CHAN KAM CHOI v. COMMISSIONER OF CORRECTIONAL SERVICES AND ANOTHER

CACV 211/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 211 OF 2013

(ON APPEAL FROM HCAL NO. 134 OF 2013)

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REASONS FOR JUDGMENT

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Hon Cheung JA:

1. I agree with the reasons for judgment given by Yuen JA.

Hon Yuen JA:

2. On 4 October 2013 Au J refused Mr Chan Kam Choi leave to apply for judicial review against the Correctional Services Department (“CSD”) and the Legal Aid Department. Mr Chan was then acting in person.  He lodged a Notice of Appeal.

3. Mr Chan now has the benefit of legal representation.  He has filed an Ex Parte Summons for leave to amend his Form 86 and to adduce an affirmation in support (“the 3^rd affirmation”), and a Supplemental Notice of Appeal.

4. After a hearing on 30 April 2015, we gave the following orders:

-  leave to file the 3^rd affirmation,

-  leave to amend Form 86 (except for the ground set out in para. 5 of the draft),

-  the appeal be allowed on the grounds set out in paras 2 and 3 of the Supplementary Notice of Appeal and

-  leave to apply for judicial review in accordance with the Amended Form 86.

5. My reasons appear below.

Background

6. Mr Chan 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. Mr Chan was interviewed by ICAC but no other charges were laid against him.

10. On 9 July 2012 Mr Chan was convicted by a magistrate of the s.18 offence and fined $1,000.

Disciplinary proceedings

11. Disciplinary proceedings were launched.  As the correspondence between the CSD and Mr Chan is relevant to one of the arguments raised before this court, it may be helpful to set out the relevant correspondence here.

12.1.  First Mr Chan was informed that he could make representations in mitigation. 

12.2.  On 11 September 2012, Mr Chan duly delivered to the Commissioner of Correctional Services (“the Commissioner”) an undated document containing representations in mitigation. 

12.3. On 3 December 2012, the CSD sent Mr Chan a letter annexing observations and proposals which were intended to be placed before the Commissioner.  In the letter Mr Chan was informed that if he wished to make further final representations, he should do so within 14 days (ie by 17 December 2012), failing which it would be assumed that he had no further representations. 

12.4.  On 12 December 2012, Mr Chan delivered to the CSD an application for early retirement.

12.5.  On 21 December 2012, the CSD wrote to Mr Chan saying that as his letter of 12 December 2012 only referred to his application for early retirement and did not state specifically whether it was to be treated as his final representations, he was reminded that if he wished to make that letter his final representations or if he wished to make final representations in addition, he should inform the CSD in writing before 3 January 2013. 

12.6.  On 27 December 2012, Mr Chan delivered a letter dated 28 December 2012 to the CSD.  After referring to his application for early retirement, he referred to the CSD letter of 21 December 2012 and said the following:

“職在十二月二十二日收到署方回信答覆，要職再次上書署長確認這次是職最後的要求及申述。准許職提早退休。同時職要求積存之大假擺放在退休之前。”

12.7.  On the same day, the CSD wrote to Mr Chan referring to the letter above and stating that it would be treated as his final representations, but that if he had any further supplemental materials, he should inform the CSD in writing before 3 January 2013.  Separately this letter went on to say that his application for early retirement would be dealt with in accordance with established procedures. 

12.8.  Mr Chan did nothing further.

13.1.  On 25 January 2013, the Commissioner made the decision to dismiss Mr Chan without retirement benefits. 

13.2.  Mr Chan lodged an appeal but it was dismissed by the Secretary for the Civil Service (“the Secretary”) on 4 June 2013. 

Application for leave to apply for judicial review

14.1. On 6 September 2013, Mr Chan applied for leave to apply for judicial review.  This was considered on paper.  At that time, the respondents were the CSD and the Legal Aid Department.  Mr Chan’s affirmation in support of his application did not exhibit any documents at all.  In a subsequent affirmation, he merely exhibited a large bundle of documents without any cross-references to the matters set out in his first affirmation. 

14.2.  On 4 October 2013 the judge refused leave for him to apply for judicial review, giving brief reasons.

New applications

15. On 17 October 2013 Mr Chan filed a Notice of Appeal.  Nothing appears to have been done until 4 November 2014 when solicitors came on the record.  As noted earlier, on 23 March 2015 the Ex Parte summons for leave to amend the Form 86 and to adduce Mr Chan’s 3rd affirmation, and the Supplementary Notice of Appeal, drafted by counsel, were filed.

16. Unsurprisingly Mr Chan’s case has now been cast in a different light.  The Legal Aid Department has been deleted as a respondent and the Secretary has been added as a respondent.  Essentially Mr Chan’s new case sets out 3 grounds for relief:

(1)  the Commissioner had failed to ask Mr Chan to make a proper representation in mitigation when it was plain that Mr Chan was labouring under the impression that his application for retirement was being processed at the time and did not make any proper representation in mitigation;

(2)  the Commissioner was wrong to have taken certain cases as “precedents” for the decision to dismiss without retirement benefits; and

(3)  the decision was irrational in that the punishment for Mr Chan did not fit the crime. 

Discussion

17. Dealing first with the 1^st ground, I do not see how this satisfies the test for granting leave to apply for judicial review as set out in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  It is not reasonably arguable in light of the clear correspondence from the CSD and Mr Chan’s own letter dated 28 December 2012 (set out above) where he showed that he was expressly responding to the CSD’s letter for confirmation of final representations.  He could not have misunderstood the situation and thought that he still had an opportunity to make final representations because he did not in fact seek to make any further representations to the Commissioner, despite being given the opportunity in the CSD’s letter dated 27 December 2012 to present supplemental materials before 3 January 2013 and despite the separate reference that his application for early retirement would be dealt with in accordance with established procedure. 

18. The other two grounds can be considered together as they go towards the issue whether the decision of the Commissioner, after having considered the precedent cases, to dismiss Mr Chan without retirement benefits was irrational in all the circumstances. 

19.1.  At the time of the offence Mr Chan had worked for the CSD for nearly 30 years.  Apart from a minor offence 25 years ago, he had a clear disciplinary record. 

19.2.  His evidence, which is unopposed at this stage, is that all the unauthorized items were for his own use. 

-   First, as far as the medicine was concerned, Mr Chan has a heart condition and had been prescribed the medicine in case of sudden discomfort.  Although the prison regulations provided that he should have no more medicine on his person than was needed for the duration of his shift, his evidence was that his doctor had advised him that exposure of the tablets would render them ineffective.  As the tablets were not to be taken at regular intervals, it would have been a waste if he had to open the bottle and bring separate tablets with him on every shift, as he might not need to take them at all unless he felt sudden discomfort.  He said that was why he had brought the sealed bottle with him.

-   Along the same vein, Mr Chan’s evidence was that he is diabetic and he had been recommended by the Stanley Prison doctor “to bring snack at work place till further notice”.  That accounted for the foodstuff and artificial sweetener.  Indeed the doctor’s certificate was one of the pieces of paper in his wallet which was the subject matter of the charge. 

-   As for the metal cigarette lighter, he said it was a keepsake from his late father and according to his 3^rd affirmation he had absent-mindedly put it in his pocket on the day in question. 

-   The metal roller ball pen was a birthday present from his wife which he had used every day for many years. 

-   He said the extra cigarettes were for his own use as he was a heavy smoker.

-   The plasters were kept on him for convenience as he frequently had to have blood tests to monitor his diabetic condition.

-   The bead bracelet and some of the papers in his wallet were amulets for his own protection.  The other papers and name cards had been accumulated in his wallet which he had not bothered to clear out. 

-   The ear scraper he had picked up somewhere and kept as he thought it was interesting. 

19.3. As will be seen from the above, there appears to be different degrees whether of culpability or of carelessness in Mr Chan’s possession of the various items. Obviously in light of his experience, it would be difficult for him to suggest that he was not aware that these were unauthorized items, and for an officer of a disciplined service, his attitude in nevertheless carrying them on his person showed a lack of professional discipline. 

19.4.  However it is important to note that whilst consideration was given to what might have happened if the items had fallen into the hands of inmates, there was no evidence that any of the items were intended to be passed to prisoners, nor how likely they could have fallen into their hands absent such intention.  Despite investigations by the ICAC, there was no evidence that the name cards or the writing on the pieces of paper had any sinister connotations, nor evidence that any of the items were other than for Mr Chan’s personal use.

19.5.  Moreover it would appear that the Secretary does not seem to have taken into account the effect of the exposure of individual tablets of the medicine, or the certificate of the Stanley Prison doctor recommending that Mr Chan bring snacks to work, before he dismissed the appeal from the Commissioner’s decision to impose what has been said to be the heaviest penalty possible, even though this officer was only 15 months away from retirement after serving for nearly 30 years. 

Order

20. Accordingly at this stage I took the view that grounds (2) and (3) are reasonably arguable.  This court made the orders set out above with no order as to costs whether of the Ex Parte summons or of the appeal. 

Hon Kwan JA:

21. I agree with the Reasons for Judgment of Yuen JA.