Li Siu Hing v. Commissioner of Correctional Services
Read the full judgment text of CACV 277/2009 on BabelCite. This Court of Appeal judgment was delivered on 19 March 2010 before Tang VP, Wright J.
Civil procedure – judicial review – extension of time – application for certiorari to quash prison disciplinary decision – delay of approximately 34 months – whether application prompted by subsequent court decision (rather than change in law) justifies extension of time – whether Hung Chan Wa test applies to civil cases – practical necessity for finality – whether adjudicating tribunal was independent and criminal standard of proof should apply under Art. 10 of Hong Kong Bill of Rights – Prison Rules, Cap. 234A, r.69 – O. 53 r.4 – appeal against refusal of leave to apply for judicial review – A Cheung J's discretion not faulted – appeal dismissed.
Legal issues: Whether to extend time for judicial review of prison disciplinary decision prompted by subsequent court decision rather than change in law
Outcome: Appeal dismissed; refusal of extension of time upheld.
Cited by 6 cases · Cites 11 cases
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CACV 277/2009 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 277 OF 2009 (ON APPEAL FROM HCAL NO. 129 OF 2009) ----------------------
---------------------- Before: Hon Tang VP and Wright J in Court Date of Hearing: 26 February 2010 Dates of further written submissions of the Applicant: 26 February, 5 & 11 March 2010 Dates of further written submissions of the Respondent: 3 & 10 March 2010 Date of Decision: 19 March 2010 ---------------------- J U D G M E N T ---------------------- Hon Tang VP: 1.The applicant is a serving prisoner. 2.By a decision of the Commissioner of Correctional Services (“the Commissioner”) dated 19 January 2007, the applicant was awarded loss of 25 days remission for two disciplinary convictions. He would be released on 2 September 2010 otherwise. I presume that he is entitled to a one-third remission of his sentence subject to forfeiture as a result of disciplinary convictions (Rule 69 of the Prison Rules, Cap. 234A). 3.An application for leave to apply for judicial review was lodged on 27 November 2009 to quash the decision. The grounds for quashing the decision are that the adjudicating tribunal was not independent; and that a lower standard of proof, namely, proof on the balance of probabilities had been applied. 4.It is clear that the application was prompted by the decision of Fung J in Wong Tak Wai v Commissioner of Correctional Services, HCAL 64/2008 (unreported, dated 31 August 2009), where the learned judge held that Art. 10 of the Hong Kong Bill of Rights requires that such disciplinary proceedings be dealt with by an independent superintendent from another penal institution and that the criminal standard of proof should be applied in such criminal proceedings. See for example, Form 86 which stated that although the application:
5.In refusing leave, on consideration of the documents only, A Cheung J made the following observations:
6.Mr Kwok Sui Hay, appearing for the applicant, submitted that although in support of the application the applicant had relied on the decision in Wong Tak Wai:
7.He submitted that the learned judge had misunderstood Wong Tak Wai as “changing” the law when he relied on the HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614 and Lau Luen Hung Thomas v. Insider Dealing Tribunal and Anor, FAMV 46 of 2009 (unreported, dated 4 December 2009). 8.Here we are concerned with an application for, inter alia, an order for certiorari to quash the decision of the Commissioner. There is a time limit of:
9.Extension of time is not granted unless there are good reasons. In civil cases, it is difficult to conceive of a case where extension of time to appeal is granted after a long delay on the ground that a subsequent decision has “changed” the law. In criminal cases, it is a matter of discretion to be exercised in accordance with Hung Chan Wa. Hung Chan Wa decided that a change in the law, even though it would result in the appeal being allowed, were time to appeal extended, is not a sufficiently good reason for extension of time to be granted. But there may be circumstances in a particular case which are so exceptional that the court would grant an extension. The reason why the court requires such exceptional circumstances is because “the courts recognize the practical necessity for finality in the criminal process”. See per Li CJ at 632 at para. 24. But for the practical necessity for finality, one would have thought that the fact that no appeal was made within time because of a settled but erroneous view of the law is a good reason for extension of time. 10.In this case, I believe the approach adopted in criminal cases should be adopted. But, it is wrong to regard the Hung Chan Wa test as more onerous. Where the delay is not the consequence of a known (and erroneous) state of the law, it is difficult to understand why an applicant should be treated more favourably. In such cases the practical necessity of finality applies with greater force. 11.It is in the interest of society for there to be finality in any legal process. The practical necessity for finality does not depend on whether what prompted an application for extension of time to be made is a decision which has “changed” the law or exposed the fallacy of a previous understanding of the law. Such decisions may explain the late application. The fact that an appeal was prompted by such an event is in favour of an applicant for extension of time. But it is not sufficient in the absence of truly exceptional circumstances. An applicant who had failed to appeal notwithstanding that the law could not be said to be settled against him could hardly deserve more sympathy from the court. 12.Mr Kwok relied on Chiu Hoi Po v. Commissioner of Police, FACV 9/2009 (unreported, dated 24 July 2009). But it is clearly distinguishable. In that case, the Court of Final Appeal gave leave to the applicant to argue a new point on appeal based on Art. 10 of the Hong Kong Bill of Rights. In that case, the applicant’s appeals to the Court of Appeal and to the Court of Appeal were all lodged in time. He did not require an extension of time to appeal. 13.Mr Kwok also relied on the decision of what Bokhary JA (as he then was) said in the Court of Appeal in Nguyen Tuan Cuong and Ors v. Director Of Immigration and Ors, CACV 196/1995 (unreported, dated 8 February 1996), at p. 23 of the judgment:
14.However, Bokhary JA was not concerned with an application for an extension of time to apply for judicial review. In that case, an extension of time to make the application had been granted. His lordship was there concerned with whether the relief should be withheld because of delay. 15.Mr Kwok submitted that the theoretical basis for finality is the concept of merger. In R v Unger [1977] 2 NSWLR 990 at 995 where Mr Justice Street, the Chief Justice of Australia said:
16.He submitted that the doctrine of merger can have no application here since the Commissioner’s decision was not a judgment of the court. This is not the occasion to discuss whether, it is now necessary to resort to the concept of merger, except perhaps in cases where as a result of a later decision the offence for which an applicant had been convicted turned out to be a non existent offence. It is sufficient for the present purpose to say that the authority to detain the applicant stems from the judgment of the court. That stands and is not being challenged. It is the legality of the withholding or forfeiture of remission which is being challenged. On that, the practical necessity for finality is a sufficient reason to refuse an extension of time. 17.Mr Kwok also submitted that even if an extension of time is not granted, the applicant could apply for a writ of habeas corpus at a later time. I say nothing about that. If and when such an application is made, the court will deal with it. 18.Mr Kwok also relied on R v. Hawkins [1997] 1 Cr. App. R. 234 and submitted the test is whether:
19.In R v. Ballinger [2005] 2 Cr. App. R. 433, another decision of the English Court of Appeal, Hawkins was applied. There the applicant who was a Petty Officer Physical Trainer in the Royal Navy was convicted of an offence of indecent assault and was sentenced, inter alia, to a term of detention and dismissal from the service. He was advised against appeal on that basis that the authorities established that a Naval Court Martial was compatible with the European Convention on Human Rights. He was convicted on 2 April 2003. In July 2004 he was advised that on the basis of a decision in the Court of Appeal, the previous advice that there was no ground of appeal was wrong. On an application for leave to appeal out of time, the Court of Appeal refused leave. The applicant submitted that he had suffered a substantial injustice; he has been wrongly convicted and the consequences for him are enormous both in terms of his sentence of detention, his dismissal from the service and the financial consequences. Scott Baker LJ giving the judgment of the court said at 438:
20.The authorities are clear that the fact that if an extension of time is granted, the conviction would be quashed and the applicant would regain his liberty, is not of itself an exceptional circumstances warranting an extension of time. 21.In Mr Kwok’s further written submission, he relied on the fact that in a similar case an extension of time had been granted by A Cheung J Chan Ka Man v. Commissioner of Correctional Services, HCAL 111/2009 (unreported, 21 October 2009). There, the applicant challenged nine convictions in relation to which he was found guilty of disciplinary offences as a result of which he has lost 10 days of remission. He was granted leave to apply out of time in respect of two convictions. The delay was about 18 months in one conviction and 12 months in the other. 22.In A Cheung J’s judgment of 21 October 2009, he said:
23.Mr Kwok also referred to the fact that in Wong Tak Wai, Poon J had granted an extension of time to apply for judicial review notwithstanding substantial delay. Mr Kwok submitted that Chan Ka Man and Wong Tak Wai had been given priority by the Legal Aid Department due to their imminent release dates. He also mentioned that the Legal Aid Department has been inundated by similar applications. 24.In Tsang Yiu Kai and Ors v. Insider Dealing Tribunal, HCMP 1322/2007 (unreported, dated 18 December 2007), the appellants, who had been found to be insider dealers, after a delay of about 1½ years, sought leave to appeal out of time as a result of the decision of Court of Appeal in Koon Wing Yee v Insider Dealing Tribunal and Anor, CACV 358/2005 and CACV 360/2005 (unreported, dated 30 May 2007). Leave was granted ex parte by Rogers VP. The extension of time was set aside by a court of two judges (Tang VP and Yuen JA) applying Hung Chan Wa. 25.Also in Lau Luen Hung Thomas v. Insider Dealing Tribunal and Anor, HCMP 1161/2007 (unreported, dated 11 September 2007), the applicant had been found to be an insider dealer and there was a delay of about 5 months. After an inter partes hearing Cheung JA granted leave to appeal out of time. That was set aside by Ma CJHC and Stock JA in HCMP 1751/2007 (unreported, 28 February 2008). 26.I say nothing about whether extensions of time ought properly to have been granted in Chan Ka Man and Wong Tak Wai. I say, however, that it must not be assumed because leave had been granted in some cases, leave would continue to be granted. Nor that that those decisions would have survived challenges in this Court. What we have to consider is whether in this case the exercise of discretion by A Cheung J can be faulted. With respect, I think not. I would dismiss the appeal. Hon Wright J: 27.I agree.
Mr. Kwok Sui Hay, instructed by Messrs Brian Kong & Co., assigned by Director of Legal Aid, for the Applicant Mr. Andrew Y. S. Mak, instructed by Department of Justice, for the Respondent |
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