HKSAR v. Chow Ka Shing and Another

[ENGLISH TRANSLATION – 英譯本]

HCMA 350/2024

[2025] HKCFI 1667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 350 OF 2024

(ON APPEAL FROM WKCC 4600 OF 2023)

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JUDGMENT

Introduction

1.The 1^st appellant (A1) and the 2^nd appellant (A2) were the 1^st and 2^nd defendants respectively at the trial.  They were jointly charged with one count of “Carrying an unauthorized article out of a prison”, contrary to section 18(1) of the Prisons Ordinance, Cap. 234 of the Laws of Hong Kong (hereinafter referred to as “the Ordinance”).  The particulars of the offence were that the two of them had an unauthorized article, i.e. a document, carried out of a prison in Hong Kong on or around 2 May 2023.

2.A1 and A2 pleaded not guilty to the charge and were convicted after trial by Miss Chui Yee Mei, Ivy, Principal Magistrate (hereinafter referred to as “the magistrate”). A1 was sentenced to 3 days’ imprisonment.  A2 was fined $1,800.

3.A1 and A2 appealed against their respective conviction and sentence. Subsequently, A2 stated clearly in the “Perfected Grounds of Appeal” filed on 26 November 2024 that she abandoned her appeal against sentence.  At the hearing on 25 February 2025, I formally dismissed A2’s appeal against sentence. I now only have to deal with the appeals against conviction lodged by the two appellants and the appeal against sentence lodged by A1.

The prosecution case

4.The prosecution case was not complicated.  The undisputed facts were that at the material time, A1 was detained at Lai Chi Kok Reception Centre of the Correctional Services Department [“CSD”] (hereinafter referred to as “Lai Chi Kok Reception Centre”) in connection with two outstanding criminal cases.  A2 was working as an assistant solicitor in the solicitors’ firm which was representing A1 at that time.

5.On 28 April 2023, A1 asked an Assistant Officer (PW1) and an Officer (PW2) of the CSD for a complaint form of the Office of The Ombudsman (hereinafter referred to as “complaint form”).  Following PW2’s instruction, PW1 issued to A1 an unfilled complaint form.  A1 received a complaint form with a unique reference number, LCK-22-071, written thereon.  Both A1 and PW1 signed in the “Record book of complaint forms of the Office of The Ombudsman” (Exhibit P4) kept by the CSD to confirm the process of handover and receipt.  The CSD staff also made a record in the “Register of issuance of complaint forms of the Office of The Ombudsman” (Exhibit P5).

6.PW1’s testimony was that he explained to A1 that after filling out the complaint form, A1 had to notify the CSD staff to conduct a security check of the complaint form, and that he should not mail it himself.  During the check, the CSD staff would not read the content of the complaint form.  In case of any mistake in the content, he had to return the complaint form to the CSD staff and should not discard it himself.  In case of insufficient space in the complaint form for A1 to fill in, he could ask for one more complaint form, but under no circumstances should he give it/them to anyone else.  Having heard that, A1 replied, “Clearly understand”.

7.After filling in the complaint form (Exhibit P6), A1 neither notified the CSD staff to conduct a security check of the complaint form nor returned Exhibit P6 to the CSD staff.

8.On 8 May 2023, the Office of The Ombudsman received the complaint form filled in by A1 (Exhibit P6).  On 11 May 2023, a Senior Investigation Officer of the Office of The Ombudsman sent an email to the CSD, informing the CSD of A1’s complaint and requesting the CSD to provide information.

9.After investigation, CCTV records of the interview room of Lai Chi Kok Reception Centre showed that on 2 May 2023, A2, together with a barrister, had two interviews with A1 at Lai Chi Kok Reception Centre.  During the second interview, there was an exchange of documents.  According to the CCTV footage, an Assistant Officer II (PW3) of the CSD made a record of the exchange of documents between the two parties.  A1 and A2 also signed to confirm it.

10.PW3’s testimony showed that at that time, he was holding a “Register recording handover and receipt of documents (legal)” (Exhibit P16).  He first handed over a 12-page document to A1 for A2 and then handed over a 3-page document to A2 for A1.  The above information was all recorded in Exhibit P16.  A1 and A2 also signed in Exhibit P16 to confirm the process of handover and receipt.  PW3 confirmed that the complaint form (Exhibit P6) was not included in the document from A1 to A2.

11.The CCTV footage showed that after the documents had been handed over and received, PW3 left.  A1, in the absence of CSD staff, inserted Exhibit P6 into a document retrieved from A2 which he had already folded in half, and then handed to A2 the document with Exhibit P6 hidden inside.  A2 inserted the document with Exhibit P6 hidden inside underneath the document (which appeared to be a paper notebook) in front of her.  Upon conclusion of the interview, A2 put all the documents in front of her (including Exhibit P6 hidden inside) into a bag and then left the interview room.

12.According to PW1’s testimony, a Principal Officer of the CSD was responsible for conducting a security check of a complaint form in the presence of the prisoner.  Immediately after the security check, the complaint form would be sealed in front of the prisoner.  The prisoner could choose to seal the complaint form himself/herself with glue or adhesive tape or have it done by the CSD staff for him/her.  The final step was that the complaint form would be countersigned by the Principal Officer of the CSD to confirm the completion of the security check, and then put into the green mail collection box in the institution by the prisoner himself/herself.

13.PW1 pointed out that the procedure for a security check of a complaint form was dealt with in accordance with the internal code of practice of the CSD.  The procedure was to prevent letters mailed to The Ombudsman from containing self-made blades or obscene pictures, etc. The CSD staff would not read the content of the letters.  Prisoners intending to mail letters through other channels might make applications to superiors.

14.PW2’s testimony was mainly that he instructed PW1 to hand over a complaint form to A1 and deal with the security check procedure for the complaint form in accordance with the internal guidelines.  PW2 pointed out that the complaint form did not necessarily have to be mailed through the CSD.  If a prisoner wished to mail it through a relative, friend or solicitor for him, he had to make a prior application to a Chief Officer of the CSD.

15.PW4 was a Chief Officer of the CSD.  He testified that every prisoner newly admitted to Lai Chi Kok Reception Centre was given a pamphlet, “Notice to Prisoners” (Exhibit P1), without exception. In case of a prisoner’s request for a complaint form of The Ombudsman, the CSD would definitely approve the related application.  After a prisoner filled out the complaint form, he had to notify the staff on duty, who would then notify a Principal Officer of the CSD to come to conduct a security check of the complaint form.  The content of the complaint form would not be read during the security check process.  Upon confirmation that there was no prohibited item, the complaint form would be returned to the prisoner and sealed in the presence of the Principal Officer of the CSD. After sealing, the Principal Officer of the CSD would sign on the seal, and arrangements would be made forthwith for the prisoner to put the complaint form into the mail collection box.  The civilian staff would then collect the mail and send the complaint form by post after making a record.

16.PW4 pointed out that complaint forms were normally sent out by post.  If the prisoner wished to send it out through other channels, he must make an application.  The complaint form would be sent out only after approval was given.  Factors to be taken into account in considering whether to approve the application included the reasons for not wanting to send it by post through the institution and the prisoner’s concerns.  An explanation of the CSD’s mailing mechanism would be given to see if the prisoner’s concerns could be allayed.  If the other party insisted on handing over the complaint form to a visitor, PW4 had to assess whether the visitor, be he/she a family member or an official visitor, would indeed accurately send the complaint form to The Ombudsman for a follow-up.  PW4 pointed out that this was a very important factor for consideration.  In case of handling by a third party, there was no mechanism for the CSD to monitor how the third party handled the complaint form.

17.PW4 pointed out that prior approval must be obtained from him for any articles to be carried out of the prison, and there was no express stipulation for factors to be considered by him.  Any prisoner who needed to have an article carried out of the prison through a third party must hand it over to the CSD staff for a security check to ensure that there was no prohibited item before approval would be given for it to be carried out of the CSD institution.  It was a guideline issued by the CSD Headquarters and must be observed by all CSD staff. PW4 confirmed that prisoners did not have any opportunity to read the CSD’s internal working guidelines.

The defence case

18.Both A1 and A2 elected not to give evidence. No defence witness was called.

19.The prosecution and the defence agreed that another set of agreed facts (Exhibit D1(2)) be submitted to the court.  Its content was mainly the production of the letter of Exhibit D1(1) to the court.  The letter was issued by the Hong Kong Correctional Services Department Complaints Committee [CSDCC] to A1 on 8 March 2023, and it mentioned that investigations had been carried out on the two allegations made by A1 on 16 November 2022, and informing A1 of the outcomes of the investigations.  The two allegations were respectively that (1) on 31 August 2022, Lai Chi Kok Reception Centre did not mail the letter from A1 to the solicitors’ firm; and (2) on 11 October 2022, an unknown staff member wrongfully read the documents handed over by him to his solicitor in the Official Visit Room of Lai Chi Kok Reception Centre.  The conclusions of the investigations were both ultimately classified as “unsubstantiated”.

The prosecution’s stance

20.The prosecution, invoking section 18 of the Ordinance, contended that the prosecution had to prove that A1 and A2 had the article (i.e. a document) carried out of the prison without authorization by rules made under section 25 of the Ordinance or authorization by the Commissioner.

21.The prosecution contended that although rule 47(4) of the Prison Rules (Cap. 234A) (hereinafter referred to as “the Rules”) appeared to be mandatory, the legislature could not possibly mean, as the defence suggested, that the CSD was required to permit a prisoner to send a letter to a specified person himself/herself, without declaring to the CSD and without conducting a security check.

22.The prosecution contended that rule 47(4) of the Rules only provided that the CSD shall “permit”, but it did not mean that the prisoner was allowed to send the document himself/herself without notifying the CSD.  It was the duty of the CSD to ascertain compliance with rule 47(4) and [to conduct] security checks.

23.The prosecution cited HKSAR v Chan Yik Zee & Others,[1] Democratic Party v Secretary for Justice[2] and HKSAR v Choy Yuk Ling[3] to argue that the word “shall” was not an absolute imposition of a mandatory requirement, and a general and holistic interpretation had to be made while taking into account the legislative purpose, legal framework, and statutory language.

24.The prosecution contended that after the above interpretation had been made, a prisoner must declare to the CSD and let the CSD conduct a security check.  When the letter was mailed through the CSD, it would be shown in the relevant records and of course there was no problem.  However, if a prisoner privately handed over a letter to a third party without the knowledge of the CSD, the CSD would not have the information for assessing whether the letter had indeed been passed to the specified person.  It would be a dereliction of duty on the part of the CSD if it blindly allowed a prisoner to privately hand over a letter to a third party. Besides, if the above was allowed to happen, the security and safety checks in prisons will be completely obliterated.

25.A1 handed over Exhibit P6 to A2 without declaring to the CSD. Not only had the document not undergone a security check, no permission or authorization had been obtained from the CSD, and the acts of A1 and A2 constituted the offence under section 18 of the Ordinance.

The defence’s stance

26.The defence’s stance was that exhibit P6 was an authorized letter to a specified person.  The CSD’s internal guidelines or code of practice were not the law and had no legal effect.  The defence reiterated that rule 47(4) of the Rules should not be restricted by any circumstances.

27.The defence argued that there was no provision in the Rules stipulating that the authorization of an authorized letter will be lost in case of a breach of the Rules or non-compliance the with the CSD’s internal code of practice.  The CSD did not have the power to force the imposition of a condition under rule 47(4) of the Rules, namely, that the prisoner had to notify the CSD in advance, to have a security check conducted, and to obtain approval before Exhibit P6 could be mailed or carried out of the prison by another person.

28.In other words, the defence’s stance was that Exhibit P6, which A2 obtained from A1, was an authorized article. When A2 carried Exhibit P6 out of Lai Chi Kok Reception Centre, A2 did not carry an unauthorized article out of the prison.  Therefore, neither A1 nor A2 broke the law.

29.Moreover, as far as A2 was concerned, A2’s stance was that if the court found that Exhibit P6 was an unauthorized article, A2 did not object that the actus reus had been proved, but it was contended that the prosecution had failed to prove that A2 was aware that the letter was unauthorized at the moment when Exhibit P6 was carried out of the prison, meaning that it had failed to prove the mens rea.

The magistrate’s findings

30.The magistrate, after giving herself the relevant directions on the law and providing a consideration and analysis at some elaborate length, found that Exhibit P6 was an unauthorized article. On the basis of the circumstances shown by the CCTV footage, she found that the only reasonable inference was that both A1 and A2 were aware that Exhibit P6 was an unauthorized article, and that the prosecution had proven beyond reasonable doubt that A1 and A2 had committed the offence and were guilty of the charge.

Magistracy appeal

31.Before considering the grounds of appeal, I would like to set out the legal principles concerning magistracy appeals.

32.In HKSAR v HUI Lai-ki,[4] the Court of Final Appeal pointed out that a magistracy appeal was conducted by way of rehearing on the evidence before the trial court supplemented by such further evidence as the intermediate appellate court might admit under its statutory power to do so.

33.This required the judge to be satisfied that on the evidence of the case the offence had been proven beyond reasonable doubt, failing which the appeal must be allowed.  When rehearing was conducted in this way, if the judge came to a different view on the evidence of the case, it was sufficient to justify the appellate court’s quashing the conviction on the basis of the magistrate’s error.

34.As the appellate court, unlike the magistrate, did not have the advantage of listening to and watching the witnesses’ testimonies first-hand, it was subject to limitations when conducting the rehearing.  The appellate court was therefore required to exercise caution when considering findings of fact based on oral testimony.  Notwithstanding such limitations, however, it remained the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law.

Grounds of appeal against conviction

A1

35.A1’s stance on appeal against conviction was that the magistrate erred in finding that the complaint form of the Office of The Ombudsman (Prosecution Exhibit P6) was an “unauthorized article” under the Ordinance.  A1 relied on the four grounds of appeal below:

(1)  Under rule 47(4) of the Rules, the complaint form was to be handled differently from ordinary letters and letters to legal representatives, and “the Superintendent shall permit a prisoner to write and send a letter”.  However, the magistrate erred in finding that rule 47(4) involved postage matters only;

(2)  The magistrate erred in finding that the “shall” in rule 47(4) of the Rules did not mean that the provision imposed an absolute duty;

(3)  When A1 received the complaint form from PW1, the complaint form concerned had already been authorized and was therefore not an “unauthorized article”.  The magistrate erred in finding that after the complaint form of the Office of The Ombudsman had been filled in, it was necessary for the CSD to conduct a security check for re-authorization, particularly when it was stated in rule 47C of the Rules that the CSD shall not read letters which were prisoners’ correspondence with specified persons under rule 47A(3) or (4) of the Rules;

(4)  The magistrate erred in finding that the CSD’s requirement to conduct a security check of the complaint form could form the legal basis for a contravention of section 18 of the Ordinance.

A2

36.A2 put forward four grounds of appeal:

(1)  The magistrate erred in finding that the prosecution had proven beyond reasonable doubt that A2 had the mens rea required for the offence when she left Lai Chi Kok Reception Centre carrying the document on 2 May 2023.

(2)  Hearsay evidence was admitted without an assessment of its admissibility.

(3)  The magistrate erred in finding that the word “shall” did not have a mandatory meaning.

(4)  The conviction in this case was unsafe and unsatisfactory, and there was a lurking doubt.

37.As stated by the respondent, although the appellants presented their appeals in different ways, overall, they both focused on two issues:

(1)  Whether Exhibit P6 was an “unauthorized article” within the meaning of section 18 of the Ordinance and whether the magistrate’s interpretation of “shall permit” in rule 47(4) of the Rules was erroneous (hereinafter referred to as “Issue 1”)

(2)  If the court finds that Exhibit P6 was an unauthorized article, whether A2 knew at the material time of the existence of Exhibit P6 and that it was an “unauthorized article” (hereinafter referred to as “Issue 2”).

Issue 1

38.I will first deal with Issue 1.

A1’s stance

39.The appellant’s stance was that rule 47(4) of the Rules provided that “the Superintendent shall permit a prisoner to write and send a letter” and that the CSD was required to permit a prisoner to write and send a complaint form to the Office of The Ombudsman.

40.The appellant cited Bennion, Bailey and Norbury on Statutory Interpretation[5]in which the authors stated at paragraph 3.8:

“The starting point is that the use of the word ‘may’ or other permissive language confers a power, while the use [of] ‘must’ or other mandatory language imposes a duty.”

41.The appellant contended that rule 47(3) of the Rules, which dealt with the circumstances of writing and sending ordinary letters, was unlike rule 47(4); “may permit a prisoner to write and send more than one letter per week at public expense” was used.  If the legislative intent were that the CSD shall mail letters free of postage for prisoners, the provision would have been expressed as “the Superintendent shall permit a prisoner to write and send the letter at public expense”. The above circumstances reinforced the contention that the word “shall” imposed an absolute duty.

42.The appellant contended that the complaint form could have been folded into an envelope (i.e. a postal note) and it was not necessary to pay postage. Hence the magistrate’s statement that rule 47(4) was a provision relating to postage and the word “shall” imposed an additional condition of “mailing free of postage” was untenable.

43.The appellant pointed out that the magistrate was of the view that even if the Ordinance required the CSD to permit prisoners to send letters to the Office of The Ombudsman, it did not mean that prisoners were allowed to mail letters themselves without notifying the Superintendent;[6] instead, security checks had to be conducted beforehand.  The appellant did not concur with this view.[7]

44.The appellant emphasized that the CSD’s way of handling letters between prisoners and specified persons, including opening, searching and reading letters, was obviously different from the way of handling ordinary letters and letters to legal representatives, in order to safeguard prisoners’ ability to make complaints to specified persons, including The Ombudsman, free from fear (see rules 47(4), 47(6), 47(7), 47A(2), 47A(5) and 47C(a) and 47C(b) of the Rules).

45.The appellant contended that according to the evidence of the prosecution witnesses, the practice of security checks of complaint forms was in accordance with the department’s internal working guidelines.  The related internal guidelines were not established by the laws of Hong Kong, nor would prisoners have the opportunity to read the department’s internal guidelines. There was no legal basis for the security checks concerned, which were merely a usual practice and working guideline of the CSD.

46.Moreover, in the “Information booklet for persons in custody”, there was no mention at all of security checks in the content about complaints lodged with the Office of The Ombudsman.  The notice regarding The Ombudsman posted in the prisons was no exception; there was no mention of requirement for any security checks. Instead, it was merely stated in the notice that:

“If you wish to make a complaint, you only need to ask the staff on duty for a postage-free complaint form, fill it out and then put the sealed form into the mail collection box. Strict confidentiality will be accorded to content of all complaints.”

47.The appellant contended that prisoners’ complaints to The Ombudsman necessarily touched upon the right to freedom of expression conferred by Article 27 of the Basic Law and Article 16 of the Hong Kong Bill of Rights (see HKSAR v Fong Kwok Shan Christine[8]).

48.The appellant contended that rule 47C(a) of the Rules deliberately excluded correspondence between prisoners and specified persons from general security checks.  Rule 47C(a) could not be interpreted to mean that letters must undergo security checks by the CSD staff before they could be mailed.  The regulation merely stated clearly that the CSD staff could only carry out a search in the presence of a prisoner or open and check the letter with the consent of that prisoner.

49.The appellant emphasized that the present case involved the sending/mailing of a letter by a prisoner to a specified person outside the prison, which could not possibly affect security, order and discipline in the prison.  In respect of the magistrate’s finding that the CSD’s internal working guidelines were necessarily a code established for maintenance of security, order and discipline in prisons and were “indispensable”, A1 had no dispute.  However, the appellant emphasized that the guidelines were not the laws of Hong Kong and did not have any legal effect, and that even if a prisoner contravened the related code, it should not and could not possibly lead to any criminal liability.

50.The appellant complained that the magistrate failed to explain why the prosecution could impose the security checks required by the CSD’s internal guidelines on section 18 of the Ordinance as a basis for prosecution.

51.The appellant pointed out that there was no dispute between the prosecution and the defence at the trial that at the moment when PW1 handed the complaint form to the appellant, the form was already authorized as an authorized article.[9] The charge required an “unauthorized article”, not an “unauthorized act”.  The magistrate definitely erred in imposing on section 18 of the Ordinance the security check requirement which had no legal basis.

A2’s stance

52.In A2’s grounds of appeal, it was also alleged that the magistrate’s interpretation of rule 47 of the Rules was erroneous.  In accordance with accepted practice, as along as the meaning and wording of a criminal provision were clear and unambiguous, the court should understand it on the literal meaning and interpret it from a strict and narrow perspective.  Since the word “shall” was used in the provision, it should not be given any other explanation.

53.The appellant also emphasized that Prosecution Exhibit P6 was an authorized letter.  Rule 47(4) was not bound by any other provision. The authorization under rule 47(4) was conferred by law (its subsidiary legislation), and not an authorization by the CSD.  There was nothing in rule 47(4) that mentioned that a prisoner was entitled only to receive The Ombudsman’s form to be filled out in writing but not entitled to send the document; or that the CSD had the power not to authorize the sending of the document. Nor was there any stipulation that an authorized letter would become an unauthorized article in case of contravention of any other provision or internal guidelines of the CSD.  There was no stipulation anywhere that Prosecution Exhibit P6, having been authorized by law, could be sent only upon further authorization from the CSD.

54.The appellant contended that the prosecution’s stance at trial was that the phrase “at public expense” meant “sent by the CSD” and “postage paid by the CSD with public money” and that the above was the only way of authorization to send Exhibit P6.  The appellant submitted that an addition of words to the provision was needed in order to support the above assertion.  A2 emphasized that when the meaning of the language was clear and unambiguous, the provision of law should not be given additional words or interpreted on the basis of additional words.  The prosecution’s assertion was therefore wrong.

55.The appellant emphasized that the above assertion was contrary to the testimonies of PW2 and PW3.  Both witnesses stated that any person, including a legal representative, might bring letters written to The Ombudsman out of the prison.  This showed that the prosecution witnesses’ testimonies were inconsistent with the prosecution’s interpretation of rule 47(4) in relation to public expense mentioned above.

56.The appellant pointed out that one of the issues at the trial was whether Exhibit P6 was required to be sent to The Ombudsman through the CSD.  This issue was relevant to whether Exhibit P6 was an authorized article because the prosecution’s case was that a complaint form to The Ombudsman had to be sent through the CSD, but not a third party.

57.The appellant contended that the prosecution did not provide any legislative provisions to support such an assertion; this point therefore relied entirely on the “Internal Guideline” of the department referred to by the prosecution witnesses. However, as far as the evidence given by the prosecution witnesses was concerned, neither of them was the person who established or wrote the guidelines, nor were they able to provide written copies of the department’s guidelines at the trial. The magistrate hence admitted hearsay evidence without assessing its admissibility.

The respondent’s stance

58.The respondent’s stance was that although the document / letter was ostensibly correspondence with a specified person, the prisoner would not possibly be allowed to bypass the CSD and have it taken out by a third party for him, without making an application / notifying the CSD, without undergoing a security check and without obtaining permission.

59.A1 was being remanded in Lai Chi Kok Reception Centre at the material time. The Rules contained provisions in various aspects, including “Admission and Discharge”, “Prohibited Articles”, “Clothing and Bedding”, “Food”, “Health and Cleanliness”, “Offences against Prison Discipline” and so on.  It could be seen from the various provisions made by the Rules above that while ensuring the fundamental rights of prisoners were protected, the CSD also imposed strict regulations on prisoners in different aspects, including communications and visits.  CSD staff or other persons employed in prisons were also required to adhere strictly to the Ordinance and the Rules without exception.  It could be seen that in order to maintain the smooth and effective implementation of security, order and discipline in prisons, it was sensible and reasonable for the CSD to establish a set of internal working guidelines / code of practice.

60.The respondent contended that comparing rule 47(4) with other provisions under rule 47 of the Rules, the way of handling complaint forms to specified persons was obviously different from that of handling ordinary letters or letters to legal representatives.  Rule 47(4) of the Rules did not limit the number of letters sent from a prisoner to a specified person and postage was all paid by public funds.  It could be seen that the focus of rule 47 of the Rules was on dealing with postal and postage matters.

61.The appellant submitted that as the word “shall” was used in rule 47(4) of the Rules, the Superintendent was required to permit prisoners to send letters to The Ombudsman without the CSD’s approval.  In respect of this submission, the respondent contended that the magistrate correctly found that there were “express or implied conditions or premises” in rule 47(4) of the Rules and the duty of the CSD had to be taken into account.  Even if complaint forms were handled in a way different from ordinary letters, rule 47(4) of the Rules did not automatically extend to dispensing with the CSD’s security checks and allowing prisoners to have letters to specified persons carried out of prisons on their own.[10]

62.The respondent emphasized that the CSD must allow a prisoner to send a letter to a specified person and the CSD should not read the content of the letter. However, while balancing a prisoner’s right to make complaints to the Office of The Ombudsman, the court must take into account the background of the case that took place in a supervised prison, the purpose of the Rules and their original intent to impose regulations on prisoners.  The CSD shall fulfil the premise of the duty to “permit” and the context, including the related security requirements.

63.The respondent referred to rule 47C(a) of the Rules and contended that it clearly provided that the CSD shall not open or search correspondence to a specified person except in the presence of the prisoner. This was sufficient to show that rule 47C(a) of the Rules conferred on the CSD officers the power to open and search letters to a specified person in the presence of the prisoner.  The appellant’s argument that prisoners’ letters to specified persons were not required to undergo security checks before being sent was therefore unsustainable.

64.The respondent contended that there was no conflict between the prisoners’ right mentioned above and section 18 of the Ordinance, as prisoners would definitely be granted “permission” by the Commissioner to mail letters to specified persons at public expense after passing security checks by the CSD.  However, if a prisoner wished to mail a letter to a specified person, he must make the CSD aware of it, so that the CSD had the chance to perform its duty under rule 47(4) of the Rules, instead of bypassing the CSD and having the letter mailed by a third party for him without the CSD’s knowledge.

65.The defence contended that the magistrate correctly held that the point as to whether the internal working guidelines were hearsay evidence was indeed irrelevant.  As the magistrate found, the CSD had a duty to ensure that every letter for correspondence with a specified person must undergo a basic security check and be countersigned by a Principal Officer of the CSD after which the CSD “must” allow the prisoner to mail the letter. Besides, whether or not the CSD’s internal working guidelines were hearsay evidence was irrelevant to the present case.  The essential focus of the present case was on whether or not there were sufficient legal bases for the enforcement actions of all the witnesses.  If there were legal bases for their actions, as the magistrate found, then their actions were lawful.  However, if the court was of the view that there was no legal basis for their actions, the charge had to fail, no matter what the working guidelines were.

Relevant legislations

66.Section 18 of the Ordinance provides that:

“Any person who brings, throws or in any manner introduces or conveys into any prison, or conveys to any prisoner while in custody outside the prison, or deposits in any place outside a prison with intent that it shall come into the possession of a prisoner, or carries out of a prison any arms, ammunition, weapon, instrument, intoxicating liquor, opium or other drugs, tobacco, money, clothing, provisions, letters, papers, books or any other article whatsoever shall, unless so authorized by the rules made under section 25 or by the Commissioner, be guilty of an offence and shall be liable on conviction to a fine at level 1 and to imprisonment for 3 years.”

67.It is set out in rule 47 of the Rules made under section 25(1) of the Ordinance:

“General provisions as to letters

(1) Subject to the following provisions of this rule, a prisoner may write and send as many letters as he wishes to any person.

(2) A prisoner shall be furnished with materials and postage sufficient to write and send one letter per week not exceeding 4 pages of A-4 paper in length at public expense, and shall, where the prisoner so requests, be furnished with materials and postage for additional letters subject to the payment of the cost thereof from the prisoner’s earnings.

(3) …

(4) Notwithstanding subrule (2), the Superintendent shall permit a prisoner to write and send a letter at public expense if the letter is correspondence with a specified person.

(5) Subject to the following provisions of this rule, a prisoner may receive any number of letters from any person.

(6) (a) A prisoner is not permitted to—

(i) send a letter to, or receive a letter from, another prisoner, unless he has obtained the prior approval of the Superintendent;

(ii) ...

(7) ...” (emphasis added)

68.It is set out in rule 47C of the Rules:

“Letters to or from specified person

Notwithstanding rule 47A, where it appears to an officer of the Correctional Services Department not below the rank of Principal Officer that any letter is to a prisoner from, or from a prisoner to, a specified person, the letter—

(a) shall not be opened or searched under rule 47A(2) or (8), except in the presence of the prisoner or unless the prisoner indicates that he does not wish to be present; and

(b) shall not be read under rule 47A(3) or (4).”

69.Besides, it is set out in section 19 of the Interpretation and General Clauses Ordinance, Cap. 1 of the Laws of Hong Kong:

“19. General principles of interpretation

An Ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Ordinance according to its true intent, meaning and spirit.”

Is Exhibit P6 an “unauthorized article”?

70.In considering this aspect, it is necessary to decide how to interpret rule 47(4) of the Rules.

71.The Court of Final Appeal clearly stated the relevant legal principles in HKSAR v Cheung Kwun Yin[11]:

“12. The modern approach is to adopt a purposive interpretation. The statutory language is construed, having regard to its context and purpose. Words are given their natural and ordinary meaning unless the context or purpose points to a different meaning. Context and purpose are considered when interpreting the words used and not when ambiguity may be thought to arise. ...

13. The context of a statutory provision should be taken in its widest sense and certainly includes the other provisions of the statute and the existing law.”

72.In correctly interpreting the duty imposed by rule 47(4) of the Rules, the legal framework and legislative intent of the Ordinance and the Rules as a whole shall be taken into account.  The court also needs to consider the principles of section 19 of the Interpretation and General Clauses Ordinance.

73.On the question of whether the word “shall” imposes a mandatory requirement, the Court of Final Appeal clearly stated in HKSAR v Choy Yuk Ling （蔡玉玲）[12] (at paragraph 27) that it “may not be absolute” and an “express or implied condition” may be attached:

“Depending on its context and purpose, the word ‘shall’ in a statutory provision may not be absolute. ... In any event, in its context, ‘shall’ may denote an action required to be performed only subject to satisfaction of some express or implied condition.” (emphasis added)

74.The above legal principles were not disputed by the prosecution or the defence.

75.The heading of rule 47 of the Rules is “General provisions as to letters”.  Rule 47(1) provides that:

“Subject to the following provisions of this rule, a prisoner may write and send as many letters as he wishes to any person.”

76.Having regard to the context of rule 47 of the Rules, and comparing rule 47(4) with the other provisions of rule 47 of the Rules, complaint forms to specified persons are handled in a way obviously different from ordinary letters or letters to legal representatives.  Rule 47(4) of the Rules does not limit the number of letters sent from a prisoner to a specified person, and postage is all paid by public funds.  It shows that rule 47 is a general provision dealing with letters.  The word “shall” in rule 47(4) does make it mandatory that the CSD is required to permit a prisoner to write and send a letter to a specified person.  However, rule 47(4) does not expressly provide how the CSD is to implement the permission for prisoners to send such letters.

77.Whilst counsel for A1 contended that at the trial there was no dispute between the prosecution and the defence that the complaint form was authorized at the moment when it was handed over to A1 by PW1 (or at the moment when it was filled out by A1, which was the changed contention made before me subsequently), and counsel for A2 emphasized that Exhibit P6 was an authorized document, I do not subscribe to or accept this assertion. The CSD provided a complaint form to A1 under rule 47(4).  It did not mean that the complaint form was authorized.

78.Having taken into account the background of the case that took place in a supervised prison, and having regard to the above legal principles as to how rule 47(4) is to be interpreted, I concur with the magistrate’s findings:

“68. ... Notwithstanding a prisoner’s right to make complaints to the Office of The Ombudsman, in balancing that right, the court must take into account the background of the case that took place in a supervised prison, the purpose of the Rules and their original intent to impose regulations on prisoners. The CSD shall fulfil the premise of the duty to ‘permit’ and the context, including the related security requirements.”

79.Although both PW1 and PW2 stated that the security checks were based on internal guidelines, rule 47C of the Rules already sets out the conditions under which a letter from a prisoner to a specified person may be opened and searched, which shows that CSD’s adoption of security procedures for searching specified letters is lawfully provided for.

80.I do not concur with A1’s contention that no security issue was involved in carrying Exhibit P6 out of the prison.  As the magistrate pointed out:

“77. It should not be overlooked that specified persons do not only refer to The Ombudsman. Under rule 1A of the Rules, in addition to The Ombudsman, specified persons include members of the Executive Council, members of the Legislative Council, visiting Justices of the Peace, the Commissioner of the Independent Commission Against Corruption and even the Chief Executive. I am of the view that the CSD has the duty to ensure that every letter for correspondence with a specified person shall undergo a basic security check, and countersigning by a Principal Officer of the CSD, so that thereafter the CSD ‘must’ allow a prisoner to mail the letter. Whether or not the CSD’s internal working guidelines were hearsay evidence was indeed irrelevant to the present case. Moreover, as PW4’s stated in his testimony, if a letter was handed over to a third party for handling unilaterally without the CSD’s knowledge, there was no mechanism for the CSD to monitor how a third party handled the letter.”

81.Apart from security checks, if a prisoner handed over a letter of complaint to a third party for it to be carried out of the prison unilaterally without notifying the CSD, then the CSD would have no record.  The CSD, not knowing in whose possession or where the document of complaint was, would not be able to perform its duty under rule 47(4) of the Rules to ensure that the prisoner’s document of complaint was mailed.

82.As A1 handed Exhibit P6 over to A2 for it to be carried out of the prison unilaterally without notifying the CSD to conduct a security check, Exhibit P6 was an unauthorized article.  I find that the prosecution had proven beyond reasonable doubt the actus reus of the offence.

83.Regarding the argument on hearsay evidence that A2 complained of, I concur with the respondent’s submission that the magistrate’s finding was that whether the CSD’s internal working guidelines were hearsay evidence or not was irrelevant to the present case. The focus of the present case was on whether or not there were sufficient legal bases for the enforcement actions of all the witnesses. This was to be the issue of importance.

84.Besides, with respect to A2’s contention that the prosecution’s stance at the trial was that the phrase “at public expense” meant “sent by the CSD” and “postage paid by the CSD with public money” and that it was the only way of authorization to send Exhibit P6, it is sufficient for me to say upon “rehearing” on appeal, the prosecution did not take the above stance.  PW2 and PW4 both testified that a prisoner might apply to a Chief Officer of the CSD for a document of complaint to be mailed by a third party for him/her.

Issue 2

85.I am of the view that this ground of appeal can be dealt with briefly.

86.Although Mr John Reading SC and Ms Larissa Wong for A2 argued in their written submissions that A2 could not be seen “nodding” on the CCTV, at the hearing I clearly saw A2 nodding in the CCTV footage.  Counsel for A2 also agreed that A2 could be seen nodding.

87.I summarize here the circumstances that A1 and A2 were in at that time, as described by the magistrate:

“(1) About 5 seconds after PW3 left the interview room, A1 at once signalled to A2 to hand back to him the ‘Document 2’[13] which had just been obtained;

(2) After retrieving ‘Document 2’, A1 at once folded ‘Document 2’ in half;

(3) A1 then took ‘Document 3’ (later confirmed to be Exhibit P6) out from his own folder and inserted it into the folded ‘Document 2’;

(4) A1 then handed ‘Document 2’, with Exhibit P6 hidden inside, to A2 through the space below the transparent partition;

(5) ‘Document 2’, with Exhibit P6 hidden inside, was placed on the table in front of A2;

(6) A1 put both hands through the space below the transparent partition and placed both hands on top of ‘Document 2’, with Exhibit P6 hidden inside, in front of A2;

(7) A1 retrieved both hands to his position, and A2 placed her left hand on top of ‘Document 2’, with Exhibit P6 hidden inside;

(8) A2 picked up ‘Document 2’, with Exhibit P6 hidden inside, with her left hand, while her right hand was placed on top of the document in front of her;

(9) A2 inserted ‘Document 2’, with Exhibit P6 hidden inside, underneath the document in front of her;

(10) ‘Document 2’, with Exhibit P6 hidden inside, was covered by the document in front of A2;

(11) A1 left the interview room, bringing along his own documents and ‘Document 1’;[14] and

(12)  A2 put all the documents in front of her, including ‘Document 2’, with Exhibit P6 hidden inside, into a bag and then left the interview room.”

88.Having observed the above, I, like the magistrate, am sure that A1 deliberately had A2 hand “Document 2” back to him immediately after PW3 left the interview room, and he folded “Document 2” in half and then covertly inserted Exhibit P6 into “Document 2” as a cover-up before handing it back to A2.

89.I find that A1 was well aware that Exhibit P6 was an unauthorized article and that A1’s intention was for A2 to carry the unauthorized Exhibit P6 out of the prison without the knowledge of the CSD.

90.As far as A2 is concerned, after watching the relevant CCTV footage, I concur with the magistrate’s observations:

“100. Even though there was no sound on the CCTV footage of Exhibit P14, I observed that from the time the 1^st defendant signalled to have ‘Document 2’, which had just reached the 2^nd defendant’s hand, handed back to him (at 12:56:04 hours) to the time when the 2^nd defendant inserted ‘Document 2’, with Exhibit P6 hidden inside, underneath the documents in front of her (at 12:56:39 hours), the 2^nd defendant’s line of sight was to the front and towards the 1^st defendant throughout. There was not merely looking between the 1^st defendant and the 2^nd defendant. There was an interaction between them. For example, at 12:56:19 hours when the 1^st defendant pushed ‘Document 2’, with Exhibit P6 hidden inside, which was already in front of the 2^nd defendant, further towards the 2^nd defendant’s position, the 2^nd defendant at once placed her left hand on top of ‘Document 2’, with Exhibit P6 hidden inside. Another example is immediately before the 2^nd defendant inserted ‘Document 2’, with Exhibit P6 hidden inside, underneath the documents in front of her at 12:56:39 hours, she nodded in the direction of the 1^st defendant.”

91.A2 clearly saw that A1 folded “Document 2” in half and then inserted P6 into “Document 2” and handed it to her.  Not only was this act furtive, it was also done after PW3 had left.  There was no registration or signature relating to the process of handover and receipt in the book of “Record of handover and receipt of documents (legal)”.  Under such circumstances, I find that the only reasonable inference is that A2 was definitely aware that Exhibit P6 was not an authorized article, therefore she carried Exhibit P6 out of the prison unilaterally without notifying PW3.

92.For the above reasons, I find that the prosecution has proven beyond reasonable doubt that A1 and A2 committed the offence in the case.  The appeals against convictions lodged by A1 and A2 are dismissed.

Appeal against sentence

93.Before dealing with the appeal against sentence, I am going to set out the background of A1, the submission in mitigation and the magistrate’s findings.

Background of A1 and submission in mitigation

94.A1 is now 28 years old.  He graduated with a bachelor’s degree in General Studies from the Metropolitan University.  His father passed away in 2015.  His mother is 61 years old and he has four elder sisters.

95.A1 had no record of criminal conviction at the time of the offence.

96.The defence’s stance was that the Ordinance was mainly concerned with order and security in prisons, and therefore the “introduction of an unauthorized article into a prison” was definitely more serious than “carrying an unauthorized article out of a prison”.  The present case was one of the less serious cases of its kind.

97.The defence further pointed out that A1 lodged two complaints with the CSDCC in 2022, alleging that Lai Chi Kok Reception Centre did not mail A1’s letter to the solicitors’ firm and that an unknown staff member wrongfully read the documents handed over by him to his solicitor. The defence argued that, irrespective of whether the complaints could be substantiated, A1 was genuinely worried whether his complaint against the CSD would be mailed.

98.The defence cited HKSAR v Cheung Koon Kit,[15] stating that the appellant of that case, who was an Assistant Officer II of the CSD at the time of the case, was convicted of one count of “introduction of unauthorized articles into a prison” (i.e. 2 packets of cigarettes) after trial and was sentenced to a fine of $450.  The present case only involved a letter which a prisoner was entitled to write to a specified person.

99.The defence asked the court to take into account that A1 lodged a legitimate and actual complaint, and it was not concerned with a possible security loophole mentioned in the legal argument or an affront to The Ombudsman under the guise of a complaint.  The complaint form did not contain any dangerous article.  A1 was only exercising his freedom of speech and his right to express his dissatisfaction with the CSD in a peaceful manner.  The defence hoped that the court would dispose of the present case by way of a fine.

100.The magistrate’s sentence on A1 was as follows:

“126. Firstly, I am of the view that it is an indisputable fact that prisoners have the right to complain to The Ombudsman. Under rule 47(4) of the Prison Rules, staff of the CS(D) ‘shall’ mail it free of postage for a prisoner. It can be seen that great importance is undoubtedly attached to this right. To me, it was understandable for the 1^st defendant to exercise the right to complain to The Ombudsman and it is a right conferred on him by law.

127. It was mentioned in the documents for mitigation submitted by the 1^st defendant that it was not because of one single incident that he lost confidence in the complaint system and the mailing system of prisons. The 1^st defendant was of the view that there was little privacy for prisoners in prisons and that the administrative powers of the CSD led to injustice in respect of prisoners’ rights and infringement of legal rights. Eventually, he decided to have the complaint form mailed through another channel. The 1^st defendant also mentioned that he had implicated a fledgling and highly conscientious solicitor who never caused him the slightest concern. He was extremely sorry that she might face a disciplinary hearing held by the Law Society, regardless of the outcome of the present case.

128. As mentioned earlier, in order to maintain smooth and effective implementation of security, order and discipline in prisons, I am of the view that the CSD’s establishment of a set of internal working guidelines / code of practice was indeed beyond reproach. Prisons are places where discipline should be observed. No one, whether a prisoner, visitor or even a staff member of the CSD, is allowed to act wantonly.

129. However, the 1^st defendant worried whether the CSD would mail Exhibit P6 for him due to the experiences that 2 previously lodged complaints were ultimately only classified as ‘unsubstantiated’. He eventually decided to have it mailed through another channel on his own. I am of the view that the 1^st defendant’s worry was undoubtedly based on his personal subjective thinking. In a state of distrust, the 1^st defendant was bent on having his own way, and bypassed the security check stipulated by the CSD and privately handed over Exhibit P6 to the 2^nd defendant for mailing, knowing that it was wrong to do so. It was a reckless and fatuous act.

130. The sentence in the present case, apart from taking into account the reasons for the 1^st defendant’s commission of the offence and the special nature of Exhibit P6, must also reflect the importance of observance by prisoners of the rules made by the CSD. Furthermore, the 1^st defendant committed the offence of the present case whilst on remand. I am of the view that immediate imprisonment is the only appropriate sentencing option.

131. I have had the opportunity to read the content of Exhibit P6. The complaint stated therein did not contain any unlawful or improper language. I am of the view that in any event, if the 1^st defendant had had Exhibit P6 mailed through the proper channel and after a security check, Exhibit P6 should be able to be mailed from the prison and delivered to The Ombudsman smoothly.

132. Having carefully considered the circumstances as a whole, I adopt 3 days’ imprisonment as the starting point for sentencing. The 1^st defendant, having been convicted after trial, is not entitled to any reduction in sentence. Accordingly, the 1^st defendant is sentenced to 3 days’ imprisonment. Having regard to the totality principle of sentencing, I order that the sentence in the present case shall be run consecutively to the sentence currently being served.”

Grounds of appeal

101.The appellant put forward two grounds of appeal:

(1)  The magistrate did not take into account or give due weight to the special nature of Exhibit P6;

(2)  The magistrate erred in finding that carrying an unauthorized article out of a prison and introduction of an unauthorized article into a prison involved the same degree of culpability.

102.The appellant’s submission on appeal was essentially a restatement of the arguments in their submission in mitigation before the magistrate.  The appellant submitted that carrying an unauthorized article out of a prison involved a lower degree of culpability than introduction of an unauthorized article into a prison.  The appellant also cited a number of cases in which staff of the CSD introduced unauthorized articles into prisons and contended that the sentence of 3 days’ immediate imprisonment imposed on A1 was unduly harsh.

The respondent’s response

103.The respondent submitted that “carrying an unauthorized article out of a prison” and “introduction of an unauthorized article into a prison” involved the same degree of culpability and that sentencing would depend on the facts of each case.

104.In respect of the seriousness of the offence, the offence involved maintaining the smooth and effective implementation of security, order and discipline in prisons.  Prisons are places where discipline should be observed.  No one, whether an inmate, a visitor or even a staff member of the CSD, is allowed to act wantonly.

105.More importantly, A1 was bent on having his own way, and bypassed the security check stipulated by the CSD and privately handed over Exhibit P6 to A2 for mailing, knowing that it was wrong to do so.  It was a reckless and fatuous act.

106.In order to reflect that prisoners are required to observe the rules made by the CSD and its importance and that A1 committed the offence of the present case whilst on remand, a short term of imprisonment is the appropriate sentencing option.

107.The respondent stated that A1 was sentenced to 3 days’ imprisonment.  Having regard to the totality principle of sentencing, the magistrate ordered that the sentence in the present case shall run consecutively to the sentence currently being served.

108.The respondent contended that the sentence was not manifestly excessive and there was no error in principle. The magistrate had already shown due consideration for A1’s situation.

My considerations

109.“Carrying an unauthorized article out of a prison” and “introduction of an unauthorized article into a prison”, both in contravention of section 18 of the Ordinance, attract the same punishment.  I agree with the magistrate’s view that “introduction” was not more serious than “carrying out of”.  The court’s sentencing will of course depend on what unauthorized article was involved in each case.

110.Having considered all the circumstances of A1’s commission of the offence, including his previous complaints to the CSD, I am of the view that the magistrate ignored the following circumstances in A1’s favour in sentencing (and the defence never mentioned the following circumstances as mitigating factors).

111.According to the evidence given by PW1 and PW2, PW1 only told A1 that he must hand over the complaint form to the CSD for mailing for him.  A1 was not told that he could apply for having the letter of complaint mailed by a third party for him.  Besides, in the notice relating to The Ombudsman posted in the prison, there was no mention that a prisoner could apply for mailing to be done by a third party for him/her either.  The circumstances would have been different if A1 had chosen to privately hand over the letter of complaint to A2, knowing that he could make an application for the letter of complaint to be mailed by a third party.

112.As A1 subjectively believed that his letters had been wrongfully read and had not been mailed, and he had not been told that he could apply for having his letter of complaint mailed by a third party for him, A1 was at the lower end of the culpability scale in committing the offence.

113.Having considered the above circumstances, I am of the view that even though A1 is a prisoner, the culpability of the offence committed by A1 does not warrant an imprisonment sentence.  I am of the view that the imposition of a fine of $1,800 properly reflects A1’s culpability.

114.For the above reasons, I allow A1’s appeal against sentence, set aside the sentence of 3 days’ imprisonment and substitute it with a fine of $1,800.

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