Chan Ka Man v. Commissioner of Correctional Services

HCAL 111/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 111 OF 2009

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BETWEEN

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Before: Hon Andrew Cheung J in Court

Date of Hearing: 21 October 2009

Date of Judgment: 21 October 2009

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J U D G M E N T

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1.In this application for leave, Mr Kwok, after some exchanges between bench and counsel, has accepted that the proposed challenge would only be directed against Awards (8) and (9) in the Form 86. They were made on 7 January 2008 and 3 September 2008 respectively.

2.So far as the applicant’s challenge, or proposed challenge, being out of time is concerned, I note that there are exceptional circumstances. Indeed, the applicant, a prisoner, has applied for legal aid to challenge similar earlier awards but his applications for legal aid have been unsuccessful. That explains why he failed to take action to challenge the earlier awards or Awards (8) and (9). But once he learned of the decision of Fung J in Wong Tak Wai v Commissioner of Correctional Services HCAL 64/2008, 31 August 2009, he immediately applied for legal aid again to challenge the awards. The application took time and he was eventually granted legal aid and thus the present application.

3.In those circumstances, bearing in mind that the applicant is, and was at all material times, a prisoner and his access to legal advice was, understandably, restricted, I take the view that there are indeed exceptional circumstances to justify an extension of time. In doing so, I have also borne in mind the merits of his proposed challenge, based on the judgment of Fung J in Wong Tak Wai, even though that case is under appeal.

4.Having said that, it does not mean that the Commissioner cannot rely on delay to resist the substantive application, but that would be a matter for the substantive hearing.

5.So far as leave is concerned, based on Wong Tak Wai, it is plain that the applicant has a reasonably arguable case to challenge the two awards, so leave should be granted on that basis.

6.As far as interim relief is concerned, one bears in mind that the liberty of the applicant is in issue. Although one is only concerned with a difference of three days, nonetheless, it is a difference of importance.

7.I have borne in mind the argument based on good administration urged upon me by government counsel representing the Commissioner. I am not persuaded that the extension of time and the interim relief sought, if granted, would create chaos in the prison system or unduly undermine the integrity of the prison disciplinary procedure. Nor do I believe that I would be opening a floodgate by granting the extension of time and the interim relief.

8.On balance, I believe that justice and convenience require the applicant to be released immediately by way of interim relief. In so concluding, the Court has borne in mind the undertaking offered by the applicant, through counsel, to surrender himself to lawful authority if and when ordered by the court to do so, depending on the outcome of the present proceedings, and further, on whether the Commissioner should wish to conduct fresh disciplinary proceedings against him in case the awards in question are quashed at the substantive hearing. I believe the formula that the applicant shall surrender himself to lawful authority if and when ordered by the court would cater for all these possibilities.

9.So on the applicant’s undertaking, I am prepared to order the immediate release of the applicant, subject to compliance with all necessary procedures for his early release.

10.The parties are also agreed that these proceedings would very much depend on the outcome of the pending appeal in Wong Tak Wai. I think it is sensible to direct that the application for judicial review shall not be proceeded with until after the outcome of the appeal in Wong Tak Wai is known, with liberty to the parties to apply for further or other directions.

11.As regards costs, I believe either costs in the cause or costs reserved would be fair. I would hear from counsel.

[Submissions on costs]

12.Costs in the cause. Legal aid taxation of the applicant’s own costs.

Mr Kwok Sui-hay, instructed by Brian Kong & Co, for the applicant

Ms Leona Cheung, GC, of the Department of Justice, for the putative respondent