THE SECRETARY FOR JUSTICE v. BRIAN ALFRED HALL

HCMP1201/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

Miscellaneous proceedings NO.1201 OF 2008

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JUDGMENT  (No. 2)

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1. The applicant Mr Hall has been adjudged as a vexatious litigant and he is also under a Restricted Proceedings Order imposed by me.  Thereafter he has made several applications for leave to issue a number of actions.  The respondent was requested to respond to these applications in writing.  I shall now consider each one of them hereinbelow. 

Application dated 12 September 2008

1^st issue :    Transfer to psychiatric centre and administration of sedative drugs

2. Mr Hall contended that the Correctional Services “Department” has unlawfully transferred him to Siu Lam Psychiatric Centre for assessment by either the Behaviour Adjustment Unit (“BAU”) or the Acute (Disturbed) Observation Unit without his informed consent.  Further the Department has unlawfully administered sedative injection without his informed consent. 

3. The BAU at the Psychiatric Centre handles problematic prisoners whose behaviour poses constant disruption to the institutional management.  Cases would be referred to a medical officer and a clinical psychologist for assessment.  Mr Hall was transferred to the BAU with the approval of the headquarters of the Department.  He was diagnosed to have suffered from Dissocial Personality Disorder. 

4. Sedative injections were administered to Mr Hall as a result of his violent behaviour upon advice of a medical officer on each occasion.  Each injection would be recorded. 

5. The commissioner of the Department has the power to confine prisoners in such prisons as he may direct and may on similar direction be removed therefrom during the term of his imprisonment to any other prison under section 7(2) of the Prisons Ordinance.  The commissioner can also order a prisoner to be taken to a Government hospital or any other suitable place for treatment under section 11 of the said Ordinance.  Thus there is no question of any unlawful transfer of Mr Hall suffering from psychiatric illness to the Psychiatric Centre without the prisoner’s informed consent. 

6. In any event three of the four occasions between April 1999 and August 2008 were more than three months by the time of Mr Hall’s application.  There is no reason why he should be allowed to make such challenges out of time. 

7. In any event quite apart from the unexplained delay, Mr Hall’s application is not reasonably arguable.  Thus his application for leave to apply for judicial review is refused. 

2^nd issue :    Fail to allow him rest because of his orthopaedic illness

8. Mr Hall has been assigned to perform envelope-making work for six hours a day making 50 envelopes as recommended by the Labour Allocation Board but he has never performed that task at all.  However under SCTC26788/2008, he has instituted a claim in the Small Claims Tribunal alleging that he was unable to perform the envelope-making work because of the orthopaedic problem.  It is therefore an abuse of process of the court if he is allowed to make an application for judicial review on the same issue. 

9. Further it would not be appropriate to grant him leave to judicial review when there is an available alternative judicial remedy.  His application herein is therefore also refused. 

3^rd issue:     Deportation order

10. Mr Hall is applying for judicial review of an “order” not to order to send him back to Nigeria after release from prison.  However as a matter of fact no deportation order has ever been made against Mr Hall.  He at present is serving a sentence of 18 years for the offence of trafficking in dangerous drugs since 23 June 1998.  The earliest date of his discharge will be 4 January 2011.  His application is therefore premature and misconceived. 

11. In any event any prisoner against whom the relevant authority is minded to make a deportation order will be given an opportunity to make representations.  This policy and practice will be followed before any deportation order is made against Mr Hall.  

12. Thus his application is also refused. 

Application dated 7 October 2008

13. Mr Hall applied to claim in the Small Claims Tribunal against the Department for damages as a result of their failure to arrange him for a second shower each day since 3 October 2008.  He said that he has been advised by skin specialist to take shower twice a day since 2004.  

14. In fact Mr Hall consulted the visiting skin specialist on 16 October 2008 during which he was advised to have shower only once a day on the ground that two showers a day might even worsen his skin condition.  There is therefore no basis for Mr Hall’s application. 

15. In any event the Department has the discretion in this matter after considering all relevant circumstances.  In fact Mr Hall had in the past instituted an action in the Small Claims Tribunal on 13 April 2004 under SCTC25829/2004 for damages for not allowing him to have additional shower.  This case was adjourned sine die on 9 May 2008 and has not been restored since then.  Therefore the present application for leave is an abuse of process after three years when he has failed to proceed with the former proceedings. 

16. This application is therefore also refused. 

APPLICATION DATED 9 OCTOBER 2008

17. Mr Hall intended to apply in the Small Claims Tribunal against the officer of the Department for removing his pillow and bed sheet from his Special Unit for mere administrative reason on 9 October 2008.  

18. According to the Department, all prisoners located in the Special Unit in Shek Pik Prison are required to hand out their blankets and pillow after the routine searching in the morning.  The beddings will be returned to the prisoners in the evening.  There has been no medical advice that Mr Hall should be given the blankets and pillow to serve as a cushion to relieve his pain.  There is no provision to require the Department to provide bedding facilities to prisoners in the day time.  The intended action is again frivolous and therefore refused.

APPLICATION DATED 23 OCTOBER 2008

19. Mr Hall intended to sue against a public prosecutor, William Siu, in criminal case ESCC2175/2007 where Mr Hall is a defendant.  He contended that the direction given by Ms Merinda Chow, magistrate, on 5 September 2008 was that he was allowed to wear his own athletic shoes when he is required to attend any courts.  However according to Mr Hall, Mr Siu has wrongfully informed the Department that the direction was restricted to Ms Chow’s court only.  

20. However it is a matter of law that a prosecutor owes no duty of care to those he prosecutes.  It was decided in the case of Elguzouli-Daf v. Commissioner of Metropolis [1995] QB 335 in which Steyn LJ stated at p. 349 that :

“… the interests of the whole community are better served by not imposing a duty of care on the CPS [i.e. the Crown Prosecution Service].  In my view, such a duty of care would tend to have an inhibiting effect on the discharge by the CPS of its central functions of prosecuting crime.”

21. Accordingly Mr Hall has no cause of action at all in intended action against the prosecutor. 

22. This application is again refused. 

APPLICATION DATED 15 JANUARY 2009 — INTENDED APPLICATION AGAINST PRISON OFFICERS FOR ASSAULT AND MISTREAT

23. Before handing down this judgment, Mr Hall made another application on 15 January 2009.  From a long description of incidents happened on 14 January 2009, it was not disclosed that Mr Hall was assaulted at all.  His claims for exemplary, culminative and aggravated damages of $50,000 is again frivolous and abuse of process of the court.  This application is also refused.

FURTHER ORDER

24. From the aforesaid consideration of all Mr Hall’s applications which were refused, it is quite clear that Mr Hall is more than a vexatious litigant.  After a RPO was made against him he has been making applications after applications.  No order of cost against him would be effective to stop him from such a behaviour. 

25. I therefore have to follow the practice of the Hon Mr Justice Lam in that an applicant under a RPO should also be restricted in making an application for leave and His Lordship has restricted a litigant from making any application to once every three months. 

26. Accordingly I hereby make a further order that Mr Hall is restricted to make an application for any action only once every three months and his other applications within the same period of time would not be entertained by this court at all.  In effect, Mr Hall is not allowed to make any other application until 1 April 2009 and thereafter, he can only make one application every three months. 

27. Mr Hall has wasted a lot of his own time in making applications after applications.  If he has devoted his time and effort in studying, he could have finished a Master degree already.  I hope in future, he will constructively use his own time for the rest of his stay in prison.