Brian Alfred Hall v. Commissioner of Correctional Services

HCAL 161/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 161 OF 2012

____________

____________

_______________

J U D G M E N T
_______________

1.On 26 April 2013 I granted leave to Mr Hall (“Applicant”) to apply for judicial review (“Leave Decision”) of the decisions made in prison disciplinary proceedings issued against him. The relevant decisions were made between 27 July 2012 and 14 September 2012. The background and facts of the case are set out in my Leave Decision.

2.There are in fact 4 sets of disciplinary proceedings (“Proceedings”) which are affected by the Leave Decision.  They were commenced between 2009 and 2012, for offences against prison discipline under rule 61 of the Prison Rules (“Rules”) made pursuant to the Prison Ordinance.  The offences charged were in respect of the Applicant’s use of abusive words, refusal to work, possession of an unauthorized article (a blue pen instead of a black pen) and disobedience of an order.  The penalty imposed ranged from loss of remission (a total of 41 days for the 4 offences), to forfeiture of privileges, separate confinement and deprivation of earnings.  In one set of such Proceedings (“328/2009”), the loss of remission penalty was set aside on appeal under the Prison Rules. 

3.After the Leave Decision, the parties were engaged in negotiations to settle the matter.  The Applicant’s stance is that there should be an order of certiorari in respect of the Proceedings, which are unlawful, since the Applicant was denied legal representation and the right to a fair hearing in the determination of a criminal charge against him, in breach of both Articles 10 and 11 of the Hong Kong Bill of Rights (“HKBOR”).

4.As early as 30 July 2013, the Commissioner of Correctional Services (“Respondent”) had indicated that it was prepared to agree to the orders made in the Proceedings to be quashed.  This was on the basis that the Applicant was not informed of his right to legal representation in the Proceedings, although the Respondent does not accept that such right was absolute.  The parties are now in agreement that an order of certiorari should be made by the Court in respect of the decisions and orders made in the Proceedings, but the Respondent seeks an order that the Proceedings should be remitted for a re-trial or a fresh hearing, to which the Applicant does not agree.  If there should be a retrial, or fresh hearing, the Applicant seeks a declaration from the court that the Applicant is entitled to legal representation in such Proceedings. Different formulations of the declaration have been submitted, in the Form 86 itself, and as revised by Leading Counsel at the hearing.

5.The Respondent does not dispute that the Applicant was not advised of his right to legal representation in the Proceedings.  On his part, the Applicant claims that the Respondent had a blanket policy of prohibition against legal representation for prisoners accused of disciplinary offences, which the Respondent denies.  The Respondent highlights that in respect of 2 of the 4 sets of Proceedings, the Applicant had not even made a request for legal representation.  Whether or not the Applicant had asked for legal representation, all the disciplinary offences of which the Applicant was charged were capable, under rule 63 of the Rules, of giving rise to a penalty or punishment in the form of forfeiture of remission not exceeding one month.

6.In Wong Tak Wai v Commissioner of Correctional Services [2010] 4 HKLRD 409, the Court of Appeal held that prison disciplinary proceedings in which the prisoner was given a total loss of remission of 98 days were proceedings which involved “the determination of any criminal charge” under Article 10 of HKBOR.  Kwan JA explained in paragraphs 87 and 88 of her judgment:

“For the purpose of determining whether there is a “criminal charge” within the meaning of art 10, the Hong Kong courts have applied the decisions of the European Court of Human Rights and the English decisions relating to art 6 (1) of the ECHR.  The 3 criteria are: (a) the classification of the offence under domestic law; (b) the nature of the offence; and (c) the nature and severity of the potential sanction.  In respect of (a), the classification of the proceedings under domestic law is no more than a starting point, otherwise a state would be at liberty to avoid the application of the article by transferring the decision in relation to what is in essence a criminal offence to administrative authorities.  Thus, in the present context, the classification of an offence as disciplinary rather than criminal is not decisive to exclude the operation of art 6 (1).  As for the criteria in (b) and (c), they carry substantially greater weight than (a), and (c) is the most important.

The 3 criteria are alternative and not necessarily cumulative.  In respect of the proceedings here, it is clear that the criteria in (a) and (b) are not met, as the offences are classified as disciplinary under domestic law and, although misconduct by a prisoner may take different forms, the misconduct complained of against the applicant - the possession of unauthorized articles and the use of abusive words - are not criminal in nature.  The only issue is whether the criterion in (c) is satisfied, as the “criminal” nature of the alleged “offence” could, in principle, be determined solely on the basis of the nature and severity of the potential sanction.”

7.Counsel for the Respondent argued that not every prison disciplinary decision will necessarily involve a “determination of a criminal charge” within the meaning of Article 11.  He emphasized that the finding of Kwan JA in Wong Tak Wai was premised not only on the loss of remission as a form of punishment which was imposed against the prisoner, but that the total loss of remission of 98 days in the case of Wong Tak Wai was not regarded by Kwan JA as sufficiently unimportant, inconsequential or not appreciably detrimental. 

8.In her judgment, Kwan JA referred to Engel v The Netherlands (No 1) (1979-80) 1 EHRR 647:

“In Engel v The Netherlands (No 1), the European Court observed that in a society subscribing to the rule of law, they belong to the “criminal” sphere deprivations of liberty liable to be imposed as a punishment, except those which by their nature, duration or manner of execution cannot be appreciably detrimental.  Given the deprivation of liberty, there is a presumption that the offence in issue is criminal within the meaning of art 6 of the ECHR, and this presumption could be rebutted “entirely exceptionally” and only if those deprivations of liberty could not be considered “appreciably detrimental” given their nature, duration or manner of execution.”

9.At paragraph 99 of Kwan JA’s judgment, Her Ladyship then continued:

“Looking at the realities of the situation, I am inclined to think forfeiture of remission imposed as punishment does constitute deprivation of liberty. It is immaterial whether this is, strictly speaking, a fresh deprivation of liberty, in the sense that it does not add anything to the original term of imprisonment. What matters is the effect of the forfeiture, which is to cause the detention to continue beyond the period corresponding to the legitimate expectation of release before the end of the term of imprisonment, applying the standard rules in calculating the period of remission. In the 5 cases involving the applicant, he was given a total loss of remission of 98 days. This could not be regarded as sufficiently unimportant or inconsequential or not appreciably detrimental so as to displace the presumed criminal nature of the charges against him.”

10.In the present case, the Proceedings resulted in a total loss of remission of 41 days for the Applicant, the effect of which is to cause the Applicant’s detention to continue and which constitutes deprivation of his liberty for 41 days.  In my view, to be deprived of one day of liberty is deprivation of liberty, which deprivation cannot be dismissed as either inconsequential or not detrimental.  The penalty of 6 days loss of remission was set aside on appeal in 328/2009, but the Applicant’s loss of remission, of 35 days in total, cannot be regarded as “sufficiently unimportant or inconsequential or not appreciably detrimental”, and I am satisfied that these Proceedings constitute a “criminal charge” within the meaning of Art 10 of HKBOR. 

11.Not having been informed of the right to legal assistance and representation, and not having been given the chance to seek legal representation when facing a criminal charge which may result in a penalty of loss of remission and deprivation of liberty, the Proceedings are incompatible with Art 11, which sets out the minimum guarantees of (inter alia) the right to have legal assistance.  The charge against the Applicant does not cease to be criminal in nature by reason of the fact that no penalty involving loss of remission was actually imposed at the end.   The nature of the Proceedings is determined by reference to the nature and severity of the potential sanction that can be imposed.   

12.I will make the order of certiorari to quash the decisions and orders made in the Proceedings.  With the orders quashed, the penalties have no effect and I am not persuaded that there is reason for a retrial for the purpose of determining or clarifying the validity of the orders made and quashed. 

13.As to whether an order should be made to remit the Proceedings for retrial, it is pertinent that the matters to which the Proceedings relate date back to 2009, 2011 and 2012.  It is the Respondent who seeks a retrial, but apart from Counsel’s indications from the bar table that the prison officers will be available at any re-hearing, there is no evidence filed before the court as to whether there are other relevant witnesses to the alleged offences, and whether they will be available to give evidence, if required by the Applicant.  Bearing in mind the delay from the time of the alleged offences, the fact that the Applicant is still to face 48 other charges in disciplinary proceedings, and that the Applicant has already been subjected to disciplinary proceedings in which he has given evidence without the benefit of legal representation, I am not satisfied that the Applicant will not be prejudiced by a rehearing (even a rehearing before another prison officer, who will not be provided with the evidence adduced by the Applicant in the Proceedings).  The Applicant has already served the other penalties imposed in the Proceedings, by way of forfeiture of privileges, separate confinement and deduction of earnings, in respect of which his Leading Counsel has confirmed he will not pursue any further remedy.  In all these circumstances, I am not satisfied that the interests of justice require an order in this case that the Proceedings should be remitted for rehearing.

14.Mr McCoy’s primary submission is that the Applicant will not press for a declaration if the Proceedings are not remitted. On the Respondent’s part, Mr Pao has referred to changes in practice and policy introduced by the Respondent after 2013, whereby prisoners are now informed of their right to apply for legal representation and of the circumstances which would be taken into account when such a request is considered.  Mr Pao argued that any declaratory relief may have an impact upon the legality of the present practice, and the court should be reluctant in these circumstances to grant declaratory relief framed generally, and without the benefit of a full set of facts.

15.I am not satisfied on the evidence that there is a blanket policy of prohibition against legal representation for prisoners, and will refrain from making the declaration originally sought in Form 86 (that such blanket policy is unlawful).  As for the revised version of the declaration submitted by Leading Counsel at the end of the hearing, I consider that the justice of the case is sufficiently served by an order of certiorari to quash the disciplinary decisions.  A declaration in general terms will not be necessary when the judgment of the Court speaks for itself. 

16.The parties are directed to file written submissions on costs (restricted to not more than 2 pages) within 14 days, in the absence of agreement on the costs order to be made.

Mr Gerard McCoy SC and Mr Timothy Parker, instructed by Tso Au Yim & Yeung (assigned by Director of Legal Aid), for the applicant

Mr Jin Pao, instructed by the Department of Justice, for the respondent