Cheung Koon Kit v. Commissioner of Correctional Services of HKSAR

HCAL000108/2003

HCAL 108/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO.108 OF 2003

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Coram: Hon Hartmann J in Court

Date of Hearing: 28 July 2004

Date of Judgment: 28 July 2004

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J U D G M E N T

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Introduction

1.plicant in this matter, who was at all material times an officer in the Correctional Services Department holding the rank of Assistant Officer II, seeks by way of judicial review to quash a decision of the Commissioner of Correctional Services to order his compulsory retirement with a deferred pension.

2.The matter arises out of the following history. On 15 January 2002, the applicant smuggled two packets of cigarettes into the prison where he was serving. The cigarettes were not for himself. The applicant was seen placing the cigarettes on a table so that a prisoner could immediately collect them. The cigarettes were traced to an existing stash of cigarettes held by that prisoner and/or others.

3.The applicant was criminally prosecuted in terms of s.18 of the Prison Ordinance, Cap.234 which reads :

" (1) Any person who brings, throws or in any manner introduces or conveys into any person, 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 of $2,000 and to imprisonment for 3 years.

(2) Any officer of the Correctional Services Department or other person employed in the prisons who contravenes or permits any contravention of the provisions of subsection (1) shall be liable, in addition to the above punishment and any other punishment, to forfeit his office."

4.On 29 June 2002 the applicant was convicted in the Tsuen Wan Magistracy and fined $450. He appealed his conviction but his appeal was dismissed.

5.Thereafter, by a letter dated 24 February 2003, the applicant was informed that the Commissioner was considering taking disciplinary action against him pursuant to Rule 255B of the Prison Rules which, in so far as it is relevant, reads :

" (1) The punishment of a Chief Officer, subordinate officer or other person employed in the prisons who in criminal proceedings is found guilty of or pleads guilty to a criminal offence shall be in accordance with this rule.

(2) ...

(3) ...

(4) ...

(5) In the case of an Assistant Officer [the applicant being an Assistant Officer II], the Commissioner shall notify the officer that he may make representations in writing in mitigation of punishment within 14 days of receiving such notice and, after considering any such representations, may award any one or more of the punishments he may award under rule 255 in respect of a disciplinary offence by an Assistant Officer."

[my emphasis]

6.It is not disputed that in terms of Rule 255, the Commissioner had the power to order the applicant's dismissal from the service (forfeiting his pension) or to order his compulsory retirement, with or without benefits. Indeed, this is contemplated in s.18(2) of the Ordinance itself.

7.The letter to the applicant dated 24 February 2003 made it clear that the Commissioner was considering the applicant's removal from the service. The letter (in part) was to the following effect :

"Under these circumstances [namely the conviction of the applicant and his failure to successfully appeal that conviction], the Commissioner of Correctional Services will consider to award you any one or more of the punishments referred to in Prison Rule 254(b) as provided under Prison Rule 255B.

Having regard to the nature and seriousness of the offence of which you were convicted, the punishment under consideration may result in your removal from the Service. Before deciding on the award of punishment, you are invited to make representations in mitigation of punishment under Prison Rule 255B(5) for the consideration of the Commissioner within 14 days of receipt of this letter."

8.The applicant made lengthy written representations in mitigation. Inter alia, he is recorded as writing :

"Although I can see that there is little chance of me being placed back into my original position, I sincerely hope that you could give me a chance. If you think that I am not suitable to work in this department, I still sincerely hope that you would let me resign voluntarily or order me to retire early so that I may start a new life with dignity, find a secure job to pay for the living of my parents and my son and contribute back to society."

9.On 17 April 2003, the Commissioner made the decision which is now challenged as being unlawful. It was his decision that the applicant be compulsorily retired from the service with a deferred pension subject to the condition that certain earned leave and other emoluments withheld during his period of interdiction be forfeited.

10.This decision is challenged on two grounds; first, that the decision was vitiated by material procedural unfairness and, second, that the decision was in any event unreasonable in that the punishment imposed was out of all proportion to the applicant's culpability and was therefore irrational.

Procedural unfairness

11.Ms Lau, who appears for the applicant, submits that there have been four instances of procedural unfairness. First, the applicant was not given access to all of the documents that were placed before the Commissioner when he came to make his decision. Second, the applicant was denied the last word. Third, the applicant was not afforded the opportunity to make oral representations, being restricted to written representations. Four, the Commissioner, in coming to his decision, should have had placed before him information concerning previous offences of a similar nature and the punishments then imposed so that he could make his decision in the light of precedent.

12.In looking to issues of procedural unfairness, it is important, in my judgment, to bear in mind that while, obviously, when the future of an individual is at stake, decision-makers are obliged to adhere to a procedure which is fair, and while a failure to do so may place any decision in jeopardy, the test is not simply one of identifying a procedural error. The error must, of course, be material. In addition, it must create an actual unfairness. It has been said on many occasions that unfairness does not exist in a vacuum.

13.The approach to be adopted by the courts is a two stage approach. This has been well expressed by Deputy Judge Andrew Cheung (as he then was) in Chiu Ping Tak v. The Commissioner of Police [2002] 3 HKLRD 679, at 698 :

"In my judgment, the position is as follows: faced with a complaint based on non-disclosure of documents or material, the court's task in a judicial review is, first, to determine whether, as a matter of fairness and natural justice, the documents or material ought to have been disclosed to the applicant by the decision-making body so as to afford the applicant an opportunity to respond to the documents or material.

At this first stage, it is not necessary for the applicant to establish prejudice as a ground of judicial review: Boddington v. British Transport Police (1999) 2 AC 143 at 174D-E (cited with approval in Leung Fuk Wah v. Commissioner of Police (2002) 3 HKLRD 653 at page 663 para.40).

Secondly, if the court comes up with an affirmative answer to the first question, it should proceed to the second stage of the matter by considering whether to exercise its discretion to quash the decision of the decision-making body below or grant some other appropriate relief, if any. At this second stage, the fact that there has been, ex hypothesi, a breach of procedural fairness is of course by itself irrelevant and, indeed, a weighty consideration to be taken into account.

However, at this second stage, the absence of prejudice, if such is the case, is also a relevant factor to be taken into account: Boddington v. British Transport Police (1999) 2 AC 143 at 174D-E and Leung Fuk Wah v. Commissioner of Police (2002) 3 HKLRD 653 at page 663 para.40.

In fact, as is demonstrated by the actual decision in Leung Fuk Wah v. Commissioner of Police, if the non-disclosure did not produce a substantial prejudice to the applicant whatsoever, it would seem that the discretion of the court would most likely, if not inevitably, be exercised against the grant of any relief."

14.In light of these principles, I turn now to consider the applicant's various complaints of procedural unfairness.

15.The first complaint is that the applicant was not given access to all the documents placed before the Commissioner so that, having had sight of them, he could, if he wished, make specific comments in respect of them.

16.What therefore are the documents to which the applicant did not have access?

17.The first set of documents to which the applicant says he was not given access are contained in a pink government file. This is the applicant's personal record of his service in the Correctional Services Department. I have had sight of the file. It is a standard personal file containing all the documents germane to this applicant's career in the Correctional Services Department. Many of the documents are mundane, and routine : housing awarded, leave taken, annual reports and the like. The great majority of the documents are of no relevance.

18.Although Ms Lau had not seen the personal file before the hearing today, she was given the opportunity to go through it with her client. Having done so, she was able to say that there was nothing of consequence in the file that was unknown to the applicant at the time he made his representations in mitigation.

19.In any event, as the applicant must have known, his personal file was open to him if he had made the request. He was therefore not denied access. He simply chose not to seek it.

20.I am satisfied therefore that the complaint as to the personal file has no merits.

21.I now turn to a second document. This is a minute - M29 - which was drafted by the senior officer who placed all relevant material before the Commissioner and advised him as to a recommended course. Ms Lau has argued that the applicant should have been given sight of this minute before it was placed before the Commissioner so that he would be able to comment on it if necessary and, importantly, so that he would be able to have the last word.

22.Mr Kwok, counsel for the Commissioner, has said that the issue here was not inter partes. It was simply a case of the applicant being able to put forward mitigation and that, in the circumstances, the fact that he did not see minute M29 does not bring about any unfairness. I confess to having some doubts as to that argument. It seems to me that if an officer's career is in jeopardy and if that officer is entitled to submit mitigation, that mitigation needs to be informed, and it may only be informed if it is made in the knowledge of other representations or advice that is to be placed before the decision-maker.

23.It is arguable, in my view, that the failure to show the applicant M29 did constitute a procedural irregularity which potentially may have prejudiced the applicant. But did it do so? As I have said before, fairness does not exist in a vacuum.

24.Ms Lau has accepted that M29 contains nothing that would have surprised the applicant; that is, nothing that he would not have expected to be there. The applicant could not have been ignorant of the fact that his removal from the Service was in issue. Indeed, earlier, he had asked to be retired rather than dismissed, and it was that same award which was recommended by the officer who completed M29. Indeed, I pause to say that M29, in my view, bears the mark of a well-balanced advice that, while it recommends removal from the service, is in many ways favourable to the applicant. Ms Lau, in essence, accepted that the applicant's failure to see M29 caused no unfairness to him. That being the case, I do not see how it can be said that the failure has vitiated the Commissioner's decision.

25.I now move to Ms Lau's submissions that the applicant was not given an oral hearing before the Commissioner and was therefore victim of a material procedural irregularity. I understand Ms Lau's argument to be that, as the applicant's career was at stake, although nothing appears in the Ordinance or the Rules made under the Ordinance mandating an oral hearing, the applicant was nevertheless entitled to such a hearing.

26.I would mention at this stage that the applicant did not seek an oral hearing. No representations of any kind suggesting such a hearing were placed before those officers responsible for overseeing the applicant's disciplinary proceedings.

27.While I accept that an oral hearing, even if not mandated in terms of a statutory regime, may sometimes be necessary, I fail to see how it can be said that one was necessary in the present case.

28.As to whether there should be an oral hearing, absent any legislative direction, the authorities are clear that it will, in all instances, depend on the dictates of fairness. In particular, in this regard, I refer to the decision of R v. Department of Health ex parte Gandhi [1991] 1 WLR 1053 at 1063F where it was said :

"An oral hearing should be held where, in all the circumstances, the issues cannot fairly be resolved otherwise."

29.The matter was also dealt with in R v. Secretary of State for Trade and Industry ex parte Lonrho plc (1989) 1 WLR 525 at 535G where Lord Keith said the following in respect of a complaint that Lonrho had been denied an oral hearing :

"Lonrho's arguments could be and were fully set forth and explained in written submissions of inordinate length to which oral representations added nothing."

30.The principle it seems to me, therefore, is that, if, in all the circumstances, the issues at stake cannot fairly be resolved without an oral hearing, then an oral hearing should take place. It is impossible to lay down any narrower principle in this regard. Invariably in administrative matters written representations will not only be sufficient but may best represent the applicant's interests. Written representations may be prepared by a representative, for example, a lawyer, and may be prepared in a considered fashion. All relevant material can in that way be placed before the decision-maker. But, as I have said, there may be circumstances in which, perhaps because of the complexity of the issues or other pressing considerations, an oral hearing will be the only fair way of proceeding.

31.In the present case, however, as Ms Lau has conceded, there was nothing of complexity that coloured the applicant's mitigation or demanded oral advocacy. Nor were there any other special circumstances which demanded an oral hearing. As I see it, Ms Lau has made her submissions on the basis that all officers who face a serious disciplinary punishment are entitled to an oral hearing and the failure to hold one is of itself a material procedural irregularity. I do not accept that contention.

32.There was no obligation on the Commissioner in the present case to conduct an oral hearing.

33.I come now to the complaint that, in order to assess an appropriate penalty, the Commissioner should have been supplied with details of previous offences of a similar nature to that he could come to his determination in light of relevant precedent.

34.It may be that, in prudence, a decision-maker who is required to decide on a penalty seriously affecting an individual's future will, if possible, look to other penalties imposed in similar cases. But I do not see that a decision-maker is under any obligation in law to do so. The issue, it seems to me, is the nature of the penalty itself. If it is shown, by reference to earlier penalties, that the penalty is irrational then the court may well set that penalty aside as being unlawful.

35.Was the penalty in this instance, on a comparative basis, so out of proportion that it can be argued that it was irrational? I have before me a table prepared for this hearing setting out earlier penalties in broadly similar cases. That table shows that this applicant was, if anything, dealt with leniently. While his sentence in the Magistrates Court was a relatively small fine and while clearly the earlier penalties concerned more serious breaches of discipline, the table shows that, with the exception of one officer whose case was unique for a number of reasons, all previous offenders had been dismissed from the service, forfeiting their pensions. Nothing appears in the table to indicate that, if it had been before the Commissioner, he may have come to a different decision.

The complaint that the decision was 'Wednesbury' unreasonable

36.I come finally to the issue of the unreasonableness of the decision. It has been argued that the decision to order the compulsory retirement of the applicant with a deferred pension was so out of proportion to the applicant's culpability that it was capricious or arbitrary.

37.I find nothing in this contention. As I have said during the course of the hearing, the applicant was a member of a disciplined service. That service has one function; namely, to ensure the integrity of the system of correctional detention in Hong Kong. Once that integrity is undermined, it works not only to the detriment of society, not only to the detriment of the officers themselves but, critically, to the detriment of the prisoners. The Legislature has recognised the importance of officers not smuggling prohibited articles into prison and has made it a criminal offence subject to sanguine penalties including imprisonment for up to three years.

38.In stating that the applicant had to be removed from the service, the Commissioner acknowledged that the applicant's conduct made it impossible to trust him further. In my judgment, that was an entirely reasonable conclusion. It is not for me to sit in the chair of the Commissioner. The Commissioner has a broad discretion in these matters. It is a discretion educated by his knowledge of the service which he commands and the real need to ensure that those in the service maintain high standards of discipline. I fail utterly to see, in light of all the factual circumstances, how it can be said that the Commissioner acted irrationally in this present case; that is, in a way which was not open to a reasonable Commissioner.

Conclusion

39.For the reasons I have given, this application must be dismissed. There will be an order that costs follow the event.

Representation:

Ms Lorinda Lau, instructed by Chin & Associates, for the Applicant

Mr Kwok Sui-hay, instructed by the Department of Justice, for the Respondent