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Hksar v Fu Man Kit

Judgment Cited authorities 16 Cited in Precedent Map Related
Vincent
Judgment Date30 September 2021
Neutral Citation[2021] HKCFA 34
Judgement NumberFACC4/2021
Citation(2021) 24 HKCFAR 253
Year2021
Subject MatterFinal Appeal (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FACC4/2021 HKSAR v. FU MAN KIT (符文傑）

FACC No. 4 of 2021

[2021] HKCFA 34

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2021 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 458 OF 2019)

____________________

BETWEEN
HKSAR Respondent
and
FU MAN KIT (符文傑） Appellant

____________________

Before: Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Lam PJ and Lord Reed of Allermuir NPJ
Date of Hearing: 2 September 2021
Date of Judgment: 30 September 2021

____________________

JUDGMENT

____________________

Chief Justice Cheung:

1. I agree with the joint judgment of Mr Justice Ribeiro and Mr Justice Lam PJJ.

Mr Justice Ribeiro and Mr Justice Lam PJJ:

2. In this appeal it falls to the Court to consider the scope of the doctrine of double jeopardy, both at common law and as reflected in Article 11(6) of the Bill of Rights (“BOR 11(6)”), in the context of penalties imposed on the appellant in disciplinary proceedings under the Prison Rules[1] and in a subsequent criminal prosecution arising out of the same incident.

A. The facts

3. The appellant was being remanded in custody at the Lai Chi Kok Reception Centre[2] when he and another inmate (“Kwok”) assaulted a third prisoner (“Chung”) on 10 April 2017. The evidence was that Chung was taking a nap on a bench in an activity room of the Centre that morning when someone kicked the bench. Chung stood up and found Kwok and the appellant in front of him. Kwok suddenly punched Chung on the head, causing him to fall to the ground. This was followed by further assaults by Kwok and the appellant on Chung. The three of them engaged in a fight until a Correctional Services officer separated them. Chung was sent to hospital and his medical report recorded findings of injuries sustained by him on his face, cheek, forehead, forearm and knee.

4. The prison authorities decided to take disciplinary action against all three. At the same time, at Chung’s request, a report was made to the police. The police duly visited Chung at the prison on 19 April and a statement was taken from him on the next day. The police also received his medical report and obtained the CCTV footage regarding the incident.

5. In the meantime, disciplinary hearings took place before the Acting Superintendent of the prison. The three inmates were charged under Rule 61(x) of the Prison Rules which provides that every prisoner shall be guilty of an offence against prison discipline if he fights with any person. The three inmates pleaded guilty to the charge. In mitigation, Chung said he had fought back because the other two inmates had assaulted him.

6. In the exercise of his powers under Rules 62 and 63(1) of the Prison Rules, the Acting Superintendent ordered that the appellant be punished by the forfeiture of remission for 5 days, separate confinement for 21 days and forfeiture of privileges for 21 days. As regards Kwok, the Acting Superintendent ordered forfeiture of remission for 3 days, separate confinement for 14 days and forfeiture of privileges for 14 days.

7. Whilst the Acting Superintendent accepted that Chung had only fought back as he was being assaulted, prison discipline forbade the use of violence. He ordered against Chung forfeiture of remission for 1 day, separate confinement for 7 days and forfeiture of privileges for 7 days.

8. The police arrested Kwok for his involvement in the incident when he was in Stanley Prison on 14 August 2018. By then the appellant had been released. The police could not find him and he was put on police’s wanted list. They managed to locate the appellant on 22 March 2019 and he was then arrested.

9. The appellant and Kwok were charged with the offence of assault occasioning actual bodily harm and were brought before a magistrate. Kwok pleaded guilty to the charge. The appellant pleaded not guilty.

10. The trial took place on 14 August 2019 before the Magistrate, Ms Leung Siu-ling.[3] The appellant, represented by counsel,[4] applied to stay the proceedings on the ground of abuse of process, arguing that the criminal charge and the disciplinary proceedings for which the appellant had already been punished were based on the same or substantially the same facts so that the prosecution contravened the rule against double jeopardy.

11. The Magistrate refused to stay the prosecution essentially on the ground that the relevant double jeopardy doctrine only applied in respect of prior proceedings before a court of competent jurisdiction, which did not include the disciplinary proceedings conducted by the Acting Superintendent. In so holding she relied on the English Court of Appeal’s decision in R v Hogan,[5] rejecting counsel’s submission that that authority had been overruled by R v Robinson.[6] She also held that her conclusion was not affected by the Court of Appeal’s decision in Wong Tak Wai v Commissioner of Correctional Services.[7] Those are decisions to which we shall return. The stay having been refused, since the appellant did not dispute the facts, he was convicted as charged.

12. In passing sentence, the Magistrate took into account the forfeiture of remission that the appellant had been awarded in the disciplinary proceedings. She adopted 21 days’ imprisonment as the starting point and deducted 7 days on account of the forfeited remission and further deducted 4 days on account of the delay in prosecution and the impact on the appellant’s life arising from his having to be re-imprisoned. She accordingly sentenced the appellant to 10 days’ imprisonment.

13. On 11 March 2020, the appellant’s appeal against conviction based on the refusal of a stay was dismissed by Deputy High Court Judge Frankie Yiu[8] who largely upheld the Magistrate’s reasoning. However, the Judge allowed his appeal against sentence and suspended the 10-day imprisonment sentence for one year on the ground that there would be greater disruption to the appellant’s life because the criminal proceedings had not been dealt with when he was serving his earlier prison sentence.

14. The Judge refused to certify a point of law for appeal to this Court, but on 17 March 2021, the Appeal Committee[9] granted leave to appeal certifying the following question as being of the requisite importance:

“Are disciplinary proceedings conducted under the Prison Rules (Cap. 234A), involving punishment by way of forfeiture of remission, ‘criminal proceedings’ by a body of competent jurisdiction such that the rule against double jeopardy applies?”

B. Double jeopardy at common law

B.1 Autrefois acquit and autrefois convict

15. It is well-established that the court has an inherent power to protect its process from being abused.[10] In its criminal jurisdiction, one such abuse which the court guards against is the repetition of charges against an individual after his or her acquittal or even after a conviction which was not followed by a punishment severe enough to satisfy the prosecutor. As Lord Pearce explained:

“It was, no doubt, to meet those two abuses of criminal procedure that the court from its inherent power evolved the pleas of autrefois acquit and autrefois convict. For obvious convenience these were pleas in bar and, as such, fell to be decided before the evidence in the second case was known. They thus tended to look to form rather than to the substance that lay behind it. Where either of these pleas was made out, the defendant was entitled to an acquittal as of right, and no question of discretion or abuse or injustice could arise.”[11]

16. Thus, the focus of the autrefois pleas is on the elements which in law constitute the offences in question and not on the facts or conduct of the accused. Those pleas are only available “in the narrowly defined situation where the elements of the second offence are the same as or included in the original offence”.[12] The appellant rightly accepts that the autrefois doctrine does not avail him in the present case.

B.2 Discretionary stay on grounds of double jeopardy

17. He does rely, however, on the second aspect of double jeopardy at common law which involves the discretionary power of the court, acting in its inherent jurisdiction, to stay proceedings which constitute an abuse of its process. As Bokhary PJ pointed out in Yeung Chun Pong v Secretary for Justice:

“There is a discretionary power to stay a prosecution as an abuse of process where (i) a person faces a second trial arising from the same or substantially the same set of facts as gave rise to an earlier trial (whether in the same jurisdiction or in a competent court in another jurisdiction) and (ii) the prosecutor cannot advance any special or exceptional circumstances to justify the holding of a further trial.”[13]

18. Or as it was put in Ubamaka v Secretary for Security:[14]

“... the Court has power to stay proceedings as an abuse of process if the subsequent charge involves an attempt to re-prosecute a person previously convicted or acquitted on the same or substantially the same facts.”

19. As the power to order a stay is discretionary, it is generally exercised where pursuit of the second set of proceedings would be vexatious, oppressive, unfair, for an improper or ulterior motive or otherwise similarly objectionable.[15]

20. The proposition advanced by the appellant in support of a common law discretionary stay in the present case is that the disciplinary proceedings against the appellant for “fighting” in breach of Prison Rule 61(x) for which he was convicted and punished, constituted the relevant earlier trial and that it was an abuse of process to prosecute him again for assault occasioning actual bodily harm at the second trial...

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