CHAN KAM CHOI v. COMMISSIONER OF CORRECTIONAL SERVICES AND ANOTHER

CACV 264/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 264 OF 2015

(ON APPEAL FROM HCAL NO. 134 OF 2013)

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REASONS FOR JUDGMENT

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Hon Kwan JA (giving the reasons for judgment of the court):

1.  This is an appeal from the judgment of Chung J on 4 November 2015, in which he dismissed the application for judicial review of Chan Kam Choi and refused his application to further amend the Amended Notice of Application to Apply for Judicial Review (Form 86) to add three grounds of application.

2.  The applicant was an Assistant Officer I in the Correctional Services Department (“CSD”) and was dismissed without retirement benefits.  He was granted leave to apply for judicial review by the Court of Appeal in CACV 211/2013 (Reasons for Judgment on 5 May 2015; “the CA Judgment”) in respect of the dismissal decisions being (a) the decision of the Commissioner of CSD (“the Commissioner”) in a letter dated 25 January 2013; and (b) the decision of the Secretary for Civil Service (“the Secretary”) in a letter dated 4 June 2013, limited to these two grounds:

(1)   the Commissioner was wrong to have taken certain cases of disciplinary proceedings as “precedents” for the decision to dismiss him without retirement benefits (“the precedent cases ground”); and

(2)   the decisions of the Commissioner and the Secretary (collectively “the respondents”) to dismiss him without retirement benefits was irrational in that the punishment did not fit the misconduct (“the irrationality ground”).

3.  Mr Jeffrey Tam, who appeared for the applicant in this appeal, filed prolix grounds of appeal, seeking to re-argue all the arguments advanced before the judge.

4.  At the conclusion of the hearing, we dismissed the appeal with costs to the respondents and made an order that the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.  These are the reasons for our judgment.

Background

5.  The relevant background matters may first be related as follows.  They have been taken largely from the judgment below and the CA judgment.

6.  As stated in the CA judgment,

“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[1].

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.”

7.  The applicant was convicted after trial. He neither gave nor called evidence. In his reasons for conviction, the magistrate Mr Allan Wyeth said this[2]:

“I am in no doubt that, with his 30 years or so of CSDD service, including since 2005 at Stanley Prison, together with the existence of publication of the “Head of Institution Procedures” documents, the defendant well knew the detail of what was and what wasn’t “authorised”, and how “authorisation” was to be obtained, and the procedures required generally and in particular as to the taking of medication with him on shift.

The defendant knew he had with him the 19 items referred to in the charge. They were not authorised items.

I find against the submission on the defendant’s behalf, if the evidence gave rise to any “implied authorisation” for the bringing into the prison by the defendant of all 19 items.

As a result, I find the prosecution has proved the charge beyond reasonable doubt and the defendant is convicted of it.”

8.  In his sentencing remarks, the magistrate said this[3]:

“Having earlier today performed the difficult and indeed sad duty of entering a conviction against the defendant, it now falls to me to pass sentence for which duty I also have little enthusiasm. …

In dealing with this matter and in preparing the sentencing remarks I have not lost sight of the uniqueness of a maximum security prison as a place of employment and the requirement for strict control of items brought into a prison being an obvious necessity. I also note that items which present as everyday and harmless to persons without experience in such a unique environment may, indeed, within the prison setting, have some potential added “value” or give rise to security issues not readily apparent to those without such experience.

That having been said, the 19 subject items having given rise to a charge under section 18, which relates to “unauthorised” articles rather than a charge under section 18A, which relates to “prohibited” articles. None of the 19 items is, on its face and in its normal function, either dangerous or valuable. There is nothing remotely like the “file in the cake” of the old prison movie scripts.

There is nothing in the material before the court to indicate a likely intended misuse of any of the items once within the prison area, beyond the basic “unauthorised” nature of the items. There is no whiff of “bribery or corruption” within the materials properly before the court. There is, however, every indication that the defendant and his 19 items was “all that was left” when the ICAC operation at Stanley that day wound up. …

It is urged upon me that the defendant “didn’t know he was doing wrong, but (on the court’s finding) he was”. In the circumstances before me, that is an understandable assessment of the situation he finds himself in.

Because the 19 items include the metal pen, the metal cigarette lighter, the 10 extra cigarettes and the 102 tablets of medicine, I am disinclined to characterise the offending as merely “technical”. However, I am sure it falls very well to the lower end of the scale of possible offending under section 18.

The defendant is 53 years of age. He is married and has two daughters. He lives in departmental accommodation. He has 30 years of unblemished CSD service[4]. He is within 12 months or so of a well-earned retirement, which should carry with it pension benefits.

Section 19(2) forecasts further proceedings in this matter for the defendant. They are properly matters for others and not for this court. For whatever considerations it may be given, if any, I have recorded my view of the circumstances of this offending which could be described as almost inadvertent.

Doubtless I “exceed my brief” when I opine the loss of the defendant of his retirement benefits would be a harsh outcome.

For my part, I am of the view of fine of one thousand dollars, being half the statutory maximum, is called for. The defendant is fined $1,000.”

9.  In August 2012, CSD commenced disciplinary proceedings against the applicant.  The judge gave a summary of these proceedings in §7 of his judgment:

“(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 November 2012);

(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 [of 25 January 2013] was sent to the applicant.

A summary of the events leading to the Secretary’s decision [of 4 June 2013] 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 [of 4 June 2013] was made.”

10.  The applicant applied for leave to seek judicial review on 6 September 2013.  Leave was eventually granted by the Court of Appeal on 30 April 2015, limited to the precedent cases ground and the irrationality ground.  The applicant filed an amended Form 86 pursuant to leave granted by the appeal court.

The precedent cases ground

11.  It is the standing practice of CSD to consider preceding cases of the past ten years when awarding punishment[5].

12.  Under the civil service disciplinary system, removal punishment broadly consists of three levels:

(a)   dismissal without retirement benefits;

(b)   compulsory retirement with reduced retirement benefits; and

(c)   compulsory retirement with full retirement benefits.[6]

13.  In the internal minutes of CSD dated 20 November 2012 (“the Nov 2012 minute”) in which recommendation was made by the Chief Officer (Staff Administration) to the Commissioner on the proposed punishment, there was listed in §15 in table form four comparable cases for bringing unauthorised articles into prison, in which a non-custodial sentence was imposed by the court.  Of the four cases, only one (concerning an Acting Principal Officer) was given compulsory retirement with full retirement benefits.  The other three cases were dismissal without retirement benefits.  The four precedent cases were also listed in the letter from CSD to the applicant dated 3 December 2012.

14.  In the amended Form 86, it is alleged that the precedent cases considered by the Commissioner were irrelevant in that (1) the ranks of the offenders were different – none of them were Assistant Officer I; and (2) the offenders in those cases had received heavier punishment from the criminal court for their offences.  Hence, the Commissioner ought not to have taken these cases into account when he considered the punishment for the applicant.

15.  Mr Tam submitted that the precedent cases as summarised in the affirmation filed on behalf of the Commissioner did not say anything about the circumstances under which the offence in each of the cases were committed, such as whether the unauthorised articles taken into the prison were for the officer’s own use, or intended to be passed to the inmates, and the mischief which the offence was directed to combat.  He referred to the written submission placed before the judge for the applicant, in which the above points were made and the contention was advanced that the precedent cases were not sufficiently comparable and therefore irrelevant.  He submitted that the judge erred in failing to consider whether the applicant’s personal circumstances were comparable to those of the offenders in the precedent cases.

16.  There is no merit in the above submissions.

17.  As explained in the affirmation filed on behalf of the Commissioner, the reason for the standard practice of CSD in referring to precedent cases in determining the appropriate punishment in disciplinary proceedings is as follows:

“The CSD will make reference to the customary level of punishment in the preceding cases usually in the past 10 years. This serves to ensure that the level of punishment to be imposed on an officer will be broadly consistent with the service-wide norm. The CSD, however, is not necessarily bound by these precedents, and will consider an appropriate level of punishment having regard to all relevant factors including the gravity of the misconduct or offence in the particular case, the management concerns and the expectations of the community to the standard of conduct and discipline in the civil service.”[7]

18.  This is entirely in accordance with the proper use of precedents in this context as mentioned by Hartmann J (as he then was) in Cheung Koon Kit v Commissioner of Correctional Services of HKSAR, HCAL 108/2003, 28 July 2004 at §34:

“It may be that, in prudence, a decision-maker who is required to decide on a penalty seriously affecting an individual’s future will, if possible, look to other penalties imposed in similar cases. But I do not see that a decision-maker is under any obligation in law to do so. The issue, it seems to me, is the nature of the penalty itself. If it is shown, by reference to earlier penalties, that the penalty is irrational then the court may well set that penalty aside as being unlawful.”

19.  The emphasis, as made in the affirmation filed on behalf of the Commissioner and in Cheung Koon Kit by Hartmann J, is on the appropriate level of punishment to be given.  That the precedent cases considered in the deliberation process are not wholly or largely comparable to the case at hand is beside the point, given the clear recognition of the decision-maker that these precedent cases are not binding on him and are merely for comparison and reference.

20.  In the affirmation filed on behalf of the Commissioner, the following account was given as to the approach in determining the appropriate level of punishment in this particular case and the use made of precedent cases:

“Normally, a CSD staff member convicted of “Introduction of unauthorised articles into a prison” would be awarded of “dismissal” under rule 255B of the [Prison Rules]. The punishment of “compulsory retirement” would only be awarded under special circumstances with sufficient remarkable reasons or special distinguishing mitigation factors, such as where the unauthorised article would not cause security hazard to the correctional institutions even if it falls into the hands of the prisoners. However, this was not the Applicant’s case. In other words, the Items introduced by the Applicant into the prison might cause security hazard to the correctional institutions …, and therefore, compulsory retirement with reduced benefits could not reflect the seriousness of the Applicant’s misconduct. As such, the punishment of “dismissal” was awarded to him eventually.

The CSD’s existing record, among the comparable cases, only in the case of the Acting Principal Officer in 2011 … was the subject officer awarded the punishment of “compulsory retirement”. In that case, two unauthorised articles, namely one USB drive and one lip balm, were introduced into the prison. Given that prisoners were not allowed to access computers, the CSD considered that the USB drive did not cause security hazards to prison security. As for the lip balm, the CSD considered it was trivial in nature and thus would not give rise to security concern. As a result, a relatively lenient punishment was awarded to the subject officer eventually.

Although some of the Items seen to be “innocuous” and “trivial” in nature, it was undisputed that all of them were unauthorised in a strict sense if prior approval was not obtained. … If these items fall into the hands of the prisoners, it would adversely affect the institutional security, as well as the good order and discipline of the institutions. For instance, the metal pen might be used as a potential weapon in a penal setting. The negligent use of a lighter might cause fire within the institutions. The extra cigarettes might be used as rewards for illicit activities. The 102 tablets of medicine would be harmful to the health of persons who took them without the direction of the medical officers. All of them might jeopardise the safe custody of prisoners, which is the CSD’s fundamental responsibility.”[8]

21.  There was no error in the use of precedent cases by CSD.  Mr Tam’s submission that the respondents had failed to consider whether the unauthorised items in the precedent cases were for self-use by the officers is not to the point.  As is apparent from the above extracts, the main concern of CSD was the potential security hazard if the unauthorised items prisoners should fall into the hands of the prisoners, even if the items were intended for self-use by the officers.  As demonstrated in the case of the Acting Principal Officer in 2011, a relatively lenient punishment was given where the unauthorised items were not considered to cause security hazards to the prison.

22.  The judge stated in §14(2) of the judgment that apart from two articles (10 cigarettes and a metal lighter, which according to the applicant, were only carried on his person because of absent-mindedness), the other 17 articles were carried into the prison by the applicant regularly for a considerable period of time.  He went on to say in §15 that as a matter of inherent probability, the risk of unauthorised articles falling into the hands of prisoners would be related to the quantity of articles being carried into prison and the frequency of such articles being carried into prison, and expressed the view that all things being equal, the more the number of articles, the greater the chance of such mishap and the same positive correlation also exists between frequency and risk.

23.  Mr Tam took issue with the above statements and mounted an attack that they are inaccurate, speculative, a mere theoretical deduction of the judge that is contrary to the factual circumstances of the applicant’s case as found in the reasoning in the CA Judgment at §19.4.

24.  As the respondents’ counsel, Mr Johnny Ma, has submitted, Mr Tam’s criticisms are unfounded.  The judge took a perfectly sensible view of the increase in security risk in light of the greater number of unauthorised articles and the regularity with which they were brought into the prison.  Nor could this be said to be contrary to §19.4 of the CA Judgment, in which it was stated that “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”.

The irrationality ground

25.  The complaint in the amended Form 86 is that the decision of the respondents to punish the applicant by dismissal without retirement benefits was irrational in that they failed to appreciate the reasons behind and the circumstances under which the unauthorised articles were brought into prison; they failed to appreciate the dire consequences of the punishment on the applicant; they failed to give reason why the applicant was punished by the maximum possible penalty despite these considerations favourable to the applicant: that the applicant’s offence was not the worst of its kind, that favourable comments were made by the sentencing magistrate, that there were mitigating circumstances under which the offence was committed, that the applicant was on the verge of retirement after a long period of service, that the personal circumstances of the applicant should call for sympathetic treatment.

26.  In dealing with the arguments of the applicant under this ground, the judge rightly had regard to the role of the court in the exercise of its supervisory jurisdiction in a judicial review – that the court should not lightly interfere with the findings of a professional tribunal and will only intervene where the tribunal’s discretionary powers had so exceeded the normal limits as to justify a finding that there was an error of law.  These words of Donaldson LJ in R v St Albans Crown Court, ex p Cinnamond [1981] 1 QB 480 at 484E to G, cited by the judge at §23, are particularly apposite in the present context:

“... 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, if those words are thought to be unfortunate or in any way offensive, 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 lawof 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.”

27.  The judge also cited similar remarks in these Hong Kong cases: Cheung Koon Kit at §38; Au Yeung Kwok Hing v The Attorney General for and on behalf of the Commissioner of Police, CACV 205/1994 at §§31, 50 and 51.

28.  It is well established that it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit, and the courts will not interfere unless he has acted unreasonably in the Wednesbury sense (Tesco Stores Ltd v Secretary of State for the Environment and Ors [1995] 1 WLR 759 at 764G to H).

29.  The focus of the arguments before the judge, as summed up at §24 of the judgment, was the “relative emphasis placed on these respective matters” by the respondents as opposed to that placed by the applicant, and what divided the respondents from the applicant is “how much weight was placed on these matters by them”.

30.  Mr Tam repeated the same arguments before us, contending that the judge failed to find the respondents had accorded manifestly excessive weight or manifestly inadequate weight to certain factors and that the punishment was oppressive and clearly did not correspond to the seriousness of the offence.

31.  The remarks made by the magistrate in the conviction and sentencing of the applicant have been set out in extenso.  The court transcripts were considered by the respondents as appeared from the Nov 2012 minute and the internal minute of the Secretary dated 31 May 2013 (“the May 2013 minute”).

32.  The personal circumstances of the applicant and the consequences of dismissal without retirement benefits were canvassed thoroughly in the representations he made to the respondents and the replies given as summarised by the judge.

33.  The respondents’ decision to dismiss the applicant without retirement benefits was explained in the extracts of the evidence quoted above.

34.  The judge went through the Nov 2012 minute and the May 2013 minute.  He concluded at §§25 and 26 that the respondents had not overlooked the consequences of the punishment or the applicant’s personal circumstances and that the complaint of a failure of the respondents to give reasons for the punishment was unfounded.  It has not been shown that the judge had made any error in this regard.

35.  Mr Tam complained that the judge did not deal with the applicant’s argument that it is irrational for the Commissioner to consider that the metal cigarette lighter and the metal roller ball pen would pose any security risk when other metal objects are permitted to be brought into the prison by CSD, such as keys, rings, watches, hair clips and that lighters and ball pens made of plastic are permissible.  We have set out earlier the relevant extracts in the evidence of the Commissioner explaining why a metal lighter and metal roller ball pen have been regarded as posing security risk in the prison setting.  There is no merit in Mr Tam’s argument.

36.  The Commissioner has exercised his broad discretion in a matter of discipline, informed by his knowledge of the need to maintain a high standard of discipline and integrity by the staff of CSD, and the need to maintain good order and discipline of prisoners and tight security in a prison of maximum security for male adult prisoners of high security risks.  It is insufficient that the punishment is severe or even unduly severe.  There is no basis for the court to intervene unless it is irrational, and that has not been established in this instance.

The amendment application

37.  We turn to the application to further amend the amended Form 86, which was rejected by the judge.

38.  Three proposed amendments were put forward in the court below.  On appeal, Mr Tam advanced arguments for only the first and third proposed amendments.

39.  The first proposed amendment is to allege that the Secretary had failed to take into account the effect of the exposure of individual tablets of the medicine carried in a sealed bottle by the applicant, and the certificate of the doctor at the Stanley Prison recommending that the applicant should bring snacks to work.

40.  The judge refused leave to amend as the above allegation is repetitive and had considered by the court when dealing with the precedent cases ground and the irrationality ground.  In any event, the Commissioner and the Secretary had noted the applicant’s case regarding the medicine and the snacks covered by the proposed new ground, as borne out by the Nov 2012 minute, the May 2013 minute and Floats G and H to the May 2013 minute.

41.  Mr Tam argued that the precedent cases ground is directed at the Commissioner, whereas the target of the new proposed ground is the Secretary and so is different.  He also submitted that Floats G and H were not considered by the Secretary.

42.  The judge is entirely correct in refusing leave to amend by adding the first proposed amendment.  There is no merit in the contention that the target of the proposed amendment is different.  What matters is that the judge had clearly considered the position of the Secretary when he dealt with the existing grounds.  And it is incorrect to say that the Secretary had not considered Floats G and H which formed part of the May 2013 minute.

43.  The other proposed ground of amendment is to allege that the respondents had failed to take into consideration the case of Cheung Koon Kit.

44.  The judge refused to give leave to amend to add this allegation as there is no basis to conclude that the respondents should reasonably have known of this case.  Besides, the omission was not obvious and not important.

45.  Mr Tam argued that the omission to refer to a relevant precedent amounted to an error of fact.

46.  We do not think this can be regarded as a mistake of fact, let alone a material mistake of fact.  As discussed earlier, cases referred to in deciding on the appropriate punishment are not precedents in the true sense of the word.  The judge is plainly right in refusing leave to add this allegation.

47.  Lastly, Mr Tam complained about §44 of the judgment in which the judge stated that he had considered various other points in the parties’ written submission even though he did not see fit to deal with them in the judgment.  Mr Tam submitted this amounted to a failure to give adequate and intelligible reasons for his decision.

48.  We do not think there is anything in this criticism.  A judge is not obliged to deal with each and every argument raised by counsel.  We have considered the arguments put forward by the applicant which the judge did not deal with expressly and which take up five pages of the grounds in the Notice of Appeal.  They do not add anything of value to the debate.  We are satisfied in this instance, the judge had analysed the material points in the arguments addressed to him and had given adequate reasons for reaching his decision.