PANG TAK KWAI v COMMISSIONER OF CORRECTIONAL SERVICES

CACV000048/2001

CACV 48/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 48 OF 2001

(ON APPEAL FROM HCAL 1610/2000)

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Coram: Hon Mayo VP, Stock JA and Yuen J in Court

Date of Hearing: 11 September 2001

Date of Judgment: 11 September 2001

Date of Reasons for Judgment: 21 September 2001

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REASONS FOR JUDGMENT

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Hon Mayo VP (giving the reasons for judgment of the Court):

1.At the conclusion of the hearing of this appeal we informed the parties that we proposed allowing the appeal on the first two orders made by the Judge and dismissing the appeal on the third and that we would be giving our reasons for this in writing. This we now do.

2.This is an appeal from a judgment of Cheung J (as he then was). He was hearing an application for judicial review which was made by the applicant in respect of a decision of the 2nd respondent to dismiss him from his post of technical instructor in the Correctional Services Department (the Department) pursuant to rule 255B(4) of the Prison Rules Cap. 234. The Judge acceded to the application and the respondents are appealing against this judgment.

3.The applicant joined the Department as a technical instructor in February 1988.

4.On 21 November 1997 he approached the main gate of Stanley maximum security prison. There is a metal detector device installed at the main gate. The applicant was required to pass through the device.

5.On the first and second attempts so to do the beeper sounded. The applicant removed a packet of peanuts from one of his pockets and attempted to again pass the device. Again it beeped and the applicant took out another packet of peanuts from his pocket. On his fifth attempt the beeper remained silent and he entered the prison.

6.He was however intercepted by Mr Chu Po Hung a senior industrial officer. He explained to Mr Chu that as he had not had luncheon that day he had bought the peanuts for his own consumption.

7.This explanation was not accepted and Mr Chu made a report to the appropriate authority.

8.On 16 January 1998 the applicant was charged with the offence of possession of prohibited articles by a prisons officer contrary to section 18A(1)(a) of the Prisons Ordinance Cap. 234.

9.The section reads:

"18A. Possession or introduction of prohibited articles by prison officers

(1) Except where authorized by rules made under section 25 or by the Commissioner, any officer of the Correctional Services Department or other person employed in the prisons who-

(a) while in a prison or proceeding into or out of a prison, has in his possession, whether on his person or in any receptable in his custody, any prohibited article;

(b) knowingly conveys or permits or causes to be conveyed into or out of a prison, any prohibited article in any vehicle or other means of transport which is driven by him or in his charge or in which he is a passenger;

(c) brings, throws or otherwise introduces or causes to be brought, thrown or otherwise introduced into or out of a prison, any prohibited article;

(d) takes any prohibited article to or from any prisoner whether such prisoner is in a prison or in custody outside a prison;

(e) deposits any prohibited article in any place whether in a prison or outside a prison, with the intent that it shall come into the possession of a prisoner,

shall be guilty of an offence and shall be liable on conviction to a fine of $2000 and to imprisonment for 3 years.

(2) In subsection (1), 'prohibited article' (禁制物品) means any fire-arm, ammunition, weapon, instrument, explosive, harmful or deleterious substance, intoxicating liquor, opium or other drug, tobacco, money, clothing, provisions, letter, paper or book.

10.On 10 March 1998 the applicant appeared before Mr J.T. Glass at Western Magistracy and was acquitted of the offence.

11.On 15 May the Magistrate reviewed his decision at the instigation of the prosecution.

12.At the initial hearing the applicant's acquittal was based upon the assumed consent of the Commissioner of Correctional Services to the applicant being in possession of the two packets of peanuts. This was on account of the Magistrate having been under the mistaken impression that the canteen from which the applicant purchased the peanuts was within the controlled area of the prison. He was made aware of this misapprehension on the review. As a consequence of this he reviewed his decision and on 29 May 1998 found the applicant guilty as charged. He granted him an absolute discharge.

13.The Magistrate specifically stated that he found the applicant to be an honest witness. The question as to whether or not he had "forgotten" that the peanuts had been in his pocket, as was his contention in the course of his testimony, was not determinative of his guilt as his legal representative at the hearing conceded that even if he had "forgotten" this would not provide a defence to the charge.

14.On 29 May 1998 the applicant was interdicted from duty with salary withheld "pending action being taken against him under Prison Rule 255B".

15.Rule 255B reads:

"(1) The punishment of a Chief Officer, subordinate officer or other person employed in the prisons who in criminal proceedings is found guilty of or pleads guilty to a criminal offence shall be in accordance with this rule.

(2) In the case of an officer (other than an Assistant Officer) or other person employed in the prisons, the Commissioner shall as soon as practicable-

(a) refer the case to the Chief Executive; and

(b) notify the officer or person that he has done so and that the officer or person may make representations in writing to the Chief Executive in mitigation of punishment within 14 days of receiving such notice or within such further period as the Chief Executive may allow.

(3) In referring a case under paragraph (2) the Commissioner shall send to the Chief Executive-

(a) a copy of the record of the proceedings;

(b) the record of service of the officer or person concerned; and

(c) his recommendation with respect to punishment or otherwise.

(4) The Chief Executive may, after considering any representations made by the officer or person, award any one or more of the punishments he may award under rule 254(b) in respect of a disciplinary offence by an officer (other than an Assistant Officer) or other person employed in the prisons.

(5) In the case of an Assistant Officer, the Commissioner shall notify the officer that he may make representations in writing in mitigation of punishment within 14 days of receiving such notice and, after considering any such representations, may award any one or more of the punishments he may award under rule 255 in respect of a disciplinary offence by an Assistant Officer.

(6) In paragraph (1) 'criminal proceedings' and 'criminal offence' include respectively-

(a) criminal proceedings in; and

(b) a criminal offence against the law of,

any place outside Hong Kong."

16.On 2 December 1998 the applicant was informed by the Commissioner of his intention to invoke the disciplinary procedure laid down in rule 255B and advised him that one possible outcome of the matter might be his dismissal from the service. He was invited to make representations in mitigation.

17.He did so. Representations were also made by his trade union and by two other persons.

18.Further correspondence was exchanged between the Commissioner and the Secretary for the Civil Service.

19.On 13 October 1999 the applicant was informed of the decision of the 2nd respondent to dismiss him from the service under rule 255B(4) effective from that date. The consequence of this decision was that the applicant forfeited any claim he may have to a pension or any other benefits including the emoluments withheld during his interdiction.

20.At the commencement of the hearing before us Mr Marshall SC for the respondents drew our attention to the fact that when the decision maker made his decision in this case he had not had all of the relevant facts before him.

21.In particular the 2nd respondent had not had the Statement of Findings by the Magistrate dated 26 June 1998.

22.This really was a most serious lacuna.

23.It is apparent from these findings that the Magistrate accepted the applicant's version of what had transpired on 21 November 1997. He said so in terms: "I accept his evidence." This included the applicant's evidence that on the morning in question he had been stricken with acute pain to his testicles and had attended upon the prisons doctor who had prescribed three different types of medication (some of which the applicant had taken before the incident) and advised him to go home. He had not done so as there had been no one available to take over from him to perform his duties. He had been in such pain that he had been unable to consume his luncheon. It was in this context that he had purchased the peanuts so that he could consume these when he had an opportunity to do so. It was against this background that the applicant said that he had forgotten that he had the peanuts when he went through the main gate.

24.The Magistrate had described the applicant as an honest and reliable witness and at para. 7 of the Statement of Findings he said that he was satisfied that the applicant was a conscientious and hardworking prison officer "who had not deliberately flouted the regulations". That Statement was prepared for an appeal, and is dated 20 June 1998, well before any decision was taken by the applicant's employer. The appeal was not pursued.

25.Mr McCoy SC for the applicant expressed some doubts whether indeed it was the case that these findings had not been before the decision maker.

26.He referred to an affidavit of Mr Duncan Pescod, Deputy Secretary for the Civil Service, sworn on 23 September 2000, in which he deposed that "The CE considered all of the submissions ...", and the submissions to which Mr Pescod expressly referred included a representation by the Hong Kong Chinese Civil Servants' Association which drew direct attention to the Statement of Findings, and which actually cited, with paragraph number provided, the finding of the Magistrate that he accepted the applicant's evidence, and which added that it was demonstrable that the applicant had not deliberately offended. If that submission was indeed considered, what account, if any, was taken of the Magistrate's finding that the applicant's story was true? Clearly, none. If that submission was properly considered, why was not the Statement of Findings called for? Why, if the submission was considered, do we see an uncontraverted affirmation in these proceedings from a Senior Superintendent who seeks to support the applicant's dismissal by asserting that the Magistrate "made no comments about the nature of the offence or the circumstances surrounding the commission of the offence"? And why, given that the letter from the Association was dated 18 December 1998, do we see no response by the Secretary to the Civil Service to an assertion by the Commissioner, in a memorandum dated 3 June 1999, that : "Mr Pang's claim that he was bringing in the peanuts unconsciously was not accepted as defence when his case was heard in court." We see no response because the letter was not properly read. The assertion in the memorandum was in any event baseless; a seriously erroneous allegation which passed without contradiction, not least because the applicant was never shown the recommendation for his dismissal or the reasons for it. No one, so we discover in the course of the hearing before us, even bothered to check with the prison doctor what examination he conducted, what condition the applicant was in, or what medicine had been supplied. Mr Marshall told us how important it was for the Civil Service to have trust in its public servants - hence the need to take the applicant's suggested conduct seriously. We would merely comment that it is no less important for the administration to act conscientiously and fairly, and to be seen to be acting conscientiously and fairly.

27.We were concerned in all the circumstances whether any useful purpose would be served by continuing this part of the appeal having regard to the fact that Mr Marshall maintained that the findings had not been before the decision maker. We invited him to consider obtaining further instructions which he did. He then informed us that he had received instructions not to prosecute this part of the appeal. We have to say that we are astonished that this appeal was, as to the merits of the case, ever pursued, and further very surprised that the omission which Mr Marshall conceded before us was not spotted before now.

28.That then left the question open as to what order should be made to provide for the situation. Mr McCoy was most anxious that the proceedings against his client which had dragged on for over three years should be brought to a conclusion. We do not think that it is possible for us to make an order which will achieve this objective.

29.It is apparent from the terms of rule 255B that once the Chief Executive has had a case referred to him it is incumbent upon him to take the action referred to in the rule.

30.If the appeal is dismissed the Judge's order should stand in its original form.

31.As for the future, it is not for us to stand in the shoes of the Civil Service Branch or the ultimate decision maker. Our views on the way the applicant has been treated are clear enough from this judgment. No doubt those who review the matter hereafter will take them into account, as well as the fact that three years since the applicant was charged, his status remains unresolved, during which period he has remained without employment and with no pension either in his hands or in prospect.

32.It is now necessary to consider the first two orders made by the Judge:

" IT IS ORDERED AND DECLARED that:-

(1) Rule 255B of the Prison Rules, Cap. 234 is null and void in that it is beyond the scope of the power of the Chief Executive-in-Council to make this rule under section 25 of the Prisons Ordinance (Cap. 234);

(2) the decision of the Chief Executive of the HKSAR on or about the 13th day of October 1999 to dismiss the Applicant from his post as Technical Instructor in the Correctional Services Department pursuant to Rule 255B(4) of the Prison Rules (Cap. 234) is null and void and of no effect;"

33.After commenting upon the various legislative provisions the Judge stated his conclusions on the vires issue in this way at p. 10 of his judgment:

"Rule 255B is indeed ultra vires

In my view, there was no valid provision in section 25 of the Prisons Ordinance which enabled the Governor-in-Council to make rule 255B. Clearly when section 20E of the Prisons Ordinance and rule 255B of the Prison Rules were introduced in 1977, the legislature had overlooked the need to amend section 25 as well so as to provide expressly for the making of the rule dealing with the punishment of a person employed in the prisons found guilty of a criminal offence. This being the case, the rule must be beyond the rule making power of the former Governor-in-Council conferred by section 25 of the Prisons Ordinance. Any act done by the Chief Executive pursuant to rule 255B must be null and void and of no effect."

34.With the greatest respect to the Judge we do not think that this is right.

35.Section 20E of the Ordinance provides:

"(1) If in criminal proceedings before any court-

(a) an officer of the Correctional Services Department or other person employed in the prisons is found guilty of or pleads guilty to any criminal offence; or

(b) the court finds that a charge against an officer of the Correctional Services Department or other person employed in the prisons in respect of a criminal offence has been proved against him,

and any appeal or other application for review of those proceedings is not allowed or is abandoned or withdrawn, the officer or person may be punished, in the case of a Superintendent or officer of higher rank, in accordance with the Public Service (Administration) Order and government regulations, and in the case of a Chief Officer or subordinate officer or other person employed in the prisons, in the appropriate manner provided in the rules made under section 25.

(2) In section 20D and in subsection (1) of this section 'criminal proceedings' and 'criminal offence' include, respectively-

(a) criminal proceedings in; and

(b) a criminal offence against the law of,

any place outside Hong Kong."

36.This section deals exclusively with criminal offences. Disciplinary infractions which do not constitute criminal offences are dealt with elsewhere in the Ordinance.

37.It is the intention of section 20E that a more serious view is taken of criminal offences than disciplinary offences and it provides for punishment without the necessity of instituting disciplinary proceedings.

38.The section specifically makes reference to rules being made under section 25.

39.It should be noted that rule 255B was enacted contemporaneously with section 20E. Section 25 does empower the Chief Executive-in-Council to make rules providing for "the regulation and government of prisons and hostels" subsection (a), "the duties and conduct of the officers of the Correctional Services Department and other persons employed in the prisons and hostels" subsection (c), and "all other matters relating to the prisons and hostels" subsection (l).

40.It is significant to add that subsection (dc) empowers the making of rules in relation to a wide range of punishments. The title to section 20E is "Punishment of officers and other persons employed in the prisons guilty of a criminal offence" and this would strongly indicate that rule 255B is intra vires.

41.Taking all these factors into account we are satisfied that rule 255B is intra vires.

42.The consequence of this is that the respondents' appeal in respect of the first two orders made by the Judge is successful. However for the reasons given earlier in this judgment their appeal against the third order made is dismissed.

43.We ordered at the conclusion of the hearing that the applicant was to have his costs of the appeal and these costs were to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr Gerard McCoy SC and Mr Lo Pui Yin, instructed by Messrs Clarke & Kong, for the applicant.

Mr William Marshall SC and Mr Steven Parker SGC, instructed by the Secretary for Justice, for the respondents.