BRIAN ALFRED HALL v. SECRETARY FOR JUSTICE FOR : COMMISSIONER OF CORRECTIONAL SERVICES DEPARTMENT, COMMISSIONER OF POLICE AND COMMISSIONER OF CUSTOMS & EXCISE DEPARTMENT

HCAL 140/2004
and HCAL 84/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NOS. 140 AND 84 OF 2004

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J U D G M E N T

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Introduction

1. At all material times, the applicant was – and remains – a prisoner at Stanley Prison.  In June 1998 he was sentenced to 18 years for drug trafficking.  The applicant is Nigerian.  His native language is Ibo.  But he also speaks English.

2. Over the past few years, the applicant has been engaged in various forms of litigation with the Correctional Services Department as well as other departments of government that have played a part in managing the conditions of his detention.

3. This judgment concerns judicial review proceedings instituted by the applicant.  When the applicant first filed his papers seeking leave, they contained more than 30 distinct allegations of unlawful conduct.

4. The applicant has not been legally presented in drafting and advocating his various challenges.  They have been hand-written, often prolix.  But this is not to say that they have all been lacking in merit.  The applicant has clearly spent a great deal of time studying the Hong Kong legislation which governs his detention and has done so within the context of various international conventions.

5. When leave to apply for judicial review was first sought – with so many grounds of complaint – I ordered that there be an oral hearing.  At the end of that hearing, I granted leave in respect of a limited number of grounds.  To this end, my ruling of 28 February 2005 refers.

6. It was hoped that all of the grounds in respect of which I granted leave could be resolved in the two days that have been set down for this purpose.  But that has not been possible.  This judgment therefore determines certain of the grounds only.  The balance will have to be dealt with at a future date and will be the subject of an independent judgment.

The alleged failure to provide adequate medical treatment

7. This challenge concerns the applicant’s persistent back problems.  The applicant accepts that he has been receiving treatment in respect of these problems.  He contends, however, that the treatment is not aimed at curing the problems only at alleviating their symptoms.  A cure is possible, he says, and the prison authorities are aware of this.  But they fail to pursue a cure.  This constitutes unlawful conduct.  When I granted leave, I did so on the following basis :

“The question in respect of which leave is granted is simply whether, in receiving the limited treatment that has been given and is presently being given to the Applicant by the prison medical authorities, those authorities have acted lawfully.”

8. I have restricted this ground of challenge to the issues that I belief are appropriate in judicial review.  The applicant has instituted action in the High Court (HCA 2221/2003) suing the Commissioner of Correctional Services for damages in the sum of $300,000, as to the manner in which he came about his back problems.  He has instituted a further High Court action (HCA 1254/2004) in which he has sued Mr Daniel Yip, an orthopaedic specialist (as well as the Chief Executive and the Secretary for Justice) in respect of his back condition, alleging, among other things, that Mr Yip is guilty of medical negligence, misconduct and dereliction of duty.  Both of these actions are on-going and it would be wrong for this court to stray into the areas properly covered by those actions begun by writ.

9. In my judgment, a consideration of the applicant’s medical history effectively determines this challenge.  I will now look to that history.

10. In support of his challenge, the applicant has relied heavily on the evidence of Dr Vincent Lam, a chiropractor who has practised as a private practitioner in Hong Kong for over 21 years.  It appears that Dr Lam visited the applicant at Stanley Prison in July 2003 – it appears through the auspices of a prisoner’s aid group – and was able to diagnose his condition and recommend treatment.  Shortly before this hearing, Dr Lam was able to submit a witness statement.  It is dated 12 August 2005.

11. In his witness statement, Dr Lam said that, when he visited the applicant in 2003, the applicant told him that his neck pain and upper thoracic pain had begun in or about January 2000.  The pain was exacerbated by neck flexion and extension.  It also tended to radiate out to both shoulders.  The applicant also told Dr Lam that he had low back pain when he slept in a supine position or when running, but that this back pain was relieved by knee flexions.  Dr Lam’s witness statement goes on to say : 

“X-rays of the cervical, thoracic and lumb-sacral spines were taken on 9 March 2000 and 11 February 2000 at the Stanley Prison facility.  I requested copies of these x-rays to be sent to me.  I received them on 5 August 2003.  The x-rays were examined by Dr Mike Lee Sai-ming, a radiologist.  His report revealed congenital blocked vertebrae at C2-3 and congenital unilateral fused unsegmented upper thoracic vertebrae at T5/T6.  There are no other focal bony abnormality or focal destructive bony lesion in the x-rays.”

12. Dr Lam went on to say that he examined the applicant, discovering that all his reflexes were normal, that there were no adverse neurological signs but that there was tenderness at the mid-thoracic region and the lower neck and also numbness in the upper thoracic area.  At that time, Dr Lam said that there was no low back pain that he could ascertain.  In his witness statement, Dr Lam said the following :

“The Respondent requested that I treat him at Stanley Prison for his spinal pain on a regular basis.  I told the Respondent that I would be happy to do so as his conditions would definitely benefit from regular chiropractic treatment regime.”

13. It is on this statement that the applicant relies most heavily.  It is really the basis of his claim.  I say that, because as I understand it, the applicant alleges that Dr Lam’s recommendation has been ignored.

14. As I read the evidence of Dr Lam, it may be broken down into three areas.  First, he said that the x-rays revealed congenital blocked vertebrae in the upper to middle part of the spine (at C2-3 and T5/T6) but that, aside from the congenital blockage or fusion there, there were no other abnormalities seen in the x-rays.  Second, he said that no low back pain was ascertained at that time.  Third, and importantly, he believed that regular chiropractic treatment would ‘definitely benefit’ the applicant’s conditions.

15. There is, however, nothing in the evidence of Dr Lam to say that surgery would cure the conditions or to say that the manipulation that he could perform would itself – without more – cure the conditions.  What was said was that he believed that a regular regime of chiropractic treatment would benefit his conditions.

16. Dr Lam spoke of receiving appropriate X-rays.  This is evidence, of course, that the applicant’s conditions had been investigated earlier.  In fact, it appears that in March 2002 – a year before Dr Lam saw the applicant – the applicant was seen by Dr T.L. Poon from the Queen Mary Hospital.  Dr Poon looked at x-rays.  His notes at the time state :

“… conditions are likely to be congenital.  Usually will develop into chronic neck and back pain later in life.  Compatible to patient’s symptoms.”

Dr Poon went on to say that he recommended an extra blanket in bed and turpentine which would be applied to the outer body where the pain was felt.  The applicant accepts that he did receive an extra blanket and he did receive turpentine.

17. Collaterally, the applicant contends that the turpentine (and other later unctions) were useless as he could only apply them himself to his neck and upper shoulders.  There is a factual dispute in this regard.  The applicant’s contention has been disputed in two reports by a prison doctor in respect of appointments on 17 and 18 January 2004 in which, according to the prison doctor, it was observed that the applicant was able to apply the ointment to those regions of his back where the pain was manifest and that there was therefore no reason why other prisoners or prison staff should massage that medication into the affected areas, a request made by the applicant.

18. I note that Dr Poon, in his notes, does not speak of a possible cure; indeed he speaks of the conditions likely being congenital. 

19. In August 2003, the applicant was seen by Mr Yip, an orthopaedic specialist from the Queen Mary Hospital.  He is a defendant in one of the High Court actions instituted by the applicant to which I have referred.  Mr Yip saw the applicant on 27 August 2003.  This was just a month after Dr Lam had seen him.  I do not have the full details of Mr Yip’s report but there is a summary of it in the evidence.  It is to the following effect : 

“Alleged assaulted in 2000 by group staff.  Aggressive personality.  Claims multiple pain since assault.  PMHx:  no previous treatment needed for scoliosis, no allergic (sic).  PE:  looked comfortable, very muscular, full flexion reaches toes, squatting okay.  Lower limb; sensation (normal).  Jerks (normal).  Power (normal).  Patient very aggressive and threatening to make me a witness to his legal proceedings.  No specific abnormality detected.  No physiotherapy or chiropractic treatment indicated.”

In short, as I read that digest – and its accuracy has not been contested –

Mr Yip, a specialist in the area, specifically did not recommend physiotherapy, nor, of significance, did he recommend chiropractic treatment.

20. After this consultation, the applicant submitted a written complaint about Mr Yip.  He received the following reply from the Hospital Authority dated 8 October 2003.  I quote from the body of that letter :

“The diagnosis of scoliosis and fusion of spine are likely to be congenital origin and were not diagnosed during the recent orthopaedic consultation at Stanley Prison because both problems are likely to be congenital, therefore occasional discomfort will be expected.  Conservative treatment, e.g. analgesic balm and extra blanket were given during previous consultations to reduce symptoms.  In addition, detailed physical examination was performed during the last consultation on 27 August 2003.  No active orthopaedic problem nor abnormality other than the scoliosis was detected.”

The letter goes on to say : 

“Regarding communication, the concerned doctor has been advised to communicate more empathetically and should offer explanations when necessary.”

The letter concludes : 

“If the symptoms persist, please kindly consult the medical team at the Stanley Prison.” 

21. I have cited the letter because, as I understand it, the applicant contends that it is an admission of negligence on the part of Mr Yip and Mr Yip’s consultation results can therefore be ignored.  I do not read the letter as being the admission of any form of medical negligence.

22. So what we have, when looking at the history of this matter, is the following.  First, the consultation with Dr Poon; second, the consultation with the chiropractor, Dr Lam; and, third, with the orthopaedic specialist, Mr Yip.  In none of those consultations is it said that a cure can be achieved.  As I have said, Mr Yip has gone so far – and in this regard he contradicts Dr Lam – by saying that, in his view, no physiotherapy or chiropractic treatment is indicated.

23. In November 2004, a prison doctor, Dr Kwan, carried out an extensive examination and investigation of the applicant’s back complaint.  His notes conclude by saying : 

“After reviewing all the x-ray reports -

     1.  No major abnormality in lower back.

     2.  Problem in the spine [is a] congenital problem.

     3.  Physical examination revealed no neurological defect.”

It is apparent that Dr Kwan looked at a good number of x-rays, including x-rays taken in February and March 2000, and other x-rays in June 2002 and April and June 2004.  The later x-rays were of other parts of the body but may presumably have had some oblique relevance.  Dr Kwan also looked at a bone scan taken in May 2002.

24. Part of the applicant’s back problem has been mild scoliosis.  I have been referred by the applicant to a book which appears to be a layman’s guide to back problems.  The book, by Dr Alan Stoddard, says (at page 55) :

“If you have such a curved spine, try strengthening exercises for the spinal muscles to reduce the stress on the curves.  It is fair to tell you, however, that any reduction of the curvature is unlikely short of drastic surgery.  Even surgery should be avoided except in the most serious cases.  The psychological and physical damage from the surgery often outweighs the structural benefit.”

25. The applicant, in fairness, does not suggest that he should have surgery.  As I understand his case, it is to the effect that the authorities, other than giving him medication, pills, ointments and other unctions, should at least further investigate treatment by way of manipulation; that is, treatment by way of physiotherapy or treatment by way of chiropractic exercises.

26. On the evidence, it is apparent that the applicant has never, in a general sense, been denied medical care and attention.  He has sought medical help for skin problems and has seen a skin specialist on a number of occasions.  The evidence shows that he has also seen an ear, nose and throat specialist; that he has seen a visiting eye specialist and that he has seen a dentist as well as an orthopaedic specialist.  Nor can it be said that the prison authorities have refused any form of physiotherapy or chiropractic treatment.  The applicant suffered some sort of elbow or arm injury – again, he says as a result of an assault – and has been receiving physiotherapy for that complaint.

27. What therefore is the situation?  As I see it, none of the medical evidence indicates that – outside of radical surgery – the applicant can be fully cured.  The prison doctors, in light of specialist advice, are of the view that the applicant’s condition, at this time, is adequately dealt with by way of pills and external medication, ointments and the like.  The applicant, however, says that this is simply not sufficient.  He says that this treatment looks to alleviating symptoms only and is not going to the condition.  He also complains that the medicine he receives causes problems of its own; for example, gastrointestinal problems.

28. I have explained to the applicant that it is not for me to decide whether the treatment he is receiving is in fact the best treatment.  The Prison Rules – Rule 143 – under the Prison Ordinance, Cap.234, say :

“The medical officer shall

(a)   have the medical charge and shall be responsible for the treatment when sick of all the prisoners in a prison.”

29. The issue really, therefore, is put in this question:  has it been demonstrated that the medical officer (together with those officers who work under him) has acted unlawfully in discharging his responsibility to decide upon appropriate treatment for the applicant?  The following, in my view, is apparent : 

(i)	That the prison medical staff have called in consultants and these experts have had an opportunity to examine the applicant.
(ii)	The prison medical staff have followed the recommendations of the consultants as well as relying on their own investigations.
(iii)	Neither the consultants nor the medical staff at Stanley have thought it necessary – up to this time – to recommend physiotherapy or any chiropractic treatment.

30. What must be remembered is that the Prison Rules, which are subsidiary legislation, give the responsibility to the medical officer to decide upon the most appropriate treatment.  The treatment must be professional and adequate in all the circumstances.  It does not, however, have to be the kind of luxurious treatment – with costs no issue – which only a few highly affluent individuals can afford.

31. On the evidence there can be no suggestion that the prison authorities have done anything other than act professionally, as they see it.  There is no suggestion that they have acted in bad faith by misdiagnosing the applicant nor is there any suggestion that they have attempted to punish the applicant by denying him a treatment which medical opinion suggests should be given.

32. As for the applicant’s working conditions, he tells me that he is employed in the prison print shop and that he deals with book binding which, on his own admission, is not a particularly strenuous occupation.  He accepts that he is allowed to get up from his table when necessary, in order to flex and to generally alleviate any muscle stiffness.

33. Nor can it be said that the applicant’s condition is being ignored.  He has been given an appointment, apparently at the Queen Mary Hospital, in December of this year to be examined in respect of his low back pain and some right knee pain.  It is an orthopaedic appointment.

34. In all the circumstances, while I can feel sympathy for the discomfort that the applicant’s back condition must cause him, I am unable to conclude that there has been an unlawful failure to provide him with appropriate and/or adequate treatment.  This application is dismissed.

Rastafarian music

35. The background to this complaint is set out in my ruling of 28 February 2005.  I can do no better than recite the relevant passages :

“These complaints may be summarised as follows:  The applicant professes to be a member of the Rastafarian faith, a faith that originated in Jamaica.  Bob Marley, a pop singer who is now deceased but has a central place in pop history, is recognised as an icon of the Rastafarian faith.  His music and lyrics are considered to be an integral part of the faith.  The applicant says that he received three tapes containing music directly relevant to his religious beliefs.  He wished to play these tapes in his cell in order to meet his spiritual needs.  He says that the tapes were seized.  He explained that they were for religious purposes but his explanation was rejected.  He has complained that the rejection was, in all the circumstances, arbitrary and malicious and therefore unlawful. 

Section 23(1) of the prison rules says:  ‘No prisoner shall, without authority, have in his possession any article and any such article found in his possession shall be confiscated by the Superintendent.’  On the basis of the rule, it would appear, therefore, that authority is required before any article such as a cassette player or the tapes may be held by a prisoner.  The applicant complains, however, that this authority should not be withheld arbitrarily or irrationally.  He says that Muslims and Christians are allowed tape players and they are allowed to play religious music in their cells.  The removal of his tapes has therefore been discriminatory and constitutes an irrational and arbitrary rejection of his religious needs. 

No doubt the prison authorities are faced with a great many unusual situations.  No doubt too, many requests are tactical in the sense that they are disguised attempts to advance interests that, in a prison environment, are not legitimate.  Playing Bob Marley as a religious experience may have sounded strange indeed, but the Applicant was able to show me a number of books and magazines that he keeps and which concern the Rastafarian faith.  It seems he has studied it and, at this time, there is no reason to doubt his sincerity.  I am even told that he has been permitted to grow a beard to meet the dictates of his faith. 

In the circumstances, freedom of religion being a constitutionally protected right, I will grant leave.  The issue however, is purely and simply this, namely, whether, with other prisoners entitled to listen to religious music by way of cassette tape, the refusal by the prison authorities to allow the Applicant to listen to tapes which he says are part of the Rastafarian faith was an unlawful decision.  This, as I see it, raises three issues.  First, whether the tapes in question are objectively part of the Rastafarian religion; second, whether there is a practice of allowing tapes of a religious kind to be played in the cells; third, whether confiscation of these tapes has, without good cause, gone against that practice.”

36. Three issues arise and I shall look to each of them in turn.

37. The first issue is whether the tapes in question are objectively part of the Rastafarian religion.  I have looked through certain of the material shown to me today by the applicant.  In my judgment, certainly on the balance of probabilities, the evidence indicates that reggae music is integral as a means of expression to the Rastafarian faith.  The lyrics of reggae, as written by certain reggae artists, are considered to be words of wisdom within the Rastafarian faith, just as the psalms of King David are meant to be part of the wisdom of the Hebrew faith.  I mention this analogy because, as I understand it, Rastafarianism finds its ancient roots in the Hebrew faith.

38. The second issue is whether there is a permitted practice at Stanley Prison to allow religious music tapes in the cells.  Mr Kwok, counsel for the respondent, has said that authority must always be obtained for possession and use of articles such as cassette tapes.  Tapes, said Mr Kwok, are commercial items – especially musical tapes – and may be bought and sold among prisoners.  This can lead to disciplinary problems.  Tapes may also be used to pass coded messages and the like.  I accept fully that, in a prison environment, practically all items – certainly cassette tapes – must be subject to close control.

39. Mr Kwok has also pointed to the fact that, while the content of radio stations is not determined by the prisoners, tapes are recorded – or may be recorded – for specific tastes.

40. What must also be remembered is that in a prison environment religious music cassettes may be used for more than one purpose : for religious satisfaction, yes, but, if the music is popular and attractive, also for ordinary listening.

41. In respect of educational tapes, said Mr Kwok, the authorities tend to be lenient.  People studying for examinations may well need to study with the help of tapes.

42. However, with religious tapes, Mr Kwok said that generally they were not permitted.  This has been disputed by the applicant.

43. In his affirmation, Mr Kwan Yee-kwong, a Chief Officer of the Correctional Services Department, has said:

“The Applicant complained that it was unlawful and unfair to disallow him to play Rastafarian cassette tapes in his cell while other Muslims and Christian prisoners were allowed tape-players so that they could play religious music in their cells.  First of all, I would like to point out that to maintain good order and discipline, prisoners are not allowed to play music in their cells, irrespective of whether the music is religious or not.”

44. On the evidence as a whole, I suspect – and I put it no higher – that trusted prisoners who can show a genuine need are permitted to possess tapes of religious music.  There may be a number of compassionate reasons; for example, if a prisoner is ill and is looking for solace in religious music or if he is having a difficult time in coming to terms with his predicament.  But the fact remains that it does lie within the discretion of the prison authorities to allow individuals to possess tapes of religious music, that is not disputed.  It is a discretion, however, which can only be set aside if shown to have been exercised in some unlawful way; for example, in a way that goes further than differentiating and actively discriminates.

45. On the evidence, therefore, I do not accept the applicant’s contention that all types of religious music may be possessed by prisoners, almost without restriction.  In each case, it will be a matter for the authorised officer to exercise this discretion in light of the Prison Rules, standing orders and accepted general practice.

46. The third issue is whether, on the evidence, the seizure of the applicant’s tapes was unlawful.  In my judgment, the seizure cannot be called unlawful.  The background to the seizure is as follows.

47. The tapes, it appears, were originally handed in by a prison visitor.  The applicant says that he was getting replacement tapes.  By this I understand him to mean that the tapes were ones he already had but had been damaged by mildew and humidity and he therefore asked the prison visitor to get replacements for him.  However, when the replacements were checked, they were not approved.

48. The applicant protested that the tapes contained religious music.  In this regard, there is a note on file dated 25 June 2004 which reads :

“The prisoner alleged that the contents were music related to religion (his African religion).  But he was unable to provide any evidence or support to his claims.  In order to verify his version, effort has been made but no supportive information was available except on the internet.  In the website there was no evidence to support that these named albums were religion related.  They were commercial albums on sale only.”

49. The search on the internet appears to have been a search at ‘Amazon.com’, an internet purveyor of books, DVDs and the like.  It does not appear, at least on what is written here, that they went to the internet generally to look up the ‘Rastafarian religion’ or ‘Bob Marley’.  Be that as it may, the note then goes on to say :

“After due consideration, these three cassette tapes were not approved to hand in to the prisoner on the grounds that, (1) visitors were not encouraged to hand in cassette tapes as prisoners were not equipped with cassette players.  (2) Visitors might hand in other devotional and religious reading materials.  (3) In this case there was no supportive evidence to prove that the albums were religious in nature.  (4) Even if it could be proved, we were unable to further verify that the contents of the cassette tapes were the same recordings of the named albums.”

The notation then goes on to say – and this is important :

“However, prisoner was told that he might forward further justifications for reconsideration by the management and to provide more information to support that the contents of the cassette tapes were religious in nature.  Meanwhile, the said tapes had to be either placed into his property or to be handed back to the visitor who handed in the tapes.”

50. The prison authorities did not therefore close their minds to the matter.  They invited representations from the applicant.  They said that the tapes would have to be held in his property until they had received that extra information.  The notation then goes on to say :

“The prisoner was not satisfied with the decision and became agitated.  He refused to have the tapes put into his property.  That being the case, he was told that the management had no other alternative but to temporarily confiscate these tapes pending return to the visitor who had handed them in.”

51. It would appear therefore, on the evidence, that the prison authorities sought to hear further from the applicant.  The applicant, however, became agitated and no further rational and comprehensive information was advanced.  He refused to have the tapes held in his property and, as a result, they were returned to the prison visitor.

52. It seems to me that the prison authorities acted rationally and the applicant, through his own impulsive behaviour, brought the loss of the tapes about.  The burden lay on him to satisfy the authorities that he should be allowed to possess the tapes.  He did not discharge that burden.

53. This application must be dismissed.

The use of a CCTV recording in disciplinary proceedings

54. The nature of this complaint was also set out in my ruling of 28 February 2005 and I can do no better than recite the relevant portion of that ruling :

“These complaints, as I understand them, arise out of disciplinary proceedings instituted against the Applicant for assaulting another prisoner.  According to the Applicant, the matter was investigated by the police who said they would not prosecute him for assault.  In addition, the prisoner himself has withdrawn his complaint or materially modified it.  Despite this, however, the CSD, I am told by the Applicant, intend to proceed.  The Applicant has asked the CSD to look at the evidence of a CCTV recording which he believes would provide conclusive evidence that he is not guilty of any assault.  The Applicant complains that his request has been refused.  I take this to mean that the proceedings will continue against him without the use of the recording.  The Applicant has complained that this will offend natural justice. 

Mr Kwok has been unable to assist me in this particular matter.  I am not clear whether the proceedings are ongoing or have been concluded.  However, on the basis that they have been concluded and that a decision has been made not to have regard to the CCTV recording - even though it may provide the best evidence available - I am prepared to let the Applicant argue this ground of complaint at a substantive hearing.”

55. I am told that the disciplinary hearing in question commenced on 5 September 2002, concluding four days later.  The applicant was charged with assaulting another prisoner with a plastic stool, hitting him on the head.  The applicant was found guilty and sentenced to 21 days loss of remission together with forfeiture of privileges for seven days, separate confinement for seven days and a deprivation of earnings for 21 days.

56. The offence charged was a serious one, certainly in the confines of a prison where it is of critical importance to maintain discipline and to protect prisoners preying on each other.  The punishment that was imposed on the applicant was also a serious one.

57. From reading the transcript of proceedings, it is apparent that there was a conflict of evidence.  The prosecution had one version of events, assisted by the evidence of a prison officer.  The applicant denied that he had committed the assault and said, instead, that he was the victim of an assault.  He had a witness to support him, or partially support him.

58. The applicant gave evidence in his defence and, at the end, the following appears in the record of proceedings :

“Adjudicating Officer to Accused: Did you have any further witness to call?

Accused: No, sir.

Adjudicating Officer to Accused: Did you have anything to say to supplement your defence?

Accused: I wish to submit a representation to supplement my case.  It was a summary of my arguable grounds.  I requested not reading it out in the hearing.

Adjudicating Officer: I accept your representation and attach it in Appendix 1 to this case.”

59. On an ordinary reading, it is clear that that the applicant was being asked by the adjudicating officer, and properly so, whether there was anything else that he wished to say or advance in his defence.  The applicant put forward a written statement.  He asked for it not to be read out at the hearing.  That was a strange request and it would have been open to the adjudicating officer to say that he was not going to receive representations from one party to the proceedings unless they were known to the other party to the proceedings.  But, for whatever reason he thought best, the adjudicating officer agreed to accept what amounts to a secret representation.  That representation says the following (in the final paragraph) :

“Sir, in case you are still not satisfied with the evidence of both Baba A Ramsay [the alleged victim] and my witness [ES] and my evidence [statement] that I did not hit Baba A Ramsay on the head with a fibreglass stool, you may kindly take a look at the CCTV recordings of the incident.”

60. Again, on an ordinary reading, and bearing in mind that the applicant was not legally represented, it seems to me that the applicant was asking the adjudicating officer to have regard to a video-recording of the incident if the adjudicating officer was not otherwise satisfied that there should be an acquittal.  The adjudicating officer, however, said that he would not have regard to the videotape.  In his adjudication, having already accepted that there were conflicts in the evidence, he said the following :

“Regarding the mentioned CCTV tapes, it was not an exhibit of this case.  I was not prepared to refer to it when I was determining the case.”

61. The officer refused to consider it because the applicant had not made it an exhibit in the case.  But the applicant had asked for it to be made an exhibit and it was for the adjudicating officer to determine whether it should or should not be made an exhibit.  Put plainly, the applicant asked for certain evidence to be led, indeed, perhaps the best evidence, and without the matter being determined on the merits, it was simply denied him as if the request had never been made.

62. In that matter alone, I am satisfied that the disciplinary proceedings were vitiated by a material unfairness.

63. But the matter goes further.  I asked today whether anybody had looked at the CCTV tape.  If it showed nothing at all then there would not, in practice, have been a material unfairness.  It appears, however, that nobody has bothered to look at the tape.

64. But more than that, it now transpires that these CCTV tapes are viewed confidentially before disciplinary hearings.  Indeed, it is possible – perhaps probable – that the adjudicating officer in the present case had a look at the CCTV tape before the applicant’s proceedings began.  If that is the case, it means that the adjudicating officer has considered evidence, perhaps critical evidence, without informing the defence and giving the defence a chance to consider it too.

65. It has been submitted to me that I should adjourn this matter so that the tape can be viewed.  I see no reason to do so.  There has been more than adequate notice of this particular issue.  I gave my ruling as to leave several months ago.  Nobody has seen fit to look at the tape, nobody has seen fit to know whether the tape even exists.  That is indolence and this Court will not go along with it. 

66. I am satisfied that a remedy should be granted.  The proceedings are vitiated as being unlawful.  Any punishments imposed are quashed.  I am not prepared to make an order that the matter be remitted for a new hearing.  The circumstances do not warrant it.

Being returned to ‘normal association’

67. This challenge was raised in action number 84/2004, being one of two challenges raised in that set of proceedings.

68. In early July of this year, I determined the first of the two challenges.  But there was not enough time to deal with the second.  I therefore directed that the second challenge be heard together with the challenges in action number 140/2004.  For ease of reference, I include this second challenge in this judgment.

69. This second challenge concerns a decision made on 23 December 2002 to remove the applicant from the special section of Stanley Prison where he had been held and to return him to the normal prison population; that is, to return him to normal association.  When he sought leave, the applicant said that this decision was unlawful in that the authorities knew at the time they made the decision that returning the applicant into the general prison population would open him to a risk of harm, and that the decision was therefore either made in bad faith or, if not made in bad faith, nevertheless was perverse or constituted an abuse of power in that the authorities were aware of the existence of the risk but ignored it.

70. In late 2002, the applicant was removed from normal association.  In this regard, Rule68B(1) of the Prison Rules reads :

“Where the Superintendent has reasonable grounds for believing it is desirable for the maintenance of good order or discipline, or in the interests of a prisoner, that such prisoner should not associate with other prisoners either generally or for particular purposes, he may order the removal of such prisoner from association for a period of not more than 72 hours.”

71. Rule 68B(4) says the following :

“The Commissioner shall appoint for each prison a Board of Review, consisting of the Superintendent, the Medical Officer, and such other suitable officer as the Commissioner may select to keep under review the progress of all prisoners removed from association and to make recommendations to the Commissioner as to their suitability for further removal under paragraph 5 or 8, or to be returned to association.”

72. Rule 68B(5) simply says that if the Commissioner has reasonable grounds for believing that it is desirable that a prisoner should continue not to associate with other prisoners, then he may make an order to that effect for a period of one month at a time.

73. Rule 68B(8) says that if an order for further removal is to be made, the Commissioner must, before he does so, take into account any recommendation of the Board of Review, any recommendation by visiting Justices, and representations made by a prisoner.

74. Keeping a prisoner removed from association requires the Commissioner, therefore, to take into account a range of views.  But returning him to normal association does not require the same level of consultation and is a decision that may be made at Superintendent level.  Rule 68B(9) says :

“The Commissioner or the Superintendent may at any time arrange, at his discretion, for a prisoner to resume association, either generally or for particular purposes, and shall so arrange if the Medical Officer so advises on medical grounds.”

75. The applicant has complained that the Commissioner did not endorse the decision to return him to normal association made on 23 December 2002.  But Rule 68B(9) does not require him to do so.  It is a decision that can be made by a Superintendent if a medical officer agrees.

76. The applicant’s more substantive challenge to the decision, however, is based on what he has called an abuse of power.

77. The decision to return him to normal association having been made on 23 December 2002, the applicant was told that he was to proceed to a particular workshop.  The applicant refused to do so.  The applicant insisted that he was in danger if he went into that workshop.  The applicant was therefore removed from association again on the basis that he was failing to obey a lawful order.  The following day; that is, on 24 December 2002, the applicant requested to be removed from normal association and said that the reason was to avoid conflict with prisoners and with the staff and to avoid unwarranted staff victimisation.  In addition, he said his health condition made it important that he be removed from association. 

78. The refusal of the applicant to go into the workshop on 23 December resulted in disciplinary proceedings being taken against him, and he was convicted.  However, as I understand it, having been awarded a punishment of seven days loss of remission, on later appeal, the conviction was quashed and the punishment set aside on grounds which went to the ability of the applicant reasonably to work in the particular workshop site.

79. As to the decision itself to return the applicant to normal association, I have before me the evidence of Senior Superintendent, Mr Yeung Ping-wing, who was Superintendent (Administration) of Stanley Prison between August 1999 and May 2003.  He says that in early December 2002, an officer, Mr Tse Kwok-wai, was instructed to carry out an investigation as to whether the removal of the applicant from association in early December had been justified on the basis that he was in danger from other prisoners and whether, if there was a danger, that danger still persisted.  In paragraph 3, Mr Yeung said the following:

“Since 3 December 2002, Mr Tse has carried out various investigations including interviews with about 60 prisoners with other nationalities.  On 23 December 2003, Mr Tse reported to his direct supervisor, Principal Officer (Security) Wu Ying-ming, that apart from the Applicant’s conflict with prisoner Baba, there was no concrete evidence to support that any other nationality prisoners would do harm to him.  Further, prisoner Baba had already been transferred to another prison, namely, Tung Tau Correctional Institution, on 24 July 2002.  Mr Tse further told Mr Wu that he would compile the written report after the Christmas holidays.”

Mr Yeung then continued by saying (paragraph 4) : 

“Mr Wu then informed me of the matter.  Considering that the Christmas holidays were approaching and in the interests of the prisoner, a special Board of Review was convened on 23 December 2002.  Having considered that the personal safety of the Applicant was not at risk, and his physical health condition, the Board recommended the Applicant to resume normal association on that day.”

The affirmation of Mr Yeung continued (paragraph 5) :

“The written report of Mr Tse was eventually completed and submitted on 27 December 2002...it was concluded in the said report that there was no concrete evidence to support that any other prisoners with other nationalities would do harm on the Applicant.” 

80. As to the recommendation to return the applicant to normal association, this is a standard form which as been signed by five people.

81. One of the signatures is by Mr Wu Ying-ming who appears to have been an officer concerned with security.  His recommendation, dated 23 December 2002, says the following:  “Subject prisoner submitted a self-written statement requesting to be taken off from the Protection Unit.”  On the basis of that statement, one of the material reasons why the applicant was being returned to normal association is because he himself had requested that it happen.

82. The applicant has denied making such a request.  His ‘self-written statement’, he has said, cannot be read in such a manner.  The statement, dated 11 December 2002, says (in part) :

“I further wish to make it clear to the authorities concerned that I totally reject and refuse my protection under SO65-04(2) because of the conditions attached to it which amount to cruelty, mental and psychological, and systematic torture, and there is no justification whatsoever to subject me to the conditions set out under SO65-04(2).”  [my emphasis]

83. The applicant’s emotive complaint related to certain loss of privileges while removed from association.

84. The ‘self-written statement’ continues :

“Furthermore, I fear for my safety and that of others in normal association.  I therefore will not under any circumstances go back to normal association until I think and say otherwise about my safety and that of others.  With my refusal of SO65-04(2), I ask the management to report me for refusing to go back to normal association for fear of my safety and to report me for requesting some kind of protection.  Or they can offer me a more humane protection such as that under Prison Rule 6.8B.”

85. I fail to see how this statement could be read as a request to be returned to normal association.  What is said there is that under no circumstances will the applicant agree to be returned to normal association.  That is the direct opposite of a request.

86. In addition, it is accepted that Mr Tse had not yet completed his report and, as it turns out, that report did not say that the applicant was not in any danger.  To the contrary, that report went on to recommend that the applicant, in fact, not be returned to association.  It is important, I think, to look to the conclusion of Mr Tse’s report.  In paragraph 4.7, Mr Tse said the following:

“Apart from his conflict with prisoner Baba, there is no concrete evidence to support that any other other nationality prisoners would do harm to prisoner Hall, not to mention that prisoner Baba had already been transferred on 24 July 2002.”

Mr Tse continued :

“Upon checking prisoner Brian Hall, the investigator noted that prisoner Hall might have very poor interpersonal skills since his admission.  Though there is no concrete evidence to support that any other other nationality prisoner would do harm on prisoner Hall, unnecessary confrontation between prisoners could never be ruled out.  Upon his request, and in the interests of prisoner Brian Hall, removal from association under Prison Rule 68B and SO65-04(2) is still recommended.”

The recommendation at the conclusion of the report was therefore as follows :

“	1.	Upon his own request and in the interests of prisoner Hall, removal from association under Prison Rule 68B and Standing Order 65-04(2) is recommended.
	2.	Prisoner Hall might encounter the problem of poor interpersonal relationship with his fellow prisoners, it is necessary to refer his case to the clinical psychologist for in-depth counselling.”

87. Mr Kwok has said that Mr Tse’s report made it clear that there was no ‘concrete’ evidence to support the apprehension that prisoners were going to do the applicant harm.  That is true.  But, on an ordinary reading of that report, it seems to me that Mr Tse was saying that some form of confrontation could not be ruled out.  A removal from association under Prison Rule 68B – the Rule to which Mr Tse referred – can only be for limited reasons.  First, for the preservation of good order or discipline; second, in the interests of a prisoner.  Mr Tse did not say that the removal of Mr Hall should be in the interests of good order and discipline.  He was to remain removed for this own good; in short, for his own protection.

88. Mr Kwok has said that the Committee of Review, in ordering the applicant back into the normal prison population, faced a real difficulty.  The applicant was complaining that the loss of privileges while removed from association were intolerable but at the same time was saying that he would not be removed from association.  As Mr Kwok put it, if the applicant was not prepared to accept the regime with its limitations what other option was there but to return him? 

89. The problem, of course, is that the recommendation, on its face, does not say anything about a quandary.  The recommendation says that the applicant has requested to be returned to normal association.  Quite clearly, as Mr Kwok admitted, he had not.  In addition to which it is necessary to take into account – at least to some degree – that when this recommendation was made, Mr Tse was completing a report which would recommend that the applicant still remain removed from association.  Quite why, the report having been especially commissioned, the Committee of Review was not prepared to wait for it is puzzling.

90. At the end of the day, while no bad faith has been shown, the decision to return the applicant to normal association was clearly an unreasonable decision, based on a failure properly to comprehend relevant material and a failure to wait for a report which would provide the decision-makers with in-depth information and advice.

91. There will therefore be a declaration to the effect that it was an unlawful decision.  I see no need for any other form of relief.

Matters sill outstanding

92. As I understand it, in respect of both sets of proceedings brought by the applicant (84/2004 and 140/2004), there remains only one substantive challenge which remains to be determined.  It is in 140/2004 and is listed in my ruling of 28 February 2005 as complaint 28.  Complaint 36 was withdrawn by the applicant.

93. There may, of course, be further submissions by the applicant as to consequential remedies that he thinks should flow from the matters already determined by me.

94. These outstanding matters will have to be dealt at a future hearing.