner sent an internal memo to the Secretary (dated 15 February 2013) as requested by the latter;

(3) the Secretary’s decision (para 2(2) above) was made.

DOES THE JR APPLICATION HAVE MERITS ?

(a) Error in the consideration of the Commissioner/Secretary

8. This has been summarized in para3(a) above.

9. The plank of this part of the applicant’s case is that the Commissioner has used “precedent cases” (to ground the dismissal decision) when the circumstances of those cases were much more serious that those in the applicant’s case (in those cases, the articles were taken into prison intended to be passed to the prisoners); the seriousness was reflected by the heavier sentences imposed by the criminal courts against those offenders. The applicant also contends that there were other differences:

(a) the offenders’ ranks (more importantly, the different periods of service);

(b) the nature (and quantity) of the unauthorized articles (mobile phones, 12 pens and 1,000 stamps).

10. It is true the above are important factors for the Commissioner and the Secretary when making the dismissal decision. There is basis for concluding that they have been taken into account:

(1) the gravity of the misconduct: para 8, internal minutes dated 20November 2012 (“Nov 2012 minute”);

(2) the applicant’s length of service: para 11, Nov2012 minute;

(3) the items carried by the applicant: para 4(ii), 10 and 11, Nov2012 minute;

(4) whether the articles were intended to be passed to the prisoners and/or for corrupt or illicit purposes: para10, Nov2012 minute.

11. What appeared to have greatly influenced the sentence imposed by the Commissioner were in short two matters:

(a) a high standard of discipline and integrity must be shown by staff of the CSD;

(b) the need for the good order and discipline of prisoners and tight security in prisons.

(see also para 47, applicant’s skeleton arguments (and para17 below))

12. It seems reasonable to think that the two above matters are closely related. Staff working in a prison environment is exposed to immediate contacts with convicted criminals on a daily basis. It is not uncommon for prisoners to seek favourable treatments from prison officers for various personal reasons (for example, for personal comfort and enjoyment, or to “show off” to other prisoners). A compromise of one matter would usually lead to the compromise of the other.

13. I take comfort in having the apparent agreement of HartmannJ regarding para12 above in a passage appearing in the Cheung Koon Kit decision:

“… the applicant was a member of a disciplined service. That service has one function; namely, to ensure the integrity of the system of correctional detention in Hong Kong. Once that integrity is undermined, it works not only to the detriment of society, not only to the detriment of the officers themselves but, critically, to the detriment of the prisoners. The Legislature has recognised the importance of officers not smuggling prohibited articles into prison and has made it a criminal offence subject to sanguine penalties including imprisonment for up to three years.” (emphasis supplied) (para 37 thereof)

14. Looked at from such perspective, the applicant’s conduct has been grave in at least two senses:

(1) despite his length of service and familiarity with the rules, he disregarded those rules and decided to do things his own way. Such disobedient (or at least cavalier) attitude would not be tolerated even by some non-discipline establishments (let alone a disciplined force whose need for obedience to rules and orders is, as explained above, of critical importance);

(2) apart from two articles (10 cigarettes and a metal lighter) (which, according to the applicant, were only carried because of absent-mindedness), the other 17 articles were carried into the prison by the applicant regularly for a considerable period of time.

15. In relation to para14(2) above, as a matter of inherent probability the risk of unauthorized articles falling into the hands of prisoners would be related to:

(a) the quantity of articles being carried into prison;

(b) the frequency of such articles being carried into prison.

All things being equal, the more the number of articles, the greater the chance of such mishap (the same positive correlation also exists between frequency and risk). As stated above, in this case, there were altogether 19articles, 17 of which were carried into the prison regularly.

16. The factor which would help to mitigate in this regard is that some of the articles were carried into prison for what appeared to be legitimate personal reasons: such as the snacks and the medicine (and the doctor’s prescription). However, it must be remembered that the relevant rules already put in place proper mechanisms for them to be carried by the applicant (he decided not to follow them). It therefore does not lie in the applicant’s mouth to claim that he has been forced to flout the rules.

17. The Secretary’s consideration was similar to the Commissioner’s: para3, 10 to 12 and 18, internal minute dated 31May 2013 (“May 2013 minute”) (see also para 47, applicant’s skeleton arguments (and para 11 above)).

18. For the reasons stated above, I do not find the Commissioner or the Secretary to have erred.

(b) Irrational conclusion / excessive punishment

19. This has been summarized in para3(b) above.

20. The applicant complains that the punishment was irrational because of:

(1) an unreasonable process in that manifestly excessive or inadequate weight has been accorded to a relevant consideration, or that the reasons for the conclusion show no adequate justification;

(2) an oppressive decision, which focuses on the impact (or consequences) of the decision on the applicant.

Reliance is placed by the applicant on (among other authorities) the decision in Pang Tak Kwai v Commissioner of Correctional Services and Chief Executive of the HKSAR HCAL1610/2000 (6 December 2000).

21. It is complained that the Nov 2012 minute focused (wrongly) on the articles carried by the applicant, and overlooked whether they were carried for the applicant’s own use or for the others (such as the prisoners). As regards the last-mentioned matter, the applicant argues that, when the Commissioner mentioned the risk of the articles falling into the prisoners’ hands, and of jeopardising prison security, this was nothing much more than his pure speculations which were illogical and unsubstantiated (para37 and 41, applicant’s skeleton arguments).

22. With respect, I disagree and will repeat the reasons given in para 10 to 16 (especially 14(2) and 15) above.

23. In this regard, it is important to bear in mind the respective roles of the sentencer and of the court. The matter of sentence is primarily for the disciplinary tribunal; the court will only intervene where the tribunal’s discretionary powers so exceeded the normal limits as to justify a finding that there was an error of law. Hence, in R v St Albans Crown Court, exp Cinnamond [1981] 1 QB 480:

“... that it is not sufficient to decide that the sentence is severe, perhaps even unduly severe or surprisingly severe. It is necessary to decide that it is either harsh and oppressive or ... that it is so far outside the normal discretionary limits as to enable this court to say that its imposition must involve an error of law of some description, even if it may not be apparent at once what is the precise nature of that error.

It seems to me that the jurisdiction which this court is empowered to exercise in this field can be considered analogous to the jurisdiction which it exercises in relation to the Crown and government departments where, on the tests in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223, it examines a decision and says that no reasonable authority could have reached this decision without a self-misdirection of some sort and therefore is satisfied that there has been some such misdirection.” (emphasis supplied) (p 484 thereof)

See also the Cheung Koon Kit decision (para 38 thereof); Cheuk Fan Ming v Commissioner of Correctional Services and Another HCAL 134/2004 (28 June 2005), para 54; Tesco Stores Ltd v Secretary of State for the Environment and Others [1995] 1 WLR 759, 764; Au Yeung Kwok Hing v The Attorney General for and on behalf of the Commissioner of Police CACV 205/1994, para 49-52; Wong Wai Tak v The Secretary for the Civil Service CACV 611/2001 (10 July 2001), para 22-24.

24. In the present case, as stated above, both the Commissioner and the Secretary have considered the matters now relied upon by the applicant; they have, in addition, also considered those set out in para11 above. The difference between them and the applicant is, at the end, the relative emphasis placed on these respective matters by the Commissioner and the Secretary (as opposed to that placed by the applicant). In other words, what divides the respondents from the applicant is how much weight was placed on these matters by them: for the respondents, emphasis was placed on the matters set out in para11 above; for the applicant, emphasis was placed on those set out in para9 above.

25. Neither the Commissioner nor the Secretary have overlooked the following matters:

(a) consequences of the punishment;

(b) the applicant’s personal circumstances.

(see the Nov 2012 minute and May 2013 minute)

26. Finally, the applicant’s complaint of a failure on the part of the Commissioner and the Secretary to give reasons for the punishment imposed is also unfounded (see the Nov 2012 minute and May 2013 minute and para 10 to 11 and 17 above).

27. In short, I do not consider there to be any merit in this complaint.

DOES THE AMENDMENT APPLICATION HAVE MERIT ?

(a) The Secretary’s failure to consider relevant matters

28. In gist, this complaint is that the Secretary has failed to take into account:

(1) the need to keep the container of the medicine intact (as advised by the doctor and the manufacturer);

(2) the snacks carried by the applicant were recommended by his doctor.

29. It can be seen from the discussion under the sub-heading “(a)Error in the Consideration of the Commissioner/Secretary” that the articles referred to in this proposed ground are in fact part of the articles which have been covered under that sub-heading (see in particular para5, 14(2) and 16 above), and para24 above under the sub-heading “(b)Irrational Conclusion/Excessive Punishment”. I fail to see how adding this proposed ground can further advance the applicant’s case.

30. The Commissioner and the Secretary have noted the applicant’s case regarding the two articles covered by this proposed ground (among others) (see the Nov 2012 minute (para4(ii), 7(vii) and 11 thereof) and May 2013 minute (especially para 16 thereof (and Float G attached thereto) and para 21 thereof (and Float H attached thereto))).

31. In light of the above (that the matters intended to be covered by this proposed ground have already been considered), there is no substance in this proposed ground either.

32. Leave to amend is accordingly refused.

(b) No reasonable opportunity to be heard / pre-determination

33. This proposed ground complains that the Commissioner has pre-determined the punishment before the applicant’s view was sought and considered.

34. Reliance is placed on the date of the Nov 2012 minute (agreed to by the Commissioner himself on 27 November 2012) and the letter informing the applicant of the proposed punishment (dated 3December 2012).

35. However, the applicant was made aware of the proposal to make the dismissal decision much earlier than December 2012. In the August 2012 letter, the applicant’s attention was drawn specifically to rr254 and 255, Prison Rules (Cap234A). He was also informed in effect the Commissioner was considering the possible punishment of dismissal.

36. It was the applicant’s own decision to respond the way he did in the undated letter apparently received on 11 September 2012 (see also para7(b) above).

37. Further, as the respondents correctly point out, the Commissioner’s “agreement” on 27 November 2012 concerned a proposed punishment only: para 18, Nov 2012 minute. It is also noted that, in relation to the Commissioner, the JR application is directed against his decision set out in para2(1) above (and not the Nov 2012 minute).

38. There is thus no merit in the proposed ground; leave to amend is therefore refused.

(c) The Commissioner’s failure to consider precedent case

39. This proposed ground complains in gist that the Commissioner and the Secretary failed to take into account the Cheung Koon Kit decision.

40. As far as the Commissioner was concerned, the affirmation filed for the respondents disclosed that the said decision was not considered by the respondents because the related internal files have been destroyed.

41. There is no evidential or other basis to conclude that the respondents should reasonably have known of the Cheung Koon Kit decision. Further, as the respondents correctly argue, this proposed ground only has substance if:

(a) the decision-maker’s omission is obvious; and

(b) the matter omitted is of such importance that the decision might well have gone the other direction.

(see Chan Sau Mui and Others v Director of Immigration (1992)6 HKPLR479, 488; Nguyen Hoand Others v Director of Immigration and Another [1991]1 HKLR576, 583)

42. This case does not fall within the above category. Leave to amend is also refused.

CONCLUSION

43. The JR application and the amendment application are dismissed.

OTHER MATTERS

44. The parties’ written submissions also mentioned various other points. These have not been expressly set out or dealt with above. This is so only because of the need to balance between the length of the judgment and its comprehension. It does not mean those other points are thought to be irrelevant (or have been overlooked). To avoid doubt, those other points have also been considered.

COSTS ORDER

45. The parties agree that costs of the applications should follow the event. There will accordingly be a costs order that the costs of both applications (including any costs reserved earlier) be paid by the applicant to the respondents to be taxed if not agreed.

46. The applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations (Cap 91A).