RE LAI HO MING

No. M.P. 1287 of 1989

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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1. This is a motion for judicial review pursuant to leave granted by Mayo, J. on the 7th June 1989.

2. LAI Ho-ming (the applicant) was an Assistant Officer II with the Correctional Services Department, having been employed in the department since October 1977. On the morning of the 17th August 1987 whilst the applicant was on duty at the Tai Lam Correctional Institution he was required to attend the Superintendent's office which is outside the main premises of the prison a short distance away from the main gate as shown in exhibit CWS1 to the affidavit of Chan Wah-shek, the Commissioner of Correctional Services (the Commissioner), in connection with a disciplinary matter pending against him with which I am not concerned.

3. Whilst he was at the Superintendent's office, the applicant was searched and was found to have on his person some unauthorised articles and cash in the sum of $440.08. Following the search, the applicant was charged with two offences. The first under Rule 239(1) (p) of the Prison Rules, Cap. 234 alleged that he had brought articles into the prison when he was on duty in contravention of Prison Rule 74. Rule 239(1) (p) provides:-

"(1)     Any officer of the Correctional Services Department or other person employed in the prisons commits a disciplinary offence who-

(p)    contravenes any of these rules or commits any breach of duty;"

Rule 74 provides:-

"An officer of the Correctional Services Department shall not bring in or carry out, or knowingly allow to be brought in or carried out, of the prison any article of private, or Government, property except in the execution of his duty or with the authority of the Superintendent."

The particulars of the first charge included the sum of $440.08 and the unauthorised articles.

The second charge was brought under Rule 239(1)(a) which provides:-

"(1)    Any officer of the Correctional Services Department or other person employed in the prisons commits a disciplinary offence who-

(a)     without good and sufficient cause fails to carry out any lawful order, whether written or verbal;"

The particulars of the second charge alleged that while on duty at the prison the applicant carried on his body a sum of HK$440.08, exceeding the amount stipulated in Standing Order 354 which at the time was $25. This sum has new been increased to $200. At the time of the alleged offence Standing Order 354 read:-

"     Possession of Money -

    Up to $15.00 in cash, (excluding reimbursement of travelling expenses, payment of allowance or salary received on that day), may be carried by staff within an institution providing that the money is in the possession of the staff to whom it belongs,"

Deposit boxes are available at the main prison gate for staff to place any unauthorised articles or cash exceeding the sum allowed before they to on duty.

4. The hearing of the disciplinary charges took place before Mr H.S. Rutton (the Adjudicating Officer), the Superintendent of the Pik Uk Correctional Institution. The applicant denied the first charge and objected to the prosecution of the second charge on the grounds that the sum of money concerned was included in the first charge. However, this objection was overruled by the Adjudicating Officer.

5. During the hearing in answer to a question put by the Adjudicating Officer the applicant said that he came direct to the Superintendent's office from the main gate of the prison and had not been anywhere else before he was searched."

6. The principal evidence for the prosecution was given by officers of the Correctional Services Department who were present during the search. The applicant cross-examined the witnesses and also made a submission to the Adjudicating Officer but never denied that he was found in possession of the articles and the cash in question. The applicant was acquitted on the first charge as the Adjudicating Officer found that there were inconsistencies and discrepancies in the evidence. However, upon a perusal of the transcript, these inconsistencies and discrepancies were of no great significance. It appears that the Adjudicating Officer based his decision on the grounds that the applicant might have picked up the articles and cash from a car parked at the garage which was situated outside the prison premises between the main gate and the Superintendent's office before he was searched. This finding was in contradiction to the answer which he had given to the Adjudicating Officer to which I have referred. In fact according to the transcript the applicant said that he could have collected the items from the garage not that he had actually done so. However, the Adjudicating Officer found the second charge proved as the sum was in excess of the authorised amount which sum had not been received by the applicant for any of the excepted reasons provided for in the Standing Order.

7. After his conviction on the second charge the applicant said that he had nothing to say in mitigation after being invited to do so by the Adjudicating Officer. The Adjudicating Officer, having regard to the seriousness of the offence and the applicant's previous record of disciplinary offences, considered that his powers of punishment were insufficient' so he referred the case for an award to be made by the Commissioner under Prison Rule 245(2). After an appeal was dismissed by the Commissioner on the 22nd March 1988 and a further appeal to the Governor had also been dismissed, the applicant was sentenced by the Commissioner to be compulsorily retired from the service with effect from the 1st March 1989 but was granted pension benefits under Prison Rule 255F(b).

8. By the present motion, mandamus having been abandoned the applicant seeks orders of certiorari to quash the findings of the Adjudicating Officer and the sentence imposed by the Commissioner. The grounds upon which relief is sought are as follows:-

"l. The adjudicating officer of the disciplinary proceedings......... having acquitted the Applicant of the 1st charge -bringing certain articles (including HK$440.08) into the institution without authority, was wrong to conclude that the Applicant was guilty of the 2nd charge - carrying HR$440.08 at the institution while on duty. The finding of the 2nd charge by the adjudicating officer was such that no person properly directing himself on the relevant law and acting reasonably could have reached it. Further the finding of the 2nd charge was inconsistent with the finding of the 1st charge.

2.     The adjudicating officer erred in law to conclude that the Superintendent's office in Tai Lam Correctional institution was part of the institution within the meaning under Standing Order 354 of the Correctional Services.

3.     The adjudicating officer erred in law when he failed to consider whether the disciplinary offence (2nd charge) was committed without good and sufficient cause as prescribed in Rule 239(l)(a) of the Prison Rules, Cap.

4.     The Commissioner of Correctional Services erred in law in applying the wrong test on the burden of proof when he confirmed the adjudicating officer's finding and dismissed the appeal against finding on 22nd March 1988.

5. The Commissioner of Correctional Services was not acting fairly in that he did not give an opportunity to the Applicant to be heard before imposing the award for the 2nd charge.

6. The award for the 2nd charge of compulsory retirement with pension was totally wrong in principle and unfair and unreasonable in all the circumstances and further that there Bias no evidence to show that the sum of money HK$440.08 was in any way connected with and/or to be used for any unlawful purpose."

9. It is clear from the transcript that the applicant concentrated during his cross-examination of the prosecution witnesses and in his submission to the Adjudicating Officer upon various inconsistencies and discrepancies in order to cast doubt upon that evidence. However, at no time did he deny that any of the items in question or the cash were found on his person. The Adjudicating Officer quite clearly gave the applicant the benefit of the doubt in respect of the first charge that he had collected all the articles from his car before he went into the Superintendent's office. However, he convicted the applicant on the second charge because the money had been found upon his person on the premises of the prison. It was conceded that the applicant had not received any payment for travelling expenses, allowances or by way of salary on that day and the applicant made no denial of possession.

10. In respect of the first ground, that the finding of the second charge was inconsistent with the finding of the first charge, the applicant was in my judgment, very fortunate that he was not convicted on this charge, which was attributable to the error made by the Adjudicating Officer when he mistakenly came to the conclusion that the money and other articles could have been taken from the car outside the prison premises before he came to the Superintendent's office. The verdict can only be described as inconsistent by virtue of the indulgence of the Adjudicating Officer.

11. In respect of the second ground, that the Adjudicating officer erred in law to conclude that the Superintendent's office was part of the institution within the meaning of Standing Order 354, there was evidence upon affidavit by the Commissioner that the Superintendent's office is part of the Tai Lam Correctional Institution. In fact there was no evidence to the contrary and as a matter of common sense, one would expect the Superintendent's office to form part of the institution.

12. Under ground 3 Mr Law, counsel for the applicant, submitted that the Adjudicating Officer did not take into account under Rule 239(1)(a) that the applicant would have had a defence if he had had good and sufficient cause to have the money on his person. However, there was no evidence before the Adjudicating Officer that the applicant had any reason to have the money in his possession while on duty. Although the rule under which he was charged does not raise a presumption of guilt against the applicant such evidence if it had been available could only reasonably be expected to have been given by the applicant. As there was no evidence to form the basis for such a defence, this ground must fail.

13. When the Commissioner considered the appeal from the decision of the Adjudicating Officer, he informed the applicant of the result by a letter dated the 22nd March 1988 in which he agreed that there was a case to answer confirmed the findings and dismissed the appeal. There was no complaint that the Adjudicating Officer had not adopted the correct burden of proof, whilst it was the duty of the Commissioner upon a consideration of all the evidence to determine whether there was any merit in the appeal. I do not consider that there was any material to support Mr Law's argument that the Commissioner had adopted the wrong test as to the burden of proof. In fact it was the Commissioner's duty to ensure that the Adjudicating Officer had correctly interpreted the burden and I am satisfied that he did.

14. The assertion under the fifth ground that the applicant was not given an opportunity to be heard before the imposition of the award for the second charge is without merit because when he was asked by the Adjudicating Officer as to whether he wished to say anything, he declined, and when the matter was referred to the Commissioner, no request was made by the applicant to put forward any representations.

15. Since his employment with the service in 1977 the applicant has been convicted of thirteen disciplinary offences against Prison Rules. These offences include being late for work, neglect of duty and leaving his assigned post whilst on duty. For these offences the applicant received punishments that varied from a fine to a reprimand, a severe reprimand or extra hours of duty to perform. His general performance for most of his service was described as very unsatisfactory. Having regard to the applicant's previous record and the serious nature of the present offence, I am unable to agree with Mr Law that the penalty that was imposed could be described as either irrational or unreasonable in the Wednesbury sense see Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948]1 KB 223.

16. Finally under the sixth ground that the money found was not to be used for an unlawful purpose is irrelevant for the purpose of possession is not an ingredient of the offence. Accordingly, this ground is also without substance.

As a result the motion will be dismissed.