Pang Tak Kwai v. Commissioner of Correctional Services and Another
Read the full judgment text of HCAL 1610/2000 on BabelCite. This High Court CFI judgment was delivered on 6 December 2000.
1. This is an application by Mr Pang Tak Kwai ("Mr Pang") for judicial review. The decision that is being challenged is the decision of the Chief Executive of Hong Kong who, by letter dated 13 October 1999, dismissed Mr Pang from his post as Technical Instructor in the Correctional Services Department ("the Department") pursuant to rule 255B(4) of the Prison Rules (Cap.234).
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HCAL001610/2000 HCAL1610/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1610 OF 2000 -----------------------
----------------------- Coram: Hon Cheung J in Court Dates of Hearing: 30 November and 1 December 2000 Date of Judgment: 6 December 2000 -------------------------- J U D G M E N T -------------------------- Application for judicial review 1. This is an application by Mr Pang Tak Kwai ("Mr Pang") for judicial review. The decision that is being challenged is the decision of the Chief Executive of Hong Kong who, by letter dated 13 October 1999, dismissed Mr Pang from his post as Technical Instructor in the Correctional Services Department ("the Department") pursuant to rule 255B(4) of the Prison Rules (Cap.234). The personal background of Mr Pang 2. Mr Pang joined the Department as a Technical Instructor in February 1988 and was confirmed to the permanent establishment on 22 August 1990. His job was to instruct prisoners on the manufacture of leather goods ordered by government departments at the prison workshop at Stanley Prison. He was charged on 16 January 1998 of the offence of possession of prohibited articles in prison contrary to section 18A(1)(a) of the Prisons Ordinance, Cap.234. The section provides that :
"Prohibited Article" is defined in section 18A(2) as :
The prohibited articles that were found in the possession of Mr Pang were two packets of salted peanuts which Mr Pang accepted to be "provisions" within the meaning of section 18A(2). 3. The magistrate initially acquitted Mr Pang of the offence, but after the prosecution applied for a review of his decision, the magistrate on 29 May 1998 reversed his decision and convicted Mr Pang of the offence. The magistrate ordered that Mr Pang be discharged absolutely. Mr Pang lodged an appeal against the conviction which was later abandoned. 4. Following the conviction, Mr Pang was interdicted from duty with his salary withheld. By a letter dated 2 December 1998, he was informed that the Commissioner of Correctional Services ("the Commissioner") had invoked rule 255B of the Prison Rules and had referred his case to the Chief Executive for punishment. Mr Pang was invited to make representations which he did through a firm of solicitors. 5. The Commissioner recommended the dismissal of Mr Pang. By a letter dated 13 October 1999, the Secretary for the Civil Service informed Mr Pang that the Chief Executive had directed that he be dismissed from the service under rule 255B(4) of the Prison Rules with effect from 13 October 1999 and that he had to forfeit all claims to any pension, gratuity and to any other benefits or advantages of an officer, together with the emoluments withheld from him during his interdiction. The statutory scheme 6. Mr Pang was a person employed in the prisons. The punishment of a person employed in the prisons having found guilty of a criminal offence is found in section 20E of the Prisons Ordinance which provides that he may be punished "in the appropriate manner provided in the rules made under section 25". The rule in which Mr Pang was punished was rule 255B of the Prison Rules which provides that :
Is rule 255B ultra vires? 7. In Hong Kong the Legislative Council enacts legislations. However, it has the power to delegate to another body to make subsidiary legislation to implement the main legislation. The power of the delegated authority to make the subsidiary legislation has to be conferred by the main legislation. The Prison Rules is a subsidiary legislation enacted by the former Governor-in-Council and also by the present Chief Executive-in-Council. The conferring power is set out in section 25 of the Prisons Ordinance and it must be in this section that one seeks to ascertain whether the legislature had expressly authorized the Governor-in-Council to make rules relating to the punishment of an employee of the prison who had been found guilty of a criminal offence. The principle in this area is succinctly set out in Bennion on Statutory Interpretation 3rd Ed. section 58 : (1) Any provision of an instrument constituting delegated legislation is ineffective if the provision goes beyond the totality of the legislative power which (expressly or by implication) is conferred on the delegate by the enabling Act. The provision is then said to be ultra vires (beyond the powers). This applies even where the instrument has been sanctioned by a confirming authority. However the instrument is not to be treated as ineffective in any respect on the ground of ultra vires unless and until declared to be so by a court of competent jurisdiction. 8. The first ground of challenge by Mr Pang is that rule 255B is ultra vires or beyond the power of section 25 of the Prisons Ordinance. The Prison Rules were first made in April 1954 by the former Governor-in-Council under section 25 of the Prisons Ordinance. Thereafter there had been a number of additions and amendments to the Prisons Ordinance and Prison Rules. Rule 255B was added in 1977, subsequent to section 20E of the Prisons Ordinance which was also added in 1977. Section 25 of the Prisons Ordinance 9. Rule 255B was purportedly made under section 25 of the Prisons Ordinance which provides that the Chief Executive in Council may make rules providing for various matters totalling 19 in number. None of them deals with the punishment of an employee found guilty of a criminal offence. Those that are relevant for the purpose of this case are as follows :
It is clear that section 25(1)(d), (da), (db) and (dc) are all in relation to disciplinary offence. Section 25(1)(?) is a general section. Unless such a criminal offence is a disciplinary offence of which rules for punishment can be made or comes within the general provision of "all other matters relating to the prisons and hostels" then the power of the Governor-in-Council who made rule 255B for the punishment of a person employed in prisons found guilty of criminal offence was not authorized by the enabling section in section 25 of the Prisons Ordinance. Disciplinary offence 10. Although rule 255B is located in Part V of the Prison Rules which deals with "Disciplinary provisions applicable to all officers and other persons employed in prisons", that does not make it a disciplinary offence. A "disciplinary offence" means a disciplinary offence prescribed by rules made under section 25 : section 2 of the Prisons Ordinance. Rule 239 provides that any officer of the Correctional Services Department or other persons employed in the prisons commits a disciplinary offence who, for example, without good and sufficient cause fails to carry out any lawful order, whether written or verbal, or is subordinate towards any officer in the service of the Department whose orders it is for the time being his duty to obey. Rule 239 lists 18 such acts. 11. It is clear that in order to ascertain whether an act is a "disciplinary offence", one has to turn to rule 239 and nowhere else. This view is supported by rule 243 which provides that a charge against, among others, a person employed in the prisons in respect of "any disciplinary offence enumerated in rule 239" shall be entered on a charge sheet as soon as practicable after consideration by an officer. In none of the 18 acts provided in rule 239 is there a reference to an act of being found guilty in a criminal case. The closest is item (q) which provides that :
However, this item is not simply of someone being guilty of a criminal offence, but rather being guilty of government regulations which amounts to misconduct in a public officer. Item (q) being a disciplinary offence enumerated in rule 239 would require the disciplinary procedures to be invoked in order to charge that person with this offence. And if that person is found guilty, then punishment can be imposed in accordance with other parts of the Prison Rules dealing with disciplinary offence. 12. However, rule 255B sets out the regime for punishing someone in the employ of the prisons found guilty of the criminal offence without the requirement of going through the disciplinary hearing procedure. As such, item (q) is not wide enough to bring Mr Pang's case within the meaning of a disciplinary offence in which there are separate rules for punishment. 13. Even if the finding of guilt against Mr Pang of a criminal offence comes within the meaning of a disciplinary offence, this would still not help the Commissioner because of the provisions in the Prison Rules, commencing from rule 243, which deal with the procedure in proving the disciplinary offence against the person in the employ of the prison. As rule 255B does not require such a procedure to be observed first, it would really be stretching the language of the statute to say that the act of Mr Pang is a disciplinary offence and therefore section 25 of the Prisons Ordinance allows rule 255B to be made for its punishment. Matters relating to prisons and hostels 14. The only other basis in which the Governor-in-Council could be authorised to make rule 255B would be the authority granted by the legislature to the Governor-in-Council to make rule on "all other matters relating to the prisons and hostels" in section 25(1)(l) of the Prisons Ordinance. As stated in Bennion at page 184 : "An enabling enactment frequently includes so-called 'sweeping-up words' intended to confer residual powers to complete those expressly spelt out..... The courts tend to regard such words as being strictly limited in scope. '..... "supplementary" means ... something added to what is in the Act to fill in details or machinery for which the Act itself does not provide -supplementary in the sense that it is required to implement what was in the Act'." Item (l) clearly cannot be used to complete what is expressly left out in section 25, namely rules providing for punishment of persons employed in prisons found guilty of a criminal offence. 15. In Leon Fink Holdings Property Limited v. Australian Film Commission [1979] 141 CLR 673, Mason J (as he then was) of the High Court of Australia held that :
Clearly, item (l) being in the nature of a general power, cannot be exercised to do an act which is the subject of the special power. 16. Furthermore, it is a principle of legal policy that a person should not be penalized except under clear law or penalized in a way which was not made clear : Bennion section 271 at page 637. A law that inflicts hardship or deprivation of any kind is in essence penal. There are degrees of penalisation, but the concept of detriment inflicted through the state's coercive power pervades them all. This principle requires, among other things, the fulfillment of the letter of statutory conditions precedent to the infliction of punishment (page 638). Rule 255B is indeed ultra vires 17. 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. The Customs and Excise Service Ordinance 18. Mr Lo, counsel for Mr Pang, had drawn my attention to how another disciplinary force, namely the Customs and Excise Department, deals expressly with the punishment of an officer found guilty of a criminal offence. Section 14(1)(b) of the Customs and Excise Service Ordinance, Cap.342 provides that the officer concerned may be punished "in the appropriate manner prescribed by rules made under section 16". Section 16(1) provides the Chief Executive may make rules for all or any of the following matters-
Rule 18 of the Customs and Excise Service (Discipline) Rules is the rule dealing with the punishment where a criminal offence is committed by the officer. It is almost in the same terms as rule 255B. 19. In construing whether a subsidiary legislation is made beyond the power of the delegated authority, one has to look at the authorizing legislation itself. In this case, rule 255B of the Prison Rules must be read in the light of the Prisons Ordinance. Reference to the Customs and Excise Service Ordinance and its Disciplinary Rules is not by itself an indication that rule 255 is flawed. However, it is a useful illustration on how the enabling ordinance should be drafted identifying expressly the power to make delegated legislation in a situation such as Mr Pang. The decision to dismiss is irrational 20. Even if my construction of the Prisons Ordinance is incorrect and that rule 255B is a valid rule, I am still of the view that the decision by the Chief Executive should be quashed because it is an irrational decision within the terms of the Wednesbury principle. The punishment just does not fit the crime. The offence 21. The facts of the criminal offence as revealed in transcript of proceeding showed that on 21 November 1997 while Mr Pang was passing through a metal detector located at the main gate of the Stanley Prison, the detector sounded. Mr Pang then tried to walk through the metal detector a number of times. On the third occasion after the detector sounded, he took out from one of his trousers' pocket a packet of peanuts. He tried to go through the detector again, but it sounded again and he then took out another packet of peanuts from the other pocket of his trousers. After Mr Pang had passed through the detector for the last time, he was stopped by a prison officer who asked him why he brought in two suspected salted peanuts. Mr Pang told him that he did not have lunch that day and he brought two packets of peanuts for his own consumption. At that time, the prison officer did not accept his explanation and later reported the matter to the superior. 22. Mr Pang explained that on that day while he was on duty, he felt pain in his body and he went to see a doctor in the Stanley Prison who prescribed three types of medicines for him which he took. The medicines were for anti-infection, anti-swelling and pain-killing. As he did not have any lunch, he went to the staff canteen and bought two packets of peanuts. After he bought the peanuts, he went to the resting place for the staff for a rest and then he resumed work. He did so because he was the only staff on duty in the workshops that day, he did not take any sick leave and continued with the work. When he passed through the metal detector, the incident occurred. 23. Mr Pang was represented by counsel in the criminal trial. In giving evidence, Mr Pang stated that when he walked through the metal detector, he did not know that he had the two packets of peanuts. However, Mr Pang's defence at the criminal trial was not that he had forgotten about the peanuts. Defence counsel expressly admitted that Mr Pang had possession of the peanuts and stated that it was not Mr Pang's defence that he had forgotten about the peanuts. He referred the magistrate to the case of R. v. Martindale [1987] 84 CAR 31 which he relied as the authority for his submission that possession does not depend on the memory of the defendant. The defence that was actually raised was that there was implied consent by the Commissioner to allow Mr Pang to have possession of the peanuts within the Stanley Prison because they were legally sold to him in the staff canteen by the Commissioner within the prison. On that basis, the magistrate acquitted Mr Pang. But on review, it was drawn to the attention of the magistrate that the Stanley Prison was a separate building in the compound, after one had entered the compound through a barrier. The staff canteen was not in the Stanley Prison itself. As a result, there was no implied consent by the Commissioner to allow Mr Pang to have possession of the two packets of peanuts in the Stanley Prison. The basis of the recommendation 24. The Commissioner recommended dismissal of Mr Pang. This recommendation was accepted by the Chief Executive. The Commissioner in his memo dated 3 June 1999 to the Secretary for the Civil Service showed the basis why he considered that dismissal should be imposed.
In considering the seriousness of the offence, the Commissioner was mistaken on the defence raised by Mr Pang at the hearing. At paragraph 2(f) of the memo, it was stated that :
As revealed in the transcript, it was not a question of the magistrate not accepting Mr Pang's defence but rather Mr Pang, through his counsel, expressly did not rely on forgetfulness as a defence. Furthermore, the provisions of afternoon snack to prison staff was not evidence raised in the trial. Fettering of discretion 25. By insisting on the dismissal of Mr Pang, so that, in the words of the Commissioner, it "should be seen as a clear signal to deter copycat acts. ..... Lesser and alternative punishment than as proposed will send a wrong signal that quantity counts thus opening up to challenge in future cases on quantity versus severity," the Commissioner was clearly fettering his own discretion despite the range of punishments that was open to him to recommend to the Chief Executive. Under rule 255B, the Chief Executive may award anyone or more of the punishments that he may award under rule 254(b) in respect of a disciplinary offence. Under rule 254, the punishments that the Chief Executive may award are :
A summary of the legal position can be found in de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th Ed. :
The previous decisions 26. When the Commissioner referred to six previous similar offences in which the offenders were dismissed from the Department, the Commissioner had not distinguished the offences that these officers were charged and the degree of culpability of these offenders. One of these offenders was not charged under section 18A but rather under either sections 18 or 19 of the Prisons Ordinance. Section 18 deals with the introduction of unauthorized articles into the prison with the intent that they shall come into the possession of a prisoner. Section 19 deals with the supply of unauthorized articles to prisoners. If a person employed in the prison is found guilty of either of these two offences, these two sections expressly provide that in addition to the punishment prescribed by the sections, he shall be liable to forfeit his office. There is no similar provision for forfeiture of office in section 18A. This clearly is a recognition that there is a difference in the severity of the offences committed under section 18A and the two other types of offences. 27. One of the six cases was in respect of an offence under rule 39 of the Immigration (Vietnamese Migrants) (Detention Centres) Rules. It is clear from a reading of rule 39, it was dealing with a different category of articles, namely :
"Any other article" in rule 39 must be, as a matter of construction, referable to the category of articles specified earlier in that rule. 28. The other cases relating to section 18A and cited by the Commissioner are clearly far more serious : possession of a mobile phone which obviously involves security risk in the prison; six packets of cigarettes with tinfoil removed and $8,923 cash while passing through the metal detector; and there is another case in which there was a joint charge of accepting an advantage. Extenuating circumstances 29. The absolute discharge imposed by the magistrate clearly reflects the nature of the present offence. Under section 36 of the Magistrates Ordinance, an absolute discharge can be imposed if having regard to the character, antecedents, age, health or mental condition of the person charged or to the trivial nature of the offence or to the extenuating circumstances under which the offence was committed, it is inexpedient to inflict any punishment or any other than a nominal punishment. This was not considered by the Commissioner when he decided that a deterrent penalty was appropriate because of the "seriousness of the case". Furthermore, he had not considered the context in which this offence was committed, namely Mr Pang had at that time taken three types of medicine and did not have lunch that day. Clearly the very nature of the articles that were brought in, namely two packets of peanuts, would amount to extenuating circumstances as well. Financial consequence 30. The Commissioner had failed to give recognition to the financial consequence that Mr Pang would face as a result of the dismissal. After he was interdicted in May 1998, he had his pay withheld for 17 months. As a result of the dismissal, nearly $600,000 of these wages were forfeited. He had also lost about $1 million which was the pension he would be entitled to, calculated up to the date of dismissal in October 1999. For someone who was aged 44 and had worked with the Department for the past nine years and who was earning $33,315 per month, these are substantial financial losses. Disciplinary forces 31. It is argued that the Correctional Services is a disciplinary force and the court should pay heed to the special nature of this department in terms of security and discipline among its employees. Indeed, the court should recognize the special circumstances involved but it does not mean that the court should not intervene when the facts clearly justify an intervention. 32. The approach that the court should adopt in exercising its supervisory jurisdiction in relation to a challenge against a sentence is found in R. v. St. Albans Crown Court, Ex parte Cinnamond [1981] 1 QB 480 where Donaldson LJ stated that :
In R. v. Ministry of Defence, ex p. Murray [1998] COD 84-157 134, a sergeant in the army had bitten the nose of another officer. He pleaded guilty to a civil offence, contrary to the provisions of the UK Army Act. The Court Martial ordered imprisonment and his dismissal from service. He suffered a considerable financial loss of some ￡100,000 resulting from the dismissal. The Divisional Court of England quashed the decision on the basis that the Court Martial had failed to give reasons for imposing imprisonment and dismissal. It, however, did not disturb the sentence as being Wednesbury unreasonable, it was said that :
The present punishment was not imposed by a Court Martial. 33. In R. v. Admiralty Board of the Defence Council, ex parte Coupland [1996] COD 92-182 147, the UK Divisional Court did interfere with a sentence imposed on a naval officer by a Naval Court Martial. The officer had granted an interview to a newspaper in which he called for the introduction of a military ombudsman. When the commanding officer later asked him to hand in his base passes and proceed to home leave, he did not do so immediately. He was charged with the offence of disobedience to orders, he pleaded guilty to the charge and the sentence imposed was that he was to be dismissed from service. Stuart-Smith LJ stated that :
The present offence 34. I would likewise adopt the approach in Coupland. The offence of possession of prohibited article in prison by its employee would differ widely according to the circumstances of the case. This clearly is one which is at the lower end of the scale. By adhering strictly to a policy of dismissal, the Commissioner had ignored the extenuating circumstances. In the worst situation, even if Mr Pang should no longer be employed in the prisons, dismissal is not the only punishment that can be imposed, the alternative method of compulsory retirement without forfeiting Mr Pang's entitlement would have been appropriate in the light of the nature of the offence. In my view, the decision of the Commissioner to recommend dismissal was an irrational one. By adopting the recommendation, the Chief Executive had likewise made an irrational decision. Procedural impropriety 35. Mr Lo further argued that the decision should be quashed by reason of procedural impropriety in that Mr Pang was not given the opportunity to make representations to the Chief Executive and that no reason was given by the Chief Executive in dismissing Mr Pang. It is not necessary for me to deal with this ground in the light of my decision. Conclusion 36. I shall make a declaration that rule 255B of the Prison Rules 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. I shall further order and declare that the decision of the Chief Executive to dismiss Mr Pang from his post is null and void and of no effect. Alternatively, if rule 255B of the Prison Rules is a valid rule, I shall quash the decision of the Chief Executive to dismiss Mr Pang and order that the matter be remitted to the Chief Executive for redetermination. 37. I shall further order that Mr Pang is to have the costs nisi of this application.
Representation: Mr P.Y. Lo, instructed by Messrs Clarke & Kong, for the Applicant Mr Kwok Sui Hay, instructed by Department of Justice, for the Respondents Remarks: |
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