Read the full judgment text of HCAL 000005/2006 on BabelCite. This High Court CFI judgment was delivered on 30 June 2006 before Hartmann J.
Administrative law – judicial review – leave to apply – serving prisoner – Correctional Services Department – threshold for leave – delay – discretionary relief – whether disciplinary actions of prison officers unlawful – prison discipline and good order – Article 35 of the Basic Law – right to confidential legal advice – Article 16 of the Bill of Rights – freedom to receive information – custodial discipline – Prison Rules (Cap 234A) – Prisoners Welfare Fund – whether alleged assaults suitable for judicial review – whether blanket allegation of bias in disciplinary proceedings arguable – whether refusal of religious music amounts to religious discrimination – whether refusal of free spectacles arguable – whether denial of media access during solitary confinement lawful. The applicant, a Nigerian national serving an 18-year sentence for drug trafficking imposed in 1998, brought his third application for leave to apply for judicial review against the Commissioner of Correctional Services, raising 13 separate complaints. The first complaint concerned an incident on 2 June 2004 in which CSD officers used force to retrieve a newspaper; the court held that the officers' failure to report to a Superintendent under Prison Rule 60 was not unlawful, as the rule contemplates containment first and investigation later, and the matter became part of the res gestae of the subsequent criminal assault for which the applicant was convicted and whose conviction was upheld on appeal. The third complaint concerned the refusal of telephone access to a solicitor and a friend, which the court held was not arguable as a breach of the fundamental right to confidential legal advice under Article 35 of the Basic Law, as no international convention or domestic law gives a serving prisoner an absolute right to telephone counsel, and each request must be assessed for genuine need. The fifth complaint of alleged assaults was held unsuitable for judicial review, as actions for wrongful assault should be instituted by writ involving cross-examination of witnesses and medical evidence. The sixth complaint, a blanket allegation of bias against adjudicating officers in 25 disciplinary proceedings, was held to be unsubstantiated and contrary to the available records, and to be an attempt to use judicial review as an extra layer of appeal. The seventh complaint, denial of reggae music in cell on Rastafarian religious grounds, was held not to constitute unlawful religious discrimination, as the discretion to allow music rested with the authorities and no medical or other evidence showed the music was necessary for his diagnosed condition. The eighth complaint, refusal of access to compulsory savings, was held rational. The ninth complaint, denial of access to newspapers and radio during separate confinement, was held lawful, as the freedom to receive information under Article 16 of the Bill of Rights is qualified and may be restricted for custodial discipline under section 9 of the Hong Kong Bill of Rights Ordinance (Cap 383), and the Spartan regime prescribed by Standing Order 65-07(5) is a necessary part of the punishment. The tenth complaint regarding a confiscated hair trimmer was held to be unarguable. The eleventh complaint regarding loss of canteen privileges during solitary confinement was held lawful. The twelfth complaint of refusal of free spectacles was held not arguable, as Prison Rules 143 and 148 do not require all medical items to be supplied free of charge and the Prisoners Welfare Fund under section 21A of the Prisons Ordinance provided an alternative avenue. The thirteenth complaint regarding the destruction order for personal effects was largely resolved by agreement for their return. Delay of almost two years, in breach of the requirement under Order 53 rule 4(1) of the Rules of the High Court, was held to be a serious issue disentitling the applicant to relief, and on the exercise of the court's discretion, leave was refused on all 13 complaints. No order as to costs was made against the applicant, the proceedings being essentially ex parte in nature. Starting point: leave refused on all 13 complaints. Final result: no judicial review granted.
Legal issues: Whether CSD officers acted unlawfully by failing to report to a Superintendent under Prison Rule 60 before retrieving a newspaper · Whether refusal to allow a prisoner to telephone a solicitor violated the fundamental right to confidential legal advice under Article 35 of the Basic Law · Whether alleged assaults by CSD officers are suitable for determination by way of judicial review · Whether denial of access to newspapers and radio during solitary confinement violates a prisoner's rights · Whether prisoners are entitled as of right to free spectacles from the prison authorities
Outcome: Leave to apply for judicial review refused on all 13 complaints; no order as to costs against the applicant.
Cited by 5 cases · Cites 2 cases