Case Detail

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

____________

BETWEEN
	BRIAN ALFRED HALL also known as BRAIN ALFRED HALL	Applicant
	and
	COMMISSIONER OF CORRECTIONAL SERVICES	Respondent

____________

Before: Hon Mimmie Chan J in Court

Date of Hearing: 26 March 2015

Date of Judgment: 12 May 2015

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J U D G M E N T
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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.

	(Mimmie Chan)
	Judge of the Court of First Instance
	High Court

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

HCMP 1201/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1201 OF 2008

____________

BETWEEN
	BRIAN ALFRED HALL	Applicant
and
	SECRETARY FOR JUSTICE	Putative Respondent

AND

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

____________

BETWEEN
	BRIAN ALFRED HALL, also known as BRAIN ALFRED HALL	Intending Applicant
	and
	COMMISSIONER OF CORRECTIONAL SERVICES	Putative Respondent

____________

Before: Hon Mimmie Chan J in Chambers

Date of Hearing: 1 March 2013

Dates of Filing Further Submissions: 21 March and 5 April 2013

Date of Handing Down Decision: 26 April 2013

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D E C I S I O N

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Introduction

1. Under section 27 (1) of the High Court Ordinance (“Ordinance”), the court may make an order that no legal proceedings shall without the leave of the court be instituted by the person against whom the order is made. The court may not make such an order unless it is satisfied that the person against whom the order is to be made has habitually and consistently and without any reasonable ground instituted vexatious legal proceedings.

2. On 2 December 2008, the Applicant (“Hall”) was declared by Hon Yam J to be a vexatious litigant within the meaning of section 27 of the Ordinance. This was in view of Hall’s history of having instituted more than 100 sets of legal proceedings between 2002 and 2008 against a wide array of public officers and bodies. By his judgment dated 23 January 2009, Yam J further restricted Hall from making more than one application to the court in each period of 3 months, which period was extended to 6 months by Yam J on 11 May 2011. Between December 2008 and May 2011, Hall had made 19 applications for leave to commence legal proceedings, which were all dismissed.

3. Hall is currently an inmate at Stanley Prison, serving a number of sentences: (1) of 18 years imprisonment for trafficking in dangerous drugs, for which he was sentenced on 23 June 1998; (2) of 2 months and 14 days imprisonment for common assault and criminal damage, for which he was sentenced on 2 April 2009; (3) of 7 days imprisonment for non-payment of a fine, for which he was sentenced on 6 April 2009; and (4) of 4 years imprisonment for perverting the course of justice and using copies of a false instrument, for which she was sentenced on 6 January 2012 (which sentence the Court of Appeal increased to 6 years 9 months on 6 March 2013).

4. On 26 October 2012, Hall issued notice of his application under section 27A of the Ordinance for leave to institute proceedings (“section 27 Application”). The orders which he sought were for leave to apply for judicial review and, in so far as is necessary, leave to commence habeas corpus proceedings.

5. Under section 27A(1) of the Ordinance, leave for the institution of “any legal proceedings” by a person who is the subject of an order in force under section 27 shall not be given unless the court is satisfied that “the proceedings are not an abuse of the process of the court in question, and there are reasonable grounds for the proceedings”. An applicant must show that there are reasonable grounds for bringing a claim, and the court has to consider whether or not the claim has a real prospect of success, taking into account all of the information before it, including evidence as to conduct of the applicant for leave, before and after his being categorized as a vexatious litigant (para 32A/3/1 Hong Kong Civil Procedure). The whole purpose of section 27 is to provide a filter for claims which a vexatious litigant might wish to bring (Ewing v News International Ltd [2008] EWHC 1390, based on section 42 of English Supreme Court Act 1981). In addition to showing that there are reasonable grounds for the proceedings, the applicant for leave must further establish, as required under section 27A(1), that the proceedings in question are not an abuse of the process of the court.

6. At the heart of Hall’s section 27 Application is his challenge of 74 sets of disciplinary proceedings instituted against him whilst in prison, as a result of which his entitlement to remission of sentence was forfeited. In his Form 86 filed with the section 27 Application, Hall claims that there are further disciplinary proceedings in respect of which he had not been provided with the relevant papers at the time of the filing of the section 27 Application in October 2012. On Hall’s case, the total remission purportedly forfeited through the disciplinary convictions was 891 days of remission, equivalent to just under 2 1/2 years additional imprisonment imposed by the officers of the Correctional Services Department (“CSD”).

7. Hall contended that the disciplinary proceedings against him were unlawful because:

(1) a blanket policy of refusing legal advice and representation was applied, without any basis in law;
(2) the adjudicators in the disciplinary proceedings failed to apply the correct standard of proof of beyond reasonable doubt;
(3) the adjudicators were biased;
(4) the disciplinary proceedings were carried on concurrency with certain criminal proceedings, thus violating the principle of sub judice, creating procedural unfairness, and trampling on Hall’s right against self-incrimination.

Habeas corpus

8. Hall’s claim was that but for the unlawful forfeiture of remission resulting from the disciplinary proceedings, he would have been released by 28 June 2012, and that there was no basis for Hall’s detention thereafter. Hence, Hall claimed that he was entitled to apply for habeas corpus, and should be given leave to make such application. However, due to the judgment of the Court of Appeal in CACC 18/2012 and CAAR 1/2012 which was handed down on 6 March 2013 (“Judgment”), whereby the sentence for the offences in question was increased from 4 years to 6 years 9 months, Hall’s term of imprisonment (even assuming a full one-third remission) will run until 27 April 2014. Hall therefore concedes that his habeas corpus application, as originally intended, is no longer arguable by virtue of the Judgment.

9. Whilst accepting that the habeas corpus application can no longer be argued by reason of the increase in sentence, Counsel for Hall ask that the habeas corpus application be adjourned, as Hall is considering an appeal against the Judgment, and that in the event of his appeal being successful, his habeas corpus application might become viable again, and he would need leave to pursue it under section 27A of the Ordinance.

10. There is no justification to adjourn the application for leave to commence the habeas corpus proceedings, simply on the basis that Hall may appeal against the Judgment. It is clear that Hall is now lawfully detained pursuant to a valid criminal conviction imposing a sentence of imprisonment which has not been fully served. It cannot be argued that Hall is being unlawfully detained, and the habeas corpus application is bound to fail. Accordingly, the section 27 Application to commence habeas corpus proceedings is dismissed.

Judicial Review

11. It was argued for Hall that he has an arguable case for judicial review, in seeking:

(1) all the prison disciplinary convictions made against him from 26 January 1999 (“Relevant Decisions”) to be quashed; and
(2) declarations that “the policy concerning legal representation in prison disciplinary proceedings and the policy by which adjudicators judge prisoners they previously convicted or disbelieved in earlier proceedings” are unlawful.

12. Hall recognizes that the application for leave to apply for judicial review in respect of the Relevant Decisions dating back to June 1999 is out of time. It was argued that it would nevertheless be a wrong exercise of discretion if the court was to reject Hall’s application on grounds of delay, bearing in mind the fact that it raises important questions of constitutional law and breach of the provisions of Articles 10 and 11 of the Hong Kong Bill of Rights set out in section 8 of the Hong Kong Bill of Rights Ordinance.

13. Article 10 of the Bill of Rights provides for equality before the courts and the right to a fair and public hearing. Under Article 10:

“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. …”

14. Article 11 provides for the rights of persons charged with or convicted of a criminal offence. Article 11 (2) provides as follows:

“In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality - …
(b) to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(d) to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it. …”

Wrong standard of proof ground

15. According to Hall, the adjudicators had failed to apply the correct standard proof in the disciplinary proceedings against him. Relying on the decision of the Court of Appeal in Wong Tak Wai v Commissioner of Correctional Services [2010] 4 HKLRD 409, it was argued that on the basis of the nature and severity of the sanctions that may be imposed in prison disciplinary proceedings, namely forfeiture of remission, such proceedings involved a determination of a criminal charge within the meaning of Article 10, and that the standard of proof should be beyond reasonable doubt.

16. In arguing that leave should not be granted to Hall to challenge the legality of the Relevant Decisions on the ground that the wrong standard of proof had been applied, Mr Pao for the Putative Respondent highlights the fact that prior to the CFI decision in Wong Tak Wai, the standard of the balance of probabilities had been used in disciplinary proceedings, and that Wong Tak Wai had effectively changed the law by applying the criminal standard of proof to prison disciplinary proceedings. Counsel relies on HKSAR v Hung Chan Wa (2006) 9 HKCFAR 614, to argue that extension of time will not be granted by the court solely on the ground that a previous understanding of the law is incorrect.

17. In his judgment in HKSAR v Hung Chan Wa (at paragraphs 24 - 25), Li CJ stated :

“In overseas jurisdictions, the courts in dealing with applications for extension of time for appeal against conviction have consistently applied the principle that time should not be extended for appeal only on the ground that an authoritative judgment subsequent to the conviction has held the previous understanding of the law to be incorrect. …In adopting this principle, the courts recognize the practical necessity for finality in the criminal process. …However, overseas jurisprudence does not exclude the possibility that there could be exceptional circumstances in a particular case which would justify the court in extending time for appeal against conviction on the ground that a subsequent judgment has held the previous understanding of the law to be incorrect. Especially as the Court does not have before it an appeal raising a question relating to extension of time, it is not feasible for the Court on this occasion to attempt to define what constitutes exceptional circumstances except to say that the circumstances must be so exceptional that the occasions when they would be held to exist would be very rare.”

18. In Li Siu Hing v Commissioner of Correctional Services, CACV 277/2009, 19 March 2010, Tang VP (as he then was) affirmed a refusal to grant leave to apply for judicial review in respect of a serving prisoner on the basis, inter alia, that a higher standard of proof ought to have been applied in respect of disciplinary convictions. Mr Pao relies on the following parts of the judgment of Tang VP (at paragraphs 9-10):

“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 excised 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.
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 favorably. In such cases the practical necessity of finality applies with greater force.
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 the 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 favor 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.”

19. Wong Tak Wai was a decision handed down by the Court of First Instance in August 2009, which was more than 3 years prior to Hall’s section 27 Application in October 2012, by which Hall sought to challenge the disciplinary decisions. The Court of Appeal decision was handed down in July 2010. The first of the disciplinary decisions challenged by Hall was dated 26 January 1999. Others were dated March and October 1999; March and September 2000; January and February 2002; January and December 2003; January, June, October and November 2004; January, April, July, September and October 2005; March, April and July 2006; January, February, June, August, September and December 2007; January, April, May, July and December 2008; April and June 2009; November 2010; January, February, March, May, June, September, November and December 2011.

20. There was a delay of 3 years 2 months from August 2009 to October 2012 when the section 27 Application was made. I can find no exceptional circumstances in this case which justify granting time to Hall to apply for judicial review in respect of these decisions made between 1999 and 2011.

21. Leading counsel referred to a letter dated 29 April 2009 from Hall to Yam J, highlighting the fact that in that letter, Hall had referred to an intended application for leave to apply for judicial review, and that the grounds he had specified included the grounds of wrong standard of proof and of bias in the disciplinary proceedings. It was argued that any delay should be excused in view of the fact that Hall was only able to make one application for leave to commence proceedings in every 6 months, that he had referred to the intended judicial review in his letter of 29 April 2009, and that Hall had been directed by Yam J in July 2009 to pursue the matter by way of misfeasance instead of judicial review.

22. However, the full correspondence to which Mr Pao has referred demonstrates clearly that it was in fact Hall’s own decision not to pursue the judicial review proceedings to which he had alluded in April 2009. His letter of 29 April 2009 addressed to Hon Yam J was expressed to be a “request for advice/direction”. In the letter, Hall stated that he wished “to apply for leave to judicially review approximately 60 disciplinary decisions against (him) out of time”, and asked for advice as to “how to consolidate” his 60 disciplinary convictions to be “heard together”, and how the application could be heard and completed before 14 September 2009. On 26 May 2009, the clerk to Yam J referred Hall’s letter to the Department of Justice, with the judge’s direction for a response from the Department of Justice. The letter was copied to Hall.

23. On 1 June 2009, Hall wrote to the Department of Justice, with reference to the letter of 26 May 2009, and stated that he “had never applied for leave to commence judicial review out of time”. He stated in the letter that he had been assigned legal aid, and that he would soon be making an application to the court as his lawyers thought fit. On 9 June 2009, the Department of Justice wrote to the clerk to Yam J, with copy to Hall (and to the lawyers assigned to him by then), referring to Hall’s letter of 1 June 2009 and stating that they would not be making any submissions to the court. Consequently, on 10 June 2009, the clerk to Yam J wrote to the Department of Justice, Hall and his lawyers, confirming that no further action was required from the Department of Justice.

24. On 17 June 2009, Hall (acting under legal advice) applied for leave, under section 27A of the Ordinance, “to institute proceedings for misfeasance in public office” against (inter alia) the Commissioner for Correctional Services. It was in these circumstances that the clerk to Yam J wrote to the Department of Justice and to Hall and his legal advisers on 14 July 2009, informing the parties of His Lordship’s direction with regard to the intended proceedings for misfeasance in public office.

25. The misfeasance proceedings were subsequently stayed in November 2009, pending the trial of DCCC 1431/2009 against Hall for perverting the course of justice. Hall claims that it was not possible for him to revive the proceedings until the conclusion of DCCC 1431/2009 or the stay of proceedings was otherwise lifted. Upon his conviction in DCCC 1431/2009 in January 2012, Hall sought to reactivate the application for leave to commence proceedings, and was directed by Lam J (as he then was) in May 2012 to make a new application for leave, thus prompting the section 27 Application in October 2012.

26. It is clear from the history of the case that Hall had, under legal advice, decided for his own reasons to seek leave in 2009 to pursue misfeasance proceedings, and not to pursue judicial review in respect of the disciplinary decisions. I fail to see how the events between April 2009 (when Hall first wrote to Yam J) and October 2012 (when he made the section 27 Application to commence judicial review proceedings) can constitute exceptional circumstances, to justify leave being granted to Hall to pursue the judicial review proceedings notwithstanding the long period of delay.

27. There are further decisions made in the disciplinary proceedings, in respect of which Hall claims (in Form 86 filed with the section 27 Application) that he had not been provided with the relevant papers at the time of the filing of the section 27 Application in October 2012 (“Further Decisions”). These Further Decisions were made in January, March, April, June, July and August 2012 (according to the Supplemental List filed by the parties in April 2013). However, in respect of these Further Decisions, the standard of proof applied was the correct one, beyond reasonable doubt. Accordingly, Hall would have no arguable case for judicial review in respect of the Further Decisions made in 2012.

28. I consider that Hall has no arguable case for judicial review on the ground of the standard of proof. Leave to commence judicial review proceedings on this ground is accordingly refused.

Bar to legal representation ground

29. Hall claims that the adjudicators in the disciplinary proceedings had applied a blanket policy of not allowing legal representation to him. Counsel for Hall rely on Lam Siu Po v Commissioner of Police (2009) 12 HKCFAR 237, in which the Court of Final Appeal held that although there is no automatic right to legal representation in proceedings to which Article 10 applies in the context of the determination of a person’s rights and obligations in a suit at law, a blanket bar on legal representation will be incompatible with Article 10, as it removes the discretion of the tribunal to allow legal representation when fairness requires it.

30. In Lam Siu Po, the Court of Final Appeal considered that disciplinary actions concerning civil servants and the professions determine “rights or obligations in a suit at law” within the provisions of Article 10, because such disciplinary proceedings “have a direct and highly adverse impact on the appellant’s civil rights and obligations”.

31. Counsel for Hall also rely on Wong Tak Wai v Commissioner of Correctional Services [2010] 4 HKLRD 409, at p 441, where, in the context of prison disciplinary proceedings, Kwan JA held, as follows:

“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.”

32. In Wong Tak Wai, the Court of Appeal considered that the combined penalty involved for the appellant in the case, of a loss of 98 days’ remission, rendered the disciplinary proceedings in question determinative of a criminal charge. Counsel for Hall hence argue that the disciplinary proceedings against Hall, all of which could result in a loss of remission as a penalty, involve the determination of a criminal charge, and that both Articles 10 and 11 apply.

33. Superintendent Siu Chi Wing (“Siu”), who had served as an adjudicator in many of the disciplinary proceedings against Hall, gave evidence in DCCC 1431/2009. Hall claims that Siu’s evidence confirmed that lawyers were not permitted to participate in the disciplinary proceedings, and that such prohibition was not prescribed by law. According to Hall, the adjudicators had indiscriminately refused legal representation to him in each case when Hall was subjected to disciplinary proceedings, and this suggests either that there was a blanket policy of denying legal representation, or that the adjudicators had never exercised any discretion at all when they determined whether legal representation should be granted.

34. On this basis, it is claimed that the decisions of the disciplinary adjudicators to deny legal representation to Hall were unlawful and in breach of Hall’s right to legal representation under Article 11, and to a fair hearing under Article 10. Hall relies on Lam Siu Po, in which the Court held that the Police (Discipline) Regulations which barred legal representation before the disciplinary tribunal was disproportionate, as it prevented the tribunal from complying with its duty to ensure a fair hearing under Article 10 and the common law.

35. Counsel for Hall also refers to section 9 of the Hong Kong Bill of Rights Ordinance , which provides that “persons lawfully detained in penal establishments of whatever character are subject to such restrictions as may from time to time be authorized by law for the preservation of service and custodial discipline” (emphasis added). In the absence of any restriction imposed by legislation to Hall’s right to legal representation, counsel submitted that the decisions made by the disciplinary tribunal, to deny legal representation to Hall, are all unlawful.

36. The same issue of delay arises in relation to the Relevant Decisions sought to be challenged on the ground of bar to legal representation. Under Order 53 rule 4 (1) of RHC, an application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose, unless the Court considers that there is good reason for extending the period within which the application shall be made.

37. In Lo Siu Lan v Hong Kong Housing Authority CACV 378 of 2004, 17 December 2004, Stock JA highlighted the following passage in the judgment of Lord Diplock in O’Reilly v Mackman [1983] 2 AC 237, 280-281 :

“The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer than is absolutely necessary in fairness to the person affected by the decision.”

38. In his judgment handed down on 30 June 2006 in HCAL 5/2006, which was an earlier application made by Hall for leave to apply for judicial review, Hartman J (as he then was) had already pointed out that in judicial review proceedings, “delay is a serious issue, one which puts an applicant in peril”. His Lordship also referred to R v Aston University Senate ex parte Roffey [1969] 2 QB 538 and the judgment of Donaldson J ( as he then was ) at p 555:

“ The prerogative remedies are exceptional in their nature and should not be made available to those who sleep upon their rights.”

39. It is recognized that in considering whether there is delay, there must be due regard to context, to the time scales inherent in the particular decision making process and in its consequences.

40. Hall claims that it was only in January 2011 that he discovered, in the course of DCCC 1431/2009, that there was an unlawful blanket policy against legal representation in the disciplinary proceedings. Even if this was true, he did not make the section 27 Application until October 2012. There was neither need nor justification to await the outcome of DCCC 1431/2009 before seeking leave to institute judicial review proceedings for alleged breach of Articles 10 and 11. The charges in DCCC 1431/2009 are totally unrelated to the judicial review proceedings.

41. In all the circumstances of this case, I can see no good reason for extending the time for Hall to apply for judicial review, after the long period of delay from January 2011. Even taking into consideration the fact that DCCC 1431/2009 only concluded on 12 January 2012, there was still delay from January 2012 to October 2012 when the section 27 Application was made.

42. The Further Decisions include decisions made between 27 July 2012 and 14 September 2012 (Ref nos 80 to 83 of the Supplemental List of Disciplinary Decisions). These fall within the 3 month period of the section 27 Application, and I will grant leave to Hall to apply for judicial review of these decisions, on the ground that it is arguable that Hall was deprived of legal representation in the disciplinary proceedings concerned, and that the proceedings were not conducted fairly, such that there was, arguably, a breach of Articles 10 and/or 11.

The bias ground

43. Hall argues that Siu was actually biased against him in one particular proceeding in which Siu was involved on the disciplinary panel. As proof of Siu’s actual bias, Hall relies on the transcript of Siu’s evidence in the trial of DCCC 1431/2009.

44. Hall also complains that adjudicators who had convicted him of disciplinary offences in the past had continued to sit on panels in later proceedings, notwithstanding that they had disbelieved Hall and found him an incredible witness in earlier proceedings. Hall claims that these adjudicators lacked an impartial and open mind, and should have been automatically disqualified from judging Hall in later disciplinary proceedings, to ensure an impartial and fair trial under Articles 10 and 11. Alternatively, it is claimed that these adjudicators were required, but failed, to give due consideration to the question of their apparent bias.

45. Finally, Hall claims that there was a structural lack of independence in the adjudication system of prison disciplinary proceedings. The prison disciplinary machinery places the senior CSD officer within a prison, who was responsible for maintaining discipline in the prison as well as for supporting his /her junior officers’ frontline work, in the role of adjudicator in relation to charges typically involving the word of one of his /her subordinate officers against that of a prisoner. In Wong Tak Wai, it was argued before the Court that there was no structural independence between those charged with the roles of prosecution and adjudication of prison disciplinary offences. Various officers of the CSD handled the reporting of the disciplinary offence, the drafting and the laying of the charge, the determination of the charge and punishment, and all of them were responsible ultimately to the Commissioner. In the Court of First Instance, Fung J found that this entailed a lack of structural independence, which resulted in a breach of the right to a fair hearing before an independent and impartial tribunal. On appeal, the Court of Appeal unanimously allowed the appeal on this point, although for different reasons.

46. Kwan JA considered, in Wong Tak Wai, that a case of apparent bias was established, but that the determination process as a whole, including appeal to the Commissioner under the Prison Rules and through recourse to judicial review, removed that element of unfairness at the level of hearings conducted by a superintendent. Decisions which did not comply fully with procedural unfairness requirements could be cured, if the person affected had recourse to a further hearing or appeal which itself provided fairness. Her Ladyship considered that the safeguards for a fair adjudication were met and that the process overall was compliant with the requirements for a fair hearing.

47. Cheung JA agreed that any lack of structural independence was fully cured by the prisoner’s access to the court, which was fully independent, through judicial review. However, Cheung JA did not agree that there was apparent bias. He explained this, at paragraph 137 of his judgment:

“A fair-minded and informed observer would not conclude that simply by reason of his position and responsibilities, or by reason of the fact that they all worked in the same prison, the Superintendent would be predisposed to believe or protect his junior officers. Rather, he would proceed on the assumption, absent evidence to the contrary, that the Superintendent would consider that the fair and impartial adjudication of prison disciplinary matters would, in the long run, be conducive to the good and efficient management and control of the prison, to the mutual benefit of his officers and the prisoners alike.”

48. Counsel for Hall accepts that this court is bound by the Court of Appeal decision in Wong Tak Wai, on the question of the structural independence of the adjudication of prison disciplinary offences. It follows that I cannot find Hall’s intended judicial review of the Relevant Decisions to be arguable on the ground of the alleged breach of Articles 10 and 11 for lack of structural independence in the adjudication process.

49. As for the argument of Siu’s actual bias, Hall had appealed to the Commissioner in relation to Siu’s decision. The appeal was dismissed, and there is no evidence or allegation that the appeal decision was biased.

50. Further, in relation to the complaints of actual or apparent bias on the part of Siu and any others of the adjudicating officers, Hall had in 2006 sought to challenge 25 of his past disciplinary convictions by judicial review in HCAL 5/2006. The grounds he argued in HCAL 5/2006 included that the adjudicating officers “were biased because in every case they were judges in their own cause”. The application for leave was refused by Hartman J (as he then was) on 30 June 2006.

51. Under section 27A of the Ordinance, leave for the institution of proceedings shall not be given unless the court is satisfied that the proceedings are not an abuse of the process of the court in question. Having made a blanket application by HCAL 5/2006 to review 25 disciplinary convictions on the general ground of bias, I consider that it is an abuse for Hall to attempt to re-litigate these matters on the same ground of alleged bias. I refuse leave under section 27A.

The parallel proceedings ground

52. It was argued on behalf of Hall that various disciplinary proceedings were taken against him and heard contemporaneously with DCCC 1431/2009, the trial of which commenced on 9 December 2009 and concluded on 12 January 2012. It is claimed that this was in breach of his rights against self-incrimination, that the disciplinary proceedings sought to try the very issue then before the criminal court in breach of the sub judice principle, and that the disciplinary proceedings were in all the circumstances unfair.

53. On behalf of the Putative Respondent, Mr Pao argued that the charges in the disciplinary proceedings were all unrelated to the charges in DCCC 1431/2009, such that there was no justification to stay these proceedings pending the criminal trial.

54. Bearing in mind that the Relevant Decisions in question to which the disciplinary proceedings relate were made between May 2011 and November 2011, I consider that there is undue delay in making the section 27 Application. I can see no good reason in this case to extend time and to grant leave to Hall to make the judicial review application.

Conclusion

55. For the above reasons, I only grant leave to Hall to institute judicial review proceedings in relation to the decisions referred to in paragraph 42 above.

	(Mimmie Chan)
	Judge of the Court of First Instance
	High Court

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

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

BRIAN ALFRED HALL v. COMMISSIONER OF CORRECTIONAL SERVICES

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