Man Kwok Yin v. Commissioner of Correctional Services

HCAL000100/1998

1998 HCAL No. 100

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

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Coram: The Hon. Mr. Justice Keith in Court

Date of Hearing: 16 March 1999

Date of Delivery of Judgment: 16 March 1999

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J U D G M E N T

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Introduction

1. The Applicant was an officer in the Department of Correctional Services. He was charged with the disciplinary offence of communicating with a prisoner for an improper purpose, contrary to rule 239(1)(h)(ii) of the Prison Rules. That disciplinary charge was found proved, and the Commissioner of Correctional Services decided to dismiss him from the Prison Service. In doing so, he directed that the Applicant should forfeit all pension benefits. The Applicant now applies for leave to apply for judicial review of (a) the finding of guilt and (b) the disciplinary sanction.

The facts

2. The disciplinary proceedings arose out of a criminal charge which the Applicant faced. The prosecution was prepared to accept his plea of not guilty to the criminal charge, but in the course of the hearing in the Magistracy, the Applicant admitted that the Summary of Facts which had been prepared was correct. The Summary of Facts read as follows:

"At the material time, the [Applicant] was an Assistant Officer I of Correctional Services Department attached to Stanley Prison. Prisoner CHAN Chi-shing was then under his supervision.

2. In about June 95, another prisoner NG Kai-tuen who was due to be discharged reached an agreement with CHAN that NG would open a telebet account with the Hong Kong Jockey Club for their joint use in horse betting. In June 1995, NG was released from Stanley Prison and subsequently opened a telebet account in September 1995. NG gave CHAN the account number and the secret code for using that account.

3. After receiving the account number and the secret code, CHAN had on a number of occasions asked the [Applicant] to place bets on his behalf and therefore the [Applicant] was aware of the telebet account number as well as the secret code. On 25th October 1995, the [Applicant] made use of the credit balance in the telebet account to place bets in the sum of $2,300 for himself. He had never obtained consent for using that account from either NG or CHAN nor had NG or CHAN given consent for him to do so."

The disciplinary charge was preferred against him in the light of his admission that the facts set out in the Summary of Facts were correct. The particulars of the disciplinary charge were:

"Some time between September 1995 and October 1995, you being a staff member of Stanley Prison, did communicate with Prisoner CHAN Chi-shing, who was serving his sentence in Stanley Prison, for the purpose of placing bets on his behalf and thereby became aware of the account number as well as the secret code for using the telebet account opened by ex-prisoner NG Kai-tuen with the Hong Kong Jockey Club."

The finding of guilt

3. The sole point taken in relation to the finding of guilt is succinctly summarised in para. 8 of the grounds on which relief is sought:

"The said summary of facts did not contain any evidence whatsoever upon which the Adjudicating Officer was entitled to find that the applicant had communicated with a prisoner for the alleged improper purpose, namely the placing of bet[s] on behalf of the said prisoner Chan Chi Shing, or at all. The said summary of facts disclosed that there had been communication between the applicant and the said prisoner but did not disclose that the applicant had complied with or agreed to any improper request made in the communication by the prisoner."

It is accepted by Mr. Jerome Matthews for the Applicant that the Summary of Facts disclosed that there had been communication between the Applicant and the prisoner. The question was whether, on the facts which the Applicant admitted, it was open to the adjudicating officer to conclude that that communication was for an improper purpose. Mr. Matthews accepts that the communication would have been for an improper purpose if the Applicant had agreed to place bets on the prisoner's behalf. As I read the adjudicating officer's reasons for finding the Applicant guilty on this disciplinary charge, the adjudicating officer was finding that the Applicant had agreed to place bets on the prisoner's behalf. The question, therefore, is whether it was open to the adjudicating officer, on the facts which the Applicant admitted, to reach that conclusion.

4. The Summary of Facts shows that the Applicant was aware of the prisoner's telebet account number as well as the secret code. The adjudicating officer would have been entitled to infer that the Applicant got those details from the prisoner. The Applicant must have made or kept a note of the details in order to enable him to use the telebet account to place bets for himself. If the Applicant got the details of the telebet account from the prisoner, and since he used the telebet account subsequently, it was open to the adjudicating officer to infer that the Applicant received those details in order to enable him to place bets on the prisoner's behalf. Why else would the prisoner have given those details to the Applicant? The fact that the Applicant did not admit that there was any agreement on his part to comply with the prisoner's request does not mean that it was not open to the adjudicating officer to infer, from the primary facts disclosed in the Statement of Facts, that such an agreement had been reached.

5. I have noted the criticisms made by Mr. Matthews of the adjudicating officer's process of reasoning, but on this core issue I do not think that the adjudicating officer's reasoning can be faulted. For these reasons, I do not think that the Applicant's challenge to the finding of guilt has an arguable chance of success, and I refuse to give him leave to apply for judicial review of the finding of guilt.

The disciplinary sanction

6. The Applicant had been employed in the Department of Correctional Services for 22 years. Apart from a reprimand 17 years ago for a disciplinary offence for which he had also been fined the sum of $20, he claims to have had an unblemished record. However, I have no doubt that the decision to require the Applicant to leave the Prison Service for the particular breach of the Prison Rules which he committed was within the band of reasonable options available to the Commissioner. The Commissioner was entitled to conclude that the Applicant could no longer be trusted.

7. However, dismissal from the Prison Service with the loss of all accrued pension benefits was not the only way of ensuring that the Applicant left the Service. It was open to the Commissioner, under rule 255 of the Prison Rules, to direct that the Applicant be compulsorily retired while retaining his accrued pension benefits. There is no evidence before me that the Commissioner considered that possibility. It was the failure to consider such a possibility which caused the Court of Appeal in Ng Wai San v. The Secretary for Justice [1998] 3 HKC 501 to allow a police officer's appeal against the dismissal of his application for judicial review of a decision to dismiss him from the Police Service. In my view, if the Commissioner did not consider that possible option available to him, it is arguable that his decision to dismiss the Applicant in circumstances in which the Applicant lost all accrued pension benefits was flawed. Accordingly, I grant the Applicant leave to apply for judicial review of the disciplinary sanction which was imposed.

8. Finally, I should add that the test which I have applied is the one laid down by Godfrey J. (as he then was) in the Court of Appeal in R. v. The Director of Immigration ex p. Ho Ming Sai [1993] 3 HKPLR 157 at p.170:

"Does the material before me disclose what might on further consideration turn out to be an arguable case?"

Representation:

Mr. Jerome Matthews and Mr. Bruce Tse, instructed by Messrs. Wong,

Packwood & Co., for the Applicant.