Read the full judgment text of CACV 231/2009 on BabelCite. This Court of Appeal judgment was delivered on 21 July 2010 before Stock VP, Kwan JA, Andrew Cheung J.
Criminal law – prison discipline – judicial review – apparent bias – independence and impartiality of tribunal – article 10 of the Hong Kong Bill of Rights – article 6(1) of the ECHR – standard of proof – curative principle – Prison Rules – forfeiture of remission – Wong Tak Wai, an inmate of Stanley Prison, was found guilty in five disciplinary cases between May 2007 and January 2008, comprising four charges of possession of unauthorised articles (painkillers, gastrointestinal drugs, notes, chalk, glue, a battery cell piece, cigarettes, correction fluid and paper) in breach of rule 61(k)(i) of the Prison Rules, and one charge of using abusive language to another inmate in breach of rule 61(d). Two Superintendents of Stanley Prison adjudicated the cases and the Commissioner dismissed his appeals. He received a total of 98 days forfeiture of remission. The applicant brought judicial review in HCAL 64/2008 and was largely successful before Fung J, who quashed all the determinations and decisions on the grounds of absence of an independent and impartial tribunal and the wrong standard of proof. The Commissioner appealed. The main issues were: (1) whether there was a basis to complain of apparent bias where a Superintendent of the same penal institution adjudicated disciplinary offences; (2) whether the determination process as a whole, including appeal to the Commissioner and judicial review, was nevertheless fair; and (3) whether the standard of proof in prison disciplinary proceedings was beyond reasonable doubt or on the balance of probabilities. On issue (1), the majority (Stock VP and Andrew Cheung J) accepted that there was no structural independence between prosecutorial and adjudicating roles, but held that no apparent bias was established on the systemic challenge. A fair-minded and informed observer would take into account that the Superintendent is several rungs removed from frontline reporting officers, has limited direct contact with them, and that the prison disciplinary system inherently requires those managing the prison to adjudicate. Kwan JA dissented, holding apparent bias was established because of the dual administrative-adjudicative responsibility and the institutional interest in maintaining discipline. On issue (2), all members of the Court held the curative principle applied; the lack of structural independence was cured by access to judicial review, a court of full jurisdiction, and the Commissioner's wide powers under rule 63(2), (2A) and (3) to enquire into the merits fully and de novo. On issue (3), applying the ECHR three-criteria test (domestic classification, nature of offence, nature and severity of sanction), the Court held that forfeiture of remission constitutes deprivation of liberty imposed for punitive purposes after a finding of culpability, so prison disciplinary proceedings involve the determination of a criminal charge within article 10, requiring proof beyond reasonable doubt. The appeal was allowed in part: the order quashing Case 1 (in which the standard of proof issue did not arise) was set aside, but the quashing orders in respect of Cases 2, 3, 4 and 5 were affirmed. The applicant's cross-appeal on the absence of mechanical recording and non-compellability of witnesses was dismissed. The Court made order nisi that the Commissioner pay half the costs of the application below, and the applicant pay half the costs of the appeal, with a certificate for two counsel for the Commissioner. The applicant was also directed to pay the costs of the Commissioner's notice under Order 59 rule 6(1)(b) and (c).
Legal issues: Apparent bias of adjudicating Superintendent in prison disciplinary proceedings · Curative effect of appeal to Commissioner and judicial review on bias at first tier · Standard of proof in prison disciplinary proceedings
Outcome: Appeal allowed in part. The Commissioner's appeal succeeded to the extent that the order quashing the determination and punishment in Case 1 (Case No. 288/2007) and the Commissioner's confirming decision of 22 June 2007 were set aside. The Commissioner's appeal was otherwise dismissed, and the quashing orders in respect of Cases 2, 3, 4 and 5 were affirmed. The applicant's cross-appeal against the order that there be no order as to costs for Grounds 2 and 4 (absence of mechanical recording and non-compellability of witnesses) was dismissed.
Cites 1 case