The Commissioner of Correctional Services

CACV000121/1989

BETWEEN

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Coram: Hon. Fuad, V.-P., Hunter & Macdougall, JJ.A.

Date of Hearing: 14 December 1989

Date of Handing down of Reasons: 21 December 1989

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J U D G M E N T

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Macdougall, J A (giving the judgment of the Court):

1. This is an appeal by an Assistant Officer of the Correctional Services Department against an order of Jones J. refusing to make an order of certiorari by way of judicial review to quash a finding of quilt in disciplinary proceedings in respect of an offence against rule 239(1)(a) of the Prison Rules.

2. The matter arose in this way. In August 1987 tile appellant attended all adjudication at the office of the Superintendent of Tai Law Correctional Institution situated a short distance outside the main gate of that part of tile institution in which the prisoners are detained. At tile conclusion of tile adjudication tile appellant was searched and found to be carrying on his person various articles of private property including $440.08 in cash.

3. As a result two charges were preferred against him. The first was brought under rule 239(1) (p) of the Prison Rules and alleged that he had brought the various articles including the money into the Tai Lam Correctional Institution at a time when he was on duty. He was found not guilty on this charge.

4. The second charge alleged a of paragraph (a) of Rule 239(1) which states:

"(1)     Any officer of the Correctional Services Department or other person employed in the prisons commits a disciplinary offence who -

(a)     without good and sufficient cause fails to carry out any lawful order, whether written or verbal;"

5. The sum of $440.08 found on the person of the appellant exceeded the amount then permitted by Standing Order 354 which at the relevant time read:

"Possession of money -

Up to 525 in cash, (excluding reimbursement of travelling expenses, payment of allowance or salary received on that day), may be carried by staff within an institution providing that the money is in the possession of the staff to whom it belongs."

6. Thus as far as the money was concerned the essential difference between the two charges was that the first alleged that the appellant had brought it into the institution whereas the second alleged that he was carrying it within the institution.

7. It is perhaps because of this distinction that the Adjudicating Officer at the disciplinary enquiry arrived at the extraordinary conclusion that the appellant was not guilty on the first charge but guilty on the second.

8. Although the Adjudicating Officer referred to other minor, and in our view, unimportant matters, it is accepted that the reason why he found the appellant not guilty on the first charge was that he had explained that "he collected all those items of articles from his car parked at the garage (which is located outside the main gate of the institution) before he went into the superintendent's officer..... In Fact there was no evidence available to prove that the officer charged was escorted from the main gate to the superintendent's office. Therefore this point has casted (sic) a material doubt on tile evidence.".

9. Plainly the Adjudicating Officer misinterpreted what the appellant had said. The record, whose accuracy is not challenged, reveals that, in presenting his defence, the appellant die not say that he had collected tile items from his car parked at the garage, but that " I could have collected those items from the garage outside the prison on the way to the superintendent's office." (emphasis supplied). However, we think that even this Fundamental misunderstanding of what the appellant had said in his defence should not have prevented the Adjudicating Officer from coming to what in our view was an irresistible conclusion that the appellant brought the articles, including the money, into the superintendant's office. It was never in issue that the appellant had been searched in that office and that the articles had been found in his possession, and he did not deny that he had brought their into the office. Moreover, it was not suggested that the superintendent's office is not within the institution.

10. In view of his conclusion on the first charge the Adjudicating Officer surprisingly, though in our view correctly, found the appellant guilty on the second charge.

11. Mr Fenton for the appellant submitted that the finding of not guilty on tile first charge rendered the ginding of guilty on the second charge inconsistent and unsafe. However, the mere fact that the findings are inconsistent does not necessarily mean that the finding on the second charge is unsafe. Indeed on the basis of the unchallenged evidence that the appellant was carrying the money on his person in the superintendent's office coupled with the fact that the schedule to the Prisons Order discloses that the Tai Lam Correctional Institution (which is described as comprising the site and buildings situated at Tai Lam in the New Territories and hitherto know as Tai Lam Addiction Treatment Centre) has been set apart for the purposes of a prison, a finding of guilt was inevitable in the absence of any defence that was raised. The appellant, however, merely submitted that because the prosecuting officer had not negatived the possibility that he could have collected the articles from the garage in the course of walking from the main gate of the prison to the office, he should be found not guilty.

12. If the appellant had in fact collected the money from the garage and had wished to advance this by way of defence it was incumbent on him to say so, and not merely to suggest that it was a possibility. But even if he had claimed that he had collected the money from toe garage and had asserted that he had genuinely thought it permissible to carry it into the superintendent's office, such explanation, if believed, would at most have been a mitigatory factor.

13. Mr Fenton further submitted that the transcript of the proceedings does not disclose any record of whether the appellant was informed that he had a right to be represented and to give evidence on his own behalt. Mr Fenton boldly asserted, without reference to any authority, that the appellant was entitled to have legal representation at the hearing. We note nowever that rule 246 of the Prison Rules, which relates to the rights of any officer or person charged at a hearing, does not confer any right of representation.

14. In Fraser v. Mudge [1975]1 WLR 1132, a case concerning the hearing of charges of breaches of prison discipline against a prisoner, Lord Denning MR said at p.1133:

"Mr Sedley has referred us to Pett v Greyhound Racing Association Ltd [1969]1 Q.B. 125, where a charge was made before the Greyhound Racing Association that dogs had been doped. We indicated that it night well be proper that a legal representation should be allowed. But it seems to me that disciplinary cases fall into a very different category. We all know that, when a Man is brought up before his commanding officer for a breach of discipline, whether in tile armed forces or in ships at sea, it never has been the practice to allow legal representation."

Roskill L.J. (as he then was) had this to say at p.1134:

"The argument of Mr. Sedley, as I follow it, really involves that justice cannot be done or cannot at least be seem to be done by the defendants, the visitors, in this case unless there is legal representation of the plaintiff. I wish to make it plain that I do not subscribe to the view that in every type of case, irrespective of the nature or jurisdiction of the body in question, justice can neither be done nor be seen to be bone without legal representation of the party or parties appearing before that body. Such a proposition to my mind is untenable. There are many bodies before which a party or parties can be required to appear but who can do justice and can be seen to do justice without the party against whom complaint is made being legally represented. Further, as Lord Denning M.R. has said, if the argument in relation to rule 49(2) of the Prison Rules 1964 were well founded, it would equally apply to complaints heard by the governor to which the same language applies, a proposition which I think is also untenable. One looks to see what are the broad principles underlying these rules. They are to main (sic) discipline in prison by proper, swift and speedy decisions, whether by tile governor or the visitors; and it seems to me that the requirements of natural justice do not make it necessary that a person against whom disciplinary proceedings are pending should as of right be entitled to be represented by solicitors or counsel or both."

15. We do not think that in this connexion any valid distinction can be brawn between disciplinary proceedings against prisoners and those against prison officers. Moreover, the appellant did hot claim or seek to exercise any supposed right of representation. Indeed in an affidavit filed pursuant to RSC O53 r3(2), in which he set forth his complaints, he made no reference to having had any desire to be represented or that he would nave been represented if given tile, choice.

16. As to the presentation of his defence, the appellant called and examined one witness, gave evidence and made submissions to the Adjudicating Officer. In our view, therefore, there is ho merit in this contention.

17. For these reasons we are satisfied that tile hearing was properly conducted and that Jones J. was right in ref using to quash the finding of guilt on the second charge. We therefore dismissed the appeal with costs to the respondent.

Representation:

Mr. J.G. Fenton instructed by M/S C.L. Chow & Tsui for applicant

Mr. Robert Andrews for Crown Solicitor/respondent