WONG TAK WAI v. COMMISSIONER OF CORRECTIONAL SERVICES

HCAL 64/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 64 OF 2008

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J U D G M E N T

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1.  The Applicant is applying for judicial review pursuant to leave granted out of time against 5 decisions and punishment for offences against prison discipline by the Superintendents of Correctional Services under r. 61 of the Prison Rules (Cap. 234A) (“PR”), as confirmed on appeal by the Commissioner of Correctional Services.

Background

2.  Prisoners serving a sentence of more than 1 month may be granted remission of sentence on the ground of industry and good conduct.  Subject to forfeiture of remission upon breach of discipline in prison, the remission is 1/3 of the sentence.  The prisoners are notified of the relevant earliest discharge date upon intake.

3.  Prisoners adjudicated to have committed prison disciplinary offences may have their remission forfeited (of up to 1 month by a Superintendent and 3 months by the Commissioner).

4.  The Applicant is an inmate of Stanley Prison.  He was found to have committed offences against prison discipline in 5 cases and punished by forfeiture of remission of sentence.

5.  The 5 cases are as follows:

(1)  Case No. 288/2007 (“Case 1”)

Charge: possession of unauthorized articles (12 pills of pain killers and gastrointestinal drugs, 3 handwritten notes and 1 piece of chalk) contrary to r. 61(k)(i), PR

Convicted: 30 May 2007

Punishment: forfeiture of remission of 21 days and deprivation of earning of 21 days

Appeal dismissed: 22 June 2007

(2)  Case No. 469/2007 (“Case 2”)

Charge: possession of unauthorized articles (7½ pills of pain killers and gastrointestinal drugs and 1 tube of glue) contrary to r. 61(k)(i), PR

Convicted: 31 August 2007

Punishment: forfeiture of remission of 21 days and deprivation of earning of 21 days

Notification of appeal rejected as being out of time

(3)  Case No. 505/2007 (“Case 3”)

Charge: possession of unauthorized articles (8 pills of pain killers and gastrointestinal drugs and 1 piece of metal from a battery cell) contrary to r. 61(k)(i) PR

Convicted on 18 September 2007

Punishment: forfeiture of remission of 21 days and deprivation of earning of 21 days

Appeal dismissed: 10 October 2007

(4)  Case No. 669/2007 (“Case 4”)

Charge: possession of unauthorized articles (41 packets of cigarettes, 1 vial of correction fluid and 2 pieces of paper) contrary to r. 61(k)(i) PR

Convicted: 31 December 2007

Punishment: forfeiture of remission of 28 days

Appeal dismissed: 10 January 2008

(5)  Case No. 469/2007 (“Case 5”)

Charge: Use of abusive language contrary to r. 61(d), PR

Convicted: 30 January 2008

Punishment: forfeiture of remission of 7 days

Appeal dismissed: 6 February 2008

Legal framework

6.  The statutory regime for offences against prison discipline is set out in rr. 57 to 66 in Part I (3)(i) of PR.

7.  R. 57 of PR provides that:

“Power of Superintendent to deal with reports against prisoners

The Superintendent or in his absence, the officer appointed to act for him and no other, shall deal with a report made against a prisoner.”

8.  “Superintendent” is defined under s. 2 of the Prison Ordinance (Cap. 234) (“PO”) which means:

“a senior officer of the Correctional Services Department holding the rank of superintendent.”

9.  R. 60 of PR provides that:

“Duty to report immediately offences against prison discipline

Every offence against prison discipline shall be reported immediately and it shall be the duty of the Superintendent to investigate such reports not later than the following day, unless that day is a general holiday.”

10.  R. 61 provides for the relevant offences against prison discipline:

“Every prisoner shall be guilty of an offence against prison discipline if he- …

(d)  uses threatening, abusive or insulting words or behaves in a manner that expresses a threat, abuse or an insult; …

(k)  has in his possession-

(i) any article that he is not authorized to have; or

(ii) a greater quantity of any article than that he is authorized to have;  …”

11.  R. 62 of PR provides that:

“Power of Superintendent as to offences against prison discipline

The Superintendent may interrogate any person touching any alleged offence against prison discipline and determine thereupon and punish the offender.”

12.  R. 63 of PR deals with sentence and appeal:

“Punishment which may be imposed by the Superintendent

(1)  The Superintendent may order a prisoner, who commits any of the offences enumerated in rule 61, to be punished by any one or more of the following punishments-

(a) issuing a caution;

(b) separate confinement for any period not exceeding 28 days;

(c)  forfeiture of remission not exceeding 1 month but if the Superintendent considers that his power of punishment is insufficient, he shall refer the case to the Commissioner who may order forfeiture of remission not exceeding 3 months;

(d) forfeiture of privileges for a period not exceeding 3 months;

(e) deprivation of earnings or part thereof,

(f) deduction from earnings of the cost of any Government property lost by the prisoner, or damaged or destroyed without reasonable excuse by the prisoner.

(2)  Any prisoner who considers himself aggrieved by any order made by the Superintendent under this rule may, within 48 hours after the issue of such order, notify the Superintendent that he wishes to appeal to the Commissioner against such order, and the Superintendent shall forthwith notify the Commissioner accordingly and shall stay execution of the order pending the hearing of the appeal.”

13.  R. 69 of Part I (4) of PR deals with remission of sentence:

“Remission of sentence

(1)     A prisoner serving a sentence of imprisonment for an actual term of more than 1 month may, on the ground of his industry and good conduct, be granted remission in accordance with the provisions of this rule: Provided that this rule shall not permit the reduction of the actual term to less than 31 days.

(2)     The remission granted under this rule shall not exceed one-third of the total of the actual term and any period spent in custody taken into account under section 67A of the Criminal Procedure Ordinance (Cap. 221) (which relates to the computation of a sentence of imprisonment).

(3)     For the purposes of this rule-

(a)    a person committed to prison in default of payment of a sum adjudged to be paid by a conviction shall be treated as serving a sentence of imprisonment; and

(b)    consecutive terms of imprisonment shall be treated as one term.

(4)     This rule shall have effect subject to any disciplinary award or forfeiture of remission, and shall not apply to a prisoner serving a sentence of imprisonment for life.

(4A)    This rule shall not apply in the case of a sentence of imprisonment passed before 12 August 1983, and in any such case revoked rule 69 shall apply.

(4B)  No remission shall be granted in respect of a prisoner to whom the Post-Release Supervision of Prisoners Ordinance (Cap. 475) applies unless the Commissioner has been informed pursuant to section 7(3) of that Ordinance that no supervision order under that Ordinance is to be made in respect of that prisoner.

(5)    In this rule-

(a)    “actual term” means the term of a sentence of imprisonment as reduced by section 67A of the Criminal Procedure Ordinance (Cap 221);

(b)    “revoked rule 69” means the rule 69 of these rules that was deleted by the Criminal Procedure (Amendment) Ordinance 1983 (46 of 1983).”

Grounds for judicial review

14.  The grounds relied on by the Applicant are as follows:

(1)  Absence of independent and impartial tribunal (Cases 1 to 5);

(2)  Procedural unfairness in the absence of video/audio recording of the hearing (Cases 1 to 5);

(3)  Erroneous standard of proof on the balance of probabilities (Cases 2 to 5);

(4)  Failure to interrogate a witness identified by the Applicant who refused to testify at the hearing (Case 1);

(5)  Irrational sentence for possession of drugs for illegal purpose when all the evidence amounted only to simple possession (Cases 2 and 3).

15.  The ground against the rejection of the notification of appeal out of time in Case 2 was abandoned.

16.  The Applicant took out a summons to file the expert evidence of Dr Marcel Koo on the likely effect of the drugs seized in Cases 2 and 3.  The Respondent opposed on ground of irrelevance.  The evidence was admitted de bene esse.  There is an issue of costs of the application.

Independent and impartial tribunal

17.  Under r. 57 of PR, reports against prison discipline shall be dealt with by a Superintendent.  In practice, the reports are dealt with by the head of the particular institution, who is at the rank of Superintendent or Senior Superintendent.  In case of conflict by reason of prior administrative involvement, or apparent bias such as acquaintance with the reporting officer (i.e. witness), a Superintendent from another institution will be arranged to deal with the case.

18.  Mr Kwok, for the Applicant, recognized that under r. 57 of PR, reports against prison discipline shall be dealt with by a Superintendent and no other person.  He is not challenging the constitutionality of r. 57, nor contending that the hearing should be conducted in public. 

19.  Mr Kwok did not go for a structurally independent tribunal of visitors to prison (such as Justices of the Peace).  His case is that the reports should be heard by an independent Superintendent from another penal institution not concerned with the administration of the prison nor supervision of the reporting officer in question.

20.  Mr Kwok based his case on the right to a fair hearing by an independent and impartial tribunal under Art. 10 of the Hong Kong Bill of Rights (“HKBOR”) (i.e. Art. 14 of the International Covenant on Civil and Political Rights (“ICCPR”)).  Alternatively, the case is based on the avoidance of apparent bias by the tribunal under the common law. 

21.  Mr Kwok submitted the right to a fair hearing under Art. 10 is applicable to offences against prison discipline with forfeiture of remission.

22.  Art. 10 of HKBOR provides that:

“Equality before courts and right to fair and public hearing

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law…”

23.  In Campell & Fell v United Kingdon (1985) 7 EHRR 165, the European Court of Human Rights at Strasbourg considered Art. 6 of the European Convention on Human Rights (equivalent to Art. 10, HKBOR) in the prison context and stated (at para. 69) that:

“[The Court] is well aware that in the prison context there are practical reasons and reasons of policy for establishing a special disciplinary regime, for example security considerations and the interests of public order, the need to deal with misconduct by inmates as expeditiously as possible, the availability of tailor-made sanctions which may not be at the disposal of the ordinary courts and the desire of the prison authorities to retain ultimate responsibility for discipline within their establishments.  However, the guarantee of a fair hearing, which is the aim of Art. 6, is one of the fundamental principles of any democratic society, within the meaning of the Convention… As the Golder judgment shows, justice cannot stop at the prison gate and there is, in appropriate cases, no warrant for depriving inmates of the safeguards of Art. 6.”

24.  In Ezeh & Connors v UK (2002) 35 EHRR 28, the European Court held that the determination of prison disciplinary proceedings by a governor resulting in an punishment of up to additional imprisonment of 42 days amounted to determination of a “criminal charge” and was within Art. 6 of the European Convention.   

25.  In Young v UK (2007) 45 EHRR 29, the applicant was convicted by for disobeying lawful order and was ordered to serve 3 additional days.  The European Court held that the proceedings amounted to a “criminal charge” within Art. 6.  The court stated (at paras. 35-39) that:

“The offence at issue in the present case (failure to obey lawful order) was, in the Court’s view, disciplinary in law and in nature.  It was one of the listed prison disciplinary offences which could only be prosecuted by the prison services.  Its aim was to maintain discipline within the prison and there was no apparent civilian criminal equivalent.

However, the Engel criteria being alternative and not necessarily cumulative, the ‘criminal’ nature of the relevant ‘offence’ could, in principle, be determined solely on the basis of the nature and severity of the sanction.

It was not disputed, and the Court has already found, that the additional days’ detention awarded amounted to a deprivation of liberty.  Since a deprivation of liberty was liable to be and was actually imposed on the applicant, there was a presumption that the charge against her was “criminal”, a presumption which could be rebutted entirely exceptionally and only if her deprivation of liberty could not be considered ‘appreciably detrimental’ given its nature, duration or manner of execution. …

The Court considers that the deprivation of liberty which was liable to be 42 days, and which actually was three days, imposed on the applicant cannot be regarded as sufficiently unimportant or inconsequential as to displace the presumption as to the criminal nature of the charge against her.

It finds that the applicant was charged with a ‘criminal charge’ within the meaning of Art. 6 which provision applies therefore to her complaints.”

and held (at para. 43) that:

“The Court has already found in the case of Whitfield v UK that, since governors were answerable to the Home Office, drafted and laid the charges against the applicants, investigated and prosecuted those charges and determined the applicants’ guilt or innocence together with their sentences, it could not be said that there was any structural independence between those charge with the roles of prosecution and adjudication. The Court found therefore in the Whitfield case that those applicants’ doubts about the independence and impartiality of their adjudications were objectively justified, that their adjudications were consequently unfair and that there had been therefore a violation of Art. 6(1).”

26.  Reference has been made to HM Prison Service in England and Wales where the system of Independent Adjudicators was introduced following the decisions of the European Court. 

27.  Prisoners in England sentenced to not more than 12 months shall serve a minimum of half the term before early release, whereas those sentenced to between 12 months and not more than 4 years shall serve half of the sentence before early release on licence (subject to recall), and those sentenced to 4 years or more shall serve 2/3 before early release on licence.  Additional days of imprisonment may be imposed for breach of discipline, postponing the earliest date of release. 

28.  There is a two-tier system for the adjudication of prison disciplinary offences in England.  The Governor in charge of a prison or the Director (in a contract-out establishment) may deal with cases and impose punishment not involving additional days (such forfeiture of privileges or stoppage of earnings, etc.), whereas only the Independent Adjudicators who are District Judges (or Deputy District Judges) may impose punishment of additional days.

29.  Submissions on both the Hong Kong and English systems focused on the earliest discharge date without researched reference to release on licence and recall in either jurisdiction.

30.  In Lam Siu Po v Commissioner of Police FACV 9/2008 (6 March 2009), the Court of Final Appeal held that police disciplinary proceedings are determinations of rights and obligations in suits at law within the meaning of Art. 10 of HKBOR, such that the Article applies to such disciplinary proceedings. 

31.  A fortiori, it was submitted that Art. 10 should apply to prison disciplinary proceedings.

32.  Mr Kwok submitted that when the adjudicating Superintendent and reporting officer are from the same prison, and the former has the duty of supervising the later, there is the possibility that in marginal cases the superior is more inclined to believe or protect his subordinates.  Further, it gives the impression of “all in the same family”.

33.  Reference has been made to AWG Group Ltd v Morrison [2006] 1 WLR 1164, the English Court of Appeal held that a judge ought to have recused from the proceedings for reason of apparent bias when he had known a witness for a long time even though the evidence was to be given by some other witnesses.

34.  Alternatively, the case was grounded on apparent bias.

35.  In R (Al-Hasan) v Secretary for the Home Department [2005] 1 WLR 688; [2005] UKHL 13, the prisoners were disciplined for failing to obey lawful orders, and they challenged the lawfulness of the orders.  The adjudicating governor was present when the orders were given.  The House of Lords stated the common law test on fairness as whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility of bias. 

36.  Lord Brown of Eaton-under-Heywood referred to Picola v Luxumbourg (1995) 22 EHRR 193 and stated (at p. 701B) that the critical question was how would a fair-minded observer regard the adjudications?  The test for bias was would he doubt, however slight its justification, about the adjudicator’s impartiality by reason of his prior participation in the decision making process. 

37.  The House of Lords accepted for policy reasons that prison disciplinary cases could be dealt with by governors of prison.  Nevertheless, when it gave an appearance of bias, consent should be sought or another governor be brought in to decide the case. 

38.  In Deacons v White & Case LLP & ors (2003) 6 HKCFAR 322; [2004] 1 HKLRD 291, the Court of Final Appeal also stated that the test for recusal by a tribunal is the reasonable apprehension of bias test.

39.  In any case, Mr Kwok submitted that the standards relating to bias under the common law and those under Art. 6 of the European Convention are the same (see de Smith’s Judicial Review (6th Ed., 2007) at para. 10-083).

40.  Mr Law, for the Respondent, submitted that Art. 10 does not apply to prison disciplinary hearings in Hong Kong.  Alternatively, s. 9 of the Hong Kong Bill of Rights Ordinance (Cap. 383) (“HKBORO”) provides an exception for persons in penal establishment.  And even if Art. 10 is engaged, there is no unfairness in viewing the disciplinary process as a whole including the remedy of judicial review on the appeal decision of the Commissioner from the Superintendent.

41.  Mr Law referred to Secretary of State for the Home Department v MB (FC) [2008] 1 AC 440 where the House of Lord held that residential confinement for suspected terrorists for 14 hours with further restriction on movements and use of computer was protective and not penal in nature, and hence, not a “criminal charge” for the purpose of Art. 6 of the European Convention.

42.  In the article “Regulators, Human Rights and Judicial Review” by Lord Pannick QC given at the conference “Effective Judicial Review: Cornerstone for Good Governance” in December 2008, it set out sanctions which are regulatory or disciplinary in nature concerning a limited class of persons, or serving protective or compensatory rather than penal function are classified as civil matters rather than “criminal charge” by the European Court of Human Rights or the English appellate courts: payment of fine for impounded aircraft because of hidden cannabis (Air Canada v UK (1995) 20 EHRR 150); solicitors’ disciplinary tribunal (Irving Brown v UK (1998) 28 EHRR CD 23); director’s disqualification order as protection of the public (DC, HS & AD v UK [2000] BCC 710 (ECHR)); sex offender order requiring an offender to register his current address (B v Chief Constable of Avon & Somerset Constabulary [2001] 1 WLR 340 (Div Ct)); heavy surcharge on councillors for sums improperly spent as compensatory and regulatory and not punitive (Porter v Magill [2002] 2 AC 357); revocation of parole licence on breach of its terms (R (Smith & West) v Parole Board [2005] 1 WLR 350 (HL)).

43.  Following the same approach, it was submitted that prison disciplinary offences covering a wide range of conduct such as abusive language, possession of cigarettes, paper, chalk, glue, and medication, with sanctions ranging from caution to forfeiture of remission which are regulatory rather than punitive in nature designed for the management and order of prisons.

44.  Mr Law sought to draw a distinction between the system of “additional days” in England and “forfeiture of remission” in Hong Kong.  He submitted that in Hong Kong, remission is an award for the prisoner’s “industry and good conduct” under r. 69(1) of PR.  It is a privilege and not a right.  The prisoner was sentenced by the court to serve the full term, and forfeiture of remission is not deprivation of liberty.  Hence, the English and European jurisprudence on prison discipline are not directly applicable.

45.  Alternatively, under s.9 of Part III of HKBORO:

“                                                                                          PART III

         EXCEPTIONS AND SAVINGS

Armed forces and persons detained in penal establishments

9.   Members of and persons serving with the armed forces of the government responsible for the foreign affairs of Hong Kong and persons lawfully detained in penal establishments of whatever character are subject to such restrictions as may from time to time be authorized by law for the preservation of service and custodial discipline.”

46.  Mr Law submitted that hearing by the Superintendent was prescribed by law, and hence, an exception recognized by s. 9 of HKBORO.

47.  Further, Mr Law pointed out that whilst the Court of Final Appeal held in Lam Siu Po that Art. 10 is engaged in police disciplinary proceedings, there is no objection in principle to officers within the force conducting the hearing without outside elements when the whole process is subject to control by a court of full jurisdiction.

48.  In Lam Siu Po, Ribeiro PJ cited (ibid at para. 114) the dictum of Lord Millet in Runa Begum v Tower Hamlets LBC [2003] 2 AC 295, 349 (para. 152) that:

“Where an administrative decision is determinative of the claimant’s civil rights, including his or her right to social security benefits or welfare assistance, the Strasbourg court has accepted that it may properly be made by a tribunal which is not itself possessed of the necessary independence, provided that measures to safeguard the impartiality of the tribunal and the fairness of its procedures are in place and its decisions are subject to ultimate judicial control by a court with ‘full jurisdiction.’ ”

and stated (at para. 116) that:

“The position is therefore that Art. 10 can be given effect without demanding radical changes to the administrative system provided that the process of determining a person’s rights and obligations beginning with the administrative process is subject to control by ‘a court of full jurisdiction’.”

49.  Mr Law submitted the High Court in exercising the judicial review jurisdiction is a court of full jurisdiction.  It assumes the role of the independent tribunal and gives the individual concerned the public hearing.  Viewing the process as a whole, there is compliance with Art. 10.

50.  Mr Law submitted that a Superintendent is a senior officer within the Correctional Services Department.  The law prescribed hearing by a Superintendent in order to instil public confidence in the system.  In any case, short of independent adjudicators, the line between the head of institution Superintendent and the outside Superintendent may be illusory by reason of prior acquaintance from different postings from time to time.

51.  Further, r. 60 of PR provides that the Superintendent shall investigate into the report with 24 hours (unless there is a supervening public holiday).  And r. 79 of PR provides that the Superintendent has the duty to supervise matters concerned with the prison.  Hence, the head of institution Superintendent is the prescribed or most suitable person to deal with reports against discipline.

52.  Mr Law pointed out that there are 23 penal institutions (including prisons and detention centres, etc.) in Hong Kong.  There are about 5,000 reports against discipline each year.  There are 49 officers of the rank of Superintendent and above, and 27 of them are posted as head or deputy head of penal institutions.  The arrangement of hearing by a Superintendent from another institution will have disproportionate resource implication.

53.  As mentioned, prison disciplinary offences cover a wide range of conduct, and the punishment may or may not involve the forfeiture of remission.  As all the 5 cases involved the punishment of forfeiture of remission and the submissions revolved around this factor, I shall confine my discussion to proceedings involving punishment by forfeiture of remission only.

54.  In O’Reilly v Mackman [1983] 2 AC 237, 275F–276F, Lord Diplock stated the common law principle of a fair hearing in the prison disciplinary proceedings:

“The power of boards of visitors of a prison to make disciplinary award is conferred upon them by subordinate legislation: the Prison Rules 1964…  But the requirement that a person who is charged with having done something which, if proved to the satisfaction of a statutory tribunal, has consequences that will, or may, affect him adversely, should be given a fair opportunity of hearing what is alleged against him and of presenting his own case, is so fundamental to any civilized legal system that it is to be presumed that Parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement…

…, there is no express provision in the Prison Rules that members of the board who inquire into a disciplinary offence … must be free from personal bias against the prisoner.  It is another fundamental rule of natural justice or fairness, too obvious to call for express statement of it, that a tribunal exercising functions such as those exercised by the board … should be constituted of persons who entered upon the inquiry without any pre-conceived personal bias against the prisoner.  Failure to comply with this implied requirement would likewise render the decision of the tribunal a nullity…”

55.  In Lam Siu Po, Ribeiro PJ said that Art. 10 of HKBOR gives effect to the rule of law (para. 67), and Bokhary PJ said that the words “determination of … rights and obligations in a suit at law” call for a generous interpretation (para. 24).  Hence, the same principle of rule of law should apply in considering proceedings having implication on the liberty of the person.

56.  Bearing in mind such principle, I shall consider Mr Kwok’s grounds under Art. 10 and also the common law.

57.  In Lam Siu Po, Ribeiro PJ stated that a specific charge brought before a disciplinary tribunal may or may not attract Art. 10 protection depending on whether it involves determination of a criminal charge or the individual’s civil rights and obligations (para. 92).  

58.  In Koon Wing Yee v Insider Dealing Tribunal [2008] 2 HKLRD 372, the Court of Final Appeal adopted the criteria stated by the European Court in Engel v Netherlands (No. 1) (1976) 1 EHRR 647 in determining whether proceedings are criminal in nature for the purpose of Arts. 10 and 11 (Rights of persons charged with or convicted of criminal offence):

(1)  prima facie, classification of the offence under domestic law;

(2)  nature of the offence;

(3)  nature and severity of the potential sanction.

59.  The Court of Final Appeal held that proceedings investigating into insider dealings involving the imposition of a financial penalty under s.23(1)(c) of the Securities (Insider Dealings) Ordinance (Cap. 395) were determination of a criminal charge notwithstanding that the domestic law did classify the same as civil and there are certain characteristics of civil proceedings such as absence of formal charge and conviction constituting a criminal record, as the penalty was severe with punitive and deterrent purpose comparable to a fine.

60.  Lam Siu Po also stated that the nature of the punishment is an important consideration requirement for fairness as against proportionality and resources.

61.  In substance, forfeiture of remission is deprivation of liberty.  The fact that it is imposed on someone in prison does not alter its punitive character.  Under r. 69(4) of PR, remission shall be granted subject to any disciplinary award or forfeiture of remission.  Apart from the conviction of disciplinary offences and punishment by forfeiture of remission, there is no other mechanism in place to detain the prisoner any longer than the earliest release date.  I see no real difference between “additional days” under the English system and forfeiture of remission in Hong Kong.

62.  As to requirement or suitability of hearing by the head of institution Superintendent, r. 57 of PR provides that “The Superintendent (or other officer in charge of a prison, whatever his or her rank may be) shall supervise and control all matters in connection with the prison of which he or she may be in charge…”  An officer other than a Superintendent may also be in charge of a prison.  Hence, it is not true that the reports must be heard by the head of institution Superintendent.

63.  I find that the hearing of prison disciplinary proceedings with punishment by forfeiture of remission by a Superintendent who is charged with the administration of the penal institution and/or supervision of the reporting officer in question lacks the independence or impartiality for a fair hearing under Art. 10 of HKBOR.  The same conclusion is reached via the test of reasonable apprehension of bias.

64.  In any case, similar exception as s. 9 of HKBORO is also provided for in the Reservation Text of the ICCPR Rectification by the UK government.  I do not see s. 9 in excepting Art. 10 in proceedings for forfeiture of remission.

65.  Insofar as the Applicant did not challenge hearing by a Superintendent per se, hearing by a Superintendent from another institution (subject to the recusal for actual or apparent bias) will definitely enhance independence and impartiality. 

66.  Mr Law pointed out the tight time frame for dealing with reports against prison discipline will result in disproportionate resource implication. 

67.  At the moment, reports are brought before the Superintendent within 24 hours for mention, with actual hearing adjourned to another date (or further adjourned part-heard).  The system can accommodate referral of the actual hearing to an outside Superintendent. 

68.  In AGC v Morrison, Mummery LJ said (ibid 1166, para. 6) that:

“Inconvenience, costs and delay do not, however, count in a case where the principle of judiciary impartiality is properly invoked.  This is because it is the fundamental principle of justice, both at common law and under article 6 of the Convention for the Protection of Human Rights.”

69.  In any case, I am not convinced that the alternative arrangement will impose insuperable resource implication having regard to the principle of fair hearing.

70.  Hence, I hold that the conviction of disciplinary offences with forfeiture of remission amount to “criminal charge” with Art. 10 of HKBOR.

71.  Even if the classification of “criminal charge” is avoided, the proceedings have such implication on the prisoner’s expected earliest date of discharge that Art. 10 should be engaged.

72.  Hence, I order that the decisions and punishment in Cases 1 to 5 be quashed.

Standard of proof

73.  The standard of proof by the Independent Adjudicator as well as the Governors in England is the criminal standard of proof beyond reasonable doubt. 

74.  Mr Law’s submissions on the standard of proof is essentially the same as the inapplicability of Art. 10 in that remission is a right and not a privilege and forfeiture of remission is necessary for the regulation of prison discipline.  That contention has been already rejected.

75.  In Koon Wing Yee, Sir Anthony Mason NPJ held that the standard of proof for determination of the investigation into insider dealings with penal consequence comparable to fine should be beyond reasonable doubt for the criminal charge under Art. 11 of HKBOR.  His Lordship said (ibid at pp. 405-407, paras. 102-103):

“102.   In A-G of Hong Kong v Lee Kwong Kut, [1993] AC 951, the Privy Council regarded General Comment No. 13 [of the United nations Office of the High Commissioner for Human Rights] as indicating that the standard of proof beyond reasonable doubt was the general standard applicable for the purposes of art.14 of the ICCPR and art. 11(1) of the BOR. The judgment of the Privy Council delivered by Lord Woolf makes it plain that art. 14 of the ICCPR and art. 11(1) of the BOR permit a degree of flexibility which allows a balance to be drawn between the interest of the person charged and the state so that sensible and reasonable deviations in certain situations are not proscribed. (Ibid at pp.968B-C, 969D-F.)  Lord Woolf is not to be understood, however, as suggesting that the substitution of the civil standard of proof for the criminal standard of proof in a proceeding classified as criminal would be a sensible or reasonable deviation.

103.    In my view, this Court should regard General Comment No. 13, in so far as it prescribed the standard of proof beyond reasonable doubt, as the appropriate standard to be applied for the purposes of art. 11 of the BOR before it was replaced by General Comment No. 32 (which then reinforced the application of that standard). In this respect, my view is strongly fortified by the fact that in our criminal jurisprudence proof beyond reasonable doubt is the standard to be applied once proceedings have been classified as involving the determination of a criminal charge.”

76.  In Gough v Chief Constable of the Derby Shire Constabulary [2002] QB 1213, EWCA Civ 351, the English Court of Appeal found that proceedings for imposition of banning orders under the Football Spectators Act 1989 based on reasonable grounds of belief in violence or disorder at or in connection with regulated football matches were civil in character, but the banning orders imposed serious restraint on freedoms normally enjoyed by the citizens, and the justices should apply the standard of proof that will, in practice, be hard to distinguish from the criminal standard (per Lord Phillips of Worth Matravers MR at paras. 89-90).

77.  In R (McCann & ors) v Crown Court at Manchester & anor [2002] UKHL 39, the magistrates made anti-social behaviour orders under the Crime and Disorder Act 1998 prohibiting 3 teenagers from entering a particular place of the city in which they lived. 

78.  On appeal, the Crown Court held that the proceedings were civil rather than criminal and were not subject to rules of evidence which applied in criminal prosecutions.  However, the judge dismissed the appeal upon being “satisfied so that [the tribunal] was sure” that the orders should be made.  The defendants brought judicial review against the judge’s decision, which was dismissed by the Divisional Court, The Court of Appeal upheld the dismissal. 

79.  On further appeal, the House of Lords held that anti-social behaviour order was preventive and not punitive, it was not a conviction and did not appear on the defendant’s criminal record, and regarded as civil under domestic law, hence, not classified as criminal within Art. 6 of the Convention.  Hearsay evidence would be admissible.  But given the matter raises serious question of facts with serious implications for the defendant, the court should be satisfied to the criminal standard of proof that a defendant had acted in an anti-social manner before making the order (per Lord Hope of Craighead at para. 83).  In the event, the appeal was dismissed because the appropriate standard of proof had been applied.  

80.  Forfeiture of remission has serious implication in deprivation of liberty or severe restraint on freedom of the person.  The criminal standard of proof beyond reasonable doubt should be applied in prison disciplinary proceedings with forfeiture of remission.

81.  Hence, the decisions in Cases 2 to 5 should also be quashed on the ground of wrong standard of proof.

82.  In passing, r. 63 of PR provides for other forms of punishment by the Superintendent.  Those punishment include solitary confinement and forfeiture of earnings.  They also impose severe restraint on freedom of the person or penalty comparable to a fine.  Without deciding on the matter as submission was not specifically made on them, it seems that they may also attract the criminal standard of proof.

83.  On the other hand, there are measures such as caution or payment of costs of property damaged without reasonable excuse.  I shall not comment on those matter as they do not concern the cases before me.

Record of proceedings

84.  At present, record of prison disciplinary proceedings are made by hand by the adjudicating Superintendent.

85.  Mr Kwok submitted that in the absence of an open hearing in the prison setting, accurate record should be kept independent of the adjudicator to deter inappropriate behaviour and enhance public confidence.  Mr Kwok indicated this is a standalone ground of review.

86.  In Ex parte Guardian Newspapers Ltd [1999] 1 WLR 2130, the defendant applied under the Crown Court Rules 1982 for a stay of trial application to be heard in camera.  The judge heard the application in camera and ruled in open court that the stay application be heard in camera.   The newspaper served a notice seeking leave to appeal.  The English Court of Appeal granted leave and allowed the appeal.  Brook LJ giving the judgment of the court said (at p. 2144, paras. 23-24) that:

“22.  [Counsel for the newspaper] reminded us that in Reg v Legal Aid Board, Ex parte Kaim Todner [1999] QB 966, 977 Lord Woolf MR gave four reasons for the principle of open justice.  It deters inappropriate behaviour on the part of the court; it maintains public confidence in the administration of justice and enables the public to know that justice is being administered fairly; it may result in evidence becoming available which would not become available if the proceedings were not open; and it makes uniformed and inaccurate comment about court proceedings less likely.

23.   We would add that considerations of this kind also underlay Lord Woolf MR’s earlier important judgment in Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056, in which he said, at p. 1071, that it remained a principle of the greatest importance that, unless there were compelling reasons for doing otherwise, there should be public access to hearings in chambers, and information available as to what occurred at such hearings.”

87.  Mr Kwok submitted that accurate and objective record of the proceedings will assist the Court exercising the supervisory jurisdiction in dealing with serious dispute of facts.

88.  Mr Law pointed out that although the Applicant did make a request for tape recording in Case 3, there is no challenge on the findings of facts nor allegation of inaccurate record in any of the 5 cases.

89.  Mr Law referred to Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 635 where an officer in the disciplinary proceedings complained against non-disclosure of documents.  The Court of Appeal (per Cheung JA at pp. 668J-669A para. 76) said that:

“Judicial review being a discretionary remedy, if Mr Leung does not, as a matter of substance, suffer prejudice, then the failure to observe the principle of fairness should not be a ground for quashingthe decision. This is what happens here. …”

90.  Mr Kwok submitted that it is inaccurate to say that an applicant has to demonstrate actual unfairness in order to obtain relief.  He referred to the dictum of Lord Steyn in Boddington v British Transport Police [1992] 2 AC 143, 174 (cited with approval in Leung Fuk Wah ibid at p. 663H para. 40) that:

“It is true that cases could occur where it might be right in regard to an established ground of judicial review to refuse a discretionary remedy and in that respect absence of prejudice may be a relevant factor  …  But that is altogether different from saying that prejudice is an element that an applicant must prove to establish a ground of review.”

91.  In Chu Ping Tak v Commissioner of Police [2002] 3 HKLRD 679, Deputy Judge A Cheung (as he then was)  cited Leung Fu Wah above and said at (p. 669C-F para. 62) that:

“However and in any event, a distinction should be drawn between the total absence of substantive prejudice on the one hand and the presence of a risk of prejudice on the other. As mentioned above, in the earlier Court of Appeal decision in Chan Tak Shing v Chief Executive of the HKSAR [1999] 2 HKLRD 389, the Court of Appeal adopting what the Privy Council had said in Kanda v Malaya [1962] AC 322 held that the Court would not inquire whether the material not disclosed did work to the applicant's prejudice; it was sufficient that it “might do so”; the Court would not go into the likelihood of prejudice; and the "risk" of it was enough. Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 653 is a case where it can be demonstrated to the satisfaction of the Court that no prejudice whatsoever was done to the applicant by the non-disclosure. In my judgment, if that can be done, then most likely (if not as a matter of certainty), the Court would refuse to grant the discretionary remedy. However, if that cannot be done so that there is a "risk" of prejudice having been done to an applicant by the non-disclosure, this would seem to be an important factor in favour of the Court's exercising its discretion to quash the decision in question, particularly if one bears in mind that ex hypothesi, there was a breach of the rules of natural justice which, as I said above, is by itself a weighty consideration to be taken into account in the first place.”

92.  Reference ex facie has been made to other Commonwealth jurisdictions and the United States with the majority of them not having recording at prison disciplinary proceedings.  The two exceptions are Canada and Queensland (for major breach of discipline).

93.  It is noted that while there is no recording before either the Independent Adjudicators or Governors in England, legal representation is however allowed.

94.  Mr Law’s further objection seem to be resource implication.  Frankly, I do not see any real difficulty in getting a couple of tape recorders. 

95.  Be that as it may, I bear in mind that the jurisdiction of judicial review is to proscribe decisions lacking in procedural fairness rather than to prescribe the procedure instead.  It is the duty of those charged with administration of prisons to set in place disciplinary procedure which is fair in all the circumstances.

96.  The fact remains that there is no complaint of inaccurate  record or prejudice to the Applicant in any of the 5 cases, notwithstanding ex hypothesi there may be so in some other cases.

97.  Given my decision on grounds 1 and 2, and there is no prejudice to the Applicant in the cases before the Court, I shall not consider quashing the decisions in the 5 cases on the ground of lack of recording alone.

Failure to interrogate

98.  In Case 1, the Applicant was charged, inter alia, with possession of a piece of chalk without due authorization.  He said the chalk was given to him by another inmate.  The inmate was called to the hearing but he refused to give evidence.  The adjudicating Superintendent said he could not compel the witness to do so.

99.  Complaint was also made on the “Explanation of the Procedure at a Hearing of a Disciplinary Charge”.  Para. 12 stated:

“If you want to call witnesses, ask for permission to call them and say who they are, even if you have named them before the hearing.

If they are witnesses in your defence, say what you believe their evidence will prove.  If the Superintendent is satisfied that their evidence may help to establish exactly what happened, the witnesses will be called (but remember that witnesses who are inmates cannot be compelled to give evidence).

You will be allowed to question the witnesses on their evidence or any other relevant matter, and they may also be questioned by others present.”

100.  Mr Kwok submitted that the note on compellability of inmates is inconsistent with the power of the Superintendent to interrogate any person touching on the offence under r. 62 of PR.

101.  Mr Law submitted that the inmate was arranged to attend the hearing, but the Superintendent did not ask him to give evidence because according to the Applicant what he had to say was irrelevant to the case, as there is no defence in saying that the chalk was given by a fellow inmate.   Mr Law, however, did not submit on the explanatory note.

102.  I agree with the point on relevance by Mr Law. 

103.  On the explanatory note, it is reasonable that the tribunal should have control of the proceedings in admitting what is relevant and to exclude what is irrelevant and to prevent abuse, bearing in mind the power to interrogate.  That decision must of course be made judiciously, being subject to the supervisory jurisdiction of the Court.  The note did inform the defendant the right to raise with the authority calling of defence witness who are relevant to the charge, and to question them at the hearing. 

104.  As to “compellability”, the Superintendent may of course interrogate any person when the justice requires, and the witness may answer according to his volition.  Those responsible for the explanatory note may wish to see that no wrong message is put across unwittingly. 

105.  Be that as it may, I hold that the ground based on failure to interrogate do not succeed by reason of no prejudice.

Irrationality of punishment

106.  As I have already quashed the 5 decisions, and Mr Law has indicated not seeking remission for re-consideration in the event, it is not necessary to deal with irrationality of sentence save for costs.

107.  The reasons for sentence in Cases 2 and 3 stated that:

“The authority laid down the rule that prisoner must take the medication immediately after dispensation, and cannot save it up, in order to achieve the object of prevention of keeping of pills for illegal purpose or overdose.  The defendant was in possession of pills including pain killer, cold tablets, stomachic drug and anti-swelling medication.  Medication cannot be transferred privately or abused.  There may be serious consequence after consumption by other prisoners.  By reason of the above information, I have reason to believe that the drugs are for illegal purpose.”

108.  Mr Kwok submitted that the quantity of the drugs seized could not raise an irresistible inference of illegal use.  He sought to rely on the expert evidence of Dr Koo rebutting the conclusion that the quantities and types of drugs would cause serious consequence if taken by other inmates.  He submitted the reasons given in the two cases with templated identity suggested the Superintendent did not give much thought to the matter.

109.  Mr Law pointed out that the defence raised by the Applicant in both cases was fabrication by the searching officers.  In the event that the Applicant’s evidence was rejected by the adjudicating Superintendent (where there is no challenge to it), he was entitled to draw the inference that drugs were for illegal purpose.  Even if self use were reasonably open on the facts, the tribunal needed not consider it as it was inconsistent with the defence raised.  Once the inference of illegal use by others was drawn, the consequence would be serious in prison security.

110.  Even in applying the criminal standard, I agree with Mr Law that the inference of illegal use was inevitable upon the rejection of the Applicant’s evidence.  The expert evidence on the pharmaceutical effect of the drug is not relevant.

111.  Hence, the application to file evidence is dismissed with costs to the Respondent.

Costs

112.  I make the order nisi that the Respondent shall pay the costs on grounds 1 and 2 to the Applicant with Legal Aid taxation. 

113.  Although the Applicant did not succeed on grounds 3 and 4, points of general relevance and importance were raised such that I consider there should be no order as to costs. 

114.  As to ground 5, I order nisi that the Applicant should pay the costs (including the costs of the summons and hearing on the admissibility of expert evidence) to the Respondent.

115.  For the assistance of the taxing master, I say grounds 1 and 2 together with matters of background and principle would have taken up 80% of the hearing time, and ground 5 and the summons taking 5%.

116.  Lastly, I thank counsel for their helpful submissions.