HKSAR v. Wan Thomas and Others
Read the full judgment text of HCMA 700/2013 on BabelCite. This High Court CFI judgment was delivered on 17 October 2016.
1. At the trial below, the appellants together with other defendants [1] were charged with one count of conspiracy to defraud, contrary to common law and section 159C(6) of the Crimes Ordinance, Cap 200 (“the Charge”). The gist of the prosecution case is that the defendants dishonestly misrepresented to CSD officers at the Lai Chi Kok Reception Centre (“LCKRC”) that they were friends of the prisoners whom they intended to visit, when in fact they were not, thereby inducing the CSD officers to a
Cited by 4 cases · Cites 5 cases
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HCMA 700/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL MAGISTRACY APPEAL NO 700 OF 2013 (ON APPEAL FROM KTMC 2097 OF 2013) _______________
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_______________ J U D G M E N T _______________ Hon Poon JA (giving the Judgment of the Court) : A. INTRODUCTION 1.At the trial below, the appellants together with other defendants[1] were charged with one count of conspiracy to defraud, contrary to common law and section 159C(6) of the Crimes Ordinance, Cap 200 (“the Charge”). The gist of the prosecution case is that the defendants dishonestly misrepresented to CSD officers at the Lai Chi Kok Reception Centre (“LCKRC”) that they were friends of the prisoners whom they intended to visit, when in fact they were not, thereby inducing the CSD officers to allow them to visit the prisoners concerned. The appellants and the third and seventh defendants denied the charge.[2] After trial, Deputy Magistrate Ms Kennis Tai (“the Magistrate”) convicted them as charged on 13 September 2013 and sentenced them to different hours of community service order on 27 September 2013.[3] 2.The appellants appealed against conviction only.[4] 3.As will seen shortly, the appellants’ appeal gives rise to some important issues of law, which principally concern the construction of Rule 48 and Rule 203 of the Prison Rules, Cap 234A,[5] in particular the meaning of “friends” in the context of the Rule 203, and the constitutionality of Rule 203. The determination of these issues may have an impact on the unconvicted prisoners’ right to be visited by visitors under Rule 203 while being remanded in prison awaiting trial. Thus when the matter first came before Pang J (as he then was) on 11 August 2014, with the parties’ consent, he ordered it to be transferred from the Court of Instance to be heard by the Court of Appeal on the ground that it involved major issues of law. 4.At the first hearing before this Court on 17 March 2015, after discussion with the parties, we gave directions for the filing of further evidence on the constitutionality of Rule 203, which was not before the Magistrate. We then adjourned the substantive hearing with 2 days reserved. At the end of the resumed hearing on 18 May 2016, we gave directions for the filing of further written submissions on the construction of the 1954 version of the Prison Rules, a point arising out of oral submissions but not fully developed. We have since received and duly considered the further written submissions. 5.We now hand down our judgment. B. BRIEF INTRODUCTION TO RULES 48 & 203 6.To put the Charge and the proceedings below in context, it is necessary to give a brief introduction to Rule 48 and Rule 203. 7.Under section 7 of the Prisons Ordinance, Cap 234 (“the Ordinance”), prisoners in Hong Kong are divided into three classes :
Whichever class they may belong to, prisoners are permitted to be visited under the relevant provisions of the Prison Rules. 8.The general provisions as to visits to prisoners are contained in Rule 48 of Part I of the Prison Rules. It reads :
Rule 48 then sets out the general requirements and arrangements pertaining to the manner of the visits, to which we will return in a moment. 9.Under Rule 48, there are two ordinary categories of visitors allowed to visit a prisoner, that is, (1) his relatives and (2) his friends. There is no statutory definition for “relatives” or “friends” in either the Ordinance or the Prison Rules. When the visitor falls outside these two ordinary categories, he may only visit the prisoner by special authority. We will refer to this third category of visitors as “persons with special authority” below. 10.Pursuant to Rule 2, the general provisions as to visits under Rule 48 shall apply to all classes of prisoners except in so far as they may be inconsistent with the rules made to govern any particular class or classes of prisoners. 11.Special rules for particular classes of prisoners are contained in Part II of the Prison Rules. Division 1 of Part II applies to “prisoners awaiting trial” (“Prisoners Awaiting Trial”). Under Rule 188(1), they are two categories of Prisoners Awaiting Trial. The first class is “prisoners committed for trial at different levels of courts”,[6] that is, effectively, Unconvicted Prisoners. The second class is persons remanded under or for the purposes of various Ordinances,[7] a particular category of Other Remand Prisoners. The specific provision on visits which are applicable to Prisoners Awaiting Trial under Division 1 of Part II is Rule 203. It reads :
On its face, Rule 203 does not explicitly restrict the visitors who may visit Prisoners Awaiting Trial to any particular category as is the case under Rule 48. 12.Having briefly introduced Rule 48 and Rule 203, we next describe briefly what transpired in the proceedings below. C. PROCEEDINGS BELOW C1. Prosecution case 13.The particulars of the Charge alleged that :
14.The prosecution’s evidence was mainly adduced by way of Admitted Facts dated 29 July 2013. The prosecution further called two officers of the CSD to give evidence. They were PW1 Chow Chi Chung (transliteration), Assistant Officer I and PW2 Wong Tso Hing (transliteration), then Chief Officer.[8] At the material times, both prosecution witnesses were stationed at the LCKRC. PW1 had been in charge of visits by family for 3 and a half years and PW2 was responsible for supervising visits. The defence did not dispute their credibility. The prosecution also produced as evidence the post recorded statements and records of interview of those defendants who had denied the charge. The defence accepted that these post recorded statements and records of interview were made by the defendants voluntarily and their contents were true. 15.Much of the prosecution case was not in dispute. It is outlined below. C1.1 General procedures for visits at LCKRC[9] 16.All visitors who come to visit prisoners remanded at the LCKRC need to go through registration and visit formalities at the Visit Registration Unit situated at a separate building and adjacent to the LCKRC (“the Registration Unit”). Briefly, a visitor is required to show his identity card and fill in a Visitor Request Slip (“the Request Slip”)[10] his name, identity card number, address and his relationship with the prisoner he intends to visit. The staff of the CSD will then input the information written on the Request Slip into the computer for verification. Only two major categories, namely “relatives” and “friends” are available in the computer system. For “relatives”, different codes are assigned to different relationships, such as father, mother, brothers, sisters etc. However, there is only a single code for “friends”. Upon completion of the registration procedure, the staff of the CSD will give a Visit Arrangement Slip (“the Arrangement Slip”) to the visitor.[11] The visitor will then leave the Registration Unit for the Main Gate of the LCKRC with the Arrangement Slip. 17.When processing the requests for visits, the CSD officers at the Registration Unit make no distinction between Convicted Prisoners and Prisoners Awaiting Trial. So the above procedure, including the Request Slip, the computer verification system, the Arrangement Slip, applies to both categories of Prisoners. 18.When the CSD officers at the Registration Unit verify the identity of the visitors to see if they are the relatives or friends of the prisoners, they cannot in fact verify the relationship between the visitors and the prisoners. As long as the visitor is able to state the name and number of the prisoner and he signs the Request Slip in confirmation, the handling officer will allow him to visit. Therefore, to a great extent, the CSD officers can only rely on the self discipline of the visitor in providing true information about his relationship with the prisoner he is going to visit. C1.2 Compensated Visiting Service offered by IPS 19.The first appellant set up IPS-Care Company (“IPS”) on 1 May 2011 as its sole proprietor.[12] IPS ceased business on 30 April 2012.[13] At the material times, the second and fourth appellants were employed by the first appellant. The fifth appellant was a volunteer who assisted the first appellant without pay. 20.The website of IPS on the internet gave its address at Castle Peak Road, Lai Chi Kok. It also detailed the rather wide-ranging services provided by IPS.[14] The services of IPS aimed to “assist the family and friends of persons in custody so that mutual communication can be enhanced and (they) can know how the persons in custody are getting along in the reception centre”. They included visiting service (代探服務) (“Compensated Visiting Service”), services for ordering purchase or procurement, conveying messages, redirection of letters, ordering newspapers, purchasing books and magazines, ordering private meals and providing legal or medical consultation services.[15] 21.According to the information available on IPS’s website, Compensated Visiting Service :
Further the purpose of conveying messages and regards on behalf of relatives and friends “is to enhance mutual communication and reduce worries of persons in custody and their families.”[17] When clients used the service of “conveying messages”, they needed to explain to the staff of IPS clearly the details of their messages and the contents of the messages could not contravene the laws and provisions of the CSD.[18] The charges for Compensated Visiting Service were HK$84 per visit (later increased to HK$120)[19] and the total charges would not be less than HK$300.[20] 22.On 1 August 2011, staff of the CSD first became aware that staff members of IPS were distributing pamphlets outside the LCKRC to promote its services including the Compensated Visiting Service.[21] CSD then sought legal advice from the Department of Justice and obtained its legal advice on 24 August 2011. However, no action was taken at that time. 23.On 10 November 2011, the Next Magazine published a news report entitled “making prison visits on behalf of clients” (「代客探監」) and its contents were about the Compensated Visiting Service provided by IPS.[22] C1.3 Compensated Visits made by the appellants 24.Between August and November 2011, the appellants visited on behalf of its clients a total of 31 prisoners remanded in the LCKRC pending trial, who fell within the definition of Prisoners Awaiting Trial under Rule 188.[23] 25.The appellants were not the relatives of the prisoners whom they had visited, nor did the appellants know them before the visits. Yet, in the Request Slip under the column “relationships”, they wrote down “friend”. Based on the appellants’ representation that they were “friends” of the prisoners they intended to visit, the CSD officers allowed them to enter the LCKRC to make the visits to the prisoners concerned. 26.PW1 said in evidence that he would not accept applications for visit made on behalf of others.[24] PW1 also said had he known that the visitor was not a friend of the prisoner concerned, yet claimed to be a friend of the prisoner, he would have informed his senior and let his senior decide whether the visit should be allowed.[25] PW2 also emphasized in his evidence that the CSD only allowed relatives and friends to visit prisoners and did not allow people who were not prisoners’ friends to “make visits on behalf of” others.[26] C1.4 The appellants statements under caution 27.The police arrested the appellants and other defendants on 22 August 2012. 28.Under caution, the first appellant admitted that IPS was set up by him but claimed that he did not know that the Compensated Visiting Service was against the law. The second appellant said that she was just working and had not deceived anyone. The fourth appellant admitted that the first appellant had hired her to visit prisoners whom she did not know. The fifth appellant admitted that he had visited prisoners and he did not know them but said his work was voluntary in nature and he had not received any remuneration. C2. The defence case 29.All the appellants elected not to give evidence and did not call any defence witnesses.[27] They only produced as evidence three documentary exhibits, which were the arrangements on visits by relatives and friends of the CSD, the news report of Next Magazine as mentioned above and the business registration record dated 1 May 2011 respectively. 30.The appellants raised two points as their major defence :[28]
C3. Findings of Magistrate 31.The Magistrate held that on a proper construction, the same restrictions on categories of visitors in Rule 48 applied to Rule 203.[29] She further held that on a proper construction, “friends” for the purposes of the Prison Rules meant “people who know and are acquainted with one another”, that is, “personal friends”.[30] She found that since the appellants knew that they did not know the prisoners they visited, they were not their friends.[31] 32.The Magistrate then identified the four elements of the Charge :
She continued to analyze and discuss the evidence and submission on each element and[32] eventually found the appellants and the third and seventh defendants guilty.[33] D. MAIN ISSUES D1. Parties’ submissions 33.Each appellant has raised 6 grounds of appeal which are substantially the same. The principal submissions before us were made by Mr Chan, SC for the 1st appellant, which were adopted by Mr Cheung and Mr Wong representing the other appellants. 34.On statutory construction, Mr Chan’s primary submission is that taking into account the context and purposes of Rule 203, “visitors” in Rule 203 has a wider meaning than “friends” and “relatives”. It means any person who has a legitimate or bona fide reason to visit the prisoners. It includes relatives, friends, well-wishers, voluntary prison visitors from church, NGOs, or visitors whom the prisoners have a legitimate interest to meet. Alternatively, Mr Chan submitted that if Rule 203 is subject to Rule 48 so that “visitors” has a more restricted meaning of “friends” and “relatives” then the combined effect of Rule 48 and Rule 203, taking together with Article 6(2)(a) of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”), is that this phrase include the representatives or agents acting on behalf of friends and relatives for a bona fide purpose to provide help or support to the prisoners that the prisoners are entitled to. Mr Chan arrived at the above conclusions by three routes :
35.On the substance of the charge, Mr Chan argued that the prosecution had not proved each of the four elements of conspiracy beyond doubt. 36.On statutory construction, Mr Leung, SC, Deputy Director of Public Prosecution, argued that there is no inconsistency between Rule 48 and Rule 203. The same categories of visitors in Rule 48, namely, friends and relatives, apply to Rule 203. “Friends” mean personal friends as found by the Magistrate. Such a construction of Rule 48 and Rule 203 does not infringe the relevant Articles in the HKBOR. Even if it did, it would have satisfied the proportionality test. 37.On the substance of the charge, Mr Leung submitted that the prosecution had proved each of the four elements of conspiracy beyond reasonable doubt. D2. Main issues 38.Arising from the parties’ submissions are the following main issues :
39.We will consider the Issues in turn. E. Issue 1 – what is the meaning of “visitors” in Rule 203? E1. Guiding principle of interpretation 40.In construing Rule 203, we are guided by the cardinal principle that statutory interpretation should be purposive, contextual and holistic : B v Commissioner of ICAC (2010) 13 HKCFAR 1, per Li CJ at [11]. Statutory interpretation involves ascertaining the intention of legislature as expressed in the statutory provisions. In the interpretation process, the context and purpose of the statue must be considered. A statue must be construed in its proper context and the court should adopt a purposive approach in order to give effect to the purpose of the legislation : Leung Lai Fong v Ho Sin Ying (2009) 12 HKCFAR 581, per Chan PJ at [20]. 41.Rule 203 is part of the entire statutory regime for visits in the Prison Rules. So we need to have a closer look of that. E2. Statutory scheme for visits in the Prison Rules 42.We have already given a brief introduction to Rules 48 and 203 above.[34] 43.Under Rule 48, subject to such restrictions as may be imposed for the maintenance of discipline and order in the prison and for the prevention of crime, visits by friends and relatives shall be allowed in the manner as prescribed in subparagraphs (a) to (i) :
44.The following points arising from the manner of visits set out in Rule 48 are worth-noting :
45.While Rule 48 concerns social and family visits, Rule 49 to Rule 52 deals with visits for special purposes :
46.Rule 53 provides that the visits for special purposes to which Rules 51 and 52 refer shall be additional to the visits allowed under Rule 48 to Rule 50 and shall not be liable to forfeiture under Rule 63. 47.Pursuant to Rule 2, Rule 48 to Rule 53 shall apply to all classes of prisoners except in so far as they may be inconsistent with the rules made to govern any particular class or classes of prisoners. This brings us to the provisions for visits applicable to Prisoners Awaiting Trial in Subdivision 7 of Part II. 48.Social and family visits are dealt with in Rule 203. To recap, it provides :
49.We have already pointed out that there is no explicit restriction to the categories of visitors in Rule 203 as is the case in Rule 48. Additional to that :
50.Like Part I, Part II also has provisions on visits for special purposes. They are Rule 204 and Rule 205. Rule 204 enables a Prisoner Awaiting Trial, for the purposes of his defence, to receive a visit from a registered medical practitioner selected by him or his friends or legal adviser, under the same conditions as apply to a visit by his legal adviser. Rule 205 allows a Prisoner Awaiting Trial who is in default of bail to see any of his relatives or friends, on any week day, at any reasonable hour, for the bona fide purpose of providing bail. 51.For completeness, Part III of the Prison Rules provides for visits by visiting justices and prison visitors. Visiting justices are justices of peace appointed by the Chief Executive under section 23 of the Ordinance. Prison Visitors are persons interested in the welfare, reform and after-care of prisoners as appointed by the Commissioner of Correctional Services under Rule 236. E3. The language used in the Rules 52.Having outlined the statutory regime, we next turn to the language used in Rule 48 and Rule 203. 53.Rule 48 clearly applies to all classes of prisoners :
54.Rule 48 allows three categories of visitors, namely, friends, relatives and persons with special authority. Subparagraph (f) and (fa) use the term “visitors”. The term “visitors”, in the context of Rule 48, must mean the three categories of visitors specified and, when applied to visits under Part III, may also include visiting justices and prison visitors. But it cannot possibly include any other categories of visitors. 55.Rule 203 differs from Rule 48 in three aspects, namely, the frequency of visits, the duration of visits and the number of visitors allowed at one time. As said, the frequency and duration of visits gives Prisoners Awaiting Trial a more generous treatment than that of the Convicted Prisoners. However, when it comes to categories of visitors, Rule 203 just uses the term “visitors’ simpliciter, like Rules 48(f) and (fa). In our view, the legislature clearly intended that “visitors” in Rule 203 has the same meaning as in Rule 48. Had the legislature intended “visitors” in the context of Rule 203 to bear a different meaning, it would have so provided expressly, just like the case for frequency and duration of the visits and the number of visitors allowed at one time. So the term “visitors” in Rule 203, as is the case in Rules 48(f) and (fa), is just a “shorthand” expression embracing all the three categories of visitors specified under Rule 48, who are, at the risk of repetition, friends, relatives and persons with special authority and when Part III applies, the visiting justices and prison visitors. 56.On a proper construction, there is no inconsistency between Rule 203 and Rule 48 insofar as the term “visitors” is concerned. Pursuant to Rule 2, the same definition for “visitors” in Rule 48 apply to Rule 203. 57.We next come to the proper meaning of “friends” as a category of visitors in Rule 203. The word “friend” has different meanings in different contexts : see its dictionary meaning in the Shorter Oxford English Dictionary, 6th Edition. For present purposes, its meaning must of course be understood in the context of the Prison Rules. 58.As a piece of subsidiary legislation dealing with penal establishments, one of the primary concerns of the Prison Rules is the maintenance of discipline and order in the prison and the prevention of crime. These are the considerations that underpin the restrictions that the Superintendent may impose under Rule 48 and Rule 203. On the other hand, due regard must also be given to the benefits that social visits may confer on the prisoners. As will be seen shortly, it is universally accepted in modern civilized societies that family and social support is crucial for the prisoners’ adaption to prison life and overcoming adjustment problems and for their rehabilitation and facilitation of their future re-integration into society. With these considerations in mind, “friends” in the context of the Prison Rules cannot possibly mean someone who is a stranger of the prisoner. He must be a personal acquaintance of the prisoner. He and the prisoner must know each other in order to give the desired effects and benefits to the social visits. The same definition of “friends” applies to the entire statutory regime of visits in the Prison Rules, including Rule 48 and Rule 203. E4. A wider definition? 59.Mr Chan argued that a more liberal regime exists in Rule 203 so that “visitors” should be given a wider meaning than just “friends” or “personal friends” in Rule 203 to include any person who has a legitimate or bona fide reason to visit the remand prisoners or the representatives or agents acting on behalf of friends and relatives for a bona fide purpose to provide help of support to the prisoners that they are entitled to. He took a number of points. 60.First, Rule 48 begins with “[no] persons, other than the relatives and friends of a prisoner, shall be allowed to visit him except by special authority...”. Rule 203(1) begins with “[every] prisoner awaiting trial shall, subject to the order of the Superintendent, be permitted to be visit by one visitor, or if the circumstances permit, by two at the same time...”. Mr Chan submitted that in light of the language used, Rule 48 is prohibitive in nature whereas Rule 203 is entitlement in nature insofar as visits are concerned. The distinction informs the interpretation of the Rules, counsel reasoned. So while Rule 48 confines visitors to friends, relatives and persons with special authority, Rule 203 being an entitlement in nature, does not restrict visitors in such a way. 61.With respect, the distinction drawn by Mr Chan is one without real difference. Irrespective of the language used, visits under both Rules are always subject to the Superintendent’s permission. Even if it is entitlement in nature under Rule 203 and hence gives rise to a more liberal regime, the legislature had intended it to be more “liberal” in terms of frequency and duration of the visits. It does not necessarily mean that the legislature had intended to give “visitors” or “friends” in Rule 203 a wider meaning as contended by Mr Chan. 62.Second, Mr Chan relied on the legislative history of the Prison Rules, starting from 1885, through 1899 and 1954 up to now. In short, he submitted that there was all along a more liberal regime for visitors for remand prisoners. We have gone through the legislative history and different versions of the Prison Rules. We do not find it particularly helpful in our construction exercise. So we will not burden this judgment with a legal survey of the different versions of the Prison Rules enacted over the years. We are after all dealing with the current version of the Prison Rules. For the reasons we gave, whatever the position might be in the past, “visitors” and “friends” in the current version of the Prison Rules must bear the meanings as we have construed. The entire statutory regime and clear language used cannot possibly admit of any other contrary or wider meaning. Even if there existed a more liberal regime in the older versions of the Prison Rule as Mr Chan contended so that “visitors” for the purposes of the predecessors of Rule 203 might have a wider meaning, the legislature must have changed that with the enactment of the current version of Rule 203. 63.Third, Mr Chan argued that Prisoners Awaiting Trial should be given a separate treatment appropriate to their status as unconvicted persons who are presumed to be innocent. Following from that, their visitors should not be as restricted as those for Convicted Prisoners. This is in effect another way to run his argument based on Article 6(2)(a) of the HKBOR. For the reasons that we are going to give in Part F below, we reject this argument. F. ISSUE 2 – IS RULE 203 COMPATIBLE WITH ARTICLE 6(2)( a)? 64.Article 6(2)(a) of the HKBOR provides :
65.In our view, there can be no doubt that the Prison Rules does implement statutorily the requirement in Article 6(2)(a). Segregation is implemented by Rule 190, which provides that “prisoners awaiting trial shall be kept apart from convicted prisoners and shall not be allowed to associate with them at any time.” Subjecting Prisoners Awaiting Trial to separate treatment appropriate to their status as unconvicted prisoners is achieved firstly by Rule 2 in Part I which effectively enables rules specifically made to govern Prisoners Awaiting Trial to prevail over the general provisions in Part I if there is any inconsistence; and secondly by the various provisions in Part II which treat the Prisoners Awaiting Trial differently from Convicted Prisoners on the same subject matters.[38] Without going into details, the former provisions are, generally speaking, more generous than the latter provisions on the same subject matters. 66.As outlined above, visits can be broadly classified as (a) family and social visits under Rule 48 and Rule 203; and (b) visits for special purposes under the relevant Rules. Family and social visits to Prisoners Awaiting Trial under Rule 203 are far more frequent and longer than those to Convicted Prisoners under Rule 48. As to visits for special purposes, additional to the visits in Rule 49 (visits by police officers), Rule 50 (visits by court officers) and Rule 52 (visits by legal advisers), a Prisoner Awaiting Trial may also be visited by a private medical adviser for the purposes of defence under Rule 204; and visits by his friend and relatives for the purpose of providing bail under Rule 205. The last two types of visit for special purposes are evidently made available to Prisoners Awaiting Trial because of their status as unconvicted persons. 67.Focusing on family and social visits, we take the view that the entire treatment under Rule 203 must be considered as a whole to see if it is compatible with Article 6(a). There are four aspects to the treatment, namely, (a) the categories of visitors; (b) the frequency of visits; (c) the duration of visits; and (d) the number of visitors allowed at one visit. In considering compatibility with Article 6(2)(a), we do not consider it correct to single out just one particular aspect, such as the categories of visitors, without reference to the others or the overall effect of the entire treatment. Even for categories of visitors, one should not be blinkered by confining to a particular category without due regard to others in assessing the overall effect of the visit treatment in assessing compatibility. 68.Construing “visitors” and “friends” as we did above does not abrogate the right of Prisoners Awaiting Trial to separate treatment appropriate to their status as unconvicted persons under Article 6(2)(a). As said, the entire visit treatment in Rule 203 must be considered as a whole in assessing its compatibility with Article 6(2)(a) and it would be wrong to just artificially confine the consideration to the categories of visitors allowed only. The fact that the same categories of visitors are allowed for Prisoners Awaiting Trial as is the case for Convicted Prisoners does not necessarily render the visit treatment in Rule 203 incompatible with Article 6(2)(a). It is but one of the four aspects of the entire visit treatment that the holistic approach requires consideration. The other aspects are frequency of the visits, the duration of the visits and the number of visitors allowed at one time. We have already pointed out that in terms of frequency and duration, the treatment is more generous. This entitles Prisoners Awaiting Trial to receive more frequent and longer visits from relatives and friends, thus maintaining their contact with the outside world, their family and social circle as far as their particular circumstances as unconvicted persons remanded in prison may permit. We have also pointed out while the number of visitors allowed at one time is 2, the Superintendent may in special cases increase it to 3 or even more. And in reality, a maximum of 3 visitors is allowed at any one visit under the Standing Orders. The limit in number of visitors at one time is also commensurate with the visit treatment given to Prisoners Awaiting Trial as unconvicted prisoners. 69.Further, as said, even in considering the categories of visitors allowed, due regard must be given to the fact that “persons with special authority” is also permissible. In other words, even if a particular visitor is not a friend or relative of the Prisoner Awaiting Trial whom he intends to visit but he has a bona fide interest or purpose to do so, as is the case under Mr Chan’s wider definitions of “visitors” or “friends”, he may apply to the Superintendent for admission as a “person with special authority”. Such an application is permissible not only as a matter of statutory construction but also as a matter of fact because under the Standing Orders, at Chapter 55-14, [1] :
In deciding such an application, the Superintendent will of course have to bear in mind the right of the Prisoner Awaiting Trial to separate treatment appropriate to their status as unconvicted persons under Article 6(2)(a), too. Thus there is no need to stretch the meaning of “friends” (or indeed “relatives”) as Mr Chan did to include the categories of persons identified by him to visit the prisoners so as to make the visit treatment in Rule 203 as a whole compatible with Article 6(2)(a). 70.Having considered the overall effect of the entire visit treatment in Rule 203 as a whole, we are satisfied that it is appropriate to the status of the Prisoners Awaiting Trial as unconvicted prisoners even though visitors allowed in Rule 203 are the same for Convicted Prisoners in Rule 48. No abrogation of Article 6(2)(a) arises. 71.We would add that our construction of Rule 203 is consistent with the legality principle as propounded in A v Commissioner of ICAC (2012) 15 HKCFAR 362, at [68]-[69]; as applied to subsidiary legislation : R v Home Secretary, Ex p. Simms, supra, per Lord Hoffmann at p 132C-D. 72.This brings us to Issue 3. G. Issue 3 – is Rule 203 compatible with Article 14? 73.In Hong Kong, the right to private life is protected by Article 14 of the HKBOR :
74.The first question is whether Article 14 is engaged by the restriction to visitors in Rule 203. G1. Is Article 14 engaged? 75.All leading authorities in major common law jurisdictions speak with one voice : under the common law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication : see for example, Raymond v Honey [1983] 1 AC 1, per Lord Wilberforce at p 10G-H; Patsalis v State of New South Wales [2012] NSWCA 307, at [52]; Taunoa & Others v Attorney General & Another [2007] NZSC 70, at [97]; Solosky v The Queen (1979) 105 DLR (3d) 745 per Dickson J at p 760; R v Hill [1995] BCJ no 1530; and Chim Shing Chung v Commissioner of Correctional Services (1996) 6 HKPLR 313, per Litton VP (as he then was) at p 316E. 76.The same principle applies to fundamental rights constitutionally protected. Prisoners do not lose their fundamental rights protected constitutionally by virtue of being imprisoned or detained : Hirst v United Kingdom (2006) 42 EHHR 41, at [69]-[71]. In Chan Kin Sum v Secretary for Justice [2009] 2 HKLRD 166, A Cheung J (as the Chief Judge then was), after reviewing the international jurisprudence, said :
77.This principle applies to unconvicted prisoners with equal if not greater force. As the European Court of Human Rights in Velyo Velev v Bulgaria, Application No 16032/2007, 27 May 2014 put it :
78.Here, we are concerned with visits to prisoners. Visits enable prisoners to maintain contact with the outside world in particular his family and friends. We note in August v Electoral Commission 1999 (3) SA 1 (a case which A Cheung J referred to in Chan Kin Sum v Secretary for Justice, supra, at [92]), the Constitutional Court in South Africa said at [18] :
79.Although the Constitutional Court was stating the common law position, when it said that the prisoners’ contact with the outside world would be limited and regulated, it seemed to be suggesting that the limitation is necessarily inconsistent with their imprisonment. Put slightly differently, it seems that the Constitutional Court took the view that such limitation is a necessary incident to imprisonment, just like loss of liberty and place of imprisonment. 80.Contrast that with the European human rights jurisprudence which holds that visits to prisoners involve their right to private life under Article 8 of the European Convention on Human Rights (“ECHR”). Article 8 is similar to our Article 14. It provides :
81.In the European jurisprudence, the concept of private life embraces to a certain degree the right to establish and to develop relationships with other human beings. That extends to the setting of imprisonment. In R (on an application of Bary & Others) v The Secretary of State for Justice & Another [2010] EWHC 587, Lord Justice Aikens stated the position thus :
82.Laduna v Slovkia (Application no. 31827/02), 13 December 2011, is a case specifically on visits to prisoners. There, the applicant was accused of several serious offences and was detained pending trial between 1 September 2001 and 9 February 2006.[40] During his detention on remand the applicant raised a number of complaints, including the restrictions on his visiting rights (visits were allowed only once a month for thirty minutes and it was only possible to speak to visitors through a partition) (Article 8 of the ECHR); and discrimination (Article 14 of the ECHR). Holding that the case fell under Article 8 of the ECHR, the European Court of Human Rights said :
The Court then examined the facts of the case and held that the restrictions on visits to the family members during his detention on remand constituted a disproportionate measures, contrary to his rights under Article 14 in conjunction with Article 8 of the Convention : [59]-[69]. 83.The European jurisprudence on Article 8 of the ECHR clearly supports the proposition, as advanced by Mr Chan, that an untried prisoner’s right to private life under Article 14 of the HKBOR is engaged by the restrictions in the Prison Rules on visits that he may receive while in custody. 84.It is the respondent’s position that the Prison Rules are consistent with internationally recognized rules on prison, namely, the Standard Minimum Rules for the Treatment of Prisoners (“SMR”).[41] SMR provides that prisoners shall be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, both by correspondence and by receiving visits. The need to maintain contact with family and friends by a convicted prisoner is considered to be in the best interest of both (rule 79) and the convicted prisoner’s rehabilitation (rule 80). For an untried prisoner, rule 92 provides :
There can be no doubt that maintenance of contact with family and friends are of equal importance, if not more, for untried prisoners. 85.It is also the evidence of the Commissioner of Correctional Services (“the Commissioner”) that under the existing policy of CSD, prisoners are encouraged to maintain, strengthen or re-establish ties with their families and friends as far as possible for them to adjust to prison life, rehabilitation and future re-integration into the society.[42] 86.In our view, in light of the comparable European jurisprudence and the universally recognized importance and benefits of visits to a prisoner, which is accepted in Hong Kong, his right to private life under Article 14 of the HKBOR is engaged by the restrictions on visits in Rule 203. The restriction needs to be justified by the well established proportionality test :
See Chan Kin Sum v Secretary for Justice, supra, at [93]; Hirst v Secretary of State for Justice [2002] 1 WLR 2929, at [40]. G2. Passing the proportionality test 87.According to the Commissioner, there are four reasons to justify the restriction on social visits to friends and relatives :[43]
88.There can be no doubt that the restriction serves legitimate aims : to enable the prisoners to have contact with their family and social circle, which is conducive to rehabilitation, life adjustment, future integration into the society on the one hand; and to maintain the order and discipline and for crime prevention on the other. Mr Chan rightly did not take any issue on the legitimate aims. He, however, argued that the restriction of the category of visitors is either not rationally related to the aims or disproportionate to the achievement of those aims. 89.On rationality, Mr Chan focused on limited facilities, rehabilitation and security concern. We can dispose of his submissions shortly. 90.On limited facilities, Mr Chan submitted that CSD’s evidence on the pressures imposed by visits on the system is exaggerating. Based on his own calculations on the data provided by CSD, including duration of visits, Mr Chan submitted that the facility at the LCKRC for visits has not reached its full capacity. We do not need to go into the details of Mr Chan’s calculations. With respect, the Commissioner is the best authority to gauge the pressure felt by the system. We have no basis to doubt his evidence in this respect. Further, as rightly pointed out by Mr Leung, Mr Chan’s submissions just looked at the relevant data in a very theoretically way, ignoring entirely all the practicalities involved in arranging visits. 91.On rehabilitation, we agree with Mr Chan that it is not strictly relevant to Prisoners Awaiting Trial. Mr Chan submitted that maintaining social contact by the Prisoners Awaiting Trial with the outside world is desirable. So a wider circle of visitors would indeed help achieving this aim. Further, if relatives and personal friends are unable to visit the prisoner because they are not available or overseas, the purpose could still be achieved if a wider meaning to cover their representative is adopted. The same also applies to adjustment of life in the prison. This goes in favour of adopting a wider interpretation of friends. 92.As we have pointed out, to give the desired benefits to social visits, the visitor and the prisoner need to know each other. So restricting “friends” to “personal friends” are rationally connected to this legitimate aim. Even assuming visits by the friends’ representatives may give the visits the same or substantially the same benefits as visits by the friends themselves, the representatives, as said, can apply as “persons with special authority”. One does not need to strain the meaning of “friends” to accommodate them. We would add that the same is true for “relatives”. 93.On security, Mr Chan’s submission is essentially that CSD’s concerns are not made out. With respect, we disagree. Quite to the contrary, in light of CSD’s undisputable evidence, security concerns are real and for the reasons stated, the restriction on visitors is rational. 94.Turning to proportionality, the main thrust of Mr Chan’s submission is that the restriction is a blanket one, which impacts on the prisoners disproportionately. It deprives the prisoners their right to contact the outsider world if their friends and relatives are unable to visit them. It is unfair to the poor and the less resourceful whose relatives and friends may not be able to afford taking half a day off to visit them just for 15 minutes. It is also unfair to foreign prisoners who do not have relatives and friends to visit them when they very much need support for concerned interest groups or volunteers. 95.In our view, restricting “friends” to “personal friends” is a proportionate response to give the social visits the desired benefits. The answer to Mr Chan’s compassionate plea again lies in the fact that all the persons identified by Mr Chan can apply as “persons with special authority” to visit the prisoners. 96.For the above reasons, we hold that the restriction on “friends” as “personal friends” as a category of visitors in Rule 203 passes muster Article 14 of the HKBOR. 97.Having answered Issues 1 to 3 all in favour of the respondent, we now come to Issue 4. H. issue 4 – was the Charge proved beyond reasonable doubt? 98.We have already set out the evidence adduced by the prosecution before the Magistrate. There are four questions raised by the appellants corresponding to the four elements of the Charge :
They can all be disposed of shortly. H1. Agreement 99.The first appellant set up IPS in May 2011 to provide Compensated Visiting Service. He employed the second and 4th appellants and enlisted the 5th appellant as a volunteer. He instructed all the other appellants to carry out the Compensated Visits. He himself paid the first Compensated Visit declaring that he was a “friend” of the prisoner whom he visited on 27 August 2011, the 2nd appellant on 20 November 2011, the 4th appellant on 21 December 2011 and the 5th appellant on 8 October 2011. The only irresistible inference to be drawn from such evidence is that there existed a so-called “wheel” conspiracy, with the 1st appellant as the hub, recruiting other appellants to his scheme. See Blackstone’s Criminal Practice, 2016 Edition, [A5.49] at p 101. And the other appellants joined the scheme at the latest by their first Compensated Visit respectively. H2. Misrepresentation 100.It is not in dispute that the appellants did not know the prisoners personally whom they visited by their Compensated Visits. They were not friends within the meaning of Rule 203. So there can be no doubt whatsoever that when they wrote in the Reply Slip that they were “friend” of the prisoners concerned, it amounted to a misrepresentation. H3. Inducement 101.When the appellants misrepresented to the CSD officers that they were friends of the prisoners whom they intended to visit, they obviously wanted to induce the officers to grant them access to the LCKRC to perform the Compensated Visits. Such misrepresentation did induce the CSD officers, who had no other means to verify the relationship as asserted, to act accordingly. 102.Like what transpired at the trial below, the appellants argued that there was no inducement because the CSD first became aware that members of IPS were distributing pamphlets outside the LCKRC to promote its services including the Compensated Visiting Service. CSD obtained legal advice from the Department of Justice on 24 August 2011 but did not take any action there and then. The Magistrate dealt with this argument at [44]-[47] of her reasons for judgment. In gist, she pointed out that there is no evidence to suggest that the front line CSD officers knew the true identity of the appellants and yet allowed the visits. She did not consider that the CSD allowed the Compensated Visits to continue after the matter was exposed. The CSD did not take action right after obtaining legal advice was understandable. It was just like an undercover operation to gather further evidence against the crime. She also referred to PW2’s evidence that he had ordered the front line staff to be more alert of the Compensated Visits and to clarify if in doubt. However, having regard to the difficulty to verify the relationship between the visitor and the prisoner, the Magistrate understood the difficulty in stopping the Compensated Visits in reality. We agree with the Magistrate entirely. H4. Dishonesty 103.The Magistrate applied the Ghosh test (R v Ghosh 75 Cr App R 154, CA) and analysed the evidence on dishonesty at [50]-[65] of her reasons for judgment. Again we agree with her entirely. We just wish to add two points. 104.First, in our view, on the objective element of dishonesty, according to the ordinary standards of reasonable and honest people, what the appellants did by misrepresenting to the front line CSD officers that they were friends of the prisoners when they were not was surely dishonest. 105.Second, on the subjective element of dishonesty, the appellants relied on a number of matters. IPS offered and promoted the Compensated Visiting Service publicly. The appellants themselves conducted the Visits openly, wearing IPS’s green uniform all the time. CSD were fully aware of their activities but did not take any step to stop them. So the respondent had not proved the subjective element of dishonesty against them, the appellants contended. We disagree. The mere fact that IPS and the appellants had conducted themselves openly does not mean that they were not acting dishonestly. The appellants must know that they could not have gained access to the LCKRC to perform the Compensated Visits without misrepresenting that they were friends of the prisoners. They must have realised that what they did was dishonest. Such subjective knowledge did not change because of CSD’s knowledge of their activity or inaction as alleged. I. Conclusion 106.For the above reasons, we dismiss the appellants’ appeals. 107.Last but not least, we would like to thank the parties’ legal teams for their able assistance, although for the purposes of disposing of this appeal we need not deal with all the points raised by them in their submissions.
Mr Johannes Chan, SC, and Mr Douglas Kwok, instructed by Messrs Tang, Wong & Chow, for the first appellant Mr Eric Cheung, solicitor advocate, instructed by ONC Lawyers, for the second appellant Mr Philip Wong, instructed by Chan Raymond, Kenneth Yuen & Co., for the fourth and fifth appellants Mr David Leung, SC, DDPP, and Ms Audrey Parwani, Ag. SSP, of Department of Justice, for the respondent Appendix 1
Appendix 2
Appendix 3 [Appendix 3 is removed from the uploaded judgment to avoid disclosure of personal data of the remanded prisoners.] [1] At the trial, the first, second, fourth and fifth appellants were the first, second, eighth and ninth defendants respectively and there were five other defendants in the same case. [2] The fourth, fifth and sixth defendants had earlier pleaded guilty. [3] The numbers of hours imposed by the community service orders on the four appellants were 240 hours, 120 hours, 120 hours and 100 hours respectively. [4] Initially, the seventh defendant (i.e the third appellant) also appealed but he applied to abandon his appeal on 25 June 2014. Pang J (as he then was) allowed his application and dismissed his appeal on 25 July 2014. [5] All rules referred to hereinafter are provisions of the “Prison Rules”, unless otherwise stated. [6] See Rule 188(1)(a) – (c). [7] See Rule 188(1)(d) – (i). [8] When PW2 gave evidence, his rank was Superintendent. [9] What is stated in this section is the evidence presented before the Magistrate. For the purposes of this appeal, the respondent has filed further evidence to give fuller details of the registration procedures and security measures adopted for visits to LCKRC. [10] See Appendix 1. [11] See Appendix 2. Note that this Slipwas not produced as evidence at the trial but nothing turns on that on appeal. [12] Exhibit P89, IPS’s Business Registration record, Appeal Bundle, pp 191 – 193. [13] Exhibit D3, IPS’s Business Registration, Appeal Bundle, p 350. [14] Exhibit P90, Appeal Bundle, pp 195 – 210. [15] Exhibit P90, Appeal Bundle, pp 196 and 197. [16] Ibid. [17] Exhibit P90, Appeal Bundle, p 209. [18] Ibid. [19] The service charges were set and adjusted according to the minimum wages at that time. [20] Exhibit P90, Appeal Bundle, p 204. The evidence showed that sometimes, the charges of IPS were less than HK$300 : see, for example, Appeal Bundle, p 88. [21] Exhibit P91, Appeal Bundle, p 211; and PW2’s evidence, Appeal Bundle, p 414M. [22] Exhibit D2, Appeal Bundle, p 347. [23] See Appendix 3 for the details of the appellants’ compensated visits. [24] Appeal Bundle, p 390R – S. [25] Appeal Bundle, p391G – L. [26] Appeal Bundle, p 404E – I. [27] The same for the third and seventh defendants. [28] This is also the position of the third and seventh defendants. [29] Statement of Findings dated 17 September 2013, [18] – [21]. [30] Statement of Findings, [26]. [31] Statement of Findings, [28]. [32] Statement of Findings, [23] – [65]. [33] Statement of Findings, [66]. [34] See Part B above. [35] 5 days per week x 4 weeks x 15 minutes per visit = 300 minutes. [36] 2 visits per month x 30 minutes per visit = 60 minutes. [37] They echo section 9 of the HKBOR Ordinance which provides that “persons lawfully detained in penal establishments ... are subject to such restrictions as may from time to time be authorized by law for the preservation of ... custodial discipline.” [38] See the table comparing some of those provisions in Part II with the corresponding provisions in Part 1 on the same subject matters annexed to Mr Chan’s written submissions. [39] (1981) 3 EHRR 161. The case concerned men who had been convicted of “terrorist-type” offences in Northern Ireland and who were serving prisoners in HMP The Maze. They protested at the change of regime impose in 1976. In consequence the protesters were not permitted association with the rest of the prison community. This allegation was one of many brought before the Commission. The Commission rejected it, finding that the removal was a consequence of the disciplinary punishment of loss of privileges imposed with a view to bring the protests to an end. Therefore any interference was in accordance with the law and justified. [40] He was eventually convicted and sentenced to life imprisonment. [41] Approved by the Economic and Social Council by its resolutions 663C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977. [42] See the affirmation of Lam Wai On, Superintendent of the Penal Administration Section, Operations Division, CSD, dated 26 May 2015, at [13(ii) and (iii)]. In England, the Secretary of State for Justice adopts a similar stance : see R (on an application of Hawke) v Secretary of State for Justice [2015] EWHC 3599, at [14]. [43] See Lam Wai On’s Affirmation, supra, at [13]-[14]. | |||||||||||||||||||||||||||||||
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