Brian Alfred Hall v. Secretary for Justice

HCAL 5/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 5 OF 2006

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BETWEEN

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Before : Hon Hartmann J in Court

Dates of Hearing : 16 and 30 June 2006

Date of Judgment : 30 June 2006

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J U D G M E N T

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Introduction

1.This is an application for leave to apply for judicial review.  The applicant is a serving prisoner held at Stanley Prison.  In 1998 he was sentenced to 18 years for drug trafficking.  He is a Nigerian national.

2.In his application, the applicant seeks to challenge various actions of Correctional Services officers, some of those actions dating back two years or more.

3.This is not the first application for judicial review brought against CSD officers by the applicant.  Two previous applications have been dealt with by me : HCAL 140/2004 and HCAL 84/2004.

4.In addition to his applications for judicial review, the applicant has made numerous complaints about the conduct of CSD officers and others who have had the responsibility of dealing with him; for example, doctors who have had to attend to his medical complaints.

5.This new application, like the previous ones, has been handwritten by the applicant.  It is prolix and often difficult to understand.  That is why I have directed that there should be an oral hearing.  

6.The Commissioner was informed of the hearing in support of the application for leave and told that, if he wished, he could be represented to assist the court where necessary.  Mr Wesley Wong has appeared on his behalf.

7.The applicant has represented himself.  I am informed that at one time he did apply for legal aid in respect of one or more of his various actions.  However, he has now (apparently) been prohibited from seeking further assistance.  This would suggest that the Director of Legal Aid has dealt with the applicant in terms of s.11 of the Legal Aid Regulations, Cap.91A, which provides that, if it appears to the Director that an applicant’s conduct has amounted to an abuse of the facilities provided by the Ordinance, he may order that no consideration be given to any future application by that person, that prohibition to endure for a maximum of three years.

8.As the applicant knows, this is a hearing for leave only.  It is for the applicant, in respect of each of his complaints, to demonstrate that, on the material he has placed before me, matters have been disclosed which on further consideration might demonstrate an arguable case for the grant of the relief sought. 

The first complaint

9.It has taken some time to understand the basis of this complaint.  It arises out of an incident which took place in Stanley Prison on 2 June 2004, some two years ago.

10.It seems that the applicant had a newspaper in his possession.  An officer demanded that the applicant give it to him.  The applicant refused to do so.  There was a verbal exchange in which the applicant used bad language.  A more senior officer, a Principal Officer, was summoned.  He came to the applicant’s cell and also demanded that the applicant hand over the newspaper.  The applicant refused to do so and again, it seems, bad language was used.  At this stage, CSD officers employed force to take the newspaper from the applicant.  There was a struggle.

11.In the result, the applicant was charged with assaulting the CSD officers and was tried in the Magistrates Court by Mr T. Casewell.  He was convicted and sentenced to six months’ imprisonment, the sentence to run consecutively with the 18 year sentence he received for drug trafficking.

12.The applicant appealed both his conviction and sentence.  His appeal was heard in February of this year.  The appeal was dismissed.  In his judgment, Deputy Judge Leong, a retired Chief Judge of this court, said the following :

“The magistrate found the prosecution witnesses reliable, consistent and truthful and accepted their evidence.  He found that the medical evidence was consistent with the struggle described by the prosecution witnesses and it did not support the appellant’s case.  He rejected the appellant’s story that the prison officers  had conspired to assault him as a revenge for his making complaints.  He found the appellant concocted his story.  He said in his findings: ‘I find the prosecution witnesses to be truthful and reliable.  The appellant did refuse to return the newspaper.  He abused PW2 with foul language and threw the newspaper at him.  Furthermore, he struck him at least three blows to the chest.  These are clear and unequivocal assaults accompanied by an intention to do so.’”

13.One of the grounds upon which the applicant appealed was that the Principal Officer who was responsible for using force to obtain the newspaper had acted unlawfully.  In this regard, in his judgment, Deputy Judge Leong said the following :

“… the magistrate had dealt with [this] in his findings.  He found it was not unlawful for PW2, who was a principal officer, to retrieve the newspaper from the appellant.  I agree with the finding of the magistrate.  In any case, even if the officer had acted in breach of his duty in retrieving the newspaper, this was no excuse for the appellant to assault the officer.  This ground must fail.”  [my emphasis]

14.How is it that, out of criminal proceedings in which the applicant himself was found guilty of assault, he now seeks to bring judicial review proceedings against the officers who were responsible for physically subduing him and removing the newspaper from him?

15.As I understand it, the applicant’s complaint is that the CSD officers were guilty of a breach of prison regulations in that, when initially the applicant refused to hand over the newspaper, there was a failure to immediately report that matter to a Superintendent so that he could investigate it.  In this regard, the applicant has relied on a number of prison rules and regulations but I think that reference to Prison Rule 60, Cap.234A, illustrates the point.  It reads :

“Every offence against prison discipline shall be reported immediately and it shall be the duty of the superintendent to investigate such reports not later than the following day unless that day is a general holiday.”

16.It appears to be the applicant’s contention that, when the initial refusal to hand over the newspaper took place, accompanied by the use of bad language, the matter should – then and there – have been reported to a Superintendent so that the Superintendent could come to the scene and commence an investigation.  In the meantime, of course, the applicant would have been left in his cell in possession of the newspaper.

17.There is nothing in this ground of complaint.  A simple analogy makes it plain.  What if, instead of a newspaper, the applicant had a knife in his possession or a syringe containing drugs?  Was he to be left in possession of the items while a Superintendent was informed so that he could commence investigations or were the officers on the spot under a responsibility to take immediate action to enforce prison discipline (and if necessary to protect the safety of others) by removing the items?

18.Common sense dictates that in the ordinary course of events an incident which appears to contravene prison discipline must first be contained and only then reported to a Superintendent so that it may be investigated and, if required, criminal or disciplinary proceedings instituted.  Whether the CSD officers would have been wiser to immediately report the matter – in this instance – to a Superintendent is not the issue, the issue is whether they acted unlawfully in failing to do so.  And I do not see how it can be said they acted unlawfully.

19.There may not at any time have been any official report to a Superintendent which was restricted to the issue of the applicant refusing to hand over the newspaper.  But in the present case, it is apparent that the initial refusal by the applicant to hand over the newspaper and his use of bad language escalated into a far more serious incident, one in which the applicant was accused of and prosecuted for criminal assault.  The initial and lesser breach of discipline therefore became part of a more serious criminal offence; as lawyers would put it, it became part of the res gestae.

20.In addition to being satisfied that this first ground of complaint is misconceived, I am of the view that delay on the part of the applicant must result in leave being refused.  In terms of Order 53 rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review shall be made promptly, and in any event within three months of the day when the grounds for the application first arose.  This requirement to act promptly in public law matters applies unless the court considers that there is good reason for extending the period within which the application shall be made.  Delay is a serious issue, one which puts an applicant in peril.  In R. v. Aston University Senate ex parte Roffey [1969] 2 QB 538, 555, Donaldson J, as he then was, said :

“The prerogative remedies are exceptional in their nature and should not be made available to those who sleep upon their rights.”

21.The incident in question took place on 2 June 2004.  The applicant filed this latest application for leave in January of this year, almost two years after the event.

22.The applicant complains that he has been unable to draft and file his complaint earlier.  I do not accept that.  He has filed two earlier judicial reviews, the first being filed on 30 June 2004, the second on 18 November 2004.  His complaint could have been contained in one of those applications.

23.The applicant complains he was unable to take legal advice as he was unable to get legal aid.  But, on the evidence before me, the applicant appears to have brought that upon himself.  In any event, the applicant has been able to draft numerous grounds of complaint in his three applications to date.  I do not see why he would have been handicapped with this one.

24.Finally, it seems to me, after a delay of nearly two years, even if I was to find the complaint was prima facie arguable, that nothing of substance turns on it.  How at this late stage is the applicant to benefit, or is good administration to be enhanced, from the fact that disciplinary proceedings are taken against one or more CSD officers for what could be little more than a technical breach?  The applicant will still remain convicted of criminal assault and must serve the sentence imposed on him.

25.As I have explained to the applicant, the exercise of this court’s jurisdiction is discretionary.  It does not follow that a remedy will be granted merely because some error of law has been identified.  A remedy will only be granted when it is necessary or desirable to do so in the interests of justice.  In the present case, even if I found that the applicant had a prima facie arguable case – which I do not – I do not see how the interests of justice could be advanced by granting leave.

26.Leave is refused.

The second complaint

27.This complaint also arises out of the incident which took place on 2 June 2004.

28.It appears that, after the incident, the officers who dealt with the applicant were photographed by a fellow CSD officer.  The purpose of the photographs was to show their injuries.  It appears, however, that the applicant was not photographed.

29.At some later time the applicant complained of this failure and photographs were taken.  It has not been made clear to me the degree to which, if at all, these photographs showed any injuries.

30.When the criminal trial took place, the magistrate apparently came to a finding of fact that the applicant had originally refused to be photographed.

31.The applicant complains that this finding was perverse and should be quashed.

32.But the finding was a finding of fact, not law, and was simply one finding among many made in the course of criminal proceedings.  The applicant had the opportunity to challenge that finding of fact on appeal and it appears that he did so.  In his judgment, Deputy Judge Leong said :

“On the third ground this is also a question of fact. There is no evidence of collusion between the doctor and the prosecution witnesses on the injuries suffered by the appellant.  Dr Chan found no head injuries when he examined the appellant on 2 June 2004.  The medical report from the doctor indicated that the patch or mark as shown in the photographs after the appellant complained to Master de Sousa did not appear until the entry at 14 June 2004, which was almost two weeks after the incident of assault.  The magistrate was entitled to find the mark or patch and any injury found later could not be attributed to the incident on 2 June 2004.  There is no substance in this ground.”

33.The matter of the photographs was therefore one for the criminal courts and it has been dealt with in those courts, both at first instance and on appeal.  I can find no reason why this court should take the entirely exceptional step of now assuming jurisdiction.  

34.Leave is refused.

The third complaint

35.This complaint also arises out of the incident which took place on 2 June 2004.  The applicant complains that after the incident he wished to telephone a friend, a Mr Crawley, and a solicitor.  He wished to inform them, he says, that he had been assaulted and framed.  He was, however, denied permission to do so.  Later, on 6 July 2004, the applicant complains that he wished to telephone his solicitor to tell him he had been formally arrested for assault.  Again, permission was refused.

36.Documents were produced which, in a brief, bureaucratic way, spoke of these matters.  They are prison forms.

37.In respect of the first refusal, there is a note to the effect that the applicant was interviewed in an isolation cell of the hospital wing of Stanley Prison.  The interview took place on 3 June 2004, the day after the incident.  On that occasion, the applicant submitted two written requests to make telephone calls.  He sought to call Mr Crawley, apparently to try and get money to pay legal fees.  He also sought to call a solicitor.

38.It appears that the prison authorities believed that the applicant only wanted to inform the solicitor of what he alleged had taken place.  The applicant denies this, saying that he also wanted to obtain legal advice.  The probabilities would, of course, suggest that the applicant did wish to obtain some form of advice.

39.The two requests, it seems, were considered but refused.  One of the forms bears the endorsement that it would be more -

“appropriate to advise the subject to write to Mr Crawley and Mr Midgley as telephone communication would only be utilised in case of urgency or in dearth of other means of communications.”

40.The later request – the one dated 6 July 2004 – was also refused, the papers being endorsed :

“He is not recommended to have his telephone call to his solicitor, as no sufficient grounds and his solicitor could visit him through the channel of legal visit.” 

41.When looking at the papers, I notice that the applicant had made three earlier requests to make telephone calls, two to the Nigerian Consulate and one described simply as an IDD call.  All three had been granted.

42.The applicant complains that the refusal to let him make the telephone calls in order to arrange for and receive legal advice was a breach of his fundamental right to communicate with a lawyer and constituted an abuse of power.

43.Of course, the first problem that the applicant faces is again one of delay.  I can find no good reason why the applicant could not have included this complaint in his second judicial review proceedings filed in November 2004.  I shall return to the problems caused by delay shortly.

44.At this juncture, however, I do accept that the right to communicate with a lawyer is a fundamental right.  Art.35 of the Basic Law enshrines the right to confidential legal advice.  Any suggested denial or frustration of that right must therefore be considered with utmost care.

45.That being said, however, while no doubt there will be occasions when serving prisoners should have the right to telephone their counsel to receive legal advice, I have not been referred to any international convention or domestic law that says that serving prisoners, whether a matter is urgent or not, have the right always to seek legal advice by telephone.

46.If a matter is not urgent, legal advice is invariably given when counsel visits the serving prisoner.  There may also, of course, be occasions when communication can be by letter.

47.The use generally of the telephone by serving prisoners must – for any number of good reasons – be controlled by the prison authorities.  In this regard, for example, the Prison Rules provide that :

“Heads of institution may under the following special circumstances and on being satisfied on the prisoner’s genuine need for timely communication with his friends and relatives, allow a prisoner to make local or overseas phone calls on a case to case basis:

(1) to inform them of the prisoner’s detention or whereabouts;

(2) to arrange for bail, fine payment or other legal matters...”

48.In short, each request must be considered in the context of its own particular circumstances.  The basic criteria is the demonstration of a ‘genuine need for timely communication’.  That, in my view, must apply to communications with lawyers as well as ‘friends and relatives’.

49.This, of course, is where the issue of delay becomes so important.  The applicant appears to suggest that a timely meeting with his solicitor and his friend, Mr Crawley, would have enabled him to demonstrate that, despite the doctor’s report, he did suffer bad injuries.  As against that, however, if leave is granted, the CSD officers will have to look back over a two year period to try to recall how and why it was, in the circumstances as they existed at the time, that they believed it proper to come to the decisions they did.

50.I would also observe that nothing has been placed before me of any substance to demonstrate what sort of delay was occasioned by the refusal of the authorities to allow the applicant to telephone Mr Crawley and his solicitor.

51.Nor has anything been put before me to state what alternative steps were taken by the applicant.  Was somebody else able to contact his solicitor for him, perhaps the prison welfare officer?  When did he eventually get to see his solicitor?  Was the issue of delay – if indeed there was delay – raised with the criminal court before or at trial?  If not, why not?  If there had been prejudice to the applicant, surely that would have been raised.  In this regard, I note that the applicant was represented at his trial by counsel.  If it was raised, how was it dealt with by the magistrate and/or Deputy Judge Leong?

52.In respect of the refusal to allow the applicant to telephone his solicitor in July 2004, the applicant has accepted that he only wished to make the telephone call to inform his solicitor that he had been formally charged.  He has not urged upon me any urgent or otherwise pressing circumstances which, at the time, demanded that a telephone call be made.

53.The applicant has referred to a notice given to persons under investigation – as he was at the time.  But the notice does not promise that telephone communication is guaranteed.  It speaks of private telephone calls or communication in person.

54.In summary, the applicant has put nothing before me to show on a prima facie basis that :

(a) he was unable to bring up his complaint in the criminal proceedings, the issue going directly, it would seem, to his ability properly to defend himself in those proceedings;

(b) he was unable to bring his challenge by way of judicial review within time.

55.Leave is refused.

The fourth complaint

56.This complaint arises out of an earlier application for judicial review made by the applicant : see my judgment dated 16 August 2005 (HCAL 140/2004 and HCAL 84/2004).  In that judgment, I quashed certain disciplinary proceedings that had been taken against the applicant : see paragraphs 54 to 66 (inclusive).  I concluded in paragraph 66 by saying the following :

“The proceedings are vitiated as being unlawful.  Any punishments imposed are quashed.  I am not prepared to make an order that the matter be remitted for a new hearing.  The circumstances do not warrant it.”

57.Regrettably, when I delivered my judgment, I had not been able to dispose of all the applicant’s various challenges and to deal with any consequential orders.  That was why, in paragraph 93, I said :

“There may, of course, be further submissions by the applicant as to consequential remedies that he thinks should flow from the matters already determined by me.”

58.In the present application, the applicant now seeks the costs incurred by him in photostating documents which, he says, was a necessary procedure in order to prosecute his appeal before the Commissioner against his conviction of the disciplinary offences which, as I have said, I quashed in my earlier judgment.  Three sets of costs, he says, were incurred by him in copying the transcripts of the disciplinary proceedings.  They come to $58.50, $60 and $87.

59.The issue of these costs, of course, arose out of the earlier proceedings and should be part of those proceedings.

60.But leaving that aside, the difficulty the applicant faces, as I perceive it, is that he must be able to identify some provision in law which entitles him to payment.  To put it another way, he must be able to identify some provision in law which enables the Commissioner, as a public officer, to make payment.

61.Mr Wong for the Commissioner has referred me to s.63(3) of the Prison Rules which deals with the hearing of appeals by the Commissioner.  That provision reads :

“Upon hearing the appeal, either by the prisoner in person or by him in writing, the Commissioner shall determine the appeal and may cancel, vary or confirm the order against which the appeal is made or may substitute therefor any other order which the superintendent was competent to make …”

62.Mr Wong has said that on his reading of the Prison Rules, he can find no provision which entitles the Commissioner, in law, to refund a prisoner any costs incurred by him in pursuing a successful appeal.

63.The applicant says that he can only approach the matter as a layman.  He understands that, in any court, if a person is successful, costs follow.  That may be a general rule in courts of the classic kind but it is not necessarily a rule in special tribunals such as the tribunals regulated under the Prison Rules.  The applicant has not himself been able to identify any relevant provision in law.  That being the case, I do not see how the applicant can mount a prima facie argument that his costs should be paid.

64.This may visit an injustice on the applicant.  I appreciate that every dollar to a prisoner is important.  But the fact remains that I would be unable to direct the Commissioner to make a payment when, in my judgment, the Commissioner has no power to make that payment.

65.Leave is refused.

The fifth complaint

66.As I can best understand this complaint, it relates to three alleged instances of assault.  The applicant alleges that – on 2 June 2004 (the same date as the assault referred to in the earlier complaints), 23 March 2005 and 12 April 2005 – CSD officers assaulted him.  It is suggested that the assaults were instigated by a Superintendent or some other senior officer; in short, that the assaults had a sinister origin.

67.However, as I have explained to the applicant, actions for wrongful assault should be instituted by way of writ not judicial review.  Judicial review is not suited to the determination of complex factual issues of the kind described.  Issues of that kind should be determined at a trial when witnesses can be called and cross-examined and, if necessary, when medical evidence can be called as to injuries suffered.

68.The applicant protests that other courts have found issues of trespass against the body to be suitable for judicial review.  He has not given me any cases to support that assertion.  But I do not dispute the fact that there may be cases where the lawfulness of physical assault is a proper matter for judicial review.  One example might be the admitted forced feeding of a prisoner.  In the present case, however, undoubtedly, the only issues will be contested issues of fact and it is those kind of cases which should be commenced by writ and should go to trial so that the evidence of the various witnesses can be tested and findings of fact made by the court.

69.By way of a footnote, even if judicial review was found to be the appropriate procedure, I refer again to the question of delay.  The most recent alleged assault referred to by the applicant took place some eight months before the present leave application was filed.

70.Leave is refused.

The sixth complaint

71.This complaint refers to some 25 cases of disciplinary proceedings taken against the applicant by the prison authorities.  The individual case numbers suggest that the earliest of these proceedings was in 1999, some seven years ago, while the latest was in 2005.

72.The applicant complains that the adjudicating officers were biased.  They were biased because in every case they were judges in their own cause.  The applicant seeks an order that all of the proceedings should be quashed.

73.Over the lunch adjournment, Mr Wong, for the Commissioner, has been able to examine some (but not all) of the proceedings.  His examination appears to reveal the following :

a. Two of the cases were dismissed without the need for them to even go to trial.  No question of a tribunal being a judge in his own cause arose.

b. In four of the cases, the applicant chose not to avail himself of the appeal procedure.  In short, he chose not to take the issue of bias to a higher tribunal.

c. In one case, the applicant abandoned his appeal.

d. In six proceedings, the record shows that the tribunal asked the applicant if he had any objection to the adjudicating officer determining the matter and was told there was no objection. 

74.I have also briefly considered the papers in one case : R/N 655 of 2004.  On the face of the papers, the applicant, who was charged with assaulting a fellow Nigerian prisoner, pleaded guilty and gave evidence in mitigation.  Some two years after he had been convicted on his own plea, he decided to appeal.  His appeal was lodged on 6 October 2004 and determined on 2 November of that year.  The applicant admits that he pleaded guilty.  He says, however, that he was forced to do so.

75.I do not intend to become embroiled in the intricacies of each disciplinary case.  The point that is revealed by Mr Wong’s investigations is that the applicant’s blanket accusation of bias is, even at this preliminary stage, shown at best to be wayward in respect at least of a number of the proceedings.  It is not for this court to give general leave and then attempt at a substantive hearing to try and sort the wheat from the chaff.  It is for the applicant to put his case in proper order when he applies for leave.

76.Delay, of course, is again a profound issue.  This court is expected to forgive delays that are of several years.

77.In respect of each of the disciplinary proceedings the applicant, in terms of the rules and regulations, had an appeal process open to him.  He was entitled to challenge any matter that he thought relevant in respect of his appeals.  This would include the fact that he was pressured into pleading guilty, that there was a dishonest doctoring of the records, that he was otherwise dealt with unfairly and that the adjudicating officer was biased against him.  If those allegations had been made, it was the responsibility of the appeal tribunal to consider those allegations and to come to a finding in respect of them.  This court does not act as some sort of extra appeal court.

78.As for the appeals themselves, there is nothing to suggest that each of them was not properly considered in good faith.  I notice that in two appeals the awards were varied.

79.Leave is refused.

The seventh complaint

80.The applicant professes to be a member of the Rastafarian religion.  For an extended period of time he has sought permission to be able to play the music of his religion in his cell; that is, to have tapes and a tape recording machine in his cell.  The prison authorities have refused him permission.  The applicant complains that other prisoners have been allowed religious music in their cells and that he is being made the subject of discrimination.

81.In earlier judicial review proceedings brought by the applicant, I found that the Rastafarian religion should be considered a religion.  I also found that certain reggae music was considered to be devotional music in the religion.  In para.37 of my judgment of 16 August 2005, I said :

“I have looked through certain of the material shown to me today by the applicant.  In my judgment, certainly on the balance of probabilities, the evidence indicates that reggae music is integral as a means of expression to the Rastafarian faith.  The lyrics of reggae, as written by certain reggae artists, are considered to be words of wisdom within the Rastafarian faith, just as the psalms of King David are meant to be part of the wisdom of the Hebrew faith.  I mention this analogy because, as I understand it, Rastafarianism finds its ancient roots in the Hebrew faith.”

82.In terms of Rule 23(1) of the Prison Rules, no prisoner is entitled to have in his possession any article without authority.  It is not disputed that tapes and tape-recorders constitute ‘articles’.

83.The prison authorities say that, as a general rule, no music may be played in cells.  It does not matter – in principle at least – whether it is religious or secular.  The purpose of the rule is to maintain good order and discipline.

84.The rule is, however, subject to exceptions which are decided on a case by case basis.  For example, prisoners studying for examinations may be allowed educational material or prisoners suffering emotional difficulties may be allowed some solace in the form of tapes.  As I said in my earlier judgment :

“There may be a number of compassionate reasons; for example, if a prisoner is ill and is looking for solace in religious music or if he is having a difficult time in coming to terms with his predicament.  But the fact remains that it does lie within the discretion of the prison authorities to allow individuals to possess tapes of religious music, that is not disputed.  It is a discretion, however, which can only be set aside if shown to have been exercised in some unlawful way; for example, in a way that goes further than differentiating and actively discriminates.”

85.It is, as I have said, the applicant’s contention that the refusal to give him religious music was an act of discrimination as opposed to differentiation.

86.The applicant has shown me an authority card which apparently enabled him to play reggae music in his cell at some earlier time.  But that sets no precedent.  As I have said, a prisoner may be granted the privilege for a limited period only, for example, when he is studying or requires the solace of music during a time of emotional difficulty.

87.The applicant has shown me a newspaper article dated 24 January 2006.  In part, it reads :

“For many people, music is an avenue to release, soothe or indulge their emotions, be it through catchy guitar riffs, soulful jazz or the dramatic score of a classical composition.  The Correctional Services Department believes that music plays an important role in the rehabilitation process of prisoners, and the Hong Kong Philharmonic Orchestra believes that the sounds of an orchestra can bring hope and meaning to life.

With these beliefs in mind, the Pak Sha Wan Correctional Institution in Stanley in December opened its doors to 50 Hong Kong Philharmonic Orchestra players who performed two concerts for 400 inmates…”

88.The fact that the prison authorities from time to time put on musical concerts for an audience of prisoners does not advance the applicant’s case that he should be granted leave.  The applicant’s complaint is that he is not permitted to have the music in his cell for his own enjoyment only.  Quite clearly issues of good order in discipline are different when concerts are arranged from time to time for a large section of the prison population.

89.The applicant has gone on to say that, in any event, as a person with severe emotional difficulty, musical tapes will benefit him.  In this regard, he has referred me to a report on his condition prepared by a psychologist.  It reads :

“The prisoner is a known case to the psychological unit.  He has been given a diagnosis of dissocial personality disorder by a psychiatrist in 1999.  People with such personality profiles are generally impulsive, irritable, aggressive, deceitful and irresponsible, having difficulties in conforming to rules and regulations.  Institutional misbehaviour in the form of verbal violence and physical violence (against staff and fellow prisoners) were recorded.  In view of the tension with the management and the chronicity of behavioural problems, BAU [whatever that may mean] may serve as a buffer at this juncture.”

90.The applicant does not dispute the accuracy of this report.  In fact, he appears to adopt it.  If the report is correct it may explain why there has been so much friction between the applicant, the prison authorities and other prisoners.

91.The applicant says that, because he has been diagnosed as a person who is impulsive, aggressive, deceitful, irresponsible and liable to bouts of violence, it follows that he must be given music in his cell at night, if that music is of a religious nature, to soothe his troubled personality.  However, there is nothing before me to suggest that, because of his diagnosed personality disorder, the ordinary rules of prison discipline should not apply equally to the applicant as it does to all other prisoners.  Nor, importantly, is there anything before me to say that the ability to play music in his cell will materially assist his particular condition.  There is, for example, no suggestion that a recommendation by a doctor has been refused.

92.In summary, no material has been put before me upon which to base any sort of argument that the applicant, by the denial to him of music in his cell, is suffering unlawful religious discrimination or discrimination of any other kind.

93.Leave is refused.

The eighth complaint

94.In this complaint the applicant challenges a decision to refuse him permission to take $20 out of his compulsory savings account in order to file proceedings in the Small Claims Tribunal.  He also challenges a decision to refuse him permission to transfer all the moneys in his compulsory savings account into his earnings account.

95.In respect of moneys earned in prison, I have an affirmation from a CSD officer, Mr Wan, who says that —

“Prisoners are required to save up to $500 or more in their compulsory savings.  If part of the compulsory savings is used resulting in the savings falling below the $500 ceiling, the prisoners will be required to save 10 per cent of their earnings until the ceiling is attained.”

96.Mr Wan continues :

“The applicant made an application on 24 November 2005 for a sum of $20 to be deducted from his compulsory savings in order to settle the filing fee for his amendment.”

97.Mr Wan then explains :

“The Department noted that the amount of the applicant’s compulsory savings fell below the $500 ceiling while he had $200.60 in his property and the usable balance of his weekly earnings was $126.49 at the time.  The prison authority was of the view that the alleged filing fee of $20 could be fully recovered by his money in his property or his weekly earnings and there was no urgency and no merit at all for converting the compulsory savings into his earnings.”

98.Mr Wong, for the Commissioner, points out that – fundamentally – the more money prisoners have in their earnings account, the more they can spend in the canteen.  Accordingly, it is often an advantage if they can somehow cash in their compulsory savings account and move the funds from that ‘capital account’ into their ‘cash account’. 

99.Mr Wong has also pointed out that the Correctional Services Department does its best to ensure that prisoners, upon their discharge, have at least $500 savings to help them when they have to face the world again. 

100.A memorandum dated 6 December 2005 shows how the decision to refuse the applicant was reached :

“On 1.12.2005, Prisoner HALL made a request to deduct HKD 20 from his compulsory saving for the charge of filing an amendment form to the court (Case: SCTC 32143/04).  Besides, he requested to convert his compulsory saving into earning for purchasing additional basic necessities.  His self-explanatory submission is attached.

An assessment on Prisoner HALL’s request had been conducted by the Management with the following findings:-

(a) There was HKD 200.6 in his property;

(b) There was HK$126.49 in his usable balance in earnings before December’s canteen purchase; and

(c) He earned HK$33.14 (CA) weekly.

In view that the charge in question is only HK$20.00 which can be fully covered by his money in property or earning, I see no merit in his case.  For the request of converting the compulsory saving into his earning, his application had been assessed; there was no urgency and imminent need for his request as all the basic necessities were being provided.  Therefore, his application for withdrawal of compulsory saving is not recommended.”

101.On the face of it, the decisions reflected in this memorandum are rational and unexceptional.  The applicant complains, however, that the decisions were irrational and discriminatory.  He says that certain other prisoners were able to cash in their compulsory $500 savings in order, for example, to help victims of the Tsunami.  The applicant, however, does not deny the fact that he had money in his earnings account which could have been used.  Indeed, it would have still left him with $100 or so in his earnings account.  He says that nevertheless he was treated unfairly.

102.There is nothing in this complaint.  Being given permission to donate to disaster relief is not to be compared to a desire to use moneys in a compulsory savings account to help fund litigation when there is already sufficient in what I have described as the applicant’s cash account.  Indeed, on the face of it, it appears as if the applicant was trying to manipulate the system.

103.Leave is refused.

The ninth complaint

104.The applicant has on a number of occasions received a disciplinary punishment of ‘separate confinement’.  The person on the street would call it solitary confinement.  When in solitary confinement, the applicant has been denied a daily newspaper or radio.  It is his complaint that it is unlawful to deny a prisoner access to the media even if, for a limited period of time, that prisoner is serving a punishment for an infringement of discipline.

105.In my judgment, to suggest that, even when undergoing punishment for a disciplinary offence, all prisoners are at all times entitled as a basic right to a newspaper and/or other means of information is not prima facie arguable.

106.I accept, of course, that a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not expressly or impliedly taken from him.

107.But that being said, it has to be recognised that the maintenance of discipline in prisons presents its own particular difficulties.  As Lawton LJ said in R. v. Camphill (Deputy Governor), ex parte King [1984] 3 All ER 897, at 902 —

“Management without discipline is a recipe for chaos.  For a prison governor, however, the ultimate sanction used in industry, commerce and schools, namely dismissal, is not available.  There is need for other sanctions.”

108.Good order and discipline being so important in ensuring the safe and orderly running of prisons, the Prison Rules vest a large measure of discretion in the Commissioner to determine how best that can be secured.  See, for example, R. v. Home Secretary, ex parte Leech [1994] QB 198 (per Steyn LJ at 202).

109.In Chim Shing Chung v. Commissioner of Correctional Services (1996) 6 HKPLR 313, at 322, Litton VP (as he then was) said that it would need “an extreme case” before a court could safely say that the Commissioner, in the purported exercise of his judgment and discretion, has abused his legislative or regulatory powers.

110.As I understand the applicant’s case, it is premised on the basis that regular – that is, uninterrupted – access to the news via television, radio or newspapers is a fundamental right of all Hong Kong residents including serving prisoners.  But I do not see how that proposition is prima facie arguable.

111.First, it is axiomatic that the freedom to receive information of all kinds may be subject to restriction.  This is stated in art.16 of the Bill of Rights which reads :

“(1)   …

(2) Everyone shall have the right to freedom of expression: this right shall include freedom to … receive … information and ideas of all kinds, … either orally, in writing or in print, …

(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 … public order (ordre public) …”  [my emphasis]

112.Indeed, s.9 of the Hong Kong Bill of Rights Ordinance, Cap.383 specifically recognises that serving prisoners may be subject to such restrictions on their rights protected by the Bill of Rights as are necessary “for the preservation of … custodial discipline” :

“… persons lawfully detained in penal establishments of whatever character are subject to such restrictions as may from time to time be authorized by law for the preservation of … custodial discipline.”

113.Put simply, the freedom to receive information through television, radio and newspapers is a qualified right.  One of those qualifications quite clearly, in so far as it applies to serving prisoners, must be the need within penal establishments to maintain good order and discipline.

114.As for art.27 of the Basic Law – which guarantees freedom of speech, of the press and of publication – I do not see that article in any way taking away from the proposition that the freedom is a qualified one.

115.S.18(1) of the Prisons Ordinance makes it a criminal offence to bring unauthorised articles into a prison.  These include ‘papers’ and ‘books’.  However, r.56 of the Prison Rules provides that :

“Prisoners may receive such books, periodicals, newspapers or other publications from outside the prison as the Commissioner may determine.”

116.The Commissioner may therefore impose conditions on the manner in which prisoners receive books, newspapers, periodicals and the like.

117.On a fair, large and liberal construction of r.56, looking to its purpose, the imposition of conditions will cover a wide range of matters.  For example, in Chim Shing Chung v. Commissioner of Correctional Services (1996) 6 HKPLR 313, the Court of Appeal held that it was lawful for the Commissioner to permit the introduction into prison of newspapers under the condition that their horse racing supplements were first removed.

118.In my judgment, it is clear that the Commissioner may impose a condition which prohibits a prisoner from having access to newspapers when he is undergoing a form of punishment.  By way of illustration, Principle 28 of the United Nations ‘Body of principles for the protection of all persons under any form of detention’ reads :

“A detained or imprisoned person shall have the right to obtain within the limits of available resources, if from public sources, reasonable quantities of educational, cultural and informational material, subject to reasonable conditions to ensure security and good order in the place of detention or imprisonment.”  [my emphasis]

119.R.63 of the Prison Rules provides that a Superintendent may punish a prisoner who has breached discipline with “separate confinement for any period not exceeding 28 days”.

120.Separate confinement – solitary confinement – is therefore prescribed by law as a necessary provision for the enforcement of discipline.

121.As to the nature of the punishment, the Standing Orders (65-07(5)) provide —

“Prisoners undergoing separate confinement will be permitted to retain only a grass mat, a night soil bucket (when there is no toilet in the cell), toilet paper and drinking water during the period between unlock and lock-up, a bible or any devotional books may be retained by the prisoner during the whole period of punishment.”

122.Solitary confinement is therefore a Spartan regime under which literature – other than devotional literature – is specifically prohibited.  That is a necessary part of the punishment.  If it was not, it would lessen the reluctance of the average prisoner to undergo it.

123.In summary, despite what at first blush may seem to be a point that carries at least enough merit to be prima facie arguable, I am satisfied that it is beyond doubt that the prohibition against access to the media during solitary confinement is prescribed by law and is a necessary requirement to ensure good order and discipline.  

124.Leave is refused.

The tenth complaint

125.The history of this complaint is to the following effect.  When the applicant was in Shek Pik Prison, he was given a hair trimmer on loan, the trimmer to be for his use only.  However, when the applicant was transferred to Stanley Prison and the trimmer was found to be in his possession, it was taken from him.  When it was removed, it was either implied or a direct accusation was made that the applicant must have retained possession of the trimmer dishonestly.  According to the applicant, he was accused of being a thief.

126.The issue of the hair trimmer was the subject of a complaint by the applicant.  By letter dated 18 January 2006, the applicant was informed by the Government Secretariat that there had been an investigation and that he was cleared of any allegation of dishonesty on his part.  The letter says :

“According to the Correctional Services Department, it came to the attention of the management of the Stanley Prison that you were in possession of a hair trimmer, which was not of the type the prison management commonly permitted a prisoner to retain for personal use.  In the absence of reasonable information showing that the hair trimmer was obtained with prior authority, the CSD staff handling the case, … had reason to suspect that possession of it might be in breach of Prison Rule 61 and action had to be taken to retrieve the hair trimmer pending investigation.”

It continues by saying the following :

“Subsequently the management of the Stanley Prison conducted an investigation into the case and learnt that, although the hair trimmer was government property, it was lent to you by the management of the Shek Pik Prison while you were in prison there.  As a result, the management of Stanley Prison decided that no disciplinary action should be instituted against you.  The Complaints Investigation Unit of the CSD later received your complaint on the improper confiscation of the hair trimmer and conducted an independent inquiry.  The CIU’s findings were consistent with those of the management of Stanley Prison.

The letter concludes :

“One of the duties of CSD staff is to uphold prison discipline and in doing so they might have to take action against any person who is suspected to have breached the prison rules.  In your case, the concerned CSD staff had the obligation to explain to you clearly what he suspected before taking any action to retrieve the object in question and this should not be taken as a deliberate attempt to embarrass you.”

127.Mr Wong, for the Commissioner, has informed me that, not only has the applicant’s complaint been fully investigated, but he now has the use – if he applies for it – of a new hair trimmer.

128.The applicant’s complaint appears to be, first, that he should never have been accused of stealing the original hair trimmer and, second, that, as he was previously allowed to retain full-time possession of the original hair trimmer, he should be allowed the same privilege in respect of the new trimmer.

129.In respect of the first aspect of the complaint, I do not see how this court can take matters further.  There has already been a full official inquiry.

130.If the applicant believes he has been defamed then he should sue.

131.The fact that in Shek Pik Prison the applicant was allowed to permanently retain the original hair trimmer did not set up any form of legitimate expectation that he would be allowed to have permanent possession of a trimmer for his entire sentence no matter in which institution he was incarcerated.

132.As for the new trimmer, the old one apparently having been broken, the applicant appears to seek an order that he be entitled to keep the trimmer in his possession for his sole use : I can find no prima facie arguable grounds for making any such order.

133.The applicant complains that, unless the trimmer is – without doubt – kept solely for his use, there is the risk that other prisoners with skin problems and the like may use it.

134.The applicant further complains that every time he wants to use the trimmer he has to make an application.  That is a bureaucratic process and can result in delays.  The CSD officers can make life difficult for him.

135.I observe at this juncture that the applicant is firmly of the view that there is some sort of conspiracy hatched by the prison authorities to make his life as difficult as possible.  Indeed, he has concluded his general submissions by warning that his life is in danger, that his death is being plotted.

136.While it is more than apparent that the applicant has experienced a good deal of friction with the prison authorities, there is no objective evidence to suggest that the applicant’s well being is under threat in the way he has suggested.

137.In a previous hearing, almost a year ago, the applicant spoke of a plot to cripple him.

138.As for the hair trimmer, it seems to me to be a matter for the management of Stanley Prison how such items are to be stored and utilised.  No doubt one factor that is taken into account is that of hygene.  I am told that the new trimmer is in fact kept for the applicant but the decision has been made that the trimmer should not be in the possession of the applicant at all times.  Nothing has been put before me to even begin to suggest that such a decision is in any way unlawful.

139.I note, in passing, that the cells where the applicant is housed are not wired for electricity.  In any event, therefore, with an electric instrument such as a trimmer, the applicant has to use a socket point outside his cell, no doubt having to receive permission to do so.

140.Leave is refused.

The eleventh complaint

141.When the applicant received punishment of solitary confinement, that punishment entailed a loss of privileges for the time he spent in confinement.  In the result, so I am told, certain canteen purchases – biscuits, chocolate and the like – were removed from the applicant and only returned to him when he completed his punishment.  This, the applicant complains, has constituted an abuse of power and was unlawful.

142.The applicant has asserted that by the time his period in solitary confinement was over the canteen purchases would often not be fit for consumption.  It is therefore the applicant’s case that a prisoner sentenced to solitary confinement for a breach of discipline has the right to take all his canteen purchases with him; in short, that, at least as far as fungibles are concerned, there should be no loss of privileges.

143.What must first be understood is that canteen purchases – with the exception of letter-writing materials and postage stamps – are classified as privileges.  A serving prisoner has no absolute right to biscuits, chocolate, condensed milk or whatever purchased from a retail outlet.

144.Nothing has been put before me to suggest that ordering a temporary loss of privileges is in any way unlawful in Hong Kong or against international conventions.  Indeed, the threat of a possible loss of privileges is recognised as one of the most effective ways of enforcing discipline.

145.If privileges may be lost then they may be lost immediately when the punishment commences.  The loss of privileges is after all an inherent part of the punishment.

146.That order makes it plain that any items being enjoyed by way of privilege – for example, secular magazines or foodstuffs – are not available to a prisoner serving solitary confinement.  Bearing in mind the need for discipline in a prison, I can identify no argument to suggest that such removal is in any way unlawful. 

147.If it so happens that any fungibles purchased from the canteen become inedible that, it seems to me, is a consequence of the prisoner’s breach of discipline.  All forms of punishment, to a greater or lesser degree, carry with them subsidiary consequences.

148.Leave is refused.

The twelfth complaint

149.The applicant complains that the prison authorities have refused to supply him free of charge with a pair of spectacles.  This refusal, he says, is unlawful.

150.The applicant, in fact, has a pair of spectacles.  He obtained them through his friend, Mr Crawley.  He says that Mr Crawley should be reimbursed the amount he paid for those spectacles, whatever that sum is.

151.Although his condition has not yet been finally diagnosed, at this time it appears that the applicant needs spectacles because he has myopia.  This is a condition which causes short sightedness.  It is a common enough condition.

152.In support of his contention that spectacles must be supplied to him free of charge, the applicant relies principally on Prison Rule 143.  This rule directs that the Prison Medical Officer is responsible for the treatment, when sick, of all prison inmates.  Rule 148 directs that the Medical Officer shall, when necessary, make recommendations to the prison management concerning the best treatment, or any change in treatment, for a prisoner, this to include recommending the supply of any additional articles to him.

153.Looking, first, to the background of this matter, it appears that the applicant did seek to obtain spectacles from the prison authorities.  There is evidence to show that the prison authorities informed him that, if he had money of his own sufficient to purchase a pair of glasses, those funds would have to be used; in short, that the prison authorities did not supply spectacles free of charge.  There is further evidence to show that the applicant was advised that, if he did not have sufficient funds, he could make application to the ‘Prisoners Welfare Fund’ for sufficient moneys to buy spectacles.  This fund is established under section 21A of the Prisons Ordinance and is set up for the benefit of prisoners.

154.When the applicant asked for spectacles free of charge in December 2005, it was noted that he had $200 in his property.  This was considered sufficient to purchase a pair of glasses.  His application to obtain a pair of glasses free of charge was therefore refused.  The applicant, so the evidence shows, was invited to apply to the Prisoners Welfare Fund and, on his part, it is said that he did so.  The prison authorities, however, suggest that he may not have done so.

155.At this juncture such minor disputes of fact are not germane.  The issue is whether the applicant has a prima facie arguable case to say that prisoners, even if they have their own moneys, are entitled in law to obtain those spectacles free of charge.

156.My first observation, obvious though it is, is that the applicant was not refused spectacles.

157.If a prisoner has money available to him, he can use that money to buy spectacles.

158.My second observation is that, if a prisoner does not have the money to buy spectacles, he is able to approach the Prisoners Welfare Fund.  This is a statutory fund and therefore part of the legislative regime which is set in place to assist persons like the applicant.

159.In short, a prisoner who requires spectacles has avenues open to him.

160.As to the applicant’s contention that, once in prison, all of a prisoner’s medical needs of whatever kind must be supplied free of charge, I do not see how that is even prima facie arguable either in light of international conventions or Hong Kong domestic law.

161.I note, for example, that the Standard Minimum Rules for the Treatment of Prisoners adopted by the United Nations, while it provides that a medical officer shall have ‘the care of the physical and mental health’ of prisoners makes no mention of all such care having to be free of charge.

162.There must be many jurisdictions where it is simply not possible for the authorities to supply items such as spectacles to prisoners free of charge.

163.There is nothing that I can find in the Hong Kong legislation to suggest that items such as spectacles must be supplied to prisoners free of charge.  Put another way, I can find nothing to prevent the prison authorities from directing, as a general rule, that if a prisoner has sufficient funds to pay for spectacles, then he should do so, or if he does not, then he may apply to a special fund for financing.

164.Leave is refused.

The thirteenth complaint

165.After the applicant had been convicted of drug trafficking, the trial court made a number of consequential orders.  These included an order that certain of the applicant’s personal effects should be returned to him.

166.On 23 June 1998, customs officials attempted to carry out this order.  The applicant was then held at Shek Pik Prison.  The applicant, it appears, disputed that all of his effects were being returned and refused to accept those that were offered.

167.It seems as if the customs officers took the applicant’s refusal as a final refusal.  In the result, in early 2002 an application was made to a magistrate for an order that the personal effects be destroyed.  That order was granted on 1 March 2002.

168.That order, however, appears not to have been made in knowledge of the earlier Court of First Instance order that the items be returned to the applicant.

169.As it turns out, however, the applicant’s personal effects have not yet been destroyed.  In the circumstances, without getting involved in whether this is or is not a suitable matter for judicial review, it seems to me to be common sense that the problem can, in the main, best be dealt with as follows :

(a) The applicant's personal effects can be returned to him.

(b) If the applicant is of the view that certain items are missing, he will accept the items that are returned without prejudice to his right to seek return of the missing items or to claim compensation for their loss.

170.In the circumstances, by agreement, the applicant’s personal effects should be delivered to him as soon as possible.

171.If there is to be a dispute as to missing items and that cannot be resolved then, it seems to me, that the applicant would be well advised to consider seeking return of the missing items or compensation for their loss via the Small Claims Tribunal.  I say that because I have my doubts that it would be a suitable matter for determination by way of judicial review.

Costs

172.I have refused leave on each and every application for leave made by the applicant.  Mr Wong for the Commissioner seeks payment of costs, those costs to be assessed summarily.  I decline to make that order.  

173.These proceedings, even though they have taken a day and a half, are essentially ex parte in nature.  I informed the Commissioner of the application, not on the basis that he was obliged to be represented here, but on the basis that, if he wished, he could choose to be represented to assist the court in such manner as it thought appropriate.  Mr Wong has appeared to discharge a public function of ensuring, as far as possible, that the ends of justice are met.

Applicant, in person

Mr Wesley W.C. Wong, of the Department of Justice, for the Respondent