Fu Man Kit v. Superintendent of Tai Lam Correctional Institution

CACV 459/2019

[2022] HKCA 1657

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 459 OF 2019

(ON APPEAL FROM HCAL 1640 OF 2018)

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BETWEEN

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Before:  Hon Yuen JA, Barma JA and Au JA in Court

Dates of Written Submissions:  14 and 28 July, 4 August 2022

Date of Judgment:  7 November 2022

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J U D G M E N T

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

1.By a Judgment dated 4 June 2021 (“the Judgment”), in respect of which Reasons for Judgment were handed down on 22 December 2021 (“the Reasons”), this court (Yuen, Barma and Au JJA)  allowed the appeal by the Superintendent of Tai Lam Correctional Institution (“the Superintendent”)  against the decision of Campbell-Moffat J (“the Judge”)  dated 3 September 2019, by which she allowed the application of Mr Fu Man Kit (“Mr Fu”)  for a writ of habeas corpus ad subjiciendum.

2.In allowing the appeal, we held that on the proper construction of rule 69(1)  of the Prison Rules (Cap 234A)  (“the Rules”), the “reduction” referred to in the proviso means reduction of the “actual term” as a result of any remission granted in accordance with rule 69, and that whatever remission may be granted cannot have the effect of reducing the actual term of a prisoner, such as that of Mr Fu, to less than 31 days. 

3.As a result, we held that as at the date of the Judgment, there were 11 days of Mr Fu’s actual term remaining which he had yet to serve.  However, as Mr Fu was, at the time of the Judgment, remanded in custody for another offence, and the Superintendent had informed this court that administrative arrangements could be made for Mr Fu to serve the remainder of his sentence of 11 days (retrospectively or otherwise), the need to make an order for the re-arrest of Mr Fu did not arise, and accordingly no such order (which had been sought in the Superintendent’s Notice of Appeal)  was made.

4.The facts and issues in the substantive appeal, as well as the court’s reasons for allowing it, are set out in detail in the Reasons (at [2021] HKCA 1928).  We will not repeat them here.

5.Mr Fu subsequently applied, by a Notice of Motion filed out of time on 29 June 2022 (“the Notice of Motion”), for a certificate that a point of law of great and general importance (“GGI”)  is involved in the Decision, with a view to appealing to the Court of Final Appeal (“the CFA”).  Mr Fu also filed an affirmation on the same day (“the Affirmation”).  The application is opposed by the Superintendent.

6.Pursuant to directions made by the Registrar of Civil Appeals on 30 June 2022, Mr Phil Chau SC (leading Mr Tien Kei Rui)  (who had not represented Mr Fu at the hearing of his appeal, he having then been represented by other counsel)  lodged written submissions in support of the application on 14 July 2022 (“the Applicant’s Submissions”), after which Mr Lewis Law (representing the Superintendent, as he had at the hearing before us)  lodged submissions in opposition on 28 July 2022 (“the Respondent’s Submissions”), followed by Mr Chau SC’s reply submissions on 4 August 2022 (“the Applicant’s Reply”).

7.By the Notice of Motion, Mr Fu seeks to invoke section 32(2)  of the Hong Kong Court of Final Appeal Ordinance (Cap 484)  (“the HKCFAO”), which concerns criminal appeals.  The parties have engaged in extensive argument in their written submissions regarding the nature of the intended appeal to the CFA (i.e. whether it is to be regarded as civil or criminal).  As it is Mr Fu’s position that the criminal jurisdiction of the CFA has been engaged in this appeal, a Notice of Application for Leave to Appeal (“the Notice of Application for Leave”)  was filed with the CFA on 29 June 2022, in compliance with the requirement that an application for leave should be made to the CFA under section 33 of the HKCFAO.

8.Having considered the Notice of Motion and the parties’ written submissions, we see no reason to depart from the practice of determining an application of this kind on the papers.  We have therefore determined Mr Fu’s application on the basis of the documents filed.

Whether intended appeal is civil or criminal in nature

9.Under section 22(1)(b)  of the HKCFAO, this court in its discretion may grant leave to appeal to the CFA in any civil cause or matter, whether final or interlocutory, if in its opinion the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the CFA for decision.

10.Conversely, according to sections 32(1)  and (2)  of the HKCFAO which concern criminal appeals, leave to appeal is to be granted by the CFA, and such leave shall not be granted unless this court (or the Court of First Instance, as the case may be)  certifies that a point of law of GGI is involved in the decision or it is shown that substantial and grave injustice has been done (the latter limb being a matter for the CFA alone).  Should this court decline to give such certification, the CFA may so certify and grant leave to appeal.

11.The fact that the substantive appeal (and the intended appeal to the CFA)  has had assigned to it a civil appeal case number, rather than a criminal one, is irrelevant.  The test in deciding whether or not proceedings are criminal or civil lies in looking at the nature of the cause or matter in which the appeal is brought.  See Yeung Chun Pong & ors v Secretary for Justice, unrep., CACV 102/2005, 24 November 2005. 

12.The case of Yeung Chun Pong concerned an appeal against a decision that a magistrate did not have jurisdiction to determine an autrefois plea in committal proceedings under Part III of the Magistrates Ordinance (Cap 227). The appeal had been from a decision of the Court of First Instance granting an order of mandamus in proceedings under the Constitutional and Administrative Law List, requiring a magistrate in committal proceedings to consider the autrefois plea of several defendants in the underlying criminal case.  The Court of Appeal was of the view that its criminal jurisdiction had been engaged in that case, and that the applicants were correct in making an application for a certificate under section 32 of the HKCFAO.

13.In the present case, Mr Fu was the defendant in a criminal case which was tried in the Court of First Instance before the Judge (HCCC 37/2018).  An application, arising from that criminal case, was taken out in the Constitutional and Administrative Law List, albeit for a writ of habeas corpus rather than by way of judicial review proceedings as in Yeung Chun Pong.  The substantive appeal was against the Judge’s decision in granting the writ of habeas corpus.

14.The case of So Wing Keung v Sing Tao Ltd & anor [2005] 2 HKLRD 11 concerned an appeal against a judgment reached by the Court of First Instance where an ex parte decision by another judge to issue search warrants to the Independent Commission Against Corruption against the respondents therein was set aside.  Ma CJHC (as he then was), stated at 42F-H:

“In ascertaining the nature of the underlying cause or matter in which the judgment or order under appeal is brought, one must, I believe, adopt a flexible approach with some degree of commonsense. The analysis should involve looking at the object and purpose of the relevant cause or matter. A cause or matter that has as its object or purpose the possible conviction of a person on a criminal charge is an a fortiori situation where the nature is without doubt criminal, but this is not the only situation. Where, for example, an order was sought for the production of various documents which constituted ‘special procedure material’ under the terms of the Police and Criminal Evidence Act 1984 (PACE)  in order to assist a criminal investigation (these being proceedings similar to those under s.84 of the IGCO), it was held by the English Court of Appeal that these proceedings were a criminal cause or matter for the purpose of s.18(1)(a)  of the Supreme Court Act 1981 (which barred appeals to the Court of Appeal in relation to any judgment of the High Court in a ‘criminal cause or matter’): see Carr & Others v Atkins [1987] 1 QB 963. This was so even where criminal proceedings had not yet begun: see p.968C–E per Lord Donaldson of Lymington.”

15.Mr Law, for the Superintendent, relies on a comment made by Lam VP (as he then was)  in the case of Xie Jing Feng v Superintendent of LCKRC [2020] HKCA 321 at [48], in the context of a discussion concerning the admissibility of evidence in the application for a writ of habeas corpus, where he stated that “habeas corpus proceedings are civil proceedings, and hearsay evidence is admissible”, for the proposition that habeas corpus proceedings were generally regarded as civil in nature (see the Respondent’s Submissions at [14]).

16.Mr Law’s reading of Lam VP’s passing comment is, with respect, misconceived. Rather than expressing the proposition that the object and purpose of habeas corpus applications are generally of a civil nature, his Lordship in the context of that case was merely referring to the type or form of the proceedings as a matter of procedure in order to reach a conclusion on the question of the admissibility of hearsay evidence.

17.We agree with the submission of Mr Chau SC (at [4] of the Applicant’s Reply)  that Mr Law’s reliance on Xie Jing Feng has failed to distinguish between the type of procedure adopted in the proceeding and the nature of the underlying cause or matter of the proceeding.  As stated by Ma CJHC in So Wing Keung, the court adopts a flexible and commonsense approach by looking at the object and purpose of the relevant cause or matter.  The label appended to or the procedural classification of the proceedings (such as the fact that the proceedings were commenced as an administrative law action, which is a civil proceeding)  is not a relevant consideration.  The court looks at what lies beneath those proceedings and what they are ultimately trying to achieve. In the present case, the habeas corpus proceedings concerned and was materially connected to the determination of Mr Fu’s criminal sentence, being a term of imprisonment, and went to the question of effectively how long that term of imprisonment ought to have been. 

18.In our view, in the present case, the nature of the cause in which the appeal was brought was criminal, by reason that the underlying or material proceeding was a criminal trial which was initially heard before the Judge, resulting in Mr Fu’s sentence to a term of imprisonment, which in turn had led to his application for a writ of habeas corpus, which ultimately came before us on appeal.

19.Accordingly, I am of the view that the correct course was taken by Mr Fu in applying for certification of the questions of GGI under section 32(2)  of the HKCFAO.

Delay in filing the Notice of Motion and the Notice for Application for Leave

20.Pursuant to section 33 of the HKCFAO, an application to the CFA for leave to appeal shall be made within 28 days from the date of the decision of this court.  The Judgment was given on 4 June 2021, when it gave the Judgment in the presence of Mr Fu and his then legal representatives (including his then Senior Counsel). The deadline for any application for leave accordingly fell on 2 July 2021.  As it happens, the same deadline would have been applicable to an application by Mr Fu to this court seeking leave to appeal, which would have been necessary had we concluded that the civil jurisdiction of the court was engaged in the appeal.  Accordingly, the parties’ differences as to the nature of the proceedings have no bearing on the delay, and the reasons for delay, in lodging the Notice of Motion (and the Notice for Application for Leave). 

21.Further, Practice Direction 2.2 at [3] provides that applications for a certificate to this court that its decision involves a point of law of GGI should be made immediately after (emphasis contained in the text of the Practice Direction itself)  the judgment is given from which the appeal is to be brought.  In respect of this particular requirement, Rogers JA (as he then was)  stated in HKSAR v Choi Wing Man, unrep., CACC 734/1997, 15 January 1999 at [7]:

“There is good reason for that Practice Direction. The reason is this that the constitution of the Court of Appeal varies. Sometimes, it takes time to gather together the same members of the Court of Appeal. It is very much in the public interest that the same members of the Court of Appeal should consider the question of whether there is a point fit to go to the Court of Final Appeal or not. Furthermore, when the decision is given, the facts of the case and the arguments are fully in the mind of the Court. Hence the provision that application for a certificate should be made immediately after Judgment. The requirement that the matter be raised immediately after the judgment should cause no difficulty because, save in exceptional circumstances, the point would have been argued and would have been dealt with in the judgment. It is of great importance therefore that this Practice Direction is adhered to.”

22.The Notice of Motion and the Notice for Application for Leave were both filed on 29 June 2022, which amounted to a substantial delay of around 1 year. 

23.Mr Chau SC submits that the delay in Mr Fu’s present application can be justified, as explained in the Affirmation (at [8] to [16]), and is essentially that:

(1)  after the hearing of the appeal on 4 June 2021, Mr Fu was returned to custody at Lai Chi Kok Reception Centre, where he was told by officers there that he would have to serve the remaining 11 days of his sentence;

(2)  after serving the outstanding 11 days of sentence, he was transported to Stanley Prison “for remand” (presumably for his other offence for which he was awaiting trial);

(3)  he had all along received no court documents in respect of his appeal since his custody in Stanley Prison, but he was provided with a copy of the Reasons in late December 2021 to early January 2022 by his friend;

(4)  he confirmed that the letter containing the Reasons was sent to his correspondence address on 23 December 2021, but he did not have access to it until around early January 2022;

(5)  he wrote to the Legal Aid Department (“LAD”)  “within 1 month” from his receipt of the Reasons, informing them that he intended to apply for legal aid for the application for leave to appeal;

(6)  he wrote to the CFA on 17 January 2022, seeking to apply for leave to appeal, but was later informed by the Registrar of the CFA that the application by letter was inappropriate;

(7)  after failed attempts to obtain the correct court forms while in custody, he again wrote to the CFA on 10 March 2022, stating his desire to apply for leave;

(8)  he received a letter from the High Court on 13 April 2022, directing him to seek legal advice;

(9)  legal aid was granted to Mr Fu on 29 April 2022, by which time he says he was already out of time as provided by Practice Direction 2.2.

24.We do not find the reasons given by Mr Fu in his Affirmation convincing or valid for the following reasons:

(1)  Mr Fu was present at the appeal hearing (with the assistance of an interpreter and representation by Senior Counsel)  on 4 June 2021 when the Judgment was given.  He should and could have made the present application “immediately after”, or in any event within 28 days – even though the Reasons were not given until later, it was possible for the application to be made and suitable directions given for it to be amended if necessary and submissions to be lodged after the Reasons were available;

(2)  according to a Notice of Discharge issued by the LAD on 30 March 2022, the Legal Aid Certificate issued to Mr Fu on 11 March 2021 (which provided him with representation for and beyond the appeal hearing)  was only discharged on 30 March 2022, which means that he has actually had the benefit of legal representation from before the appeal hearing until some 8 months after the deadline for application for leave to appeal had expired;

(3)  as submitted by Mr Law at [8] of the Respondent’s Submissions, given that Mr Fu had all along been legally represented, it is inexplicable as to why he decided to engage in correspondence with the CFA himself, rather than file the Notice of Motion and an extension of time application in the meantime, through his legal representatives or otherwise.

25.We are thus of the view that no reasonable excuse has been proffered by Mr Fu for the substantial delay in applying for certification of the points of law of GGI.  Even if this court were to grant a degree of indulgence for the non-compliance with Practice Direction 2.2 (given the parties’ differences on the nature of the proceedings), the violation of the 28-day time limit imposed by statute (which is identical for both civil and criminal appeals to the CFA)  is hardly excusable in the circumstances of this case.  This means that Mr Fu would have to show a real prospect of success on the merits.  See Wing Hang Bank Limited v Crystal Jet International Limited & ors, unrep., CACV 255/2002, 9 March 2006 at [7].

The present application

26.The Notice of Motion identified two questions which are said to be questions of GGI, namely:

(1)  what is the true construction of “actual term” under rule 69(1)  of the Rules? (“Question 1”); and

(2)  if the Court of Appeal’s construction of “actual term” is correct, is rule 69(1)  of the Rules arbitrary and/or unconstitutional when a convicted person has to serve a further term of 31 days after being sentenced even when the one-third discount of remission would have allowed his immediate release? (“Question 2”).

Question 1

27.As submitted by Mr Law (at [21] of the Respondent’s Submissions), the grounds and arguments stated in the Applicant’s Submissions and Reply are merely a repetition of matters which had already been fully canvassed by Mr Fu’s counsel at the appeal hearing and rejected by this court’s Judgment for the reasons fully explained in the Reasons.

28.In the Reasons at [27] to [45], this court engaged in detailed discussion and explanation of the proper construction of “actual term” under rule 69(1)  of the Rules.  For the reasons given, this court concluded inter alia that on the plain reading of rule 69(1)  in its totality, the “reduction” referred to in the proviso clearly means reduction of the “actual term” as a result of any remission granted in accordance with those provisions.  Thus, whatever remission may be granted cannot have the effect of reducing the actual term to less than 31 days.  The consequence is that any prisoner serving an actual term of more than 31 days may (depending on the amount of remission that he can be granted)  have the length of his imprisonment reduced, but not below 31 days.

29.Essentially, Mr Chau in the Applicant’s Submissions and Reply suggests a construction of “actual term” different to that decided by this court.  For the reasons given in the Reasons, we do not agree with his argument that the court should not be confined to the literal interpretation of the relevant provision.

30.Thus, we are of the view that even if Question 1 amounted to a question of GGI, it is not reasonably arguable.

Question 2

31.The single issue on which the appeal turned was that of the proper construction of rule 69, in particular the proviso to rule 69(1), of the Rules.  The issue posed by Question 2, namely the alleged arbitrariness and/or unconstitutionality of rule 69(1)  of the Rules, was not argued before us, nor was it an issue canvassed in the appeal.

32.Mr Chau SC now seeks, at the leave application stage, to engage in a proportionality and/or rationality assessment of the provision at [38] and [39] of the Applicant’s Submissions.  This type of analysis requires proper formulation of arguments and filing of evidence, and it is clearly inappropriate for such arguments to be raised for the first time at this late stage.

33.It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the appeal proceedings before it, nor is it the practice of the CFA to grant leave on new fact-sensitive points not previously argued in the Court of Appeal.  See: Ageas Insurance Co (Asia)  Ltd v Lam Hau Wah Inneo, unrep., CACV 65/2014, 19 May 2015 at [7] to [9]; Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356 at [39].

34.Mr Chau SC in his submissions simply acknowledged the fact that this is a new point to be raised in the CFA and that the CFA is not precluded from entertaining a new point of law of GGI, without proffering any explanation as to why Mr Fu, represented by another Senior Counsel in the appeal, did not see fit to pursue this point before us.

35.Moreover, Bokhary PJ (as he then was)  in Flywin made it clear at [39] that:

“The Court of Final Appeal as a court of final appeal should be very reluctant to consider an issue which was not duly raised and considered in the Court of Appeal. The circumstances must be very exceptional. The statement made by the Privy Council in Ahamath v Sariffa Umma [1931] AC 799, p.803 which it applied in A-G v Cheng Yick Chi [1983] 1 HKC 14 on an appeal from Hong Kong, is apposite:

It must only be under very exceptional circumstances that an issue dropped in the intermediate Court of Appeal and for that reason not dealt with or referred to by that Court can be revived before this Board.”

36.No such exceptional circumstances exist in this case for the new point to be entertained at this late stage.  In our view, Mr Fu should not be allowed, on this basis alone, to seek to have the CFA determine Question 2.

37.Further and in any event, in respect of both Questions 1 and 2, given that Mr Fu has now served his outstanding sentence of 11 days, the issues raised in the Questions have now been rendered wholly academic, and for this reason even on the assumption that such Questions are of GGI, a certificate under section 32(2)  should not be granted.  See: HKSAR v Wong Hing Piu, unrep., CACC 189/2001, 2 September 2003.

Disposition and costs

38.For the reasons above, we decline to certify Questions 1 and 2 to be points of law of GGI.  This court will also not grant an extension of time for a hopeless appeal.  The Notice of Motion is accordingly dismissed.

39.The application having been dismissed, we see no reason why costs should not follow the event.  We therefore order that Mr Fu is to pay the Superintendent’s costs of this application.  Having considered the Statement of Costs lodged by the Superintendent on 28 July 2022, and in light of the manner in which this application had been prosecuted (namely the raising of a new ground of appeal for the first time in the proceedings), we consider the Superintendent’s costs as claimed are reasonable and would allow such costs in full.  The Superintendent’s costs are summarily assessed on a gross sum basis in the amount of HK$91,016.00. 

40.Further, as Mr Fu is legally aided, we also make an order for Legal Aid taxation of his costs, with a certificate for two counsel.

Written Submissions by Mr Phil Chau SC and Mr Tien Kei Rui, instructed by Gallant, for the applicant

Written Submissions by Mr Lewis Law, instructed by Department of Justice, for the respondent