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Hksar v . Wan Thomas And Others

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
Judgment Date24 January 2017
Year2017
Judgement NumberHCMA700/2013
Subject MatterMagistracy Appeal
CourtHigh Court (Hong Kong)
HCMA700A/2013 HKSAR v . WAN THOMAS AND OTHERS

HCMA 700/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO 700 OF 2013

(ON APPEAL FROM KTCC 2097 OF 2013)

_______________

BETWEEN
HKSAR Respondent

and
WAN THOMAS 1st Appellant
GUAN QIAOYONG 2nd Appellant
DENG ZHIHONG 4th Appellant
POON TING-KEI 5th Appellant

_______________

Before : Hon Yeung VP, Hon Poon and Pang JJA in Court
Dates of Written Submissions : 2, 16 & 30 December 2016
Date of Judgment : 24 January 2017

________________________

J U D G M E N T

________________________

Hon Poon JA (giving the Judgment of the Court) :

A. Applications

1. By a judgment handed down on 17 October 2016, we dismissed the 4 appellants’ appeals against their conviction by the Magistrate on 13 September 2013. By two Notices of Motion dated 24 October 2016, they now apply for leave to appeal against our judgment to the Court of Final Appeal under the “great and general importance” limb pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484. The parties are content with a paper disposal of the applications. Pursuant to directions, they have filed their written submissions, which we have duly considered.

2. The appellant raised two questions :

(1) On a proper construction, what is the meaning of “visitors” in the context of the Prison Rules, Cap 234A?

(2) If in the context of Rule 203, “visitors” bears the same meanings under Rule 48 and “friends” as a category of visitors means “personal friends” :

(a) Is Rule 203 compatible with article 6(2)(a) of the Hong Kong Bill of Rights?

(b) Is Rule 203 compatible with article 14 of the Hong Kong Bill of Rights?

B. Discussion

3. The appellants submitted that the two questions of law of great and general important on the proper construction of “friends” of Rule 203 and Rule 48 of the Prison Rules, and in particular the meaning of “friends” in the context of Rule 203 and the constitutionality of Rule 203. The determination of these questions would have a major impact on the unconvicted prisoners’ right to be visited by visitors under Rule 203 and would potentially affect every single Prisoner Awaiting Trial on a daily basis. The constitutionality of Rule 203 is of great and general importance in that it would have an impact on the visitors policy of correctional institutions in Hong Kong.

4. The respondent submitted that no point of law of great and general importance is involved. It is because the potential impact on the population of Prisoners Awaiting Trial is not as major as suggested by the appellants. Prisoners Awaiting Trial are a transient prison population, with a high degree of fluidity. The majority of this population will not be detained for a prolonged period pending trial. And within this population, not...

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