HKSAR V . Wan Thomas and Others

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 KTCC 2097 OF 2013)

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J U D G M E N T

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Hon Poon JA (giving the Judgment of the Court) :

A.   Applications

1.By a judgment handed down on 17 October 2016, we dismissed the 4 appellants’ appeals against their conviction by the Magistrate on 13 September 2013.  By two Notices of Motion dated 24 October 2016, they now apply for leave to appeal against our judgment to the Court of Final Appeal under the “great and general importance” limb pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  The parties are content with a paper disposal of the applications.  Pursuant to directions, they have filed their written submissions, which we have duly considered.

2.The appellant raised two questions :

(1) On a proper construction, what is the meaning of “visitors” in the context of the Prison Rules, Cap 234A?

(2) If in the context of Rule 203, “visitors” bears the same meanings under Rule 48 and “friends” as a category of visitors means “personal friends” :

(a) Is Rule 203 compatible with article 6(2)(a) of the Hong Kong Bill of Rights?

(b) Is Rule 203 compatible with article 14 of the Hong Kong Bill of Rights?

B.   Discussion

3.The appellants submitted that the two questions of law of great and general important on the proper construction of “friends” of Rule 203 and Rule 48 of the Prison Rules, and in particular the meaning of “friends” in the context of Rule 203 and the constitutionality of Rule 203.  The determination of these questions would have a major impact on the unconvicted prisoners’ right to be visited by visitors under Rule 203 and would potentially affect every single Prisoner Awaiting Trial on a daily basis. The constitutionality of Rule 203 is of great and general importance in that it would have an impact on the visitors policy of correctional institutions in Hong Kong.

4.The respondent submitted that no point of law of great and general importance is involved.  It is because the potential impact on the population of Prisoners Awaiting Trial is not as major as suggested by the appellants.  Prisoners Awaiting Trial are a transient prison population, with a high degree of fluidity.  The majority of this population will not be detained for a prolonged period pending trial.  And within this population, not every Prison Awaiting Trial will be in the position where he has no friends or relatives willing to visit him.  In reality, any impact is limited to a small portion of the prison population.

5.In our view, the mere fact that Prisoners Awaiting Trial may be a transient prison population does not detract from the important issues raised by the appellants concerning the proper construction of Rule 203 and its constitutionality, which may potentially affect the present prison policy on visitors to Prisoners Awaiting Trial.  We accept that both questions are of great and general importance.

6.However, identification of questions of great and general importance does not necessarily entitle an applicant leave to appeal to the Court of Final Appeal.  For it is trite that where leave is sought on the basis that a point of law of great and general importance is involved in the decision, the point must be at least reasonably arguable : Lee Kin Pong v HKSAR [1998] 1 HKLRD 182, per Bokhary PJ at p 183F.

7.Insofar as the appellants rely on their submissions advanced before us at the substantive appeal hearing, we have for the reasons stated in our judgment rejected them.  We are not persuaded that those submissions are reasonably arguable for the purpose of granting leave to the Court of Final Appeal.

8.The appellants seek to rely on two additional authorities not cited to us, namely, Hysan Development Co Ltd and Others v Town Planning Board, FACV 21 & 22/2015, unreported, 26 September 2016 (in which the Court of Final Appeal decided that a fourth step should be added to the traditional three-step approach in the proportionality test); and Kong Yunming v Director of Social Welfare (2013) 16 HKCFAR 950.  The appellants in gist submitted that as fundamental rights are engaged, a vigorous scrutiny of the justification, including the factual and evidential basis of the justifications put forward by the respondent in justifying the restrictions of the category of visitors to Prisoners Awaiting Trial, is called for and there is a reasonably arguable case that the present justifications do not satisfy the proportionality test when properly applied.

9.With respect, when we applied the proportionality test as we did in our judgment, we were fully conscious of the need to scrutinize the restrictions on the evidence vigorously to see if they met the proportionality test.  And that was exactly what we had done.  The appellants have failed to persuade us that under the proportionality test as now propounded by the Court of Final Appeal in Hysan Development Co Ltd and Others v Town Planning Board, it is reasonably arguable that our judgment on articles 6(2)(a) and 14 in Parts F and G is wrong.

C.   Conclusion

10.For the above reasons, we refuse to grant leave to the appellants.  The two Notices of Motion are dismissed.

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 Jim & 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