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Hksar v Wan Thomas

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
Judgment Date14 May 2018
Neutral Citation[2018] HKCFA 15
Judgement NumberFACC6/2017
Citation(2018) 21 HKCFAR 214
Year2018
Subject MatterFinal Appeal (Criminal)
CourtCourt of Final Appeal (Hong Kong)
FACC6/2017 HKSAR v. WAN THOMAS

FACC Nos. 6 and 7 of 2017

[2018] HKCFA 15

FACC No. 6 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 6 OF 2017 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 700 OF 2013)

_______________________

BETWEEN

HKSAR Respondent
and
WAN THOMAS (溫皓竣) (D1) Appellant

_______________________

FACC No. 7 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 7 OF 2017 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 700 OF 2013)

______________________

BETWEEN

HKSAR Respondent
and
GUAN QIAOYONG (關巧用) (D2) Appellant

______________________

Before: Chief Justice Ma, Mr Justice Ribeiro PJ, Mr Justice Tang PJ, Mr Justice Fok PJ and Lord Collins of Mapesbury NPJ
Date of Hearing: 17 April 2018
Date of Judgment: 14 May 2018

____________________

JUDGMENT

____________________

Chief Justice Ma:

1. I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Ribeiro PJ:

2. I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Tang PJ:

3. I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Fok PJ:

4. This appeal concerns the regime under the Prison Rules[1] for visits to prisoners on remand awaiting trial (“prisoners awaiting trial”). In particular, it raises the questions of (i) whether under those Rules visits to such prisoners are limited to their relatives and friends, and (ii) if so, whether under the visiting regime a prisoner’s friends are limited only to those persons who are personal acquaintances and known to him so that, absent special authority, visits by strangers or persons he has not previously met are excluded in all cases and regardless of the purpose of the visit.

The proceedings below

5. The appellants, with others,[2] were charged with conspiracy to defraud[3] in that, between 27 August 2011 and 19 August 2012, they conspired with other unknown persons to defraud officers of the Correctional Services Department (“CSD”) by dishonestly and falsely representing to those officers that each of them was a friend of an inmate remanded at Lai Chi Kok Reception Centre (“LCKRC”), thereby inducing the officers to act contrary to their public duty, namely to grant them permission to visit the relevant inmates at LCKRC which the officers would not otherwise have granted.

6. On 13 September 2013, the appellants[4] were convicted after trial before the magistrate,[5] who imposed community service orders on them.[6] The appellants appealed against their convictions. The appeal was ordered to be transferred from the Court of First Instance to the Court of Appeal[7] and, on 17 October 2016, the Court of Appeal[8] gave judgment dismissing the appellants’ appeals.[9]

7. The Court of Appeal having refused to certify that questions of law of great and general importance were involved in the appeal,[10] the Appeal Committee granted the appellants leave to appeal in respect of the questions of law set out at [8] below and also on the substantial and grave injustice ground on the footing that it was reasonably arguable that the evidence was incapable of sustaining a conviction for conspiracy to defraud.[11]

8. The questions of law in respect of which leave to appeal was granted are:

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

(b) 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’:

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

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

The facts

9. The facts were substantially undisputed at trial. The 1st appellant set up a company, IPS-Care Company, which offered what were called “representative visiting services” to the family and friends of prisoners on remand who were detained in LCKRC. Those visiting services included visiting prisoners awaiting trial on behalf of their family and friends, procuring items for delivery to prisoners such as newspapers, books and magazines, as well as ordering and delivering meals and conveying messages to and from prisoners. The 2nd appellant was employed by the 1st appellant to provide the visiting services. IPS-Care Company had a website advertising its services and its employees also distributed leaflets for the same purpose outside LCKRC. There was evidence that staff wore green “polo” shirts when carrying out the visits. The visiting services were charged at a rate of HK$84 per visit, later increased to HK$120 per visit, and there was a minimum total charge of HK$300. Between August and November 2011, the two appellants visited a total of 31 prisoners awaiting trial who were in custody in LCKRC.

10. As regards the procedure for visiting prisoners at LCKRC, the prosecution evidence was that visits were processed by the Visitor Registration Unit and all visitors were required to complete a Visit Request Slip on which a visitor must specify his or her name, identity card number, address and relationship with the prisoner. CSD staff would input the information from the Visit Request Slip into a computer for verification purposes. In respect of the relationship of the visitor to the prisoner, the computer system only had two categories, namely “relative” and “friend”. There was a single code for “friend”, whereas for “relative” there were various codes corresponding to different family members.

11. After verification in this way, a computer-generated Visit Arrangement Slip was generated and given to the visitor, on the strength of which the visitor would be admitted to visit the prisoner. So far as the relationship between the visitor and the prisoner was concerned, CSD staff were not able to ascertain or verify that relationship. The prosecution evidence was that if a person was not a relative and did not fill in “friend” in the Visit Request Slip, or if the CSD knew that a claimed relationship was false, the matter would be referred to a senior officer for determination.[12]

12. There was no distinction in the procedure between prisoners awaiting trial and convicted prisoners, although convicted prisoners would, on admission to the institution in which they were detained, be asked to provide a Declared Visitors List setting out the names and relationships of all prospective visitors which would then be input into the CSD’s Penal Record Information System. It would appear that prisoners awaiting trial at LCKRC might not have completed a Declared Visitors List before they received visits and this was the case in respect of each of the prisoners awaiting trial who were the subject of visits by the appellants.

13. In the present case, in respect of each visit made to a prisoner by the appellants, each appellant indicated in the relevant Visit Request Slip that he or she was a friend of the prisoner being visited. As noted above at [5], that claimed relationship was alleged to be the misrepresentation of fact on which the conspiracy in the charge was based.

The Prison Rules and the questions of construction arising on this appeal

14. The Prison Rules consist of various rules and regulations for the government and management of prisons, prison staff and prisoners authorised by the rule-making power under section 25 of the Prisons Ordinance.[13] Although other rules featured in the course of argument to which reference will be made, three rules are of particular relevance in this appeal, namely Rules 2, 48 and 203.

15. Rule 2 is in Part I of the Prison Rules entitled “General Rules for the Government of Prisons” and provides:

“2. Application of rules

The rules in this Part 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.”

16. Rule 48, under Subdivision 7 of Division 3 of Part I of the Prison Rules entitled “Communications and Visits”, provides:

“48. General provisions as to visits

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 –

(a) they shall be allowed to visit a prisoner twice a month and no more than 3 persons shall be allowed at one time;

(b) the visits of the relatives and friends of a prisoner shall be recorded in a book kept for that purpose and the visits shall be limited to 30 minutes on each occasion;

(c) a prisoner shall be visited in the presence of an officer of the Correctional Services Department;

(d) the Superintendent shall fix the days and times for visits which shall be publicly notified at the gates of the prison;

(e) (Repealed L.N. 65 of 1969)

(f) visitors shall not be admitted until they have recorded their names and addresses, their relationship to or connexion with the prisoner they wish to visit;

(fa) visitors shall not be admitted unless they have satisfied an officer of the Correctional Services Department, if so required, as to their identity;

(g) the Superintendent may, in special cases, extend the duration of a visit;

(h) the Superintendent may permit any convicted prisoner to see his relatives or friends for the purpose of making arrangements respecting his property or for any other special reason;

(i) the Superintendent may allow a prisoner who is entitled to a visit to write a letter instead of receiving such...

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