Wong Tak Wai v. Commissioner of Correctional Services
Read the full judgment text of HCAL 64/2008 on BabelCite. This High Court CFI judgment was delivered on 31 August 2009.
1. The Applicant is applying for judicial review pursuant to leave granted out of time against 5 decisions and punishment for offences against prison discipline by the Superintendents of Correctional Services under r. 61 of the Prison Rules (Cap. 234A) (“PR”), as confirmed on appeal by the Commissioner of Correctional Services.
Cited by 4 cases · Cites 7 cases
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HCAL 64/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 64 OF 2008 ____________ BETWEEN
____________ Before: Hon Fung J in Court Dates of Hearing: 25 March 2009 and 7 May 2009 Date of Judgment: 31 August 2009 _______________ J U D G M E N T _______________ 1.The Applicant is applying for judicial review pursuant to leave granted out of time against 5 decisions and punishment for offences against prison discipline by the Superintendents of Correctional Services under r. 61 of the Prison Rules (Cap. 234A) (“PR”), as confirmed on appeal by the Commissioner of Correctional Services. Background 2.Prisoners serving a sentence of more than 1 month may be granted remission of sentence on the ground of industry and good conduct. Subject to forfeiture of remission upon breach of discipline in prison, the remission is 1/3 of the sentence. The prisoners are notified of the relevant earliest discharge date upon intake. 3.Prisoners adjudicated to have committed prison disciplinary offences may have their remission forfeited (of up to 1 month by a Superintendent and 3 months by the Commissioner). 4.The Applicant is an inmate of Stanley Prison. He was found to have committed offences against prison discipline in 5 cases and punished by forfeiture of remission of sentence. 5.The 5 cases are as follows:
Legal framework 6.The statutory regime for offences against prison discipline is set out in rr. 57 to 66 in Part I (3)(i) of PR. 7.R. 57 of PR provides that:
8.“Superintendent” is defined under s. 2 of the Prison Ordinance (Cap. 234) (“PO”) which means:
9.R. 60 of PR provides that:
10.R. 61 provides for the relevant offences against prison discipline:
11.R. 62 of PR provides that:
12.R. 63 of PR deals with sentence and appeal:
13.R. 69 of Part I (4) of PR deals with remission of sentence:
Grounds for judicial review 14.The grounds relied on by the Applicant are as follows:
15.The ground against the rejection of the notification of appeal out of time in Case 2 was abandoned. 16.The Applicant took out a summons to file the expert evidence of Dr Marcel Koo on the likely effect of the drugs seized in Cases 2 and 3. The Respondent opposed on ground of irrelevance. The evidence was admitted de bene esse. There is an issue of costs of the application. Independent and impartial tribunal 17.Under r. 57 of PR, reports against prison discipline shall be dealt with by a Superintendent. In practice, the reports are dealt with by the head of the particular institution, who is at the rank of Superintendent or Senior Superintendent. In case of conflict by reason of prior administrative involvement, or apparent bias such as acquaintance with the reporting officer (i.e. witness), a Superintendent from another institution will be arranged to deal with the case. 18.Mr Kwok, for the Applicant, recognized that under r. 57 of PR, reports against prison discipline shall be dealt with by a Superintendent and no other person. He is not challenging the constitutionality of r. 57, nor contending that the hearing should be conducted in public. 19.Mr Kwok did not go for a structurally independent tribunal of visitors to prison (such as Justices of the Peace). His case is that the reports should be heard by an independent Superintendent from another penal institution not concerned with the administration of the prison nor supervision of the reporting officer in question. 20.Mr Kwok based his case on the right to a fair hearing by an independent and impartial tribunal under Art. 10 of the Hong Kong Bill of Rights (“HKBOR”) (i.e. Art. 14 of the International Covenant on Civil and Political Rights (“ICCPR”)). Alternatively, the case is based on the avoidance of apparent bias by the tribunal under the common law. 21.Mr Kwok submitted the right to a fair hearing under Art. 10 is applicable to offences against prison discipline with forfeiture of remission. 22.Art. 10 of HKBOR provides that:
23.In Campell & Fell v United Kingdon (1985) 7 EHRR 165, the European Court of Human Rights at Strasbourg considered Art. 6 of the European Convention on Human Rights (equivalent to Art. 10, HKBOR) in the prison context and stated (at para. 69) that:
24.In Ezeh & Connors v UK (2002) 35 EHRR 28, the European Court held that the determination of prison disciplinary proceedings by a governor resulting in an punishment of up to additional imprisonment of 42 days amounted to determination of a “criminal charge” and was within Art. 6 of the European Convention. 25.In Young v UK (2007) 45 EHRR 29, the applicant was convicted by for disobeying lawful order and was ordered to serve 3 additional days. The European Court held that the proceedings amounted to a “criminal charge” within Art. 6. The court stated (at paras. 35-39) that:
and held (at para. 43) that:
26.Reference has been made to HM Prison Service in England and Wales where the system of Independent Adjudicators was introduced following the decisions of the European Court. 27.Prisoners in England sentenced to not more than 12 months shall serve a minimum of half the term before early release, whereas those sentenced to between 12 months and not more than 4 years shall serve half of the sentence before early release on licence (subject to recall), and those sentenced to 4 years or more shall serve 2/3 before early release on licence. Additional days of imprisonment may be imposed for breach of discipline, postponing the earliest date of release. 28.There is a two-tier system for the adjudication of prison disciplinary offences in England. The Governor in charge of a prison or the Director (in a contract-out establishment) may deal with cases and impose punishment not involving additional days (such forfeiture of privileges or stoppage of earnings, etc.), whereas only the Independent Adjudicators who are District Judges (or Deputy District Judges) may impose punishment of additional days. 29.Submissions on both the Hong Kong and English systems focused on the earliest discharge date without researched reference to release on licence and recall in either jurisdiction. 30.In Lam Siu Po v Commissioner of Police FACV 9/2008 (6 March 2009), the Court of Final Appeal held that police disciplinary proceedings are determinations of rights and obligations in suits at law within the meaning of Art. 10 of HKBOR, such that the Article applies to such disciplinary proceedings. 31.A fortiori, it was submitted that Art. 10 should apply to prison disciplinary proceedings. 32.Mr Kwok submitted that when the adjudicating Superintendent and reporting officer are from the same prison, and the former has the duty of supervising the later, there is the possibility that in marginal cases the superior is more inclined to believe or protect his subordinates. Further, it gives the impression of “all in the same family”. 33.Reference has been made to AWG Group Ltd v Morrison [2006] 1 WLR 1164, the English Court of Appeal held that a judge ought to have recused from the proceedings for reason of apparent bias when he had known a witness for a long time even though the evidence was to be given by some other witnesses. 34.Alternatively, the case was grounded on apparent bias. 35.In R (Al-Hasan) v Secretary for the Home Department [2005] 1 WLR 688; [2005] UKHL 13, the prisoners were disciplined for failing to obey lawful orders, and they challenged the lawfulness of the orders. The adjudicating governor was present when the orders were given. The House of Lords stated the common law test on fairness as whether the fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility of bias. 36.Lord Brown of Eaton-under-Heywood referred to Picola v Luxumbourg (1995) 22 EHRR 193 and stated (at p. 701B) that the critical question was how would a fair-minded observer regard the adjudications? The test for bias was would he doubt, however slight its justification, about the adjudicator’s impartiality by reason of his prior participation in the decision making process. 37.The House of Lords accepted for policy reasons that prison disciplinary cases could be dealt with by governors of prison. Nevertheless, when it gave an appearance of bias, consent should be sought or another governor be brought in to decide the case. 38.In Deacons v White & Case LLP & ors (2003) 6 HKCFAR 322; [2004] 1 HKLRD 291, the Court of Final Appeal also stated that the test for recusal by a tribunal is the reasonable apprehension of bias test. 39.In any case, Mr Kwok submitted that the standards relating to bias under the common law and those under Art. 6 of the European Convention are the same (see de Smith’s Judicial Review (6th Ed., 2007) at para. 10-083). 40.Mr Law, for the Respondent, submitted that Art. 10 does not apply to prison disciplinary hearings in Hong Kong. Alternatively, s. 9 of the Hong Kong Bill of Rights Ordinance (Cap. 383) (“HKBORO”) provides an exception for persons in penal establishment. And even if Art. 10 is engaged, there is no unfairness in viewing the disciplinary process as a whole including the remedy of judicial review on the appeal decision of the Commissioner from the Superintendent. 41.Mr Law referred to Secretary of State for the Home Department v MB (FC) [2008] 1 AC 440 where the House of Lord held that residential confinement for suspected terrorists for 14 hours with further restriction on movements and use of computer was protective and not penal in nature, and hence, not a “criminal charge” for the purpose of Art. 6 of the European Convention. 42.In the article “Regulators, Human Rights and Judicial Review” by Lord Pannick QC given at the conference “Effective Judicial Review: Cornerstone for Good Governance” in December 2008, it set out sanctions which are regulatory or disciplinary in nature concerning a limited class of persons, or serving protective or compensatory rather than penal function are classified as civil matters rather than “criminal charge” by the European Court of Human Rights or the English appellate courts: payment of fine for impounded aircraft because of hidden cannabis (Air Canada v UK (1995) 20 EHRR 150); solicitors’ disciplinary tribunal (Irving Brown v UK (1998) 28 EHRR CD 23); director’s disqualification order as protection of the public (DC, HS & AD v UK [2000] BCC 710 (ECHR)); sex offender order requiring an offender to register his current address (B v Chief Constable of Avon & Somerset Constabulary [2001] 1 WLR 340 (Div Ct)); heavy surcharge on councillors for sums improperly spent as compensatory and regulatory and not punitive (Porter v Magill [2002] 2 AC 357); revocation of parole licence on breach of its terms (R (Smith & West) v Parole Board [2005] 1 WLR 350 (HL)). 43.Following the same approach, it was submitted that prison disciplinary offences covering a wide range of conduct such as abusive language, possession of cigarettes, paper, chalk, glue, and medication, with sanctions ranging from caution to forfeiture of remission which are regulatory rather than punitive in nature designed for the management and order of prisons. 44.Mr Law sought to draw a distinction between the system of “additional days” in England and “forfeiture of remission” in Hong Kong. He submitted that in Hong Kong, remission is an award for the prisoner’s “industry and good conduct” under r. 69(1) of PR. It is a privilege and not a right. The prisoner was sentenced by the court to serve the full term, and forfeiture of remission is not deprivation of liberty. Hence, the English and European jurisprudence on prison discipline are not directly applicable. 45.Alternatively, under s.9 of Part III of HKBORO:
46.Mr Law submitted that hearing by the Superintendent was prescribed by law, and hence, an exception recognized by s. 9 of HKBORO. 47.Further, Mr Law pointed out that whilst the Court of Final Appeal held in Lam Siu Po that Art. 10 is engaged in police disciplinary proceedings, there is no objection in principle to officers within the force conducting the hearing without outside elements when the whole process is subject to control by a court of full jurisdiction. 48.In Lam Siu Po, Ribeiro PJ cited (ibid at para. 114) the dictum of Lord Millet in Runa Begum v Tower Hamlets LBC [2003] 2 AC 295, 349 (para. 152) that:
and stated (at para. 116) that:
49.Mr Law submitted the High Court in exercising the judicial review jurisdiction is a court of full jurisdiction. It assumes the role of the independent tribunal and gives the individual concerned the public hearing. Viewing the process as a whole, there is compliance with Art. 10. 50.Mr Law submitted that a Superintendent is a senior officer within the Correctional Services Department. The law prescribed hearing by a Superintendent in order to instil public confidence in the system. In any case, short of independent adjudicators, the line between the head of institution Superintendent and the outside Superintendent may be illusory by reason of prior acquaintance from different postings from time to time. 51.Further, r. 60 of PR provides that the Superintendent shall investigate into the report with 24 hours (unless there is a supervening public holiday). And r. 79 of PR provides that the Superintendent has the duty to supervise matters concerned with the prison. Hence, the head of institution Superintendent is the prescribed or most suitable person to deal with reports against discipline. 52.Mr Law pointed out that there are 23 penal institutions (including prisons and detention centres, etc.) in Hong Kong. There are about 5,000 reports against discipline each year. There are 49 officers of the rank of Superintendent and above, and 27 of them are posted as head or deputy head of penal institutions. The arrangement of hearing by a Superintendent from another institution will have disproportionate resource implication. 53.As mentioned, prison disciplinary offences cover a wide range of conduct, and the punishment may or may not involve the forfeiture of remission. As all the 5 cases involved the punishment of forfeiture of remission and the submissions revolved around this factor, I shall confine my discussion to proceedings involving punishment by forfeiture of remission only. 54.In O’Reilly v Mackman [1983] 2 AC 237, 275F–276F, Lord Diplock stated the common law principle of a fair hearing in the prison disciplinary proceedings:
55.In Lam Siu Po, Ribeiro PJ said that Art. 10 of HKBOR gives effect to the rule of law (para. 67), and Bokhary PJ said that the words “determination of … rights and obligations in a suit at law” call for a generous interpretation (para. 24). Hence, the same principle of rule of law should apply in considering proceedings having implication on the liberty of the person. 56.Bearing in mind such principle, I shall consider Mr Kwok’s grounds under Art. 10 and also the common law. 57.In Lam Siu Po, Ribeiro PJ stated that a specific charge brought before a disciplinary tribunal may or may not attract Art. 10 protection depending on whether it involves determination of a criminal charge or the individual’s civil rights and obligations (para. 92). 58.In Koon Wing Yee v Insider Dealing Tribunal [2008] 2 HKLRD 372, the Court of Final Appeal adopted the criteria stated by the European Court in Engel v Netherlands (No. 1) (1976) 1 EHRR 647 in determining whether proceedings are criminal in nature for the purpose of Arts. 10 and 11 (Rights of persons charged with or convicted of criminal offence):
59.The Court of Final Appeal held that proceedings investigating into insider dealings involving the imposition of a financial penalty under s.23(1)(c) of the Securities (Insider Dealings) Ordinance (Cap. 395) were determination of a criminal charge notwithstanding that the domestic law did classify the same as civil and there are certain characteristics of civil proceedings such as absence of formal charge and conviction constituting a criminal record, as the penalty was severe with punitive and deterrent purpose comparable to a fine. 60.Lam Siu Po also stated that the nature of the punishment is an important consideration requirement for fairness as against proportionality and resources. 61.In substance, forfeiture of remission is deprivation of liberty. The fact that it is imposed on someone in prison does not alter its punitive character. Under r. 69(4) of PR, remission shall be granted subject to any disciplinary award or forfeiture of remission. Apart from the conviction of disciplinary offences and punishment by forfeiture of remission, there is no other mechanism in place to detain the prisoner any longer than the earliest release date. I see no real difference between “additional days” under the English system and forfeiture of remission in Hong Kong. 62.As to requirement or suitability of hearing by the head of institution Superintendent, r. 57 of PR provides that “The Superintendent (or other officer in charge of a prison, whatever his or her rank may be) shall supervise and control all matters in connection with the prison of which he or she may be in charge…” An officer other than a Superintendent may also be in charge of a prison. Hence, it is not true that the reports must be heard by the head of institution Superintendent. 63.I find that the hearing of prison disciplinary proceedings with punishment by forfeiture of remission by a Superintendent who is charged with the administration of the penal institution and/or supervision of the reporting officer in question lacks the independence or impartiality for a fair hearing under Art. 10 of HKBOR. The same conclusion is reached via the test of reasonable apprehension of bias. 64.In any case, similar exception as s. 9 of HKBORO is also provided for in the Reservation Text of the ICCPR Rectification by the UK government. I do not see s. 9 in excepting Art. 10 in proceedings for forfeiture of remission. 65.Insofar as the Applicant did not challenge hearing by a Superintendent per se, hearing by a Superintendent from another institution (subject to the recusal for actual or apparent bias) will definitely enhance independence and impartiality. 66.Mr Law pointed out the tight time frame for dealing with reports against prison discipline will result in disproportionate resource implication. 67.At the moment, reports are brought before the Superintendent within 24 hours for mention, with actual hearing adjourned to another date (or further adjourned part-heard). The system can accommodate referral of the actual hearing to an outside Superintendent. 68.In AGC v Morrison, Mummery LJ said (ibid 1166, para. 6) that:
69.In any case, I am not convinced that the alternative arrangement will impose insuperable resource implication having regard to the principle of fair hearing. 70.Hence, I hold that the conviction of disciplinary offences with forfeiture of remission amount to “criminal charge” with Art. 10 of HKBOR. 71.Even if the classification of “criminal charge” is avoided, the proceedings have such implication on the prisoner’s expected earliest date of discharge that Art. 10 should be engaged. 72.Hence, I order that the decisions and punishment in Cases 1 to 5 be quashed. Standard of proof 73.The standard of proof by the Independent Adjudicator as well as the Governors in England is the criminal standard of proof beyond reasonable doubt. 74.Mr Law’s submissions on the standard of proof is essentially the same as the inapplicability of Art. 10 in that remission is a right and not a privilege and forfeiture of remission is necessary for the regulation of prison discipline. That contention has been already rejected. 75.In Koon Wing Yee, Sir Anthony Mason NPJ held that the standard of proof for determination of the investigation into insider dealings with penal consequence comparable to fine should be beyond reasonable doubt for the criminal charge under Art. 11 of HKBOR. His Lordship said (ibid at pp. 405-407, paras. 102-103):
76.In Gough v Chief Constable of the Derby Shire Constabulary [2002] QB 1213, EWCA Civ 351, the English Court of Appeal found that proceedings for imposition of banning orders under the Football Spectators Act 1989 based on reasonable grounds of belief in violence or disorder at or in connection with regulated football matches were civil in character, but the banning orders imposed serious restraint on freedoms normally enjoyed by the citizens, and the justices should apply the standard of proof that will, in practice, be hard to distinguish from the criminal standard (per Lord Phillips of Worth Matravers MR at paras. 89-90). 77.In R (McCann & ors) v Crown Court at Manchester & anor [2002] UKHL 39, the magistrates made anti-social behaviour orders under the Crime and Disorder Act 1998 prohibiting 3 teenagers from entering a particular place of the city in which they lived. 78.On appeal, the Crown Court held that the proceedings were civil rather than criminal and were not subject to rules of evidence which applied in criminal prosecutions. However, the judge dismissed the appeal upon being “satisfied so that [the tribunal] was sure” that the orders should be made. The defendants brought judicial review against the judge’s decision, which was dismissed by the Divisional Court, The Court of Appeal upheld the dismissal. 79.On further appeal, the House of Lords held that anti-social behaviour order was preventive and not punitive, it was not a conviction and did not appear on the defendant’s criminal record, and regarded as civil under domestic law, hence, not classified as criminal within Art. 6 of the Convention. Hearsay evidence would be admissible. But given the matter raises serious question of facts with serious implications for the defendant, the court should be satisfied to the criminal standard of proof that a defendant had acted in an anti-social manner before making the order (per Lord Hope of Craighead at para. 83). In the event, the appeal was dismissed because the appropriate standard of proof had been applied. 80.Forfeiture of remission has serious implication in deprivation of liberty or severe restraint on freedom of the person. The criminal standard of proof beyond reasonable doubt should be applied in prison disciplinary proceedings with forfeiture of remission. 81.Hence, the decisions in Cases 2 to 5 should also be quashed on the ground of wrong standard of proof. 82.In passing, r. 63 of PR provides for other forms of punishment by the Superintendent. Those punishment include solitary confinement and forfeiture of earnings. They also impose severe restraint on freedom of the person or penalty comparable to a fine. Without deciding on the matter as submission was not specifically made on them, it seems that they may also attract the criminal standard of proof. 83.On the other hand, there are measures such as caution or payment of costs of property damaged without reasonable excuse. I shall not comment on those matter as they do not concern the cases before me. Record of proceedings 84.At present, record of prison disciplinary proceedings are made by hand by the adjudicating Superintendent. 85.Mr Kwok submitted that in the absence of an open hearing in the prison setting, accurate record should be kept independent of the adjudicator to deter inappropriate behaviour and enhance public confidence. Mr Kwok indicated this is a standalone ground of review. 86.In Ex parte Guardian Newspapers Ltd [1999] 1 WLR 2130, the defendant applied under the Crown Court Rules 1982 for a stay of trial application to be heard in camera. The judge heard the application in camera and ruled in open court that the stay application be heard in camera. The newspaper served a notice seeking leave to appeal. The English Court of Appeal granted leave and allowed the appeal. Brook LJ giving the judgment of the court said (at p. 2144, paras. 23-24) that:
87.Mr Kwok submitted that accurate and objective record of the proceedings will assist the Court exercising the supervisory jurisdiction in dealing with serious dispute of facts. 88.Mr Law pointed out that although the Applicant did make a request for tape recording in Case 3, there is no challenge on the findings of facts nor allegation of inaccurate record in any of the 5 cases. 89.Mr Law referred to Leung Fuk Wah v Commissioner of Police [2002] 3 HKLRD 635 where an officer in the disciplinary proceedings complained against non-disclosure of documents. The Court of Appeal (per Cheung JA at pp. 668J-669A para. 76) said that:
90.Mr Kwok submitted that it is inaccurate to say that an applicant has to demonstrate actual unfairness in order to obtain relief. He referred to the dictum of Lord Steyn in Boddington v British Transport Police [1992] 2 AC 143, 174 (cited with approval in Leung Fuk Wah ibid at p. 663H para. 40) that:
91.In Chu Ping Tak v Commissioner of Police [2002] 3 HKLRD 679, Deputy Judge A Cheung (as he then was) cited Leung Fu Wah above and said at (p. 669C-F para. 62) that:
92.Reference ex facie has been made to other Commonwealth jurisdictions and the United States with the majority of them not having recording at prison disciplinary proceedings. The two exceptions are Canada and Queensland (for major breach of discipline). 93.It is noted that while there is no recording before either the Independent Adjudicators or Governors in England, legal representation is however allowed. 94.Mr Law’s further objection seem to be resource implication. Frankly, I do not see any real difficulty in getting a couple of tape recorders. 95.Be that as it may, I bear in mind that the jurisdiction of judicial review is to proscribe decisions lacking in procedural fairness rather than to prescribe the procedure instead. It is the duty of those charged with administration of prisons to set in place disciplinary procedure which is fair in all the circumstances. 96.The fact remains that there is no complaint of inaccurate record or prejudice to the Applicant in any of the 5 cases, notwithstanding ex hypothesi there may be so in some other cases. 97.Given my decision on grounds 1 and 2, and there is no prejudice to the Applicant in the cases before the Court, I shall not consider quashing the decisions in the 5 cases on the ground of lack of recording alone. Failure to interrogate 98.In Case 1, the Applicant was charged, inter alia, with possession of a piece of chalk without due authorization. He said the chalk was given to him by another inmate. The inmate was called to the hearing but he refused to give evidence. The adjudicating Superintendent said he could not compel the witness to do so. 99.Complaint was also made on the “Explanation of the Procedure at a Hearing of a Disciplinary Charge”. Para. 12 stated:
100.Mr Kwok submitted that the note on compellability of inmates is inconsistent with the power of the Superintendent to interrogate any person touching on the offence under r. 62 of PR. 101.Mr Law submitted that the inmate was arranged to attend the hearing, but the Superintendent did not ask him to give evidence because according to the Applicant what he had to say was irrelevant to the case, as there is no defence in saying that the chalk was given by a fellow inmate. Mr Law, however, did not submit on the explanatory note. 102.I agree with the point on relevance by Mr Law. 103.On the explanatory note, it is reasonable that the tribunal should have control of the proceedings in admitting what is relevant and to exclude what is irrelevant and to prevent abuse, bearing in mind the power to interrogate. That decision must of course be made judiciously, being subject to the supervisory jurisdiction of the Court. The note did inform the defendant the right to raise with the authority calling of defence witness who are relevant to the charge, and to question them at the hearing. 104.As to “compellability”, the Superintendent may of course interrogate any person when the justice requires, and the witness may answer according to his volition. Those responsible for the explanatory note may wish to see that no wrong message is put across unwittingly. 105.Be that as it may, I hold that the ground based on failure to interrogate do not succeed by reason of no prejudice. Irrationality of punishment 106.As I have already quashed the 5 decisions, and Mr Law has indicated not seeking remission for re-consideration in the event, it is not necessary to deal with irrationality of sentence save for costs. 107.The reasons for sentence in Cases 2 and 3 stated that:
108.Mr Kwok submitted that the quantity of the drugs seized could not raise an irresistible inference of illegal use. He sought to rely on the expert evidence of Dr Koo rebutting the conclusion that the quantities and types of drugs would cause serious consequence if taken by other inmates. He submitted the reasons given in the two cases with templated identity suggested the Superintendent did not give much thought to the matter. 109.Mr Law pointed out that the defence raised by the Applicant in both cases was fabrication by the searching officers. In the event that the Applicant’s evidence was rejected by the adjudicating Superintendent (where there is no challenge to it), he was entitled to draw the inference that drugs were for illegal purpose. Even if self use were reasonably open on the facts, the tribunal needed not consider it as it was inconsistent with the defence raised. Once the inference of illegal use by others was drawn, the consequence would be serious in prison security. 110.Even in applying the criminal standard, I agree with Mr Law that the inference of illegal use was inevitable upon the rejection of the Applicant’s evidence. The expert evidence on the pharmaceutical effect of the drug is not relevant. 111.Hence, the application to file evidence is dismissed with costs to the Respondent. Costs 112.I make the order nisi that the Respondent shall pay the costs on grounds 1 and 2 to the Applicant with Legal Aid taxation. 113.Although the Applicant did not succeed on grounds 3 and 4, points of general relevance and importance were raised such that I consider there should be no order as to costs. 114.As to ground 5, I order nisi that the Applicant should pay the costs (including the costs of the summons and hearing on the admissibility of expert evidence) to the Respondent. 115.For the assistance of the taxing master, I say grounds 1 and 2 together with matters of background and principle would have taken up 80% of the hearing time, and ground 5 and the summons taking 5%. 116.Lastly, I thank counsel for their helpful submissions.
Mr Kwok Sui Hay, instructed by Messrs Brian Kong & Co., assigned by the Director of Legal Aid, for the Plaintiff Mr Dennis Law, instructed by Department of Justice, for the Respondent Appeal by the Respondent to Court of Appeal allowed to the extent that the order quashing the decisions and punishment in respect of case 1 be set aside cross-appeal of the applicant dismissed. Please refer to CACV231/2009 dated 21 July 2010 |
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