Chim Shing Chung v. The Commissioner of Correctional Services

HCMP002271/1995

1995, No. MP 2271

HEADNOTE

C., a prisoner in Stanley, found that from 15th May the racing supplement to his newspaper was removed. His solicitor sought the legal reason for this action and was told that it was by virtue of Rule 56 of the Prison Rules and a Standing Order. When the Commissioner was asked to disclose the contents of the Standing Order, so that legal advice could be given, he refused on the basis that the Standing Order was confidential.

On an application for judicial review for 'certiorari' to quash the Commissioner's decision and 'mandamus' to disclose the contents of the Standing Order.

HELD QUASHING THE DECISION

1. Even if it could be within Rule 56, which was doubtful, it was irrational.

2. It was also in breach of Art. 16 of the Bill of Rights.

3. The Standing Order had no legislative force and did not provide any legal basis for the action taken.

4. The non-disclosure of the Standing Order was unlawful, as it impeded the prisoner in his access to the Court, and might also be a contempt of Court, BUT, as it was disclosed, albeit only a few days before the Court hearing, and on an apology being given to the Court, no order would be made.

1995, No. MP 2271

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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Coram: The Hon. Mr. Justice Sears in Court

Dates of hearing: 30 and 31 October 1995

Date of delivery of judgment: 2 November 1995

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J U D G M E N T

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BACKGROUND

1. This case raises an important issue as to the right of a Government Department to prevent a portion of a newspaper being read by a man currently detained in Stanley Prison. That portion relates to horse racing information which the prison authorities do not wish him to read.

2. Although this may be thought by some to be an insignificant matter, it is a form of censorship. Newspapers play an important role in a democratic society, they not only provide information of all description, they reveal injustice and prevent abuse by persons in power.

3. In Hong Kong there is a free and vigorous press with a wide range of Chinese and English newspapers. Those who interfere in the freedom of the press do so at their peril. Censorship of sports information can turn into censorship of other information.

4. At this time in Hong Kong's history, the Court must be vigilant to ensure that any interference with the press can only be justified when such action is clearly lawful and necessary. Indeed, we now have that enshrined in the Bill of Rights,

5. Freedom of opinion and expression

(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary-

(a) for respect of the rights or reputations of others; or

(b) for the protection of national security or of public order (ordre public), or of public health or morals."

FACTS

6. The Applicant, Mr. Chim Shing Chung was sentenced in the High Court in October 1994 to 8 years imprisonment for trafficking in dangerous drugs. His life was not unknown to crime, indeed he had been in Stanley Prison for 2 years 1983 and 1984; he came out of prison and then shortly went back again for another 3 years 1985 to 1988 and 1991 to 1992. He is clearly a man who has been involved in crime on a number of occasions. Nevertheless, he is still a citizen entitled to the protection of the law.

7. During his time in prison, he tells me in two affidavits that he was always interested in horse racing and apart from one short period in 1986, he has always read the racing pages in the sporting section and has been interested in horses. He says his interest is not gambling, "I have always been interested in racing and I find that following the horses relieves some of the tedium of prison life. I only make imaginary bets with myself for my own entertainment." It is conceded by the Crown that he is perfectly entitled to place bets through a relative or friend who has visited him if he wishes to bet on a horse.

8. Horse racing in Hong Kong is a past time enjoyed by many people. Betting on horses is lawful. All gambling in Hong Kong is illegal, but betting on horses is lawful if the bet is placed either on the race track, or through a licensed Hong Kong Jockey Betting Office, or through what is called a tele-bet account. Many people bet on horses and it is common knowledge that the pools on horse racing are substantial, amounting in each race, to many tens of millions of dollars. Horse racing indeed provides opportunities for people to win large sums of money and gives to the Jockey Club the opportunity to donate substantial sums of money for charitable purposes. So it must be remembered that horse racing is lawful and newspapers which print information about horse racing are doing nothing illegal at all.

9. This man, when he went back into prison said he was subscribing to a newspaper. He obtained an English newspaper. He says he cannot read English and so he has a range of Chinese newspapers to choose from. Suddenly, on 1st May this year the racing section of the Oriental Press was removed. I have been provided with a number of newspapers to examine, which are exhibited. Basically, racing information in Hong Kong is provided in two ways. First of all, there is daily racing information. This may contain information about horses, gallops, jockeys who are to ride horses, and tipsters giving their previews for races. A day before racing, in the English newspapers which are published, that is the Hong Kong Standard and the South China Morning Post, are details of four races. These are the races for the exotic bets, the double trio and the triple trio. There are two days racing per week. One is on a Wednesday night, and so on Tuesday out of 6 races, 4 will be published in full with all the tipsters' tips, the form of the horses, the jockeys who are going to ride them. The only matters that come the following day, are further information, racing commentaries and the overnight betting odds.

10. Mr. Chung has found that the day before racing he is told all about the horses, he reads all about them and the following day if a newspaper has a separate section dealing with horse racing it is removed. He says he is upset about this. It must be remembered that those who are incarcerated do not have the same privileges as people who are free and, therefore, matters such as this can cause serious disturbance more so than to people who are free. Factually, therefore, horse racing information is fully available in prisons except on race days, when the supplements are removed but if the information is in the general body of the newspaper it is not removed.

LAW

11. Prisoners can only be treated in accordance with the law. There is a Prisons Ordinance (Cap. 234), and under s.25 the Governor in Council may make rules and by sub-section (2) a rule may provide that a contravention shall be an offence. It must be remembered that the Rules must be construed in the light of the fact that the convicted prisoner retains all of his civil rights, which are not taken away expressly or by necessary implication.

12. See, R v. Board of Visitors of Hull Prison, ex p. st. Germain[1979] Q.B. 425 (C.A.) as approved by the House of Lords in Raymond v. Honey [1983] 1AC 1, when the Crown expressly conceded that principle.

13. Further, as Miss Shine correctly submits the Rules are enforced by the Commissioner (or the Superintendent of each prison) and this Court does not sit in an appellate capacity from his decision and she cites two authorities, both decisions of mine. In re Chun Yuet-bun [1988] 1HKLR 336 and in re Sakchai Suwannapeng [1990] 2HKLR 231, (another prison case) where I reaffirmed the principle that the Court is not entitled to interfere in the decision of a person entrusted by an Ordinance to make it, unless it is unlawful. The Court has no appellate role.

14. Why has this prisoner been deprived of the racing supplement on race days? Gambling in prisons is an offence and those who run prisons, and, of course I respect their opinion and experience, have found that some prisoners engage in illegal gambling. That is, somebody acting as a bookmaker, either inside the prison or outside the prison, and prisoners betting sums of money whether in cash, or some form of credit. This leads to problems. First of all, there is the general problem of gambling inside the prison which might lead to quarrels and arguments. Secondly, it might lead to pressure being brought to bear on the prisoner who cannot pay up his debt. Thirdly, it might lead to families of prisoners having problems caused to them by their relative's debt. Indeed, I am told, some prisoners have sought assistance from the prison staff for protection, no doubt, because they have lost money and they cannot pay up. So it is a serious problem in prisons. I do not know what the position is in England, but no doubt many prisoners are interested in horse racing and betting on horses.

15. The essential issue here, as I understand the case put forward by the Crown, is that if someone reads the information of one of the racing editors on the day of the races, he might go off and have a bet; whether this is the skill of these racing journalists to encourage them, by telling them that a horse that is running appears to be a certainty, I know not. It seems to me a dramatic step to take when one reads racing information, one is automatically going to have a bet, but that apparently is the view of the prison authorities. I must see whether or not their action is lawful.

16. On what basis is it said this is lawful? As I have said, Prison Rules can be made. In England there is a prison rule dealing with the giving of privileges - Rule 4, Prison Rules, 1964, S.I. No. 188 and currently, according to Halsbury Laws Vol. 37, para. 1143, "... all convicted prisoners wherever located are eligible for a range of privileges which includes library books, educational and general notebooks, personal books, periodicals and newspapers ... and the possession of a personal radio." I have never heard that in England, prison authorities can censor a newspaper, by removing a part. I take an extreme example - supposing in a prison where homosexuality is a problem, it may be that the removal of the fashion section (or similar material) might cause such prisoners some concern.

17. I have never heard before that if a newspaper is permitted into a prison it can be a dealt with in this way. Another example would be that if the prison has people sentenced for fraud, then the business section can be removed.

18. The general principle would appear to me to be that if you allow a newspaper in, you allow the whole newspaper in. What has happened in recent years, caused by the growth of media information, is that newspapers have certain portions. For example, in the South China Morning Post it has its main portion, one called 'Focus'; it has a business section, a section on shipping, a section on employment and on race days a section on racing, but in my judgment, they are all part and parcel of a newspaper. I confess I cannot read Chinese and therefore I do not know whether Chinese newspapers also have certain sections printed dealing with television , business and so on.

STANDING ORDERS

19. In the Prison Rules, there is a section (5) dealing with the staff of prisons. The Commissioner is permitted to issue orders which tell his staff what to do. This is under rule 77(4). One of the disturbing elements in this case (I hope not caused by the fact that it was a prisoner asking for information) was that when this man had his racing section taken away from him, he, as he is permitted, consulted a solicitor and the solicitor wrote a courteous letter to the Correctional Services Department, dated 25th May and they said "... please state the legal basis and legal authority for your censor."

20. On 1st June, the answer came:

"Neither the supplied newspapers nor the prisoners' selected newspapers are censored but the horse racing supplements are removed pursuant to Prison Rule 56, Prison Rules Cap. 234 and Standing Orders made under Prison Rule 77 for the preservation of custodial discipline. This practice has been in force since 1986 in all penal institutions."

21. On 28th June, the solicitors who, of course, could read Rule 56 as it is published, wrote and said:

"Responding to your letter to us dated 1st June 1995 please let us have a copy of the Standing Orders allegedly made under Prison Rule 77 for us to properly advise on the legality of your action removing horse racing supplements from newspapers."

22. On 30th June, the reply came "I regret that I am unable to accede to your request as Standing Orders made under Prison Rule 77 are solely for internal use as management guidelines". It is rather alarming that a person who says his rights are infringed is not told why. Apparently, it was not until a few days before this case that there was brought to the attention of the Applicant's solicitors what these Standing Orders are. They are what they are, namely guidelines issued to the prison officers to control the prisoners and the management of the prison. They are secret in the sense that no one knows about them. They have never been published, even a prisoner does not know about them. In England under the Prison Rules, there must be posted in the cells of each prisoner a notice saying where the Prison Rules are available and the privileges he can have. So these Correctional Service Standing Orders are for the information of the staff, and what the staff can do.

23. In the Introduction is found:

"4. The contents of the CSSO are for the information of staff of all institutions, sections and units except Vietnamese Migrants Detention Centres which are operated under Section 13H of Immigration Ordinance, Cap. 115. These Orders are classified as restricted and are not to be quoted publicly or referred to in communications with persons outside Government Service and should not be made available to prisoners.

24. Standing Order 397, para. 8 says:

25. Newspapers

"(a) Any prisoner may receive a personal copy of the daily newspaper of his choice including a Sunday newspaper subject to the following conditions.

(b) The newspapers must be received direct from the publishers or a registered agent.

(c) Payment for the newspapers may be made by the prisoner's relatives or friends on his behalf. If such access is not viable, the prisoner may, with the approval of the head of institution, apply to withdraw money from his property for this purpose.

(d) Subject to part [h] below, prisoners are allowed to receive any newspaper except the one which the Superintendent considers, on reasonable grounds, would present a threat to good order and discipline, or jeopardize the institutional security.

(h) Withdrawal. The Superintendent shall have discretion to withhold or withdraw any newspaper or part of a newspaper, on a regular basis, if he believes on reasonable grounds that its availability in the institution will jeopardize the institutional security or custodial discipline. Newspaper covering only horse racing information will obviously fall into the category to be rejected for entry into an institution.

26. I confess I do not know any newspapers in Hong Kong which would contravene sub-paragraph (d). They would not be permitted to be published, but I suppose there might be foreign newspapers which may jeopardize institutional security. A prisoner who wishes to obtain a newspaper has to sign a form, and I will deal with this later.

27. These directions, or statutory orders, are for prison officers and they are unpublished to the public and as was said in Silver v. United Kingdom [1983] 5 EHHR 347 (a prison case).

2	(b)	The law must be adequately accessible to the citizen.
		Publication of the Prison Act and Prison Rules met this criterion, but the unpublished orders and instructions to officials did not [87].
2	(c)	The law must be sufficiently precise to enable the citizen toregulate his conduct. He must be able to foresee the consequences of his actions. The scope of any discretion conferred by law must be indicated as far as possible. Orders and instructions to officials establishing an administrative practice to be followed save in exceptional cases, but not themselves law, my be taken into account in assessing whether the criterion of foreseeability in the application of a discretion is satisfied [88].

28. Lord Wilberferce in Raymond v. Honey (supra) said at p. 13 "The standing orders, if they have any Legislative force at all, cannot confer any greater power than the regulations, which, as stated, must themselves be construed in accordance with the statutory power to make them." In that case the statutory orders were published and available to the public and the prisoners.

29. Rules, however, are made in an open manner, indeed they have to be approved by the Governor. I therefore conclude, merely because a direction is given to a prison officer to remove part of the newspaper, that this confers no legal right upon the Commissioner so to act.

RULE 56

30. So the justification, in my judgment, can only come from Rule 56, as Miss Shine submits. This rule comes under the heading of 'Libraries'. In each prison, there has to be a library and then Rule 56: "Prisoners may receive books or periodicals from outside the prison under such conditions as the Commissioner may determine". This being in the context of libraries one can understand what the word "book" means, this is a simple English word, but what does "periodical" mean? The Commissioner through counsel submits this covers newspapers. The definition of "periodical" in the Shorter Oxford Directory is "of literary publications, published at regular intervals longer than a day but shorter than a year, as weekly, monthly etc." A periodical is something which is published periodically and normally means in ordinary usage magazines or trade periodicals. One has only to walk in Hong Kong and see the vast range of magazines available to the public.

31. I, therefore, at first blush would not think this rule covers newspapers. I am fortified in that by Rule 202(2) which is dealing with prisoners on remand. It must be remembered that such prisoners may be in custody for a long period of time awaiting trial on a serious charge. They have a right to have supplied to them at their own expense, "such newspaper or other means of occupation as are not in the opinion of the Superintendent of an objectionable nature." So a prisoner on remand can have a newspaper. The word "newspaper" is used, but it is not used in Rule 56.

32. Miss Shine refers to p. 102 of 'Words and Phrases', where Jessel M.R. in Walter v. Howe [1881] 50 LJ 621 at p.622 said "The words of the 18th section of the Copy Right Act 1892 are of the most comprehensive - any 'periodical work' - a term which certainly includes a newspaper".

33. Although my reaction is to say that this Rule does not include a newspaper, I am prepared to assume in favour of Miss Shine that this rule permits the prisoners to receive newspapers under such conditions that the Commissioner may determine. Those words would normally mean (the word "under" is used not "on") the conditions under which they are received. In other words, the payment for the periodical, the method it is brought into prison, how it is delivered, those sort of things. In my judgment, this Rule does not give the Commissioner a right to censor any books or periodicals. It may be that he is entitled to say that no indecent books or periodicals should be brought in, and so if this is said to be the legal basis for censoring newspapers, in my judgment I do not agree. If a newspaper is allowed into the prison, then the whole of it is allowed.

CONSENT

34. What has happened in this case is that this prisoner in order to obtain a newspaper had to sign a form which is called a consent form.

35. Newspaper Subscription Rules for Prisoners

(1) I will subscribe to a newspaper and collect copies of it from a lawful newspaper agent permitted by the authority, and my family will pay to the agent.

(2) I must obtain prior permission from the Correctional Services Department regarding the type of newspaper I am going to subscribe to. Should the copies of newspaper delivered are different from the one I am permitted to subscribe to, the authority is entitled to make any arrangement deemed appropriate concerning those copies of newspaper to which I have not obtained permission to subscribe. I will not receive those copies of newspaper.

(3) I understand I cannot possess simultaneously more than one copy of newspaper. Once I receive a copy of newspaper of a particular date, the copy of the previous date will be taken away and cannot be given back to me on demand.

(4) I understand that I have to assume full responsibility with respect to the subscription and collection of the newspaper. In case I fail to collect copies of the newspaper, the Correctional Services Department is not responsible for recovering them for me.

(5) As the agent has a fixed location of business, I have to inform my family to stop the subscription when I am released or transferred to another prison. I will therefore be responsible for any losses which may be incurred.

(6) I understand that it is possible for the authority to forfeit or postpone this benefit if I break any disciplinary rule. Should that happens, I will have to inform my family to ask the agent to stop or temporarily suspend the supply of newspaper. If copies of the newspaper are still being delivered to the prison, the authority will keep them for me for the time being. They will be given back to me after I regain that benefit. After receiving the copies of newspaper, I will have to return them all back to the authority for disposal within a specified period of time (no matter I have finished reading them or not). The periods specified are as follows:

A period of 5 days for those who are penalized for having no benefit for 14 days or more.

A period of 3 days for those who have been penalized for having no benefit for 14 days or less than 14 days.

(7) The authority has the right to check the content of the newspaper. The pages covering gambling or any indecent material will be taken out by the authority without any prior notice given . I understand that I can by no means ask the authority to give those page back to me.

36. What indecent material is contained in Hong Kong newspapers I know not. It is, of course, unlawful to publish indecent material and the newspapers would indeed be prosecuted. What do the words "The pages covering gambling" mean? This is said by Miss Shine to be the editors' views on horses' chances and the overnight odds, these are matters which can be removed.

37. Unfortunately, this instruction does not appear to be followed, because pages covering horse racing information are permitted on non-race days but withdrawn on race days. Further, as I have been told in evidence, although this practice has been in the Standing Orders since 1986, it is only since 15th May 1995 that it has been enforced. It is said that this consent in some way provides a legal basis for the practice. In my judgment, it does not. This is the only way in which a person can get a newspaper. If he has a right to have a newspaper, he cannot surrender that right in any way by signing this piece of paper.

38. On the assumption that the rule allows the Commissioner to determine the conditions for the supply of a newspaper, these would normally apply to the mechanics of getting a newspaper. Does that give him a right to remove a part of the newspaper dealing with anything? In my judgment, it does not, but even if it did, such a decision of his would have to be reasonable and rational. In my judgment, his decision is wholly irrational for a number of reasons.

39. First, there is no causal connection between the provision of racing information and the illegal gambling which takes place in prisons. I have been given no evidence to show that if a prisoner reads one of the racing editors, as I said I can only read English, Mr. Wadey of the SCMP, or Mr. Martinus of the Hong Kong Standard, they suddenly rush to the next door cell to have a bet with somebody. It is what it is, namely information. I have been given some statistics as to gambling related to horse racing in Stanley Prison. I have been given others statistics for the other prisons, as I said prisoners on remand can have a newspaper at any rate. So a prisoner in Lai Chi Kok and other remand centres and prisoners in Stanley, for example awaiting extradition, have the right to have a newspaper, and as I have been told, there is free exchange of information among prisoners.

40. Secondly, only part of this information is removed. It is available on all days of the week apart from race days and if a newspaper published racing information on a racing day as part of the newspaper, and not as a supplement, the prisoners could apparently get it. Mr. Dykes says this really is a form of lottery and I agree. Further, as I have said prisoners on remand can have newspapers and exchange information.

41. Thirdly, this censorship is totally ineffective. The statistics I have been given for Stanley, over two comparable periods, show an increase of 30% of disciplinary offences connected with illegal horse betting activities since the ban was introduced, although I am told that it may have been the vigilance of the prison officers which has caused the increase.

42. The problem, in my judgment, stems from the endemic nature of gambling in prisons. As I have said in the course of argument, and I do not say this is in anyway offensively of Chinese people, but Chinese people enjoy gambling, whether on horses, the mark-six, mahjong, cards or anything and it is naive to think that if Chinese people are taken into custody and put into Stanley Prison that they lose this desire. Prison life is tedious and no doubt gambling is a part of prison life that will always be there. I well understand the prison authorities wanting to cut down on this and I sympathize with them. They have a very, very difficult task and I do not in anyway seek to minimise it, but to start interfering in this way, in my judgment, really has no relevance to the problem which they face. The answer is the better policing of prisons, the punishment of people who are found to offend, those sort of steps.

BILL OF RIGHTS

43. In my judgment, therefore, the decision to remove part of a newspaper on a race day, namely the racing section, is unlawful for the variety of reasons, I have sought to explain, but it is further unlawful for a most important reason, that is a breach of the protection given under the Bill of Rights. As I have said, people in prison have the protection of the Bill of Rights subject, however, to the limitation which is placed upon them by virtue of them being incarcerated, so they do not have freedom of movement. They do not have freedom for a variety of matters, because they are in a prison.

44. Art. 16, in my judgment gives all citizens a right to receive information, subject to Art. 16(3). I do not consider that imprisonment 'per se' prevents the enjoyment of Article 16, by a prisoner. If the Commissioner wishes to interfere with information coming to prisoners, that is 'prima facie' an infringement of this Article. It is clear from decisions of the Court of Appeal in Hong Kong and the Privy Council in England, that it is for the government to justify any departure from the rights enshrined in the Bill of Rights and the grounds for that justification must be cogent and persuasive. What has to be shown is that the exercise of the right protected by the Bill of Rights would have been irreconcilable for the achievement of an important objective on the part of the Government.

45. This is a constitutional right which people now have in Hong Kong. The Bill of Rights, currently under attack, must be protected by the Courts. As was said by Bokhary J. as he then was, in R v. Man Wai Keung (No. 2) [1992] 2 HKCLR 207, at p. 217 "But the starting point is identical treatment. And any departure therefrom must be justified. To justify such a departure it must be shown: one, that sensible and fair-minded people would recognize a genuine need for some difference of treatment; two, that the difference embodied in the particular departure selected to meet that need is itself rational; and, three, that such departure is proportionate to such need."

46. Interference in a citizen's rights may well be necessary but it must be necessary. As was said in Silver (supra):

(a) The interference in question must have some basis in domestic law. There was no dispute that the measures complained of were in conformity with English law.

(b) The law must be adequately accessible to the citizen. Publication of the Prison Act and Prison Rules met this criterion, but the unpublished orders and instructions to officials did not.

(c) The law must be sufficiently precise to enable the citizen to regulate his conduct. He must be able to foresee the consequences of his actions. The scope of any discretion conferred by law must be indicated as far as possible. Orders and instructions to officials establishing an administrative practice to be followed save in exceptional cases, but not themselves law, may be taken into account in assessing whether the criterion of foreseeability in the application of a discretion is satisfied.

47. In my judgment, there was no genuine need for the removal of racing information, and I emphasise it was only partial removal, the decision to do it was irrational and such action was not proportionate to the need to do it. I also consider it was unnecessary. As I said earlier, Art. 16 is subject to sub-section(3), but there is no evidence put before me that the limitations apply here. The interference with the right also had no basis in the domestic law, which here was merely an unpublished instruction to a prison officer.

48. In my judgment, the prisoner's rights here are equal to the citizen's rights and there has been an infringement of Art. 16 which cannot be justified.

49. For the variety of reasons I have sought to explain, the act of the Commissioner is unlawful and I reiterate that although this case deals with a matter of a sporting matter, which is not of the greatest importance in Hong Kong life, nevertheless, it is important for those in authority to recognise that they must accord to the law and that the Bill of Rights at the moment is the law of Hong Kong and people's rights, even though they are prisoners, must not be infringed.

'Mandamus' to disclose the contents of the Standing Order

50. The other relief sought relates to the Commissoner's refusal to disclose the contents of the Standing Order. It is submitted that this prisoner was being impeded in his action against the Commissioner over this matter. I do not need to quote from all the authorities, but to impede a prisoner in his legal advice, or his opportunity to have full access to the Court is a serious matter and on occasions may amount to a contempt of Court, see for example, Golder v. United Kingdom [1975] 1 EHHR 524 and Raymond v. Honey (supra).

51. In my judgment, the action of the Commissioner in refusing to disclose the information sought was arrogant and unwarranted. It was only many months later that this was actually disclosed, albeit that the Government had brought into being a document which is called 'Code On Access to Information'. Public access to information develops accountability for decisions and actions, and the Code came into being on 1st July 1995. Apparently, the Correctional Services did not think this applied to them, and they did not have to tell anybody, not even the prisoners about their rights, although in 'Annex A' the Correctional Services Department was a department to which the code applied.

52. In my judgment, I find that refusal very wrong. When the matter came to me, on leave, I did know what was this Standing Order. I was dealing with an ex-parte application and I read letters written by the Government Department relying on a Standing Order, but I did not know anything about it. How am I expected to exercise any judgment, when I am told that this was a ground for preventing this prisoner from getting racing information and even I cannot be told about it. Until about two weeks ago, no one in Hong Kong knew about these Standing Orders of the Correctional Service Department. As I have said, I hold that they are irrelevant to this matter, because they do not provide any legal basis for the action taken, but Mr. Dykes says that his client was impeded in coming to Court. In my judgment he was, but Miss Shine has now apologised. She says that no disrespect was intended to the Court and I am sure that there was no deliberate impeding of a prisoner seeking justice in Hong Kong, because that must never be countenanced. The Court should be vigilant to ensure that prisoners have as much opportunity of airing their grievances as any other citizen, and so on the apology being given, I do not grant any relief in so far that matter is concerned, but as far as the decision of the Commissioner to remove the racing supplement, I hold that to be unlawful and quash it.

Representation:

Mr. Philip Dykes (Paual Kwong & Co.) for the Applicant.

Miss L.M.A. Shine (Crown Solicitors) for the Respondent.