HKSAR v. Lai Sui Sing

FAMC No. 53 of 2010

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 53 OF 2010 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 760 OF 2009)

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Between:

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Appeal Committee: Chief Justice Ma, Mr Justice Ribeiro PJ and Mr Justice Mortimer NPJ

Date of Hearing: 8 February 2011

Date of Determination: 8 February 2011

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DETERMINATION

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Mr Justice Ribeiro PJ:

1.The applicant was an Assistant Officer II in the Correctional Services Department, working at the Hei Ling Chau Correctional Institution when he was convicted of introducing unauthorised articles into prison contrary to section 18 of the Prisons Ordinance.[1] 

2.Section 18(1) relevantly states:

Any person who brings, ... or in any manner introduces or conveys into any prison ... or deposits in any place outside a prison with intent that it shall come into the possession of a prisoner, or carries out of a prison any arms, ammunition, weapon, instrument, intoxicating liquor, opium or other drugs, tobacco, money, clothing, provisions, letters, papers, books or any other article whatsoever shall, unless so authorized by the rules made under section 25 or by the Commissioner, be guilty of an offence ...”

3.The facts as found were as follows.  The prison stands on an island.  Near the ferry pier are barracks for the use of CSD officers who do not live on the island.  They can place their personal belongings in lockers situated there.  The applicant used such a locker and had bank books and statements in it on the day in question.

4.Officers reporting for duty may also apply at the main gate for a locker in which to put their personal belongings by requesting a locker key and registering.  On leaving, they must return the key.  The applicant did not make such an application.

5.After entering through the main gate, the applicant assembled with other officers to be given a briefing within the prison compound.  He was then intercepted by ICAC officers and in the interview room, some 19 items were found on him.  They included a novel, some food and things to make coffee and tea, some pills, a USB cable, a card reader, two USB memory sticks, three SD cards and a distance call add value card.

6.The applicant admitted that he knew it was not permissible to bring those articles into the prison area and that prior approval should have been obtained.  He claimed to have intended to place them in a locker near the room where he had been assigned duty but was intercepted before he was able to do so.

7.At the trial and on appeal it was argued on the applicant’s behalf that properly construed, all the acts referred to in section 18(1), including bringing or introducing prohibited items into a prison, have to be done with the specific intent “that it shall come into the possession of a prisoner”.  This was rejected and such specific intent was held to be required only in relation to “deposit[ing] [the item] in any place outside a prison”, as Mr Justice Penlington had held in R v Ma Man Choy [1980] HKC 444.  We agree with that decision and do not consider the applicant’s construction to be reasonably arguable.

8.The applicant also seeks leave to argue that he was not within the prison area when intercepted and that inconsistencies in the evidence of CSD witnesses regarding the use of lockers prevented proof of his guilt beyond reasonable doubt. 

9.The applicant stresses the last point at the hearing today.  He submits that he never intended to bring the articles into the prison but to place them in a locker within the prison compound and then to register, which he says, was the accepted practice.  However, the evidence of several witnesses as to the accepted practice was considered by the magistrate who made findings rejecting an argument similar to the submission that was made today.

10.We do not consider the grounds put forward reasonably arguable.  Strict control of items brought into a prison is an obvious necessity.  The legislative intent is, quite properly, to require prior permission before items like those found on the applicant can be introduced.  Ample facilities were provided to enable the applicant to comply.  But he knowingly introduced the prohibited items without prior approval and was properly convicted. This application must accordingly be dismissed.

Applicant in person

Mr Martin Hui (of the Department of Justice) for the respondent