HKSAR v. Fu Man Kit (符文傑）

Press Summary (English)

Press Summary (Chinese)

FACC No. 4 of 2021

[2021] HKCFA 34

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2021 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 458 OF 2019)

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JUDGMENT

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Chief Justice Cheung:

1.I agree with the joint judgment of Mr Justice Ribeiro and Mr Justice Lam PJJ.

Mr Justice Ribeiro and Mr Justice Lam PJJ:

2.In this appeal it falls to the Court to consider the scope of the doctrine of double jeopardy, both at common law and as reflected in Article 11(6) of the Bill of Rights (“BOR 11(6)”), in the context of penalties imposed on the appellant in disciplinary proceedings under the Prison Rules[1] and in a subsequent criminal prosecution arising out of the same incident.

A.     The facts

3.The appellant was being remanded in custody at the Lai Chi Kok Reception Centre[2] when he and another inmate (“Kwok”) assaulted a third prisoner (“Chung”) on 10 April 2017.  The evidence was that Chung was taking a nap on a bench in an activity room of the Centre that morning when someone kicked the bench. Chung stood up and found Kwok and the appellant in front of him.  Kwok suddenly punched Chung on the head, causing him to fall to the ground.  This was followed by further assaults by Kwok and the appellant on Chung. The three of them engaged in a fight until a Correctional Services officer separated them. Chung was sent to hospital and his medical report recorded findings of injuries sustained by him on his face, cheek, forehead, forearm and knee.

4.The prison authorities decided to take disciplinary action against all three. At the same time, at Chung’s request, a report was made to the police.  The police duly visited Chung at the prison on 19 April and a statement was taken from him on the next day.  The police also received his medical report and obtained the CCTV footage regarding the incident.

5.In the meantime, disciplinary hearings took place before the Acting Superintendent of the prison.  The three inmates were charged under Rule 61(x) of the Prison Rules which provides that every prisoner shall be guilty of an offence against prison discipline if he fights with any person.  The three inmates pleaded guilty to the charge.  In mitigation, Chung said he had fought back because the other two inmates had assaulted him.

6.In the exercise of his powers under Rules 62 and 63(1) of the Prison Rules, the Acting Superintendent ordered that the appellant be punished by the forfeiture of remission for 5 days, separate confinement for 21 days and forfeiture of privileges for 21 days.  As regards Kwok, the Acting Superintendent ordered forfeiture of remission for 3 days, separate confinement for 14 days and forfeiture of privileges for 14 days.

7.Whilst the Acting Superintendent accepted that Chung had only fought back as he was being assaulted, prison discipline forbade the use of violence.  He ordered against Chung forfeiture of remission for 1 day, separate confinement for 7 days and forfeiture of privileges for 7 days.

8.The police arrested Kwok for his involvement in the incident when he was in Stanley Prison on 14 August 2018.  By then the appellant had been released. The police could not find him and he was put on police’s wanted list. They managed to locate the appellant on 22 March 2019 and he was then arrested.

9.The appellant and Kwok were charged with the offence of assault occasioning actual bodily harm and were brought before a magistrate.  Kwok pleaded guilty to the charge. The appellant pleaded not guilty.

10.The trial took place on 14 August 2019 before the Magistrate, Ms Leung Siu-ling.[3] The appellant, represented by counsel,[4] applied to stay the proceedings on the ground of abuse of process, arguing that the criminal charge and the disciplinary proceedings for which the appellant had already been punished were based on the same or substantially the same facts so that the prosecution contravened the rule against double jeopardy.  

11.The Magistrate refused to stay the prosecution essentially on the ground that the relevant double jeopardy doctrine only applied in respect of prior proceedings before a court of competent jurisdiction, which did not include the disciplinary proceedings conducted by the Acting Superintendent. In so holding she relied on the English Court of Appeal’s decision in R v Hogan,[5] rejecting counsel’s submission that that authority had been overruled by R v Robinson.[6]  She also held that her conclusion was not affected by the Court of Appeal’s decision in Wong Tak Wai v Commissioner of Correctional Services.[7]  Those are decisions to which we shall return.  The stay having been refused, since the appellant did not dispute the facts, he was convicted as charged.

12.In passing sentence, the Magistrate took into account the forfeiture of remission that the appellant had been awarded in the disciplinary proceedings.  She adopted 21 days’ imprisonment as the starting point and deducted 7 days on account of the forfeited remission and further deducted 4 days on account of the delay in prosecution and the impact on the appellant’s life arising from his having to be re-imprisoned.  She accordingly sentenced the appellant to 10 days’ imprisonment.

13.On 11 March 2020, the appellant’s appeal against conviction based on the refusal of a stay was dismissed by Deputy High Court Judge Frankie Yiu[8] who largely upheld the Magistrate’s reasoning.  However, the Judge allowed his appeal against sentence and suspended the 10-day imprisonment sentence for one year on the ground that there would be greater disruption to the appellant’s life because the criminal proceedings had not been dealt with when he was serving his earlier prison sentence.

14.The Judge refused to certify a point of law for appeal to this Court, but on 17 March 2021, the Appeal Committee[9] granted leave to appeal certifying the following question as being of the requisite importance:

“Are disciplinary proceedings conducted under the Prison Rules (Cap. 234A), involving punishment by way of forfeiture of remission, ‘criminal proceedings’ by a body of competent jurisdiction such that the rule against double jeopardy applies?”

B.     Double jeopardy at common law

B.1   Autrefois acquit and autrefois convict

15.It is well-established that the court has an inherent power to protect its process from being abused.[10]  In its criminal jurisdiction, one such abuse which the court guards against is the repetition of charges against an individual after his or her acquittal or even after a conviction which was not followed by a punishment severe enough to satisfy the prosecutor.  As Lord Pearce explained:

“It was, no doubt, to meet those two abuses of criminal procedure that the court from its inherent power evolved the pleas of autrefois acquit and autrefois convict. For obvious convenience these were pleas in bar and, as such, fell to be decided before the evidence in the second case was known. They thus tended to look to form rather than to the substance that lay behind it. Where either of these pleas was made out, the defendant was entitled to an acquittal as of right, and no question of discretion or abuse or injustice could arise.”[11]

16.Thus, the focus of the autrefois pleas is on the elements which in law constitute the offences in question and not on the facts or conduct of the accused.  Those pleas are only available “in the narrowly defined situation where the elements of the second offence are the same as or included in the original offence”.[12] The appellant rightly accepts that the autrefois doctrine does not avail him in the present case.

B.2   Discretionary stay on grounds of double jeopardy

17.He does rely, however, on the second aspect of double jeopardy at common law which involves the discretionary power of the court, acting in its inherent jurisdiction, to stay proceedings which constitute an abuse of its process.  As Bokhary PJ pointed out in Yeung Chun Pong v Secretary for Justice:

“There is a discretionary power to stay a prosecution as an abuse of process where (i) a person faces a second trial arising from the same or substantially the same set of facts as gave rise to an earlier trial (whether in the same jurisdiction or in a competent court in another jurisdiction) and (ii) the prosecutor cannot advance any special or exceptional circumstances to justify the holding of a further trial.”[13]

18.Or as it was put in Ubamaka v Secretary for Security:[14]

“... the Court has power to stay proceedings as an abuse of process if the subsequent charge involves an attempt to re-prosecute a person previously convicted or acquitted on the same or substantially the same facts.”

19.As the power to order a stay is discretionary, it is generally exercised where pursuit of the second set of proceedings would be vexatious, oppressive, unfair, for an improper or ulterior motive or otherwise similarly objectionable.[15]

20.The proposition advanced by the appellant in support of a common law discretionary stay in the present case is that the disciplinary proceedings against the appellant for “fighting” in breach of Prison Rule 61(x) for which he was convicted and punished, constituted the relevant earlier trial and that it was an abuse of process to prosecute him again for assault occasioning actual bodily harm at the second trial which arose from the same or substantially the same set of facts.

B.3   Whether a discretionary stay is available

21.The question that immediately emerges is whether this aspect of the common law rule against double jeopardy – involving a discretionary stay for abuse of process – applies where the two sets of proceedings concerned involve a disciplinary hearing on the one hand and a prosecution in a criminal court on the other.

22.The courts have viewed disciplinary proceedings as different in significant respects from proceedings in the criminal courts, having different purposes and being concerned with a limited class of persons affected by the disciplinary rules, as opposed to the public at large who are subject to the general criminal law. 

23.In the context of prison disciplinary proceedings, in R v Board of Visitors of Hull Prison, Ex parte St Germain,[16] Shaw LJ highlighted the nature and purpose of prison disciplinary offences as follows:

“Such a [disciplinary] proceeding does not purport to deal with misconduct in its relation to the public law or the public interest albeit that the particular misconduct may have an impact on both. It is a proceeding designed and pursued with the limited objective of maintaining order within the confines of a prison, and it is in that narrow context that its character falls to be determined.”

24.The need for a special prison disciplinary regime and its differences from the law administered by the criminal courts were recognised in the European Court of Human Rights (“ECtHR”) in Campbell and Fell v United Kingdom,[17] where the Court stated:

“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.”

25.Since disciplinary offences usually apply only to limited classes of persons and are designed for specific, often institutional, objectives differing from the public purposes of generally applicable criminal offences, it is unsurprising that pursuing a combination of disciplinary and criminal proceedings will most usually not involve any abuse of process.  The discretion to stay proceedings on double jeopardy grounds has generally only been exercised where the earlier proceedings, based on the same or substantially the same facts, were tried by a court of competent jurisdiction.  The decisions of such courts have the attributes of res judicata.

26.Thus, in Connelly v DPP,[18] in summarising the governing principles and referring to situations not covered by the autrefois pleas in bar, Lord Morris of Borth-y-Gest stated:

“In my view, both principle and authority establish: ... (8) that, apart from circumstances under which there may be a plea of autrefois acquit, a man may be able to show that a matter has been decided by a court competent to decide it, so that the principle of res judicata applies; (9) that, apart from cases where indictments are preferred and where pleas in bar may therefore be entered, the fundamental principle applies that a man is not to be prosecuted twice for the same crime.”

27.In the same case,[19] Lord Pearce cited Blackburn J who, in 1875,[20] stated in relation to the case before his Lordship:

“The defence does not arise on a plea of autrefois convict, but on the well-established rule at common law, that where a person has been convicted and punished for an offence by a court of competent jurisdiction, transit in rem judicatam, that is, the conviction shall be a bar to all further proceedings for the same offence, and he shall not be punished again for the same matter; otherwise there might be two different punishments for the same offence.”

28.In R v Hogan,[21] the appellants had been subjected to disciplinary penalties for escaping from prison and were thereafter prosecuted on indictment for the offence of prison breach involving the same acts on their part.  Their submission that the prison breach charge should not have been left to the jury was rejected on the basis that the double jeopardy principle “is meant to apply and can only apply to the decisions of courts of competent jurisdiction”.

29.In R v Statutory Committee of the Pharmaceutical Society of Great Britain, Ex parte Pharmaceutical Society of Great Britain,[22] Lord Lane CJ refused judicial review which had been sought to prevent disciplinary proceedings being brought by a professional society against pharmacists in respect of their conduct which had already led to their conviction for unlawful wounding.  His Lordship stated:

“... the maxim, in whatever form one chooses to relate it,[23] has no reference to tribunals such as this one at all. First of all, although the facts might be the same before the criminal court and before the tribunals, the offence and the findings are totally distinct. Secondly, it is plain on the authorities that a tribunal such as this is not a court of competent jurisdiction to which the maxim applies.”

30.Many similar statements can be found, inter alia, in English and Northern Irish authorities.[24]  And in our jurisdiction, as we have seen, in Yeung Chun Pong v Secretary for Justice,[25]Bokhary PJ referred to the common law doctrine’s operation where “a person faces a second trial arising from the same or substantially the same set of facts as gave rise to an earlier trial (whether in the same jurisdiction or in a competent court in another jurisdiction)”.

31.It is accordingly clear that the appellant’s application to stay the criminal prosecution for the assault offence on the basis that he had previously been subjected to prison disciplinary proceedings was rightly rejected by the Courts below.  It is true that the criminal proceedings were based on the same or substantially the same facts but the Acting Superintendent who conducted the disciplinary proceedings and awarded the penalties was plainly not a court of competent jurisdiction. 

B.4   R v Hogan and R v Robinson

32.Before leaving this aspect of the appeal, we should say something about R v Robinson.[26]  The magistrate relied on R v Hogan,[27] in holding that discretionary double jeopardy stays are confined to cases involving a prior decision of a court of competent jurisdiction.  As we have noted above, she was in good company in reaching that conclusion.  However, Mr Derek Chan SC, appearing on the appellant’s behalf,[28] relies on what he accepts is an obiter dictum in Robinson for contending that in the light of a “substantial body of subsequent jurisprudence on the test for classifying a proceeding as criminal in nature”,[29] Hogan “no longer stands”.[30]

33.In our view, Robinson has little bearing on the issues in the present appeal and, with respect, we do not in any event think that the dictum relied on by the appellant is justified. 

34.The appellant in Robinson was serving a 40 months’ sentence of imprisonment for burglary when he absconded from the prison.  On being recaptured, he was dealt with for the escape as a disciplinary offence under the Prison Rules and received a sentence from the independent adjudicator (a District Judge who did not know that the matter had been reported to the police) of 14 days’ imprisonment consecutive to the sentence he was already serving.  Some weeks later, the appellant appeared in the Crown Court on a charge of escape from lawful custody.  On his guilty plea (no reference having been made to the disciplinary sentence), he was sentenced to three months’ imprisonment consecutive to his existing sentence. 

35.When (as Haddon-Cave J, as his Lordship then was, puts it) “[the] unfairness visited upon the defendant by being sentenced twice for the same offence was fortunately picked up by an alert prison law consultant”[31], the appellant was granted leave to appeal out of time.  In the Court of Appeal, it was “common ground that the adjudication and conviction [could not] both stand”.[32]

36.The parties’ respective counsel differed as to which of these – the disciplinary adjudication or the conviction – should be set aside.  Counsel for the appellant submitted that the criminal prosecution should go because: “... the adjudication amounted to a criminal proceeding by a court of competent jurisdiction to which the rule against double jeopardy autrefois convict applies, and accordingly, the Crown Court was barred from further convicting and punishing the defendant for the same offence and the conviction should be quashed.”[33] Pausing here, if that approach were adopted, Robinson would give no support for the present appellant’s contention that Hogan can no longer stand in relation to the court of competent jurisdiction requirement.  While one might debate the principle’s applicability to a District Judge sitting as an independent adjudicator under the Prison Rules, if it was properly classified as a decision by a court of competent jurisdiction, there would be no departure from the approach adopted in Hogan and the other cases cited above.

37.Counsel for the Crown submitted on the other hand that the adjudication rather than the criminal sentence should be quashed.  He submitted that the independent adjudicator had proceeded in violation of the Prison Rules which provided that a prison adjudication should not be pursued if there were extant criminal proceedings for the same offence so that the adjudication was ultra vires and, he submitted, void ab initio.  He argued that “[the] defendant was not therefore autrefois convict when he appeared in the Crown Court, and the proceedings there were not an abuse of process, and accordingly the conviction and sentence in the Crown Court should stand.”[34]

38.The Court adopted the latter approach and held the adjudication was void ab initio.[35] The Court reconstituted itself as the Administrative Court and gave relief by way of judicial review, quashing the adjudication and setting aside the penalty of 14 days’ imprisonment.[36]

39.The case was therefore resolved without resort to any double jeopardy doctrine and the view expressed obiter that Hogan somehow could not stand in the light of the Strasbourg and other decisions mentioned was quite unnecessary and, with great respect, as we shall endeavour to show,[37] unwarranted.

C.     BOR 11(6)

C.1   Substantive versus procedural 

40.The Hong Kong Bill of Rights Ordinance,[38] enacting the Hong Kong Bill of Rights, implements the International Covenant on Civil and Political Rights (“ICCPR”) as applied to Hong Kong in accordance with Article 39 of the Basic Law and is thereby given constitutional status. 

41.Under the heading: “Rights of persons charged with or convicted of criminal offence” in Article 11 of the Bill of Rights, BOR 11(6) provides as follows:

“(6) No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of Hong Kong.”

Its wording mirrors that of Article 14.7 of the ICCPR which it implements.

42.Also found under the Article 11 heading are the provisions of BOR 11(1) and 11(2)(a) to (g) which state as follows:

“(1) Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

(2) In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality—

(a) to be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) to be tried without undue delay;

(d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) to have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) not to be compelled to testify against himself or to confess guilt.”

43.BOR 11(1) and 11(2)(a) to (g) implement ICCPR 14.2 and 14.3(a) to (g) which are materially in the same terms.  They lay down minimum guarantees of a procedural character to be adopted “[in] the determination of any criminal charge against” any person, consisting of the right to be presumed innocent; to be informed of the charge; to have the opportunity to prepare one’s defence; to be tried without undue delay; to be present and to have legal assistance at the trial; to question and have access to witnesses; to have an interpreter if needed; and not to be compelled to testify against oneself or to confess guilt. 

44.Those rights or privileges flesh out some of the procedural aspects of the guarantee of a fair hearing laid down by BOR 10 (reflecting ICCPR 14.1) which relevantly states:

“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.”

45.It is centrally important to note that the nature and purpose of, and protection afforded by, BOR 11(6) are qualitatively different from those of BOR 11(1) and 11(2).  BOR 11(6) is substantive and not procedural.  It is not concerned with prescribing fair procedures designed to achieve a fair hearing.  It lays down a substantive rule that bars the trial or punishment of any person for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of Hong Kong. It thus prohibits any impugned hearing from taking place at all.

46.The essential difference between the aforesaid substantive and procedural provisions[39] is recognised in General Comment No 32 on ICCPR 14 (“GC 32”)[40] which materially states as follows:

“Article 14 is of a particularly complex nature, combining various guarantees with different scopes of application. ... Paragraphs 2 - 5 of the article contain procedural guarantees available to persons charged with a criminal offence. ... Paragraph 7 prohibits double jeopardy and thus guarantees a substantive freedom, namely the right to remain free from being tried or punished again for an offence for which an individual has already been finally convicted or acquitted.”[41]

C.2   When BOR 11 guarantees are engaged and the consequences

47.The aforesaid distinction must be kept in mind because the wording of BOR 11(6) as well as BOR 10 and BOR 11(1) and 11(2) superficially appear to make engagement of the respective rights or privileges in question uniformly dependent on the existence of “criminal charges” or “criminal offences”, ie, dependent on the case being classified as “criminal”.  Thus, BOR 10 and BOR 11(2) apply “[in] the determination of any criminal charge against” the person concerned; BOR 11(1) applies to “[everyone] charged with a criminal offence” and BOR 11(6) applies where the relevant person is potentially to be “tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of Hong Kong”, clearly referring to consecutive trials or punishments for criminal offences.

48.One might therefore be led to conclude that the requirements for triggering the operation of both sets of rights and privileges are the same and that “criminal” in both contexts should be given the same meaning.  However, such an approach fails to distinguish between the very different consequences flowing from a decision resulting in the activation of the procedural safeguards as opposed to one holding that a proposed trial or punishment is barred on double jeopardy principles.    This is especially important when, based on the jurisprudence of the ECtHR on the European Convention of Human Rights (“ECHR”), an approach giving the concept of “criminal” a wide “autonomous” meaning has become well-established with a view to triggering the procedural safeguards.  It is by no means necessarily appropriate for the meaning of “criminal” in the double jeopardy context to be similarly widened, given the substantively different consequences referred to above. We turn now to trace the development of those authorities.

C.3   The Engel criteria developed by the ECtHR

49.The ECHR stipulates fair hearing safeguards in terms similar to, but less extensive than, those contained in the ICCPR and BOR provisions referred to in Section C.1 of this judgment.  Its Article 6 (“ECHR Art 6”) provides as follows:

1.  In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.  (Cf BOR 10, ICCPR 14.1)

2.  Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. (Cf BOR 11(1), ICCPR 14.2)

3.  Everyone charged with a criminal offence has the following minimum rights: (Cf BOR 11(2), ICCPR 14.3)

(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (Cf BOR 11(2)(a), ICCPR 14.3(a))

(b)  to have adequate time and facilities for the preparation of his defence; (Cf BOR 11(2)(b), ICCPR 14.3(b))

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (Cf BOR 11(2)(d), ICCPR 14.3(d))

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (Cf BOR 11(2)(e), ICCPR 14.3(e))

(e)  to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” (Cf BOR 11(2)(f), ICCPR 14.3(f))

50.It should be noted that the ECHR, as adopted in 1950, does not contain any equivalent to BOR 11(6) and does not provide for protection against double jeopardy.[42] It was not until almost forty years later, when the Seventh Protocol to the Convention entered into force in 1988, that such a measure was brought into existence for those States which ratified the Protocol.  Article 4(1) of Protocol 7 (“Art 4(1) P7”) states as follows:

“No one shall be liable to be tried or punished again in criminal proceedings under the jurisdiction of the same State for an offence for which he has already been finally acquitted or convicted in accordance with the law and penal procedure of that State.”

51.It is important to register that the judgment whereby the ECtHR established a widened “autonomous meaning” for the concept of “criminal” was published in 1976 and was concerned solely with the ECHR’s fair hearing guarantees, well before any protection against double jeopardy found its way into the Convention’s scheme.  That decision is Engel v The Netherlands (No 1),[43] which involved military disciplinary proceedings in which penalties were imposed on conscript soldiers serving in the Netherlands armed forces.  Under Netherlands law, such proceedings were designated as disciplinary and not criminal but the applicants argued that those proceedings and the potential penalties were such as to merit their being treated as criminal so as to engage the fair hearing guarantees in ECHR Art 6. 

52.Their argument succeeded.  The ECtHR propounded three criteria for determining “whether a given ‘charge’ vested by a State … with a disciplinary character nonetheless counts as ‘criminal’ within the meaning of Article 6”.[44] First, the Court would consider how the State domestically classified the offence charged.  This was, however, just a starting-point which had to be “examined in the light of the common denominator of the respective legislation of the various Contracting States.”[45]  Secondly, it would consider “[the] very nature of the offence” which “is a factor of greater import”.  Thirdly, and frequently most crucially, the ECtHR would “take into consideration the degree of severity of the penalty that the person concerned risks incurring.”[46]  The Court emphasised the importance of this third criterion stating:

“In a society subscribing to the rule of law, there belong to the ‘criminal’ sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental. The seriousness of what is at stake, the traditions of the Contracting States and the importance attached by the Convention to respect for the physical liberty of the person all require that this should be so ...”[47]

53.In Engel, that third criterion was decisive.  The penalties which could be imposed in the disciplinary proceedings included committing the applicants to a disciplinary unit where, during a month or more, they were not entitled to leave the establishment and spent the night locked in a cell.[48] The Court held that the charges “did indeed come within the ‘criminal’ sphere since their aim was the imposition of serious punishments involving deprivation of liberty ...”[49]  It noted that one of the applicants had not suffered such a penalty but held that this did not affect the autonomous classification as “criminal” since “the final outcome of the appeal cannot diminish the importance of what was initially at stake.”[50]  The Court was therefore emphasising “what was at stake”, meaning the severity of the potential penalties which the disciplinary tribunal might impose, as the most important factor in deciding whether the fair hearing guarantees should be applied to its proceedings.

54.While the ECtHR’s focus in Engel was on disciplinary proceedings, the three criteria have been applied to charges and penalties in many other areas, progressively widening the concept of “criminal” for the purpose of engaging the fair hearing guarantees.  As the Court noted in Jussila v Finland:[51]

“... the autonomous interpretation adopted by the Convention institutions of the notion of a ‘criminal charge’ by applying the Engel criteria have underpinned a gradual broadening of the criminal head to cases not strictly belonging to the traditional categories of the criminal law, for example administrative penalties, (Öztürk v Germany, 21 February 1984, §54, Series A no. 73), prison disciplinary proceedings (Campbell and Fell v the United Kingdom, 28 June 1984, Series A no. 80), customs law (Salabiaku v France, 7 October 1988, Series A no. 141-A), competition law (Société Stenuit v France, 27 February 1992, Series A no. 232-A), and penalties imposed by a court with jurisdiction in financial matters (Guisset v France, no. 33933/96, ECHR 2000-IX).”

55.The two ECtHR judgments relied on by the appellant in support of his argument that the Engel criteria should apply to prison disciplinary proceedings in the present context, namely, Campbell and Fell v United Kingdom,[52] and Ezeh and Connors v United Kingdom,[53]are both cases where the issue was whether certain fair hearing guarantees under ECHR Art 6 were engaged.  They were not concerned with double jeopardy. 

56.Thus, in Campbell and Fell, the applicants were charged with disciplinary offences including mutiny, incitement to mutiny and doing gross personal violence to an officer.  The Engel criteria were applied to decide whether those disciplinary charges constituted “criminal charges” for the purposes of ECHR Art 6.  The Court gave an affirmative answer, the severity of the potential penalties and those actually imposed proving decisive. Referring to the applicant Campbell, the Court stated:

“The maximum penalties which could have been imposed on him included forfeiture of all of the remission of sentence available to him at the time of the Board’s award (slightly less than three years), forfeiture of certain privileges for an unlimited time and, for each offence, exclusion from associated work, stoppage of earnings and cellular confinement for a maximum of 56 days; he was in fact awarded a total of 570 days’ loss of remission and subjected to the other penalties mentioned for a total of 91 days.”[54]

57.There was some debate as to whether forfeiture of remission constituted a fresh deprivation of liberty but, given the seriousness of the potential penalties at stake, the Court thought the argument somewhat technical and did not accord it much weight:

“By causing detention to continue for substantially longer than would otherwise have been the case, the sanction came close to, even if it did not technically constitute, deprivation of liberty and the object and purpose of the Convention require that the imposition of a measure of such gravity should be accompanied by the guarantees of Article 6 .”[55]

58.Campbell and Fell was therefore purely about the ECHR Art 6 fair hearing guarantees.  As it was decided in 1984, before Art 4(1) P7 came into force, it was obviously not about double jeopardy in the ECHR context. 

59.In Ezeh and Connors v United Kingdom,[56] the applicant prisoners claimed that their ECHR Art 6(3)(c) rights had been violated by them being denied legal representation in disciplinary proceedings before the prison governor regarding offences involving use of threatening language and assault committed while in custody.  Art 4(1) P7 was not in issue since the United Kingdom had not (and still has not) signed or ratified Protocol Seven.[57]

60.In applying the Engel criteria, especially on the question of penalty, the Grand Chamber noted that the former system involving a discretionary loss of remission had been replaced and examined the non-discretionary regime which then governed the release of prisoners on licence after completion of the relevant part of their sentence.  Under the new regime, the prisoner was entitled to be released subject to any award in disciplinary proceedings of “additional days” prolonging the detention.[58]  The Court found the violation established, emphasising the importance of the fair hearing guarantees under ECHR Art 6 in the context:

“While the Court in its Campbell and Fell judgment therefore recognised the special nature of the prison environment which distinguished prisons from the military context examined in the Engel case, it went on to emphasise the fundamental nature of the fair hearing guarantees of Art 6 and that there was, in appropriate cases, no warrant for depriving prisoners of the safeguards of that Article.”

It added that it would apply Engel:

“... in a manner consistent with the object and purpose of Art 6 of the Convention, while making ‘due allowance’ for the prison context and for the ‘practical reasons and reasons of policy’ in favour of establishing a special prison disciplinary regime.”[59]

Ezeh and Connors was thus also a case concerned solely with ECHR Art 6 procedural safeguards and not double jeopardy. 

C.4   Operation of the fair hearing guarantees in Hong Kong

61.In Hong Kong, the Engel criteria have been adopted in determining whether a charge is “criminal” for the purposes of deciding whether the fair hearing guarantees under the BOR are engaged.  Those criteria are regarded as appropriate since they are designed to ensure that where a great deal is at stake for the person implicated in the proceedings (where he or she is at risk of severe penalties), fair hearing guarantees will be applied.  However, to date, the Engel criteria have never been adopted as the basis for engaging BOR 11(6) in relation to double jeopardy.

62.The leading case in this context is the Court’s decision in Koon Wing Yee v Insider Dealing Tribunal,[60] which was concerned with an inquiry by the Insider Dealing Tribunal conducted under the Securities (Insider Dealing) Ordinance.  At issue was whether the BOR fair trial guarantees applied to the Tribunal’s proceedings and if so, whether use by the Tribunal of incriminating answers compulsorily given to incriminating questions and its application of the civil standard of proof complied with BOR 10, BOR 11(1) and BOR 11(2)(g). 

63.Sir Anthony Mason NPJ, with whom the other members of the Court agreed, applied the Engel criteria, holding that the domestic classification of the proceedings was civil;[61] that the nature of the insider dealing offence involved very serious misconduct so that very serious injury to reputation might flow from an adverse finding;[62] and that the potential penalty of up to treble the amount of the benefit generated by the insider dealing was punitive and deterrent and akin to a fine.[63]  The penalty criterion was crucial, leading his Lordship to conclude that “the proceedings involved the determination of a criminal charge by reason of the power to impose a penalty under s 23(1)(c) of [the Ordinance].”[64]  On the basis of that conclusion, the applicable standard of proof was held to be the criminal standard.[65] However, in order to fashion a remedy which best conformed with the legislative intention, the Court adopted a remedial interpretation of the Ordinance and excised section 23(1)(c) which had provided for the penalty resulting in the proceedings being classified as “criminal”.  The Court thereby re-classified the proceedings, taking them outside the Engel criteria, and thus preserved the findings of the Tribunal and its orders for disqualification.[66] 

64.Koon Wing Yee was therefore also concerned purely with the procedural and evidential aspects of a fair hearing.  It did not touch on double jeopardy.  Similarly, in Wong Tak Wai v Commissioner of Correctional Services,[67] the Court of Appeal applied the Engel criteria in addressing the proper standard of proof to be applied to prison disciplinary proceedings and was obviously also concerned with fair hearing guarantees.  Double jeopardy was not in issue.

65.Double jeopardy and BOR 11(6) were issues raised in argument in Ubamaka v Secretary for Security.[68]  That was a case involving a Nigerian national who had been convicted of drug trafficking and was being released on remission after serving two-thirds of his sentence of 24 years’ imprisonment in Hong Kong.  He was due to be deported back to Nigeria but sought to resist the deportation order on the footing that if returned to that country, he would face further punishment for his drug trafficking offence under a Nigerian statute.[69] That, he contended, would be double jeopardy prohibited by BOR 11(6) and which would, moreover, constitute cruel, inhuman or degrading treatment or punishment (“CIDTP”) absolutely barred by BOR 3. 

66.In the event, the Court did not deal with the scope of BOR 11(6), leaving that question open,[70] since it held that the appellant’s situation did not raise BOR 3 CIDTP issues so that reliance on BOR 11(6) was excluded by the immigration reservation contained in section 11 of the Hong Kong Bill of Rights Ordinance.[71]  Furthermore, it was unnecessary to deal with BOR 11(6) since it was held to apply only within the territorial limits of the HKSAR.[72]  Ubamaka therefore throws no light on the issues presently under discussion.  It certainly gives no support to the application of the Engel criteria for determining whether BOR 11(6) is engaged.

C.5   Application of the Engel criteria to Art 4(1) P7

67.A turning point in the ECtHR’s jurisprudence was its decision in Zolotukhin v Russia,[73] when the Engel criteria were applied to determine whether proceedings were “criminal proceedings” for the purposes of Art 4(1) P7.

68.In Zolotukhin, the Gribanovskiy District Court convicted the applicant of administrative offences involving swearing at police officers and not responding to rebukes, constituting “minor disorderly acts” contrary to Art 158 of the Code of Administrative Offences (“Administrative Code”).  It sentenced him to three days’ administrative detention.  Some two weeks later, he was prosecuted for having committed three different offences under the Criminal Code of the Russian Federation (“Criminal Code”) (Art 213 §2(b) for disorderly acts, including resisting a public official dealing with a breach of public order; Art 319 for intentionally and publicly insulting a public official in the course of his official duties; and Art 318 §1 for threatening to use violence against a public official in connection with the latter’s performance of his official duties). 

69.The applicant complained under Art 4(1) P7 that after he had already served three days’ detention for disorderly acts committed in violation of Art 158, he had been tried again for the same offence. The question therefore arose as to whether such conviction and detention, which were domestically classified as “administrative” rather than “criminal”, should be classified as “criminal” so that the applicant can be said to have been “finally acquitted or convicted in accordance with the law and penal procedure of that State” within the meaning of Art 4(1) P7. 

70.The Court adopted the Engel criteria to determine that question.  While it noted that the domestic classification of “minor disorderly acts” was “administrative”, it went on to hold that the provisions of the Administrative Code were directed “towards all citizens rather than towards a group possessing a special status”; that the “minor” nature of the acts did not exclude classification as “criminal”; that “the primary aims in establishing the offence in question were punishment and deterrence, which are recognised as characteristic features of criminal penalties”; and that the maximum sentence of 15 days’ imprisonment involved the loss of liberty, giving rise to a presumption that the charges were “criminal”, a presumption “which can be rebutted entirely exceptionally, and only if the deprivation of liberty cannot be considered ‘appreciably detrimental’ given their nature, duration or manner of execution”.[74] 

71.Taking those factors together, it concluded that “the nature of the offence of ‘minor disorderly acts’, together with the severity of the penalty, were such as to bring the applicant’s conviction on 4 January 2002 within the ambit of ‘penal procedure’ for the purposes of [Art 4(1) P7].”[75] Applied to the facts, the Court found that the proceedings instituted under Art 213 §2(b) of the  Criminal Code concerned essentially the same offence as that of which he had already been convicted under Art 158 of the Administrative Code so that those proceedings were a violation of Art 4(1) P7 and could not be pursued.  The other two further charges involved no duplication and no such violation.

C.6   The reaction to Zolotukhin

72.It seems clear that the prospect of the Engel criteria being applied to trigger the substantive consequences of double jeopardy under Art 4(1) P7 – as later materialised in the Zolotukhin decision – had been a cause for concern amongst certain State Parties to the ECHR.  Such concern is evident from their non-ratification of, and reservations expressed regarding, Art 4(1) P7.  Thus, as the Court later pointed out:

“It should not be overlooked in this context that the right not to be tried or punished twice was not included in the Convention adopted in 1950 but was added in a seventh protocol (adopted in 1984), which entered into force in 1988, almost 40 years later. Four States (Germany, the Netherlands, Turkey and the United Kingdom) have not ratified the Protocol; and one of these (Germany) plus four States which did ratify (Austria, France, Italy and Portugal) have expressed reservations or interpretative declarations to the effect that ‘criminal’ ought to be applied to these States in the way it was understood under their respective national laws.”[76]

73.The reservations or interpretative declarations are telling.  The States in question were making it clear that they did not want the enlarged, Engel meaning to be given to “criminal” for the purposes of Art 4(1) P7 and so declared that their domestic classification of offences designated as “criminal” should be retained.  Those were all States that had accepted adoption of the Engel criteria for the purposes of engaging the fair hearing procedural guarantees, but they were not prepared to permit such criteria to be applied to trigger substantive double jeopardy restrictions.

74.After the Zolotukhin decision, the prospect of having a minor disciplinary or administrative offence deemed “criminal” by applying the Engel criteria resulting, without more, in the barring, under Art 4(1) P7, of subsequent prosecutions for potentially serious offences was evidently disconcerting. 

75.Resistance to the Zolotukhin approach manifested itself when the issue came before the Grand Chamber in A and B v Norway,[77] a case in which the applicants had failed to declare transactions resulting in unpaid taxes totalling about €3.6 million.  They paid a tax penalty of 30% and then were indicted and each sentenced to prison for one year for aggravated tax fraud.  They complained of a violation of Art 4(1) P7 contending that they had been prosecuted and punished twice in respect of the same offence.  The Norwegian Government resisted the application of the Engel criteria to determine whether the tax penalty was “criminal”.

76.Comments were received from Intervening Third Parties, namely, the Governments of Bulgaria, the Czech Republic, Greece, France, the Republic of Moldova and Switzerland, aligning themselves with the Norwegian Government.[78] Cogent arguments were advanced against applying the broadened Engel meaning of “criminal” to Art 4(1) P7, emphasising the differences in that provision’s wording, purposes and substantive operation as compared with the procedural requirements of ECHR Art 6.

77.Thus, the Government of Norway;

“... invited the Grand Chamber to confirm the approach taken in a series of cases predating the Zolotukhin judgment, namely that a wider range of factors than the Engel criteria (formulated with reference to Article 6) were relevant for the assessment of whether a sanction was ‘criminal’ for the purposes of [Art 4(1) P7]. They contended that regard ought to be had to such factors as the legal classification of the offence under national law; the nature of the offence; the national legal characterisation of the sanction; its purpose, nature and degree of severity; whether the sanction was imposed following conviction for a criminal offence; and the procedures involved in the adoption and implementation of the sanction ...”[79]

78.It submitted:

“... that the different wording and object of the provisions clearly suggested that the notion of ‘criminal proceedings’ under [Art 4(1) P7] was narrower than the use of ‘criminal’ under Article 6. It transpired from the Explanatory Report in respect of Protocol No 7 that the wording of Article 4 had been intended for criminal proceedings stricto sensu. ... In paragraph 32 it was stressed that [Art 4(1) P7] did not prohibit proceedings ‘of a different character (for example, disciplinary action in the case of an official)’. Moreover, Article 6 and [Art 4(1) P7] safeguarded different, and at times opposite, aims. Article 6 was aimed at promoting procedural safeguards in criminal proceedings.”[80]

79.The Court recorded some of the arguments advanced by the Third Party Interveners against adopting the Engel criteria, including the following: 

(a) “The Bulgarian Government, referring to the wording of the provision and its purpose, maintained that only traditional criminal offences fell within the ambit of [Art 4(1) P7]. Whilst extending the scope of Article 6 was paramount for the protection of the right to a fair trial, the purpose of the provision in the Protocol was different.”[81]

(b) “The French Government ... argued that the terms used in [Art 4(1) P7], which differed from those in Article 6(1) of the Convention, must result in the adoption of narrower criteria serving the principle of ne bis in idem protected by [Art 4(1) P7] ... This was borne out by the fact that no derogation from [Art 4(1) P7] was allowed under Article 15, whereas that Article did provide for derogation from Article 6.  ... [The] Court should, in applying [Art 4(1) P7], ... assign to the words ‘in criminal proceedings’, ... the strict meaning that was called for.”[82]

80.The Grand Chamber acknowledged the cogency of these arguments:

“A number of arguments going in the direction of such an interpretive approach do exist, in particular that [Art 4(1) P7] was apparently intended by its drafters for criminal proceedings in the strict sense and that – unlike Article 6, but like Article 7 – it is a non-derogable right under Article 15. Whilst Article 6 is limited to embodying fair-hearing guarantees for criminal proceedings, the prohibition of double jeopardy in [Art 4(1) P7] has certain implications – potentially wide ones – for the manner of applying domestic law on criminal and administrative penalties across a vast range of activities. The latter Article involves a more detailed assessment of the substantive criminal law, in that there is a need to establish whether the respective offences concerned the same conduct (idem). These differences, the lack of consensus among the domestic systems of the Contracting States and the variable willingness of States to be bound by the Protocol and the wide margin of appreciation to be enjoyed by the States in deciding on their penal systems and policies generally ... are well capable of justifying a broader range of applicability criteria, in particular with a stronger national‑law component, as used for Article 7 and previously used [before Zolotukhin], for [Art 4(1) P7], and hence a narrower scope of application, than is the case under Article 6.”[83]

81.Nevertheless, the Court found “it more appropriate, for the consistency of interpretation of the Convention taken as a whole, for the applicability of the principle to be governed by the same, more precise criteria as in Engel.”[84] It therefore did not depart from Zolotukhin’s application of the broadened criteria to for determining what was “criminal” in cases where Art 4(1) P7 was invoked.  However, the Court did not let the position rest there.  It hastened to add:

“That said, ... once the ne bis in idem principle has been found to be applicable, there is an evident need for a calibrated approach in regard to the manner in which the principle is applied to proceedings combining administrative and criminal penalties.”[85]

82.In ECHR Art 6 cases, once a matter is classified, applying the Engel criteria, as a “criminal offence”, it automatically follows that the fair hearing guarantees apply.  But under the “calibrated approach” to Art 4(1) P7 developed in A and B v Norway, the prohibition against double jeopardy in respect of dual proceedings does not automatically follow.  The Court pointed out that “the Zolotukhin judgment offered little guidance for situations where the proceedings have not in reality been duplicated but have rather been combined in an integrated manner so as to form a coherent whole.”[86]

83.Referring to earlier case-law, the Court noted that:

“... the imposition by different authorities of different sanctions concerning the same conduct was accepted by the Court as being to some extent permissible under [Art 4(1) P7], notwithstanding the existence of a final decision. This conclusion can be understood as having been based on the premise that the combination of sanctions in those cases ought to be considered as a whole, making it artificial to view the matter as one of duplication of proceedings leading the applicant to being ‘tried or punished again .... for an offence for which he has already been finally ... convicted’ in breach of [Art 4(1) P7].”[87]

84.This “combined integrated” approach was illustrated by reference to cases where the sanction of withdrawal of a driving licence was combined with criminal penalties such as a suspended sentence, a fine or community service;[88] and where tax penalties levied administratively were coupled with sentences for tax fraud.[89]  The Court observed that:

“... States should be able legitimately to choose complementary legal responses to socially offensive conduct (such as non-compliance with road-traffic regulations or non-payment/evasion of taxes) through different procedures forming a coherent whole so as to address different aspects of the social problem involved, provided that the accumulated legal responses do not represent an excessive burden for the individual concerned.”[90]

It added:

“It cannot be the effect of [Art 4(1) P7] that the Contracting States are prohibited from organising their legal systems so as to provide for the imposition of a standard administrative penalty on wrongfully unpaid tax (albeit a penalty qualifying as ‘criminal’ for the purposes of the Convention’s fair-trial guarantees) also in those more serious cases where it may be appropriate to prosecute the offender for an additional element present in the non-payment, such as fraudulent conduct, which is not addressed in the ‘administrative’ tax‑recovery procedure. The object of [Art 4(1) P7] is to prevent the injustice of a person’s being prosecuted or punished twice for the same criminalised conduct. It does not, however, outlaw legal systems which take an ‘integrated’ approach to the social wrongdoing in question, and in particular an approach involving parallel stages of legal response to the wrongdoing by different authorities and for different purposes.”[91]

85.The Grand Chamber summarised the principle as follows:

“... [Art 4(1) P7] does not exclude the conduct of dual proceedings, even to their term, provided that certain conditions are fulfilled. In particular, for the Court to be satisfied that there is no duplication of trial or punishment (bis) as proscribed by [Art 4(1) P7], the respondent State must demonstrate convincingly that the dual proceedings in question have been ‘sufficiently closely connected in substance and in time’. In other words, it must be shown that they have been combined in an integrated manner so as to form a coherent whole. This implies not only that the purposes pursued and the means used to achieve them should in essence be complementary and linked in time, but also that the possible consequences of organising the legal treatment of the conduct concerned in such a manner should be proportionate and foreseeable for the persons affected.”[92]

C.7   Whether the Engel criteria are applicable to BOR 11(6)

86.The Strasbourg Court felt constrained to seek consistency with the Grand Chamber’s earlier decision in Zolotukhin by applying the Engel criteria to trigger the double jeopardy provisions of Art 4(1) P7.  But it qualified the effect of so doing by developing principles permitting there to be dual sanctions imposed by different authorities where they operate as a response to the impugned conduct of the accused as an integrated whole. 

87.This Court is under no such constraint and we see no justification for applying the Engel criteria to BOR 11(6) nor for consequently adopting the corrective “integrated whole” doctrine developed in A and B v Norway. 

88.As we have noted, under Hong Kong law, it has been held that it is appropriate for the Engel criteria to be applied for the purposes of determining whether the procedural fair hearing guarantees under BOR 11(1) and 11(2)(a) to (g) are engaged.  The emphasis of those criteria on the seriousness of what is at stake for the implicated person justifies the triggering of the procedural guarantees in proceedings which come within the autonomous meaning but which may not strictly be “criminal”.  However, the cogent arguments examined above lead us to conclude that those expanded criteria should not be applied to BOR 11(6).

89.As we have been at pains to point out, and as was forcefully argued by the Norwegian Government and the Third Party Interveners in A and B v Norway (and indeed acknowledged by the ECtHR),the nature and purpose of Art 4(1) P7 (the BOR 11(6) equivalent), are qualitatively different from those of ECHR Art 6 (its counterparts being BOR 11(1) and 11(2)).  BOR 11(6) lays down a substantive rule while the latter provisions prescribe procedural safeguards, an important distinction recognised by the UNHRC in GC 32 as noted above.[93]  And as we have seen, the legitimacy of differentiating between the conditions for triggering the procedural guarantees on the one hand and the prohibition against double jeopardy on the other has been variously endorsed and reflected in the relevant State Parties’ non-ratification of and reservations to Art 4(1) P7.

90.Directly relevant is GC 32 on ICCPR 14.7 which relevantly states:

“This provision prohibits bringing a person, once convicted or acquitted of a certain offence, either before the same court again or before another tribunal again for the same offence ...”[94]

It goes on to make the unequivocal statement that:

“This guarantee applies to criminal offences only and not to disciplinary measures that do not amount to a sanction for a criminal offence within the meaning of article 14 of the Covenant.”[95]

91.GC 32 was issued in 2007 so that the UNHRC was then undoubtedly aware of the existence of a broadened “autonomous meaning” of “criminal” based on Engel applied in the Strasbourg context.  It plainly did not envisage that the disciplinary proceedings referred to in GC 32 at §57 should be classified as “criminal” on the basis of some extended meaning capable of triggering ICCPR 14.7 (and thus BOR 11(6)). 

92.The double jeopardy rule safeguards finality in criminal proceedings. It protects a person from being punished twice and from being vexed by the ordeal of undergoing a second trial, whether the first set of proceedings resulted in acquittal or conviction. Non-criminal proceedings serving other legitimate societal objectives or functions do not come within the rule and are not prohibited. As highlighted at §§23 and 24 above, prison disciplinary proceedings serve significantly different functions and purposes.

93.It is important to keep the rationale for the rule against double jeopardy in mind when deciding whether a second set of proceedings violates the rule. The Engel criteria, even in their calibrated form as discussed in Norway, do not sufficiently focus on the societal purposes served by different sets of proceedings.  Whilst it is appropriate to continue to apply the Engel criteria to decide whether the procedural safeguards under BOR 11(1) and (2) are engaged, they should not be adopted for determining whether BOR 11(6) should be applied.

C.8   The scope of BOR 11(6)

94.Having rejected the application of the Engel approach, what are the appropriate criteria for determining when BOR 11(6) is engaged?  The answer depends on the true interpretation of its provisions.  As we have seen, it provides as follows:

“No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of Hong Kong.”

95.It clearly denotes consecutive criminal proceedings involving the same offence.  Thus, it deals with the happening “again” of the occurrence of someone having been “tried or punished” for an “offence” for which he or she has already been “finally convicted or acquitted” in accordance with “the law and penal procedure of Hong Kong”, the words in quotation marks appropriately being understood to refer to criminal proceedings in the strict sense.  While some of those terms may be used in relation to disciplinary proceedings, taken together in context they clearly refer, in our view, to criminal proceedings strictly so called.

96.Thus, “tried” bears the connotation of a formal trial process leading to conviction or acquittal within a framework of procedural and evidential rules which would not be similarly envisaged in disciplinary hearings.  While every criminal violation is routinely referred to as an “offence” for which the offender is “punished”, not every disciplinary measure could appositely be so described.  The notion of a “final” conviction or acquittal is consonant with concepts of judicial finality and res judicata whereas, disciplinary measures, even after exhaustion of a disciplinary appeal process, are generally not “final” but are subject to possible judicial review and further judicial proceedings.  One would not aptly describe convictions or acquittals in disciplinary proceedings as being “in accordance with the law and penal procedure of Hong Kong” since that phrase connotes criminal law and penal procedure generally applicable to everyone in Hong Kong and not a set of disciplinary rules applicable only to the limited class of persons concerned.

97.It follows that on its true interpretation, BOR 11(6) only applies where a person has “already been finally convicted or acquitted in accordance with the law and penal procedure of Hong Kong” of a criminal offence in the strict sense by a court exercising criminal jurisdiction.  BOR 11(6) prohibits that person from being tried or punished again for a like offence. 

98.An issue that arises concerns the required degree of overlap between the two criminal offences in question.  When BOR 11(6) prohibits trial and punishment “again for an offence for which he has already been finally convicted or acquitted”, to what extent must the offence which is the subject-matter of the second trial or punishment be the same as the offence previously dealt with?

99.In our view, BOR 11(6) plainly covers cases which would come within the autrefois acquit and autrefois convict rules, in other words, where the elements of the second offence are the same as or included in the original offence.[96] It is also our view that it applies in cases which would qualify for exercise of the common law discretion to stay proceedings which constitute an abuse of the court’s process where the subsequent charge involves re‑prosecuting a person previously convicted or acquitted on the same or substantially the same facts.[97]

100.BOR 11(6) therefore largely reflects the position at common law.  However, whereas at common law, the stay in cases involving the same or substantially the same facts is discretionary, where the BOR 11(6) is engaged, the prohibition against repeating the trial or punishment is not a matter of discretion. 

D.     Conclusions

101.We summarise our conclusions as follows:

(a) There is no basis at common law for a discretionary stay of proceedings on double jeopardy grounds to be granted in the present case. Disciplinary proceedings are significantly different from criminal proceedings, applying only to a limited class of persons and pursuing specific, often institutional, objectives which are different from the public purposes informing the general criminal law.   On the authorities, the discretion to order such a stay only arises where a person has been convicted and punished for an offence by a court of competent jurisdiction in respect of the same or substantially the same facts. The Acting Superintendent in the present case does not qualify as a court of competent jurisdiction.

(b) Neither is there any basis for barring or quashing the appellant’s conviction under BOR 11(6).  The nature and purpose of the protection against double jeopardy provided by BOR 11(6) are different from those of the fair hearing safeguards under BOR 11(1) and BOR 11(2)(a) to (g).  The former provision is a matter of substantive law while the latter provisions are procedural.  The Engel criteria which enlarge the meaning of “criminal” beyond what is traditionally understood by that word (so that disciplinary proceedings may sometimes be included), are applied in Hong Kong for the purpose of determining whether the fair hearing guarantees are engaged. However, the Engel criteria are not applicable for the purposes of triggering BOR 11(6).  That Article is only engaged where a person has already been finally convicted or acquitted in accordance with the law and penal procedure of Hong Kong of a criminal offence in the strict sense by a court exercising criminal jurisdiction and the person in question faces trial or punishment again for the same or substantially the same offence.  BOR 11(6) is inapplicable to the prison disciplinary proceedings in the present case.

102.We would accordingly dismiss this appeal.

Mr Justice Fok PJ:

103.I agree with the joint judgment of Mr Justice Ribeiro and Mr Justice Lam PJJ.

Lord Reed of Allermuir NPJ:

104.I agree with the joint judgment of Mr Justice Ribeiro and Mr Justice Lam PJJ.

Chief Justice Cheung:

105.Accordingly, the appeal is unanimously dismissed.

Mr Derek Chan, SC and Mr Tien Kei-rui, instructed by Gallant, assigned by the Director of Legal Aid, and Ms Ferrida Chan, instructed by Gallant, on a pro bono basis, for the Appellant

Ms Hermina Ng, SPP and Mr Timothy Chen, PP of the Department of Justice, for the Respondent