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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 KTMC 2097 OF 2013)
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BETWEEN
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HKSAR |
Respondent |
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and
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WAN THOMAS |
1st Appellant |
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GUAN QIAOYONG |
2nd Appellant |
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DENG ZHIHONG |
4th Appellant |
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POON TING-KEI |
5th Appellant |
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| Before : Hon Yeung VP, Hon Poon and D Pang JJA in Court |
| Date of Hearing : 17 March 2015, 17 & 18 May 2016 |
| Date of Further Written Submissions : 1 & 8 June 2016 |
| Date of Judgment : 17 October 2016 |
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J U D G M E N T
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Hon Poon JA (giving the Judgment of the Court) :
A. INTRODUCTION
1. At the trial below, the appellants together with other defendants[1] were charged with one count of conspiracy to defraud, contrary to common law and section 159C(6) of the Crimes Ordinance, Cap 200 (“the Charge”). The gist of the prosecution case is that the defendants dishonestly misrepresented to CSD officers at the Lai Chi Kok Reception Centre (“LCKRC”) that they were friends of the prisoners whom they intended to visit, when in fact they were not, thereby inducing the CSD officers to allow them to visit the prisoners concerned. The appellants and the third and seventh defendants denied the charge.[2] After trial, Deputy Magistrate Ms Kennis Tai (“the Magistrate”) convicted them as charged on 13 September 2013 and sentenced them to different hours of community service order on 27 September 2013.[3]
2. The appellants appealed against conviction only.[4]
3. As will seen shortly, the appellants’ appeal gives rise to some important issues of law, which principally concern the construction of Rule 48 and Rule 203 of the Prison Rules, Cap 234A,[5] in particular the meaning of “friends” in the context of the Rule 203, and the constitutionality of Rule 203. The determination of these issues may have an impact on the unconvicted prisoners’ right to be visited by visitors under Rule 203 while being remanded in prison awaiting trial. Thus when the matter first came before Pang J (as he then was) on 11 August 2014, with the parties’ consent, he ordered it to be transferred from the Court of Instance to be heard by the Court of Appeal on the ground that it involved major issues of law.
4. At the first hearing before this Court on 17 March 2015, after discussion with the parties, we gave directions for the filing of further evidence on the constitutionality of Rule 203, which was not before the Magistrate. We then adjourned the substantive hearing with 2 days reserved. At the end of the resumed hearing on 18 May 2016, we gave directions for the filing of further written submissions on the construction of the 1954 version of the Prison Rules, a point arising out of oral submissions but not fully developed. We have since received and duly considered the further written submissions.
5. We now hand down our judgment.
B. BRIEF INTRODUCTION TO RULES 48 & 203
6. To put the Charge and the proceedings below in context, it is necessary to give a brief introduction to Rule 48 and Rule 203.
7. Under section 7 of the Prisons Ordinance, Cap 234 (“the Ordinance”), prisoners in Hong Kong are divided into three classes :
(1) prisoners who are sentenced to imprisonment (“Convicted Prisoners”);
(2) prisoners who are committed to prison on remand pending trial (“Unconvicted Prisoners”); and
(3) prisoners who are committed to prison on remand pending otherwise (“Other Remand Prisoners”).
Whichever class they may belong to, prisoners are permitted to be visited under the relevant provisions of the Prison Rules.
8. The general provisions as to visits to prisoners are contained in Rule 48 of Part I of the Prison Rules. It reads :
“ No persons, other than the relatives and friends of a prisoner, shall be allowed to visit him except by special authority. Such visits by relatives and friends shall, subject to such restrictions as may be imposed for the maintenance of discipline and order in the prison and for the prevention of crime, be allowed in the manner following –
…”
Rule 48 then sets out the general requirements and arrangements pertaining to the manner of the visits, to which we will return in a moment.
9. Under Rule 48, there are two ordinary categories of visitors allowed to visit a prisoner, that is, (1) his relatives and (2) his friends. There is no statutory definition for “relatives” or “friends” in either the Ordinance or the Prison Rules. When the visitor falls outside these two ordinary categories, he may only visit the prisoner by special authority. We will refer to this third category of visitors as “persons with special authority” below.
10. Pursuant to Rule 2, the general provisions as to visits under Rule 48 shall apply to all classes of prisoners except in so far as they may be inconsistent with the rules made to govern any particular class or classes of prisoners.
11. Special rules for particular classes of prisoners are contained in Part II of the Prison Rules. Division 1 of Part II applies to “prisoners awaiting trial” (“Prisoners Awaiting Trial”). Under Rule 188(1), they are two categories of Prisoners Awaiting Trial. The first class is “prisoners committed for trial at different levels of courts”,[6] that is, effectively, Unconvicted Prisoners. The second class is persons remanded under or for the purposes of various Ordinances,[7] a particular category of Other Remand Prisoners. The specific provision on visits which are applicable to Prisoners Awaiting Trial under Division 1 of Part II is Rule 203. It reads :
“ (1) Every prisoner awaiting trial shall, subject to the order of the Superintendent, be permitted to be visited by one visitor, or if circumstances permit, by two at the same time, for a quarter of an hour on any week day, during such hour as may from time to time be appointed.
(2) The Superintendent may, in special cases, permit the visit to be prolonged, and allow more than 2 visitors to visit such prisoner at one time.”
On its face, Rule 203 does not explicitly restrict the visitors who may visit Prisoners Awaiting Trial to any particular category as is the case under Rule 48.
12. Having briefly introduced Rule 48 and Rule 203, we next describe briefly what transpired in the proceedings below.
C. PROCEEDINGS BELOW
C1. Prosecution case
13. The particulars of the Charge alleged that :
“ Between 27 August 2001 and 19 August 2012, in Hong Kong, the defendants had conspired together, with other persons unknown, to defraud officers of the Correctional Services Department (“CSD”), by dishonestly and falsely representing to the officers of the CSD that each of the defendants was a “friend” of an inmate remanded at [the LCKRC], thereby inducing the officers of the CSD to act contrary to their public duty, namely to grant the defendants permission to visit the relevant inmates at [the LCKRC] which the officers would not otherwise have granted.”
14. The prosecution’s evidence was mainly adduced by way of Admitted Facts dated 29 July 2013. The prosecution further called two officers of the CSD to give evidence. They were PW1 Chow Chi Chung (transliteration), Assistant Officer I and PW2 Wong Tso Hing (transliteration), then Chief Officer.[8] At the material times, both prosecution witnesses were stationed at the LCKRC. PW1 had been in charge of visits by family for 3 and a half years and PW2 was responsible for supervising visits. The defence did not dispute their credibility. The prosecution also produced as evidence the post recorded statements and records of interview of those defendants who had denied the charge. The defence accepted that these post recorded statements and records of interview were made by the defendants voluntarily and their contents were true.
15. Much of the prosecution case was not in dispute. It is outlined below.
C1.1 General procedures for visits at LCKRC[9]
16. All visitors who come to visit prisoners remanded at the LCKRC need to go through registration and visit formalities at the Visit Registration Unit situated at a separate building and adjacent to the LCKRC (“the Registration Unit”). Briefly, a visitor is required to show his identity card and fill in a Visitor Request Slip (“the Request Slip”)[10] his name, identity card number, address and his relationship with the prisoner he intends to visit. The staff of the CSD will then input the information written on the Request Slip into the computer for verification. Only two major categories, namely “relatives” and “friends” are available in the computer system. For “relatives”, different codes are assigned to different relationships, such as father, mother, brothers, sisters etc. However, there is only a single code for “friends”. Upon completion of the registration procedure, the staff of the CSD will give a Visit Arrangement Slip (“the Arrangement Slip”) to the visitor.[11] The visitor will then leave the Registration Unit for the Main Gate of the LCKRC with the Arrangement Slip.
17. When processing the requests for visits, the CSD officers at the Registration Unit make no distinction between Convicted Prisoners and Prisoners Awaiting Trial. So the above procedure, including the Request Slip, the computer verification system, the Arrangement Slip, applies to both categories of Prisoners.
18. When the CSD officers at the Registration Unit verify the identity of the visitors to see if they are the relatives or friends of the prisoners, they cannot in fact verify the relationship between the visitors and the prisoners. As long as the visitor is able to state the name and number of the prisoner and he signs the Request Slip in confirmation,...
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